We are advising the public that we are hosting two public hearings on this interim rule. The first public hearing will be held in Petaluma, CA, on Wednesday, February 27, 2002. The second public hearing will be held in Riverdale, MD, on Wednesday, March 27, 2002.

A representative of the Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture (USDA or the Department), will preside at the public hearings. Any interested person may appear and be heard in person, by attorney, or by other representative. Written statements may be submitted and will be made part of the hearing record. A transcript of the public hearings will be placed in the rulemaking record and will be available for public inspection.

The purpose of the hearings is to give interested persons an opportunity for oral presentation of data, views, and arguments. Questions about the content of the interim rule may be part of the commenters' oral presentations. However, neither the presiding officer nor any other representative of APHIS will respond to comments at the hearings, except to clarify or explain provisions of the interim rule.

The public hearings will begin at 9 a.m. and are scheduled to end at 4:30 p.m., local time. The presiding officer may limit the time for each presentation so that all interested persons appearing at each hearing have an opportunity to participate. Each hearing may be terminated at any time if all persons desiring to speak have been heard.

Registration for the hearings may be accomplished by registering with the presiding officer between 8:30 a.m. and 9 a.m. on the day of the hearing. Persons who wish to speak at a hearing will be asked to sign in with their name and organization to establish a record for the hearing. We ask that anyone who reads a statement provide two copies to the presiding officer at the hearing. Those who wish to form a panel to present their views will be asked to provide the name of each member of the panel and the organizations the panel members represent.

Persons or panels wishing to speak at one or both of the public hearings may register in advance by phone or e-mail. Persons wishing to register by phone should call the Regulatory Analysis and Development voice mail at (301) 734-4339. Callers must leave a message clearly stating (1) the location of the hearing the registrant wishes to speak at, (2) the registrant's name and organization, and, if registering for a panel, (3) the name of each member of the panel and the organization each panel member represents. Persons wishing to register by e-mail must send an e-mail with the same information described above to ispm@aphis.usda.gov. Please write “Public Hearing Registration” in the subject line of your e-mail. Advance registration for the Petaluma, CA, hearing must be received by 3 p.m. on Monday, February 25, 2002. Advance registration for the Riverdale, MD, hearing must be received by 3 p.m. on Tuesday, March 26, 2002.

If you require special accommodations, such as a sign language interpreter, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

Please note that a fee of $2.25 is required to enter the parking lot at the USDA Center. The machine accepts $1 bills and quarters.

Upon entering the building, visitors should inform security personnel that they are attending the Phytophthora ramorum quarantine public hearing. Identification is required. Security personnel will direct visitors to the registration tables located outside of Conference Rooms C and D on the first floor. Registration upon arrival is necessary for all participants, including those who have registered to speak in advance. Visitor badges must be worn throughout the day.

Phytophthora ramorum is a harmful fungus that has been found in arrowwood ( Viburnum x bodnantense ), big leaf maple ( Acer macrophyllum ), black oak ( Quercus kelloggii ), California bay laurel ( Umbellularia californica ), California buckeye ( Aesculus californhica ), California coffeeberry ( Rhamnus californica ), California honeysuckle ( Lonicera hispidula ), coast live oak ( Quercus agrifolia ), huckleberry ( Vaccinium ovatum ), madrone ( Arbutus menziesii ), manzanita ( Arctostaphylos spp.), rhododendron ( Rhododendron spp., including azalea), Shreve's oak ( Quercus parvula var. shrevei ), tanoak ( Lithocarpus densiflorus ), and Toyon ( Heteromeles arbutifolia ).

