Karnal bunt is a fungal disease of wheat (Triticum aestivum), durum wheat (Triticum durum), and triticale (Triticum aestivum X Secale cereale), a hybrid of wheat and rye. Karnal bunt is caused by the smut fungus Tilletia indica (Mitra) Mundkur and is spread primarily through the movement of infected seed. Some countries in the international wheat market regulate Karnal bunt as a fungal disease requiring quarantine; therefore, without measures taken by the Animal and Plant Health Inspection Service (APHIS), United States Department of Agriculture, to prevent its spread, the presence of Karnal bunt in the United States could have significant consequences with regard to the export of wheat to international markets.

Upon detection of Karnal bunt in Arizona in March of 1996, Federal quarantine and emergency actions were imposed to prevent the interstate spread of the disease to other wheat producing areas in the United States. The quarantine continues in effect, although it has since been modified, both in terms of its physical boundaries and in terms of its restrictions on the production and movement of regulated articles from regulated areas. The regulations regarding Karnal bunt are set forth in 7 CFR 301.89-1 through 301.89-16 (referred to below as the regulations).

The regulations in § 301.89-3(e) provide that we will classify a field or area as a regulated area when it is:

• A field planted with seed from a lot found to contain a bunted wheat kernel;

• A distinct definable area that contains at least one field that was found during survey to contain a bunted wheat kernel. The distinct definable area may include an area where Karnal bunt is not known to exist but where intensive surveys are required because of the areas's proximity to a field found during survey to contain a bunted kernel; or

• A distinct definable area that contains at least one field that has been determined to be associated with grain at a handling facility containing a bunted kernel of a host crop. The distinct definable area may include an area where Karnal bunt is not known to exist but where intensive surveys are required because of the area's proximity to the field associated with the bunted kernel at the handling facility.

The boundaries of distinct definable areas are determined using the criteria in paragraphs (b) through (d) of § 301.89-3, which provide for the regulation of less than an entire State, the inclusion of noninfected acreage in a regulated area, and the temporary designation of nonregulated areas as regulated areas. Paragraph (c) of § 301.89-3 states that the Administrator may include noninfected acreage within a regulated area due to its proximity to an infestation or inseparability from the infected locality for regulatory purposes, as determined by:

• Projections of the spread of Karnal bunt along the periphery of the infestation;

• The availability of natural habitats and host materials within the noninfected acreage that are suitable for establishment and survival of Karnal bunt; and

• The necessity of including noninfected acreage within the regulated area in order to establish readily identifiable boundaries.

When we include noninfected acreage in a regulated area for one or more of the reasons previously listed, the noninfected acreage, along with the rest of the acreage in the regulated area, is intensively surveyed. Negative results from surveys of the noninfected acreage provide assurance that all infected acreage is within the regulated area. In effect, the noninfected acreage serves as a buffer zone between fields or areas affected with Karnal bunt and areas outside of the regulated area.

Under the regulations in § 301.89-3(f), a field known to have been infected with Karnal bunt, as well as any non-infected acreage surrounding the field, will be released from regulation if:

• The field is no longer being used for crop production; or

• Each year for a period of 5 consecutive years, the field is subjected to any one of the following management practices (the practice used may vary from year to year): (1) Planted with a cultivated non-host crop, (2) tilled once annually, or (3) planted with a host crop that tests negative, through the absence of bunted kernels, for Karnal bunt.

The regulations in § 301.89-3(g) describe the boundaries of the regulated areas in Arizona, California, and Texas. In this interim rule, we are amending § 301.89-3(g) by removing certain areas or fields in Maricopa and Pinal Counties, AZ, and Imperial County, CA, from the list of regulated areas, based on our determination that these fields or areas are eligible for release from regulation under the criteria in § 301.89-3(f). This action relieves restrictions on fields within those areas that are no longer warranted.

We are also adding certain areas in La Paz, Maricopa, and Pinal Counties, AZ, and Riverside County, CA, to the list of regulated areas either because the fields within those areas were found during detection and delineating surveys to contain a bunted wheat kernel, or because the fields within those areas fall within the 3-mile-wide buffer zone around fields affected with Karnal bunt. This action is necessary in order to help prevent the spread of Karnal bunt into noninfected areas of the United States.

The list of regulated areas in Arizona includes individual fields and other distinct, definable areas in La Paz, Maricopa, and Pinal Counties. In this interim rule, we are removing 1,912 acres (77 fields) in Pinal County and 11,520 acres (63 fields) in Maricopa County from the list of regulated areas. We are taking this action based upon our determination that the fields or areas have met one or more of the criteria in § 301.89-3(f) of the regulations.

We are also adding new regulated areas in LaPaz, Maricopa, and Pinal Counties, AZ, due to the detection of bunted wheat kernels there or the application of the 3-mile-wide buffer zone around fields affected with Karnal bunt. These additional areas in La Paz, Maricopa, and Pinal Counties involve approximately 278,453 acres (6,343 fields).

The list of regulated areas in California includes areas in Imperial and Riverside Counties. In this interim rule, we are removing 3,241 acres (85 fields) in eastern Riverside County, and 4,470 acres (95 fields) in Imperial County. We are taking this action based upon our determination that the fields or areas have met one or more of the criteria in § 301.89-3(f). With this action, there are no longer any regulated areas in Imperial County.

We are also adding new regulated areas in Riverside County, CA, due to the detection of bunted wheat kernels there or the application of the 3-mile-wide buffer zone around fields affected with Karnal bunt. These additional regulated areas in Riverside County involve approximately 10,262 acres (186 fields).

Immediate action is necessary to help prevent Karnal bunt from spreading to noninfected areas of the United States. This rule will also relieve restrictions on certain fields or areas that are no longer warranted. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this action effective less than 30 days after publication in the Federal Register.

We will consider comments we receive during the comment period for this interim rule (see DATES above). After the comment period closes, we will publish another document in the Federal Register. The document will include a discussion of any comments we receive and any amendments we are making to the rule.

This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.

We are removing certain fields in Arizona and California from the list of regulated areas. The areas to be deregulated are located in Maricopa and Pinal Counties, AZ, and Imperial and Riverside Counties, CA. These fields are being deregulated based on our determination that they have met the criteria in § 301.89-3(f) for being released from regulation.

Additionally, we are adding certain fields in La Paz, Maricopa, and Pinal Counties, AZ, and Riverside County, CA, to the list of regulated areas. These areas are being added because they were found during surveys to contain a bunted wheat kernel, or because they are within the 3-mile-wide buffer zone around fields or areas affected with Karnal bunt.

Deregulating certain areas in Arizona and California will benefit producers in these areas who wish to produce host crops in the future. Deregulation will allow producers to move wheat grain and seed with no restrictions. Prior to this rule, any wheat, durum wheat, or triticale grown in those fields could be moved into or through a non-regulated area without restriction only if it first tested negative for bunted kernels. In addition, any wheat, durum wheat, or triticale grown in those fields could not be used as seed within or outside a regulated area unless it was tested and found free of bunted kernels and spores. Thus, deregulation allows for freer movement of grain and seed in those areas that are affected by this aspect of the interim rule.

The impact of this rule on individual producers is not likely to be significant. The elimination of restrictions will increase marketing opportunities for producers, with impacts on prices those producers may set for their wheat, durum wheat, or triticale. Producers whose fields are deregulated may enjoy increased market opportunities for any wheat, durum wheat, or triticale they grow in the future (e.g. the availability of export markets). They may also receive a higher commodity price for their wheat, durum wheat, or triticale, although any price changes would most likely be small. This is due in part to the perceived notion that wheat produced in a regulated area is of lower quality. Deregulation may remove this stigma.

Despite the increased ability to move grain and seed, as well as a potential increase in the price received for wheat, the benefits to individual producers are not likely to be significant. There are several reasons for this. First, grain in regulated areas is tested for Karnal bunt at no charge to the producer. Thus, removing this testing requirement does not translate into a cost savings for producers, but merely eliminates an inconvenience. Second, little to no wheat seed will be grown in the affected areas of Maricopa and Pinal Counties, AZ, and Imperial and Riverside Counties, CA. In 2003, seed demand accounted for approximately 5.2 percent of total domestic wheat production. Given such a small percentage and the small size of the area in question relative to other wheat producing regions, it is not expected that this region will grow a significant amount of wheat for seed. Thus, the benefits associated with removing restrictions on the movement of seed are expected to be minimal in this area. Finally, as mentioned previously, the areas affected by the rule are very small players in the overall wheat market. In 2003, Maricopa and Pinal Counties accounted for only 0.07 and 0.14 percent of total U.S. wheat production, respectively, while Imperial and Riverside Counties accounted for 0.22 percent and 0.05 percent, respectively, of total production. Therefore, deregulation of these areas would not influence the price of wheat to a significant degree if at all.

Regulation of certain areas in La Paz, Maricopa, and Pinal Counties, AZ, and Riverside County, CA, is also unlikely to have a profound effect on individual producers. In this case, producers will still be allowed to transport and market their grain in non-regulated areas if it tests negative for bunted kernels. As stated above, this cost is borne by the government and not by individual producers, so producers are only affected by the inconvenience of testing. Further, little or no wheat seed is expected to be produced in these areas, so the restrictions on seed movement should be negligible. Finally, although producers may see a more limited market for their product and face lower prices, the influence of this wheat producing area is small. In 2003, the counties mentioned above together accounted for only 0.3 percent of total U.S. wheat production. Thus, any price changes would be very small.

The Regulatory Flexibility Act requires that agencies consider the economic impact of rule changes on small businesses, organizations, and governmental jurisdictions. Those most likely affected by this interim rule are producers whose fields have been added to the list of regulated areas. Additionally, those farmers whose fields have been removed from the list of regulated areas and plan to grow wheat in the future will also be affected. The number of producers likely to be affected by this interim rule is not expected to be large. Also, it is not expected that the interim rule will have a significant impact on the affected producers. The reasons for this are presented in the preceding paragraphs.

Producers affected by the interim rule are likely to be small in size based on the U.S. Small Business Administration (SBA) standards for wheat farmers, with supporting data from the 2002 Census of Agriculture (2002 Census), which is the most recent census available. The SBA classifies wheat producers with total annual sales of not more than $750,000 as small entities. According to 2002 Census data, there were a total of 7,294 farms in Arizona in 2002. Of this number, 91 percent had annual sales in 2002 of less than $500,000, which is well below the SBA's small entity threshold of $750,000 for wheat farms. The percentage of farms with annual sales of less than $500,000 in California out of a total of 79,631 farms was 90 percent. Therefore, these findings, in conjunction with those above, demonstrate that although most of the entities impacted by the rule are expected to be small, the impact on those entities is not expected to be significant.

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

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

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

This rule is issued under Marketing Order No. 985, as amended (7 CFR part 985), regulating the handling of spearmint oil produced in the Far West (Washington, Idaho, Oregon, and designated parts of Nevada and Utah), hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule 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. A 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.

The initial salable quantity and allotment percentages for Scotch and Native spearmint oils for the 2004-2005 marketing year were recommended by the Committee at its October 8, 2003, meeting. The Committee recommended salable quantities of 766,880 pounds and 773,474 pounds, and allotment percentages of 40 percent and 36 percent, respectively, for Scotch and Native spearmint oils. A proposed rule was published in the Federal Register on January 23, 2004 (69 FR 3272). Comments on the proposed rule were solicited from interested persons until February 23, 2004. No comments were received. Subsequently, a final rule establishing the salable quantities and allotment percentages for Scotch and Native spearmint oils for the 2004-2005 marketing year was published in the Federal Register on March 22, 2004 (69 FR 13213).

Pursuant to authority contained in §§ 985.50, 985.51, and 985.52 of the order, the Committee has made unanimous Committee recommendations to increase the quantity of Native spearmint oil that handlers may purchase from, or handle for, producers during the 2004-2005 marketing year, which ends on May 31, 2005. An interim final rule was published in the Federal Register on October 21, 2004 (69 FR 61755), which increased the salable quantity from 773,474 pounds to 1,095,689 pounds, and the allotment percentage from 36 percent to 51 percent. Comments on the interim final rule were solicited from interested persons until December 20, 2004. No comments were received. In addition, an amended interim final rule was published in the Federal Register on February 23, 2005 (70 FR 8712), which further increased the salable quantity by 171,873 pounds to 1,267,562 pounds, and the allotment percentage by 8 percent to 59 percent. Comments on the amended interim final rule are being solicited from interested persons through April 25, 2005.

This rule further amends the interim final rule published on February 23, 2005, and is based on a unanimous Committee recommendation made at a meeting on February 23, 2005, to increase the salable quantity an additional 85,936 pounds from 1,267,562 pounds to 1,353,498 pounds, and the allotment percentage an additional 4 percent from 59 percent to 63 percent.

The salable quantity is the total quantity of each class of oil that handlers may purchase from, or handle for, producers during a marketing year. The total salable quantity is divided by the total industry allotment base to determine an allotment percentage. Each producer is allotted a share of the salable quantity by applying the allotment percentage to the producer's individual allotment base for the applicable class of spearmint oil.

Taking into consideration the following discussion on adjustments to the Native spearmint oil salable quantity, the 2004-2005 marketing year salable quantity of 1,267,562 pounds is increased to 1,353,498 pounds.

The original total industry allotment base for Native spearmint oil for the 2004-2005 marketing year was established at 2,148,539 pounds and was revised at the beginning of the 2004-2005 marketing year to 2,148,410 pounds to reflect a 2003-2004 marketing year loss of 129 pounds of base due to non-production of some producers' total annual allotments. When the revised total allotment base of 2,148,410 pounds is applied to the originally established allotment percentage of 36 percent, the 2004-2005 marketing year salable quantity of 773,474 pounds was effectively modified to 773,428 pounds.

By increasing the salable quantity and allotment percentage, this further amended interim final rule makes an additional amount of Native spearmint oil available by releasing oil from the reserve pool. When applied to each individual producer, the 4 percent allotment percentage increase allows each producer to take up to an amount equal to 4 percent of their allotment base from their Native spearmint oil reserve. This action makes an additional 51,971 pounds of Native spearmint oil available to the market. This figure is less than the salable quantity increase because not all producers have enough native spearmint oil left in their reserves to take full advantage of this release.

The following table summarizes the Committee recommendation:

(A) Estimated 2004-2005 Allotment Base—2,148,539 pounds. This is the estimate that the original 2004-2005 Native spearmint oil salable quantity and allotment percentage was based on.

(B) Revised 2004-2005 Allotment Base—2,148,410 pounds. This is 129 pounds less than the estimated allotment base of 2,148,539 pounds. This is less because some producers failed to produce all of their 2003-2004 allotment.

(C) Initial 2004-2005 Allotment Percentage—36 percent. This was recommended by the Committee on October 8, 2003.

(D) Initial 2004-2005 Salable Quantity—773,474. This figure is 36 percent of 2,148,539 pounds.

(E) Revised 2004-2005 Salable Quantity—773,428 pounds. This figure reflects the salable quantity initially available after the beginning of the 2004-2005 marketing year due to the 129 pound reduction in the industry allotment base to 2,148,410 pounds.

(F) First Revision to the 2004-2005 Salable Quantity and Allotment Percentage

(1) Increase in Allotment Percentage—15 percent. The Committee recommended a 12 percent increase at its September 13, 2004, meeting and an additional 3 percent increase at its October 6, 2004, meeting, for a total increase of 15 percent, which was effective on October 21, 2004.

(2) 2004-2005 Allotment Percentage—51 percent. This figure was derived by adding the first revised increase of 15 percent to the initial 2004-2005 allotment percentage of 36 percent.

(3) Calculated 2004-2005 Salable Quantity—1,095,689 pounds. This figure is 51 percent of the revised 2004-2005 allotment base of 2,148,410 pounds.

(4) Computed Increase in the 2004-2005 Salable Quantity—322,262 pounds. This figure is 15 percent of the revised 2004-2005 allotment base of 2,148,410 pounds.

(G) Second Revision to the 2004-2005 Salable Quantity and Allotment Percentage

(1) Increase in Allotment Percentage—8 percent. The Committee recommended an 8 percent increase at its meeting on January 20, 2005, which was effective on February 23, 2005.

(2) 2004-2005 Allotment Percentage—59 percent. This figure was derived by adding the 8 percent to the first revised 2004-2005 allotment percentage of 51 percent.

(3) Calculated 2004-2005 Salable Quantity—1,267,562 pounds. This figure is 59 percent of the revised 2004-2005 allotment base of 2,148,410 pounds.

(4) Computed Increase in the 2004-2005 Salable Quantity—171,873 pounds. This figure is 8 percent of the revised 2004-2005 allotment base of 2,148,410 pounds.

(H) Third Revision to the 2004-2005 Salable Quantity and Allotment Percentage

(1) Increase in Allotment Percentage—4 percent. This was recommended by the Committee on February 23, 2005.

