On March 5, 2004, USDA published a proposed rule (69 FR 10354) to adopt USDA regulations that would eliminate unwarranted barriers to the participation of faith-based organizations in USDA programs. The proposed rule was part of USDA's effort to fulfill its responsibilities under two Executive Orders issued by President Bush. One of these Orders, Executive Order 13280, which was published in the Federal Register on December 16, 2002 (67 FR 77145), created a Center for Faith-Based and Community Initiatives in USDA and charged USDA to identify and eliminate regulatory, contracting, and other programmatic barriers to the full participation of faith-based and community organizations in its programs. The second of these Orders, Executive Order 13279, also published in the Federal Register on December 16, 2002 (67 FR 77141), charged executive branch agencies to give equal treatment to faith-based and community groups that apply for funds to meet social needs in America's communities. The President called for an end to discrimination against faith-based organizations and, consistent with the first amendment to the Constitution, ordered implementation of these policies throughout the executive branch, including, among other things, allowing organizations to retain their religious autonomy over their internal governance and composition of boards, and over their display of religious art, icons, scriptures, or other religious symbols, when participating in government-funded programs. The Administration believes that there should be an equal opportunity for all organizations—both religious and non-religious—to participate as partners in Federal programs.

The March 5, 2004, rule proposed to add USDA regulations to achieve the following objectives:

1. Equal Opportunity for faith-based organizations in USDA programs. The proposed rule provided that organizations would be eligible to participate in USDA programs without regard to their religious character or affiliation, and that organizations could not be excluded from competition for direct USDA assistance simply because they were religious. Specifically, religious organizations would be eligible to compete for USDA assistance on the same basis, and under the same eligibility requirements, as all other non-profit organizations. Under the proposed rule, USDA, as well as State and local governments administering USDA programs, would be prohibited from discriminating against organizations on the basis of religion, religious belief, or religious character in the administration or distribution of USDA assistance, including grants and commodities.

2. Inherently religious activities. The proposed rule described requirements, which would be applicable to all recipient organizations, restricting the use of direct USDA assistance  1 for inherently religious activities. Specifically, a participating organization could not use direct USDA financial assistance from USDA to support inherently religious activities, such as worship, religious instruction, or proselytization. If the organization engaged in such activities, it would be required to offer them separately, in time or location, from the programs or services supported by direct USDA assistance, and participation would have to be voluntary for the beneficiaries of such programs or services. This requirement would ensure that direct USDA assistance to religious organizations would not be used to support inherently religious activities.

This requirement does not mean that an organization that receives direct USDA assistance cannot engage in inherently religious activities. It means that an organization cannot pay for these activities with direct USDA assistance or require program beneficiaries to participate in such activities as a condition of receiving services. The proposed rule further provided that these restrictions on inherently religious activities would not apply where indirect USDA assistance was provided to religious organizations as a result of a genuine and independent private choice of a beneficiary (e.g., under a program that gave a beneficiary a voucher, coupon, certificate, or another funding mechanism from USDA designed to give that beneficiary a choice among providers) or through other indirect means, provided the religious organizations otherwise satisfied the secular requirements of the program.

3. Independence of faith-based organizations. The proposed rule also clarified that a religious organization that participated in USDA programs would retain its independence and could continue to carry out its mission, including the definition, practice, and expression of its religious beliefs, provided that it did not use direct USDA assistance to support any inherently religious activities, such as worship, religious instruction, or proselytization. Among other things, a faith-based organization could use space in its facilities to provide services supported with direct USDA assistance without removing religious art, icons, scriptures, or other religious symbols. In addition, a religious organization could retain religious terms in its organization's name, select its board members and otherwise govern itself on a religious basis, and include religious references in its organization's mission statements and other governing documents.

4. Nondiscrimination in providing assistance. The proposed rule provided that an organization that received direct USDA assistance would not be allowed, in providing program assistance supported by such assistance, to discriminate against a program beneficiary or prospective program beneficiary on the basis of religion or religious belief.

5. Use of USDA funds for acquisition, construction, or rehabilitation of structures. The proposed rule clarified that USDA funds may be used for the acquisition, construction, or rehabilitation of structures only to the extent that those structures are used for conducting eligible activities under the specific USDA program involved. Where a structure is used for both eligible and inherently religious activities, the proposed rule clarified that USDA funds may not exceed the cost of those portions of the acquisition, construction, or rehabilitation that are attributable to eligible activities.

USDA received comments on the proposed rule from 22 different commenters, representing both individuals and organizations. Some of the commenters were generally supportive of the proposed rule without any specific recommendations or comments, while others were generally opposed without specific recommendations or comments.

The following is a summary of specific comments and recommendations and USDA responses. The comments are organized first by general comments, second by comments in the order of the section of the rule that they address, and finally by comments that raise issues not specifically addressed by any section of the rule.

Comment: Insufficient justification for the proposed rule. Two commenters disagreed that there are currently barriers that prevent participation of faith-based organizations in USDA Food and Nutrition Service (FNS) programs. the commenters wrote that faith-based organizations have been participating in FNS programs and anti-hunger efforts for many years, and sometimes at a higher rate than secular organizations.

USDA Response: The commenter is correct that many USDA programs have partnered extensively with faith-based organizations for years. The purpose of this rule is to ensure that all USDA programs are open to faith-based organizations to the same extent that they are open to other organizations, in accordance with Executive Order 13279. Some USDA mission areas may already follow a number of these provisions in practice, but this rule sets out a single set of overarching provisions for the entire USDA in regard to equal opportunity for faith-based organizations without singling out or distinguishing among many mission areas within USDA.

Comment: Religious organizations are financially unaccountable. One commenter alleged that religious organizations are unaccountable since they do not have to file an annual report of revenue with the Internal Revenue Service (IRS). However, the commenter would revisit the concern if religious organizations are held to the same level of financial accountability as other non-profit organizations.

USDA Response: USDA disagrees. Regardless of IRS filings, all organizations receiving USDA assistance—both religious and non-religious—must comply with audit and Office of Management and Budget Circular requirements, applicable to assistance recipients. These requirements provide transparency and accountability for faith-based organizations just as they do for other organizations.

Comment: Unclear if non-financial as well as financial assistance is included in the definition of “direct USDA assistance.” A number of commenters wondered if non-financial assistance, such as commodities, was included in the definition of direct USDA assistance and referenced when the proposed rule referred to “funding.” Several commenters wanted non-financial assistance included in the definition, while another wanted it excluded. The commenter wanting it excluded argued that it should be excluded from the definition and the rule because the restrictions would “go too far” for the mere acceptance of the non-financial assistance. The other commenter interpreted the rule as excluding commodities from the definition of direct assistance and insisted that it was constitutionally required to be a part of the definition.

USDA Response: USDA intended for commodities to be included within the definition of “direct USDA assistance.”

Comment: Extend limitation on inherently religious activities to indirect funding. Two commenters observed that in the proposed rule the limitations on inherently religious activities applied only to direct funding, and they argued that the limitation should apply to indirect funding as well in order to protect the rights of beneficiaries.

USDA Response: USDA has not revised the rule in response to these comments because the protections of the rights of beneficiaries in this rule coincide with current Supreme Court precedent. Any USDA-funded programs that involve indirect funding must, of course, comply with Federal law (including current legal precedent), and nothing in the proposed regulation provides otherwise. As explained above and in the preamble of the proposed rule, the term “direct USDA assistance” refers to direct funding within the meaning of the Establishment Clause of the First Amendment. In other words, USDA's use of the phrase “direct assistance” in this rule incorporates current First Amendment jurisprudence into its definition.

The religious freedom of beneficiaries in an indirect funding program is protected by the guarantee of genuine and independent private choice. Officials administering public funding under an indirect funding program would have an obligation to ensure that everyone who is eligible receives services from some provider, and no client maybe required to receive services from a provider to which the client has a religious objection. In other words, vouchers and services indirectly funded by the government must be available to all clients regardless of their religious belief, and those who object to a provider that has integrated inherently religious activities into the provision of its services have a right to services from some alternative provider. Again, for a program to be considered voucher-like, this choice among providers must be genuine. These requirements protect beneficiaries from having to participate in religious activities to which they object.

Comment: Why is this rule restricted to programs for which non-profit organizations are eligible? One commenter asked why the rule applied only to programs for which non-profit organizations are eligible, saying that such a restriction is unwarranted.

USDA Response: We agree and have revised 16.1(a) and 16.2(a) to provide that a religious organization is eligible to the same extent an organization is otherwise eligible. The intent of this regulation is to ensure that religious organizations are given the same opportunity to participate that similar non-religious organizations are given. For example, if a secular charitable non-profit organization is not eligible for a particular program, then neither would a religious non-profit organization be eligible. In contrast, if a secular for-profit corporation is eligible for a particular program, a religious for-profit corporation would likewise be eligible.

Comment: Title and language of rule is inconsistent. One commenter noted that the title of the rule and its sections refer to religious organizations; however, the language of the rule appears to place restrictions on all organizations, not just religious ones. For example, 16.3(c) states that any organizations that receive direct USDA assistance may not engage in inherently religious activities as part of the services supported with such assistance. It does not restrict this prohibition only to religious organizations. Therefore, the titles and language are inconsistent.

USDA Response: USDA acknowledges this inconsistency in the language of the rule. In this final rule, USDA has changed the title to “Equal Opportunity for Religious Organizations,” reflecting the purpose section of the rule. It has also changed the appropriate heading to “Responsibilities of participating organizations” (replacing “Responsibilities of religious organizations”).

Comment: Change equal participation in purpose to equal opportunity or treatment. One commenter mentioned that 16.1(a) states the purpose of the rule is to set policy regarding equal participation of religious organizations and suggested that the language be changed to “equal opportunity for religious organizations” or “promoting equal treatment of religious organizations.”

USDA Response: USDA agrees with the commenter's suggestion and amends 16.1(a) to reference the purpose as “equal opportunity for religious organizations to participate.” It was not USDA's intent to establish participation rates for religious organizations in USDA programs; instead, as described in the preamble to the proposed rule, the purpose of the rule was to ensure that any organization wanting to participate in USDA programs, whether religious or secular, had an equal opportunity to do so.

Comment: Allowing direct funding of pervasively sectarian organizations violates the Constitution. Some commenters disagreed with the proposed rule on the basis that it would allow Federal funds to be given to “pervasively sectarian” organizations. They maintain that the rule places no limitations on the kinds of religious organizations that can receive funds, and they argued that “pervasively sectarian” organizations are barred from receiving direct Federal funding.

USDA Response: USDA does not agree that the Constitution requires USDA to distinguish between different religious organizations in providing direct USDA assistance. Religious organizations that receive direct USDA assistance may not use that assistance for inherently religious activities. These organizations must ensure that such religious activities are separate in time or location from services directly funded by USDA and also must ensure that participation in such religious activities is voluntary. Furthermore, they are prohibited from discriminating against a program beneficiary on the basis of religion or a religious belief, and program participants that violate these requirements will be subject to applicable sanctions and penalties. The regulations thus ensure that there is no direct USDA assistance of inherently religious activities, as required by current precedent.

Comment: Use of religious art or icons should not be permitted. Some commenters wrote that the use of religious art or icons can constitute a subtle but powerful form of proselytization or may be offensive to some persons. The commenters stated that the rule should require religious art or icons to be removed or covered and cite Spacco v. Bridgewater School USDA , 722 F. Supp. 834, 843 (D. Mass. 1989).

USDA Response: USDA declines to impose this restriction on USDA program participants that are faith-based organizations. A number of Federal statutes affirm the principle embodied in this rule. See e.g. , 42 U.S.C. 290kk-1(d)(2)(B). A prohibition on the use of religious icons would make it more difficult for many faith-based organizations to participate in the program than other organizations, and would thus be an inappropriate and excessive restriction, typical of the types of regulatory barriers that this final rule seeks to eliminate. Consistent with constitutional church-state guidelines, a faith-based organization that participates in USDA programs will retain its independence and may continue to carry out its mission, provided that it does not use direct USDA assistance to support any inherently religious activities. Accordingly, this final rule continues to provide that faith-based organizations may use space in their facilities to provide services supported with direct USDA assistance, without removing religious art, icons, scriptures, or other religious symbols. Finally, the presence of religious symbols in the building of a religious organization that provides social services with USDA assistance is distinct from the situation addressed in Spacco, where a public school (i.e., the government itself) held classes in the facilities of a Catholic church.