According to available research and observations, similar symptoms of infection with P. ramorum have been identified in tanoak, coast live oak, black oak and Shreve's oak. Although symptoms are similar in these species, their appearance, both chronologically and physically, varies somewhat. In tanoak, leaf symptoms are usually the first to appear, as new growth may droop or turn yellow to brown. In coast live oak, black oak, and Shreve's oak, the earliest symptom is the appearance of a bleeding canker; burgundy-red to tar-black thick sap oozes on the bark surface. Similar bleeding, though less viscous, has been observed on tanoak, although tanoak may not show the bleeding symptom at all. This bleeding is a response to infection with P. ramorum, and is typically found from the root crown (the area where the trunk fans out to the roots) to a height of 6 feet. Bleeding has occasionally been observed at greater heights. Oaks showing these symptoms typically die within a few months of the appearance of symptoms. Other hosts are not typically killed by P. ramorum. Symptoms of infection in other hosts include leaf spotting and stem canker infections.

Since its initial discovery in Marin County, CA, in 1995, P. ramorum has been confirmed to exist in nine additional counties along or near the northern California coastline: Alameda, Mendocino, Monterey, Napa, San Mateo, Santa Clara, Santa Cruz, Solano, and Sonoma. P. ramorum also has been found in a portion of Curry County, OR. P. ramorum, which has been commonly referred to as Sudden Oak Death or Oak Mortality Syndrome, has caused the death of thousands of mature oaks in these counties, and there is presently no known treatment for infected plants that kills the fungus but allows plants to survive.

Infected plants and plant products that move interstate could serve as a pathway for the introduction of P. ramorum to other areas of the United States. It is unclear how P. ramorum spreads, though available research suggests it is spread by water, soil, and infected plant material. It is also possible that P. ramorum spreads by air. Regardless, the movement of infected plants and plant products of the P. ramorum hosts listed earlier in this document is believed to provide a pathway for the spread of P. ramorum .

As explained below, the States of California and Oregon have restricted the intrastate movement of certain articles from infested areas to prevent the spread of P. ramorum within California and Oregon. However, Federal regulations are necessary to restrict the interstate movement of certain articles from the infested area to prevent the spread of P. ramorum to noninfested areas of the United States.

We are amending the “Domestic Quarantine Notices” in 7 CFR part 301 by adding a new subpart, “Phytophthora Ramorum” (§§ 301.92 through 301.92-10, referred to below as the regulations). The regulations, which are described below, quarantine portions of the States of California and Oregon because of P. ramorum and restrict the interstate movement of regulated and restricted articles from quarantined areas. The interstate movement of regulated and restricted articles from nonquarantined areas is not restricted under this interim rule.

Section 301.92 prohibits the interstate movement of regulated and restricted articles from quarantined areas except in accordance with the regulations.

Section 301.92-1 contains definitions of the following terms: Administrator, Animal and Plant Health Inspection Service, bark chips, certificate, compliance agreement, departmental permit, duff, firewood, forest stock, inspector, interstate, log, moved (move, movement), mulch, nursery stock, person, Plant Protection and Quarantine, quarantined area, regulated article, restricted article, soil, and State.

Certain articles present a significant risk of spreading P. ramorum if they are moved from quarantined areas without restrictions. We call these articles regulated and restricted articles. Regulated articles may be moved interstate from quarantined areas under certificates issued by an inspector in accordance with § 301.92-5. Restricted articles, however, may only be moved interstate by USDA under departmental permits issued in accordance with § 301.92-4(a)(2).

Paragraph (a) of § 301.92-2 lists soil and nursery stock (except acorns and seeds), unprocessed wood and wood products including firewood, logs, lumber, wreaths, garlands, and greenery of the following species as regulated articles:

• Arrowwood ( Viburnum x bodnantense );

• Big leaf maple ( Acer macrophyllum );

• Black oak ( Quercus kelloggii );

• California bay laurel ( Umbellularia californica );

• California buckeye ( Aesculus californica );

• California coffeeberry ( Rhamnus californica );

• California honeysuckle ( Lonicera hispidula );

• Coast live oak ( Quercus agrifolia );

• Huckleberry ( Vaccinium ovatum ); 1

• Madrone ( Arbutus menziesii );

• Manzanita ( Arctostaphylos manzanita );

• Rhododendron ( Rhododendron spp., including azalea);

• Shreve's oak ( Quercus parvula var. shrevei );

• Tanoak ( Lithocarpus densiflorus ); and

• Toyon ( Heteromeles arbutifolia ).