(2) 2004-2005 Allotment Percentage—63 percent. This figure was derived by adding the 4 percent to the second revised 2004-2005 allotment percentage of 59 percent.

(3) Calculated 2004-2005 Salable Quantity—1,353,498 pounds. This figure is 63 percent of the revised 2004-2005 allotment base of 2,148,410 pounds.

(4) Computed Increase in the 2004-2005 Salable Quantity—85,936 pounds. This figure is 4 percent of the revised 2004-2005 allotment base of 2,148,410 pounds.

In making this recommendation, the Committee considered all available information on price, supply, and demand. The Committee also considered reports and other information from handlers and producers in attendance at the meeting and the report given by the Committee manager from handlers and producers who were not in attendance. The 2004-2005 marketing year began on June 1, 2004. Handlers have reported purchases of 1,070,801 pounds of Native spearmint oil for the period of June 1, 2004, through February 15, 2005. This amount exceeds the five-year average of 899,979 pounds for this period by 170,822 pounds. On average, handlers indicated that the estimated total demand for the 2004-2005 marketing year could range from a minimum of 1,269,000 pounds to as much as 1,279,000 pounds. This amount exceeds the five-year average for an entire marketing year of 973,456 pounds by as little as 295,544 pounds and as much as 305,544 pounds. Therefore, based on past history, the industry may not be able to meet market demand without this increase. When the Committee made its initial recommendation for the establishment of the Native spearmint oil salable quantity and allotment percentage for the 2004-2005 marketing year, it had anticipated that the year would end with an ample available supply.

Based on its analysis of available information, USDA has determined that the salable quantity and allotment percentage for Native spearmint oil for the 2004-2005 marketing year should be increased to 1,353,498 pounds and 63 percent, respectively.

This amended rule further relaxes the regulation of Native spearmint oil and will allow for market needs and improve producer returns. In conjunction with the issuance of this rule, the Committee's revised marketing policy statement for the 2004-2005 marketing year has been reviewed by USDA. The Committee's marketing policy statement, a requirement whenever the Committee recommends implementing volume regulations or recommends revisions to existing volume regulations, meets the intent of § 985.50 of the order. During its discussion of revising the 2004-2005 salable quantities and allotment percentages, the Committee considered: (1) The estimated quantity of salable oil of each class held by producers and handlers; (2) the estimated demand for each class of oil; (3) prospective production of each class of oil; (4) total of allotment bases of each class of oil for the current marketing year and the estimated total of allotment bases of each class for the ensuing marketing year; (5) the quantity of reserve oil, by class, in storage; (6) producer prices of oil, including prices for each class of oil; and (7) general market conditions for each class of oil, including whether the estimated season average price to producers is likely to exceed parity. Conformity with USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” has also been reviewed and confirmed.

The increase in the Native spearmint oil salable quantity and allotment percentage allows for anticipated market needs for this class of oil. In determining anticipated market needs, consideration by the Committee was given to historical sales, and changes and trends in production and demand.

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

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and 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 currently 8 handlers of spearmint oil who are subject to regulation under the marketing order and 98 producers of Class 3 (Native) spearmint oil in the regulated area. Small agricultural service firms are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000.

Based on SBA's definition of small entities, the Committee estimates that 2 of the 8 handlers regulated by the order could be considered small entities. Most of the handlers are large corporations involved in the international trading of essential oils and the products of essential oils. In addition, the Committee estimates that 15 of the 98 Native spearmint oil producers could be classified as small entities under the SBA definition. Thus, a majority of handlers and producers of Far West spearmint oil may not be classified as small entities.

The Far West spearmint oil industry is characterized by producers whose farming operations generally involve more than one commodity, and whose income from farming operations is not exclusively dependent on the production of spearmint oil. A typical spearmint oil-producing operation has enough acreage for rotation such that the total acreage required to produce the crop is about one-third spearmint and two-thirds rotational crops. Thus, the typical spearmint oil producer has to have considerably more acreage than is planted to spearmint during any given season. Crop rotation is an essential cultural practice in the production of spearmint oil for weed, insect, and disease control. To remain economically viable with the added costs associated with spearmint oil production, most spearmint oil-producing farms fall into the SBA category of large businesses.

Small spearmint oil producers generally are not as extensively diversified as larger ones and as such are more at risk to market fluctuations. Such small producers generally need to market their entire annual crop and do not have the luxury of having other crops to cushion seasons with poor spearmint oil returns. Conversely, large diversified producers have the potential to endure one or more seasons of poor spearmint oil markets because income from alternate crops could support the operation for a period of time. Being reasonably assured of a stable price and market provides small producing entities with the ability to maintain proper cash flow and to meet annual expenses. Thus, the market and price stability provided by the order potentially benefit the small producer more than such provisions benefit large producers. Even though a majority of handlers and producers of spearmint oil may not be classified as small entities, the volume control feature of this order has small entity orientation.

This rule further amends an interim final rule that was published in the Federal Register on October 21, 2004 (69 FR 61755) and amended on February 23, 2005 (70 FR 8712). Specifically, the rule published on October 21, 2004, increased the salable quantity from 773,474 pounds to 1,095,689 pounds, and the allotment percentage from 36 percent to 51 percent for Native spearmint oil for the 2004-2005 marketing year. The rule that subsequently amended the interim final rule was published on February 23, 2005, and increased the salable quantity an additional 171,873 pounds to 1,267,562 pounds, and the allotment percentage an additional 8 percent to 59 percent. This rule further amends that interim final rule to increase the salable quantity an additional 85,936 pounds to 1,353,498 pounds, and the allotment percentage an additional 4 percent to 63 percent. This rule relaxes the regulation of Native spearmint oil and will allow producers to meet market needs and improve returns.

An econometric model was used to assess the impact that volume control has on the prices producers receive for their commodity. Without volume control, spearmint oil markets would likely be over-supplied, resulting in low producer prices and a large volume of oil stored and carried over to the next crop year. The model estimates how much lower producer prices would likely be in the absence of volume controls.

The recommended salable percentages, upon which 2004-2005 producer allotments are based, are 40 percent for Scotch and 63 percent for Native (a 27 percentage point increase from the original salable percentage of 36 percent). Without volume controls, producers would not be limited to these allotment levels, and could produce and sell additional spearmint. The econometric model estimated a $1.30 per pound decline in the season average producer price (for both classes of spearmint oil) resulting from the higher quantities that would be produced and marketed if volume controls were not used (i.e., if the salable percentages were set at 100 percent). A previous price decline estimate of $1.71 per pound was based on the 2004-2005 salable percentages (40 percent for Scotch and 36 percent for Native) published in the Federal Register on March 22, 2004 (69 FR 13213).

The 2003 Far West producer price for both classes of spearmint oil was $9.50 per pound, which is below the average of $11.33 for the period of 1980 through 2002, based on National Agricultural Statistics Service data. The surplus situation for the spearmint oil market that would exist without volume controls in 2004-2005 also would likely dampen prospects for improved producer prices in future years because of the buildup in stocks.

The use of volume controls allows the industry to fully supply spearmint oil markets while avoiding the negative consequences of over-supplying these markets. The use of volume controls is believed to have little or no effect on consumer prices of products containing spearmint oil and will not result in fewer retail sales of such products.

Based on projections available at the meetings, the Committee considered alternatives to the 4 percent increase. The Committee not only considered leaving the Native spearmint oil salable quantity and allotment percentage unchanged, but also looked at various increases ranging from 3 percent to 5 percent. The Committee reached its recommendation to again increase the salable quantity and allotment percentage for Native spearmint oil after careful consideration of all available information, and believes that the level recommended will achieve the objectives sought. Without the increase, the Committee believes the industry would not be able to meet market needs.

This rule will not impose any additional reporting or recordkeeping requirements on either small or large spearmint oil 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.

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

Further, the Committee meetings were widely publicized throughout the spearmint oil industry and all interested persons were invited to attend the meetings and participate in Committee deliberations. Like all Committee meetings, the September 13, 2004, October 6, 2004, January 20, 2005, and the February 23, 2005, meetings were public meetings and all entities, both large and small, were able to express their views on each of the recommended increases in the 2004-2005 Native spearmint oil salable quantity and allotment percentage.

Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

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

This rule invites comments on a revision to the salable quantity and allotment percentage for Native spearmint oil for the 2004-2005 marketing year. Comments must be received by April 25, 2005. This closing date is deemed appropriate to receive comments in a timely manner and this date corresponds to the ending date of the comment period for the amended interim final rule. Any comments received will be considered prior to finalization of this rule.

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

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) This rule increases the quantity of Native spearmint oil that may be marketed during the marketing year which ends on May 31, 2005; (2) the current quantity of Native spearmint oil may be inadequate to meet demand for the remainder of the marketing year, thus making the additional oil available as soon as is practicable is beneficial to both handlers and producers; (3) the Committee unanimously recommended this change at a public meeting and interested parties had an opportunity to provide input; and (4) this rule provides an appropriate comment period and any comments received will be considered prior to finalization of this rule.

This rule is issued under Marketing Agreement No. 110 and Marketing Order No. 993, both as amended (7 CFR part 993), regulating the handling of dried prunes grown in California, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California dried prune 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 dried prunes beginning 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 increases the assessment rate established for the committee for the 2004-05 and subsequent crop years from $4.00 to $6.00 per ton of salable dried prunes.

The California dried prune marketing order provides authority for the committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the committee are producers and handlers of California dried prunes. They are familiar with the committee'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.

The committee recommended an assessment rate of $4.00 per salable ton of prunes for the 2004-05 and subsequent crop years on June 23, 2004. USDA approved that assessment rate and published it in the Federal Register on September 28, 2004 (69 FR 55733.) That assessment rate was to continue in effect from crop year to crop year unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the committee or other information available to USDA. At the time of the June 23 meeting, the estimated prune crop was expected to be 68,950 salable tons.

However, the committee met again on December 8, 2004, and unanimously recommended an increased assessment rate of $6.00 per ton of salable dried prunes and an increase in 2004-05 expenditures to $283,218. At its June 23, 2004, meeting, the committee recommended expenditures totaling $275,800. The assessment rate of $6.00 per ton is $2.00 higher than the rate currently in effect, and $4.00 per ton more than the assessment rate in effect during the 2003-2004 crop year.

The committee recommended a higher assessment rate because a very small crop was received by handlers during the crop year. The salable prune production this year is expected to be only 47,203 tons, the smallest crop since 1918. The assessment rate of $6.00 per ton is expected to provide sufficient funds for committee operations this year and provide an adequate financial reserve.

In comparison, the budgeted expenditures for the 2003-2004 crop year were $322,022 and the assessment rate was $2.00 per salable ton of prunes, based upon an estimated crop of 170,500 salable tons.

The following table compares the major budget expenditures recommended by the committee on December 8, 2004, and major budget expenditures in the previously-approved 2004-05 budget.

The assessment rate recommended by the committee was derived by dividing anticipated expenses by the estimated salable tons of California dried prunes. Production of dried prunes for the year is estimated to be 47,203 salable tons, which should provide $283,218 in assessment income. Income derived from handler assessments is expected to be adequate to cover budgeted expenses. The committee is authorized to use excess assessment funds from the 2004-05 crop year (currently estimated at $29,452) for up to 5 months beyond the end of the crop year to meet 2005-06 crop year expenses. At the end of the 5-month period, the committee must refund or credit excess funds to handlers, as prescribed by § 993.81(c).

The assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the committee or other available information.

Although this assessment rate will be in effect for an indefinite period, the committee will continue to meet prior to or during each crop year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of committee meetings are available from the committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The committee's 2004-05 budget and those for subsequent crop 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 1,100 producers of dried prunes in the production area and approximately 22 handlers subject to regulation under the marketing order. The Small Business Administration (13 CFR 121.201) defines small agricultural producers as those whose annual receipts are less than $750,000, and small agricultural service firms as those whose annual receipts are less than $5,000,000.

Eight of the 22 handlers (36.4 percent) shipped over $5,000,000 of dried prunes and could be considered large handlers by the Small Business Administration. Fourteen of the 22 handlers (63.6 percent) shipped under $5,000,000 of dried prunes and could be considered small handlers. An estimated 32 producers, or less than 3 percent of the 1,100 total producers, would be considered large growers with annual income over $750,000. Therefore, the majority of handlers and producers of California dried prunes may be classified as small entities.

This rule increases the assessment rate established for the committee and collected from handlers for the 2004-05 and subsequent crop years from $4.00 to $6.00 per ton of salable dried prunes. The committee unanimously recommended revised 2004-05 expenditures of $283,218 and an increased assessment rate of $6.00 per ton of salable dried prunes at the meeting on December 8, 2004. The recommended expenditures are slightly higher than the committee's initial estimate of $275,800 for 2004-05. The assessment rate of $6.00 per ton is $2.00 higher than the current rate. The quantity of salable dried prunes for the 2004-05 crop year is now estimated at 47,203 salable tons. Thus, the $6.00 rate should provide $283,218 in assessment income and be adequate to meet this year's expenses.

The following table compares the major budget expenditures recommended by the committee on December 8, 2004 and major budget expenditures in the previously-approved 2004-05 budget.

Prior to arriving at its budget of $283,218, the committee considered information from various sources, such as the committee's Executive Subcommittee. An alternative to this action would be to continue with the $4.00 per ton assessment rate. However, an assessment rate of $4.00 per ton in combination with the estimated crop of 47,203 salable tons would not generate sufficient monies to fund all the budget items for 2004-05 and provide an adequate financial reserve. The assessment rate of $6.00 per ton of salable dried prunes was determined by dividing the total recommended budget by the estimated salable dried prunes. The committee is authorized to use excess assessment funds from the 2004-05 crop year (currently estimated at $29,452) for up to 5 months beyond the end of the crop year to fund 2005-06 crop year expenses. At the end of the 5-month period, the committee must refund or credit excess funds to handlers, as prescribed by § 993.81(c). Anticipated assessment income collected during 2004-05 would be adequate to cover authorized expenses.

The grower price for the 2004-05 crop year is expected to average about $750 per salable ton of dried prunes. Based on an estimated 47,203 salable tons of dried prunes, assessment revenue during the 2004-05 crop year is expected to be less than 1 percent of the total expected grower revenue.

This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the marketing order. In addition, the committee's meeting was widely publicized throughout the California dried prune industry and all interested persons were invited to attend the meeting and participate in committee deliberations on all issues. Like all committee meetings, the December 8, 2004, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

This rule imposes no additional reporting or recordkeeping requirements on either small or large California dried prune 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.

A proposed rule concerning this action was published in the Federal Register on February 4, 2005 (70 FR 5944). Copies of the proposed rule were also provided to prune handlers. Finally, the proposal was made available through the Internet by USDA and the Office of the Federal Register. A 30-day comment period ending on March 7, 2005, was provided for interested persons to respond to the proposal. No comments were received.

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 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.

Pursuant to 5 U.S.C. 553, it also 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 because the 2004-05 crop year began on August 1, 2004, and the marketing order requires that the rate of assessment for each crop year apply to all assessable prunes handled during the crop year. Further, the Committee needs sufficient funds to pay its expenses which are incurred on a continuous basis. Handlers are aware of this rule which was unanimously recommended at a public meeting. Also, a 30-day comment period was provided for in the proposed rule and no comments were received.

The Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA) regulates the importation of animals and animal products into the United States to guard against the introduction of animal diseases not currently present or prevalent in this country. The regulations pertaining to the importation and exportation of animals and animal products are set forth in the Code of Federal Regulations (CFR), title 9, chapter I, subchapter D (9 CFR parts 91 through 99).

On September 30, 2002, we published in the Federal Register (67 FR 61293-61300, Docket No. 02-002-1) a proposal to amend the regulations in §§ 94.9 and 94.10 by adding the Mexican States of Campeche, Quintana Roo, Sonora, and Yucatan to the lists of regions considered free of classical swine fever (CSF), thus relieving restrictions on the importation into the United States of pork, pork products, live swine, and swine semen from these regions. We also proposed to remove references to those four States in § 94.15(b) because we believed that paragraph, which, among other things, governs the transiting through the United States of pork and pork products not otherwise eligible for entry into the United States under part 94, would no longer apply to those States once they were recognized as CSF-free. Finally, we proposed to remove § 94.21, which contained provisions for the importation of pork and pork products from Sonora and Yucatan, because our recognition of those two Mexican States as free of CSF meant that those provisions would no longer apply.

We solicited comments concerning our proposal for 60 days ending November 29, 2002. We received one comment by that date. It was from a domestic pork producers' association.

The commenter opposed the proposal, raising a number of issues that we will discuss in the paragraphs that follow. Areas of concern mentioned by the commenter included APHIS' risk assessment methodology; the conditions under which live swine and swine semen would be imported from the four Mexican States; the possibility that imports of those two commodities, in particular, could transmit not only CSF to U.S. herds but other diseases as well; the conditions under which pork and pork products would be imported into the United States from the four Mexican States; the adequacy of controls on the movement of products from CSF-affected regions into the four Mexican States; the possibility of commingling of products originating in the four States with products imported into those States from surrounding CSF-affected regions; swine identification and traceback in Mexico; and the adequacy of some aspects of the veterinary infrastructure in the four Mexican States.

