In a final rule published in the Federal Register on November 30, 2004 (69 FR 69747-69774, Docket No. 03-022-5), and effective on January 31, 2005, we amended the fruits and vegetable regulations in 7 CFR part 319 to expand the number of States in which fresh Hass avocado fruit grown in approved orchards in approved municipalities in Michoacan, Mexico, may be distributed and to allow the distribution of the avocados during all months of the year.

In the rule portion of the final rule, it was our intention to amend paragraph (a) of § 319.56-2ff by revising paragraph (a)(2) and by removing paragraph (a)(3). These changes were discussed in the SUPPLEMENTARY INFORMATION section of the final rule, and the text of revised (a)(2) was presented in the rule portion of the final rule along with the other changes made to § 319.56-2ff. However, we inadvertently failed to include a specific amendatory instruction directing the revision of paragraph (a)(2) and the removal of paragraph (a)(3). This document corrects that error.

This final rule is issued under Marketing Agreement and Order No. 923 (7 CFR part 923) regulating the handling of sweet cherries grown in designated counties in Washington, 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 final 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 final rule establishes a minimum size requirement of 11-row size ( 61/64 -inch diameter) and a minimum maturity requirement of 17 percent soluble solids for all lightly colored sweet cherry varieties shipped to fresh markets. Previously, Rainier variety cherries were the only lightly colored sweet cherries under these requirements. This rule establishes the same requirements for all other varieties of lightly colored sweet cherries as are established for Rainier variety cherries.

Section 923.52 of the order authorizes the establishment of grade, size, quality, maturity, pack, and container regulations for any variety or varieties of cherries grown in the production area. Section 923.53 further authorizes the modification, suspension, or termination of regulations issued under § 923.52. Section 923.55 provides that whenever cherries are regulated pursuant to § 923.52 or § 923.53, such cherries must be inspected by the Federal-State Inspection Service, and certified as meeting the applicable requirements of such regulations.

On May 18, 2004, the Committee recommended, by a nine to four vote, the establishment of a minimum size requirement of 11-row size ( 61/64 -inch diameter) and a minimum maturity requirement of 17 percent soluble solids for all lightly colored sweet cherry varieties shipped to fresh markets under the order. The Committee recommended the requirement become effective on April 1, 2005, which is the beginning of the 2005-2006 marketing season.

Supporters of the recommendation believe that this regulation is in the best interests of producers and consumers. Growing lightly colored sweet cherries for the fresh market is more labor intensive and costly than producing dark colored varieties. Trees that produce lightly colored sweet cherries need to be pruned more heavily than the trees that produce dark colored sweet cherries to ensure acceptable size fruit. The lightly colored sweet varieties are fragile and susceptible to damage during handling with most lightly colored sweet cherries being sorted and packed by hand. Producers need to offer a quality product in order to recoup the higher production costs. The sale of small, immature or poor quality cherries results in buyer dissatisfaction, which reduces repeat purchases and damages the market for all lightly colored sweet cherries.

Supporters of the recommendation believe that the requirements currently in place for Rainier variety cherries (59 FR 31917, June 21, 1994) have benefited producers. Concern was also expressed that the non-regulation of new varieties of lightly colored sweet cherries would have an adverse effect in the future on the marketing of Rainier variety cherries if the newer varieties are not regulated in the same manner. It is difficult to distinguish between the different varieties of lightly colored cherries and this can result in confusion in the marketplace.

Those opposed to the recommendation believe that the tonnage of the newer lightly colored sweet cherry varieties is not enough to impact the Rainier market at this time. They believe that the regulation of all lightly colored sweet cherries will reduce the volume of such cherries on the market and reduce overall returns on the crop. Some believe that the additional cost of inspection will increase costs with little added return to the producer.

The Committee estimates that there were less than 500 tons of lightly colored sweet cherry varieties other than the Rainier variety marketed during the 2004 marketing season. By comparison, there were 8,080 tons (Committee records) of Rainier cherries marketed from the production area in 2004.

This rule adds a new provision to § 923.322 to establish a minimum size requirement of 61/64 -inch in diameter for all lightly colored sweet cherries which corresponds to the 11-row size. To provide for variances in packing, a tolerance of 10 percent is provided for undersized lightly colored sweet cherries. Further, the regulation provides that not more than 5 percent of lightly colored sweet cherries in any lot can be less than 57/64 -inch in diameter, or 11 1/2 -row size. These tolerances are identical to those in effect for Rainier cherries and comparable to those in effect for dark colored sweet cherry varieties.

Section 923.322 is also revised to include a requirement that any lot of lightly colored sweet cherries must contain a minimum of 17 percent soluble solids. The percentage of soluble solids will be determined by using a refractometer to measure the sugar level in a composite sample of cherries. This maturity test can be taken prior to packing, at the time of packing, or at time of shipment, provided that individual lots shall not be combined with other lots to meet soluble solids requirements.

This rule also changes the heading of § 923.322 from “Washington Cherry Regulation 22” to “Washington Cherry Handling Regulation” to more accurately describe the requirements contained therein.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final 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 the 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 1,800 producers of sweet cherries grown in designated counties in Washington. In addition, there are approximately 69 handlers subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.

Based on a three-year (2001-2003) average fresh cherry production of 79,763 tons (Committee records), a three-year average producer price of $1,390 per ton as reported by the National Agricultural Statistics Service, USDA, and 1,800 Washington cherry producers, the average annual producer revenue is approximately $61,595. In addition, based on Committee records and an average 2003 f.o.b. price of $28.00 per 20-pound container as reported by AMS Market News, approximately 75 percent of the Washington sweet cherry handlers ship under $5,000,000 worth of cherries. Based on this information, the majority of Washington sweet cherry producers and handlers may be classified as small entities.

This final rule establishes a minimum size requirement of 11-row size ( 61/64 -inch diameter) and a minimum maturity requirement of 17 percent soluble solids for all lightly colored sweet cherry varieties shipped to fresh markets. Previously, Rainier variety cherries were the only lightly colored sweet cherries under these requirements.

Rainier and other lightly colored sweet cherry varieties are typically marketed from mid-June through July. AMS Market News data shows that prices are the highest for the earliest offerings of these cherries, and that such prices decline as the season progresses. In 2003, for example, the opening f.o.b. price on June 23 ranged from $45.00 to $45.50 per carton. This declined to $35.00 to $36.50 a week later, and f.o.b. prices were $38.00 to $40.50 per carton at season's end for similar quality and sizes. This price trend serves as an incentive for producers to harvest early, which has resulted in immature and poor quality lightly colored sweet cherries being marketed.

The Committee reports that cherry size and quality are important to buyers. Consistency and dependability are equally important. Shipments of immature, low quality, under-sized lightly colored sweet cherries in recent seasons have disappointed buyers and consumers. This reduces repeat purchases and results in declines in prices and overall sales volumes.

Cherry size is related to maturity and other quality factors. That is, larger sized cherries tend to be sweeter and of higher overall quality. This is supported by prices received for different sizes of Bing (dark colored) cherries. AMS Market News data show that f.o.b. prices for 12 row sized Bing cherries ( 54/64 -inch diameter) averaged about $18.00 per carton in mid-June 2003. At the same time, 10 1/2 row sized (1-inch diameter) Bing cherries were selling for $24.50 to $26.50 per carton. This price relationship held steady throughout the season. Further, the Committee has conducted research showing that larger sizes correlate with higher maturity levels, and that larger sizes are preferred by cherry consumers. While research results and prices by size specifically for Rainier or other lightly colored sweet cherry varieties are currently unavailable, industry consensus is that the same relationships are true for Rainier and other lightly colored sweet cherries, and Bings.

