This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of the rule. The Office of Management and Budget has waived the review process required by Executive Order 12866 for this action.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be unduly or disproportionately burdened. Accordingly, AMS has prepared this initial regulatory flexibility analysis. Interested parties are invited to submit information on the regulatory and informational impacts of this action on small businesses.

Available information provided by the California Pistachio Commission (CPC) show that there are 647 California pistachio producers and 19 California handlers of pistachio nuts, most of which are also growers or have grower members. Additional information provided by CPC show that 445 California pistachio producers (69% of the total) produce less than 100,000 pounds per year; 100 producers (15%) produce more than 100,000 and less than 250,000 pounds; 43 growers (7%) produce more than 250,000 and less than 500,000 pounds; and 59 producers (9%) grow more than 500,000 pounds. U.S. grade standards for pistachios would normally be used at the sales level of marketing, which is ordinarily carried out at the processor/packer level or after processing has been completed. Pistachio nuts may be marketed by multiple commodity marketing firms.

The California Department of Food and Agriculture Resource Directory 2002, reports that California accounted for more than 99 percent of domestic pistachio production. More current information available to the Department indicates that California has 97 percent of domestic production with Arizona at 2 percent and New Mexico with less than 1 percent.

Small agricultural service firms, which include handlers (packers, brokers, distributors, importers, etc. ), have been defined by the Small Business Administration (SBA) (13 CFR 121.601) as those having annual receipts of less than $5,000,000 and small agricultural producers are defined as those having annual receipts of less than $750,000. The pistachio industry is characterized by growers that produce from .1 to more than 500 acres. Approximately 9 percent of the California pistachio growers receive more than $550,000 annually. Only a portion of these producers would meet SBA's definition of a small agricultural producer. At least 12 of the California pistachio handlers (or 63 percent of the total) could be considered small businesses under SBA's definition. We would expect that similar size determinations would hold for the remainder of domestic production.

This rule revises the standards in order to more closely align the grade names with other tree nut commodities and current industry recognized marketing terms, reduce the tolerance for internal defects for the purpose of providing a higher degree of quality assurance to consumers, relax the level of light stain on the shell, more objectively define when nuts are damaged by various factors, and establish two additional grades which reflect the industry's marketing of in-shell byproducts. The benefits of this rule are not expected to be disproportionately greater or smaller for small handlers or producers than for large entities.

Alternatives were considered for this action. One alternative would be to not issue a rule. However, the need for revisions have increased as a result of changing marketing characteristics by industry, several years of work with the industry to assess market and grower implications, and other input from all sectors of the pistachio industry and government. Since the purpose of these standards is to expedite the marketing of pistachio nuts in the U.S., not revising the standards would result in disuse of national standards and confusion in terms of industry marketing and the proper application of the grade standards.

This action will make the standards more consistent and uniform with current industry terms and practices. This action would not impose substantial direct economic cost, record keeping, or personnel workload changes on small entities, and it would not alter the market share or competitive position of these entities relative to large businesses. USDA has not identified any Federal rules that currently duplicate, overlap, or conflict with this rule. In addition, under the Agricultural Marketing Act of 1946, the use of these standards is voluntary.

This proposed rule would revise the United States Standards for Grades of Pistachio Nuts in the Shell and the United States Standards for Grades of Shelled Pistachio Nuts that were issued under the Agricultural Marketing Act of 1946. These standards are voluntarily used by industry as a common trading language to market pistachio nuts under established and known specifications. In some transactions, the buyer and seller may establish their own specifications for the sale, use portions of the U.S. standards while altering other portions to fit the sale and needs of the parties, or use the U.S. standards as written.

At the time of its 1998 request to AMS, the CPC issued “industry standards” based on the requested changes and encouraged California pistachio nuts to be marketed under those standards. The use of the voluntary “industry standards” for national and international marketing with official certification by USDA inspectors based on these standards has continued for three marketing seasons. The changes proposed herein are based on the standards currently being used by the industry to market U.S. grown pistachio nuts nationally and internationally.

The United States Standards for Grades of Pistachio Nuts in the Shell and the United States Standards for Grades of Shelled Pistachio Nuts were developed in 1986 and 1990, respectively. At that time, the U.S. pistachio industry was beginning to compete in a global market. As the industry has grown in numbers of growers and processors and in volume, the current grade standards have been regularly used as a basis of marketing. In recent years, foreign and domestic buyers have developed customers that have uses for nuts which have specifications outside the scope of the U.S. grade standards. In addition, U.S. marketers have begun to offer for sale byproduct forms of pistachio nuts for which there are no uniform marketing specifications in the form of recognized grade standards.

AMS received a request to update and revise the United States Standards for Grades of Pistachio Nuts in the Shell and the United States Standards for Grades of Shelled Pistachio Nuts from the CPC. The CPC is the State-approved marketing agent for the California pistachio industry and represents nearly all commercial pistachio producers and handlers in California. AMS and its State cooperator in California have been closely working with the CPC and its members since 1994 to review and update the industry grade standards. Official inspection services, with these U.S. grade standards as the basis, have been used by the industry since the inception of the standards.

Currently, the majority of U.S. pistachio production, and more than 30 percent of worldwide pistachio production, originates from California. The California industry, in cooperation with the CPC, began a comprehensive review of the current standards in 1994. As this process evolved, the industry tested possible revision theories through hands-on testing in the packing plants, through consumer preference studies, and through public meetings with processors, growers and other interested parties. This was initiated in order to review the standards and meet the marketing needs of the U.S. pistachio industry and the preferences of industry buyers and the general public. As a result of this study, the CPC, acting on behalf of California growers and shippers, requested an amendment to the standards.

This proposal would revise the standards to more closely align the grade names with other tree nut commodities and current industry recognized marketing terms, reduce the tolerance for internal defects for the purpose of providing a higher degree of quality assurance to consumers, relax the level of light stain on the shell, more objectively define when nuts are damaged by various factors, and establish two additional grades which reflect the industry's marketing of in-shell byproducts. These changes are intended to update the standards to maintain their usefulness as they are applied to today's marketing challenges, both nationally and internationally.

The following is an outline of these changes, including discussion on the need for the changes.

The gypsy moth, Lymantria dispar (Linnaeus), is an introduced, highly destructive insect of trees that, during its caterpillar stage, poses a serious threat to hundreds of species of trees and shrubs. A female gypsy moth lays a cluster of eggs (called an egg mass) on and near trees. Up to a thousand caterpillars can hatch from a single egg mass. The caterpillars feed on nearby trees and shrubs, removing much, if not all, foliage. This defoliation, when combined with other forms of stress such as drought and soil compaction, may ultimately result in the death of the tree.

The first major outbreak of gypsy moth in the United States occurred in Massachusetts in 1889. Since then, the gypsy moth has infested 19 States and the District of Columbia and has defoliated thousands of acres of hardwood forests across the northeastern United States. The infestation continues to move south and west despite ongoing eradication and control efforts.

Because eradication efforts have been largely unsuccessful, Federal and State regulations focus on limiting the artificial spread of gypsy moth, which occurs when the insect, in any of its life stages, attaches to items such as nursery stock, vehicles, outdoor household articles, and forest products that are moved long distances. The regulations in “Subpart—Gypsy Moth” (7 CFR 301.45 through 301.45-12, referred to below as the regulations) restrict the interstate movement of regulated articles from generally infested areas of States quarantined for gypsy moth. In § 301.45-1, the term “regulated articles” is defined as: (1) Trees without roots ( e.g. , Christmas trees), trees with roots, and shrubs with roots and persistent woody stems, unless they are greenhouse grown throughout the year; (2) logs, pulpwood, and wood chips; (3) mobile homes and associated equipment; and (4) any other products, articles, or means of conveyance, of any character whatsoever, when it is determined by an inspector that any life stage of gypsy moth is in proximity to such articles and the articles present a high risk of artificial spread of gypsy moth infestation and the person in possession thereof has been so notified.

The Animal and Plant Health Inspection Service (APHIS) Gypsy Moth Management Team (GMMT) and our State cooperators recently reviewed the regulations, focusing on the restrictions on the interstate movement of regulated articles. Based on the results of this review, we are proposing to amend the list of regulated articles found in § 301.45-1 by removing wood chips from that list and adding bark and bark products as regulated articles. The GMMT and State cooperators determined that wood chips do not play a role in the artificial spread of gypsy moth because the bark of the tree, where the female gypsy moth deposits her eggs, is removed prior to chipping the log. Therefore, wood chips are considered to be free of egg masses. Conversely, bark and bark products, including mulch, do pose a risk of spreading gypsy moth because egg masses may survive the debarking process. The regulations in § 301.45-4(c)(2) that set forth the requirements for the movement of logs, pulpwood, and wood chips would also be amended to replace restrictions on wood chips with restrictions on bark and bark products. These changes are necessary to update the current regulations and to relieve restrictions on wood chips, which are not necessary, and to impose restrictions on bark and bark products, which would ensure that bark and bark products do not contribute to the artificial spread of gypsy moth.

These proposed changes would also make it necessary to amend the regulations found in “Subpart—Gypsy Moth Host Material from Canada” (7 CFR 319.77-1 through 319.77-5), which are intended to limit the artificial spread of gypsy moth from infested areas of Canada into noninfested areas of the United States by restricting the importation of gypsy moth host material into the United States from Canada. Section 319.77-2 lists the following as regulated articles: (1) Trees without roots ( e.g. , Christmas trees), unless they were greenhouse-grown throughout the year; (2) trees with roots, unless they were greenhouse-grown throughout the year; (3) shrubs with roots and persistent woody stems, unless they were greenhouse-grown throughout the year; (4) logs with bark attached; (5) pulpwood with bark attached; (6) outdoor household articles; and (7) mobile homes and their associated equipment. Based on the recommendations of the GMMT and State cooperators, we are proposing to add bark and bark products to this list of regulated articles because, as noted previously, gypsy moth egg masses can survive the debarking process used to produce the raw bark products.

We would also amend the regulations in § 319.77-4(b), which set forth the conditions for the importation from Canada of logs and pulpwood with bark attached, so that those conditions would also apply to bark and bark products imported from Canada. With this proposed change, bark and bark products to be moved into or through a U.S. noninfested area could be imported into the United States from Canada only under the following conditions:

• If the bark or bark products originated in a Canadian infested area, they would have to be accompanied by an officially endorsed Canadian phytosanitary certificate that includes an additional declaration confirming that they have been inspected and found free of gypsy moth or treated for gypsy moth in accordance with the Plant Protection and Quarantine (PPQ) Treatment Manual, or they would have to be consigned to a specified U.S. processing plant or mill operating under a compliance agreement with APHIS for specified handling or processing.

• If the bark or bark products originated in a Canadian noninfested area, they would have to be accompanied by a certification of origin stating that they were produced in an area of Canada where gypsy moth is not known to occur.

These proposed changes are necessary to ensure that the importation of bark and bark products into noninfested areas of the United States from generally infested areas of Canada will not result in the artificial spread of gypsy moth from Canada into the United States.