The commenter noted that for a separate CSF-related rulemaking, APHIS conducted a risk analysis that included quantitative risk assessments for live swine, swine semen, and pork. (The rulemaking cited by the commenter involved the recognition of a region in the European Union (EU) consisting of Austria, Belgium, Greece, the Netherlands, Portugal, and parts of Germany and Italy as free of CSF; that rulemaking was completed with the publication of a final rule in the Federal Register (68 FR 16922-16940, Docket No. 98-090-5) on April 7, 2003.) The commenter stated that risk analyses conducted for our September 2002 proposed rule regarding the four Mexican States did not include separate assessments for live swine and swine semen, even though, in general, there are higher levels of risk associated with importing live animals and germ plasm than with importing pork and pork products. The commenter requested an explanation of the apparent disparity in the risk determination procedures used in the two rulemakings.

In conducting the analyses that provided the basis for our September 2002 proposed rule concerning Campeche, Quintana Roo, Sonora, and Yucatan, we used our standard approach, which is described in § 92.2 of the regulations, and we found the risk of CSF transmission to the United States via imports from these four Mexican States to be low. Historically, we have not conducted separate risk analyses for live swine and swine semen in similar rulemakings. Our typical approach when evaluating a region for disease-free status has been to conduct qualitative analyses. Regions that have met criteria for disease freedom, such as the four Mexican States covered by this rulemaking, are typically those that have not reported an outbreak of the relevant disease in many years, do not allow vaccinations that might mask disease, and whose products are considered to present a relatively low risk for disease transmission. Regions for which quantitative analyses are conducted, on the other hand, are typically those which a qualitative evaluation suggests might be associated with a higher level of risk due to the presence of such risk factors as recent disease outbreaks or a continuing program of vaccination. One such risk factor that influenced our approach to the EU risk analysis cited by the commenter was the presence of CSF in wild boars in the EU. That risk factor was not known to exist in the four Mexican States. The EU rule was also much larger in scope than our September 2002 proposed rule, involving various countries within the EU and regions within EU countries.

The commenter pointed out that the risk evaluation documentation supporting equivalent rulemaking involving Baja California, Baja California Sur, Chihuahua, and Sinaloa—a final rule covering the CSF status of those four Mexican States was published in the Federal Register (68 FR 47835-47842) on August 12, 2003—included probability functions for commercial and backyard herds, while the documentation for the September 2002 proposed rule did not include these mathematical results.

In the rulemaking involving Baja California, Baja California Sur, Chihuahua, and Sinaloa, information that lent itself to the type of analysis cited by the commenter was made available to us by the Mexican Government. We did not require the Mexican Government to furnish that information, however, and do not routinely require such information. Generally, our qualitative risk analyses do not include probability functions.

The commenter also suggested that the risk analyses that provided the basis for the current rulemaking did not accord with the recommendations of the Office International des Epizooties (OIE) for conducting such analyses. OIE recommends that an import risk analysis contain four components: Release assessment, exposure assessment, consequence assessment, and risk estimation. According to the commenter, neither our evaluation of the three Yucatan Peninsula States nor our evaluation of Sonora contained exposure or consequence assessments.

We believe that the risk analyses that we conducted for the four Mexican States did conform to OIE guidelines. The evaluation we conducted was a release assessment. The OIE guidelines state that, if the release assessment demonstrates no significant risk, the risk assessment may conclude at that point. Because we determined the risk values for release to be small, we did not conduct exposure or consequence assessments.

Noting the higher risk of disease transmission associated with live swine and swine semen relative to that of pork or pork products, the commenter requested additional information about the conditions under which live swine would be imported into the United States from the four Mexican States covered by this rulemaking and about the types, locations, biosecurity policies, etc., of the semen centers that would have the potential to ship semen for use in U.S. swine herds.

Though this final rule allows imports of live swine and swine semen from Campeche, Quintana Roo, Sonora, and Yucatan, we do not intend to issue import permits for live swine and swine semen from Mexico until we have resolved several issues related to the presence of blue eye disease in Mexico (those issues are discussed in greater detail later in this document). We are confident that once the blue eye disease issue is settled, the regulations will provide for the safe importation into the United States of live swine and swine semen from the four Mexican States.

Live swine may be imported into the United States only in accordance with §§ 93.500 through 93.521. These sections include, among other things, requirements for import permits, health certification, inspection and cleaning of conveyances used to transport swine, inspection of swine at the port of entry, and quarantine methods and facilities. Section 93.507, which pertains to port-of-entry inspection, provides that only those swine found to be free of communicable diseases and not to have been exposed to communicable diseases in the 60 days prior to their importation are eligible for entry. Section 93.510 requires that all imported swine be quarantined for a period of not less than 15 days, dating from the arrival of the swine at the port of entry. For the most part, the regulations in part 93 provide effective prevention against transmission of CSF to the U.S. swine population by means of imports of live swine. As we noted in the preamble to our August 2003 final rule covering Baja California, Baja California Sur, Chihuahua, and Sinaloa, however, a review of the regulations led us to determine that we needed to provide more protection against the possible commingling of live swine from certain CSF-free regions with swine from other regions before the eligible swine are exported to the United States. In that final rule, we added to 9 CFR part 94 a new § 94.24 (as noted, that section has since been redesignated as § 94.25), which contained a certification requirement intended to ensure that live swine, as well as pork and pork products, imported from Baja California, Baja California Sur, Chihuahua, and Sinaloa originated in one of those States or in another region recognized by APHIS as free of CSF and that, prior to export to the United States, such animals and animal products have not been commingled with animals and animal products from regions where CSF exists. The risk factors cited in connection with imports from those four CSF-free Mexican States—they supplement their pork supplies with fresh (chilled or frozen) pork imported from regions designated in §§ 94.9 and 94.10 as being affected by CSF, share a common land border with CSF-affected regions, or import live swine from CSF-affected regions under conditions less restrictive than would be acceptable for importation into the United States—also apply to Campeche, Quintana Roo, Sonora, and Yucatan. Therefore, in this final rule, in addition to adding Campeche, Quintana Roo, Sonora, and Yucatan to the lists in §§ 94.9 and 94.10 of regions where CSF is not known to exist, we are also adding those four Mexican States to the list of regions in § 94.25 to which certification requirements apply to live swine, pork, and pork products.

Swine semen may be imported into the United States only in accordance with §§ 98.30 through 98.36. These sections include requirements for the inspection, unloading, cleaning, and disinfection of aircraft, other means of conveyance, and shipping containers used to move animal semen into the United States; import permits; and health certificates and other documents. Part 98 also offers protection against the commingling of animal semen from disease-free and disease-affected regions. Paragraph (b) of § 98.31 states that animal semen may not be imported into the United States from any region other than that in which it was collected. Paragraph (f) of § 98.35 requires that all shipping containers carrying animal semen for importation into the United States must be sealed with an official seal of the national veterinary service of the region of origin. Also, under part 98, import permits for semen may be denied because of, among other things, communicable disease conditions in the region of origin or in a region through which the shipment has been or will be transported. Taken together, these and other provisions in part 98 make the prospect of CSF transmission to U.S. swine herds via the importation of swine semen from Campeche, Quintana Roo, Sonora, and Yucatan very unlikely. As we noted in the preamble to the August 2003 final rule, we did not think it necessary to make any changes in the regulations pertaining to semen.

Another concern expressed by the commenter, who raised the same issue in connection with the rulemaking covering Baja California, Baja California Sur, Chihuahua, and Sinaloa, was that allowing the importation of live swine and swine semen from Campeche, Quintana Roo, Yucatan, and Sonora could increase the risk of infection of U.S. swine herds with diseases such as pseudorabies, vesicular stomatitis, and blue eye disease.

The inspection, permitting, certification, and quarantine provisions in part 93 allow APHIS to screen imported live swine for pseudorabies and to take effective measures to prevent its spread, including refusal of entry. Under § 93.507, APHIS may refuse entry to swine found upon inspection at the port of entry to have a communicable disease or to have been exposed to such a disease within 60 days of their exportation to the United States. Live swine from Mexico are not considered likely to transmit vesicular stomatitis to U.S. herds, and we do not require testing of either live swine or other species from Mexico for that disease. Blue eye disease does provide some cause for concern. Although several laboratory tests have been developed for the detection of that disease, none has been validated or is commercially available in the United States. Moreover, APHIS does not have current and complete information on the geographic distribution of blue eye disease in Mexico. In the absence of specific clinical signs, a reliable laboratory test, and complete epidemiological information, specific mitigation measures for blue eye disease of swine are difficult to design. Under § 93.504(a)(3), however, APHIS may deny permits for the importation of live swine due to communicable disease conditions in the region of origin, among other reasons. Similarly, under § 98.34(a)(3), APHIS may deny import permits for animal semen because of communicable disease conditions in the region of origin, among other reasons. We intend to rely on our authority under 9 CFR parts 93 and 98 to support our decision not to issue any permits for the importation of live swine and swine semen from any Mexican States until the issue of blue eye disease can be addressed more comprehensively. With that goal in mind, APHIS intends to collect information and conduct an assessment of the risk of introducing blue eye disease in live swine and swine semen imported from Mexico.

The commenter also questioned why the import conditions we proposed to apply to pork and pork products from Campeche, Quintana Roo, Sonora, and Yucatan differed from the provisions already in place in § 94.21 for the importation of those commodities from Sonora and Yucatan. Among other things, § 94.21 includes requirements that pork or pork products from Yucatan and Sonora be derived from swine that were born and raised in Sonora or Yucatan and slaughtered in Sonora or Yucatan at a federally inspected slaughter plant that is under the direct supervision of a full-time salaried veterinarian of the Government of Mexico; that, if processed, the pork or pork product was processed in either Sonora or Yucatan in a federally inspected processing plant that is under the direct supervision of a full-time salaried veterinarian of the Government of Mexico; that the pork or pork product has not been in contact with pork or pork products from any State in Mexico other than Sonora or Yucatan or from any other region not recognized as CSF-free; and that the shipment of pork or pork products has not been in any State in Mexico other than Sonora or Yucatan or in any other region not recognized as CSF-free en route to the United States, unless it has been shipped in sealed containers. Since we proposed to remove § 94.21, the commenter asked why we thought such mitigations were no longer needed.

Risk evaluations carried out during the 1990s led APHIS to conclude that pork and pork products could safely be imported into the United States from Yucatan and Sonora under conditions designed to prevent the commingling of such products prior to exportation with pork and pork products from surrounding regions with lower CSF status. Consequently, on January 11, 2000, we published in the Federal Register (65 FR 1529-1537, Docket No. 97-079-2) the final rule setting out the conditions for imports from those two Mexican States. Unlike the current rulemaking, however, the January 2000 final rule did not recognize Yucatan and Sonora as free of CSF. Generally, import requirements tend to be less stringent for disease-free than for disease-affected regions, so it was to be expected that the requirements described in our September 2002 proposed rule would not be as rigorous as those imposed on Sonora and Yucatan in the earlier rulemaking. Our subsequent review of the regulations, however, led us to incorporate most of the safeguards against the commingling of pork and pork products prior to importation into the United States that were contained in § 94.21 into the certification requirements of § 94.25. Under this final rule, imports of pork and pork products from Campeche, Quintana Roo, Yucatan, and Sonora will have to meet the certification requirements of § 94.25.

The commenter also requested more information regarding the location, disease status, and surveillance of feral swine populations in Mexico. Such information would be helpful, according to the commenter, in understanding the risk of CSF transmission across the feral-domestic swine interface in Mexico.

Populations of feral swine exist in most Mexican States. There are no specific surveillance programs in effect for these populations; therefore, no definitive statements can be made about their health status. We only view feral swine as a cause for concern if such animals are transmitting disease to swine being raised for slaughter. We have no evidence to suggest that this is happening or that CSF is circulating or has ever circulated in feral swine in Mexico. In addition, we do not currently conduct CSF surveillance in feral swine within the continental United States, where there is also no evidence to suggest that CSF is circulating in feral swine. Therefore, in view of our obligation under the World Trade Organization-Sanitary and Phytosanitary Measures agreement not to impose discriminatory measures on other countries, we do not think it appropriate to require Mexico to conduct CSF surveillance in feral swine.

The commenter noted that the feeding of CSF-infected meat waste to swine is known to be one of the principal means of introducing CSF into previously free areas and that our supporting documents suggested that the majority of waste food feeding occurs in backyard farms. According to the commenter, while feeding of waste food from airlines within CSF eradication zones is not permitted, feeding of other waste food is unregulated. The commenter requested information on what risk mitigation strategies were considered in APHIS' risk estimation, given the potential for interaction between backyard and feral swine, and the possibility of unregulated waste food being fed to backyard swine.

Safeguards are in place in Mexico to prevent the transmission of CSF by means of feeding CSF-infected waste meat to swine. In CSF-free Mexican States and States undergoing eradication, the feeding of table scraps to swine is prohibited, in both commercial and backyard operations. Backyard swine are fed on their owners' premises, where wild swine are not given access to the food. In the unlikely event that backyard swine in a CSF-free zone could have access to table scraps, these scraps would include pork from the same free zone or from another zone with the same health status, since it is forbidden to introduce raw pork or raw pork byproducts from an area in the control or eradication phase into a CSF-free zone.

Noting that producers provide significant funding for animal health activities in the four Mexican States, including laboratory facilities and functions in some States, the commenter questioned whether APHIS could be assured that these responsibilities would be properly carried out when producers had significant market downturns that decreased their income and their ability to maintain their commitments to disease programs.

As we noted in both the risk analyses for the four Mexican States and the proposed rule, for both economic and animal health reasons, the swine industry in the Yucatan Peninsula and Sonora is committed to producing quality hogs and maintaining CSF-free status. Industry leaders have demonstrated awareness of animal disease control measures necessary to ensure the maintenance of a healthy and productive animal industry. The eradication of CSF from the four Mexican States was largely due to the dedication and persistence of the industry and to its willingness to work with animal health officials to ensure that the disease is not reintroduced.

The commenter also requested information on the status of a national swine identification program in Mexico, on how slaughtered swine are traced back to their farms of origin, and on whether traceback of live swine or semen importations could be done if needed.

There is no official national system for the individual identification of swine in Mexico, so each farm or State or regional swine-producers' union or association establishes its own local registration system among its members. An official Mexican standard is now being drafted that will make it possible to have a uniform identification system, which for swine will entail an individual identification in the form of an eartag or tattoo containing information about the State of origin and a consecutive number for the animal assigned by the Federal Secretariat for Agriculture, Livestock, Rural Development, Fisheries and Food Safety (SAGARPA), under the control of the State Livestock Promotion and Protection Committees.

There is an adequate system in place in Mexico to ensure that slaughtered swine can be traced back to their premises of origin. The federally inspected abattoirs (the Spanish acronym is TIF) have government veterinarians who inspect the animals ante and post mortem. Each lot of animals is placed in a pen, and each animal is identified with the pen number. There is a slaughter schedule that takes the animals pen by pen. In the event that any abnormality is detected during the inspection, the lot to which the animal belongs can be determined from the plant's records, which include information concerning the identity of the farm of origin. Municipal abattoirs keep logbooks containing information on the animals' origins.

Mexico is also able to trace back shipments of live swine and swine semen to their premises of origin. Shipments of live swine and swine semen, whether imported into Mexico from another country or moving within Mexico, must be accompanied by animal health certificates. According to Article 24 of Mexico's Federal Animal Health Law, the animal health certificate must contain, among other things, information regarding the place of origin and specific destination of the animals, animal products, or other materials in the shipment. This required information makes traceback possible when needed.

Noting that in the site visit report for the Yucatan Peninsula, APHIS had recommended that Mexican laboratories obtain a source of CSF-infected, gamma-irradiated (virus inactivated) tissue for use as a positive control for the CSF fluorescent antibody tissue section test, the commenter asked whether this recommendation had been followed.

It was not possible to carry out the recommendation to obtain CSF-infected, gamma-irradiated tissue because neither of the two national reference laboratories has performed this process and it is not required for authorizing clinical diagnostic laboratories. The Regional Central Laboratory in Merida, Yucatan, is authorized to perform the immunoperoxidase, enzyme-linked immunosorbent assay, and immunofluorescence test for CSF, however, for which it uses a conjugate prepared by PRONABIVE and a monoclonal conjugate prepared by the University of Iowa. The laboratory does not use a positive control, since the State of Yucatan is a CSF-free zone, and it would be hazardous to have virus samples or tissue with virus in such a zone.

The commenter expressed some concern about a statement in our site visit report for the Yucatan Peninsula States that could be interpreted as indicating that authorized industry associations could set movement control rules.