The Committee discussed alternatives to this rule, including not establishing a minimum size and maturity requirement. The general consensus of the industry is that mandatory size and quality requirements are needed to ensure product quality and to encourage repeat purchases. Previous voluntary standards for lightly colored sweet cherries such as Rainier variety cherries have not been successful.

This final rule will establish a minimum size requirement of 11-row size ( 61/64 -inch diameter) and a minimum maturity requirement of 17 percent soluble solids for lightly colored sweet cherry varieties shipped to fresh markets. Accordingly, this action will not impose any additional reporting or recordkeeping requirements on either small or large sweet cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplications by industry and public sector agencies.

As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this final rule. Further, the public comments received concerning the proposal did not address the initial regulatory flexibility analysis.

In addition, the Committee's meeting was widely publicized throughout the Washington sweet cherry industry and all interested persons were invited to attend and participate in the Committee's deliberations on all issues. Like all Committee meetings, the May 18, 2004, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

A proposed rule concerning this action was published in the Federal Register on November 3, 2004 (69 FR 63958). Copies of the rule were mailed or sent via facsimile to all Committee members. Finally, the rule was made available through the Internet by USDA and the Office of the Federal Register. A 60-day comment period ending January 3, 2005, was provided to allow interested persons to respond to the proposal.

Two comments were received during the comment period in response to the proposal. One commenter opposed the proposed requirements indicating that regulation was overly restrictive. The second commenter was of the view that cherries should not be regulated by size at all.

We disagree with the commenters. Implementation of a minimum size of 61/64 -inch diameter and a 17 percent soluble solids requirement for all varieties of lightly colored cherries should help enhance their quality and image. With such a minimum size and maturity, the Committee believes that consumers will purchase more cherries, thereby increasing sales and improving returns to producers.

Accordingly, based on the comments received, no changes will be made to the rule as proposed.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ama.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.

After consideration of all relevant matter presented, including the information and recommendation submitted by the Committee, 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.

This rule is issued under Marketing Agreement and Order No. 984, both as amended (7 CFR part 984), regulating the handling of walnuts 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.”

USDA is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California walnut handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable walnuts beginning on August 1, 2004, and continue until amended, suspended, or terminated. 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 continues in effect the action that decreased the assessment rate established for the Board for the 2004-05 and subsequent marketing years from $0.0101 to $0.0094 per kernelweight pound of assessable walnuts.

The order provides authority for the Board, with the approval of the USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Board are producers and handlers of California walnuts. They are familiar with the Board's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2003-04 and subsequent marketing years, the Board recommended, and USDA approved, an assessment rate of $0.0101 per kernelweight pound of assessable walnuts that would continue in effect from year to year unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Board or other information available to USDA.

The Board met on September 10, 2004, and unanimously recommended 2004-05 expenditures of $2,749,500 and an assessment rate of $0.0094 per kernelweight pound of assessable walnuts. In comparison, last year's budgeted expenditures were $2,863,350. The assessment rate of $0.0094 is $0.0007 lower than the $0.0101 rate previously in effect. The lower assessment rate is necessary because this year's crop is estimated by the California Agricultural Statistics Service (CASS) to be 325,000 tons (292,500,000 kernelweight pounds merchantable), and the budget is about 4 percent less than last year's budget. Sufficient income should be generated at the lower rate for the Board to meet its anticipated expenses.

Major categories in the budget recommended by the Board for 2004-05 include $2,037,500 for research and marketing programs ($1,393,500 for market research and development, $550,000 for production research, and $94,000 to the California Agricultural Statistics Service for a crop estimate), $332,000 for employee expenses (administrative and office salaries, payroll taxes, workers compensation, and other employee benefits), $97,000 for office expenses (rent, office supplies, telephone, fax, postage, printing, equipment maintenance, and furniture), $96,000 for other operating expenses (management travel, field travel, insurance, and financial audits), $5,000 for controlled (compliance check) purchases, $75,000 for a production research director, and $107,000 as a reserve for contingency. Budgeted expenses for these items in 2003-04 were $2,438,000, $334,625, $83,000, $82,000, $5,000, $73,000, and $15,725, respectively.

The assessment rate recommended by the Board was derived by dividing anticipated expenses by expected shipments of California walnuts certified as merchantable. Merchantable shipments for the year are estimated at 292,500,000 kernelweight pounds which should provide $2,749,500 in assessment income and allow the Board to cover its expenses. Unexpended funds may be used temporarily to defray expenses of the subsequent marketing year, but must be made available to the handlers from whom collected within 5 months after the end of the year according to § 984.69.

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and other information submitted by the Board or other available information.

Although this assessment rate is effective for an indefinite period, the Board will continue to meet prior to or during each marketing year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Board meetings are available from the Board or USDA. Board meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Board recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Board's 2004-05 budget and those for subsequent marketing years will be reviewed and, as appropriate, approved by USDA.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final 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 the 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 5,800 producers of walnuts in the production area and about 43 handlers subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those having annual receipts of less than $5,000,000.

Current industry information shows that 14 of the 43 handlers (32.5 percent) shipped over $5,000,000 of merchantable walnuts and could be considered large handlers by the Small Business Administration. Twenty-nine of the 43 walnut handlers (67.5 percent) shipped under $5,000,000 of merchantable walnuts and could be considered small handlers. An estimated 58 walnut producers, or about 1 percent of the 5,800 total producers, would be considered large producers with annual incomes over $750,000. Based on the foregoing, it can be concluded that the majority of California walnut handlers and producers may be classified as small entities.

This rule continues in effect the action that decreased the assessment rate established for the Board and collected from handlers for the 2004-05 and subsequent marketing years from $0.0101 to $0.0094 per kernelweight pound of assessable walnuts. The Board unanimously recommended 2004-05 expenditures of $2,749,500. The decreased assessment rate should generate sufficient income to meet the Board's 2004-05 anticipated expenses. The lower assessment rate is primarily due to a lower budget and based on an estimated crop of 325,000 tons for the year (292,500,000 kernelweight pounds estimated merchantable).

Major categories in the budget recommended by the Board for 2004-05 include $2,037,500 for research and marketing programs ($1,393,500 for market research and development, $550,000 for production research, and $94,000 to the California Agricultural Statistics Service for a crop estimate), $332,000 for employee expenses (administrative and office salaries, payroll taxes, workers compensation, and other employees benefits), $97,000 for office expenses (rent, office supplies, telephone, fax, postage, printing, equipment maintenance, and furniture), $96,000 for other operating expenses (management travel, field travel, Board expenses, insurance, and financial audits), $5,000 for controlled (compliance check) purchases, $75,000 for a production research director, and $107,000 as a reserve for contingency. Budgeted expenses for these items in 2003-04 were $2,438,000, $334,625, $83,000, $82,000, $5,000, $73,000, and $15,725, respectively.