Comment: Recognition of religious organizations' Title VII exemption. A number of commenters expressed views on the rule's provision that religious organizations do not forfeit their Title VII exemption by receiving direct USDA assistance, absent statutory authority to the contrary. Some expressed appreciation that a religious organization will retain its independence in this regard, while others disagreed with the provision retaining the Title VII exemption. Some argued that it is unconstitutional for the government to provide direct assistance for provision of social services to an organization that considers religion in its employment decisions. Others argued that Congress must expressly preserve religious organizations' Title VII exemption—as it has done in certain welfare reform and substance abuse programs—for such organizations that receive Federal funds to retain those exemptions, and in any event that it is unwise and unfair to secular organizations to preserve such religious exemptions as a matter of executive branch policy. These commenters requested that the proposed rule be amended to provide that discrimination on the basis of religion with respect to an employment position is not allowed if an organization is federally funded.

USDA Response: USDA agrees with commenters who supported the preservation of the religious hiring autonomy of faith-based organizations, and it disagrees with the objections to the rule's recognition that a religious organization does not forfeit its Title VII exemption when administering services supported by USDA assistance. As an initial matter, applicable statutory nondiscrimination requirements are not altered by this rule. Congress establishes the conditions under which religious organizations are exempt from Title VII; this rule simply recognizes that these requirements, including their limitations, are fully applicable to organizations supported by USDA assistance unless Congress says otherwise. As to the suggestion that the Constitution restricts the government from providing funding for social services to religious organizations that consider faith in hiring, that view does not accurately represent the law. The employment decisions of organizations that receive extensive public funding are not attributable to the State, see Rendell-Banker v. Kohn , 457 U.S. 830 (1982), and it has been settled for more than 100 years that the Establishment Clause does not bar the provision of direct Federal grants to organizations that are controlled and operated exclusively by members of a single faith. See Bradfield v. Roberts , 175 U.S. 291 (1899); see also Bowen v. Kendrick , 487 U.S. 589, 609 (1988). Accordingly, numerous courts have held that a religious organization does not waive its Title VII exemption when it receives government funds. See, e.g., Hall v. Baptist Memorial Health Care Corp. , 215 F.3d 618, 625 (6th Cir. 2000); Little v. Wuerl , 929 F.2d 944, 951 (3d Cir. 1991). Finally, USDA notes that allowing religious groups to consider faith in hiring when they receive government funds is much like allowing a federally funded environmental organization to hire those who share its views on protecting the environment: Both groups are allowed to consider ideology and mission, which improves their effectiveness and preserves their integrity. Thus, USDA declines to amend the final rule to require religious organizations to forfeit their Title VII rights.

Comment: Faith-based organizations and state action. Two commenters claimed that there is a sufficient nexus between the organizations covered by the proposed regulation and the government such that the organizations are State actors subject to constitutional requirements.

USDA Response: USDA disagrees with these comments. The receipt of government assistance does not convert a non-governmental organization into a State actor subject to constitutional norms. See Rendell-Baker v. Kohn , 457 U.S. 830 (1982) (holding that the employment decisions of a private school that receives more than 90 percent of its funding from the State are not State actors).

Comment: Proposed rule raises additional Establishment Clause concerns. The commenter argues that the decision in Bob Jones University v. United States , 461 U.S. 574(1983), which held that the Federal government could deny a religiously run university tax benefits because the university imposed a racially discriminatory anti-miscegenation policy, is analogous to a prohibition against organizations that receive Federal funding discriminating on the basis of religion when hiring for government-funded positions.

USDA Response: USDA does not agree that the Bob Jones University decision is analogous or requires that the rule be changed in order to comply with the Establishment Clause. In the Bob Jones University decision, the Supreme Court merely said that the Free Exercise Clause permitted the government to deny tax-exempt status to religious educational institutions that prescribed and enforced racially discriminatory admission standards on the basis of religious doctrine. The Court's limited discussion of the Establishment Clause in the case ( see 461 U.S. at 604 n.30) had nothing to do with whether organizations that consider faith in making employment decisions are ineligible for government funding. In addition, whereas the Court in Bob Jones University concluded that racial discrimination in education was contrary to public policy, permitting religious organizations to consider faith in employment decisions is consistent with the public policy established decades ago, and maintained today, in the civil rights laws enacted by Congress.

Comment: Neither organizations that receive direct USDA funding nor organizations that receive indirect USDA funding should be able to discriminate against a beneficiary or potential beneficiary on the basis of religion. Generally, commenters believed that non-discrimination toward a beneficiary on the basis of religion or religious belief should apply to both direct and indirect USDA assistance. One commenter also suggested that the regulation state that participating organizations cannot deny beneficiaries for refusal to participate in a religious practice.

USDA Response: As mentioned earlier, any USDA-funded programs that were to involve indirect funding would, of course, have to comply with Federal law (including current legal precedent), and nothing in the regulation provides otherwise. Moreover, the religious freedom of beneficiaries in an indirect funding program is protected by the guarantee of genuine and independent private choice. Officials administering public funding under an indirect funding program would have an obligation to ensure that everyone who is eligible receives services from some provider, and no client could be required to receive services from a provider to which the client had a religious objection. In other words, vouchers and services indirectly funded by the government must be available to all clients regardless of their religious belief, and those clients who object to a provider that has integrated activities into the provision of its services have a right to services from some alternative provider.

USDA believes that the religious freedom of beneficiaries is sufficiently explicit. For example, inherently religious activities, such as worship, religious instruction, and proselytization, must be separate in time or location from programs or services supported with direct USDA assistance, and participation in those inherently religious activities must be voluntary for beneficiaries of programs or services supported with direct assistance. Additionally, organizations that participate in programs and activities supported by direct USDA assistance programs are prohibited from discriminating against a program beneficiary or prospective program beneficiary on the basis of religion or religious belief. These protections require no further elaboration.

Comment: Discrimination on the basis of sexual orientation. One commenter objected to the ability of religious organizations, as well as other organizations, to discriminate on the basis of sexual orientation.

USDA Response: Although Federal law prohibits persons from being excluded from USDA Federally assisted services or subjected to discrimination based on race, color, national origin, sex, age, or disability, it does not prohibit discrimination on the basis of sexual orientation. We decline to impose such restrictions by regulation.

Comment: “Inherently religious” does not capture the full range of prohibited activity. Some commenters asserted that the language describing proscribed religious activities is unclear or incomplete. These commenters suggest the rule be amended to make it clear that any religious activity is prohibited and that the provision of government-funded services must be entirely secular.

USDA Response: Concerning the treatment of “inherently religious” activities, it would be difficult to establish an acceptable list of all inherently religious activities. Inevitably, the regulatory definition would fail to include some inherently religious activities or would include certain activities that are not inherently religious. Rather than attempt to establish an exhaustive regulatory definition, USDA has decided to retain the language of the proposed rule, which provides examples of the general types of activities that are prohibited by the regulations. This approach is consistent with Supreme Court precedent, which has not comprehensively defined inherently religious activities. For example, prayer and worship are inherently religious, but services supported by direct USDA assistance do not become inherently religious merely because they are conducted by individuals who are religiously motivated to undertake them or view the activities as a form of “ministry.”

Finally, there is not constitutional support for the view that the government must exclude from its programs those organizations that convey religious messages or advance religion with their own funds. As noted above, the Supreme Court has held that the Constitution forbids the use of direct government funds for inherently religious activities, but the Court has rejected the presumption that religious organizations will inevitably divert such funds and use them for their own religious purposes. In sum, USDA believes that the requirement that when an organization receives direct USDA assistance, any inherently religious activities must be privately funded and separate in time or location from the USDA-assisted activities adequately sets out the parameters of the Supreme Court's jurisprudence.

Comment: The provision on separation of inherently religious activities is inadequate. Some commenters suggested that the requirement is insufficient and that it be strengthened to require separation in time and location. One commenter stated that the rule failed to provide the separation requirement to food aid and commodities. Another commenter stated that the restriction that inherently religious activities need to be separated in time or location gives insufficient flexibility to small faith-based organizations. That commenters recommended adding the following language to 16.3(c): “Responses to genuine and independent voluntary client-initiated requests for prayer or counseling, including the reading of religious texts or materials, do not require a separate time or location.”

USDA Response: USDA does not believe that the requirement articulated in the regulation regarding separation necessitates any additional guidance or requirements for proper adherence to the Constitution. USDA believes that existing regulations and this rule are clear that faith-based organizations, or any organizations for that matter, using direct USDA assistance for certain activities must separate their inherently religious activities from the activities supported by such assistance. As to the suggestion that the rule must require separation in both time and location, USDA believes that such a requirement is not legally necessary and that it would impose an unnecessarily harsh burden on small faith-based organizations, which may have access to only one location that is suitable for the provision of USDA-funded services. As commodities are a type of direct USDA assistance, commodities are also subject to the separation requirement. Nothing in this rule is intended to inhibit an organization's ability to respond to voluntary, client-initiated requests of any kind, including religious inquiries, provided that actual inherently religious activities are separated from services supported by direct USDA assistance. Thus, USDA disagrees that additional clarifying language is necessary in the regulatory text.

Comment: Voluntary participation in any inherently religious activities. While some commenters were encouraged by the voluntary language of 16.3(c), others believed there were not enough safeguards for beneficiaries in this area. Some commenters recommended that the proposed rule be modified to require participating organizations to inform program beneficiaries at the outset of their receipt of services that participation in the organization's religious activities is voluntary.

USDA Response: USDA believes that the language in the rule prohibiting faith-based organizations from requiring program beneficiaries to participate in religious activities is sufficiently explicit. USDA also declines to require that religious organizations provide a notice to a beneficiary or potential beneficiary assuring that participation in religious activities would be entirely on a voluntary basis. USDA recommends that both governmental officials administering USDA assistance and participating organizations work to ensure that clients and potential clients have a clear understanding of the services offered by the organization, including any religious activities, as well as the organization's expectations and requirements. The requirement that participation be voluntary, however, is sufficient to address concerns about the religious freedom of program beneficiaries.

Comment: Clarify that students at religious schools that receive school lunch assistance may be required to attend religion classes and assemblies. One commenter noted that they appreciated the provision in 16.3(b) that allowed religious schools receiving assistance under the School Lunch Act or the Child Nutrition Act to consider religion in their admission practices. They argued that a similar allowance needs to be made in 16.3(c) regarding the voluntariness language so that it is clear that students at a religious school can be required to attend the school's religion classes and assemblies.

USDA Response: USDA agrees that 16.3(c) should contain the same allowance as is found in 16.3(b). Subsection (c) of the proposed rule has been renumbered subsection (b), and the language previously found in subsection (b) has been inserted into subsection (c) with a clarification that this rule does not affect either the admission or the attendance policies and curricular requirements of religious schools.

Comment: A voucher program does not have adequate safeguards. Two commenters claimed that the proposed rule authorizes a voucher program for religious organizations without instituting adequate constitutional safeguards and requested that the rule be revised to comply with the framework instituted by Zelman v. Simmons Harris , 536 U.S. 639 (2002). These commenters stated that secular alternatives are not available in the social service context, eliminating the possibility of real choice by program beneficiaries.

USDA Response: USDA respectfully declines to adopt the recommendations of the commenters. Any USDA-funded programs that were to involve indirect funding would, of course, have to comply with Federal law—which includes current legal precedent such as Zelman. USDA believes that the above discussion and the rule adequately address these commenters' constitutional concerns.

Comment: The provision allowing use of funds for acquisition, construction, or rehabilitation of structures is unconstitutional. Two commenters content that Supreme Court rulings only permit use of Federal funds on structures when those structures are used for solely secular purposes in perpetuity. Another indicated that the guidance was too vague on how to apportion costs for a dual-use structure. Finally, one argued that enforcement of this provision would lead to unseemly negotiations between the organizations and government over what are and are not religious activities.

USDA Response: USDA believes that the prorated funding of improvements to a structure that has a mixed use—both religious and non-religious—it not itself a violation of the Constitution. In a neutral program in which the government directly funds the capital improvements of institutions that administer Federal social welfare programs, the government need only put in place safeguards to ensure that public money is not used to finance inherently religious activities. The proposed rule satisfied this requirement by prohibiting the use of USDA funds for the acquisition, construction, or rehabilitation of structures to the extent that those structures are used for inherently religious activities—a prohibition that is enforced by generally applicable cost-accounting standards carefully designed to ensure that USDA funds are not used to support any ineligible activity.