The technical guidelines for movements of swine and pork products and byproducts nationwide in Mexico are contained in NOM-037-ZOO-1995, National Classical Swine Fever Campaign, and compliance is compulsory throughout all of Mexico. Under these guidelines, no industry association may establish any movement control rules, but such associations may be authorized by SAGARPA to issue the animal health certificates required for animal movements. For an industry association to issue animal health certificates, it must have a veterinarian authorized to do so, must be a member of one of Mexico's five national certification bodies, and must meet all applicable requirements set forth in NOM-037-ZOO-1995.

The commenter also discussed some narrower issues pertaining to the individual States covered by the proposed rule. Areas of concern included the veterinary infrastructure of the individual States, the disease status of adjacent regions, and movement controls.

The commenter noted that the documents supporting the current rulemaking indicated that, within the Federal component of the Mexican animal health infrastructure, 109 veterinarians are currently certified to treat CSF and pseudorabies, yet none of them reside in Campeche. The commenter expressed the concern that the lack of such certified veterinarians in Campeche could cause delays in the diagnosis of these diseases.

We do not believe that the lack of veterinarians residing in Campeche would result in delays in diagnosing CSF or pseudorabies in that State because State and Federal personnel, working in concert, provide adequate coverage. Under the National Epidemiological Surveillance System, continuous surveys are conducted of both technically advanced and backyard swine production facilities for these and other diseases, and followup action is taken where necessary.

Samples are obtained from both types of facilities by SAGARPA and State veterinarians, who are supported by the State Livestock Promotion and Protection Committee. In addition, the official animal health infrastructure in the State encompasses the operations of laboratories, slaughterhouses, checkpoints, and quarantine stations, and the control of movements of animals and animal products.

Noting that there were six animal health centers located in the State of Campeche but that none was authorized to diagnose CSF, the commenter asked whether the State had received expected funding that could result in such authorization.

While the funding has not yet materialized, diagnostic support for Campeche is currently available from the Regional Central Laboratory in Merida, Yucatan, which is approved to diagnose CSF and provides regional service for Yucatan, Campeche, and Quintana Roo. Moreover, since Campeche is an area that is free of CSF, the Exotic Animal Disease Commission's (EADC's) high-security laboratory in Mexico City provides the first level of diagnostic support in suspicious cases, while the scheduled annual surveys are channeled to the Regional Central Laboratory in Merida. Both laboratories participate in diagnosing CSF in the State of Campeche.

The commenter argued that the CSF status of Campeche's neighboring Mexican States, particularly that of Chiapas, should be considered when defining the CSF status in regions contiguous to Campeche. The commenter noted that the narrow central region of the neighboring Mexican State of Tabasco separates Campeche from Chiapas by only 15 kilometers and that new outbreaks of CSF had been reported in either Tabasco or Chiapas every year from 1996 to 2001.

In fact, although evaluation of adjacent regions is a routine component of an APHIS review, APHIS solicited additional information. In the year 2001, seven outbreaks of CSF were recorded in Chiapas and two in Tabasco. The risks posed by these outbreaks for swine production in the State of Campeche are mitigated, however, by the animal movement control and inspection activities conducted by SAGARPA, the State Government of Campeche, and the State Livestock Promotion and Protection Committees. As we noted in the preamble to the September 2002 proposed rule, animal movement into the Yucatan Peninsula States is tightly controlled. A regional quarantine line, known as the “Peninsula-Tabasco Quarantine Line,” has 10 inspection points that conduct animal health inspection activities and vehicle disinfection.

The commenter also requested more recent information with regard to the effectiveness of the quarantine line, noting that 2,881 seizures of swine were recorded in 1998.

The Mexican Government has furnished data on the total number of seizures of swine, poultry, and bovine products and byproducts, as well as products of plant origin, made at this quarantine line for the years 2001 and 2002. In 2001, there were 408 seizures, and in 2002, 7,488.

The commmenter also inquired as to whether there was any additional evidence of CSF outbreaks in the Petán region of Guatemala, which abuts Campeche.

We have no additional evidence of CSF outbreaks in that region. According to information the Mexican Government has received from Guatemala, the Petán Region is free of CSF, and Guatemala conducts epidemiological surveillance activities in that region in order to keep it free. CSF is more commonly reported in the southern region of Guatemala, which is not contiguous to Campeche.

The commenter expressed some of the same concerns about the veterinary infrastructure of Quintana Roo as about Campeche, citing the absence of veterinarians certified to diagnose CSF and pseudorabies residing in the State and the consequent possibility that diagnosis of these diseases could be delayed. Since the surveillance activities and veterinary infrastructure of Quintana Roo parallel those of Campeche, we do not see delayed diagnosis as an issue of particular concern for Quintana Roo.

The commenter requested information on how pork product importation is controlled at Puerto Morelos and who is responsible for the inspection and verification process. The commenter pointed out that a supporting document furnished by the Government of Mexico contained a statement that pork and pork products entering Quintana Roo by boat, chiefly bound for Cancun, undergo inspection at Puerto Morelos, yet there are no international port authorities there because Puerto Morelos is not considered to be a commercial port.

We view the existing controls on the movement of pork and pork products into Quintana Roo by boat as adequate to prevent the introduction of CSF into the State. Quintana Roo imports pork and pork products produced in and shipped from TIF plants in the Mexican States of Aguascalientes, Chiapas, Michoacan, Nuevo Leon, Sonora, Tamaulipas, Yucatan, and the Federal District. These products are subject to regulations set down in Mexican Official Standard NOM-037-ZOO-1995, National Campaign against Classical Swine Fever, and in NOM-007-ZOO-1994, National Campaign against Aujeszky's Disease (i.e., pseudorabies). No pork products are received into Quintana Roo from abroad, so we do not view the absence of international port authorities at Puerto Morelos as problematic.

The commenter noted that, of the Mexican States from which Quintana Roo imports pork products and byproducts, only Sonora and Yucatan are recognized in this rulemaking as free of CSF. The commenter requested information on how SAGARPA would control movements of products into Quintana Roo and what guarantees with regard to compliance with heat treatment protocols would be provided to APHIS.

As we have noted, pork and pork products entering Quintana Roo or other CSF-free zones must have been produced in and shipped from TIF plants. The Mexican Government regulations are more stringent for products produced in TIF plants located in CSF-affected zones than for products produced in plants in CSF-free zones. Only cooked or matured products are allowed to enter Quintana Roo from non-free zones, and these products are subject to various shipping, temperature, and recordkeeping requirements. Such products may only be transported in sealed vehicles. When the shipments of such pork and pork products arrive in the destination State, the Government-or Ministry-authorized personnel assigned to the checkpoints at the entrance to the State review the animal health certificate, certify that the seal has not been removed, and remove the seal and inspect the load to determine that it corresponds to what is stated in the animal health certificate.

In addition to the existing controls placed upon the movement of pork and pork products from CSF control or eradication zones into free zones, as mentioned earlier, in order to be eligible to enter the United States, pork or pork products from Quintana Roo (as well as the other three Mexican States in this rule) will have to meet the certification requirements of § 94.25. These include requirements that the pork or pork products must have been derived from swine born and raised in a CSF-free region and slaughtered in such a region at a federally inspected slaughter plant; that the pork or pork products have never been commingled with pork or pork products that have been in a CSF-affected region; and that the pork or pork products have not transited through such a region unless moved directly through the region to their destination in a sealed means of conveyance with the seal intact upon arrival at the point of destination. We are confident that these certification requirements, as well as the existing Mexican Government regulations regarding the movement of pork and pork products into CSF-free zones, will provide effective protection against commingling of products prior to their export from Quintana Roo to the United States.

The commenter also expressed some concerns about infrastructure and product movement issues with regard to Sonora. The commenter asked whether the diagnostic laboratories operated by the group of 174 producers located in the State of Sonora are accredited by the Government of Mexico to test for CSF and also inquired about who has responsibility for reporting diagnostic activities to the State. The commenter also claimed that it is unclear how documents are administered in Sonora for inter- and intrastate livestock movements. Noting that the document entitled “Characterization of the State of Sonora for International Recognition as a CSF-Free Zone” indicates that health certificates for control of animal movements are issued by livestock groups and have the signature of a veterinarian, the commenter requested information on where the data regarding these movements reside, in case access is needed for disease traceback purposes.

At present there is one laboratory in Sonora that is authorized by SAGARPA to conduct CSF diagnostic tests. This laboratory, called the “Laboratorio Pecuarius,” has personnel trained and authorized by SAGARPA to perform diagnostic activities according to national and international standards. The Laboratorio Pecuarius sends a monthly electronic report to the National Epidemiological Surveillance System on diagnoses made, including those related to CSF. This report is endorsed by the person in charge of the laboratory, who is an authorized veterinarian. In addition, the EADC follows up on any clinical suspicions of CSF and has diagnostic support from the EADC's high-security laboratory, since CSF is classified as an exotic disease for Sonora.

We view Sonora's system of document administration for animal movement as adequate to allow traceback when necessary. Various copies of the animal health certificate that must accompany animals in transit are made and kept. One copy is kept by the user, another by the center issuing the certificate, and another by SAGARPA. Access to these documents may be obtained in two ways: Centrally, at SAGARPA's offices, and at the local level, through the issuing center. In addition, this information is processed by each certification body and sent to SAGARPA, which is in charge of compiling it and can have access to it if required.

Noting that live swine entering the State of Yucatan are registered animals with high genetic value and come overland from Sonora and Sinaloa, the commenter requested information on what processes are in place to prevent the introduction of communicable diseases of swine into the State from infections that may occur as swine shipments move through regions of Mexico known to be infected by CSF, pseudorabies, and other diseases.

Effective controls are in place to prevent the infection of swine in transit to Yucatan. Swine entering Yucatan from another Mexican State must come from a CSF-free State, such as Sonora or Sinaloa, in order to be marketed as breeding stock in Yucatan. Such shipments must be accompanied by animal health certificates. The vehicles in which the swine are carried must be kept sealed from the point of origin to the destination. If the vehicles that transported the swine move through a CSF-control zone before returning to their place of origin, they must be washed and disinfected with an authorized disinfectant. If the swine have traveled through States or zones of inferior health status, they must be kept in isolation for 20 days at their final destination. During this confinement, serological tests for CSF are conducted. Swine imported into Yucatan from regions outside Mexico must have originated in regions recognized as being CSF-free and must also be isolated upon arrival in Yucatan.

In addition to the controls placed upon swine in transit by the Mexican Government, § 94.25 includes, among other things, a requirement that live swine intended for export to the United States may not have transited a CSF-affected region unless moved directly through the region to their destination in a sealed means of conveyance with the seal intact upon arrival at the point of destination.

As we noted earlier in this document, in our September 2002 proposed rule, we had proposed to remove references to Campeche, Quintana Roo, Sonora, and Yucatan that were contained in § 94.15(b) of the regulations because we believed that paragraph, which, among other things, governs the transiting through the United States of pork and pork products not otherwise eligible for entry into the United States under part 94, would no longer apply to those States once we recognized them as CSF-free. Some of the pork and pork products produced in those States for export, however, may be produced in plants that are not approved by the Food Safety and Inspection Service of the USDA to export products to the United States. Such pork and pork products, while ineligible for importation into the United States under the conditions of this final rule, are allowed to transit through the United States under current § 94.15(b). In order to allow such products to continue to transit the United States, we have decided not to finalize our proposed changes to § 94.15(b).

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document.

This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made effective less than 30 days after publication in the Federal Register. This rule adds the Mexican States of Campeche, Quintana Roo, Sonora, and Yucatan to the lists of CSF-free regions and allows pork, pork products, live swine, and swine semen to be imported into the United States from those four Mexican States under certain conditions. We have determined that 15 days are needed to ensure that APHIS and Department of Homeland Security—Bureau of Customs and Border Protection personnel at ports of entry receive official notice of this change in the regulations. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective 15 days after publication in the Federal Register.

This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

This rule amends the regulations in 9 CFR part 94 by adding the Mexican States of Campeche, Quintana Roo, Sonora, and Yucatan to the lists of regions in §§ 94.9 and 94.10 considered free of CSF and to the list of CSF-free regions in § 94.25 from which live swine, pork, and pork products intended for export to the United States must be certified as having originated in one of those regions or in another region recognized by APHIS as free of CSF and as not having been commingled, prior to export to the United States, with animals and animal products from regions where CSF exists.

Based on the assumption that Campeche, Quintana Roo, Sonora, and Yucatan will not drastically increase their levels of production of live swine, swine semen, pork, and pork products over those of the last few years, we do not anticipate that U.S. producers of those commodities will experience any substantial negative economic effects as a result of this rulemaking. This is because the United States is expected to import only a small amount of those commodities from the four Mexican States.

This rule is likely to have a minimal effect on U.S. live swine markets, both in the short term and in the medium term. As noted earlier, we will not begin issuing import permits for live swine or swine semen from the four Mexican States until our concerns about blue eye disease are allayed. When such imports do commence, we expect that their volume will be limited and their economic impact small. Hog inventory of the four States covered by this rulemaking amounted to about 5 percent of U.S. hog and pig inventory in 2001.1 Moreover, the four States covered by this rulemaking account for only about 13 percent of Mexico's live swine production. In 2001, the State of Sonora produced 10 percent of Mexico's live swine, Yucatan 2.3 percent, Quintana Roo 0.7 percent, and Campeche 0.2 percent. Figures for live swine are provided in table 1.

This rulemaking is also unlikely to have a significant effect on U.S. pork and pork products markets because, as with live swine, the United States is unlikely to import large amounts of these commodities from Campeche, Quintana Roo, Sonora, and Yucatan. The United States is a net exporter of pork, while Mexico, as indicated below in tables 2 and 3, is a net importer. Between 2000 and 2002, Mexico imported between 130,000 and 325,000 metric tons and exported between 35,000 and 61,000 metric tons.

The Regulatory Flexibility Act requires that agencies consider the economic impact of their rules on small entities. The domestic entities most likely to be affected by our declaring the Mexican States of Campeche, Quintana Roo, Sonora, and Yucatan free of CSF are pork producers.

According to the 1997 Agricultural Census, there were about 102,106 hog and pig farms in the United States in that year, of which 93 percent received $750,000 or less in annual revenues. Agricultural operations with $750,000 or less in annual receipts are considered small entities, according to the Small Business Administration (SBA) size criteria.

We do not expect that U.S. hog producers, U.S. exporters of live hogs, or U.S. exporters of pork and pork products, small or otherwise, will be affected significantly by this final rule. This is because, for the reasons discussed above, the amount of live swine, pork, other pork products, and swine semen imported into the United States from the Mexican States of Sonora, Yucatan, Campeche, and Quintana Roo is likely to be small.

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

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

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

On July 8, 2004, the agencies published a joint interim rule with request for comment in the Federal Register (69 FR 41181) that amended our regulations implementing the CRA (12 U.S.C. 2901 et seq.). The joint interim rule conformed the agencies' CRA regulations to recent actions of OMB, Census, and the Board.1 Together, the agencies received nine discrete comments: six from community organizations, two from financial institutions, and one from an industry trade organization.

OMB updates its standards for defining statistical areas approximately every 10 years. The agencies' CRA regulations use OMB's standards for defining metropolitan areas for purposes of CRA data collection and reporting, and for delineating institutions' assessment area(s). Under OMB's 1990 standards, metropolitan areas consisted of: (1) metropolitan statistical areas (MSAs) and (2) larger consolidated metropolitan statistical areas (CMSAs). These CMSAs consisted of primary metropolitan statistical areas (PMSAs).

In 2000, OMB adopted new Standards for Defining Metropolitan and Micropolitan Statistical Areas, which replaced OMB's 1990 standards. 65 FR 82228 (Dec. 27, 2000). The 2000 standards retain the basic concept of an MSA (an area with at least 50,000 population), but divided MSAs having a single core with a population of at least 2.5 million into “metropolitan divisions.” OMB directed all agencies that conduct statistical activities to collect and publish data for MSAs using the most recent definition of the area.2 The joint interim rule made several changes to the CRA regulations to incorporate OMB's new standards and definitions.

The joint interim rule removed the definition of “CMSA” and all references to CMSAs because OMB no longer uses that term. As discussed below, where the regulations referred to CMSAs, the joint interim rule replaced “CMSA” with “MSA.”

The joint interim rule revised the definition of “MSA” to remove the reference to PMSA, another term that OMB no longer uses. The revised definition of “MSA” refers only to metropolitan statistical areas, as defined by OMB (12 CFR 25.12(r), 228.12(r), 345.12(r), and 563e.12(q)).

We added a definition of “metropolitan division” in the joint interim rule because in certain large MSAs, OMB has delineated “metropolitan divisions,” which are the statistical areas for which the agencies have determined that CRA data are to be reported, median family income is to be calculated, and within which an institution's CRA performance is to be evaluated (12 CFR 25.12(q), 228.12(q), 345.12(q) and 563e.12(p)).