Prior to arriving at this budget, the Board considered information from various sources, such as the Board's Budget and Personnel Committee, Research Committee, and Marketing Development Committee. Alternative expenditure levels were discussed by these groups based upon the relative value of various research projects to the walnut industry. The recommended $0.0094 per kernelweight pound assessment rate was then determined by dividing the total recommended budget by the 292,500,000 kernelweight pound estimate of assessable walnuts for the year. Unexpended funds may be used temporarily to defray expenses of the subsequent marketing year, but must be made available to the handlers from whom collected within 5 months after the end of the year according to § 984.69.

A review of historical information and preliminary information pertaining to the current marketing year indicates that the grower price for 2004-05 could range between $0.50 and $0.70 per kernelweight pound of assessable walnuts. Therefore, the estimated assessment revenue for the 2004-05 marketing year as a percentage of total grower revenue could range between 1.3 and 1.9 percent.

This action continues in effect the action that decreased the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In addition, the Board's meeting was widely publicized throughout the walnut industry and all interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, the September 10, 2004, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

This action imposes no additional reporting or recordkeeping requirements on either small or large California walnut handlers. 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.

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

An interim final rule concerning this action was published in the Federal Register on October 29, 2004 (69 FR 63043). Copies of that rule were also mailed or sent via facsimile to all walnut handlers. Finally, the interim final rule was made available through the Internet by USDA and the Office of the Federal Register. A 60-day comment period was provided for interested persons to respond to the interim final rule. The comment period ended on December 28, 2004, and one comment was received.

The commenter believes that the Board and this marketing order program should be terminated in favor of a free market system. However, the Act authorizes this marketing order program. Further, this comment does not relate to the Board's assessment rate decrease. Thus, no changes are being made based on the comment submitted.

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.

After consideration of all relevant material presented, including the information and recommendation submitted by the Board 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.

The Office of Management and Budget has waived the review process required by Executive Order 12866 for this action.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect.

Section 11 of the Act provides that nothing in the Act may be construed to preempt or supersede any other program relating to beef promotion organized and operated under the laws of the United States or any State. There are no administrative proceedings that must be exhausted prior to any judicial challenge to the provisions of this rule.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA) (5 United States Code (U.S.C.) 601 et seq. ).

The Administrator of AMS has considered the economic effect of this action on small entities and has determined that this final rule will not have a significant economic impact on a substantial number of small entities. The purpose of RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly burdened.

In the January 30, 2004, issue of “Cattle,” USDA's National Agricultural Statistics Service (NASS) estimates that in 2004 the number of cattle operations in the United States totaled about 1.1 million. The majority of these operations subject to the Order, 7 CFR 1260.101 et seq., are considered small businesses under the criteria established by the Small Business Administration.

This final rule imposes no new burden on the industry. It only adjusts representation on the Board, established under the Act, to reflect changes in domestic cattle inventory and cattle and beef imports. The adjustments are required by the Order and will result in a decrease in Board membership from 108 to 104.

The Board was initially appointed August 4, 1986, pursuant to the provisions of the Act (7 U.S.C. 2901 et seq. ) and the Order issued thereunder. Domestic representation on the Board is based on cattle inventory numbers, and importer representation is based on the conversion of the volume of imported cattle, beef, or beef products into live animal equivalencies.

Section 1260.141(b) of the Order provides that the Board shall be composed of cattle producers and importers appointed by the Secretary of Agriculture from nominations submitted by certified producer and importer organizations. A producer may only be nominated to represent the unit in which that producer is a resident.

Section 1260.141(c) of the Order provides that at least every 3 years and not more than every 2 years, the Board shall review the geographic distribution of cattle inventories throughout the United States and the volume of imported cattle, beef, and beef products and, if warranted, shall reapportion units and/or modify the number of Board members from units in order to reflect the geographic distribution of cattle production volume in the United States and the volume of cattle, beef, or beef products imported into the United States.

Section 1260.141(d) of the Order authorizes the Board to recommend to USDA modifications in the number of cattle per unit necessary for representation on the Board.

Section 1260.141(e)(1) provides that each geographic unit or State that includes a total cattle inventory equal to or greater than 500,000 head of cattle shall be entitled to one representative on the Board. Section 1260.141(e)(2) provides that States that do not have total cattle inventories equal to or greater than 500,000 head shall be grouped, to the extent practicable, into geographically-contiguous units, each of which have a combined total inventory of not less than 500,000 head. Such grouped units are entitled to at least one representative on the Board. Each unit that has an additional one million head of cattle within a unit qualifies for additional representation on the Board as provided in § 1260.141(e)(4). As provided in § 1260.141(e)(3), importers are represented by a single unit, with the number of Board members based on a conversion of the total volume of imported cattle, beef, or beef products into live animal equivalencies.

The initial Board appointed in 1986, was composed of 113 members. Reapportionment based on a 3-year average of cattle inventory numbers and import data, reduced the Board to 111 members in 1990, and 107 members in 1993, before the Board was increased to 111 members in 1996. The Board was decreased to 110 members in 1999, 108 members in 2001, and will be decreased to 104 members with appointments for terms effective early in 2006.

The current Board representation by States or units has been based on an average of the January 1, 1999, 2000, and 2001, inventory of cattle in the various States as reported by NASS of USDA. Current importer representation has been based on a combined total average of the 1998, 1999, and 2000, live cattle imports as published by the Foreign Agricultural Service of USDA and the average of the 1998, 1999, and 2000, live animal equivalents for imported beef products.

Recommendations concerning Board reapportionment were approved by the Board at its June 24, 2004, meeting. In considering reapportionment, the Board reviewed cattle inventories as well as cattle, beef, and beef product import data for the period January 1, 2002, to January 1, 2004. The Board recommended that a 3-year average of cattle inventories and import numbers should be continued. The Board determined that an average of the January 1, 2002, 2003, and 2004, USDA cattle inventory numbers would best reflect the number of cattle in each State or unit since publication of the 2001 reapportionment rule.

The Board reviewed the February 24, 2004, USDA's Economic Research Service circular, “Livestock, Dairy, and Poultry Outlook,” to determine proper importer representation. The Board recommended the use of a combined total of the average of the 2001, 2002, and 2003, cattle import data and the average of the 2001, 2002, and 2003, live animal equivalents for imported beef products. The method used to calculate the total number of live cattle equivalents was the same as that used in the previous reapportionment of the Board. The recommendation for importer representation is based on the most recent 3-year average of data available to the Board at its June 24, 2004, meeting to be consistent with the procedures used for domestic representation.

On November 12, 2004, AMS published in the Federal Register (69 FR 65386) for public comment a proposed rule providing for the adjustment in Board membership. That comment period ended December 13, 2004. USDA received one comment from an interested party in a timely manner. The comment has been posted on AMS' Web site at: http://www.ams.usda.gov/lsg/mpb/bfcomments.htm.

The commenter supported a readjustment of Board membership, but suggested that alternating representation including consumers and others be included on the Board. However, the Act and Order provide that the Board shall be composed of cattle producers and importers appointed by the Secretary of Agriculture from nominations submitted by certified producer organizations. Consequently, this comment is not adopted.

Therefore, the reapportionment of the Board in this final rule is unchanged from the proposed rule. This final rule decreases the number of representatives on the Board from 108 to 104. Four States—Minnesota, Montana, Nebraska, and Wyoming—lose one member each. The States and units affected by the reapportionment plan and the current and revised member representation per unit are as follows:

Board representation for the entire 40 units is shown in the revised § 1260.141(a) contained herein.