Paragraph (b) of the regulations lists bark chips, forest stock, and mulch of the species of plants listed above as restricted articles. Again, restricted articles may only be moved interstate by USDA under a departmental permit issued in accordance with § 301.92-4(a)(2).

The regulations in § 301.92-2 also provide that any other product or article that an inspector determines to present a risk of spreading P. ramorum can also be considered a regulated or restricted article if the inspector notifies the person in possession of the product or article that it is subject to the restrictions in the regulations. This provision is necessary to ensure that APHIS is able to regulate the movement of all articles, especially newly identified hosts of P. ramorum not listed in the regulations, that pose a risk of spreading P. ramorum if moved without restriction.

Paragraph (a) of § 301.92-3 provides the criteria for the inclusion of States, or portions of States, in the list of quarantined areas. Under these criteria, any State or portion of a State in which P. ramorum is found by an inspector, or in which the Administrator has reason to believe that P. ramorum is present, will be listed as a quarantined area. These criteria also provide that an area will be designated as a quarantined area when the Administrator considers it necessary due to the area's inseparability for quarantine enforcement purposes from localities in which P. ramorum has been found.

Paragraph (a) of § 301.92-3 also provides that we will designate less than an entire State as a quarantined area only if we determine that the State has adopted and is enforcing restrictions on the intrastate movement of regulated articles that are equivalent to those imposed on the interstate movement of regulated articles and that the designation of less than the entire State as a quarantined area will prevent the interstate spread of P. ramorum . These determinations would indicate that infestations are confined to the quarantined areas and eliminate the need for designating an entire State as a quarantined area.

We have determined that it is not necessary to designate the entire States of California and Oregon as quarantined areas. The State of California has adopted restrictions on the intrastate movement of regulated and restricted articles from the following counties: Alameda, Marin, Mendocino, Monterey, Napa, San Mateo, Santa Clara, Santa Cruz, Solano, and Sonoma.

The State of Oregon has adopted restrictions on the intrastate movement of regulated and restricted articles from a 9-square-mile area near the Brookings area of Curry County.

P. ramorum has not been found in any other areas of California or Oregon besides those listed above, and California and Oregon have adopted and are enforcing restrictions on the intrastate movement of regulated and restricted articles from those areas that are substantially the same as those we are imposing on the interstate movement of regulated and restricted articles.

The State of California is not attempting to eradicate P. ramorum from the State, and has quarantined any county where P. ramorum has been confirmed to exist, regardless of the distribution of P. ramorum within that county. APHIS is also using this criterion in setting the P. ramorum quarantine boundaries for the State of California.

Oregon is attempting to eradicate P. ramorum from the area in Curry County where it has been detected. The quarantined area covers 9 square miles in the Brookings area of Curry County. All boundaries of the quarantined area are at least 1/2 to 1 mile from any P. ramorum detection site. APHIS believes that this distance is sufficient to ensure that P. ramorum is not spread to areas outside the quarantined area. The boundary lines may vary due to factors such as the location of P. ramorum host material and the use of clearly identifiable lines for the boundaries. The boundaries themselves are described in the rule portion of this document.

Paragraph (b) of § 301.92-3 provides that we may temporarily designate any nonquarantined area in a State as a quarantined area when we determine that the nonquarantined area meets the criteria for designation as a quarantined area described in § 301.92-3(a). In such cases, we will give the owner or person in possession of the area a copy of the regulations along with written notice of the area's temporary designation as a quarantined area, after which time the interstate movement of any regulated or restricted article from the area will be subject to the regulations. This provision is necessary to prevent the spread of P. ramorum during the time between the detection of the disease and the time a document quarantining the area can be made effective and published in the Federal Register . In the event that an area's designation as a temporary quarantined area is terminated, we will provide written notice of that termination to the owner or person in possession of the area as soon as is practicable.