With respect to regulated articles, there is some overlap between the regulations in “Subpart—Gypsy Moth Host Material from Canada” and the regulations in “Subpart—Lumber, Logs, and Other Unmanufactured Wood Articles” (7 CFR 319.40.1 through 319.40-11). Because of that overlap, the regulations in § 319.40-2(f) note that in addition to meeting the requirements of the unmanufactured wood regulations, logs and pulpwood with bark attached imported from Canada are subject to the inspection and certification requirements for gypsy moth in § 319.77-4. Similarly, § 319.77-4(b) of “Subpart—Gypsy Moth Host Material from Canada” includes a footnote stating that logs from Canada are also subject to restrictions under the unmanufactured wood regulations in §§ 319.40 though 319.40-11. Given that bark and bark products are already subject to restrictions under the unmanufactured wood regulations, and would also be subject to restrictions under the regulations regarding gypsy moth host material from Canada, we would update the cross references described above in each subpart to include bark and bark products.

In “Subpart—Gypsy Moth,” § 301.45-4 sets forth the requirements for the interstate movement of regulated articles from generally infested areas. Paragraph (b) of § 301.45-4 provides that a regulated article that originates outside of any generally infested area may be moved interstate directly through any generally infested area without a certificate or permit if, among other things, the article has been safeguarded while in any generally infested area during the months of April through June. Based on the review of these regulations by the GMMT and State cooperators, we are proposing to extend the close of this safeguarding period from June until August. Because the female gypsy moth generally lays eggs in July and August, and because the flight period of the gypsy moth in northern States is later in the year, there is a risk that articles could become infested during transport through a generally infested area during these months. The proposed extension of the safeguarding period would help protect against this risk and would also make § 301.45-4(b) consistent with the provisions of § 301.45-5(a)(2), which require a regulated article to be inspected within 5 days of the date of movement during the months of April through August before an inspector can certify the article for movement.

This proposed 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 this document, we are proposing to amend the gypsy moth regulations by removing restrictions on the interstate movement of wood chips, which do not pose a risk of containing gypsy moth egg masses, and by adding restrictions on the movement and importation of bark and bark products, which pose a risk of containing gypsy moth egg masses. In addition, we are proposing to extend by 2 months the period during which regulated articles originating outside of any generally infested area must be safeguarded from infestation in order to be eligible for interstate movement directly through any generally infested area without a certificate or permit. These proposed changes are necessary to update the provisions in these regulations to ensure consistent actions by APHIS, our cooperators, and industry in order to limit the artificial spread of gypsy moth.

The U.S. forest industry employs close to 1.4 million people and contributes approximately $200 billion annually to the national economy. 1 Although the United States is a net importer of wood and wood products, wood exports totaled $5.24 billion in 2001. The gypsy moth is a pest of concern for the U.S. forest industry. Defoliation of trees by gypsy moths often results in the death of the trees, which leads to economic loss, changes in ecosystems and wildlife habitat, and disturbed water flow and water quality. Economic costs to the U.S. forest industry, in addition to the costs of timber losses and pest control, can also arise from trade reductions as importers impose protective restrictions on access to their markets for wood products. Gypsy moths are already causing losses in quarantined areas in the United States. Annual losses attributable to gypsy moths are estimated to be about $22 million. 2 Thus, any spread of gypsy moth to nonregulated areas could have a negative economic and environmental impact. The changes in this proposed rule are necessary to limit the artificial spread of the gypsy moth.

The proposed changes to the domestic gypsy moth regulations would affect sawmills, pulp mills, and nurseries and garden centers that are involved in the interstate movement of wood chips and bark and bark products from gypsy moth generally infested areas. Restrictions would no longer apply to the movement of wood chips, but entities involved in the interstate movement of bark and bark products would be required to have each shipment of bark or bark products inspected or treated under the direction of an inspector, or self-inspect and certify each shipment in accordance with the Gypsy Moth Program Manual, no more than 5 days prior to moving it from a generally infested area to an area that is not generally infested. While self-inspection minimizes regulatory costs and time delay costs, other costs associated with time, salary, and recordkeeping could be incurred.

The Small Business Administration (SBA) has established size standards based on the North American Industry Classification System (NAICS) to determine and to classify which economic entities can be considered small entities. The SBA classifies sawmills as small if they employ 500 or fewer employees. Pulp mills are considered small if they employ 750 or fewer employees. Nursery and garden centers are considered small if their annual sales are less than $6 million. In 1997, the most recent year for which data are available, there were 1,678 sawmills (NAICS code 321113) in quarantined States, 3 9 pulp mills (NAICS code 322110) in generally infested areas, and 3,446 nursery and garden centers (NAICS code 444220) in generally infested areas of the United States. Approximately 93 percent of those sawmills, 95 percent of those nursery and garden centers, and 93 percent of those pulp mills are considered to be small entities under the SBA's standards. 4

In 1997, sawmills in quarantined States produced 2,896,170 tons of primary bark residue (see table 1), which was approximately 12 percent of the national total. 5 However, these data do not include the bark residue produced in urban areas and by land clearing operations. Additionally, most commercially available bark and mulch products are not produced at sawmills. Independent bark and mulch producers buy bark and wood residue from sawmills, reprocess the material, and then sell it in bulk or bagged. The number and size of these independent entities are not available. The impact upon these entities would depend upon what proportion of their business is bark mulch and what percentage of that is shipped to areas that are not generally infested. The higher the percentage shipped to areas that are not generally infested, the greater the negative effect would be.

The potential economic effects of these proposed changes would vary by State, depending on the number and size of entities to be regulated, the levels of infestation, the quantity of shipments to areas that are not generally infested, and whether delays occur and whether treatment is needed. Entities most likely to be affected by the proposed changes are those that produce bark products and wood chips and independent mulch and bark producers. There would be opposing results. Removal of wood chips from the list of regulated articles would result in savings, if there had been costs before the proposed changes, while the imposition of restrictions on the movement of bark and bark products may result in additional costs. Since entities located in generally infested areas produce a relatively smaller share of bark residue, as shown in table 1, most shipments of bark products are likely to be small in quantity and to be contained within generally infested areas with very few shipments to areas that are not generally infested.

If the inspection of a shipment intended for movement to an area that is not generally infested reveals the presence of gypsy moths, the infested articles would not be eligible for movement unless they were treated or consigned to a facility operating under a compliance agreement with APHIS for specified handling or processing. If treated, fumigation could cost between $100 and $150 per truck load, depending upon the size of the shipment. The need to treat infested bark or bark products may increase business for certified fumigant applicators located in generally infested areas. However, overall, the results of removing wood chips and adding bark and bark products to the list of regulated articles may cancel each other out, resulting in no increase of business for certified applicators. Regional variation is possible.

The proposed changes are expected to cause a slight increase in the costs of business for the affected entities. The negative economic impact that may result from the proposed changes is small compared to the potential for harm to related industries and to the U.S. economy as a whole that would result from an increase in the artificial spread of the gypsy moth, however. Benefits from the unrestricted movement of wood chips are expected to either cancel out or be greater than any negative effects of new restrictions on the movement of bark and bark products. Since the proposed changes would not prohibit their movement, regulated articles that meet the requirements of the regulations would continue to enter the market. The overall impact on price and competitiveness is expected to be relatively insignificant.

Under the unmanufactured wood regulations in § 319.40-3, regulated articles, which include bark and bark products, to be imported into the United States from Canada are subject to the inspection and other requirements in § 319.40-9 and must be accompanied by an importer document stating that the articles are derived from trees harvested in, and have never been moved outside, Canada. Under § 319.40-9, regulated articles must have been inspected and found free of plant pests or have been treated for pests as required by the inspector before the regulated article may be moved from the port of first arrival. Adding bark and bark products as a regulated articles under the regulations related to gypsy moth host material from Canada would mean that bark and bark products to be moved into or through a noninfested area of the United States from an infested area of Canada would have to be accompanied by an officially endorsed Canadian phytosanitary certificate confirming that they have been inspected and found free of gypsy moth or have been treated in accordance with the PPQ Treatment Manual prior to importation. Because the restrictions that would apply under the regulations for gypsy moth host material from Canada are only slightly more restrictive than the restrictions that already apply under the unmanufactured wood regulations, requiring certification or treatment prior to importation rather than at the port of first arrival, we do not believe that they will have a significant economic impact. In addition, we could not find any data on the importation of bark or bark products into the United States from Canada, which indicates that there is not a high volume of trade in these articles.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) State and local laws and regulations will not be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

This proposed rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Accordingly, 7 CFR parts 301 and 319 would be amended as follows:

The regulations in 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 dissemination of plant pests that are new to or not widely distributed within the United States.

Currently, the regulations do not allow the importation of fragrant pears from China. However, the national plant protection organization of China has requested that the Animal and Plant Health Inspection Service (APHIS) allow fragrant pears from the Korla region of Xinjiang Province in China to be imported into the United States.

Under section 412(a) of the Plant Protection Act, the Secretary of Agriculture may prohibit or restrict the importation and entry of any plant product if the Secretary determines that the prohibition or restriction is necessary to prevent the introduction into the United States or the dissemination within the United States of a plant pest or noxious weed.

The Secretary has determined that it is not necessary to prohibit the importation of fragrant pears from the Korla region of Xinjiang Province in China in order to prevent the introduction into the United States or the dissemination within the United States of a plant pest or noxious weed. This determination is based on the finding that the application of the remedial measures contained in this proposed rule will provide the protection necessary to prevent the introduction and dissemination of plant pests into the United States. The factors considered in arriving at this determination include the conclusions of a pest risk assessment, 1 program analysis, and site visits.

The pest risk assessment and supporting documents identified 13 pests of quarantine significance present in China that could be introduced in the United States via fragrant pears. However, the climatic conditions and production practices in the Korla region of Xinjiang Province do not favor the establishment of any of these pests. The production area is west of the Gobi Desert and just north of the Taklamakan Desert. The area experiences extremely hot summers, cold winters, and very little rainfall.

Furthermore, the production area is geographically as well as culturally isolated. Although agricultural commodities are exported from the region, there is little, if any, incoming trade. As a result, the potential for pests of quarantine significance being introduced into the area is extremely low. In the unlikely event a pest was introduced, climatic conditions and production practices would significantly reduce the likelihood of establishment.

Therefore, we are proposing to allow fragrant pears to be imported from the Korla region of Xinjiang Province in China under certain conditions. The provisions for the importation of fragrant pears from China would be set out in a new section, § 319.56-2kk.

We would require that the fragrant pears be grown in the Korla region of Xinjiang Province in a production site that is registered with the national plant protection organization of China. All propagative material introduced into a registered production site would have to be certified free of specified quarantine pests by the national plant protection organization of China.

The fragrant pears would be subject to both pre-harvest and post-harvest inspections. Each year, within 30 days prior to harvest, the national plant protection organization of China or officials authorized by the national plant protection organization of China would have to inspect the registered production site for signs of pest infestation and would have to allow APHIS to monitor the inspections. The national plant protection organization of China would have to provide APHIS with information on pest detections and pest detection practices, and APHIS would have to approve the pest detection practices. The national plant protection organization of China would be responsible for immediately notifying APHIS of any quarantine pests found during inspection of the registered production site or at any other time.