Next, the joint interim rule clarified that an institution may designate an assessment area that includes one or more metropolitan divisions within a large MSA (12 CFR 25.41, 228.41, 345.41, and 563e.41), just as an institution previously could have designated an assessment area that included one or more PMSAs. Although the agencies' regulations prior to publication of the joint interim rule allowed an institution to delineate an entire CMSA as an assessment area, examiners evaluated CRA performance at the PMSA level using PMSA income data. The joint interim rule's supplementary information section explained that examiners similarly will evaluate CRA performance at the metropolitan division level in those MSAs that are divided into metropolitan divisions, even if the institution delineates an assessment area of more than one metropolitan division, an entire MSA, or more than one contiguous MSA.

Prior to the adoption of the joint interim rule, 12 CFR 25.41(e)(4), 228.41(e)(4), 345.41(e)(4), and 563e.41(e)(4) stated that an assessment area “[m]ay not extend substantially beyond a CMSA boundary * * *.” The joint interim rule changed these provisions to replace “CMSA” with “MSA” to conform the terminology to the new OMB area standards. The regulations still allow an institution to delineate an assessment area consisting of more than one contiguous MSA. See 12 CFR 25.41(c)(1), 228.41(c)(1), 345.41(c)(1), and 563e.41(c)(1). The border of such an assessment area, however, may not extend substantially beyond the boundaries of the MSAs in the assessment area.

Finally, the joint interim rule added a new definition of “nonmetropolitan area,” which is any area that is not included in an MSA (12 CFR 25.12(s), 228.12(s), 345.12(s), and 563e.12(r)).3 In a related matter, the joint interim rule changed the agency-prepared annual aggregate disclosure statements to include a statement for the “nonmetropolitan portion of each state” rather than the “non-MSA portion of each state,” which was the language prior to the change, to ensure consistent terminology throughout the regulation. See 12 CFR 25.42(i), 228.42(i), 345.42(i), and 563e.42(i).

Some community organizations commented that financial institutions should be required to designate an assessment area consisting of an entire MSA, rather than having the option to designate an assessment area limited to one or more metropolitan divisions within an MSA. They were concerned that the option to choose a metropolitan division would allow institutions to exclude from their assessment area(s) the urban areas in the Detroit-Livonia-Warren MSA, and in other large MSAs that are divided into metropolitan divisions. As discussed in the supplementary information section of the joint interim rule, OMB's boundaries cause some census tracts in the Detroit-Livonia-Dearborn Metropolitan Division (which consists only of Wayne County and represents the urban center of Detroit) to change classification from moderate-to middle-income, while some census tracts in the suburban Warren-Farmington Hills-Troy Metropolitan Division change classification from middle-to moderate-income. 69 FR 41183 (July 8, 2004). The commenters argued that institutions will be encouraged by these changes to exercise their option to include only the suburban metropolitan division(s) in their assessment area(s).

The agencies have carefully considered the commenters' concern. However, for the following reasons, we are not adopting the suggested change. The change advocated by the commenters would represent a significant departure from the CRA regulations regarding assessment area delineation, which allow institutions to delineate assessment areas smaller or larger than an entire MSA, if certain conditions are met. Under the 1995 CRA regulations, an assessment area can be as small as the census tracts in which the institution has its main office, its branches, and its deposit-taking ATMs; or a political subdivision such as a city, county, or town; or it could consist of a single PMSA, an entire MSA, or a CMSA, if the conditions are met.4 One of the conditions has been, and continues to be, that the area designated does not arbitrarily exclude low-or moderate-income geographies or reflect illegal discrimination.5 Further, the regulations allow, and continue to allow, institutions to delineate assessment areas smaller than an entire MSA. An institution can delineate assessment areas that are political subdivisions and may even adjust the boundaries of its assessment areas to include only the portion of a political subdivision that it reasonably can be expected to serve. An adjustment is particularly appropriate in the case of an assessment area that otherwise would be extremely large, of unusual configuration, or divided by significant geographic barriers.6 Requiring institutions to delineate assessment areas no smaller than an entire MSA may be unreasonable for institutions that have delineated smaller assessment areas based on their institutional size, capacity, and business strategy.

Unusual assessment area concerns, such as those presented by the Detroit-Livonia-Warren MSA, can be better addressed by examiners on a case-by-case basis, using the current CRA regulations and examination procedures.7 The CRA regulations continue to prohibit delineating assessment areas that reflect illegal discrimination or that arbitrarily exclude low-or moderate-income neighborhoods.8 If an institution in Detroit, or another MSA, changes its assessment area(s) to exclude urban areas, examiners will look at factors such as income levels inside and outside an institution's assessment area, the institution's size, financial condition, where it lends, and its business strategy to determine whether the institution is engaging in redlining.9 Further, in the service test, examiners consider branch distribution among geographies of different income categories and branch closings, particularly in low- and moderate-income geographies. Examination staffs at all of the agencies are aware of the new OMB boundaries and the potential impact on income level classifications. The agencies believe that these provisions are sufficient to prevent institutions from inappropriately redrawing their assessment areas to exclude urban metropolitan divisions.

Finally, the agencies do not believe that the joint final rule will result in wholesale redlining of urban Detroit as commenters suggested. Data from 2003 on the branch locations and assessment area(s) of the 32 institutions in Detroit that were deemed “large” for CRA purposes suggest that a substantial majority of those institutions would not exclude the urban metropolitan division from their assessment area(s). Specifically, 20 of the large institutions in Detroit had at least one branch in Wayne County. Of the 20 institutions, 16 had assessment areas that included Wayne County and the suburban counties, and had branches in both Wayne County and the suburban counties. Three institutions had assessment areas and branches only in Wayne County, and one had assessment areas that included both Wayne County and the suburban counties, but had branches only in Wayne County. Thus, those institutions cannot entirely exclude the Detroit-Livonia-Dearborn Metropolitan Division from their assessment area(s).10

One financial institution commenter suggested that, rather than replacing the term “CMSA” with “MSA”, the agencies should have replaced “CMSA” with “CSA” (combined statistical area), another new area standard that OMB adopted in 2000. The agencies believe that it may be appropriate for some institutions to delineate an assessment area based on a CSA. The agencies have not, however, made the suggested change to the regulation because a CSA is not the direct equivalent of a CMSA under the 1990 standards. A CMSA was an MSA with a population of at least 1 million; in contrast, a CSA may be much smaller or much larger than a CMSA in population. For example, a CSA may consist of two Micropolitan Statistical Areas. The Micropolitan Statistical Area is a new statistical unit introduced in the 2000 standards and consists of an area with a population between 10,000 and 49,999. On the other hand, a CSA may be quite populous; it may consist of three or more MSAs and multiple Micropolitan Statistical Areas. Therefore, the agencies believe that whether an assessment area should consist of a CSA is best left to each institution, considering its size, business strategy, capacity, and constraints, and subject to review by the appropriate Federal financial institution supervisory agency. Further, if an institution designates an assessment area that consists of a CSA that includes an MSA and a Micropolitan Statistical Area, the examiner must separately evaluate performance in the MSA and the Micropolitan Statistical Area (i.e., the nonmetropolitan area) because each of these areas has a distinct median family income.

For the reasons set forth above, the agencies are adopting as final the provisions conforming our regulations to OMB's statistical area changes as they were published in the joint interim rule.

Prior to the joint interim rule, the CRA regulations defined the term “geography” as “a census tract or a block numbering area delineated by the United States Bureau of the Census in the most recent decennial census.” Beginning with Census 2000, the U.S. Census Bureau assigned census tracts in all counties, making block numbering areas unnecessary.11 Therefore, in the joint interim rule, we changed the regulations' definition of “geography” to omit the term “block numbering area” (12 CFR 25.12(k), 228.12(k), 345.12(k), and 563e.12(j)).

The FAA proposed to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) with an AD to supersede AD 99-17-12, amendment 39-11260 (64 FR 45870, August 23, 1999). The existing AD applies to certain British Aerospace Model BAe 146 and Model Avro 146-RJ series airplanes. The proposed AD was published in the Federal Register on December 1, 2004 (69 FR 69829), to require a one-time measurement of the thickness of the outer links on the side stays of the main landing gear (MLG), and related investigative and corrective actions as necessary; and provides for replacement of a thin outer link with a new or serviceable part in lieu of certain related investigative inspections. The proposed AD also expanded the applicability of the existing AD, provided for optional terminating action for the repetitive inspections, and reduced the repetitive inspection interval.

We provided the public the opportunity to participate in the development of this AD. We have considered the comment that has been submitted on the proposed AD.

The commenter recommends the correction of a typographical error that appears in the Secondary Service Information table in the proposed AD. (That table is included in the Relevant Service Information section of the preamble of the proposed AD). The commenter notes that one of the column headers references BAE Systems (Operations) Limited Inspection Service Bulletin ISB.32-1536, but that the correct citation is ISB.32-156. The commenter suggests correcting the typographical error to eliminate any confusion to anyone who reads the proposed AD.

We agree with the commenter's concern and acknowledge that the typographical error did appear in the published versions of the proposed AD. The Secondary Service Information table is not restated in this AD, so no change is possible regarding this issue.

In order to comply with the service information citation guidelines of the Office of the Federal Register, we have revised Notes 2 and 3 of this AD. In Note 2 we changed the citation from “BAE Inspection Service Bulletin ISB.32-156” to “BAE Systems (Operations) Limited Inspection Service Bulletin ISB.32-156, Revision 1, dated July 3, 2001.” In Note 3 we made that same change; revised “32-162-70657CD” to “SB.32-162-70657C.D;” clarified that Messier-Dowty Repair Scheme 450187952 is included in Section 32-10-65 of the Messier-Dowty 201105001 and 201105002 Component Maintenance Manual, and Section 32-10-73 of the Messier-Dowty 201299001 and 201299002 Component Maintenance Manual; and corrected the manufacturer name and document number for SB.32-144.

We have carefully reviewed the available data, including the comment that has been submitted, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

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 regulatory evaluation of the estimated costs to comply with this AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified us that an unsafe condition may exist on certain Airbus Model A310 series airplanes; and Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model C4 605R Variant F airplanes (collectively called A300-600). The DGAC advises that, during cruise, a Model A310 series airplane lost most of its rudder, which was made from composite-fiber-reinforced plastic (CFRP). Investigation revealed that most of the rudder, including the front spar portion above the three servo control actuators was missing. The cause of this rudder loss is under investigation. This condition, if not corrected, could result in detachment of the rudder from the airplane, which could degrade airplane handling qualities and result in reduced controllability of the airplane.

A rudder having the same part number as that installed on Model A310 series airplanes also is installed on Model A300-600 series airplanes. Therefore, the latter airplanes are also subject to the identified unsafe condition and are included in the applicability of the U.S. AD.

Further, a rudder having the same part number is installed on early versions of Model A330 and A340 series airplanes. However, we have confirmed that the affected rudder is not installed on any Model A330 series airplanes of U.S. registry. Additionally, there are no Model A340 series airplanes on the U.S. Register.

Airbus has issued All Operators Telex (AOT) A310A55-2035 (for A310 series airplanes) and AOT A300-600 55A6035 (for A300-600 series airplanes), both dated March 16, 2005. The AOTs describe procedures for one-time general visual, detailed visual, and tap test inspections for damage in the structural integrity of the rudder and its attachments. The inspection procedures include a general visual inspection for damage of the rear spar aft face of the vertical stabilizer, including the trailing edge structure; a detailed visual inspection of the rudder hinge arms and support fittings, the actuator support fittings and the rudder hinge fittings; and a tap test inspection for damage of the rudder side panels of the leading edge from the bottom to top and the forward trailing edge connection from the bottom up to hinge No. 5 around the hoisting points and certain additional areas. The AOTs also specify contacting the manufacturer for certain repair conditions and reporting of inspection results. The DGAC mandated the service information and issued French airworthiness directive UF-2005-048, dated March 18, 2005, to ensure the continued airworthiness of these airplanes in France.

These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. We have examined the DGAC's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.

Therefore, we are issuing this AD to prevent detachment of the rudder from the airplane, which could degrade airplane handling qualities and result in reduced controllability of the airplane. This AD requires accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the AD and the Service Information.” The AD also requires sending the inspection results to Airbus, regardless of the findings.

Although the French airworthiness directive and the AOTs specify that operators may contact the manufacturer for certain repair conditions, this AD requires operators to repair those conditions per a method approved by either the FAA or the DGAC (or its delegated agent). In light of the type of repair that would be required to address the unsafe condition, and consistent with existing bilateral airworthiness agreements, we have determined that, for this AD, a repair approved by either the FAA or the DGAC (or its delegated agent) would be acceptable for compliance with this AD.

The French airworthiness directive and AOTs specify inspecting the rudder attachments and the rudder side panels for damage and reporting findings to the manufacturer, but there is no definition of the type of damage to inspect for or findings to report. This AD requires inspecting for discrepancies in the structural integrity of the rudder and its attachments. For the general visual and detailed inspections, the discrepancies to inspect for and report include corrosion, cracks, abrasion, scratches, and dents. For the tap test, the discrepancies to inspect for and report include delamination in the outer CFRP layers and debonding between the outer CFRP layers and the honeycomb core.

Although the French airworthiness directive and AOTs do not identify the sections in the SRMs that specify damage limits for the rudder attachments and the rudder side panels, those sections are specified in Note 3 of this AD.

In this AD, the “detailed visual inspection” specified in the AOTs is referred to as a “detailed inspection.” We have included the definition for a detailed inspection in a note in the AD.

The French airworthiness directive identifies the AOT number for A310 series airplanes as A310 55A2035; however, the number is transposed in the AOT and identified as A310A55-2035. This AD will identify the AOT number as A310A55-2035 to adhere to the Office of the Federal Register guidelines for materials incorporated by reference.

This is considered to be interim action. The inspection report that is required by this AD will enable the FAA, DGAC, and the manufacturer to obtain better insight into the potential unsafe condition, and eventually to develop final action to address it, if necessary. If final action is identified, the FAA may consider further rulemaking.

An unsafe condition exists that requires the immediate adoption of this AD; therefore, providing notice and opportunity for public comment before the AD is issued is impracticable, and good cause exists to make this AD effective upon publication in the Federal Register.

This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any relevant written data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2005-20748; Directorate Identifier 2005-NM-063-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD. We will consider all comments received by the closing date and may amend the AD in light of those comments.

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

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 the regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

The FAA published this direct final rule with a request for comments in the Federal Register on February 10, 2005 (70 FR 7021) and the Federal Register subsequently published a correction to the rule on Friday, February 18, 2005 (70 FR 8432). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on May 12, 2005. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on February 10, 2005 (70 FR 7020). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on May 12, 2005. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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.

This rulemaking is promulgated under the authority described in title 49, subtitle VII, part A, subpart III, section 44701, General requirements, and section 44707, Examining and rating air agencies. Under section 44701, the FAA may prescribe regulations and standards in the interest of safety for inspecting, servicing, and overhauling aircraft, aircraft engines, propellers, and appliances. It may also prescribe equipment and facilities for, and the timing and manner of, inspecting, servicing, and overhauling. Under section 44707, the FAA may examine and rate repair stations.

This regulation is within the scope of section 44701 since it pertains to the new requirement for repair stations to have FAA-approved training programs in the interest of enhancing safety. The regulation is within the scope of section 47707 since it will assist repair stations in developing better training programs by allowing them to develop those programs based on FAA-issued guidance materials.

On July 30, 2001, the FAA issued a final rule to update and revise repair station regulations (66 FR 41088, August 6, 2001). In that rulemaking action, the FAA established a new requirement that each repair station have an employee training program approved by the FAA that consists of initial and recurrent training. In the preamble to the final rule, the FAA stated, “Before the effective date of the final rule, the FAA will issue advisory material regarding the required training program.” The effective date for the new training requirements was set two years after the effective date of the revised rule for repair stations to provide repair stations time to develop their programs. The new training requirements are scheduled to become effective on April 6, 2005.

On December 22, 2004, the FAA published a Notice of Availability of draft Advisory Circular AC 145-RSTP. This document would provide guidance to repair stations for their training programs. In response to multiple comments from industry associations, the FAA has extended the comment period to March 22, 2005 (70 FR 3243; January 21, 2005). The extended comment period will enable repair station operators to submit meaningful comments on whether the guidance material is useful in developing training programs that comply with § 145.163.

When the comment period closes, the FAA will review the comments. We expect commenters will have meaningful suggestions for improving the guidance. We also expect that some commenters will call attention to new training technologies that would benefit a training program. The FAA will need time to consider the comments and to incorporate meaningful changes into AC 145-RSTP that will benefit these smaller entities in the development of their training programs.