This section provides that regulated articles may be moved interstate from quarantined areas if they are accompanied by a certificate issued in accordance with §§ 301.92-5 and 301.92-8, and provided that they are moved through the quarantined area without stopping except for refueling, rest stops, emergency repairs, and for traffic conditions, such as traffic lights or stop signs.

Additionally, this section provides that restricted articles may be moved interstate from quarantined areas by APHIS or the Department for experimental or scientific purposes. Such articles must be moved in accordance with a departmental permit issued by the Administrator, under conditions specified on the permit to prevent the spread of P. ramorum .

Regulated or restricted articles that are moved from outside quarantined areas and that are accompanied by a waybill that indicates the point of origin may be moved interstate through a quarantined area without a certificate or a departmental permit. The articles must also be moved from outside the quarantined area through the quarantined area without stopping (except for refueling, rest stops, emergency repairs, and for traffic conditions such as traffic lights and stop signs), and the articles must not be unpacked or unloaded in the quarantined area.

Certificates are issued for regulated articles when an inspector finds that, because of certain conditions, there is no disease risk associated with moving a regulated article from a quarantined area. Regulated articles accompanied by a certificate may be moved interstate without further restrictions. Section 301.92-5(a) provides that a certificate will be issued by an inspector for the movement of regulated articles if the inspector determines that any one of the following conditions have been met:

• The regulated articles have been treated under the direction of an inspector in accordance with § 301.92-10 of this subpart.

• The regulated articles are wood products such as firewood, logs, or lumber that are free of bark.

• The regulated article is soil that has not been in direct physical contact with any article infected with P. ramorum , and from which all duff  2 has been removed.

• The regulated articles are articles of nursery stock that (1) are shipped from a nursery or premises in a quarantined area that is inspected annually by an inspector for P. ramorum in accordance with the inspection and sampling protocol described in § 301.92-11(a), and that has been found free of P. ramorum ; (2) are part of a shipment of nursery stock that has been inspected immediately prior to interstate movement in accordance with § 301.92-11(b), and that has been found free of P. ramorum ; (3) have been kept separate from regulated articles not inspected between the time of the inspection and the time of interstate movement; and (4) have not been grown in, or moved from, other areas within a quarantined area except nurseries or premises that have been inspected for P. ramorum in accordance with this section; and that have been found free of P. ramorum .

The regulations in § 301.92-5(a) also require that inspectors may only issue certificates for the interstate movement of regulated articles if the inspector determines that the regulated articles: (1) Are to be moved in compliance with any additional emergency conditions the Administrator may impose under section 414 of the Plant Protection Act (7 U.S.C. 7714) 3 to prevent the spread of P. ramorum , and (2) are eligible for unrestricted movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article.

We have included a footnote that provides an address for securing the addresses and telephone numbers of the local Plant Protection and Quarantine offices at which services of inspectors may be requested. We have also included a footnote that explains that the Secretary of Agriculture can, under the Plant Protection Act, take emergency actions to seize, quarantine, treat, destroy, or apply other remedial measures to articles that are, or that he or she has reason to believe are, infested or infected by or contain plant pests.

Paragraph (b) of § 301.92-5 allows any person who has entered into and is operating under a compliance agreement to issue a certificate for the interstate movement of a regulated article after an inspector has determined that the article is eligible for a certificate under § 301.92-5(a).

Also, § 301.92-5(c) contains provisions for the withdrawal of a certificate by an inspector if the inspector determines that the holder of the certificate has not complied with conditions for the use of the document. This section also contains provisions for notifying the holder of the reasons for the withdrawal and for holding a hearing if there is any conflict concerning any material fact in the event that the person wishes to appeal the cancellation.