Upon detection of Oriental fruit fly ( Bactrocera dorsalis ) during the pre-harvest inspection or at any other time, APHIS could prohibit the importation into the United States of fragrant pears from China until an investigation is conducted and APHIS and the national plant protection organization of China agree that appropriate remedial action has been taken.

APHIS could prohibit the importation into the United States of fragrant pears from a production site for the season if any of the following pests are detected on that production site during the pre-harvest inspection or at any other time: Peach fruit borer ( Carposina sasaki ), yellow peach moth ( Conogethes punctiferalis ), apple fruit moth ( Cydia inopinata ), Hawthorn spider mite ( Tetranychus viennensis ), red plum maggot ( Cydia funebrana ), brown rot ( Munilinia fructigena ), Asian pear scab ( Venturia nashicola ), pear trellis rust ( Gymnosporangium fuscum ), and Asian pear black spot ( Alternaria spp.). The exportation to the United States of fragrant pears from the production site could resume in the next growing season if an investigation is conducted and APHIS and the national plant protection organization of China agree that appropriate remedial action has been taken. Furthermore, if any of these pests is detected in more than one registered production site, APHIS could prohibit the importation into the United States of fragrant pears from China until an investigation is conducted and APHIS and the national plant protection organization of China agree that appropriate remedial action has been taken.

After harvest, the national plant protection organization of China or officials authorized by the national plant protection organization of China would have to inspect the pears for signs of pest infestation and would have to allow APHIS to monitor the inspections. The national plant protection organization of China would be responsible for immediately notifying APHIS of any quarantine pests found during the post-harvest inspection or at any other time.

If any of the quarantine pests listed above are detected during the post-harvest inspection, APHIS could reject the lot or consignment and could prohibit the importation of fragrant pears into the United States, as described above.

In addition, APHIS could reject an individual lot or consignment upon detection of large pear borer (Numonia pivivorella), pear curculio (Rhynchites fovepessin), and Japanese apple curculio (R. heros). These pests are readily identifiable as they cause significant and characteristic damage to infested fruit. Therefore, post-harvest inspection is adequate mitigation for these pests.

The fragrant pears would have to be packed in insect-proof containers that are labeled in accordance with § 319.56-2(g), which requires that each box of fruit imported into the United States be clearly labeled with: (1) The name of the orchard or grove of origin, or the name of the grower; (2) the name of the municipality and State in which it was produced; and (3) the type and amount of fruit it contains. The fragrant pears would have to be held in a cold storage facility while awaiting export. In order to prevent fragrant pears intended for export to the United States from being commingled with any other fruit, we would require that if fruit from unregistered production sites are stored in the same facility, the fragrant pears would have to be isolated from that other fruit.

In addition, fragrant pears would have to be safeguarded to prevent pest infestation during transport to the United States. To facilitate compliance with the regulations, fragrant pears could only be imported under a permit issued by APHIS. In addition, each shipment of pears would have to be accompanied by a phytosanitary certificate issued by the national plant protection organization of China stating that the conditions of the regulations have been met and that the shipment has been inspected and found free of quarantine pests.

We believe that the proposed requirements described above are sufficient and necessary to prevent the introduction into the United States and the dissemination within the United States of a plant pest or noxious weed.

This proposed 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.

We are proposing to amend the fruits and vegetables regulations to allow the importation of fragrant pears from China under certain conditions. This action would allow fragrant pears to be imported from China while continuing to provide protection against the introduction of plant pests into the United States.

This analysis examines whether the regulations might have a significant economic impact on a substantial number of small entities, as required by the Regulatory Flexibility Act. There are three reasons why we believe this will not be the case. First, the risk of quarantine pests being introduced into the United States via this pathway is extremely low. Second, fragrant pears are not produced in the United States and fragrant pear import levels are expected to be low relative to domestic availability. In addition, our analysis suggests that Ya pear (Pyrus bretschneideri) imports from China do not substitute for domestically produced pears; therefore, profit losses, if any, for domestic pear producers are expected to be extremely low, at least over the next several years. Third, allowing the importation of a pear variety that is not produced domestically will lead to gains for small importers and pear consumers in the United States.

Fragrant pears are grown in an area surrounding Korla, a city in Xinjiang Province, which makes up the northwest corner of China, and are not grown anywhere else in the world. The production area, which is west of the Gobi Desert and just north of the Taklamakan Desert, experiences extremely hot summers, cold winters, and very little rainfall, and is geographically as well as culturally isolated. In addition, while agricultural commodities are exported from the region, there is little if any incoming trade. As a result, the potential for pests of quarantine significance being introduced into the area is extremely low. Furthermore, in the unlikely event a pest was introduced, climatic conditions and production practices would significantly reduce the likelihood of establishment.

Approximately 15,000 hectares are devoted to fragrant pear production in Xinjiang Province, yielding roughly 90,718 metric tons per year, of which 10 percent is exported. We expect that exports to the United States would come mainly from the farm units known as Regiments 28, 29, 30, 33, and Shayi Dong Farms, although additional quantities could come from Regiments 31 and 32. The land belongs to the government, and the proper maintenance of every orchard is under the direct supervision of China's Administration of Plant Quarantine (AQSIQ), which stations one supervisor to each regiment in the export area. The AQSIQ supervisor is in contact with the growers on a weekly basis and directs the work of several survey teams. 2 The survey teams are in the orchards every day and are responsible for maintaining traps, extension work, fruit cutting and inspection, checking to see that orchards are maintained properly, participating in annual pest surveys, and checking on other crops. If it is determined that an orchard is not being managed properly, AQSIQ assigns it to another grower.

Because pest risks associated with this pathway are extremely low, we expect regulatory costs associated with quarantine pest introductions to be negligible. In addition, because fragrant pears are not produced in the United States and because quantities designated for export are expected to be low, at least during the next several years, we do not expect fragrant pears to compete with domestically produced pears over the short run. However, imports of fragrant pears from China may increase over time, as has been the case for U.S. Ya pear imports and Canadian Ya and fragrant pear imports from China (table 1).

We used time-series data on U.S. Ya pear imports from China, domestic fresh pear production and prices, and total domestic expenditures on fruit during 1996-2001 to estimate the rate of substitution between Ya pears and domestically produced pears in order to glean information about the potential rate of substitution between fragrant pear imports and domestic pears. 3 In particular, we estimated a linear relationship between fresh domestic pear prices and a constant, fresh domestic production, and Ya pear imports from China. Prices and expenditures were converted to 2001 dollars using a fresh fruit consumer price index. The constant, Ya pear imports, real expenditures on fruit, and total pear production were used as instruments in the instrumental variables estimation procedure. The constant and the coefficient estimate on utilized fresh pear production are statistically different from zero, at a 5 percent significant level, and the coefficient estimate on production has the appropriate sine (table 2). The coefficient estimate on Ya pear imports is negative but not statistically different from zero, indicating that Ya pears did not substitute for domestically produced pears during 1998-2001.

During 1998-2001, U.S. imports of Ya pears from China increased an average 236 percent per year, mainly due to a 526 percent increase between 1998 and 1999 (table 1). More recently, imports increased 26 percent between 2000 and 2001. Import restrictions on Ya and fragrant pear imports from China imposed by the Canadian Food Inspection Agency are somewhat similar to those APHIS would impose and, as a result, Canadian imports of Chinese Ya and fragrant pears provide additional information regarding potential future U.S. imports of these commodities. During 1996-2000, Canadian imports increased an average 153 percent per year, increasing 146 percent between 1999 and 2000. There are no data to indicate directly whether U.S. imports of fragrant pears from China may compete with domestically produced pears. However, if the relationship between Ya pears and domestic pears is similar to the relationship between fragrant pears and domestic pears, then the estimation results in table 2 indicate that U.S. imports of fragrant pears from China will not compete with domestically produced pears during the next several years. If U.S. imports of fragrant pears from China increase rapidly over time, however, fragrant pears may eventually compete with some varieties of domestic pears over the long run. Be that as it may, all of the available data indicate that Chinese fragrant pears will not compete with domestic pears in the short run and, therefore, that allowing the importation of fragrant pears from China would likely not adversely impact U.S. pear producers in the short run.

Allowing the importation of fragrant pears from China would, however, likely provide benefits to U.S. importers of Chinese fragrant pears, as well as domestic pear consumers. The U.S. Small Business Administration defines a small pear importer (NAICS 42248, Fresh Fruit and Vegetable Wholesalers) as one with annual sales receipts of $100 million or less. There are no data to indicate directly the level of benefits that may accrue to small pear importers in the United States. Instead, we used data on Ya pears to estimate an inverse import demand curve for Ya pears and, under the assumption that U.S. import demand for Ya and fragrant pears would be similar, estimated benefits using the import demand curve for Ya pears. We used time-series data on Ya pear imports and prices and total domestic expenditures on fruit during 1998-2001 to estimate a linear relationship between import price, a constant, and import quantity. Prices and expenditures were converted to 2001 dollars using a fresh fruit consumer price index. The constant, real expenditures on fruit, and a time index were used as instruments. Both the constant and the coefficient estimate on U.S. Ya pear imports from China are statistically significant, and the coefficient estimate on imports has the appropriate sine (table 3). Assuming import demand for Ya and fragrant pears have a similar structure, and assuming Chinese export supply is perfectly inelastic at 256.88 metric tons for the first shipping season, then expected gross revenues less payments to Chinese exporters accruing to U.S. small pear importers for the first marketing season are $5,014 in 2001 dollars. 4 (This figure does not include additional costs associated with unloading, storing, and transporting fragrant pears to market.)

We expect that allowing the importation of fragrant pears from China would likely not have a significant negative economic impact on a substantial number of small entities in the short run. If imports of fragrant pears increase over time, as has been the case for U.S. Ya pear imports and Canadian Ya and fragrant pear imports, it is possible that fragrant pears could compete with some varieties of domestically produced pears, leading to profit losses for small pear producers in the United States. However, under these circumstances, profit losses for small pear producers would be offset by profit gains for small pear importers. That is, even if fragrant pear imports compete with domestic pears in the long run, the proposed rule may have positive net welfare impacts on small entities in the United States.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.

This proposed rule would allow fragrant pears to be imported into the United States from the Korla region of Xinjiang Province in China. If this proposed rule is adopted, State and local laws and regulations regarding fragrant pears imported under this rule would be preempted while the fruit is in foreign commerce. Fresh fruits are generally imported for immediate distribution and sale to the consuming public and would 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. If this proposed rule is adopted, 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.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. 02-049-1. Please send a copy of your comments to: (1) Docket No. 02-049-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule.

This proposed rule would allow the importation of fragrant pears from China under certain conditions. As a condition of entry, fragrant pears from China would have to be grown in the Korla region of Xinjiang Province in a production site that is registered with the national plant protection organization of China. The fragrant pears would be subject to inspection. In addition, the pears would have to be packed in insect-proof containers that are labeled in accordance with the regulations and safeguarded from pest infestation during transport to the United States. Finally, fragrant pears could only be imported under a permit issued by APHIS and each shipment of pears would have to be accompanied by a phytosanitary certificate issued by the national plant protection organization of China stating that the conditions of the regulations have been met and that the shipment has been inspected and found free of quarantine pests.