The 2004, nomination and appointment process was in progress while the Board was developing its recommendations. Thus, the Board reapportionment as provided for under the rulemaking will be effective with 2005, nominations and appointments that will be effective early in the year 2006.

Pursuant to 5 U.S.C. 553, it is found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register. This action adjusts representation on the Board. By establishing this final rule, as provided herein, USDA will be able to make appointments effective early in the year 2006 based upon this reapportionment.

Section 642(b) of the 2004 Act (Pub. L. 108-357) requires that the regulations to implement Title VI of the 2004 Act are to be promulgated without regard to the notice and comment provisions of 5 U.S.C. 553 or the Statement of Policy of the Secretary of Agriculture effective July 24, 1971, (36 FR 13804) relating to notice and comment rulemaking and public participation in rulemaking. These regulations are thus issued as final.

Sections 611 through 613 of the 2004 Act repeal the marketing quota and acreage allotment (marketing quota) and price support loan programs for tobacco that are authorized by Title III of the Agricultural Adjustment Act of 1938 (the 1938 Act), and the Agricultural Act of 1949 (the 1949 Act), effective at the end of the 2004 marketing year established for the respective kinds of tobacco that are subject to such quotas. The regulations used to administer the marketing quota program are codified at 7 CFR part 723 and the price support loan program regulations are codified at 7 CFR part 1464.

Sections 622 and 623 of the 2004 Act provide that eligible quota holders and tobacco producers will receive payments under the Tobacco Transition Payment Program (TTPP) in 10 equal installments in each of the 2005 through 2014 fiscal years. The regulations used to administer payments made under this program will be set forth in a separate rule.

Sections 625 through 627 of the 2004 Act provide for the establishment of assessments on certain domestic manufacturers and importers of tobacco products in order to fund the 10-year TTPP. The funds to be expended under this program are to be derived from a trust fund established by the 2004 Act. The trust fund is also to be used to pay for losses the Commodity Credit Corporation (CCC) incurs in disposing of tobacco it had acquired under the price support loan program and for costs that CCC may incur by using private financial institutions in carrying out portions of the program. To fund the trust, section 625(b)(1) of the 2004 Act requires that “each tobacco product manufacturer and tobacco product importer that sells tobacco products in domestic commerce in the United States” be subject to this assessment. The manner in which the assessments are to be levied is specified by the 2004 Act. Notably, assessments are levied on “each tobacco product manufacturer and tobacco product importer;” accordingly, no assessment is levied on an entity that imports, or sells domestically only un-manufactured tobacco.

Assessments are imposed during each of the fiscal years (FY) 2005 through 2014. The amount of such annual assessment is to be sufficient to cover the payments made to tobacco quota holders and tobacco producers and to cover other approved expenses made in that calendar year. For 2005, the percentage of these assessments to be collected from each such sector is as follows:

1. Cigarette manufacturers and importers—96.331 percent.

2. Cigar manufacturers and importers—2.783 percent.

3. Snuff manufacturers and importers—0.539 percent.

4. Roll-your-own tobacco manufacturers and importers—0.171 percent.

5. Chewing tobacco manufacturers and importers—0.111 percent.

6. Pipe tobacco manufacturers and importers—0.066 percent.

These percentages were established under section 625 of the 2004 Act by using calendar year 2003 data. The allocations by class for fiscal year 2005 were calculated by multiplying net tobacco products removed (both domestic and imported) by the maximum excise tax rate for each class of tobacco (see table 1 below).

The FAA proposed to amend 14 CFR part 39 with a proposed airworthiness directive (AD). The proposed AD applies to RRD Model Tay 611-8, 620-15, 650-15, and 651-54 turbofan engines, with LP fuel tube, P/N JR33021A, installed. We published the proposed AD in the Federal Register on June 9, 2004 (69 FR 32285). That action proposed to require initial and repetitive inspections of LP fuel tubes, and replacement of the fuel tube with a new design tube as mandatory terminating action to the repetitive inspections. That proposed action results from the manufacturer introducing a new design fuel tube, which eliminates the unsafe condition.

Paragraph (g) of the current AD, AD 2003-05-04, contains a paragraph pertaining to special flight permits. Even though this final rule does not contain a similar paragraph, we have made no changes with regard to the use of special flight permits to operate the airplane to a repair facility to do the work required by this AD. In July 2002, we published a new part 39 that contains a general authority regarding special flight permits and airworthiness directives; see Docket No. FAA-2004-8460, Amendment 39-9474 (69 FR 47998, July 22, 2002). Thus, when we now supersede ADs we will not include a specific paragraph on special flight permits unless we want to limit the use of that general authority granted in section 39.23.

You may examine the AD Docket (including any comments and service information), by appointment, between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. See ADDRESSES for the location.

We provided the public the opportunity to participate in the development of this AD. We received no comments on the proposal 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.

There are about 1,300 RRD Model Tay 611-8, 620-15, 650-15, and 651-54 turbofan engines of the affected design in the worldwide fleet. We estimate that 1,206 engines installed on airplanes of U.S. registry would be affected by this AD. We also estimate that it will take about two work hours per engine to perform the tube inspection, and two work hours per engine to perform the tube replacement. The average labor rate is $65 per work hour. Required parts will cost about $1,300 per engine. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $1,720,000.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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 this AD:

(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.

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. 2002-NE-37-AD” in your request.

A proposal to amend 14 CFR part 39 to include an AD for the Bell Model 407 helicopters was published in the Federal Register on August 4, 2004 (69 FR 47041). That action proposed to require, before further flight, creating a component history card or equivalent record for each crosstube assembly, converting accumulated run-on landings to an accumulated RIN count, and establishing a retirement life of 5,000 accumulated RIN for the affected crosstube assemblies.

Transport Canada, the airworthiness authority for Canada, notified the FAA that an unsafe condition may exist on Bell Model 407 helicopters. Transport Canada advises that run-on landings impose high stress on landing gear crosstubes, and to prevent possible crosstube failure, the manufacturer has introduced the life limitation of 5,000 RIN. Further evaluation has confirmed the possibility that an extensive training environment with run-on landings may impose high stress on crosstubes. The same condition may result from repetitive landings with forward travel with rotorcraft weight on the skids.

Bell has issued Alert Service Bulletin No. 407-03-59, dated October 15, 2003, which specifies assigning a RIN count to forward and aft crosstube assemblies on Model 407 helicopters. Transport Canada classified this alert service bulletin as mandatory and issued AD No. CF-2004-03, dated February 11, 2004, to ensure the continued airworthiness of these helicopters in Canada.

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

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on 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 this AD will affect 319 helicopters of U.S. registry and it will take approximately 4 work hours per helicopter to replace the forward and aft crosstube assemblies at an average labor rate of $65 per work hour. Required parts will cost approximately $6,670 per helicopter for both forward and aft low gear crosstube assemblies, or $8,450 per helicopter for both forward and aft high gear crosstube assemblies. Based on these figures, the total cost impact of this AD on U.S. operators is estimated to be $2,210,670 to replace the low gear crosstube assemblies on the entire fleet or $2,778,490 to replace the high-gear crosstube assemblies on the entire fleet and assuming the costs associated with creating and updating the historical component card are negligible.