Further, due to recent events in the European Union, the European Commission (EC) has passed and implemented commission regulation 2042/2003. This regulation also impacts the domestic United States by requiring all European-registered aircraft to be maintained in accordance with annex 2, part 145. The FAA recognizes that 1,275 US-based 14 CFR part 145 repair stations are also approved under EC regulation 2042 and are now required to meet the repair station manual supplement requirements of EC 2042, hereinafter referred to as European Aviation Safety Agency (EASA) part 145. This new requirement to transition from the former Joint Aviation Authority (JAA) to EASA part 145 will require many US-based repair stations to revise their current JAA supplements to the EASA part 145 supplement requirements. Concurrently with its review and evaluation of the U.S.-certificated repair stations' training programs, the FAA also must allot resources to review and accept these EASA part 145 manual supplement revisions. In light of these developments and the United States' international agreements, as well as FAA international obligations, the FAA finds that implementing the § 145.163 training program and EASA supplement to repair station manuals by April 6, 2005 would impose a significant burden on the repair station industry as well as the FAA.

Delaying the effective date of 14 CFR 145.163 for 12 months will have the ancillary benefit of reducing the burden on the 1,275 U.S.-based repair stations that must meet the EASA part 145 manual supplement requirements. They will have additional time in which to develop both those revisions and the training programs required by § 145.163. Similarly, the extension will provide additional time for the FAA to review them.

In summary, the FAA is delaying the effective date of 14 CFR 145.163 for 12 months because:

1. We have extended the comment period on the proposed guidance material and, therefore, have not yet issued the final guidance, and

2. We want to adhere as closely as possible to a transition period between the time the guidance is issued and the effective date of the rule. The additional time will enable repair stations to use that guidance material when it becomes available in developing their programs.

There are no new requirements for information collection associated with this amendment.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to comply with International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified no differences with these regulations.

Sections 553(b)(3)(B) and 553(d)(3) of the Administrative Procedures Act (APA) (5 U.S.C. 553(b)(3)(B) and 553(d)(3)) authorize agencies to dispense with certain notice procedures for rules when they find “good cause” to do so. Under section 553(b)(3)(B), the requirements of notice and opportunity for comment do not apply when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” The FAA finds that notice and public comment on this final rule are impracticable. For the APA, “impracticable” means that, if notice and comment procedures were followed, they would defeat the purpose of the rule. As explained previously, the purpose of this final rule is to extend the effective date for the repair station training requirements from April 6, 2005, to April 6, 2006. Coordinating and issuing rulemaking documents will take time under current procedures. We cannot issue a notice, receive comments, and issue a final rule before the current effective date. Repair stations will also need adequate time before the effective date to develop their training programs following guidance to be provided by the FAA. Therefore, any delay in issuing this final rule would subject repair stations to confusion and the expense of trying to establish training programs hurriedly without final guidance from the FAA. Therefore, it is “impracticable” to provide notice and opportunity to comment.

In accordance with 5 U.S.C. 553(b)(3)(B), FAA finds good cause for issuing this rule without prior notice and comment. Seeking public comment is impracticable, unnecessary, and contrary to the public interest. This delay of effective date will give repair stations sufficient time to use FAA guidance material in preparing to operate under the amended regulations for repair stations. Given the imminence of the effective date, seeking prior public comments on this temporary delay would have been impracticable, as well as contrary to the public interest in the orderly promulgation and implementation of this rule.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs each Federal agency to propose or adopt a regulation only if the agency makes a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (19 U.S.C. 2531-2533) bans agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards. Where suitable, the Trade Act directs agencies to use those international standards as the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules. This requirement applies only to rules that include a Federal mandate on State, local, or tribal governments, likely to result in a total expenditure of $100 million or more in any one year (adjusted for inflation). In conducting these analyses, the FAA determines that this rule:

(1) Has benefits which justify its costs and is not a “significant regulatory action” as defined in the Executive Order and as defined in DOT's Regulatory Policies and Procedures;

(2) Will not have a significant impact on a substantial number of small entities;

(3) Has minimal effects on international trade; and

(4) Does not impose an unfunded mandate on State, local, or tribal governments or on the private sector.

This rule delays the effective date for repair stations to establish their training programs in accordance with § 145.163. This action is necessary because applicable guidance material is not yet available to assist repair stations in developing their programs. The extended date will give repair stations sufficient time to develop their programs and will give the FAA time to evaluate and approve them.There will also be a decrease in overall paperwork and costs if this rule has the extended effective date.

The Regulatory Flexibility Act (RFA) of 1980, 5 U.S.C. 601-612, establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to the regulation.” To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals to explain the rationale for their actions. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

This final rule merely delays the effective date for § 145.163. Its economic impact is minimal. Therefore, we certify that this action will not have a significant economic impact on a substantial number of small entities.

The Trade Agreement Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it has only a domestic impact.

The Unfunded Mandates Reform Act of 1995 (the Act), is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $120.7 million in lieu of $100 million.

This final rule does not contain such a mandate. Therefore, the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, we have determined that this final rule does not have federalism implications.

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this proposed rulemaking action qualifies for the categorical exclusion identified in paragraph 312(d) and involves no extraordinary circumstances.

The FAA has analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 18, 2001). We have determined that it is not a “significant energy action” under the executive order because it is not a “significant regulatory action” under Executive Order 12866, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

In FR Doc. 04-28043, appearing on page 76844 in the Federal Register of Thursday, December 23, 2004, the following corrections are made:

1. On page 76844, in the second column, under “I. Introduction,” the second sentence is corrected to read: “Since the publication of the notice, IBA Guardion, a division of IBA responsible for this petition, has been sold to PPM Ventures, which subsequently changed the name of this division to Sterigenics International, Inc., 2015 Spring Rd., suite 650, Oak Brook, IL 60523.”

2. On page 76846, in the third column, under “VIII. References,” the citation for reference 2 is corrected to read “Gregoire, O., Cleland, M. R., Mittendorfer, J., et al., “Radiological Safety of Food Irradiation With High Energy X-Rays: Theoretical Expectations and Experimental Evidence,” Radiation Physics and Chemistry, vol. 67, pp. 169-183, 2003.”

This file is available for download without charge in ASCII and Adobe Acrobat readable (*.PDF) formats at GPO Access. GPO Access supports HTTP, FTP, and Telnet at fedbbs.access.gpo.gov. It may also be accessed by modem dialup at 202/512-1387 followed by typing “/GO/FAC.” Paper copies of this document can be obtained by calling the Government Printing Office at 202/512-1530. This document and additional information concerning the programs of the Office of Foreign Assets Control are available for downloading from the Office's Internet Home Page: http://www.treas.gov/ofac, or via FTP at ofacftp.treas.gov. Facsimiles of information are available through the Office's 24-hour fax-on-demand service: call 202/622-0077 using a fax machine, fax modem, or (within the United States) a touch-tone telephone.

The Iranian Transactions Regulations, 31 CFR part 560 (the “ITR”), implement a series of Executive orders, beginning with Executive Order 12957, issued on March 15, 1995. In that order, the President declared a national emergency pursuant to IEEPA to deal with the unusual and extraordinary threat to the national security, foreign policy, and economy of the United States constituted by the actions and policies of the Government of Iran, including its support for international terrorism, its efforts to undermine the Middle East peace process and its efforts to acquire weapons of mass destruction and the means to deliver them. To deal with this threat, Executive Order 12957 imposed prohibitions on certain transactions with respect to the development of Iranian petroleum resources. On May 6, 1995, the President issued Executive Order 12959 imposing comprehensive trade sanctions to further respond to this threat, and on August 19, 1997, the President issued Executive Order 13059 consolidating and clarifying the previous orders.

The Treasury Department's Office of Foreign Assets Control (“OFAC”) is amending the ITR to include definitions relating to registered brokers and dealers in securities and to clarify the application to such brokers and dealers of general licenses relating to funds transfers to and from Iran and to the operation of Iranian accounts. To this end, OFAC is adding a new provision at 31 CFR 560.321 to establish a regulatory definition of the term United States registered broker or dealer in securities and amending § 560.320 of the ITR to clarify that the term Iranian accounts includes accounts of persons located in Iran or of the Government of Iran maintained on the books of a United States registered broker or dealer in securities. Section 560.516 of the ITR is being amended to clarify that United States registered brokers or dealers in securities are authorized to process certain transfers of funds to or from Iran. Section 560.517 of the ITR is being amended to clarify that United States registered brokers or dealers in securities are within the scope of the general license authorizing the exportation of certain Iranian account-related services to Iran. A corresponding technical change to § 560.532 of the ITR is also included.

Because the amendment of the ITR involves a foreign affairs function, the provisions of Executive Order 12866 and the Administrative Procedure Act (5 U.S.C. 553) (the “APA”) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date, are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

The collections of information related to 31 CFR parts 31 CFR parts 560 are contained in 31 CFR part 501 (the “Reporting, Procedures and Penalties Regulations”). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505-0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

On February 18, 2005, we published a notice of proposed rulemaking (NPRM) entitled “Safety and Security Zones; TOPOFF 3, New London, CT.” Federal Register (69 FR 8309). No comments were received on the proposed rule. No public hearing was requested, and none was held.

In accordance with 5 U.S.C. (d)(3), the Coast Guard finds good cause for making this rule effective less than 30 days after publication in the Federal Register. Final plans for this exercise were not finalized with sufficient time to publish an NPRM and Final Rule in accordance with the publication requirements of 5 U.S.C. 553. However, the Coast Guard wished to provide the public with the opportunity to comment on this rulemaking. By doing so, the timeframe for the publication of the final rule has been reduced to less than 30 days. The delay inherent in publication of this final rule 30 days in advance of its effective date is contrary to the public interest and impracticable, as immediate action is needed to protect participants in this exercise, scheduled for April 4-10, 2005. The Coast Guard Group, Marine Safety Office Long Island Sound will make this Final Rule widely available to the maritime community and general public through notification in the Local Notice to Mariners, marine safety information bulletins and through local waterways users groups.

The third Top Officials (TOPOFF) exercise, will take place from April 4 through April 10, 2005. TOPOFF 3 is the third of the Congressionally-mandated weapons of mass destruction (WMD) national exercise series. TOPOFF 3 will use a series of exercise activities of increasing complexity, and will simulate a terrorist WMD campaign with simulated attacks occurring in the States of Connecticut and New Jersey. Additional TOPOFF activities will be conducted within the United Kingdom as part of a partnership to strengthen security in both nations. The specific scenarios for the exercise are still being developed. In New London, Connecticut, these activities will take place mainly in the vicinity of Fort Trumbull State Park. Additional activities associated with this exercise will take place in the vicinity of Ocean Beach in New London.

There will be approximately 800 participants in TOPOFF 3, from various federal, state and local agencies. Numerous high-level public officials will participate. Participants will be transported to Fort Trumbull via land and water transportation. Due to the high visibility and high profile of the participants, safety and security zones are warranted to safeguard participants and the surrounding community from sabotage or other subversive acts, accidents or other hazards of a similar nature.

No comments were received in response to the NPRM, and no changes have been made to the final rule.

This rule creates safety and security zones surrounding Fort Trumbull State Park and Ocean Beach in New London, Connecticut. The safety and security zones established herein are effective from April 2, 2005 through April 10, 2005. This effective period covers the scheduled exercise dates from April 4 through April 10, 2005, and provides for an additional period leading up to the exercise to provide for monitoring and searching of the area being utilized for the exercise.

The safety and security zone surrounding Fort Trumbull State Park encompass the waters of the Thames River approximately 100-yards from Fort Trumbull State Park and the Parks piers. The Fort Trumbull Safety and Security Zone includes all waters of the Thames River bounded as follows: beginning at the end of the New England Seafood pier at approximate position 41°20′49.7″ N, 072°05′41.6″ W, thence running in an easterly direction to position 41°20′50.9″ N, 072°05′36.5″ W, thence in a southeasterly direction to position 41°20′43.1″ N, 072°05′19.7″ W, then south to position 41°20′34.9″ N, 072°05′19.6″ W, thence southwesterly to a point on the western shore of the Thames River at position, 41°20′26.6″ N, 072°05′38.9″ W, thence northerly along the western shore of the Thames River to a position on the shore of the Thames River at position 41°20′29.3″ N, 072°05′39.7″ W, thence along the shore of the Thames River to the point of beginning.

The safety and security zone surrounding Ocean Beach encompass the waters of Long Island Sound approximately 100-yards off of Ocean Beach. The Ocean Beach Safety and Security Zone includes all waters of Long Island Sound bounded by lines as follows: beginning at a position on the shore of New London Connecticut at position 41°18′31.4″ N, 072°05′39.6″ W, thence running southeasterly to position 41°18′29.3″ N, 072°05′36.9″ W, thence running position southwesterly to position 41°18′11.8″ N, 072°06′2.8″ W, thence running northwesterly to position 41°18′14.5″ N, 072°06′6.1″ W, thence running northeasterly along the shore to the point of beginning.

Entry into these zones is prohibited unless authorized by the Captain of the Port, Long Island Sound. Any violation of the safety and security zones described herein is punishable by, among others, civil and criminal penalties, in rem liability against the offending vessel, and license sanctions.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This regulation may have some impact on the public, but the potential impact will be minimized for the following reasons: vessels may transit in all areas of the Thames River and Long Island Sound other than those areas covered by the safety and security zones established herein. Vessels wishing to transit to Fort Trumbull Marina may request permission to transit through the Fort Trumbull and Ocean Beach Safety and Security Zones from the Captain of the Port, Long Island Sound or their on-scene representatives. Commercial fishing vessels wishing to operate in the zones may request permission to enter the zones in advance of their effective dates from the COTP, Long Island Sound. Usage of Ocean Beach for swimming in April is extremely minimal; persons wishing to use Ocean Beach for swimming can utilize other beaches in the New London area. Moreover, there is no anticipated economic impact arising from the closure of the waters off of Ocean Beach to swimming. Additionally, there will be extensive advanced notifications made to the maritime community via the Local Notice to Mariners, marine information broadcasts and local area maritime committees. The safety and security zones have been narrowly tailored to impose the least impact on maritime interests yet provide the level of safety and protection deemed necessary for this high visibility event.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard considered whether this rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: commercial vessels wishing to transit, fish or anchor in the portions of the Thames River or Long Island Sound covered by this rule. For the reasons outlined in the Regulatory Evaluation section above, this rule will not have a significant impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

The Coast Guard has analyzed this rule under Executive Order 13132, Federalism, and has determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

The Coast Guard has analyzed this under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, 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.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that Order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

The Coast Guard has considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (34)(g) of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

In rule FR Doc. 04-28227 published in the Federal Register of March 18, 2005 (70 FR 13104), correct the two paragraphs that appear on page 13104 under the heading “Regulatory Evaluation” to read:

“This final rule is not a ‘significant regulatory action’ under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget (OMB) has not reviewed it under that Order.

“We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary.”

The copyright law permits a claim to copyright to be registered in the Copyright Office at any time during the subsistence of the copyright, when an application form is accompanied by the appropriate deposit of a copyrightable work and a filing fee. 17 U.S.C. 408(a). Section 408(b) generally requires the deposit of two complete copies or phonorecords of a published work, but it authorizes the Register of Copyrights by regulation to reduce the number deposited for particular classes. 17 U.S.C. 408(c)(1). The Register may also ameliorate the requirement for individual registrations where a group of separately published related works is sought to be registered together. Id. The legislative history of the 1976 Copyright Act offers “a group of photographs by one photographer” as a possibly appropriate grouping. H.R. Rep. No. 1476, 94th Cong., 2d Sess. 154 (1976).

In 2001, after notice, public comment, and careful consideration, the Office established a regulation permitting group registration of published photographs. 37 CFR 202.3(b)(9). 66 FR 37142 (July 17, 2001). That rule permitted an unlimited number of photographs that were taken by the same person and published within the same calendar year, and for which the copyrights are owned by the same person or entity, to be registered with one application and fee. An applicant may choose from three options to register such a group: The applicant may either (1) submit a group of photographs published within three months before receipt in the Copyright Office and give the range of dates within that period on the application for registration at space 3b; (2) submit a group of photographs published within a calendar year, give the range of dates within that period on the application for registration at space 3b, and identify with each deposited image the date of its publication; or (3) submit a group of photographs published within a calendar year, give the range of dates within that period on the application for registration at space 3b, and identify each photograph on a continuation sheet noting thereon its date of publication.1

During the rulemaking process for group registration of photographs, the Office proposed a rule that would limit the number of photographs that could be registered in a group to no more than 500. 65 FR 26162, 26166 (May 5, 2000). In response to the request for comments, many depositors asserted that the number of photographs should not be so limited. 66 FR 37143, 37145 (July 17, 2001). One commenter stated that some photographers took more than 500 images in one or two days. Another commenter noted that she produced thousands of images per quarter. Id. In response, the Office issued a final rule that did not limit the number of photographs that could be submitted with one group photograph claim. The Office stated that:

On the basis of this assumed technical capability of the Office system to handle a large number of photos, the Office did not contemplate that it would receive continuation sheets listing nearly 15,000 photographs, nor did it contemplate that the production of such certificates would be as disruptive as it has been to Office operations. Recent experience with the end-stage processing of continuation sheets of a group of photographs that include more than 750 photographs listed on more than 50 continuation sheets has proved administratively burdensome. Whatever the technical capability of Office equipment might be to produce certificates with an unlimited number of continuation sheets, the practical reality of doing so requires an excessive amount of staff, time, equipment, and materials. As a consequence, the cost effectiveness of making these group registrations, at the current filing fee of $30.00 per group, is seriously out of balance.