Section 301.92-6 provides for the issuance and cancellation of compliance agreements. Persons who enter into compliance agreements with APHIS are allowed to self-certify that certain regulated articles meet APHIS requirements for interstate movement. Compliance agreements are provided in order to facilitate the interstate movement of certain regulated articles while still minimizing the risk that P. ramorum could spread interstate. A compliance agreement will be issued when an inspector has determined that the person requesting the compliance agreement is knowledgeable regarding the requirements of the regulations and the person has agreed to comply with those requirements. Since movements of nursery stock are dependent on inspection or testing by an inspector, compliance agreements will not be issued to persons interested in moving nursery stock interstate. Inspectors will issue certificates for the interstate movement of regulated articles of nursery stock after they inspect, and if necessary, test regulated articles of nursery stock and determine that they are free of P. ramorum .

Section 301.92-6 contains a footnote that explains how compliance agreements may be arranged. Section 301.92-6 also provides that an inspector may cancel the compliance agreement upon finding that a person who has entered into the agreement has failed to comply with any of the provisions of the regulations. The inspector will notify the holder of the compliance agreement of the reasons for cancellation and offer an opportunity for a hearing to resolve any conflicts of material fact in the event that the person wishes to appeal the cancellation.

Section 301.92-7 provides that any person (other than a person authorized to issue certificates under § 301.92-5(b)) who desires a certificate to move regulated articles must request, at least 14 days before the desired interstate movement, that an inspector issue a certificate. The regulated articles must be assembled in a place and manner directed by the inspector. These provisions are necessary to ensure that persons desiring inspection services can obtain them before the intended movement date.

Section 301.92-8 requires the certificate issued for movement of the regulated article to be attached, during the interstate movement, to the regulated article, or to a container carrying the regulated article, or to the accompanying waybill. Further, the section requires that the carrier must furnish the certificate to the consignee listed on the certificate upon arrival at the location provided on the certificate. These provisions are necessary for enforcement purposes.

Section 301.92-9 explains the APHIS policy that the services of an inspector that are needed to comply with the regulations are provided without cost between 8 a.m. and 4:30 p.m., Monday through Friday, except holidays, to persons requiring those services, but that we will not be responsible for any other costs or charges (such as overtime costs for inspections conducted at times other than between 8 a.m. to 4:30 p.m., Monday through Friday, except holidays).

Section 301.92-10 lists treatments that qualify soil and certain regulated articles for interstate movement with a certificate, as provided in § 301.92-5(a)(1)(i).

Under paragraph (a), soil may be heat-treated to a temperature of at least 180 °F for 30 minutes in the presence of an inspector. 4

Under paragraph (b), wreaths, garlands, and greenery of arrowwood ( Viburnum × bodnantense ), big leaf maple ( Acer macrophyllum ), black oak ( Quercus kelloggii ), California bay laurel ( Umbellularia californica ), California buckeye ( Aesculus californica ), California coffeeberry ( Rhamnus californica ), California honeysuckle ( Lonicera hispidula ), coast live oak ( Quercus agrifolia ), huckleberry ( Vaccinium ovatum ), madrone ( Arbutus menziesii ), manzanita ( Arctostaphylos spp.), rhododendron ( Rhododendron spp., including azalea), Shreve's oak ( Quercus parvula var. shrevei ), tanoak ( Lithocarpus densiflorus ), and Toyon ( Heteromeles arbutifolia ) may be dipped for 1 hour in water that is held at a temperature of at least 160 °F.

Section 301.92-11 describes the inspection and sampling protocol that must be followed by nurseries moving regulated articles of nursery stock interstate from quarantined areas. Under the regulations, regulated articles of nursery stock will be subject to two kinds of inspections: (1) Annual inspection and sampling of regulated articles of nursery stock contained in a nursery, and

(2) inspection of individual interstate shipments of nursery stock and testing of symptomatic plants prior to interstate movement of the shipment from the quarantined area.

For an annual nursery inspection, an inspector must visually inspect regulated articles of nursery stock for symptoms of P. ramorum . If the nursery contains 100 or fewer regulated articles, an inspector will inspect each regulated article. If the nursery contains more than 100 regulated articles, an inspector will inspect 100 regulated articles and at least 2 percent of the number of regulated articles contained in the nursery that exceeds 100. The regulated articles to be inspected will be randomly selected from throughout the nursery.