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 economic 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 FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

On December 27, 2004, FAA issued AD 2005-01-04, Amendment 39-13928 (70 FR 1169, January 6, 2005), which applies to certain Raytheon Aircraft Company 90, 99, 100, 200, and 300 series airplanes. That AD requires you to check the airplane maintenance records from January 1, 1994, up to and including the effective date of that AD, for any MIL-H-6000B fuel hose replacements on the affected airplanes.

On January 20, 2005, FAA made corrections to that AD through Federal Register publication (70 FR 3871). That AD correction changed the model number C90B in the applicability section to C90A.

For clarity purposes, FAA is incorporating the original AD publication and the correction into one document to help eliminate any confusion. Consequently, we are re-issuing the AD in its entirety.

This amendment to 14 CFR part 71 modifies the Class E airspace area extending upward from 700 feet above the surface at Nevada, MO. An examination of controlled airspace for Nevada, MO revealed the Nevada Municipal Airport ARP used in the legal description is incorrect, the location of the Nevada NDB is erroneous and extensions to the airspace area do not comply with airspace requirements as set forth in FAA Orders 7400.2E, Procedures for Handling Airspace Matters and 8260.19C, Flight Procedures and Airspace. This action decreases the length of the current northeast extension from 7.5 miles to 7 miles, decreases the width of this extension from 2.6 miles to 2.5 miles either side of centerline and defines the extension in relation to the Nevada NDB. This action also creates an additional northeast extension 2 miles either side of 025° bearing from the airport extending from the 6.6-mile radius to 9.5 miles northeast of the airport, corrects the ARP and location of the Nevada NDB in the legal description and brings the legal description of the airspace area into compliance with FAA Orders 7400.2E and 8260.19C. This area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9M, Airspace Designations and Reporting Points, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. Unless a written adverse or negative comment or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2005-20062/Airspace Docket No. 05-ACE-4.” The postcard will be date/time stamped and returned to the commenter.

The regulations adopted herein will not have 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 government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(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) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This rulemaking is promulgated under the authority described in subtitle VII, part a, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority since it contains aircraft executing instrument approach procedures to Nevada Municipal Airport.

This amendment to 14 CFR Part 71 modifies the Class E airspace area extending upward from 700 feet above the surface at Ozark, MO. An examination of controlled airspace for Ozark, MO revealed the Class E area does not comply with airspace requirements for diverse departures from Air Park South Airport as set forth in FAA Order 7400.2E, Procedures for Handling Airspace Matters. The criteria in FAA Order 7400.2E for an aircraft to reach 1200 feet AGL, taking into consideration rising terrain, is based on a standard climb gradient of 200 feet per mile plus the distance from the airport reference point to the end of the outermost runway. Any fractional part of a mule is converted to the next higher tenth of a mile. Additionally, the examination revealed the description and dimensions of the north extension to the airspace area were not in compliance with FAA Orders 7400.2ZE and 8260.19C, Flight Procedures and Airspace. This amendment expands the airspace area from a 6-mile to a 6.8-mile radius of Air Park South Airport, decreases the width of the north extension from 2.6 miles to 2 miles each side of the Springfield collocated very high frequency omni-directional radio range and tactical air navigational aid (VORTAC) 165° radial and defines the extension in relation to the VORTAC. Additionally, the Air Park South Airport ARP is corrected in the legal description. These modifications provide controlled airspace of appropriate dimensions to protect aircraft departing from and existing SIAPs to Air Park South Airport and bring the legal description of the Ozark, MO Class E airspace area into compliance with FAA Orders 7400.2E and 8260.19C. This area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9M, Airspace Designations and Reporting Points, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register, and a notice of proposed rulemaking may be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2005-20061/Airspace Docket Nol 05-ACE-3.” The postcard will be date/time stamped and returned to the commenter.

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.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(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) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority since it contains aircraft executing instrument approach procedures to Air Park South Airport.

On April 7, 2004 (69 FR 18444), NMFS published a final rule that implemented the approved portion of the HMS FMP establishing, among other measures, data collection and reporting requirements for U.S. West Coast commercial and recreational charter fishing vessels targeting HMS. The HMS FMP final rule contained collection-of-information requirements that could not be enforced prior to approval by the OMB under the PRA. Delayed enforcement of these sections were announced in the April 7, 2004, HMS FMP final rule pending OMB approval of the proposed collections-of-information. In the HMS FMP final rule, NMFS requested comments on the reporting burden estimate or any other aspect of the collection-of-information requirements. No comments were received on the collection-of-information requirements. OMB has approved the collections-of-information requirements codified at 50 CFR 660.707 for permits; § 660.708 for recordkeeping and reporting; § 660.712(d) for a vessel monitoring system, and § 660.712(f) for pre-trip notification. These sections are effective April 11, 2005 and will be enforced beginning on that date. Section 660.707 requires a HMS permit with an endorsement for a specific gear for all commercial and recreational charter fishing vessels fishing for HMS. Section 660.708 requires all HMS permit holders to maintain and submit to NMFS a daily logbook of catch and effort in the HMS fisheries. Section 660.712(d) requires the holder of a HMS permit registered for use of longline gear to carry a vessel monitoring system (VMS) onboard the vessel after the date scheduled for installation by the NMFS. Section 660.712(f) requires that an operator of a vessel registered for use of longline gear must notify NMFS at least 24 hours prior to embarking on a fishing trip regardless of the intended area of fishing. The OMB has not yet cleared the vessel identification requirements detailed in 50 CFR 660.704, and those requirements will be dealt with in a future Federal Register document. Pursuant to the PRA, part 902 of title 15 CFR displays control numbers assigned to NMFS information collection requirements by OMB. This part fulfills the requirements of section 3506(c)(1)(B)(i) of the PRA, which requires that agencies display a current control number, assigned by the Director of OMB, for each agency information collection requirement. This final rule codifies OMB control numbers for 0648-0204 for § 660.707 and 0648-0498 for §§ 660.708, 660.712(d), and 660.712(f).

The Regional Administrator, NMFS, Southwest Region determined that the data collection requirements implemented by this final rule are necessary for the conservation and management of the U.S. West Coast HMS fisheries and are consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable law.

The data collection requirements implemented by this final rule have been determined to be not significant for purposes of Executive Order 12866.

NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), prepared a FRFA in support of the HMS FMP final rule published April 7, 2004. The FRFA described the economic impact that this final rule, along with other non-preferred alternatives, will have on small entities, including HMS commercial and recreational charter fishing vessels affected by this action. The contents of the FRFA and the incorporated documents (the IRFA, the RIR, and the FEIS) are not repeated here. A copy of these documents is available upon request (see ADDRESSES ).

Under this HMS FMP final rule there will be no Federal fee borne by the fishing industry for the required HMS permit. Industry costs arise from the time required to recover the necessary information and complete the permit forms. The permit requirement under this final rule will establish an initial one-time reporting burden of 562.9 hours for the 1,337 participating vessels (an average of 0.42 hours/per vessel). Permits are valid for 2 years, so the additional annualized burden is 281.5 hours for initial permit issuance.

This final rule requires all surface hook and line fishing vessels targeting HMS to maintain and submit logbooks for fishing in the U.S. EEZ and on the adjacent high seas areas covered under the HSFCA if they do not already submit logbooks under another regulation. This final rule establishes an annual reporting burden of 2,661 hours for the 887 participating vessels (887 vessels x 3 trips per year x 1 hour per trip to report).