USDA disagrees with those who commented that preventing the use of direct USDA capital-improvement funds for inherently religious activities would necessarily fail or, in the process, excessively entangle the government in the affairs of recipients or subrecipients that are religious organizations. Because inherently religious activities are non-program activities, USDA need not distinguish between program participants' religious and non-religious non-program activities; the same mechanism by which USDA policies the line between ineligible and eligible activities will serve to exclude inherently religious activities from funding. This system of monitoring is more than sufficient to address the commenters' concerns, and the amount of oversight of religious organizations necessary to accomplish these purposes is not greater than that involved in other publicly funded programs that the Supreme Court has sustained.

Comment: Technical, non-substantive changes. One commenter recommended in section 16.3(d)(1) that “conducting activities” should be replaced with “conducting USDA programs and activities.” Another commenter recommended that in the same section the first and second sentences be reversed since the second sentence states the general rule and the first sentence the exception to that rule.

USDA Response: USDA agrees with these recommendations and adopts them in the final rule.

Comment: Need to clarify if the rule is intended to preempt State and local civil rights and diversity requirements. A number of commenters stated that the language regarding State and local agencies disbursing Federal funds and the addition of State and local funds to Federal funds is unclear as to whether the rules regarding the Federal funds preempt any additional requirements that may be imposed by State and/or local laws or regulations. One commenter suggested that it be made clear that Federal rules govern these funds, while two commenters suggested that various areas of State and local law be retained when using these funds. The first commenter requested an explicit statement that Federal power preempts State/local procurement restrictions on religious staffing with USDA or commingled funds. One of the other commenters requested that the regulation expressly require that any recipients of this funding abide by State and local civil rights laws. The final commenter requested that local/State laws requiring board diversity not be preempted. That commenter also suggested that 16.2(b) not be interpreted to preempt State and local laws in general and employment restrictions specifically.

USDA Response: The requirements that govern funding under the USDA programs at issue in these regulations do not directly address preemption of State or local laws. Federal funds, however, carry Federal requirements. No organization is required to apply for funding under these programs, but organizations that apply and are selected for funding must comply with the requirements applicable to the program funds.

Comment: State and local governments should be required to segregate funds. One commenter requested that USDA require that State and local funds be kept separate from any Federal funds.

USDA Response: USDA disagrees with these comments. As an initial matter, USDA believes it would be inappropriate to require States and local governments to separate their own funds from Federal funds in circumstances in which there is no matching or other required grantee contribution. Where no matching requirement or other required grantee contribution is applicable, whether to commingle State and Federal funds is a decision for the States and local governments to make. In addition, for the same reasons that language concerning voluntarily commingled funds does not require clarification, USDA believes the rule requires no clarification as to whether it applies to State funds. When State and local governments have the option to commingle their funds with Federal funds or to separate State and local funds from Federal funds, Federal rules apply only if they choose to commingle their own funds with Federal funds. Where a USDA program explicitly requires that Federal rules apply to State “matching” funds, “maintenance of effort” funds, or other grantee contributions that are commingled with Federal funds ( i.e., are part of the grant budget), Federal rules remain applicable to both the Federal and State or local funds that implement the program.

Comment: Lack of an oversight mechanism. Some commenters were concerned that the lack of special oversight/reporting requirements/assurances would make it possible for religious organizations to commingle Federal funds and not account for expenditure of the Federal funds. A couple of commenters requested that religious organizations be required to form separate 501(c)(3) organizations to receive Federal funds. One commenter also noted that there was no notice to beneficiaries of how to secure their rights or address a grievance if they believe a religious organization is not fulfilling the requirements of this regulation.

USDA Response: USDA generally does not impose such requirements. It would be unfair to require religious organizations alone to comply with these additional burdens. Further, USDA finds no basis for requiring greater oversight and monitoring of faith-based organizations than of other program participants simply because they are faith-based organizations. As the Supreme Court stated in Allen, “Absent evidence, we cannot assume that school authorities * * * are unable to distinguish between secular and religious [materials] or that they will not honestly discharge their duties under the law.” Board of Ed. of Central Sch. Dist. No. 1 v. Allen, 392 U.S. 236, 244-245 (1968). All program participants must be monitored for compliance with program requirements, and no program participant may use USDA funds for any ineligible activity, whether that activity is an inherently religious activity or a non-religious activity that is outside the scope of the program at issue. Many secular organizations participating in USDA programs also receive funding from several sources (private, State, or local) to carry out activities that are ineligible for funding under USDA programs. In many cases, the non-eligible activities are secular activities but not activities eligible for funding under USDA programs. All program participants receiving funding from various sources and carrying out a wide range of activities must ensure through proper accounting principles that each set of funds is applied only to the activities for which the funding was provided.

Applicable policies, guidelines, and regulations prescribe the cost accounting procedures that are to be followed in using USDA funds. This system of monitoring is more than sufficient to address the commenters' concerns, and the amount of oversight of religious organizations necessary to accomplish these purposes is no different from that involved in other publicly funded programs that the Supreme Court has upheld.

Comment: Ensure the availability of secular alternate service providers. Some commenters wrote that USDA should clarify that beneficiaries have a right to receive services from a different, non-religious provider, and that the beneficiaries should be informed of this right by the faith-based provider.

USDA Response: USDA declines to adopt the recommendations of the commenters. Under this final rule, directly assisted religious organizations are prohibited from discriminating against program beneficiaries on the basis of “religions or religious belief.”

In addition, the rule provides that religious organizations may not use direct USDA assistance for inherently religious activities, that such activities must be offered separately, in time or location, from services directly assisted by USDA, and that no beneficiary served in a program supported with direct USDA assistance will be required to participate in inherently religious activities as a condition of receiving services. These requirements sufficiently protect the rights of program beneficiaries.

Comments: Inadequate protection in relation to what organizations will receive funding. One commenter expressed concern that the regulation fails to prevent government funds from flowing to “anti-Semitic, racist, or bigoted organizations.”

USDA Response: The existing protections of applicable civil rights laws are not altered in any way by these regulations. Faith-based organizations that receive funding must adhere to all of these applicable Federal requirements.

Comment: Religious organizations hold a special place in society and the Constitution. One commenter argued that equating or treating as equal religious and non-religious organizations fails to recognize the unique position religious organizations have in our society and Constitutional scheme because religion should be above the fray of government funding, government regulation, and government auditing, not reduced to it.

USDA Response: USDA agrees with the commenter that religious organizations have a unique position in our society and Constitutional scheme; however, USDA does not agree that the unique nature of religious organizations should prevent them from receiving an equal opportunity to participate in federally funded programs, and this rule does not present any violation of the Establishment Clause or Free Exercise Clause. Rather, this rule governs the conscious decision of a religious organization to administer regulated activities, by accepting public funds to do so. Therefore, we have retained language that enables faith-based organizations to compete on an equal footing for funding within the framework of constitutional parameters. Whether to participate in government funding is a decision of the particular religious organization.

Comment: Barriers to specific USDA programs. Some commenters also included examples of barriers they have encountered in specific USDA programs.

USDA Response: Because these barriers have their roots in statutes or regulations for specific programs and are not specific to faith-based or community organizations it is not within our scope to address them, but we encourage the commenters to direct their concerns to the relevant divisions at USDA.

Comment: Rulemaking is unauthorized and undemocratic. One commenter objected to the rule because the Constitution does not contain rulemaking as a power of the executive branch. The commenter went on to say that there is very weak link between rulemaking and democracy since the rules are published in a obscure venue and are made through strict processes. This makes participation and democratic accountability difficult, if not impossible. Finally, the commenter expressed concern about the sweeping nature of rules as opposed to administrative adjudication, which decides just a specific case.

USDA Response: Rulemaking is a necessary component of the executive branch's responsibly to uphold the Constitution and faithfully execute legislation passed by Congress and programs contained. Moreover, the Secretary is authorized to issue rules pursuant to 5 U.S.C. 301.

The final rule is issued in conformance with Executive Order 12866 on Regulatory Planning and Review. The Office of Management and Budget has determined that this is a significant regulatory action as defined by Executive Order 12866. Accordingly, the Office of Management and Budget has reviewed this final rule.

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) established requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. This final rule does not impose any Federal mandates on any state, local, or tribal governments or the private sector within the meaning of the Unfunded Mandates Reform Act of 1995.

Executive Order 13132, Federalism, requires that Federal agencies consult with state and local governments and their officials in the development of regulatory policies with federalism implications. Consultation was accomplished through solicitation of comment on the proposed rule.

The Secretary, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed and approved this final rule and in so doing certifies that this rule will not have a significant economic impact on a substantial number of small entities. The final rule would not impose any new costs, or modify existing costs, applicable to USDA assistance recipients. Rather, the purpose of the rule is to remove policy prohibitions that currently restrict equal participation of faith-based organizations in USDA assistance programs.

USDA is committed to compliance with the Government Paperwork Elimination Act (Pub. L. 105-277), which requires government agencies to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR 1320) requires that the Office of Management and Budget approve all collections of information by a Federal agency from the public before they can be implemented. There is no additional information collection burden imposed by this final rule.

This rule is issued under Marketing Agreement and Order No. 930 (7 CFR part 930), regulating the handling of tart cherries produced in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the Secretary a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempt therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, the Secretary would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction in equity to review the Secretary's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

Handler diversion is authorized under § 930.59 of the order and, when volume regulation is in effect, handlers may fulfill restricted percentage requirements by diverting cherries or cherry products into authorized outlets. Volume regulation is intended to help the tart cherry industry stabilize supplies and prices in years of excess production. The volume regulation provisions of the order provide for a combination of processor owned inventory reserves and grower or handler diversion of excess tart cherries. Reserve cherries may be released for sale into commercial outlets when the free percentage portion of the regulated crop is not expected to fill demand.

Section 930.59(b) of the order provides for the designation of allowable forms of handler diversion. These include: uses exempt under § 930.62; contribution to a Board approved food bank or other approved charitable organization; acquisition of grower diversion certificates that have been issued in accordance with § 930.58; or other uses, including diversion by destruction of the cherries at the handler's facilities as provided for in § 930.59(c).

Section 930.159 of the rules and regulations under the order allows handlers to divert cherries by destruction of the cherries at the handler's facility. Currently, at-plant diversion of cherries takes place at the handler's facility prior to placing cherries into the processing line. However, experience has shown that this limitation places a burden on handlers regulated under this order.

To remove this burden, the Board unanimously recommended that handlers be allowed to divert and receive diversion credit for tart cherries after processing that may not be acceptable for the finished products they manufacture. With the capability to divert such cherries after processing, but before the finished product is completed, handlers would have an incentive to remove the lower quality processed cherries from the lot, meet their restricted obligation requirements, and improve the quality of their products. Improvement in the quality of tart cherries and tart cherry products would benefit producers, handlers, and consumers.

This action is intended to provide handlers more flexibility in meeting their restricted obligation requirements. The ability to perform at-plant diversion after placing the cherries into the processing line, but before a finished product is completed, will benefit all handlers. This action is expected to especially benefit handlers who only process one product. In many instances, these handlers are small.

This rule would allow a handler who processes only five plus one cherries (25 pounds of tart cherries with 5 pounds of sugar added) to fulfill his/her restricted percentage obligation (in a volume regulated year) by diverting at-plant, lower quality wholesome fruit from his/her five plus one processing line. Currently, the diversion must take place prior to processing and handlers that process one product may be forced to divert their good quality tart cherries with the lower quality wholesome cherries, or divert cherries by some other approved method. Handlers processing more than one product also would be able to take advantage of the additional method of at-plant diversion.

Diversion may also be accomplished by handlers donating cherries to charitable organizations, utilizing cherries in exempt outlets, or redeeming grower diversion certificates obtained from growers who have diverted cherries by non-harvest, and who have been issued diversion certificates by the Board in accordance with rules and regulations governing the issuance of grower diversion certificates (§ 930.158).

The Board reported that during the 2001-2002 crop year that the inventory reserve contained 44.3 percent frozen products, 11.3 percent waterpack, 15.2 percent piefill, 28 percent juice and juice concentrate, and 1.2 percent other products. These percentages show that frozen products, and juice and juice concentrate make up most of the reserve quantities.

Pursuant to § 930.159(b), handlers electing to divert cherries or cherry products must first notify the Board and submit a plan for approval. Such notification and plan must include an agreement that diversion will take place under the supervision of the USDA Processed Products Inspection Service or Board employee inspectors, and that the costs of such supervision are to be paid by the handler. USDA inspectors supervise the diversion of cherries or finished products at the current hourly rate under USDA's inspection fee schedule (7 CFR 54.42). Board employees supervise diversion at the same payment rate.