To relate recent empirical evidence, one recent claim consisted of a staggering total of 1,776 continuation sheets. The Office required three hours for initial processing of the claim, including stamping, examining, labeling, scanning and packaging the claim for imaging. The next step to process the claim, producing the image for the registration record, required four and one-half hours to complete and used 1777 registration number bar code labels. To print the 1777 page certificate took an additional one and one-half hours during which no other printing could be accomplished on that equipment. Then, the certificate had to be packaged and mailed, at an inordinate expenditure of three and one-half reams of certificate paper, postage and packaging costs. Altogether, at the end stage of the registration process, this single registration required more than 12 hours to complete. Making matters worse, the Office currently has on hand 15 additional claims of this kind, at various stages in registration processing. Each of these claims is accompanied by continuation sheets ranging from approximately 1090 to 2423 in number. The Office production structure for registration of claims simply does not accommodate such a time frame for a single registration—group or otherwise—in a system which registered nearly 661,500 claims in fiscal year 2004.

At the time the final rule on group registration of photographs was announced in 2001, the Copyright Office did not predict that the amount of staff time, equipment usage, and production materials that would be required to produce certificates with a large number of continuation sheets would prove so impracticable as to undermine the Office's productivity. In view of recent claims that the Office has received, including three claims of 2068, 2118 and 2423 pages respectively, as well as other claims that it anticipates receiving should this registration pattern take hold, the Office has determined that it must now limit to 50 the number of continuation sheets that may accompany a group registration for published photographs. The amended regulation allows for 750 photos to be listed on the continuation sheets that are part of the application and made part of the certificate of registration, and permits the applicant to submit additional claims in groups of 750 or fewer photographs with additional filing fees for registration where the continuation sheet option is preferred. Applicants may continue to submit applications for group registration of photographs without any limitation on the number of photographs if they select one of the options that does not involve use of continuation sheets.

At some future time, the Office may be able to resume group registration for photographs with an unlimited number of continuation sheets. When the Office's business processing systems have been re-engineered, new information technology systems will be employed to accomplish much of the processing of claims digitally and it may at that time be possible to liberalize the current restriction.

The Office is also clarifying that when an applicant for group registration of photographs elects not to use continuation sheets to identify dates of publication, the option that permits the dates of publication to be identified “on the deposited image” does not require that the date of publication appear on the deposited image itself. In order to make this clear, § 202.3(b)(9)(iv) is being amended to state that the date of publication may be provided in any of four different ways: Either (1) on each deposited image, (2) in a text file on the CD-ROM or DVD that contains the deposited photographic images, (3) on a list that accompanies the deposit and provides the publication date for each image, or (4) on the continuation sheet provided by the Copyright Office.

A notice and comment period is normally required prior to promulgation of a regulation. Administrative Procedure Act, 5 U.S.C. 553(b). The Office has already conducted notice and comment on this issue and has given this issue consideration in promulgating its final rule (See Notice of Proposed Rulemaking, Registration of Claims to Copyright, Group Registration of Photographs, 65 FR at 26165 (May 5, 2000); Final Regulation, Registration of Claims to Copyright, Group Registration of Photographs, 66 FR at 37148 (July 17, 2001).) That rule concluded that the administrative burden of processing a group registration of a large number of photos in excess of 500 would be acceptable based on a projection of what such processing would involve. 66 FR 37148. As detailed above, however, actual experience has proved otherwise. Based on recent experience, the Office has determined that currently it is administratively unfeasible to continue to accept applications for group registrations of photographs with more than 50 continuation sheets.

The APA waives the requirement for notice and comment when “the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 552(b)(B). It is impracticable to conduct prepublication notice and comment where compliance with the normal APA procedures would jeopardize the agency's assigned missions. See S. Rep. No. 752, 79th Cong., 1st Sess. 14 (1945); S. Doc. No. 248, 79th Cong., 2d Sess. 140, 148, 157 (1946). Although the Office provides a host of other services, a primary duty of the Copyright Office is to register claims to copyright. 17 U.S.C. 701(b); 410(a). Prompt registration is central to the mission of the Office because it meets the needs of applicants, obtains new works for Library of Congress collections, and promotes creativity by effectively administering the national registry.

Providing notice and comment for this rulemaking would be impracticable because it has become apparent that providing such notice and awaiting and evaluating comments would have potentially serious adverse impacts on the Office's ability to comply with its statutory duties. At an increasing rate, the Office is receiving group photograph claims with escalating numbers of continuation sheets. As noted above, three recent claims have involved applications containing as many as 2423 pages. The Office cannot consistently process thousands of continuation sheets with one claim and provide registration services for the volume of claims it is charged with managing each year. Further delay would aggravate the threat that this pattern will continue to uncontrollable proportions, thus indicating that notice and comment would in fact be counterproductive. If the Office provided prior notice and comment for its rule limiting the number of photographs identified on continuation sheets as part of a group claim, the delay would exacerbate the present difficulties by permitting continued large submissions and perhaps even encouraging a flurry of such submissions in order to take advantage of the existing rules before the amendment's effective date, jeopardizing even more the Office's ability to fulfill its responsibility under the copyright law.

Specifically, pre-publication notice and comment would harm the Office's registration processing function for the reason that the continued submission of claims in this manner could affect the pendency of overall registrations. The time between filing for registration and receiving a registration certificate may increase, and the Office's expense in processing these extremely large group registrations would have no reasonable relationship to the fee charged. If the Office were to devote a disproportionate amount of time to register such large group claims, its ability to provide timely and cost effective service to the public at large would be negatively affected. On the other hand, from an applicant's point of view, the number limit is only being placed on registrations made under one group option. The other options will remain open for an unlimited number of photographs with one application form and one filing fee, currently $30.00.

Section 553 of the Administrative Procedure Act also provides for a notice of not less than 30 days before the effective date of a regulation, except as otherwise provided by the agency for good cause found and published with the rule. 5 U.S.C. 553(d)(3). The reasons for expedited rulemaking here are to ease an immediate administrative burden and to forestall the likelihood of even further administrative hardship. The Office has only recently begun to receive applications for group registrations of photographs containing hundreds of continuation sheets, but recent experience indicates that such applications will continue to be received, perhaps at an increasing pace. The Office cannot take the risk of becoming inundated with a last-minute rush of large continuation-sheet submissions to take advantage of the final days of the present rule. The amendment's immediate effective date will preclude the submission of an overwhelming number of late claims, which would further exacerbate the negative effect such registrations have on the Copyright Office's processing operations.

As part of the “good cause” calibration of the APA's section 553(d)(3), the necessity for immediate implementation must be balanced against the necessity for affected persons to have a reasonable time to prepare for the effective date of the new rule. To date, it appears that the exceptionally large continuation sheet claims are being submitted by only one entity. The Office is directly notifying that entity of this amendment to the group registration regulation which has been necessitated due to problems caused by registration in this manner. For registration materials that have been received by the Copyright Office before the effective date of this amendment but are still being processed, the rules issued in 2001 will continue to apply, although in particular cases, the Office may request that the applicant resubmits separate applications, each with no more than 50 continuation sheets. In such cases, no additional fees will be assessed and the effective date of registration will be the date the group of photographs was originally submitted in conformity with then current regulations. With respect to any applications including more than 50 continuation sheets that are received by the Office on or after the effective date of this amendment, the applicant will be given the option of obtaining a registration certificate that does not include the continuation sheets, with the continuation sheets being included with the deposit to identify the dates of publication of the photographic images as permitted under § 202.3(b)(9)(iv).

This amendment is therefore issued as a final rule effective on the date it is published in the Federal Register.

The Copyright Office, though located in the Library of Congress and part of the legislative branch, is not an “agency” subject to the Regulatory Flexibility Act, 5 U.S.C. 601-612. Nevertheless, the Register of Copyrights has considered the effect of a proposed amendment on small businesses. This amendment continues to offer photographers, who usually constitute small businesses, the ability to register their copyrights in large groups for a modest fee while it ensures that the Copyright Office can process those registrations in an efficient manner and at a reasonable cost.

All income is countable when VA determines entitlement to income-based benefits unless specifically excluded by law. Section 101 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA), Public Law 108-173, added section 1860D-31 to the Social Security Act (42 U.S.C. 1395w-141), creating a Medicare prescription drug discount card and transitional assistance program. This program allows Medicare beneficiaries to pool their purchasing power to secure substantial discounts on their medicines. Medicare beneficiaries at or below 135 percent of the federal poverty level can qualify for $600 in additional assistance for the remainder of 2004 and another $600 in 2005. The drug discounts and $600 in transitional assistance became available on June 1, 2004.

A provision of the MMA clarifies the potential interaction between the drug discount card and transitional assistance and VA's pension and parents dependency and indemnity compensation benefits by stating that, “[t]he availability of negotiated prices or transitional assistance under this Section shall not be treated as benefits or otherwise taken into account in determining an individual's eligibility for, or the amount of benefits under, any other Federal program.” Section 1860D-31(g)(6) of the Social Security Act. Therefore, the transitional assistance program and any savings associated with the prescription drug discount card are not income or net worth for VA purposes. This document amends 38 CFR 3.261, 3.262, 3.263, 3.272, and 3.275 to reflect this statutory change.

This final rule merely restates statutory provisions. Accordingly, there is a basis for dispensing with prior notice and comment and the delayed effective date provisions of 5 U.S.C. 552 and 553.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Because no notice of proposed rulemaking was required in connection with the adoption of this final rule, no regulatory flexibility analysis is required under the Regulatory Flexibility Act (5 U.S.C. 601-612). Even so, the Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule would have no such effect on State, local, or tribal governments, or the private sector.

The Catalog of Federal Domestic Assistance program numbers for this proposal are 64.104, 64.105, and 64.110.

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

EPA is approving the Post 1996 Rate of Progress (ROP) plan, the adjustments to the 1990 base year emissions inventory, and the Motor Vehicle Emissions Budgets (MVEB) for the DFW ozone nonattainment area, submitted by Texas on October 25, 1999 and found complete on January 6, 2000.

We proposed approval of these SIP elements on January 28, 2001. We waited to take final action until the issue on the appropriate use of the MOBILE5 on-road mobile emission model was determined in Sierra Club v. EPA, 356 F.3d 296 (DC Cir. 2004). The Court found that the use of MOBILE5 was acceptable even if a more recent version was available because MOBILE5 was the best available version at the time the plan was prepared.

The Post 1996 ROP plan (9% plan) was designed to reduce ozone forming emissions from the baseline emissions by 9% in the DFW nonattainment area for the years 1997-1999. We received no new information that would change the approvability of the ROP target calculations and none of the credits relied upon for meeting the ROP targets have changed since our proposal date. Therefore, this plan meets the Reasonable Further Progress requirements of the Act (section 182(c)(2)). The MVEBs associated with the 9% plan have been found to meet the adequacy criteria, effective January 27, 2000, and are consistent with the ROP plan. Therefore, they too are approvable. The adjustments to the 1990 base year emissions inventory improved the inventory through improvements in methodology implemented subsequent to the submission of the original inventory.

Please refer to 66 FR 4764, January 18, 2001, and its technical support document for details on the 9% Plan, the adjusted 1990 emissions inventory, and the MVEBs.

We did not receive any comments on the 9% Plan, the MVEBs, or the adjustments to the 1990 base year emissions inventory.

EPA is approving the Post 1996 Rate of Progress plan, the adjustments to the 1990 base year emissions inventory, and the Motor Vehicle Emissions Budgets submitted by Texas on October 25, 1999, for the DFW ozone nonattainment area. The VOC MVEB for the ROP plan is 147.22 tons per day and the NOX MVEB is 284.14 tons per day.

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 May 27, 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).)

A. Why Are Revisions to State Programs Necessary?

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

We conclude that South Carolina's applications to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant South Carolina Final authorization to operate its hazardous waste program with the changes described in the authorization applications. South Carolina has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in South Carolina, including issuing permits, until the State is granted authorization to do so.

The effect of this decision is that a facility in South Carolina subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. South Carolina has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• Do inspections, and require monitoring, tests, analyses or reports;

• Enforce RCRA requirements and suspend or revoke permits;

• Take enforcement actions regardless of whether the State has taken its own actions.

This action does not impose additional requirements on the regulated community because the regulations for which South Carolina is being authorized by today's action are already effective, and are not changed by today's action.

EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's Federal Register we are publishing a separate document that proposes to authorize the State program changes.

If EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. EPA will base any further decision on the authorization of the State program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

If we receive comments that oppose only the authorization of a particular change to the State hazardous waste program, we will withdraw that part of this rule but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn.

South Carolina initially received Final authorization on November 8, 1985, effective November 22, 1985 (50 FR 46437) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on September 8, 1988, effective November 7, 1988 (53 FR 34758), February 10, 1993, effective April 12, 1993 (58 FR 7865), November 29, 1994, effective January 30, 1995 (59 FR 60901), April 26, 1996, effective June 25, 1996 (61 FR 18502), October 4, 2000, effective December 4, 2000 (65 FR 59135) and August 21, 2001, effective October 22, 2001 (66 FR 43798).

On November 11, 2004 South Carolina submitted a final complete program revision application, seeking authorization of their changes in accordance with 40 CFR 271.21. South Carolina's provisions consists of provisions promulgated July 1, 2002, through June 30, 2003, otherwise known as RCRA XIII. The rule adoption for the provisions of RCRA XIII covered in this action became effective June 25, 2004. South Carolina Statues at sections 44-56-1 through 840 and sections 44-96-10 through 470 allow the South Carolina Department of Health and Environmental Control to administer the rules governing hazardous waste management. We now make an immediate final decision, subject to receipt of written comments that oppose this action, that South Carolina's hazardous waste program revisions satisfy all of the requirements necessary to qualify for Final authorization. Therefore, we grant South Carolina Final authorization for the following program changes:

On June 24, 2003 (68 FR 37620; Docket NHTSA-15351), NHTSA published a final rule that made a number of revisions to Federal Motor Vehicle Safety Standard (FMVSS) No. 213, “Child Restraint Systems,” including amendments that incorporated improved child restraint test dummies and updated procedures used to test child restraints, and that extended the application of the standard to restraints recommended for use by children weighing up to 30 kilograms (kg) (65 pounds (lb)).1 The final rule fulfilled a mandate in Section 14 of the Transportation Recall Enhancement, Accountability and Documentation Act (the TREAD Act) (November 1, 2000, Pub. L. 106-414, 114 Stat. 1800) that NHTSA initiate a rulemaking for the purpose of improving the safety of child restraints.

As part of its response to the TREAD Act, NHTSA revised FMVSS No. 213 to update the test devices and procedures used in dynamically evaluating child restraints for compliance with the standard. The final rule updated the seat assembly on which child restraints are tested to make the seat assembly more representative of those in today's vehicles. The final rule changed the seat bottom and the seat back cushion angles, the spacing between the anchors of the lap belt, and, to replicate a rear seating position, changed the seat back from a flexible seat back to a fixed one. The agency also assessed and validated the reasonableness of the sled pulse.

Sled pulse. In Standard No. 213's dynamic sled test, a child restraint is tested with a crash test dummy on a representative vehicle bench seat (seat assembly). The seat assembly, child restraint and test dummy are accelerated in a manner simulating a vehicle crash. The child restraint must manage the force from the simulated crash so that the forces imparted to the dummy are kept within tolerable limits. The severity of the crash pulse is a function of its onset rate, peak acceleration, time of peak g occurrence, and its duration.

FMVSS No. 213 has a relatively severe crash pulse, in that the sled is accelerated relatively quickly to an acceleration of approximately 24 g's (24 times the force of gravity) and maintains the 24 g level for a relatively long time period (37 to 42 milliseconds) before returning to zero acceleration. A dynamic test condition of FMVSS No. 213's 48 kilometers per hour (kph) (30 miles per hour) sled test is that the acceleration of the test platform must be within a curve 2 depicted in the standard (S6.1.1(b)(1)). The sled acceleration can not exceed the upper limit of the curve. The laboratory test procedure (TP) for FMVSS No. 213 also provided a lower limit for the curve, and thus gave a tolerance band, or corridor, for the acceleration of the sled (TP-213-04, September 1, 1997; Section D.3.3). Prior to the TREAD Act rulemaking, the corridor was about 3 to 4 g's wide. To ensure that the acceleration of the sled was within the relatively narrow 3 to 4 g wide corridor, compliance tests were typically conducted at a ΔV of approximately 28.5 mph.