For VMS, the reporting burden for the longline fleet is estimated to be 324.6 hours based on 20 longline vessels making 6 trips each year, with an average of 15 days at sea for each trip (24 reports/day x 24 sec/report).

This final rule contains new collection-of-information requirements approved by OMB under the PRA. Public reporting burden for these collections of information are estimated to average as follows:

1. Twenty to thirty five minutes for a permit application depending on the extent of correction of information on application forms and of new information to be submitted on those forms,

2. Five minutes for filling out the HMS log each day,

3. Five minutes for a pre-trip notification by longline vessel operators,

4. Four hours for installation of a VMS on longline vessels,

5. Two hours for maintenance of the VMS system,

6. Twenty four seconds for each electronic report submitted via the satellite based VMS.

These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information. Public comment is sought regarding: whether this collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments or any other aspects of the collections of information to NMFS (see ADDRESSES ).

Notwithstanding any other provisions of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designated such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide was prepared for the HMS FMP final rule. This guide will be posted on the NMFS SWR website (http://swr.nmfs.noaa.gov) and a hard copy will be sent to all interested parties upon request (see FOR FURTHER INFORMATION CONTACT ).

The Long Beach Bridge has a vertical clearance of 20 feet at mean high water and 24 feet at mean low water. The existing regulations are listed at 33 CFR 117.799(g).

The bridge owner, Nassau County Department of Public Works, requested a temporary deviation for the Long Beach Bridge to facilitate scheduled maintenance repairs, gear rack repairs, at the bridge.

Under this temporary deviation the Long Beach Bridge need not open for vessel traffic from February 21, 2005 through February 27, 2005.

This deviation from the operating regulations is authorized under 33 CFR 117.35, and will be performed with all due speed in order to return the bridge to normal operation as soon as possible.

The supplementary information is organized in the following order:

What a SIP is —Each state has a SIP containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS). The SIP is extensive, containing such elements as air pollution control regulations, emission inventories, monitoring network, attainment demonstrations, and enforcement mechanisms.

How EPA enforces SIPs —Each state must formally adopt the control measures and strategies in the SIP after the public has had an opportunity to comment on them. They are then submitted to EPA as SIP revisions upon which EPA must formally act. Once these control measures and strategies are approved by EPA, after notice and comment, they are incorporated into the Federally approved SIP and are identified in part 52 (Approval and Promulgation of Implementation Plans), title 40 of the Code of Federal Regulations (40 CFR part 52). The actual state regulations approved by EPA are not reproduced in their entirety in 40 CFR part 52, but are “incorporated by reference” (IBR'd) which means that EPA has approved a given state regulation with a specific effective date. This format allows both EPA and the public to know which measures are contained in a given SIP and ensures that the state is enforcing the regulations. It also allows EPA and the public to take enforcement action, should a state not enforce its SIP-approved regulations.

How the State and EPA updates the SIP —The SIP is a living document which the state can revise as necessary to address the unique air pollution problems in the state. Therefore, EPA must, from time to time, take action on SIP revisions containing new and/or revised regulations in order to make them part of the SIP. On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference Federally-approved SIPs, as a result of consultations between EPA and the Office of the Federal Register (OFR).

EPA began the process of developing: (1) A revised SIP document for each state that would be IBR'd under the provisions of Title 40 CFR part 51; (2) a revised mechanism for announcing EPA approval of revisions to an applicable SIP and updating both the IBR document and the CFR; and (3) a revised format of the “Identification of plan” sections for each applicable subpart to reflect these revised IBR procedures. The description of the revised SIP document, IBR procedures, and “Identification of plan” format are discussed in further detail in the May 22, 1997, Federal Register document.

How EPA compiles the SIPs —The Federally-approved regulations, source-specific permits, and nonregulatory provisions (entirely or portions of) submitted by each state agency have been compiled by EPA into a “SIP compilation.” The SIP compilation contains the updated regulations, source-specific permits, and nonregulatory provisions approved by EPA through previous rulemaking actions in the Federal Register .

How EPA organizes the SIP compilation —Each compilation contains three parts. Part one contains the regulations, part two contains the source-specific requirements that have been approved as part of the SIP, and part three contains nonregulatory provisions that have been EPA approved. Each part consists of a table of identifying information for each SIP-approved regulation, each SIP-approved source-specific permit, and each nonregulatory SIP provision. In this action, EPA is publishing the tables summarizing the applicable SIP requirements for West Virginia. The EPA Regional Offices have the primary responsibility for updating the compilations and ensuring their accuracy.

Where you can find a copy of the SIP compilation —EPA Region III developed and will maintain the compilation for West Virginia. A copy of the full text of West Virginia's regulatory and source-specific SIP compilation will also be maintained at NARA and EPA's Air Docket and Information Center.

The format of the new Identification of Plan section —In order to better serve the public, EPA revised the organization of the “Identification of plan” section and included additional information to clarify the enforceable elements of the SIP. The revised Identification of plan section contains five subsections:

1. Purpose and scope.

2. Incorporation by reference.

3. EPA-approved regulations.

4. EPA-approved source-specific permits.

5. EPA-approved nonregulatory and quasi-regulatory provisions such as air quality attainment plans, rate of progress plans, maintenance plans, monitoring networks, and small business assistance programs.

When a SIP revision becomes federally enforceable —All revisions to the applicable SIP become federally enforceable as of the effective date of the revisions to paragraphs (c), (d), or (e) of the applicable Identification of Plan section found in each subpart of 40 CFR part 52. In general, SIP revisions become effective 30 to 60 days after publication of EPA's SIP approval action in the Federal Register . In specific cases, a SIP revision action may become effective less than 30 days or greater than 60 days after the Federal Register publication date. In order to determine the effective date for a specific West Virginia SIP provision that is listed in paragraph 52.2520(c),(d), or (e) charts, consult the Federal Register date, volume and page cited in the “EPA approval date” column for that particular provision.

The historical record of SIP revision approvals —To facilitate enforcement of previously approved SIP provisions and provide a smooth transition to the new SIP processing system, EPA retains the original Identification of plan section, previously appearing in the CFR as the first or second section of part 52 for each state subpart. After an initial two-year period, EPA will review its experience with the new system and enforceability of previously approved SIP measures and will decide whether or not to retain the Identification of plan appendices for some further period.

Today's rule constitutes a “housekeeping” exercise to ensure that all revisions to the state programs that have occurred are accurately reflected in 40 CFR part 52. State SIP revisions are controlled by EPA regulations at 40 CFR part 51. When EPA receives a formal SIP revision request, the Agency must publish the proposed revision in the Federal Register and provide for public comment before approval.

EPA has determined that today's rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Today's rule simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice in the CFR benefits the public by removing outdated citations.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute as indicated in the Supplementary Information section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C 601 et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. This rule does not involve technical standards; 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. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). EPA's compliance with these statutes and Executive Orders for the underlying rules are discussed in previous actions taken on the State's rules.

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. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. Today's action simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of February 10, 2005. 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 . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

EPA has also determined that the provisions of section 307(b)(1) of the Clean Air Act pertaining to petitions for judicial review are not applicable to this action. Prior EPA rulemaking actions for each individual component of the West Virginia SIP compilations had previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, EPA sees no need in this action to reopen the 60-day period for filing such petitions for judicial review for these “Identification of plan” reorganization actions for West Virginia.