Once diversion is satisfactorily accomplished, handlers receive diversion certificates stating the weight of cherries diverted. Such diversion certificates can be used to satisfy handlers' restricted percentage obligations. Cherries and finished cherry products which have been diverted are not be subject to assessments.

The Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities and has prepared this initial regulatory flexibility analysis. The Regulatory Flexibility Act (RFA) would allow AMS to certify that regulations do not have a significant economic impact on a substantial number of small entities.

However, as a matter of general policy, AMS' Fruit and Vegetable Programs (Programs) no longer opt for such certification, but rather perform regulatory flexibility analyses for any rulemaking that would generate the interest of a significant number of small entities. Performing such analyses shifts the Programs' efforts from determining whether regulatory flexibility analyses are required to the consideration of regulatory options and economic or regulatory impacts.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 40 handlers of tart cherries who are subject to regulation under the tart cherry marketing order and approximately 900 producers of tart cherries in the regulated area. Small agricultural service firms, which includes handlers, have been defined by the Small Business Administration (13 CFR 121.201) 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. A majority of the producers and handlers are considered small entities under SBA's standards.

Board and subcommittee meetings are widely publicized in advance and are held in a location central to the production area. The meetings are open to all industry members (including small business entities) and other interested persons who are encouraged to participate in the deliberations and voice their opinions on topics under discussion. Thus, Board recommendations can be considered to represent the interests of small business entities in the industry.

The Board reported that during the 2001-2002 crop year that the inventory reserve contained 44.3 percent frozen products, 11.3 percent waterpack, 15.2 percent piefill, 28 percent juice and juice concentrate, and 1.2 percent other products. These percentages show that frozen products, and juice and juice concentrate make up most of the reserve quantities.

The Board unanimously recommended this additional method for diversion credit to allow handlers to divert product after processing that may not be acceptable for the finished products manufactured by the handler. As discussed earlier, this action provides handlers more flexibility in meeting their restricted obligation requirements and is expected to be particularly helpful to handlers who produce only one product. In many instances, the one product handlers in the tart cherry industry are small.

Handlers that process juice concentrate and other products can more easily meet their restricted obligation requirements by juicing and processing lower quality wholesome product and placing it in the inventory reserve. Handlers that only have the ability to process products requiring higher quality fruit, like five plus one cherries have to put this fruit into the inventory reserves, or take advantage of other diversion options available under the order.

To sell more of their higher quality products, some handlers purchase cherries or diversion credit certificates from other handlers to meet their restricted obligation requirements. The added flexibility provided by this action will help all handlers, and is expected to especially benefit the one-product handlers who will be able to sell more of their higher quality cherries in finished product form.

Producers also are expected to benefit from the implementation of this action. Currently, producers can use in-orchard tank diversion, in which cherries harvested into tanks are measured, calculated then diverted in the orchard. This method of diversion, however, removes both good and lesser quality fruit. Under the Board's recommendation, producers could deliver all of their fruit to handlers and the good quality fruit would be sorted and the poor quality fruit diverted or dumped. Producers would be paid for the good quality fruit. According to the Board, growers are paid on a quality point basis relative to the quality of the fruit delivered. This action would provide producers with more consistent income proportionate to the quality of the fruit delivered to handlers and with discretion to reduce orchard diversion. As such, producers can be more selective in complying with the grower diversion process.

The principal demand for tart cherries is in the form of processed products. Tart cherries are dried, frozen, canned, juiced, and pureed. Data from the National Agricultural Statistics Service (NASS) states that during the period 1995/96 through 2002/03, approximately 92 percent of the U.S. tart cherry crop, or 285.7 million pounds, was processed annually. Of the 285.7 million pounds of tart cherries processed, 58 percent was frozen, 30 percent was canned, and 12 percent was utilized for juice.

With regard to alternatives, the Board felt that the recommendation was the only solution to providing handlers addtitional flexibility in meeting their restricted obligation requirements.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this regulation.

In compliance with Office of Management and Budget (OMB) regulations (5 CFR part 1320) which implement the Paperwork Reduction Act of 1995 (Pub. L. 104-13), the information collection and recordkeeping requirements have been previously approved by OMB and assigned OMB Number 0581-0177.

There are some reporting, recordkeeping, and other compliance requirements under the marketing order. The reporting and recordkeeping burdens are necessary for compliance purposes and for developing statistical data for maintenance of the program. The forms require information which is readily available from handler records and which can be provided without data processing equipment or trained statistical staff. As with other, similar marketing order programs, reports and forms are periodically studied to reduce or eliminate duplicate information collection burdens by industry and public sector agencies. This rule does not change those requirements.

This rule invites comments on adding another method of handler diversion to the regulations under the Federal tart cherry marketing order. Any comments received will be considered prior to finalization of this rule.

After consideration of all relevant material presented, including the Board's recommendation, and other information, it is found that this interim final rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The tart cherry crop year begins July 1 and this action needs to be implemented so handlers can take advantage of this opportunity for the upcoming season; (2) the Board unanimously recommended this action at a public meeting and interested parties had an opportunity to provide input; and (3) this rule provides a 60-day comment period and any comments received will be considered prior to finalization of this rule.

This rule is issued under Marketing Agreement and Order No. 989 (7 CFR part 989), both as amended, regulating the handling of raisins produced from grapes grown in California, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15) (A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule invites comments on revising the reporting requirements regarding OS raisins under the order. The order provides authority for volume and quality regulations and reporting requirements by varietal type of raisin. The OS varietal type includes raisins produced from Flames and other red grapes. This rule requires handlers to report to the RAC information on acquisitions, shipments, inventories, and inter-handler transfers of the different types of OS raisins, including Flames. The RAC will evaluate this data to determine whether segregating Flames into a separate varietal type is warranted. This action was unanimously recommended by the RAC at a meeting on April 13, 2004.

Section 989.73 of the order provides authority for the RAC to collect reports from handlers. Paragraph (d) of that section provides that, upon request of the RAC, with approval by the Secretary, handlers shall furnish to the RAC other information as may be necessary to enable it to exercise its powers and perform its duties. The RAC meets routinely to make decisions on various programs authorized under the order such as volume regulation and quality control. The RAC utilizes information collected under the order in its decision-making. Section 989.173 of the order's administrative rules and regulations specifies certain reports that handlers are currently required to submit to the RAC.

Many of the reports submitted by handlers under the order require information to be segregated by varietal type of raisin. Section 989.10 defines varietal type to mean raisins generally recognized as possessing characteristics differing form other raisins in a degree sufficient enough to warrant separate identification and classification. Section 989.110 of the order's administrative rules and regulations contains a list and description of the nine varietal types currently segregated under the order.

One of these varietal types, OS raisins, includes raisins produced from Flames and other similar seedless red grapes. There has been some discussion in recent years regarding whether Flames should be segregated into a separate varietal type. Between the 1995-96 and 2000-01 crop years, volume regulation had not been implemented for OS raisins, and handlers were able to market all of the OS raisins they acquired. During this period, some handlers had expanded their market for Flames. When volume regulation was in effect for OS raisins for the 2001-02 crop year, some Flame handlers had difficulty meeting their market needs.

Thus, the RAC recommended revising the order's regulations to require handlers to report data on acquisitions, shipments (dispositions), inventories, and inter-handler transfers of Flames and other OS raisins to the RAC beginning with the 2004-05 crop year which starts on August 1, 2004. The RAC will review this information and determine whether segregating Flames into a separate varietal type is warranted. A separate varietal type would allow the RAC to consider the application of the order's volume regulation provisions for Flames separate from the other types of OS raisins. Accordingly, paragraphs (a) (inventory), (b) (acquisitions), (c) dispositions, and (d) inter-handler transfers in § 989.173 are revised. Paragraph (g) in § 989.173 regarding similar reports for organic raisins is also revised.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 20 handlers of California raisins who are subject to regulation under the order and approximately 4,500 raisin producers in the regulated area. Small agricultural firms are defined by the Small Business Administration (13 CFR 121.201) 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. Thirteen of the 20 handlers subject to regulation have annual sales estimated to be at least $5,000,000, and the remaining 7 handlers have sales less than $5,000,000. No more than 7 handlers, and a majority of producers, of California raisins may be classified as small entities.

This rule revises § 989.173 to require handlers to report acquisitions, shipments, inventories, and inter-handler transfers of the different types of raisins within the OS varietal type. This action is needed so that the RAC can collect accurate data on Flames, a particular type of OS raisin, and evaluate this information to determine whether Flames should be segregated into a separate varietal type under the order. This would permit the RAC to consider application of the order's volume regulation provisions to Flames separate from the other types of OS raisins. Authority for this action is provided in § 989.73 of the order.

Regarding the impact of this action on affected entities, this action imposes no measurable burden on OS raisin handlers. OS handlers will be required to separate out different types of OS raisins on reports that they are already submitting to the RAC. Most handlers have been doing this voluntarily in recent years. This action has no impact on raisin producers.

The RAC considered alternatives to the recommended action. The RAC formed a work group to review the concerns raised by Flame handlers. One alternative considered was to proceed with informal rulemaking to establish a separate varietal type for Flames. Another alternative considered was to try to have all handlers voluntarily separate Flames from the other OS raisins on certain reports. After much discussion, the work group determined that the best course of action would be to collect data on Flames, evaluate the data, and then determine whether segregating Flames into a separate varietal type was warranted.

This rule slightly modifies the reporting requirements on small and large raisin handlers. All raisin handlers are currently required to submit various reports to the RAC where the data collected is segregated by varietal type of raisin. These reports include:

This rule requires that an extra line item be added to these 10 forms so that handlers can separate out Flames from the other types of OS raisins. Handlers will also be required to indicate the type of OS raisin on the Inter-Handler Transfers of Free Tonnage Raisins (RAC-6), the Monthly Free Tonnage Exports by Country of Destination (RAC-21), and the Monthly Free Organic Tonnage Exports by Country of Destination (RAC-21 CO); no change to these forms is needed. The current total annual burden for all 13 of these forms is 873.48 hours. This rule will not add to this burden on handlers.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the information collection requirements referenced above have been approved by the Office of Management and Budget (OMB) under OMB Control No. 0581-0178, Vegetable and Specialty Crops. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. Finally, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Further, the RAC's work group meetings on February 12 and March 4, 2004, the Administrative Issues Subcommittee and RAC meetings on April 13, 2004, and the RAC's Executive Committee meeting on May 4, 2004, where this action was deliberated were all public meetings widely publicized throughout the raisin industry. All interested persons were invited to attend the meetings and participate in the industry's deliberations. Finally, all interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

Comments are invited concerning this rule. A 60-day comment period is provided to allow interested persons to respond. All comments received will be considered prior to finalization of this rule.

After consideration of all relevant material presented, including the information and recommendation submitted by the RAC and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The RAC recommended that this action be in effect beginning with the 2004-05 crop year which begins on August 1, 2004; (2) this action was unanimously recommended by the RAC at a public meeting; (3) this action imposes no additional burden on California raisin handlers; and (4) this interim final rule provides a 60-day period for written comments, and all comments timely received will be considered prior to finalization of this rule.

Need for Correction

As published in the Federal Register on July 1, 2004 (69 FR 39814), the final rule amending parts 103, 214, and 299 contains an error that is in need of correction.

The Federal Reserve Banks make primary and secondary credit available to depository institutions as a backup source of funding on a short-term basis (usually overnight). The primary and secondary credit rates are the interest rates that the 12 Federal Reserve Banks charge for extensions of credit under these programs. In accordance with the Federal Reserve Act, the primary and secondary credit rates are established by the boards of directors of the Federal Reserve Banks, subject to the review and determination of the Board.

The Board approved requests by the Reserve Banks to increase by 25 basis points the primary credit rate in effect at each of the 12 Federal Reserve Banks, thereby increasing from 2 percent to 2.25 percent the rate that each Reserve Bank charges for extensions of primary credit. As a result of the Board's action on the primary credit rate, the rate that each Reserve Bank charges for extensions of secondary credit automatically increased from 2.50 percent to 2.75 percent under the secondary credit rate formula. The final amendments to Regulation A reflect these rate changes.