We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g. , permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 0.4294 hours per response.

Respondents: Exporters, Producers, State and Regulatory Officials.

Estimated annual number of respondents: 130.

Estimated annual number of responses per respondent: 1.3076.

Estimated annual number of responses: 170.

Estimated total annual burden on respondents: 73 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

The Animal and Plant Health Inspection Service is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. For information pertinent to GPEA compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

Accordingly, we propose to amend 7 CFR part 319 as follows:

The regulations in subchapter C of chapter I, title 9, Code of Federal Regulations, govern the interstate movement of animals and animal products to prevent the dissemination of livestock and poultry diseases in the United States. Part 71 of subchapter C includes, among other things, requirements for the identification and inspection of swine being moved interstate.

On December 20, 2001, we published in the Federal Register (66 FR 65598-65604, Docket No. 98-023-2) a final rule that established an alternative to the requirements for moving swine interstate. Among other things, the rule allowed persons to move swine interstate without meeting individual swine identification requirements if the swine were being moved within a single swine production system, and provided that the swine production system agreed to monitor the health of animals moving within the system and to facilitate tracebacks. The rule was designed to further facilitate the interstate movement of swine while continuing to provide protection against the interstate spread of swine diseases.

Among other things, the final rule amended § 71.1 by adding a definition of swine production health plan. This definition featured a provision requiring that such plans “must identify all premises that are part of the swine production system and that receive or send swine in interstate commerce and must provide for regular inspections of all identified premises and swine on the premises, at intervals no greater than 30 days, by the swine production system accredited veterinarians(s).” By providing for regular inspections of “all identified premises and swine on the premises,” this provision has the effect of requiring such inspections even after the swine have completed their interstate movement within the swine production system and have arrived at a finishing house or other final receiving premises within the swine production system.

Some commenters on the proposal that preceded the final rule suggested that while veterinary inspections at intervals of 30 days or less are appropriate and necessary for swine that are still to be moved interstate, such regular inspections are not necessary once the animals have completed their interstate movement within the swine production system. Furthermore, it was suggested that retaining the 30-day veterinary inspection requirement for animals that had reached their final destination in the system could unintentionally increase the risk of swine disease transmission by requiring veterinarians who may have first inspected sick animals to inspect healthy ones as well, even in the absence of a compelling medical need to do so.

When we promulgated the final rule, we decided to retain the 30-day inspection provision. We were concerned that reducing the frequency could put accredited veterinarians in violation of our accreditation standards in 9 CFR 161.3(a). Under these standards, accredited veterinarians must complete certificates of inspection based on veterinary inspection. An accredited veterinarian may not issue any certificate or other document “which reflects the results of any inspection, test, [etc.]” unless he or she has personally inspected the animal not more than 10 days prior to issuing the certificate or other document. However, following the initial and subsequent inspections of a herd or flock that is in a regular health maintenance program, an accredited veterinarian may issue any certificate or other document if not more than 30 days have passed since he or she personally inspected the animal.

We have since concluded, however, that having a more flexible inspection requirement for swine that have reached their final destination in the swine production system would not conflict with our accreditation standards. A certification of inspection is necessary for the interstate movement of swine within a swine production system. Swine that have reached a finishing house or other final destination in the system will be destined for the slaughterhouse. Nothing in the current proposal would preclude any inspection needed to issue a certification for the interstate movement of swine to slaughter. The proposal would merely eliminate routine 30-day inspections for animals that have arrived at a finishing house or other final destination and that may well spend months at that one location. It does not relieve accredited veterinarians of the responsibility of complying with the accreditation standards or other applicable requirements.

Therefore, we are proposing to amend our definition of swine production health plan in § 71.1 to allow for greater flexibility in health inspections of swine that have completed their movement within a swine production system. Under our proposed definition, the swine production health plan would have to provide for health monitoring, including inspection by the swine production system accredited veterinarian(s), of all swine within the system. The required frequency of inspections would vary according to the nature of the premises and the swine that populate them. Inspections of premises that contain swine that are or will be in the process of moving interstate within the swine production system and of all swine on those premises would still have to be conducted by the accredited veterinarian(s) at intervals of no greater than 30 days. Inspections of premises containing only swine that have completed their interstate movement within a single swine production system and of all swine on those premises would have to be conducted in accordance with State regulations.

This action would reduce the frequency of veterinary inspections for swine that have completed their interstate movement within a single swine production system without diminishing the effectiveness of our swine-disease monitoring and surveillance activities.

This proposed 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.

This proposed rule would remove a requirement in § 71.1 for veterinary inspections, at intervals no greater than 30 days, of swine that have already completed their interstate movement within a swine production system.

The entities affected by this proposed action would be swine owners and swine finishing houses or other final receiving destinations in swine production systems. Data from the 1997 Census of Agriculture suggest that approximately 109,754 swine farms could be affected, and that 98 percent of these swine farms could be classified as small entities under the Small Business Administration criterion of $750,000 or less in revenue per year. 1

The overall economic impact of this proposed rule should be positive but small. Swine operations would be able to forgo certain costs of inspections at the finishing houses or other final receiving premises in the swine production system. The annual savings that would be realized by each swine operation are difficult to estimate because many of the veterinarians who perform the inspections are held under a retainer and perform other services for the swine operation. However, the time and resources of the veterinarian could be redirected to other issues at the finishing houses or other receiving premises, like caring for sick animals, thereby benefitting swine owners.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.

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.)

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

This proposed rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Accordingly, we propose to amend 9 CFR part 71 as follows:

The National Poultry Improvement Plan (NPIP, also referred to below as “the Plan”) is a cooperative Federal-State-industry mechanism for controlling certain poultry diseases. The Plan consists of a variety of programs intended to prevent and control egg-transmitted, hatchery-disseminated poultry diseases. Participation in all Plan programs is voluntary, but flocks, hatcheries, and dealers must first qualify as “U.S. Pullorum-Typhoid Clean” as a condition for participating in the other Plan programs. Also, the regulations in 9 CFR part 82, subpart C, which provide for certain testing, restrictions on movement, and other restrictions on certain chickens, eggs, and other articles due to the presence of Salmonella enteritidis, prohibit hatching eggs or newly hatched chicks from egg-type chicken breeding flocks from being moved interstate unless they are classified “U.S. S. Enteritidis Monitored” under the Plan or have met equivalent requirements for S. enteritidis control, in accordance with 9 CFR 145.23(d), under official Federal or State supervision. (The name of the “U.S. S. Enteritidis Monitored” classification has changed; as discussed below, we are proposing to amend part 82, subpart C, to reflect this change.)

The Plan identifies States, flocks, hatcheries, and dealers that meet certain disease control standards specified in the Plan's various programs. As a result, customers can buy poultry that has tested clean of certain diseases or that has been produced under disease-prevention conditions.

The regulations in 9 CFR parts 145 and 147 (referred to below as the regulations) contain the provisions of the Plan. The Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture (USDA or the Department) amends these provisions from time to time to incorporate new scientific information and technologies within the Plan.

The proposed amendments discussed in this document are consistent with the recommendations approved by the voting delegates to the National Plan Conference that was held from May 30 to June 1, 2002. Participants in the 2002 National Plan Conference represented flockowners, breeders, hatcherymen, and Official State Agencies from all cooperating States. The proposed amendments are discussed in greater detail below.

On February 25, 2002, we published in the Federal Register (67 FR 8466-8475, Docket No. 00-075-2) a final rule that, among other things, amended § 145.23(d) by changing the name of the “U.S. S. Enteritidis Monitored” classification to “U.S. S. Enteritidis Clean.” We made this change because the monitoring and prevention elements of this program had been effective enough that the focus of the program had shifted towards maintaining the freedom of flocks from Salmonella enteritidis. At the time we made this change, we should have updated § 82.34 to reflect the classification's new name, but we failed to do so. Therefore, we are proposing to change the reference to “U.S. S. Enteritidis Monitored” in § 82.34 to read “U.S. S. Enteritidis Clean” to make the regulations consistent.

We propose to reorganize § 145.14(a), which specifies the procedures for testing flocks for pullorum-typhoid, to improve that paragraph's clarity. The current paragraph does not clearly state the order in which the various tests for pullorum-typhoid should be administered. To save money and time, testing should begin with the rapid serum test, the enzyme-labeled immunosorbent assay, or the rapid whole blood plate test. These tests are considered screening tests and are highly sensitive, which may lead to false positives. To confirm positive results from these tests, the standard tube agglutination test or the microagglutination test must be used. If the standard tube agglutination test or microagglutination test confirms the earlier positive result, flock owners must submit all the reactors to an authorized laboratory for bacteriological examination. If there are four or more reactors in the flock, at least four reactors must be submitted.

Some owners of small flocks who suspect that the standard tube agglutination or microagglutination tests have produced false-positive results may be reluctant to submit reactors for bacteriological examination, because this process requires that the reactors be destroyed. In such a situation, the regulations provide that rather than immediately submitting reactors for bacteriological examination, the owner may isolate the reactors for 30 days, after which they must be retested. If the reactors continue to test positive, it is mandatory that the reactors be submitted for bacteriological examination.

While these procedures are enumerated in the current regulations, their presentation is somewhat unclear, with the result that tests may be administered in improper order and reactors may be destroyed unnecessarily for the purposes of bacteriological examination. The proposed reorganization of § 145.14(a) is intended to eliminate that possibility by making the regulations easier to understand.

Additionally, in the current regulations, the procedures for testing for pullorum-typhoid (§ 145.14(a)(9)) are presented after the procedures in § 145.14(a)(7) by which a flock may be determined to be free of pullorum-typhoid once a flock has tested positive for this disease. We propose to reorder these paragraphs to reflect the order in which these procedures would be undertaken by flockowners.

At one time, the Plan served as a certification program for breeders, determining the required characteristics for saleable hatching eggs of various types. Over the years, the Plan's focus shifted towards preventing the establishment and spread of poultry diseases. The poultry industry has developed its own standards for hatching eggs, and these standards are widely accepted among producers. Therefore, we believe that the NPIP requirements for the minimum weights of hatching eggs that are part of the participation criteria for certain Plan programs are no longer applicable or necessary and should be removed from the regulations.

In § 145.22, we propose to remove paragraphs (a) and (b), which require, respectively, that the minimum weight of hatching eggs sold from egg type chicken breeding flocks shall be 11/22 ounces, unless otherwise specified by the purchaser of the eggs, and that Mediterranean breed eggs shall be reasonably free from tints. In § 145.32, we propose to remove paragraph (a), which requires that the minimum weight of hatching eggs sold from meat type chicken breeding flocks shall be 1 10/12 ounces, except as otherwise specified by the purchaser of the eggs. In § 145.42, we propose to remove paragraph (b), which requires that the minimum weight of hatching eggs from turkey breeding flocks that are shipped interstate shall be 2 ounces for small varieties and 2 1/2 ounces for large varieties, unless otherwise specified by the purchaser of the eggs.