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

Table 1 lists the rule and negative declaration we are approving with the dates that they were adopted by the MCESD and submitted by the Arizona Department of Environmental Quality (ADEQ).

On March 10, 1993, and October 26, 2004, Rule 100, Section 504 and the negative declaration, submitted on February 4, 1993, and April 21, 2004, respectively, were found to meet the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.

There are no previous versions of the emission statement rule nor the Fiberglass Boat Manufacturing negative declaration.

Section 182(a)(3)(B)(i) of the CAA requires that States with areas designated as nonattainment for ozone require emission statement data from sources of volatile organic compounds (VOC) and oxides of nitrogen (NO X ) in the nonattainment areas. This requirement applies to all ozone nonattainment areas regardless of the classification (Marginal, Moderate, etc.) Emission statements were required to be submitted by November 15, 1993, and annually thereafter. Section 182(a)(3)(B)(ii) of the CAA allows the States and local agencies to waive the requirement for emission statements for classes or categories of sources with less than 25 tons per year if the class or category is included in the base year and periodic inventories and emissions are calculated using emission factors established by EPA or other methods acceptable to EPA.

Section 182(b)(2) of the CAA requires States to submit reasonably available control technology (RACT) regulations for major stationary sources of VOC emissions in areas designated as nonattainment and classified as moderate or above. In order to fulfill this requirement, MCESD imposed source-specific RACT standards in the Title V permit for their Fiberglass Boat Manufacturing source. On December 3, 2001, the source notified MCESD of its intent to close their Phoenix facility and cease operations no later than December 31, 2001. In addition, the source requested the cancellation of existing operating air quality permits as of that date. On April 21, 2004, ADEQ submitted a SIP revision including a redesignation request and maintenance plan for the Maricopa County Nonattainment Area. As part of that revision, ADEQ also submitted a negative declaration for the Fiberglass Boat Manufacturing source category. The negative declaration was adopted to fulfill the requirements of section 182(b)(2) of the CAA.

The emission statement rule requires owners or operators of sources which emit VOC and NO X to provide the Control Officer with a statement showing actual emissions of NO X and VOC annually. The statement must contain a certification by a responsible official of the company that the information contained in the statement is accurate. In combination with the other requirements, these rules must be enforceable (see section 110(a) of the Act) and must not relax existing requirements (see sections 110(l) and 193). EPA policy that we used to help evaluate enforceability requirements consistently includes the Bluebook (“Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988) and the Little Bluebook (“Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001).

The MCESD has certified that it currently does not have any sources of Fiberglass Boat Manufacturing with the closure of Sea Ray Boats, Inc. The MCESD reviewed Department permit files, the 2002 Arizona Industrial Directory, and the Toxic Release Inventory System to determine if any other major sources of fiberglass boat manufacturing exist in Maricopa County. Based on this review, MCESD declares that there are no major sources of fiberglass boat manufacturing present in Maricopa County.

We believe the emission statement rule and the negative declaration are consistent with the relevant policy and guidance regarding enforceability and SIP revisions. The TSDs have more information on our evaluation.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rule as a revision to the SIP and is approving the negative declaration as additional information to the SIP. We believe the rule and the negative declaration fulfill all the 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 rule and negative declaration. If we receive adverse comments by March 14, 2005, 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 April 11, 2005. This will incorporate the rule into the federally enforceable SIP and add the negative declaration as additional information.

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 April 11, 2005. 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).)

Throughout this document, whenever “we” “us” or “our” is used, we mean the EPA.

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS 111)

• Animal production (NAICS 112)

• Food manufacturing (NAICS 311)

• Pesticide manufacturing (NAICS 32532)

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

The Administrative Procedure Act (5 U.S.C. 551-559) permits an agency to dispense with notice of rulemaking when it is otherwise not required by statute and the agency “for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). FRA finds that notice and public participation are, in this case, unnecessary and contrary to the public interest for the reasons set forth below.

These amendments do not expand the scope of the rule, nor do they impose additional burdens on those covered by the rule. Moreover, FRA finds that any further delay in issuance of this rule could perpetuate confusion or inconsistencies regarding the use of personal floatation devices in conjunction with effective fall prevention measures. FRA believes that the identification of inconsistent safety requirements and the noncontroversial nature of the amendments necessary to make the requirements consistent justify the issuance of an interim final rule. FRA will consider, however, any comments received during the post-publication comment period before it issues a final rule in this proceeding.

On June 24, 1992, FRA issued Railroad Workplace Safety Regulations in 49 CFR part 214. 57 FR 28127. Subsequent amendments to that regulation have added subpart C, Roadway Worker Protection, and subpart D, On-Track Roadway Maintenance Machines and Hi-Rail Vehicles. 61 FR 65959 (December 16, 1996), 68 FR 44388 (July 28, 2003). Additional amendments have provided technical corrections and changes to improve the effectiveness of the regulation.

FRA has since received a request from the Norfolk Southern Railway Company (NS) to permit NS employees who are working on a bridge deck over water to work without a life vest or buoyant work vest under circumstances in which falls are effectively prevented. NS refers to factual situations under the present regulation, where a bridge worker who is located 12 feet or more over the ground is prevented from falling by hand rails, walkways, or acceptable work procedures and is therefore not required to use a personal fall arrest system. However, if the same circumstances prevail on a bridge over water, the bridge worker is required to wear a life vest or buoyant work vest even though the bridge worker over water may have the same safety hand rails, walkways, or acceptable work procedures in place as the bridge worker has over dry land. FRA has considered this request, and has found that the situation addressed by NS is not limited to one railroad. FRA therefore considers it advisable to provide an industry-wide resolution by issuing a technical amendment to the regulation.

The present regulation, in section 214.107, “Working over or adjacent to water” states, in part:

The present regulation also provides for circumstances in which bridge workers are not required to use personal fall arrest systems or safety nets while working at heights over land because the risk of falling is minimized by components of the bridge or by suitable work procedures. In particular, section 214.103, “Fall protection, generally” states:

The exceptions to the requirement for a personal fall arrest system or safety net are found in paragraphs (b) through (d) of § 214.103. Sub-paragraph (b)(2), and paragraphs (c) and (d), address alternate means of fall protection. In strict application of the regulation, these exceptions may be used in appropriate circumstances by bridge workers working at heights over dry land, but do not relieve bridge workers from the requirement to use life vests or buoyant work vests when over water, even though the risk of a fall to the water is minimized.

This inconsistency was not intended. FRA is therefore issuing this technical amendment to resolve the inconsistency. This amendment will permit the exceptions in § 214.103 which presently only apply to the use of personal fall arrest systems and safety nets over dry land to also apply to the use of life vests or buoyant work vests while working over water. Including § 214.103(b)(2) and its related sub-paragraphs concerning bridge inspectors among the exceptions in § 214.107(a) makes § 214.107(b) redundant. It is therefore being deleted.

This amendment will have the effect, in a common example, of permitting a railroad track inspector, when on a bridge that is over water and equipped with effective handrails and walkways, to replace a joint bolt without having to wear a life vest or buoyant work vest, without the need to have a life preserver within ready access, and without the need for ring buoys and a boat or skiff in the water. The amendment should also have the beneficial effect of encouraging bridge owners to install effective fall prevention components on low bridges over water in order to improve labor efficiency.