The 25-basis-point increase in the primary credit rate was associated with a similar increase in the target for the federal funds rate (from 1 percent to 1.25 percent) approved by the Federal Open Market Committee (Committee) and announced at the same time. A press release announcing these actions indicated that:

The Committee believes that, even after this action, the stance of monetary policy remains accommodative and, coupled with robust underlying growth in productivity, is providing ongoing support to economic activity. The evidence accumulated over the intermeeting period indicates that output is continuing to expand at a solid pace and labor market conditions have improved. Although incoming inflation data are somewhat elevated, a portion of the increase in recent months appears to have been due to transitory factors.

The Committee perceives the upside and downside risks to the attainment of both sustainable growth and price stability for the next few quarters are roughly equal. With underlying inflation still expected to be relatively low, the Committee believes that policy accommodation can be removed at a pace that is likely to be measured. Nonetheless, the Committee will respond to changes in economic prospects as needed to fulfill its obligation to maintain price stability.

Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Board certifies that the new primary and secondary credit rates will not have a significant adverse economic impact on a substantial number of small entities because the final rule does not impose any additional requirements on entities affected by the regulation.

The Board did not follow the provisions of 5 U.S.C. 553(b) relating to notice and public participation in connection with the adoption of these amendments because the Board for good cause determined that delaying implementation of the new primary and secondary credit rates in order to allow notice and public comment would be unnecessary and contrary to the public interest in fostering price stability and sustainable economic growth. For these same reasons, the Board also has not provided 30 days prior notice of the effective date of the rule under section 553(d).

On May 4, 2004, we became aware of three reports of third-stage turbine wheel blade and shroud failures on RRC model 250-C28 series turboshaft engines. Investigation by RRC revealed that high cycle fatigue caused the third-stage turbine blade and shroud failures. Investigation has also revealed that this high cycle fatigue condition is limited to a population of 73 third-stage turbine wheels that were manufactured and accepted with a blueprint variance. The turbine wheel original life limits were 4,550 operating hours and 6,000 cycles-in-service. This condition, if not corrected, could result in loss of power and uncommanded engine shutdown due to failure of third-stage turbine blades and shrouds.

The unsafe condition described previously is likely to exist or develop on other RRC 250-C28 series engines of the same type design. We are issuing this AD to prevent loss of power and uncommanded engine shutdown due to failure of third-stage turbine blades and shrouds. This AD requires replacing the third-stage turbine wheels, P/N 6899383, with SNs listed in the compliance section of this proposed AD at the following:

• For any turbine wheel with fewer than 250 operating hours time since new (TSN) on the effective date of the proposed AD, before accumulating 300 operating hours TSN; and

• For any turbine wheel with 250 or more operating hours TSN on the effective date of the proposed AD, before accumulating an additional 50 operating hours.

Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

We have implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, we posted new AD actions on the DMS and assigned a DMS docket number. We track each action and assign a corresponding Directorate identifier. The DMS docket No. is in the form “Docket No. FAA-2004-18538.” Each DMS docket also lists the Directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “AD Docket No. FAA-2004-18538; Directorate Identifier 2004-NE-29-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it.

We will post all comments we receive, without change, to http://dms.dot.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this AD. Using the search function of the DMS web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc. ). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://dms.dot.gov .

We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications with you. You can get more information about plain language at http://www.faa.gov/language and http://www.plainlanguage.gov .

You may examine the docket that contains the AD, any comments received, and any final disposition in person at the DMS Docket Offices between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES. Comments will be available in the AD docket shortly after the DMS receives them.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will 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.

For the reasons discussed above, I certify that the 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. 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.

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under ADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 2001-24-10, amendment 39-12527 (66 FR 63159, December 5, 2001), which is applicable to certain Fokker Model F.28 Mark 0100 series airplanes, was published in the Federal Register on March 17, 2004 (69 FR 12582). The action proposed to continue to require either replacement of each MLG with a MLG that has main fittings that have been inspected and reworked, or various one-time inspections of the main fittings and rework if necessary. Either of those actions would constitute terminating action for the repetitive inspections. The action also proposed to revise the applicability by adding airplanes.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

The Air Transport Association of America, on behalf of its members, generally supports the intent of the proposed AD.

The commenter, an operator, notes that its fleet of Fokker Model F.28 Mark 0100 series airplanes is not affected by the proposed AD. The commenter suggests adding an additional terminating action to paragraph (f) of the proposed AD to allow the installation of Menasco main landing gear (MLG) main fittings made of steel, in accordance with Fokker Service Bulletin F100-32-090.

The FAA acknowledges the commenter's request, but the unsafe condition addressed in this AD pertains to cracking associated with Messier-Dowty MLG main fittings as called out in the applicability statement of this AD. This AD is applicable to airplanes equipped with specific Messier-Dowty MLG and main fitting sub-assembly part numbers. This AD is not applicable to airplanes with MLGs and fittings manufactured by Menasco. No change to this AD is necessary.

Paragraph (f)(1) of this AD has been reworded to comply with the Office of the Federal Register's guidelines for material incorporated by reference.

After careful review of the available data, including the comments noted above, we have determined that air safety and the public interest require the adoption of the rule with the change previously described.

There are approximately 70 airplanes of U.S. registry that will be affected by this AD.

The actions that are currently required by AD 2001-24-10 take approximately 2 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the previously required actions on U.S. operators is estimated to be $9,100, or $130 per airplane, per inspection cycle.

Should an operator rework a MLG per Part 1 of Fokker Service Bulletin SBF100-32-134, it will take approximately 44 work hours per airplane at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the modification is estimated to be $2,860 per airplane.

Should an operator do the inspections specified in Messier-Dowty Service Bulletin F100-32-102, it will take approximately 2 work hours per airplane at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the inspections is estimated to be $130 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the 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 adopted herein will 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 final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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 final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 2000-12-06, amendment 39-11784 (65 FR 37476, June 15, 2000), which is applicable to certain Airbus Model A330 and A340 series airplanes, was published in the Federal Register on March 25, 2004 (69 FR 15262). The action proposed to continue to require the replacement of certain elevator servo-controls with new, improved servo-controls.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comment received from a single commenter.

The commenter, the airplane manufacturer, requests that the applicability of the proposed AD be changed to match the applicability as shown in the French airworthiness directives. The commenter notes that the applicability of the French airworthiness directives lists the affected airplanes by specific model dash numbers ( i.e., A330 aircraft, model -202, -223, -243, -301, etc.) The basis of the commenter's request is to limit the applicability of the proposed AD to airplane models that either contain or will contain the terminating modification in the airplane's type design, and to avoid making the proposed AD applicable to airplane models that do not have the affected servo-control part numbers specified in the proposed AD. We infer that the manufacturer wants to clarify that Airbus Model A340-541 and -642 airplanes are not affected by the proposed AD.

We partially agree with the commenter's request to change the applicability. We have changed the applicability of this final rule, but it does not match the applicability as shown in the French airworthiness directives. To avoid accidentally omitting airplane models that are listed on a U.S. type certificate data sheet (TCDS), we usually identify airplane series instead of individual model dash numbers in the applicability of our AD. The U.S. TCDS for the Model A340 includes the Model A340-200 series, comprising A340-211, -212, and -213 airplanes; the Model A340-300 series, comprising A340-311, -312, and -313 airplanes; and Model A340-541 and A340-642 airplanes. In this case Model A340-541 and -642 airplanes are not included in the applicability of the parallel French airworthiness directive. For clarification purposes, we have changed the applicability of this final rule to “Airbus Model A330 and Model A340-200 and -300 series airplanes equipped with any “SAMM” elevator servo-control having any part number (P/N) SC4800-2, SC4800-3, SC4800-4, SC4800-5, SC4800-6, SC4800-7, or SC4800-8; certificated in any category; except those with Airbus Modification 47674 installed in production.”

After careful review of the available data, including the comment noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 9 airplanes of U.S. registry that will be affected by this AD.

The actions that are currently required by AD 2000-12-06 and retained in this AD take approximately 2 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the currently required repetitive inspections is estimated to be $1,170, or $130 per airplane, per inspection cycle.

The new actions that are required by this new AD will take between 15 and 20 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Required parts will be provided at no cost. Based on these figures, the cost impact of the part replacement is estimated to be between $975 and $1,300 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the 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.

Currently, there are no Airbus Model A340-200 or A340-300 series airplanes on the U.S. Register. However, should an affected airplane be imported and placed on the U.S. Register in the future, it would take between 15 and 20 work hours per airplane to accomplish the proposed part replacement, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of part replacement would be between $975 and $1,300 per airplane.

The regulations adopted herein will 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 final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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 final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all Airbus Model A310 series airplanes was published in the Federal Register on April 1, 2004 (69 FR 17111). That action proposed to require inspecting the pressure-off brakes (POBs) installed on the power control units of the slats and flaps to determine their serial numbers; and replacing any POBs having affected serial numbers with new, serviceable, or modified POBs.

We provided the public the opportunity to participate in the development of this AD. No comments have been submitted on the proposed AD or on the determination of the cost to the public.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

We estimate that 46 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required actions, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $2,990, or $65 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the 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 adopted herein will 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 final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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 final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 98-22-05, amendment 39-10851 (63 FR 56542, October 22, 1998), which is applicable to certain Airbus Model A320 series airplanes, was published in the Federal Register on February 6, 2004 (69 FR 5790). The action proposed to continue to require repetitive inspections to detect fatigue cracking of the lower surface panel on the wing center box, and repair if necessary. That action also proposed to continue to require modification of the lower surface panel on the wing center box, which would constitute terminating action for the repetitive inspections. That action also proposed to reduce the compliance times for the inspections required by the existing AD.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received from a single commenter.

The commenter states that paragraph (c)(1) of the proposed AD (Restatement of Requirements of AD 98-22-05), conflicts with paragraph (g) of the proposed AD (New Requirements of This AD). The commenter notes that paragraph (c)(1) requires accomplishment of the modification of the lower surface panel on the wing center box per Airbus Service Bulletin A320-57-1043, Revision 02 or Revision 05, if no cracking is found during the inspection required by paragraph (c) of the proposed AD, but paragraph (g) specifies repeating the inspection per Airbus Service Bulletin A320-57-1082, Revision 01 or Revision 03, if no cracking is found. The commenter adds that French airworthiness directive 2002-342(B), dated June 26, 2002 (referenced in the proposed AD), and French airworthiness directive 97-309-104(B), dated October 27, 1997 (referenced in the existing AD), issued by the Direction Générale de l'Aviation Civile, which is the airworthiness authority for France, require accomplishment of the actions specified in Airbus Service Bulletin A320-57-1043, Revision 02 or Revision 05 only, if no cracking is found. The commenter asks that paragraph (c)(1) be removed for the reasons stated above.

The FAA partially agrees. Paragraph (g) of this AD requires repeating the inspection required by paragraph (a) or (f) of the AD if no cracking is found during either of those inspections. The inspection specified in paragraph (f) is for airplanes on which the inspection required by paragraph (a) has not been done as of the effective date of the AD, and accomplishment of the inspection constitutes terminating action for the requirements of paragraph (a). Paragraph (c)(1) specifies that accomplishment of the modification per Airbus Service Bulletin A320-57-1043, Revision 02 or Revision 05, also constitutes terminating action for the requirements of paragraph (a). Therefore, if the commenter has done the modification required by paragraph (c)(1), the repetitive inspections required by paragraph (g) are not required. We have changed paragraphs (f) and (g) for clarification, as follows: We have changed paragraph (f) to state “For airplanes on which neither the inspection required by paragraph (a) of this AD, nor the modification required by paragraph (c)(1) of this AD has been done before the effective date of this AD:” We have changed paragraph (g) to add “Accomplishment of the modification required by paragraph (c)(1) of this AD terminates the requirements of this paragraph.”

Additionally, the applicability of this AD is for Model A320 series airplanes on which Airbus Modification 22418 (reference Airbus Service Bulletin A320-57-1043) has not been done. French airworthiness directive 2002-342(B), does not require accomplishment of the actions specified in Airbus Service Bulletin A320-57-1043, but requires accomplishment of the actions specified in Airbus Service Bulletin A320-57-1082. French airworthiness directive 97-309-104(B), was cancelled upon issuance of French airworthiness directive 2002-342(B). The applicability in French airworthiness directive 2002-342(B), in part, excludes airplanes on which the actions specified in Service Bulletin A320-57-1043 have been done. No change to the AD is necessary in this regard.

The commenter states that the compliance time for the inspection required by paragraph (f)(2) of the proposed AD specifies “Prior to the accumulation of 20,000 total flight cycles, or within 3,500 flight cycles after the effective date of this AD, whichever is first.” The commenter notes that the compliance time should be “whichever occurs later.” No justification is provided for this comment.