Changes to the Pulse. The TREAD Act directed NHTSA to initiate a rulemaking to consider, among other matters, whether FMVSS No. 213's dynamic test reflects the designs of modern-day passenger motor vehicles. As part of its response to the Act, NHTSA analyzed the crash pulses of over 150 vehicles tested under FMVSS No. 208 and the agency's frontal New Car Assessment Program (NCAP). Average crash pulses from tests of cars, sport utility vehicles (SUVs), trucks, and vans were obtained and then filtered. The peak velocity, peak g, and duration of the crash pulse were recorded. NHTSA determined in that rulemaking that the crash pulse used in FMVSS No. 213 was very similar to the pulse of light trucks, SUVs and small school buses in acceleration onset rate and peak magnitude. Because these vehicles were regularly used to transport children in child restraints, the agency decided that a crash pulse that was not less than the severity of the pulses generated by those vehicles was reasonable for FMVSS No. 213. Such a pulse would better ensure (in contrast to a less stringent pulse) that child restraints will not structurally degrade in a crash, will adequately restrain child occupants and will limit to tolerable levels the forces to a child's head and torso, regardless of the vehicle in which the restraint is used.

Accordingly, the agency did not significantly revise the existing pulse but instead adjusted it. The final rule adopted a trapezoidal-shaped corridor to define the upper and lower limits of the pulse. The corridor was about 6 g's wide, which is 2 to 3 g's wider than the pulse formerly specified in FMVSS No. 213. Those changes achieved several goals. Use of a trapezoidal shape to define the maximum and minimum corridors of the sled pulse made the pulse similar in shape to those used in FMVSS No. 208, “Occupant crash protection,” and in ECE Regulation 44. The wider corridor enabled NHTSA to test child restraints closer to 48 kph (30 mph) while maintaining the peak g acceleration of the standard's pulse. The wider corridor also made it easier for testing facilities to produce pulses that were within the limits of the corridor, which meant that more facilities could participate in FMVSS No. 213 testing. The existing pulse was also extended from 80 ms to about 90 ms in duration. This change made the pulse more representative of the crash pulses of today's vehicles (including light trucks, SUVs and small school buses), which are longer in duration than the existing FMVSS No. 213 pulse.

Ford Petition. Ford petitioned for reconsideration of the changes to the sled test pulse specification. http://dmses.dot.gov/docimages/pdf87/251702_web.pdf Ford stated that the new pulse corridor would allow increased average acceleration of the pulse, which Ford thought was contrary to the agency's intent. Ford stated that broadening the pulse corridors from 3 g to 6 g allows a 30 mph ΔV by increasing average acceleration instead of increasing pulse duration. Ford also stated that the difference between the most and least severe 30 mph ΔV pulses allowed by the corridor is about 25%. The petitioner stated that a pulse corridor that allows a potential 25% variation in pulse severity is not sufficiently objective. Ford believed that the agency intended to change the corridor to test restraints at a higher velocity, i.e., closer to 30 mph, and that NHTSA did not intend to specify a pulse with a higher average deceleration. Ford suggested a pulse corridor that the petitioner believed would increase the velocity change of the pulse without allowing a higher acceleration.

Response: The broadening of the FMVSS No. 213 pulse corridor does not necessarily increase the average acceleration of a particular pulse meeting the corridor. The agency does not consider average acceleration over the duration of a pulse as a single indicator of the severity of that pulse. We consider the severity of a crash pulse to depend on the entire acceleration-time profile, including onset rate, peak g, peak g time of occurrence, and pulse duration. The pulse formerly specified in the standard fits entirely within the trapezoidal corridor. Thus, for that pulse, the broadening of the corridor resulted in no increase in average acceleration.

It is true that, with a broadened corridor, there is more flexibility given for the different elements of the acceleration-time profile (onset rate, peak g, peak g time of occurrence, and pulse duration) to be individually increased or decreased to fine-tune the fitting of the pulse within the constraints of the corridor. That was one of the goals of the broadening of the corridor: to allow greater flexibility to test laboratories to reproduce the sled pulse, and achieve a V closer to 30 mph than previously achievable. Some elements of the acceleration-time profile could be increased within the new corridor and to that extent, pulses of increased average acceleration could fit the corridor. Nonetheless, regardless of the values of the individual components of the acceleration-time profile, the values must be such that the pulses produced fit within the constraints of the corridor. The corridor thus defines and limits the severity of the pulse.

Yet, Ford is concerned that the new corridor allows test facilities to use pulses that vary more in severity (based on average acceleration over the duration of the pulse) than before. Ford states that pulses that have a ΔV of 30 mph can potentially vary 25% in pulse severity, and that a corridor that allows a potential 25% variation in pulse severity is not sufficiently objective. The petitioner suggests two approaches that the agency could take to increase “the velocity change of the pulse without allowing a higher acceleration.”

The most and least severe pulses that the petitioner uses to illustrate the 25% variation in average acceleration cannot be achieved by existing test sleds. That is, present day test equipment cannot produce a pulse that is so severe as the theoretical pulse produced by Ford for illustration, nor as benign. As such, the theoretical extreme severity difference that Ford identifies does not exist in the real world.

To the extent that some difference in severity exists, we do not agree that the test is not objective. FMVSS No. 213 (S6.1.1(b)(1)) specifies that the tests for testing add-on child restraints “are at a velocity change of 48 km/h with the acceleration of the test platform entirely within the curve shown in Figure 2 (for child restraints manufactured before August 1, 2005) or in Figure 2A (for child restraints manufactured on or after August 1, 2005). * * *” The standard clearly defines the trapezoidal-shaped corridor that delineates the upper and lower boundaries of the pulse. Anyone conducting the test is able to determine whether the pulse used fell within the corridor. Use of identical pulses will result in similar test results. The compliance of a child restraint will continue to be based on objective testing.

Objectivity in testing and evaluating child restraints was not only achieved by the final rule, it was also balanced with the need to increase flexibility and practicability in conducting the test. Fewer pulses would fit a narrower corridor, but fewer test laboratories would be able to conduct compliance tests if a narrower corridor were specified. The new pulse corridor adopted by the final rule enables more laboratories to participate in objective compliance testing of child restraints than before.

Ford believes that the new corridor allows a pulse that has an average deceleration about 10% higher than the current pulse, and that this outcome is contrary to the agency's intent not to increase the severity of the current pulse used to test child restraints. The petitioner states that the agency said in the preamble to the final rule that “the pulse should not be made more severe at this time.” 68 FR at 37640. The issue under consideration in the TREAD Act final rule was whether the already demanding FMVSS No. 213 24 g pulse should be made more severe than the pulses of today's light trucks, SUVs and small school buses. The agency decided against such an increase because “[i]ncreasing the severity could necessitate the redesign of many child restraints and could increase costs of the restraints to manufacturers, without a proportionate safety benefit.” Id. The agency recognized in the TREAD Act final rule that the new pulse corridor will improve the effectiveness of the standard's sled test by enabling NHTSA to test child restraints closer to 30 mph than under the former pulse. The agency acknowledged that child restraint tests run closer to 30 mph are more stringent than tests conducted under the former pulse, and that that was an intended outcome of the rule.

It is true that child restraints must meet the performance requirements of FMVSS No. 213 when tested to a pulse contained anywhere within the corridor. However, the increase in the width of the pulse corridor is not likely to affect the ability of child restraints to pass performance criteria. Agency tests have shown that child restraints are currently manufactured with a wide compliance margin when tested to the FMVSS No. 213 pulse. See 68 FR at 37634, Figures 1, 2 and 3. Thus, as a practical matter the new corridor is unlikely to necessitate redesign of the restraints.

Ford suggested two preferred pulse corridors that petitioner believed would allow most sled tests to achieve a full 30 mph ΔV, but would limit pulse severity to about the same average acceleration level specified by the former pulse corridor. The first widens the existing FMVSS No. 213 pulse corridor after 65 ms. The second pulse corridor uses the trapezoidal pulse of the final rule, but has a peak acceleration at 22 g, instead of 25 g (between 9 and 56 ms).

NHTSA believes that neither of the suggested corridors satisfies the goals of the rulemaking. The first suggestion does not generally change the 2-3 g width of the pulse formerly specified in FMVSS No. 213 which many test laboratories found difficult or impossible to work with.3 The second pulse also maintains a 3 g width between its upper and lower boundaries for most of the pulse and thus would create the same type of practical difficulties that test labs had in meeting the former FMVSS No. 213 pulse. In addition, the second suggested pulse is unacceptable because it does not fit the previous FMVSS No. 213 pulse. It has a peak acceleration that is lower than the FMVSS No. 213 pulse (at 14, 20, and 28 ms) and thus would reduce the severity of the existing FMVSS No. 213 crash pulse. Reducing the severity of the pulse is contrary to the agency's intent in amending the standard in this TREAD Act rulemaking.

For the reasons explained above, Ford's request for reconsideration of the sled pulse is denied.

Ford on Braking: A second issue raised by Ford related to testing built-in child restraint systems on a sled. (Built-in child restraints are tested either on a sled or by crash testing the specific vehicle in which the built-in restraint is installed.) Ford stated that the test pulse specification is not objectively stated for sled tests of built-in seats because the agency has not specified the period of time during which the velocity change should occur. The petitioner stated: We believe that NHTSA intended that the ΔV specified in S6.1.1.1(b)(1) is the velocity change prior to the sled acceleration dropping to zero, rather than the ΔV during the 90 ms maximum pulse duration or the ΔV during the 200 to 300 ms effective duration of the test.” Ford stated that head injury criterion (HIC) and neck readings can be driven upwards during the rebound phase of a HYGE sled test in tests of built-in seats. Ford states that freestanding seat backs will bend forward during sled acceleration then rebound, pulling the dummy rearward, and may spring forward again after rebounding due to the braking of the sled. Ford maintains that the rebounding dummy in the built-in child restraint can hit the seat back as it moves forward because of the sled braking, and can drive the HIC reading higher. Thus, Ford believes that the resulting dummy readings can be highly dependent on sled braking after the initial acceleration pulse.

Response: NHTSA does not agree that there is a need to specify expressly the time during which the velocity change should occur to account for the braking characteristics of the sled. We believe that by specifying that there be a velocity change of 48 km/h and that the velocity change be achieved with the acceleration of the test platform entirely within the curve shown in the standard, the test pulse is objectively stated. Testing laboratories can alter the various components of the sled pulse, including braking characteristics, as long as the pulse has a velocity change of 48 km/h and the acceleration is entirely within the corridor. Further, the agency is not aware of instances where a specific braking profile between 90-300 ms influences dummy readings in FMVSS No. 213 sled tests. NHTSA maintains that if the acceleration pulse remains within the corridor, at ΔV = 30 mph, the specification of a braking profile is unnecessary because the effect of braking is minimal with respect to dummy readings—regardless of the type of dynamic test. For the aforementioned reasons, the petition for reconsideration is denied.

Denton ATD (Denton) petitioned NHTSA to reconsider (correct) the specification of the mass of the clothing worn by the Hybrid III 3-year-old dummy incorporated into FMVSS No. 213 by the TREAD Act final rule, and the specification for the shoes of the Hybrid III 3- and 6-year-old dummies. The specifications are set forth by the final rule in S9.1(e) and (f) of FMVSS No. 213 for the Hybrid III 3- and Hybrid III 6-year-old dummies, respectively.

Clothing: The petitioner stated that both the agency's regulation (49 CFR Subpart P) specifying the Hybrid III 3-year-old dummy and the Procedure for Assembly, Disassembly and Inspection (PADI) manual, incorporated by reference into that regulation, specify that the combined weight of the dummy's shirt and pants be no more than .25 kg (.55 lb) (49 CFR 572.144(c)). However, Denton stated, S9.1(e) of FMVSS No. 213 erroneously specifies that the 3-year-old dummy's shirt and pants each have a mass of .090 kg. The petitioner also believed that the specification of the mass of the 6-year-old dummy's clothing is confusing (as specified in both S9.1(e) and (f)) and should be clarified.

The petition as to the clothing is granted. This document amends S9.1(e) to make it consistent with the dummy regulation and PADI. This final rule is also clarifying the clothing specifications for the Hybrid III 6-year-old dummy (correcting S9.1(e) to remove reference to that dummy and revising S9.1(f)). The agency does not believe that these corrections will affect the performance of the dummy or child restraint in any way.

Shoes: Denton stated that there is an inconsistency between the specifications in 49 CFR part 572 and FMVSS No. 213 regarding the size and weight of the shoes worn by the Hybrid III 3- and Hybrid III 6-year-old dummies.

The PADI for the 3-year-old dummy (which is incorporated by reference into part 572) specifies a size 8 shoe, and further specifies that each shoe must weigh .21 +/−0.05 kg (.47 +/−.10 lb). In contrast, FMVSS No. 213 specifies a size 7M shoe size, and a total mass of .453 kg for the shoes for this dummy.

Denton stated that the drawings and the PADI for the Hybrid III 6-year-old dummy (which are incorporated by reference into 49 CFR part 572, Subpart N) specify canvas oxford, size 13M shoes and that each shoe weighs .38 +/−.05 kg (.83 +/−.10 lb). The petitioner stated that in contrast, FMVSS No. 213 (S9.1(f)) specifies a size 121/2M canvas oxford with a total mass of .453 kg (1.00 lb). Denton stated that it can not find shoes that meet the FMVSS No. 213 weight specification in the specified style. Denton suggested that the agency reconsider FMVSS No. 213's specification of shoe size and weight.

Denton's petition as to the shoes is also granted. The agency is amending S9.1(e) of the standard to specify that the shoes for the Hybrid III 3-year-old dummy are size 8 canvas oxford style sneakers weighing not more than 0.26 kg each. The agency is amending S9.1(f) to specify that the shoes for the Hybrid III 6-year-old dummy are children's size 13M canvas oxford style sneakers weighing not more than 0.43 kg each.

The agency does not believe that these changes will affect the performance measured under FMVSS No. 213.

The amendments on the dummies' clothing and shoes are effective in 30 days. An effective date less than 180 days after date of publication of this rule is in the public interest because these amendments correct and clarify the specifications for the clothing and shoes. Further, there is good cause for the effective date because FMVSS No. 213 specifies that the agency will use the Hybrid III dummies in the standard's compliance tests of child restraints manufactured on or after August 1, 2005.

This rulemaking document was not reviewed under E.O. 12866, “Regulatory Planning and Review.” The agency has considered the impact of this rulemaking action under the Department of Transportation's regulatory policies and procedures, and has determined that it is not “significant” under them. This document amends FMVSS No. 213 to correct the specification for the clothing and shoes worn by the new 3- and 6-year old child test dummies. The correction does not affect the performance of the dummies or the performance of child restraints. There are no cost or benefit changes associated with this final rule.

The Regulatory Flexibility Act of 1980 (Public Law 96-354), as amended, requires agencies to evaluate the potential effects of their proposed and final rules on small businesses, small organizations and small governmental jurisdictions. I hereby certify that this rule will not have a significant economic impact on a substantial number of small entities. This final rule simply corrects an inconsistency in the specification of clothing and shoes worn by the test dummies. It does not reduce or impose any new obligations or requirements.

NHTSA has analyzed this rule in accordance with the principles and criteria contained in E.O. 13132, and has determined that it does not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The rule will not have any substantial effects on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials.

NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action will not have any significant impact on the quality of the human environment.

This rule will not have any retroactive effect. A petition for reconsideration or other administrative proceeding will not be a prerequisite to an action seeking judicial review of this rule. This rule will not preempt the states from adopting laws or regulations on the same subject, except that it will preempt a state regulation that is in actual conflict with the Federal regulation or makes compliance with the Federal regulation impossible or interferes with the implementation of the Federal statute.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The first seasonal apportionment of the 2005 Pacific halibut bycatch allowance specified for the deep-water species fishery in the GOA is 100 metric tons as established by the 2005 and 2006 harvest specifications for groundfish of the GOA (70 FR 8958, February 24, 2005), for the period 1200 hrs, A.l.t., January 20, 2005, through 1200 hrs, A.l.t., April 1, 2005.

In accordance with § 679.21(d)(7)(i), the Administrator, Alaska Region, NMFS, has determined that the first seasonal apportionment of the 2005 Pacific halibut bycatch allowance specified for the trawl deep-water species fishery in the GOA has been reached. Consequently, NMFS is prohibiting directed fishing for the deep-water species fishery by vessels using trawl gear in the GOA. The species and species groups that comprise the deep-water species fishery are all rockfish of the genera Sebastes and Sebastolobus, deep-water flatfish, rex sole, arrowtooth flounder, and sablefish.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of the deep-water species fishery by vessels using trawl gear in the GOA.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.21 and is exempt from review under Executive Order 12866.