For both the U.S. M. Gallisepticum Clean and U.S. M. Synoviae Clean programs, as provided in § 145.33(c) and (e), respectively, we propose to modify the current requirements for testing male breeding birds for the diseases before adding these birds to a participating multiplier breeding flock. Instead of requiring that 3 percent of the male breeding birds be tested, we would require that 30 of these birds be tested, or, if fewer than 30 birds are being introduced, that all of these birds be tested. We believe that the 3 percent standard, if used when fewer than 1,000 male breeding birds are being added to a participating flock, can result in sample sizes that are not large enough for the test results to be statistically significant. Requiring that 30 male breeding birds be tested (or that all of the male breeding birds be tested if fewer than 30 are being introduced) would provide greater assurance that the male breeding birds being introduced are free of these diseases.

We also propose to amend § 145.33(c) and (e) by inserting a reference to the diagnostic procedure in § 145.14(b) for M. gallisepticum and M. synoviae to clarify that if the male breeding birds are tested serologically, the test must be carried out as prescribed in § 145.14(b).

For both the U.S. M. Gallisepticum Monitored and U.S. M. Synoviae Monitored programs, as provided in § 145.33(j) and (k), respectively, we propose to increase the sampling level required to retain this classification from 20 birds, 10 from the front half of the house and 10 from the back half of the house, to 30 birds, 15 from the front of the house and 15 from the back of the house. We believe that 20 birds is an insufficient sample size for testing for these diseases, and that the proposed requirement that 30 birds be tested would provide more useful results.

We propose to eliminate the restrictions on the use of animal protein in mash and pelletized feed that are currently found in the regulations governing the U.S. S. Enteriditis Clean program, in paragraphs § 145.33(h)(1)(ii)(A) and (h)(1)(ii)(B); the U.S. Salmonella Monitored program, in paragraph § 145.33(i)(1)(iii); and the U.S. Sanitation Monitored program for turkeys, in § 145.43(f)(3). Currently, animal protein used in either pelletized or mash feed under these programs must be produced under the Salmonella Education/Reduction program of the Animal Protein Products Industry (APPI) or, for the U.S. S. Enteriditis Clean and U.S. Sanitation Monitored programs, the Fishmeal Inspection Program of the National Marine Fisheries Service (NMFS). We are proposing to remove these restrictions and allow the use of any animal protein for feed under these programs.

We originally required animal protein used in pelletized or mash feed for poultry to be produced under the APPI or NMFS programs because we believed that such a requirement was an effective way to lower the risk that animal protein used in feed was contaminated with Salmonella. However, since that requirement was instituted, technological methods, such as thermal lethality treatments, and chemical products have been introduced to control the incidence of Salmonella in protein feed. These technological and chemical methods are generally more effective than the program controls in ensuring that Salmonella is not present in protein used in feed.

In fact, the control programs have often proven ineffective. For example, in 2000, Salmonella Education/Reduction Program test results showed that 20 percent of tested protein samples were positive for Salmonella. This level of positive results is not significantly different from the level of Salmonella positive results found among renderers and processors that did not operate under the APPI program. Removing the requirement that protein used in feed be produced under the APPI or NMFS programs, therefore, is not likely to reduce the quality of protein used in feed, and to the extent that it encourages the use of the more effective technological and chemical Salmonella control methods, is likely to increase that quality.

In addition, we propose to replace the current thermal lethality treatment for pelletized feed specified in the U.S. Sanitation Monitored program for turkeys by providing for the use of any of three specified thermal lethality treatments or any other equivalent thermal lethality treatment. Alternatively, we would require that a Food and Drug Administration-approved Salmonella control product be added to all finished pellets or conditioned mash feed. Turkey flocks are more likely than other poultry flocks to be fed animal protein; we have therefore determined that our regulations for treating animal protein feed for turkeys should be as specific as possible to ensure that the animal protein feed prepared for turkey flocks carries the lowest possible risk of infecting turkeys with Salmonella. The proposed additional requirements would further reduce the chance that turkey feed is infected with Salmonella under this program.

We propose to add a provision for reinstatement to the U.S. S. Enteriditis Clean program for meat type chicken breeding flocks and products in a new paragraph § 145.33(h)(6). This reinstatement provision would require breeders of meat type flocks to undertake corrective measures to ensure that a flock that has been removed from the U.S. S. Enteriditis Clean program due to infection is no longer affected by that bacterium, in addition to any other measures that may be specified by the Official State Agency. These measures would include testing and slaughtering infected birds based on the testing of every bird in the flock, vaccination, medication, cleaning and disinfection of houses, rodent control, and movement to premises that have been determined to be environmentally negative for S. Enteriditis as described in § 147.12(a). Once these measures have been performed, the flock would be tested and environmental drag swabs would be taken. If both tests do not indicate the presence of S. Enteriditis , the flock would be reinstated into the program.

Currently, there is no reinstatement provision for the U.S. S. Enteriditis Clean program, and as a result primary breeders who wish to participate in the program must destroy foundation level primary breeding birds if those birds are part of a flock affected with S. enteritidis. Such birds often have valuable, specific traits that cannot be duplicated, and their destruction can result in considerable losses to the primary breeder. Allowing for reinstatement of flocks into the U.S. S. Enteriditis Clean program under the proposed conditions would enable primary breeders to retain their foundation level primary breeding birds if they are not infected with S. Enteriditis while continuing to ensure that the flocks that participate in the U.S. S. Enteritidis Clean program are kept free of this disease.

We propose to add new U.S. Avian Influenza Clean programs to the regulations governing turkey breeding flocks and products in § 145.43(g) and to the regulations governing waterfowl, exhibition poultry, and game breeding flocks and products in § 145.53(e). Both of these programs are modeled on the existing U.S. Avian Influenza Clean program for meat type chicken breeding flocks and products, set out at § 145.33(l). Like the U.S. Avian Influenza Clean program for meat type chicken breeding flocks and products, the programs for turkey breeding flocks and products and waterfowl, exhibition poultry, and game breeding flocks and products would require that a sample of at least 30 birds must test negative for antibodies to avian influenza, as indicated by the agar gel immunodiffusion test specified in § 147.9. For primary breeding flocks, the maximum interval between tests would be 90 days; for multiplier breeding flocks, the maximum interval between tests would be 180 days. The program for turkeys would additionally require that if a killed influenza vaccine from a subtype other than the H5 or H7 subtypes is used for turkeys, the hemagglutinin and the neruaminidase subtypes of the vaccine must be reported to the Official State Agency for laboratory and reporting purposes.

Both of these U.S. Avian Influenza Clean programs are intended to provide flockowners with an optional way to improve their flocks' marketability in foreign countries. A program requiring regular testing of turkeys for avian influenza with the agar gel immunodiffusion test would provide a useful certification to turkey flockowners seeking to expand their exports to countries that required such testing.

Since most countries require that waterfowl, exhibition poultry, and game breeding birds be tested for avian influenza before they can be imported, the avian influenza testing program for those birds would not only provide exporters with an additional useful certification but could also save time and expense at export.

Section 145.10 contains illustrative designs or emblems that correspond to the Plan's various classifications. The design for the U.S. Avian Influenza Clean program is found in § 145.10(r), which currently reads “ U.S. Avian Influenza Clean. ( See §§ 145.23(h) and 145.33(l).)” Because we are proposing to establish a U.S. Avian Influenza Clean program for waterfowl, exhibition poultry, and game breeding birds, we would amend § 145.10(r) so that it also refers to § 145.53(e), which is the section that would contain the requirements of the U.S. Avian Influenza Clean program for waterfowl, exhibition poultry, and game breeding birds.

We are proposing to refer to the similar program for turkeys as the U.S. H5/H7 Avian Influenza Clean program, because its intent is to determine the presence of the H5 and H7 subtypes of avian influenza in participating flocks. However, § 145.10 does not currently contain an illustrative design that bears this title. Therefore, we are proposing to add a new paragraph (t) to § 145.10 which would read “ U.S. H5/H7 Avian Influenza Clean. ( See § 145.43(g).)” This paragraph would contain an appropriate illustrative design for use with this program.

We propose to modify the regulations governing the isolation and identification of Salmonella in § 147.12(b) by adding a rapid diagnostic method involving a rapid ruthenium-labeled Salmonella sandwich immunoassay to the list of approved diagnostic methods. The steps involved in using this method would be detailed in a new paragraph § 147.12(b)(3). The two other approved methods, tetrathionate enrichment with delayed secondary enrichment and pre-enrichment followed by selective enrichment (listed in paragraphs (b)(1) and (b)(2) of § 147.12, respectively), both require more time and resources to accomplish than the rapid ruthenium-labeled Salmonella sandwich immunoassay, while the latter method provides equally accurate results. Adding this method to the list of approved methods would provide greater flexibility to diagnostic laboratories while continuing to ensure accurate results in testing.

This proposed 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.

The objective of the NPIP is to provide a cooperative Industry-State-Federal program through which new technology can be effectively applied to the improvement of poultry and poultry products throughout the country. The provisions of the Plan, developed jointly by industry members and State and Federal officials, establish standards for the evaluation of poultry breeding stock and hatchery products with respect to freedom from hatchery-disseminated diseases. Participation in the program is voluntary. Currently, the NPIP has active control programs for pullorum, fowl typhoid, avian mycoplasmas, Salmonella enteritidis, and avian influenza.

Periodically, provisions of the Plan are amended to keep current with the development of the poultry industry and the utilization of new information as it becomes available, based on the recommendations of representatives of member States, hatcheries, dealers, flockowners, and breeders who take part in the Plan's National Plan Conference meetings. Accordingly, this proposed rule would change some of the Plan's provisions to keep the provisions of the Plan current with changes in the poultry industry, establish new certification programs, modify current disease control practices, and provide for the use of new sampling and testing procedures. The proposed changes were voted on and approved by the voting delegates at the Plan's 2002 National Plan Conference. The proposed changes have been generated by industry representatives, Official State Agencies, or Federal representatives with the goal of reducing disease risk and increasing product marketability.

The United States is the world's largest producer and exporter of poultry meat and the second-largest egg producer. In 2001, U.S. producers held a total of 441.1 million chickens, excluding commercial broilers, whose estimated value was $1.068 billion. Broiler production, which primarily comes from chickens raised under contract with a broiler processor, totaled 8.262 billion broilers with a combined live weight of 41.5 billion pounds. The value of broiler production for that year was $13.9 billion. The United States is also the world's largest turkey producer. In 2001, turkey production totaled 269 million birds with a combined live weight of 6.98 billion pounds and value of $2.8 billion. Finally, in 2000, the United States produced approximately 84.4 million eggs worth an estimated $4.3 billion. 1

The U.S. poultry industry plays a significant role in international trade. In fact, the United States is the world's largest exporter of both broilers and turkey products. In 2001, broiler exports totaled 5.5 billion pounds, valued at $1.8 billion. Turkey exports for the same year totaled 487 million pounds and were valued at $257 million. In addition, 191 million dozen eggs and egg products were exported in 2001. 2

Participation in the Plan serves as a “seal of approval” for eggs and poultry producers in the sense that tests and procedures recommended by the Plan are considered optimal for the industry. As such, while participation in the Plan is voluntary, many foreign nations, such as Russia, do not accept poultry products unless they have originated from flocks participating in the Plan. 3 Consequently, participation in the Plan increases product marketability both domestically and internationally, which in turn increases the economic benefits received by the poultry industry from participation in the Plan.