We have coordinated this issue with the manufacturer and determined that the compliance time required by paragraph (f)(2) of this AD should specify “Prior to the accumulation of 20,000 total flight cycles, or within 3,500 flight cycles after the effective date of this AD, whichever is later.” The referenced French airworthiness directive and service information did not provide this criterion. We have determined that extending the compliance time for the inspection will continue to provide an acceptable level of safety for the affected fleet. Paragraph (f)(2) of this AD has been changed accordingly.

The commenter states that the models listed in French airworthiness directive 2002-342(B), dated June 26, 2002 (referenced in the proposed AD), are Airbus Model A320-111, -211, -212, and -231 series airplanes. The commenter asks that the models listed in the proposed AD (Model A320 series airplanes) be changed to match the models listed in the referenced French airworthiness directive.

We agree. French airworthiness directive 97-309-104(B), dated October 27, 1997 (referenced in the existing AD), listed Model A320 series airplanes and has since been cancelled. Therefore, we have changed the models listed in this AD to specify Model A320-111, -211, -212, and -231 series airplanes. This change corresponds with the models specified in French airworthiness directive 2002-342(B).

We have carefully reviewed the available data, including the comments noted above, and have determined that air safety and the public interest require adopting the AD with the changes described previously. These changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 60 airplanes of U.S. registry that will be affected by this AD. This AD reduces the compliance time for the inspections required by AD 98-22-05, and consequently adds no additional costs or work. The current costs associated with that AD are repeated as follows for the convenience of affected operators:

The inspections that are currently required by AD 98-22-05, and retained in this AD, take about 2 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the currently required inspections is estimated to be $130 per airplane, per inspection cycle.

The modification that is currently required by AD 98-22-05, and retained in this AD, will take about 2 work hours per airplane to accomplish, at an average labor rate of $65 per work hours. There are no parts necessary to accomplish the modification. Based on these figures, the cost impact of the modification currently required is estimated to be $130 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the 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 adopted herein will 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 final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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 final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 98-09-20, amendment 39-10501 (63 FR 23377, April 29, 1998), which is applicable to certain Airbus Model A310 series airplanes, was published in the Federal Register on December 18, 2003, (68 FR 70479). The action proposed to continue require reinstating repetitive inspections in certain areas where corrosion was detected and reworked as required by the existing AD.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comment received from a single commenter.

The commenter states that Airbus has issued Revision 05 to Service Bulletin A310-53-2069, dated November 12, 2002, and requests that this revision be included in the proposed AD as an acceptable source of service information. The commenter notes that Revision 05 of the service bulletin includes a revised repair drawing and, for certain airplanes, deletes an inspection at frame 39/stringer 35.

The FAA concurs with the intent of the commenter's request to include Revision 05 of the service bulletin as an appropriate source of service information. However, upon review of Revisions 04 and 05 of the service bulletin, it appears that the repair drawing was revised in Revision 04, and that the manufacturer did not remove the revision marks when Revision 05 of the service bulletin was issued. We have determined that Revision 05 of Airbus Service Bulletin A310-53-2069 adds no new requirements. We have revised paragraphs (a), (b), and (d) of this final rule to reference Airbus Service Bulletin A310-53-2069, Revision 05, dated November 12, 2002; and Revision 04, dated November 8, 2000; as additional appropriate sources of service information.

After careful review of the available data, including the comment noted above, we have determined that air safety and the public interest require the adoption of the rule with the change previously described. We have determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 46 airplanes of U.S. registry that will be affected by this AD. This AD adds no new requirements. It requires continuation of repetitive inspections for airplanes where corrosion was detected and reworked at frame 39, stringer 35. The current costs associated with AD 98-09-20 are reiterated in their entirety as follows for the convenience of affected operators:

The actions that are currently required by AD 98-09-20 take approximately 68 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the previously required actions on U.S. operators is estimated to be $4,420 per airplane, per inspection cycle.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the 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 adopted herein will 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 final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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 final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model DC-8-11, DC-8-12, DC-8-21, DC-8-31, DC-8-32, DC-8-33, DC-8-41, DC-8-42, DC-8-43, DC-8F-54, and DC-8F-55 airplanes; and Model DC-8-50, -60, -60F, -70 and -70F series airplanes was published in the Federal Register on November 28, 2003 (68 FR 66770). That action proposed to require inspection of the captain's and first officer's seat locking pins for minimum engagement with the detent holes in the seat tracks; inspection of the seat lockpins for excessive wear; and corrective actions, if necessary.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

One commenter requests that the FAA delay issuance of the proposed AD until Boeing Alert Service Bulletin DC8-25A244, Revision 02, dated June 25, 2002, has been revised. The commenter states that the following changes were discussed with and agreed upon by the airplane manufacturer: (1) Option 2, step 1, should refer to Figure 4, instead of Figure 1, to verify the measurement taken, and (2) Figure 4, step 1, should contain a note specifying that an equivalent tool may be used to raise the seat until contact is made with the underside of the seat track.

We partially agree. Since issuance of the proposed AD, we have reviewed and approved Boeing Alert Service Bulletin DC8-25A244, Revision 3, dated March 9, 2004, which describes procedures that are essentially the same as the procedures described in Revision 02 of the service bulletin. Revision 3 of the service bulletin also incorporates the changes specified above by the commenter; therefore, we do not need to delay issuance of the final rule. We have revised this final rule to specify that accomplishment of the actions required by paragraphs (a) and (b) of this final rule be done in accordance with Revision 3 of the service bulletin. We have also added paragraph (c) to this final rule to give credit for actions accomplished before the effective date of this AD in accordance with Revision 02 of the service bulletin.

Two commenters request that the proposed compliance time for the inspection be extended from 18 months to 24 months. The commenters note that this would allow the inspection to be accomplished during the time of a regularly scheduled C-check. We infer that the commenters consider that the adoption of the proposed compliance time of 18 months would require operators to schedule special times for the accomplishment of the inspection and corrective actions, at additional expense.

We do not agree with the request to extend the compliance time. In developing an appropriate compliance time for this action, we considered the safety implications and normal maintenance schedules for the timely accomplishment of the inspection and corrective actions. In consideration of these factors, we find that an 18-month interval is appropriate. However, paragraph (d) of this final rule provides affected operators the opportunity to apply for an adjustment of the compliance time if the operator also presents data that justify the adjustment.

One commenter requests that its maintenance taskcard 25-000-11-05, dated June 15, 2002, be accepted as an alternative method of compliance (AMOC) with the proposed AD. The commenter states that it currently accomplishes the inspections “repetitively every ‘C’ check interval, not to exceed 24 calendar months.” The commenter also submitted its taskcard, which references “Service Bulletin DC8-25A244 [Revision] 1 or later approved version.”

The commenter makes no specific request for a change to the proposed AD. As provided by paragraph (d) of this final rule, we may approve a request for an AMOC if data are submitted to justify that the commenter's taskcard would provide an acceptable level of safety. We recommend that the commenter review Revision 3 of the service bulletin before submitting an AMOC to the Los Angeles Aircraft Certification Office for consideration of approval. No change to the final rule is needed in this regard.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes previously described. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 497 airplanes of the affected design in the worldwide fleet. The FAA estimates that 360 airplanes of U.S. registry will be affected by this AD. Table 1 shows the estimated cost impact, based upon the action taken, for airplanes affected by this AD. The average labor rate is $65 per work hour.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the 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 adopted herein will 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 final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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 final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 2000-13-09, amendment 39-11808 (65 FR 41871, July 7, 2000), which is applicable to certain Saab Model SAAB 2000 series airplanes, was published in the Federal Register on March 26, 2004 (69 FR 15740). The action proposed to require repetitive inspections for cracks in the lower areas of the backup struts, and corrective actions if necessary. That action also proposed to require the eventual replacement of the backup struts with new, improved struts, which would terminate the repetitive inspections.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

This AD will affect about 3 airplanes of U.S. registry.

The inspection of the lower ends of the backup struts will take about 4 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of this action on U.S. operators is estimated to be $780, or $260 per airplane, per inspection cycle.

Replacing all four backup struts will take about 80 work hours per airplane, at an average labor rate of $65 per work hour. Required parts will cost about $165,416 per airplane. Based on these figures, the cost impact of this action on U.S. operators is estimated to be $511,848, or $170,616 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the 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 adopted herein will 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 final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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 final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

What events have caused this AD? On July 7, 2003, a Piper PA-28-181 airplane crashed in the desert northeast of Phoenix, Arizona, after the pilot lost control of the ailerons and elevator. The left control wheel single MS24964-S59 screw backed out of its nut plate and caused the control wheel to spin freely on the control column. Further investigation revealed the screw was too short and the nut plate lacked proper locking features to prevent the screw from backing out and becoming disengaged. In addition, the screw was installed on the bottom of the control wheel allowing it to fall out once it became disengaged. An investigation of sample fleets after the incident revealed that a large portion of the sampled airplanes had similar problems.

The following airplanes have a similar type design and would be subject to these same conditions: The New Piper Aircraft, Inc., Models PA-28-161, PA-28-181, PA-28R-201, PA-32R-301 (HP), PA-32R-301T, PA-32-301FT, PA-32-301XTC, PA-34-220T, PA-44-180, PA-46-350P, and PA-46-500TP airplanes.

What is the potential impact if FAA took no action? Inadequate control wheel attaching hardware could result in loss of control of the ailerons and elevator. This failure could lead to loss of control of the airplane.

Is there service information that applies to this subject? Yes, The New Piper Aircraft, Inc. has issued Service Bulletin No. 1139A, dated April 9, 2004.

What are the provisions of this service information? The service bulletin includes procedures for:

What has FAA decided? We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design.

Since the unsafe condition described previously is likely to exist or develop on other Piper Models PA-28-161, PA-28-181, PA-28R-201, PA-32R-301 (HP), PA-32R-301T, PA-32-301FT, PA-32-301XTC, PA-34-220T, PA-44-180, PA-46-350P, and PA-46-500TP airplanes of the same type design, we are issuing this AD to detect and correct inadequate control wheel attaching hardware, which could result in loss of control of the ailerons and elevator. This failure could lead to loss of control of the airplane.

What does this AD require? This AD requires you to incorporate the actions in the previously-referenced service bulletin.

In preparing of this rule, we contacted type clubs and aircraft operators to get technical information and information on operational and economic impacts. We did not receive any information through these contacts. If received, we would have included a discussion of any information that may have influenced this action in the rulemaking docket.

How does the revision to 14 CFR part 39 affect this AD? On July 10, 2002, we published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs FAA's AD system. This regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.

Will I have the opportunity to comment before you issue the rule? This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2004-18032; Directorate Identifier 2004-CE-15-AD” in the subject line of your comments. If you want us to acknowledge receipt of your mailed comments, send us a self-addressed, stamped postcard with the docket number written on it; we will date-stamp your postcard and mail it back to you. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it. If a person contacts us through a nonwritten communication, and that contact relates to a substantive part of this AD, we will summarize the contact and place the summary in the docket. We will consider all comments received by the closing date and may amend the AD in light of those comments.

Will this AD impact various entities? We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will 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.

Will this AD involve a significant rule or regulatory action? For the reasons discussed above, I certify that this AD:

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. 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.

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. FAA-2004-18032; Directorate Identifier 2004-CE-15-AD” in your request.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 2001-11-10, amendment 39-12253 (66 FR 30305, June 6, 2001), which is applicable to certain Bombardier Model DHC-8-400 series airplanes, was published in the Federal Register on May 7, 2004 (69 FR 25503). The action proposed to require revising the Normal and Abnormal sections of the airplane flight manual (AFM) to include procedures that enable the flightcrew to determine if the main landing gear (MLG) is extended before landing, and to take appropriate actions if necessary. That action also proposed to require adding an airplane to the applicability, and replacing the existing MLG downlock proximity sensors with new, improved sensors. After the replacement, that action also proposed to require removing from the AFM the revision to the Normal and Abnormal sections required by the existing AD.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 15 airplanes of U.S. registry that will be affected by this AD.

The revision of the AFM that is currently required by AD 2001-11-10 takes approximately 1 work hour per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the previously required actions on U.S. operators is estimated to be $975, or $65 per airplane.