This section sets forth standards for bridge workers working over or adjacent to water. Paragraph (a) requires that bridge workers must wear life vests or buoyant work vests in compliance with various Coast Guard requirements, when working over water, except where bridge workers are working with fall arrests systems or in compliance with the provisions of § 214.103(b)(2), (c) or (d). These provisions establish exceptions to the general requirement for protection against drowning. The exceptions include situations where there is little or no risk of falling, since bridge workers are working on bridges with walkways and railings, or, when on bridges with roadways, are working more than six feet from the edge of a roadway deck or any opening through which they could fall.

Anyone is able to search the electronic form of all comments received into any of FRA's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (volume 65, number 70; pages 19477-78), or you may visit http://dms.dot.gov.

This amendment clarifying the final rule has been evaluated in accordance with existing policies and procedures and is not considered significant under Executive Order 12866 or under DOT policies and procedures. The minor technical changes made in this amendment will not increase the costs or alter the benefits associated with this regulation to any measurable degree.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) requires a review of rules to assess their impact on small entities. This amendment to the final rule clarifies existing requirements. The changes will have no new direct or indirect economic impact on small units of government, businesses, or other organizations. Therefore, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the provisions of the Regulatory Flexibility Act.

There are no paperwork requirements associated with this amendment of the final rule.

FRA has evaluated this amendment in accordance with its procedures for ensuring full consideration of the environmental impact of FRA actions, as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq. ), other environmental statutes, Executive Orders, and DOT Order 5610.1c. The amendment meets the criteria establishing this as a non-major action for environmental purposes.

This amendment will not have a substantial 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. Thus, in accordance with Executive Order 13132, preparation of a Federalism Assessment is not warranted.

Pursuant to the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal Regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Sec. 201. Section 202 of the Act further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in promulgation of any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $120,700,000 or more in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement * * * “detailing the effect on State, local and tribal governments and the private sector. The rule issued today does not include any mandates which will result in the expenditure, in the aggregate, of $120,700,000 or more in any one year, and thus preparation of a statement is not required.

Regulations governing the yellowtail flounder trip limit within the U.S./Canada Management Area are found at 50 CFR 648.85(a)(3)(iv)(C). The regulations authorize vessels issued a valid limited access NE multispecies permit and fishing under a NE multispecies DAS to fish in the U.S./Canada Management Area under specific conditions. The TAC allocation for GB yellowtail flounder for the 2004 fishing year was specified at 6,000 mt in the final rule implementing Amendment 13 to the NE Multispecies Fishery Management Plan (FMP) (April 27, 2004, 69 FR 22906). Section 648.85(a)(3)(iv)(D) authorizes the Regional Administrator to modify certain conditions regarding the harvesting of fish from the U.S./Canada Management Area, including trip limits for GB yellowtail flounder harvested from that area.

On October 1, 2004 (69 FR 59815), upon determination by the Regional Administrator that 85 percent of the GB yellowtail flounder TAC had been harvested, NMFS closed the Eastern U.S./Canada Area to all NE multispecies DAS vessels and prohibited all NE multispecies vessels from harvesting, possessing, or landing GB yellowtail flounder from the U.S./Canada Management Area, because of concerns that the yellowtail flounder TAC would be fully harvested or overharvested prior to the end of the fishing year. Full harvest of the TAC was anticipated due to the amount of yellowtail flounder harvested by vessels targeting yellowtail flounder in the U.S./Canada Management Area, and because of concerns regarding anticipated yellowtail flounder bycatch by vessels targeting groundfish other than yellowtail flounder within the U.S./Canada Management Area. Additional concern was raised by the potential impact that may be caused by scallop vessels fishing in Closed Area II under the Sea Scallop Access Program implemented under Frameworks 16/39 to the Atlantic Sea Scallop/NE Multispecies FMPs. Because of these potential sources of yellowtail flounder harvest, this action was necessary to ensure that the GB yellowtail flounder TAC would not be exceeded during the 2004 fishing year.

On January 14, 2005 (70 FR 2820, January 18, 2005), under the authority of § 648.85(a)(3)(iv)(D), NMFS re-opened the Eastern U.S./Canada Area; removed the prohibition on the harvest, possession, and landing of GB yellowtail flounder by all NE multispecies vessels within the entire U.S./Canada Management Area; and established a trip limit of 15,000 lb (6,804 kg) for GB yellowtail flounder for vessels fishing in the U.S./Canada Management Area. In addition, the daily poundage limit for yellowtail flounder and cod were removed to allow vessels additional flexibility, should they need to end a trip prematurely due to an unexpected event; i.e., vessels would have the ability to retain their entire catch onboard when entering port and on their subsequent trip. This action was taken in response to data indicating that the amount of GB yellowtail flounder harvested under the Sea Scallop Access Program and the amount of GB yellowtail flounder bycatch caught by vessels targeting groundfish other than yellowtail flounder within the U.S./Canada Management Area would likely not result in the overharvest of the TAC.

Vessel Monitoring System (VMS) reports and other information collected since the re-opening of the U.S./Canada Management Area indicate that many more vessels than initially anticipated are directly targeting GB yellowtail flounder in the U.S./Canada Management Area, and are thereby harvesting more yellowtail flounder than NMFS initially anticipated they would. Based on this information, and the rate at which GB yellowtail flounder is being harvested, NMFS is reducing the trip limit for GB yellowtail flounder to 5,000 lb (2268 kg) per trip, effective February 9, 2005, for NE multispecies DAS vessels fishing in the U.S./Canada Management Area. By reducing the trip limits for GB yellowtail flounder at this time, the fishing industry is more likely to achieve the full harvest of the GB yellowtail flounder TAC and other TACs for this region without a substantial risk of overharvesting the resource. To allow the fishery to continue at its current trip limit could necessitate closure of the Eastern U.S./Canada Area before the full harvest of the GB haddock and GB cod TACs in place for this area, in order to ensure that the yellowtail flounder TAC is not exceeded.

Yellowtail flounder landings will be closely monitored through VMS and other available information and, if 100 percent of the TAC allocation for GB yellowtail flounder is projected to be harvested, the Eastern U.S./Canada Area will be closed to NE multispecies DAS vessels and the harvesting, possession, and landing of yellowtail flounder by NE multispecies vessels in the U.S./Canada Management Area would be prohibited, in accordance with the regulations § 648.85(a)(3)(iv)(C)(3).

This action reduces the trip limit for GB yellowtail flounder in the U.S./Canada Management Area in order to allow vessels to fully harvest the GB cod and GB haddock TACs while ensuring that overharvesting of GB yellowtail flounder does not occur. To allow the higher trip limit for GB yellowtail flounder to continue during the period necessary to publish and receive comments on a proposed rule could necessitate that NMFS close the Eastern U.S./Canada Area before the fishing industry achieves the available TACs of GB cod and GB haddock for the area, and before a final rule to lower the trip limit could be implemented. Such a delay, therefore, would create an unnecessary burden on the fishing industry. Based on this possibility, under 5 U.S.C. 553(b)(3), proposed rulemaking is waived because it would be impracticable and contrary to the public interest. Furthermore, for the same reason, there is good cause under 5 U.S.C 553(d)(3) to waive the 30-day delayed effectiveness period for this action.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.