The Regulatory Flexibility Act requires that agencies consider the economic impact of their regulations on small entities. Under the North American Industry Classification System (NAICS) used by the Small Business Administration, chicken egg operations are considered small entities if they have $10.5 million or less in annual receipts (NAICS code 112310). All other poultry products and meat operations are considered small entities if they have $750,000 or less in annual receipts (NAICS code 112320). 4 As this regulation only seeks to make minor changes in a continuing program in an effort to better safeguard poultry health, the economic effects on poultry producers are not expected to be significant.

The last agricultural census estimated there were 63,246 domestic poultry and poultry products farms. 5 Unfortunately, the size distribution of these farms is not known. However, because most poultry production is carried out by small farms working under contract with larger processors or marketing firms, we can assume a fair amount of poultry production is carried out by small operations.

However, only those producers that voluntarily participate in the Plan will be affected. As is the case in the majority of voluntary control programs, individuals are likely to remain in the program as long as the costs of implementing the program are lower than the added benefits they receive from the program. In any event, the proposed changes would not have a significant economic effect on Plan participants.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.

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.)

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

This proposed rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Accordingly, we propose to amend 9 CFR parts 82, 145, and 147 as follows:

Comments Invited

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-82-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-82-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

As part of its practice of re-examining all aspects of the service experience of a particular aircraft whenever an accident occurs, the FAA has become aware of incidents of smoke and electrical odor in the flight compartment and cabin area of McDonnell Douglas Model DC-9-81, -82, and -83 airplanes. Investigation revealed that long-term use and breakdown of the internal components of circuit breakers manufactured by Wood Electric Corporation or Wood Electric Division of Potter Brumfield Corporation contributed to internal overheating and arcing of the circuit breakers. This condition, if not corrected, could result in smoke and fire in the flight compartment and main cabin.

The FAA has reviewed and approved Boeing Alert Service Bulletin MD80-24A194, Revision 01, dated March 11, 2003, which describes procedures for a one-time visual inspection of the circuit breakers to determine if discrepant circuit breakers are installed (includes circuit breakers manufactured by Wood Electric and Wood Electric Division of Brumfield Potter Corporations, and incorrect circuit breakers installed per Boeing Alert Service Bulletin MD80-24A194, dated February 19, 2002, and replacement of any discrepant circuit breaker with a new, approved circuit breaker. Accomplishment of the actions specified in Revision 01 of the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in Revision 01 of the service bulletin described previously.

There are approximately 1,177 airplanes of the affected design in the worldwide fleet. The FAA estimates that 709 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 80 work hours per airplane to accomplish the proposed inspection of the circuit breakers (over 700 installed on each airplane), and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $3,403,200, or $4,800 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-391-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-391-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, notified the FAA that an unsafe condition may exist on certain Bombardier Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes. TCCA advises of two reports of chafing of the wire bundle containing altitude encoding information on the No. 2 propeller de-ice timer. This condition, if not corrected, could result in incorrect altitude information transmitted by the Mode S transponder and simultaneous loss of the Traffic Alert and Collision Avoidance System (TCAS), and increasing the possibility of an air traffic conflict.

Bombardier has issued Service Bulletin 8-34-200, dated June 26, 2001, which describes procedures for modifying the No. 3 electrical equipment panel behind the avionics rack. The modification includes changing the spacer lengths for the installation of the propeller timer units and the main harness run, and securing the wiring and harness in close proximity by installing 5 tie wraps to avoid fouling conditions.

Bombardier also has issued Service Bulletin 8-30-36, dated July 13, 2000, which describes procedures for modification of the No. 2 propeller de-ice timer to ensure adequate clearance from adjacent wire runs. The modification involves replacing the existing spacers that support the No. 2 propeller de-ice timer with shorter spacers. This will increase the gap between the timer and the avionics cable and prevent fouling conditions.

Accomplishment of the actions specified in the service bulletins is intended to adequately address the identified unsafe condition. TCCA classified these service bulletins as mandatory and issued Canadian airworthiness directive CF-2001-38, dated October 11, 2001, to ensure the continued airworthiness of these airplanes in Canada.

This airplane model is manufactured in Canada and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, TCCA has kept the FAA informed of the situation described above. The FAA has examined the findings of TCCA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the service bulletins described previously. The actions would be required to be accomplished in accordance with the service bulletins described previously.

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. Because we have now included this material in part 39, we no longer need to include it in each individual AD.

The FAA estimates that 197 Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes of U.S. registry would be affected by this proposed AD.

It would take approximately 4 work hours per airplane to accomplish the proposed modification of the No. 3 electrical equipment panel behind the avionics rack, at an average labor rate of $60 per work hour. The cost for required parts would be minimal. Based on these figures, the cost impact of this proposed modification on U.S. operators is estimated to be $47,280, or $240 per airplane.

It would take approximately 2 work hours per airplane to accomplish the proposed modification of the No. 2 propeller de-ice timer, at an average labor rate of $60 per work hour. The cost for required parts would be minimal. Based on these figures, the cost impact of this proposed modification on U.S. operators is estimated to be $23,640, or $120 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA 2003-15061/Airspace Docket No. 03-ASW-1.” The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://dms.dot.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov or the Superintendent of Document's Web page at http://www.access.gpo.gov/nara.

Additionally, any person may obtain a copy of this notice by submitting a request to the Federal Aviation Administration, Office of Air Traffic Airspace Management, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-8783. Communications must identify both docket numbers for this notice. Persons interested in being placed on a mailing list for future NPRM's should call the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is relocating the Harlingen VOR/DME approximately 8 nautical miles to the southeast of its current location. As a part of that effort, the FAA plans to realign V-13 northeast of the McAllen VOR/DME to intersect with V-163 south of the Corpus Christi VORTAC. Additionally, the FAA plans to revise the point of origin of V-407 from the Harlingen VOR/DME to the Brownsville VORTAC and to revise a segment of V-407 north of the Harlingen VOR/DME from the current Harlingen VOR/DME 357° radial to the new Harlingen VOR/DME 351° radial. With this revision, the point at which V-407 intersects V-20 (JIMIE intersection) will remain the same.

The FAA is proposing to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to revise V-13 and V-407 in the Harlingen, TX, area. Specifically, this action proposes to realign V-13 northeast of the McAllen VOR/DME to intersect with V-163 south of the Corpus Christi VORTAC; to revise the point of origin of V-407 from the Harlingen VOR/DME to the Brownsville VORTAC; and to revise V-407 north of the Harlingen VOR/DME to reflect the change of radial due to the relocation of the Harlingen VOR/DME. This action is necessary due to the relocation of the Harlingen VOR/DME and to enhance the management of aircraft operations over the Harlingen, TX, area.

Federal airways are published in paragraph 6010(a) of FAA Order 7400.9K dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The Federal airways listed in this document would be published subsequently in the Order.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The FAA invites interested persons to participate in this effort by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result if this effort resulted in amending FAA sonic boom regulations.

We will file in the docket all comments we receive, and the docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSes section of this preamble between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also review the docket using the Internet at the web address in the ADDRESSES section.

The FAA uses the term sonic boom to refer to a high-pressure air disturbance directed toward the ground by an aircraft flying supersonically and creating noise unacceptable to the public. Supersonic flight over land by civil aircraft is prohibited in the United States.

The current regulations applicable to supersonic aircraft are found in 14 CFR part 36, Subpart D, “Noise Limits for Supersonic Transport Category Airplanes,” and 14 CFR part 91, Subpart I, “Operating Noise Limits.” The noise certification levels for the Concorde airplane are in part 36. This regulation requires that the noise levels of the airplane must be reduced to the lowest levels that are economically reasonable, technologically practicable, and appropriate for a Concorde type design.

Part 91 prohibits civil aircraft operation at greater than Mach 1 over the United States. Part 91 also imposes flight limitations to ensure that civil supersonic flight entering or leaving the United States will not cause a sonic boom to reach the surface within the United States.

In 1990, the FAA proposed to amend the type certification noise standards and noise operating rules for future-generation civil supersonic airplanes. After analyzing the comments received on the Notice of Proposed Rulemaking (NPRM), the FAA determined that further investigation and research was necessary before a final rule could be developed. Accordingly, the FAA withdrew the proposed rule and instead issued a policy on noise issues involving the development of future generation civil supersonic transport airplanes.

With respect to future civil supersonic airplanes, specific noise standards have not yet been established. The FAA anticipates that any future proposed standards for civil supersonic airplanes would require that an airplane have no greater noise impact on a community than a civil subsonic airplane certified to Stage 3 noise levels.

There have been two recent supersonic aircraft technology development programs sponsored by the U.S. government. They are the High Speed Civil Transport (HSCT) program sponsored by the National Aeronautics and Space Administration (NASA), and the Quiet Supersonic Platform (QSP) program sponsored by the Defense Advanced Research Project Agency (DARPA). These programs included both military and civil aircraft.

In the late 1980's, NASA initiated a partnership with Boeing and McDonnell Douglas to develop the technology for a commercial supersonic transport. This activity was called the High Speed Civil Transport (HSCT) program. In 1999, the HSCT program was terminated. Boeing cited the high cost of developing a supersonic airplane, along with anticipated more stringent federal regulations regarding noise and emissions as the reason for terminating the program. NASA's research and technology (R&T) effort on HSCT was also terminated. In 2000, NASA requested that the National Research Council (NRC) conduct a study to identify breakthrough technologies for overcoming key barriers to the development of an environmentally acceptable and economically viable commercial supersonic aircraft. The study, “Commercial Supersonic Technology, The Way Ahead,” concluded that no insurmountable obstacles exist to viable commercial supersonic aircraft. The study further concluded that while NASA should have its eye on supersonic commercial transport, it remains appropriate to conduct research on sonic boom even when related to smaller supersonic business jets.

The DARPA's QSP program, which began in 2000, was a congressionally mandated effort to develop technologies that could mitigate the impact of sonic boom to 0.3 pounds per square feet over-pressure propagated to the ground. This is significantly less then the 2.0 pounds per square feet created by the Concorde that is restricted from flying at supersonic speeds over land. The QSP Program initially included both military and civil aircraft. In 2003, the QSP Program is scheduled to conduct a flight demonstration to investigate sonic boom signature shaping and propagation.

In 2001, the NASA Langley Research Center was directed by Congress to expand on the civil part of DARPA's QSP Program. This program is ongoing.

In addition, at least one U.S. manufacturer has an ongoing technology effort, the goal of which is the development of supersonic civil aircraft that are deemed environmentally acceptable for supersonic operations over land.