The replacement that is required by this new AD will take approximately 4 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Required parts will be provided free of charge. Based on these figures, the cost impact of the new requirements of this AD on U.S. operators is estimated to be $3,900, or $260 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the 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 adopted herein will 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 final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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 final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all Israel Aircraft Industries, Ltd., Model 1121, 1121A, 1121B, 1123, 1124, and 1124A series airplanes was published in the Federal Register on May 7, 2004 (69 FR 25517). That action proposed to require a one-time inspection to detect cracking and other discrepancies of both sides of the rudder skins and ribs, forward to aft on each spar, to detect cracks below the skin surface; and corrective action if necessary.

We provided the public the opportunity to participate in the development of this AD. No comments have been submitted on the proposed AD or on the determination of the cost to the public.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

This AD will affect about 300 airplanes of U.S. registry. It will take about 3 work hours per airplane to do the required actions, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $58,500, or $195 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the 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 adopted herein will 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 final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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 final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all BAE Systems (Operations) Limited (Jetstream) Model 4101 airplanes was published in the Federal Register on May 12, 2004 (69 FR 26331). That action proposed to require a test for free movement of the capsule/bearing of the nose landing gear (NLG), and related investigative, significant, and corrective actions.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that 57 airplanes of U.S. registry will be affected by this AD, that it will take approximately 6 work hours per airplane to accomplish the required actions, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $22,230, or $390 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the 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 adopted herein will 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 final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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 final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 2002-14-11, amendment 39-12811 (67 FR 47651, July 19, 2002), which is applicable to certain McDonnell Douglas Model MD-11 and -11F airplanes, was published in the Federal Register on January 9, 2004 (69 FR 1549). The action proposed to require replacing ground support brackets with new brackets, and replacing ground cables of the galley external power and main external power with new cables; as applicable. The action also proposed to require an inspection to detect the presence of a fillet seal at the ground brackets and to detect excessive length and correct terminations of the ground cables of the galley and main external power, as applicable; and corrective actions if necessary.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

One commenter requests that AMOCs approved previously per AD 2002-14-11 be considered approved as an AMOC with this AD. The commenter states that Boeing Service Bulletin MD11-24A138, Revision 1, was approved as an AMOC for AD 2002-14-11.

We agree and have revised the “Alternative Methods of Compliance” section of the final rule accordingly.

One commenter requests, for clarification purposes, that paragraphs (a)(1) and (a)(3) of Table 1 of the AD be revised to specify that the required actions must be done per applicable figure of the service bulletin.

We agree that clarification is necessary, but do not agree that the final rule needs to be changed. As specified in paragraph (a) of the AD, the actions specified in paragraphs (a)(1) through (a)(4) of Table 1 must be done “in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin MD11-24A138, Revision 2, dated July 11, 2003.” Paragraph 3.A., Accomplishment Instructions, of the service bulletin references figures in the service bulletin for more specific instructions for accomplishing the replacements and inspections required by this AD. However, it does not specify any applicable corrective actions for the required inspections; the applicable corrective actions are only specified in the figures of the service bulletin. Therefore, for clarification purposes, we referenced the applicable figure for accomplishing the applicable corrective actions only in paragraphs (a)(2) and (a)(4) of Table 1 of the AD.

The same commenter also requests other minor editorial changes. We agree and have revised the final rule accordingly.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes previously described. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 154 airplanes of the affected design in the worldwide fleet. The FAA estimates that 69 airplanes of U.S. registry will be affected by this AD.

The new actions that are required in this AD action will take approximately 1 work hour per airplane to accomplish, at an average labor rate of $65 per work hour. Required parts will cost approximately between $175 and $2,002 per airplane, depending on airplane configuration. Based on these figures, the cost impact of the requirements of this AD on U.S. operators is estimated to between $240 and $2,067 per airplane, depending on airplane configuration.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the 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 manufacturer may cover the cost of replacement parts associated with this AD, subject to warranty conditions. Manufacturer warranty remedies may also be available for labor costs associated with this AD. As a result, the costs attributable to the AD may be less than stated above.

The regulations adopted herein will 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 final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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 final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all BAE Systems (Operations) Limited Model BAe 146 series airplanes and Model Avro 146-RJ series airplanes was published in the Federal Register on April 26, 2004 (69 FR 22459). That action proposed to require performing a detailed inspection for chafing of the fuel quantity indication (FQI) system wiring, and any applicable corrective actions.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments have been submitted on the proposed AD or on the determination of the cost to the public.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that 54 airplanes of U.S. registry will be affected by this AD, that it will take approximately 2 work hours per airplane to accomplish the required inspection, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $7,020, or $130 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the 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 adopted herein will 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 final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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 final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all BAE Systems (Operations) Limited (Jetstream) Model 4101 airplanes was published in the Federal Register on May 7, 2004 (69 FR 25521). That action proposed to require a one-time inspection of the ailerons to determine if certain actions were accomplished previously, and related investigative and corrective actions if necessary.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

We have determined that air safety and the public interest require the adoption of the rule as proposed.

We estimate that 57 airplanes of U.S. registry will be affected by this AD, that it will take approximately 2 work hours per airplane to accomplish the required actions, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $7,410, or $130 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the 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 adopted herein will 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 final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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 final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain McDonnell Douglas DC-9-82 (MD-82) and DC-9-83 (MD-83) airplanes; and Model MD-88 airplanes; was published in the Federal Register on March 11, 2004 (69 FR 11550). That action proposed to require inspection of the captain's and first officer's seat track locking pins for insufficient engagement caused by seat track misalignment, and corrective actions if necessary.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 1,166 airplanes of the affected design in the worldwide fleet. The FAA estimates that 672 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required inspection, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $43,680 or $65 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the 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. Manufacturer warranty remedies may be available for labor costs associated with this AD. As a result, the costs attributable to the AD may be less than stated above.

The regulations adopted herein will 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 final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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 final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes was published in the Federal Register on March 17, 2004 (69 FR 12587). That action proposed to require repetitive detailed and eddy current inspections on the main fittings of the main landing gears (MLG) to detect discrepancies, and related investigative/corrective actions if necessary. That action also proposed to require servicing the shock strut of the MLGs; inspecting the shock strut of the MLGs for nitrogen pressure, visible chrome dimension, and oil leakage; and servicing any discrepant strut.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

One commenter, the manufacturer, requests that the fax number for reporting inspection results, as specified in paragraph (f) of the proposed AD, be revised.

The FAA agrees. We have revised the fax number specified in paragraph (f) of the final rule accordingly.

The other commenter requests that the reporting requirement of the proposed AD be changed to require reporting of only the positive eddy current inspection findings. The commenter states that the repetitive detailed inspection interval of every 100 flight hours occurs within one week for many operators. Additionally, it estimates that there will be nearly 15,000 positive and negative findings as a result of the current requirement, an amount it considers to be excessive for the manufacturer's review and analysis of relevant data. The commenter asserts that reporting negative findings would serve no useful purpose.

We agree with the commenter that reporting of negative findings serves no useful purpose. Also, Transport Canada Civil Aviation, which is the airworthiness authority for Canada, has informed us that reporting of the positive findings of only the eddy current inspections is sufficient for the requirements of this AD. Therefore, we have changed paragraph (f) of the final rule accordingly.

In the heading for paragraph (d) of the proposed rule, we inadvertently added the words “* * *and Serving If Necessary.” For clarification purposes, we have removed that phrase from the final rule.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes described previously. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

The FAA estimates that 288 airplanes of U.S. registry will be affected by this AD, that it will take approximately 4 work hours per airplane to accomplish the required actions, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $74,880, or $260 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the 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. Manufacturer warranty remedies may be available for certain labor costs associated with this AD. As a result, the costs attributable to the AD may be less than stated above.

The regulations adopted herein will 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 final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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 final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

Vision 100 revised the civil penalty provisions applicable to violations of Title 49. With respect to violations of economic requirements contained in Title 49, chapters 401 through 421, and rules and orders issued thereunder, the new civil penalty provisions are as follows:

This amendment incorporates these Vision 100 penalty revisions into 14 CFR Part 383, the regulatory codification of the related civil penalty provisions.

In developing this final rule, we are waiving the usual notice of proposed rulemaking and public comment procedures set forth in the Administrative Procedure Act (APA) (5 U.S.C. 553). The APA provides an exception to the notice and comment procedures when an agency finds there is good cause for dispensing with such procedures when they are impracticable, unnecessary or contrary to the public interest. We have determined that under 5 U.S.C. 553(b)(3)(B) good cause exists for dispensing with the notice of proposed rulemaking and public comment procedures for this rule. Specifically, this rulemaking is consistent with the statutory authority set forth in Vision 100, and raises no issues of policy discretion. Accordingly, we believe that opportunity for prior comment is unnecessary and contrary to the public interest, and we are issuing these revised regulations as a final rule.

This final rule is exempt from review by the Office of Management and Budget (OMB) in accordance with provisions of Executive Order 12866, because it is limited to the adoption of statutory language, without interpretation. The great majority of persons covered by these regulations do not engage in the prohibited conduct subject to the revised civil penalty provisions, and as a result, we believe that any aggregate economic impact of these revised regulations will be minimal, affecting only those who do not comply with the pertinent statutes or regulations. As a result, this final rule should have no effect on Federal or State expenditures.

In addition, we must prepare a regulatory flexibility analysis that is consistent with the Regulatory Flexibility Act (5 U.S.C. 601-602) unless we certify that a regulation will not have a significant economic impact on a substantial number of small entities. In this case the revision of the civil penalty amounts will raise potential penalties for all aviation businesses; however, there are special reduced penalties for individuals and small businesses with regard to specific kinds of violations. It is primarily the nature of the violations that has determined OST enforcement action in the past, although the size of an entity has been taken into account in determining what, if any, civil penalty is appropriate. The aggregate economic impact of this rulemaking on small entities should, therefore, be minimal, affecting only those who engage in conduct prohibited by statute or the related regulations.

Therefore, we have concluded and certify that this final rule will not have a significant economic impact on a substantial number of small entities, and that a regulatory flexibility analysis is not required for this rulemaking.

This final rule imposes no new reporting or record keeping requirements necessitating paperwork clearance by OMB.

OST has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this rulemaking.

I. Amendments To Update Regional Office Information

Commission Rule 140.2 describes the organization of four regional offices for the Commission (the Eastern, Central, Southwestern and Western Regional offices). Among other things, Rule 140.2 specifies for each regional office a list of states for which the office is “responsible for enforcement of the [Commodity Exchange Act] and administration of programs of the Commission”. 1 In 2002, the Eastern and Central Regional Offices moved to new locations, and the Western Regional Office was closed in 2003. The Commission is therefore amending Rule 140.2 to update the address information for the Eastern and Central Regional Offices, and to delete the reference to the Western Regional Office. Rule 140.2 is also amended to add to the list of states for the Southwestern Regional Office those states that are currently in the list for the Western Regional Office (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Utah, Washington, and Wyoming). 2

Commission Rules 1.10, 1.12, 1.17 and 31.13 must also be revised to reflect the closing of the Western Regional Office. These rules specify various reports or notices that are to be filed with the Commission, and state further that such reports and notices are considered filed when received by the regional office that is the nearest to a firm's principal place of business, with the proviso that firms under the jurisdiction of the Western Regional Office should file with the Southwestern Regional Office instead. The proviso is no longer necessary, and the Commission is accordingly amending each of these regulations to delete the proviso.

The Commission is also amending the list of addresses provided in Rule 145.6 for requests for public records directed to regional offices. As amended, the rule will no longer include the address of the closed Division of Enforcement office in the Western Region.

Several Commission regulations include references to section 4d(2) of the Commodity Exchange Act. With the enactment of Commodity Futures Modernization Act of 2000 (“CFMA”), section 4d(2) has now been redesignated as section 4d(a)(2). 3 The Commission is therefore amending Rules 1.16, 1.17, 1.23, 1.30, 31.13, and 190.07 to change the references to section 4d(2) to read section 4d(a)(2).

PM Resources, Inc., 13001 St. Charles Rock Rd., Bridgeton, MO 63044, has informed FDA that it has transferred ownership of, and all rights and interest in, the following four approved NADAs to Virbac AH, Inc., 3200 Meacham Blvd., Ft. Worth, TX 76137:

Accordingly, the agency is amending the regulations in 21 CFR 520.2045, 520.2325a, and 524.900 to reflect the transfer of ownership.

Following these changes of sponsorship, PM Resources, Inc., is no longer the sponsor of an approved application. Accordingly, § 510.600(c) is being amended to remove the entries for PM Resources, Inc.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

G. C. Hanford Manufacturing Co., P.O. Box 1017, Syracuse, NY 13201, filed ANADA 200-372 that provides for use of Penicillin G Potassium, USP, in the drinking water of turkeys for the treatment of erysipelas caused by Erysipelothrix rhusiopathiae. G. C. Hanford Manufacturing Co.'s HAN-PEN (penicillin G potassium, USP) is approved as a generic copy of Fort Dodge Animal Health's Penicillin G Potassium, USP, approved under NADA 55-060. The ANADA is approved as of May 21, 2004, and the regulations are amended in 21 CFR 520.1696b to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Public Notification and Request for Comments

The Department will make every effort to ensure locatable mineral operators, locatable mineral related organizations and associations, and other interested parties are informed of the availability of the interim rule. In order to ensure the widest distribution, the interim rule shall be distributed by paper copy mailings, e-mail notices, posting on the Forest Service Minerals and Geology Management Staff internet Web site, as well as published notices in local newspapers. Copies of the interim rule will also be provided to the appropriate Congressional Committee members.

Since 1974, the Forest Service has applied the regulations at 36 CFR part 228, subpart A, to minimize adverse environmental impacts from mineral operations by requiring mineral operators to file proposed plans of operations for mineral operations which the District Ranger determines will likely cause significant surface disturbance to National Forest System (NFS) lands. These regulated operations may include the construction of storage facilities, mills, and mill buildings; placement of trailers or other personal equipment; residential occupancy and use; storage of vehicles and equipment; excavation of holes, trenches, and pits by non-mechanized procedures; diversion of water; use of sluice boxes and portable devices for separating gold from sediments; off highway vehicle use; road and bridge construction; handling and disposal of mine and other wastes; and signing and fencing to restrict public use of the National Forest area affected by mining. The Forest Service and the courts have consistently required locatable mineral operators to obtain approval of a plan of operations whenever such operations would likely cause a significant surface disturbance whether or not those operations would always involve mechanized earth moving equipment or the cutting of trees. However, last year a District Court departed from this consistent interpretation and ruled that 36 CFR 228.4 (a)(2)(iii) allows a mining operation to occur on NFS lands without prior notification to the Forest Service or Forest Service approval when the operation, irrespective of the impact of its surface disturbing activities, does not involve mechanized earthmoving equipment or the cutting of trees. This unprecedented ruling severely restricts the ability of the Forest Service to regulate miners engaged in surface disturbing operations which have serious environmental impacts although they do not involve mechanized earth moving equipment or the cutting of trees. Moreover, this new interpretation of 36 CFR 228.4 (a)(2)(iii), if left unclarified, will result in significant and unnecessary impacts to NFS lands and resources, including impacts to water quality, visual quality, natural features, species listed under the Endangered Species Act, and conflicts with other National Forest users.

The technical changes contained in this interim rule, for which prior notice and opportunity for public comment is not legally required, are designed to prevent confusion as to the proper interpretation of the regulations. Specifically, the technical amendments clarify the long-standing requirement that a notice of intent and/or plan of operations is mandatory whenever the District Ranger determines that there may be significant surface disturbance to NFS lands and resources, whether or not the operation involves the cutting of trees or use of mechanized earth moving equipment.

The technical amendments to § 228.4(a) clarify the requirement that a notice of intent is mandatory in any situation in which a mining operation causes a surface disturbance, regardless of whether that disturbance is caused by mechanized earth moving equipment or the removal of timber. The technical amendments to § 228.4(a) also seek to eliminate any possible confusion by more specifically addressing the issue of what level of operation requires a notice of intent and what level of operation requires a plan of operations by directing a mining operator to submit a notice of intent to operate when the proposed operation might cause a disturbance to surface resources. After a notice of intent is submitted, the District Ranger determines whether the proposed operations will likely cause a significant disturbance of surface resources. If the determination is that the proposal will likely cause a significant disturbance of surface resources, the operator is notified that a plan of operations is required.

Prior notice and opportunity for public comment is not required to promulgate technical amendments to a regulation. Moreover, even if the changes to 36 CFR 228.4(a) adopted herein were not technical amendments to that provision, the Administrative Procedure Act (the “APA”) allows agencies to promulgate rules without notice and comment when an agency, for good cause, finds that notice and public comment are “impracticable, unnecessary, or contrary to the public interest.” (5 U.S.C. 553(b)(3)(B)). Furthermore, the APA exempts certain rulemakings from its notice and comment requirements, including rulemakings involving “public property” (5 U.S.C. 553(a)(2)).

In 1971, Secretary of Agriculture Hardin announced a voluntary partial waiver from the APA notice and comment rulemaking exemptions. (July 24, 1971; 36 FR 13804). Thus, USDA agencies proposing rules generally provide notice and an opportunity for public comment on proposed rules. However, the Hardin policy permits agencies to publish final rules without prior notice and opportunity for public comment when an agency finds for good cause that notice and comment procedures would be impracticable, unnecessary, or contrary to the public interest. The courts have recognized this good cause exception of the Hardin policy and have indicated that since the publication requirement was adopted voluntarily, the Secretary should be afforded “more latitude” in making a good cause determination. See Alcaraz v. Block , 746 F.2d 593, 612 (9th Cir. 1984).

To the extent that 5 U.S.C. 553 applies to this interim rule, good cause exists to exempt this rulemaking from advance notice and comment. (5 U.S.C. 553(b)(B) and 553(d)(3)). There has been widespread dissemination of the district court decision among groups of small miners who have long objected to obtaining prior approval for their mining operations, and who frequently believe that mining operations invariably justify residential occupancy of NFS lands. This, coupled with the fact that the season for locatable mineral operations has already begun in many areas of the country due to favorable weather conditions, including unusually low snow pack levels in much of the west, has resulted in the initiation of many mining operations on NFS lands for which a notice of intent to operate or a plan of operations has always been required without the submission of a notice of intent to operate or the approval of a plan of operations. Consequently, many operations are already ongoing and a much larger number are imminent which will unnecessarily and unjustifiably adversely impact NFS lands and resources, including water quality, visual quality, natural features and species listed under the Endangered Species Act. The only means by which such significant adverse environmental effects can be avoided during this field season for locatable mineral operations is to promulgate the amended rule immediately. Under these circumstances, the Department has determined that prior notice and opportunity for public comment are not practicable and are contrary to the public interest.

Comments received on this interim rule will be considered in adoption of a final rule, notice of which will be published in the Federal Register . The final rule will include a response to comments received and identify any revisions made to the rule as a result of the comments.

This interim rule has been reviewed under USDA procedures and Executive Order 12866 on Regulatory Planning and Review. It has been determined that this interim rule is not significant. It will not have an annual effect of $100 million or more on the economy nor adversely affect productivity, competition, jobs, the environment, public health or safety, nor State or local governments. This interim rule would not interfere with an action taken or planned by another agency nor raise new legal or policy issues. Finally, this action will not alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients of such programs.

Moreover, this interim rule has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), and it has been determined that this action will not have a significant economic impact on a substantial number of small entities as defined by that act. Therefore, a regulatory flexibility analysis is not required.

This interim rule more clearly establishes the criteria for determining when a notice of intent to operate or a plan of operations should be submitted by the operator. Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43168; September 18, 1992) excludes from documentation in an environmental assessment or impact statement “rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instruction.” This interim rule clearly falls within this category of actions and no extraordinary circumstances exist which would require preparation of an environmental assessment or an environmental impact statement.

This interim rule has been reviewed under Executive Order 13211 of May 18, 2001, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” It has been determined that this interim rule does not constitute a significant energy action as defined in the Executive Order.

This interim rule does not contain any new record keeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) and its implementing regulations at 5 CFR part 1320 do not apply.

The agency has considered this interim rule under the requirements of Executive Order 13132, Federalism, and Executive Order 12875, Government Partnerships. The agency has made a preliminary assessment that the interim rule conforms with the federalism principles set out in these Executive orders; would not impose any compliance costs on the States; and would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Based on comments received on this interim rule, the agency will consider if any additional consultations will be needed with the State and local governments prior to adopting a final rule.

This interim rule does not have tribal implications as defined by Executive Order 13175, Consultation and Coordination With Indian Tribal Governments, and, therefore, advance consultation with tribes is not required.

This interim rule has been analyzed in accordance with the principles and criteria contained in Executive Order 12630. It has been determined that the interim rule does not pose the risk of a taking of private property.

This interim rule has been reviewed under Executive Order 12988 on civil justice reform. If this interim rule were adopted, (1) all State and local laws and regulations that are in conflict with this interim proposed rule or that impedes its full implementation would be preempted; (2) no retroactive effect would be given to this interim proposed rule; and (3) it would not require administrative proceedings before parties may file suit in court challenging its provisions.

Pursuant to title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), which the President signed into law on March 22, 1995, the agency has assessed the effects of this interim rule on State, local, and tribal governments and the private sector. This interim rule would not compel the expenditure of $100 million or more by any State, local, or tribal government or anyone in the private sector. Therefore, a statement under section 202 of the act would not be required.

Throughout this document, “we,” “us” and “our” refer to EPA.

The Hawaii Department of Health (HDH) submitted a revision to their air quality surveillance network for particulate matter of 10 microns or less (PM-10).

The air quality surveillance network was submitted on August 21, 1980 and approved in the Federal Register on August 10, 1981.

In accordance with 40 CFR parts 51 and 58, States are required to submit a plan that provides for the establishment of an air quality surveillance system. The system must consist of a network of monitoring stations designated as State and Local Air Monitoring Stations (SLAMS) and National Air Monitoring Stations (NAMS) which measure ambient concentrations of pollutants for which standards have been established. The HDH revised their air quality surveillance network for particulate to accommodate the PM-10 provisions. The ambient particulate samplers were converted to the EPA-approved ambient PM-10 samplers on July 1, 1989 for the SLAMS and on July 1, 1988 for the NAMS. The HDH also committed to keep the descriptions of these networks updated and available to the public.

This revision updates the State's air quality surveillance network to include PM-10. The network must meet the requirements of 40 CFR parts 51 and 58.

This revision is consistent with the relevant policy and guidance regarding air quality surveillance networks.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted plan revision because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted plan revision. If we receive adverse comments by August 9, 2004, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on September 7, 2004. This will incorporate these rules into the federally enforceable SIP.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 7, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

This is a synopsis of the Commission's Report and Order, MB Docket No. 04-78, adopted June 18, 2004, and released June 30, 2004. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., CY-B402, Washington, DC, 20554, telephone (202) 863-2893, facsimile (202) 863-2898, or via e-mail qualexint@aol.com . The Commission will send a copy of this Report and Order in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, see 5 U.S./c,801(a)(1)(A).

The reef fish fishery of the Gulf of Mexico is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. Those regulations set the commercial quota for deep-water grouper in the Gulf of Mexico at 1.02 million lb (463,636 kg) for the current fishing year, January 1 through December 31, 2004.

Under 50 CFR 622.43(a), NMFS is required to close the commercial fishery for a species or species group when the quota for that species or species group is reached, or is projected to be reached, by filing a notification to that effect in the Federal Register . Based on current statistics, NMFS has determined that the available commercial quota of 1.02 million lb (463,636 kg) for deep-water grouper will be reached on or before July 15, 2004. Accordingly, NMFS is closing the commercial deep-water grouper fishery in the Gulf of Mexico EEZ from 12:01 a.m., local time, on July 15, 2004, until 12:01 a.m., local time, on January 1, 2005. The operator of a vessel with a valid reef fish permit having deep-water grouper aboard must have landed and bartered, traded, or sold such deep-water grouper prior to 12:01 a.m., local time, July 15, 2004.

During the closure, the bag and possession limits specified in 50 CFR 622.39(b) apply to the harvest or possession of deep-water grouper in or from the Gulf of Mexico EEZ, and the sale or purchase of deep-water grouper taken from the EEZ is prohibited. The prohibition on sale or purchase does not apply to sale or purchase of deep-water grouper that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, July 15, 2004, and were held in cold storage by a dealer or processor.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to close the fishery constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(3)(B), as such procedures would be unnecessary and contrary to the public interest. Similarly, there is a need to implement these measures in a timely fashion to prevent an overrun of the commercial quota of Gulf deep-water grouper, given the capacity of the fishing fleet to harvest the quota quickly. Any delay in implementing this action would be impractical and contrary to the Magnuson-Steven Act, the FMP, and the public interest. NMFS finds for good cause that the implementation of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is waived.

This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866.