The FAA is requesting information regarding current commercial supersonic aircraft development and associated sonic boom reduction technology. The FAA may use the information received to initiate rulemaking that addresses new supersonic technologies and related noise effects.

The FAA is requesting information in the following general topics of technical information. Please submit any information or comments to the Docket Management System using the docket number given in the “ADDRESSES” paragraph above.

(1) A summary of advancements made since the 1999 High Speed Civil Transport (HSCT) program;

(2) Understanding the effects of sonic boom to aid in the establishment of sonic boom impact criteria;

(3) The technical challenges in making the noise created by sonic boom acceptable;

(4) The sonic boom prediction models available to support future noise impact studies; and

(5) Whether supersonic aircraft can function within the present commercial airport infrastructure and what airport accessibility issues need to be addressed.

The FAA encourages all interested parties to participate in this opportunity to offer the latest information on supersonic aircraft noise and technologies. The FAA will evaluate the information received to aid in the consideration of future rulemaking.

In addition, the FAA is planning to conduct a technical workshop in the next six months to allow subject matter experts to discuss their research data and findings. The FAA will publish a notice in the Federal Register announcing the date and place of the workshop.

Information on this project will be up-dated and made available on an FAA Web site located at http.//www.aee.faa.gov/noise/sst.html.

All comments submitted in response to this notice and information presented at the workshop will be filed in the docket. The docket is available for public inspection at any time. Anyone submitting information is cautioned that it will not be considered proprietary unless properly marked and separately submitted. Information presented in a workshop setting is not considered proprietary.

This is a summary of the Commission's Notice of Inquiry, ET Docket No. 03-104, FCC 03-100, adopted April 23, 2003, and released April 28, 2003. The full text of this document is available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Qualex International, 445 12th Street, SW., Room, CY-B402, Washington, DC 20554. The full text may also be downloaded at: http://www.fcc.gov. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the FCC Consumer & Governmental Affairs Bureau at (202) 418-0531 (voice), (202) 418-7365 (TTY).

This is an exempt notice and comment rule making proceeding. Ex parte presentations are permitted, except during any Sunshine Agenda period. See generally 47 CFR 1.1200(a), 1.1203, and 1.1204(b).

Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24,121 (1998). Comments filed through the ECFS can be sent as an electronic file via the Internet at http://www.fcc.gov/e-file/ecfs.html. Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply.

Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. All filings must be sent to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, The Portals, 445 Twelfth Street, SW., Washington, DC 20554.

Parties who choose to file by paper should also submit their comments on diskette. These diskettes should be submitted to: Anh Wride, Office of Engineering and Technology, Federal Communications Commission, The Portals, 445 Twelfth Street, SW., Room 7-A125, Washington, DC 20554. Such a submission should be on a 3.5 inch diskette formatted in an IBM compatible format using Word for Windows or compatible software. The diskette should be accompanied by a cover letter and should be submitted in “read only” mode. The diskette should be clearly labeled with the commenter's name, proceeding (including the lead docket number, in this case ET Docket No. 03-104, type of pleading (comment or reply comment), date of submission, and the name of the electronic file on the diskette. The label should also include the following phrase “Disk Copy—Not an Original.” Each diskette should contain only one party's pleadings, preferably in a single electronic file.

1. The Commission seeks to obtain information and technical data on a variety of issues related to Broadband over Power Line (BPL) systems. BPL systems are new types of carrier current system that operate on an unlicensed basis under part 15 of the Commission's rules. BPL systems use existing electrical power lines as a transmission medium to provide high-speed communications capabilities by coupling RF energy onto the power line. Because power lines reach virtually every community in the country, BPL could play an important role in providing additional competition in the offering of broadband infrastructure to the American home and consumers. In addition, BPL could bring the Internet and high-speed broadband access to rural and underserved areas, which often are difficult to serve due to the high costs associated with upgrading existing infrastructure and interconnecting communication nodes with new technologies.

2. The Commission seeks information and technical data so that we may evaluate the current state of BPL technology and determine whether changes to part 15 of the Commission's rules are necessary to facilitate the deployment of this technology. While BPL may be deployed under our existing part 15 rules, the rules do not specifically provide measurement procedures that apply to systems using the power line as a transmission medium. We therefore seek comment on what changes, if any, we should make to our part 15 rules to promote and encourage the new BPL technology and to our measurement procedures for all types of carrier current systems. We further encourage present deployment of BPL that complies with our existing rules, noting that if, or when, our rules are modified, those rules will address prospective compliance.

3. The Commission believes that the introduction of new high-speed BPL technologies warrants a systematic review of the part 15 rules in order to facilitate the deployment of this new technology, promote consistency in the rules and ensure the ongoing protection of the licensed radio services. We first seek to examine the new BPL technology and its various operating environments.

4. Access BPL Systems. Access BPL systems carry high-speed data and voice signals outdoors over the medium voltage line from a point where there is a connection to a telecommunications network. This point of connection may be at a power substation or at an intermediate point between substations, depending on the network topology. Near the distribution point to a residential neighborhood, a coupler or bridge circuit module is installed to enable the transfer of high-frequency digital signals across the low-voltage distribution transformer. Finally, the high-speed communication signals are brought to the home over the exterior service power cable from the bridge across the distribution transformer, either directly, or via an Access BPL adaptor module.

5. Several consortiums have been organized to promote Access BPL and its applications; however, the operating characteristics of Access BPL are not standardized. In order to assist us in understanding the current state of Access BPL, we seek comment and information in response to the following questions:

• What spectrum and bandwidth would Access BPL use? We have granted experimental licenses to some parties under 47 CFR 5 to evaluate Access BPL equipment that operates from 1.7 to 80 MHz. Would Access BPL devices operate in other portions of the spectrum and at what bandwidth?

• Is the spectrum used by Access BPL shared with In-house BPL? Are there any frequency sharing issues to be considered, i.e. , should we designate spectrum for Access BPL and In-House BPL? Is spectrum sharing between Access BPL and In-House BPL feasible?

• What data transmission speeds can Access BPL systems achieve? What speeds can be typically sustained under normal user environment conditions? What speeds are envisioned with deployed access shared among several users? Are the speeds symmetric in both the transmit and receive directions?

• What are the modulation techniques? What techniques are used for ensuring the security of data? What schemes are used for contention resolution between Access and various In-House BPL devices, if more than one device needs to take control of the electric wire at the same time to communicate?

• Would Access products work with In-House BPL products and services, without the need for additional equipment, such as converters and adaptors?

• What is the status of development and anticipated timeline for market deployment of Access BPL equipment?

• What standards work has been done domestically and internationally on Access BPL and what are the results of such activities? Are there ongoing international standards activities that would benefit U.S. industry and what steps should the Commission take to encourage this work? We are aware that the IEC CISPR Subcommittee I on Interference Relating To Multimedia Equipment, Working Group 3 on Emission from Information Technology Equipment, is developing conducted emission limits for new BPL technologies. Are there other standards bodies involved in similar activities?

6. In-House BPL Systems. A number of high-speed In-House BPL devices have reached the market within the last few months, operating under our existing part 15 rules for carrier current systems. In-House BPL systems carry data and voice signals between the wiring and electrical outlets inside of a building. In-House BPL systems are aimed at home networking and sharing of resources between devices, such as multiple computers, printers and smart appliances. Each device to be networked is connected to a BPL adaptor module through a Universal Serial Bus (USB) or Ethernet port. The BPL adaptor module plugs into a power outlet and communicates over the electrical wiring with other similar BPL adaptor modules in the home, thus forming a peer-to-peer local area network between these devices. In-House BPL operation may provide Internet sharing or other external service connections independently of Access BPL service.

7. There are several consortiums organized to promote In-House BPL technology and its applications. In-House BPL networking capabilities would encourage the growth of smart appliances and other consumer electronics equipment, facilitating the sharing of resources between various devices and increasing productivity. In order to assist us in understanding the high speed In-House BPL technology, we seek comment in the following areas:

• In-House BPL systems built to the HomePlug standard specifications operate in the frequency range from 4.5 to 21 MHz. Are other In-House BPL devices being designed to operate in other portions of the spectrum, and at what bandwidth?

• What is the highest data transmission speed that In-House BPL systems can achieve? What speeds can be typically sustained under normal user environment conditions?

• What are the modulation techniques? What techniques are used for ensuring the security of data, especially when several residential units share the same common distribution transformer? What schemes are used for contention resolution between various In-House BPL devices, if more than one device needs to take control of the electric wire at the same time to communicate?

• Would products developed according to one standard work with products developed according to another standard, without the need for additional equipment, such as converters and adaptors?

• What standards work has been done domestically and internationally on In-House BPL technology and what are the results of such activities? Are there on-going international standards activities that would benefit U.S. industry and what steps should the Commission take to encourage this work?

8. Interference from BPL Emissions. In both Access and In-House high-speed BPL technologies multiple carriers spread signals over a broad range of frequencies that are used by other services that must be protected from interference. In the spectrum below 30 MHz, incumbent authorized operations include fixed, land mobile, aeronautical mobile, maritime mobile, radiolocation, broadcast radio, amateur radio terrestrial and satellite, and radioastronomy. In the spectrum from 30 to 300 MHz, incumbent authorized operations include fixed land mobile, aeronautical mobile, maritime mobile and mobile satellite, radioastronomy, amateur radio terrestrial and satellite, broadcasts TV and radio. This spectrum is also used for public safety and law enforcement, and Federal government aeronautical radionavigation, radionavigation satellite and radiolocation. Each of these authorized services in the spectrum must be protected from harmful interference.

9. Interference issues may also arise because existing statutes on pole attachment require the co-location of cable and telecommunications equipment from third party service providers on the same utility poles that carry power wires. The close proximity of Access BPL equipment on utility poles may affect (and be affected by) the operation of cable television service and high-speed digital transmission service, such as DSL.

10. We therefore ask for comment and information on the following questions:

• In order to transfer high frequency signals beyond the low-voltage distribution transformer, Access BPL systems use high-pass filter circuits to bypass the transformer and its inherent low-bandwidth characteristics. What is the effect of these high-pass filters with respect to high-frequency signals used inside the house, e.g. , from In-House BPL equipment or other in-premises technologies, that may rely on the low-voltage transformer as a natural barrier to avoid causing interference at higher frequencies?

• For Access BPL systems, several methods of RF signal injection onto the medium voltage lines can be envisioned:

• An RF voltage could be applied between a power line and ground;

• An RF voltage could be applied differentially between two phases of a power line; or

• A single power line wire could be driven as if it were a dipole antenna— e.g. , by inductively coupling RF energy to it.

11. Other approaches may also be possible. What methods are being considered for signal injection onto the medium voltage lines? What are the implications on radiated emissions of various methods for injecting signals onto the medium voltage lines ( e.g. , differences in directional characteristics and magnitudes of the emitted fields)?

• Is there a need to define frequency bands that must be avoided in order to protect the licensed users on the same frequencies as those used by Access BPL systems? Are there mitigation techniques Access BPL systems can use to avoid possible interference with licensed users of the spectrum, such as mobile users or public safety and law enforcement users who may be traveling directly beneath the medium voltage lines?

• Since Access BPL equipment is installed on medium voltage lines that supply electricity to a residential neighborhood, should this equipment be treated as operating in a residential (Class B) or commercial (Class A) environment?

• How does the close proximity of Access BPL equipment to cable television and telecommunications equipment from third party service providers co-located on the same utility pole affect the operation of these services? On the other hand, what is the effect of this close proximity to Access BPL operations?

• High-speed In-House BPL systems are being deployed in residences with a telecommunications access connection from a DSL or cable modem service. What mitigation techniques are used by In-House BPL systems to avoid possible interference from DSL or cable modem within the same spectrum? On the other hand, what is the effect of DSL or cable modem on In-House BPL operations?

• What mitigation techniques are used by In-House BPL systems to avoid possible interference with licensed radio services, such as amateur radio, fixed, mobile and broadcast services? Is there a need to define frequency bands that must be avoided in order to protect the licensed services that use the same frequencies as In-House BPL systems?

• What are the probable interference environments and propagation patterns of Access BPL and In-House BPL systems? Are there specific issues of interference that we should address, e.g. , an increase in the level of the noise floor? What models are available for predicting radiated emissions from access BPL systems?

• Are there test results from field trials of Access BPL that may assist in the analysis of harmful interference? Inasmuch as In-House BPL equipment is already on the market, are there any reports that may assist in the further analysis of harmful interference?

• Are the existing part 15 rules for low speed carrier current systems adequate to protect authorized users of the spectrum who may be affected by the new high speed BPL technology? What changes to these rules, if any, are necessary to protect authorized radio services?

• How should the part 15 rules be tailored both to ensure protection against harmful interference to radio services and to avoid adversely impacting the development and deployment of this nascent technology?

• Given their different operating environment, is it necessary to tailor the rules to differentiate equipment used specifically in Access BPL and In-House BPL applications, or should one set of general limits be applied to both? What should such limits be and what is the technical basis for them?

• Is there need to specify different limits for Access and In-House systems? For example, would it be appropriate to allow higher emissions for In-House systems where the user would be the principal party affected by interference, and could take steps to mitigate the interference, than for Access systems where the interference would affect a wider area and therefore be more problematic to mitigate? Would higher emissions for In-House systems result in any interference effects in other houses or apartments sharing the same local low voltage distribution by the RF signal being distributed on the low voltage side of the transformer? What limits should be specified, given the above considerations?

• Should the part 15 rules specify both radiated emission limits and conducted emission limits for BPL systems, or would one type of limits be sufficient to control interference from both low speed and high speed BPL? Since all carrier current systems inject RF signals into the power line for communication purposes, would conducted emission limits be more appropriate to protect authorized radio services?

12. Measurement methods. We seek comment on measurement methods for all types of carrier current systems, including new high-speed Access and In-House BPL devices. Because existing carrier current systems use the power line wiring inside a building to transfer information and data, the radiated emissions from RF energy conducted onto the power lines tend to vary from location to location, based on the installation's AC wiring and the loading placed on that wiring. In effect, since the installation's wiring functions as an antenna, that wiring becomes part of the system to be evaluated. As such, measurements to demonstrate compliance with the rules are not normally made at a standard open area test site, because the measurement of each system is unique to its location.

13. Currently, there are no specific test methods in our rules for carrier current systems, rather, measurement procedures have been left to the discretion of the party performing the tests, and thus measurements can be subjective and inconsistent. Furthermore, Access BPL equipment presents unique measurement challenges because it is typically installed on utility poles and operated over medium voltage lines. We therefore request comment and input on the following questions:

• How should the measurement procedures for testing existing low-speed carrier current systems be developed in order to avoid the burden of selecting representative installations and to promote consistency and repeatability of test results? Is it possible to develop a standardized measurement method for testing in a laboratory or at an open area test site using some characterized wiring assembly or artificial impedance network? If so, how?

• How should measurement procedures for testing new BPL systems, both Access and In-House, be developed in order to promote consistency with measurements of existing carrier current systems and repeatability of test results?

• Conducted emissions testing is usually performed using a line impedance stabilization network (LISN), which is an artificial power line network that provides a specified load impedance in a given frequency range. This device is also used to isolate the equipment from the AC supply and to facilitate measurements. If conducted emission limits alone are sufficient to control harmful interference from BPL systems, how should the measurement procedure be specified? How should the characteristics of a line impedance stabilization network be specified for testing both In-House and Access BPL systems?

• Existing literature is inconclusive on the degree of difference in radiated emissions from houses and buildings when In-House PLC signals are injected in common mode (phase/neutral to an RF ground) versus differential mode (phase to neutral). Is there data available that shows radiated emission levels from houses and other buildings, located in the United States, for both types of signal injection? Is the difference sufficiently large as to justify separate conducted limits for common mode and differential mode signals? Alternatively, should a LISN be defined to simultaneously measure the total effect of the common-mode and differential-mode contributions in proportion to their expected respective contributions to radiated emissions? What should be the characteristics of that LISN?

• How should In-House BPL systems be tested for compliance, given that they use the building's wiring as an antenna? The impedance characteristics of in-house wiring changes each time an appliance is turned on or off, which makes modeling this varying impedance a challenging task. Is it possible to develop a standardized measurement method for testing In-House BPL in a laboratory or at an open area test site using a specialized LISN or some characterized wiring assembly? If so, how? Would the same method of measurement be sufficient to test both traditional carrier current system and new high speed In-House BPL?

• How should Access BPL systems be tested for compliance, given that they generally operate in an environment where signals travel on overhead medium voltage lines? Could a standardized measurement method be developed for testing Access BPL in a laboratory or at an open area test site, using a specialized LISN or some characterized pole and wiring assembly? If so, how?

• Are there any international standards that should be investigated for possible adoption in order to facilitate the development of BPL products for a global marketplace?

14. Currently, equipment operating as carrier current systems, such as power line intercom systems, lamp remote controls, low speed power line telephone adaptors, etc. are subject to the Verification procedure under our equipment authorization program. The low speed systems have not been a source of harmful interference to radio communications. In addition, it appears that use of the Verification procedure has been adequate to ensure that such systems comply with the rules. However, the multiple-carrier transmission nature of the new high speed BPL technology could pose increased risk of harmful interference, and thus new BPL devices may need a higher degree of oversight to ensure that authorized users are not subject to interference. Accordingly, we seek comment on the following questions:

• Would the new high speed Access and In-House BPL equipment pose a higher risk of interference to licensed radio services than the traditional carrier current systems?

• Unlike In-House BPL equipment, which usually involves multiple units of a standard module working together, Access BPL may involve two or more different types of components to form the complete system ( e.g. , Access BPL medium voltage coupler, Access BPL adaptor module, etc.). What components of an Access BPL system should be subject to equipment authorization?

• Should the new Access and In-House BPL equipment be required to comply with either the Certification procedure or the Declaration of Conformity under our equipment authorization program, which warrants additional oversight, or should they be covered under our Verification procedure like the traditional carrier current systems?

15. The Commission believe that the new high speed BPL technology could be used to assist the utilities by adding intelligent networking capabilities to the electric grid, allowing various interconnected and network-addressable BPL components to work together in improving efficiency in activities such as energy management, power outage notification and automated meter reading. In order to help us in evaluating the applicability of BPL technology to power line carrier systems, we seek input on the following questions:

• Will the power line carrier systems currently deployed by the utility companies to control and monitor the electrical system be replaced in the future with the new high speed BPL equipment?

• How would the utility companies deploy these new control systems and how would these new systems coexist with the older control systems?

• Should power line carrier systems using BPL technology be subject to the coordination process in the current database maintained by UTC?

• Are any changes needed in the regulations governing power line carrier systems? Should power line carrier systems using BPL technology be subject to the general requirements for Access BPL systems, since the same system may now be carrying broadband signals as well as monitoring and control signals? How could, or should, these functions be separated?

• What interference issues, if any, besides the issues raised under the general BPL interference section, supra, must be addressed with the deployment of high-speed power line carrier systems?

16. Other Matters. The questions raised in this Notice of Inquiry are intended to solicit information to assist the Commission in deciding whether to propose rule changes as a result of the developing BPL technology. We realize that these questions do not necessarily encompass all of the possible issues raised by this technology. Parties therefore may wish to comment on the following additional topics:

• What standardized transport and data link protocols are typically used between a user's personal computer, for example, and the Internet point of presence, over Access BPL systems? For example, is Point-to-Point Protocol (PPP), PPP over Ethernet (PPPoE), Asynchronous Transfer Mode (ATM), or other such lower layer protocols involved?

17. We seek information on the subject of communications over electric power lines from all interested parties to obtain a wide representation of viewpoints. Accordingly, we request comments on any other matters or issues, in addition to those discussed previously, that may be pertinent to BPL technology.

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 03-105, adopted April 28, 2003, and released April 30, 2003. The full text of this Commission decision is available for inspection and copying during regular business hours in the FCC's Reference Information Center at Portals II, 445 12th Street, SW., CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractors, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

The provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

In July 1990, the National Security Telecommunications and Information Systems Security Committee (NSTISSC) was established for the purpose of developing and promulgating national policies applicable to the security of national security telecommunications and information systems. In January 2000, NSTISSC issued Policy No. 11, which addresses the national policy governing the acquisition of information assurance and information assurance-enabled information technology products. Policy No. 11 states that information assurance shall be considered as a requirement for all systems used to enter, process, store, display, or transmit national security information. DoD has issued DoD Directive 8500.1, Information Assurance, and DoD Instruction 8500.2, Information Assurance Implementation, to implement Policy No. 11. This proposed rule makes corresponding changes to DFARS subpart 239.71 and the clause at DFARS 252.239-7000.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because the DFARS changes in this rule reflect existing Government policy pertaining to requirements for information assurance in the acquisition of information technology. Therefore, DoD has not performed an initial regulatory flexibility analysis. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2002-D020.

The information collection requirements in the clause at DFARS 252.239-7000 have been approved by the Office of Management and Budget, under Clearance Number 0704-0341, for use through October 31, 2004.

Therefore, DoD proposes to amend 48 CFR parts 239 and 252 as follows:

1. The authority citation for 48 CFR parts 239 and 252 continues to read as follows:

A proposed emergency rule was published in the Federal Register on April 24, 2003 (68 FR 20096) and subsequently corrected on May 9, 2003 (68 FR 24914), that would continue measures implemented on August 1, 2002, consistent with the Settlement Agreement, which was adopted by the U.S. District Court (Court) for the District of Columbia in a Remedial Order (Order) issued on May 23, 2002, as a result of Conservation Law Foundation, et al . v. Evans, et al . In addition, the emergency rule would implement a DAS Leasing Program under the emergency authority of section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act in order to mitigate the impacts resulting from the continuation of the August 1, 2002, interim final rule measures (67 FR 50292). The DAS Leasing Program would allow limited access NE multispecies vessels to lease their NE multispecies DAS during the current fishing year. Additional information on the background and proposed measures appear in the preamble of the April 24, 2003, proposed emergency rule and are not repeated here.