If symptomatic plants are found upon inspection, the inspector will collect at least one sample per symptomatic plant. If fewer than 40 symptomatic plants are found in a nursery during an inspection, the inspector must collect samples from nonsymptomatic regulated articles of nursery stock so that the total number of sampled plants is at least 40. Samples must then be labeled and sent for testing to a laboratory approved by APHIS.

If any regulated articles within a nursery are found to be infected with P. ramorum , the nursery will be prohibited from moving regulated articles interstate until such time as an inspector can determine that the nursery is free of P. ramorum .

For an inspection of a shipment of regulated articles of nursery stock, an inspector must visually inspect the nursery stock for symptoms of P. ramorum . If the shipment contains 100 or fewer regulated articles, an inspector will inspect each regulated article. If the shipment contains more than 100 regulated articles, an inspector will inspect 100 regulated articles and at least 2 percent of the number of regulated articles contained in the shipment that exceeds 100. The regulated articles to be inspected will be randomly selected.

If symptomatic plants are found upon inspection, the inspector must collect at least one sample per symptomatic plant, and one sample per regulated article of nursery stock that is in close proximity to, or that has had physical contact with a symptomatic plant. Samples must be labeled and sent for testing to a laboratory approved by APHIS, and must be found free of P. ramorum prior to the interstate movement of any regulated articles contained in the shipment.

If any plants intended for interstate movement are found to be infected with P. ramorum , the nursery from which they originate will be prohibited from moving regulated articles interstate until such as time as an inspector can determine that the nursery is free of P. ramorum .

As stated earlier in this document, there is much that is unknown about P. ramorum . In this rule, APHIS has endeavored to regulate the movement of articles that could cause P. ramorum to spread to unaffected areas based on the best scientific evidence available to us at this time. We invite the public to submit any information that supports or contradicts our regulatory strategy, including:

• Evidence demonstrating whether contaminated soil provides a viable or likely pathway for the spread of, or infection of natural hosts by, P. ramorum .

• Evidence demonstrating whether debarked wood provides a viable or likely pathway for the spread of, or infection of natural hosts by, P. ramorum .

• Evidence demonstrating whether acorns, seeds, or fruits of host plants are naturally infected by P. ramorum or carry P. ramorum , and whether acorns, seeds, or fruits of host plants provide viable or likely pathways for the spread of, or infection of natural hosts by, P. ramorum .

• Comments on the inspection and sampling requirements for nurseries, including comments providing a scientific basis for a longer or shorter inspection cycle, or an alternative sampling protocol.

• Data related to the accuracy, specificity, ease of use, and cost effectiveness of tests that can be used to detect P. ramorum on nursery stock of host plants.

• Evidence demonstrating whether certain treatments are effective in eliminating P. ramorum infection in regulated articles.

This rulemaking is necessary on an emergency basis to prevent P. ramorum from spreading to noninfested areas of the United States. 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 rule 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 as a result of the comments.

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.

In accordance with 5 U.S.C. 603, we have performed an initial regulatory flexibility analysis, which is set out below, regarding the economic effects of this interim rule on small entities. Based on the information we have, there is no basis to conclude that adoption of this interim rule would result in any significant economic effect on a substantial number of small entities. However, we do not currently have all of the data necessary for a comprehensive analysis of the effects of this interim rule on small entities. Therefore, we are inviting comments on potential effects. In particular, we are interested in determining the number and kind of small entities that may incur benefits or costs from the implementation of this interim rule.

The Plant Protection Act (7 U.S.C. 7701-7772) authorizes the Secretary of Agriculture to prohibit or restrict the interstate movement of any plant, plant product, article, or means of conveyance if the Secretary determines that the prohibition or restriction is necessary to prevent the dissemination of a plant pest within the United States.

As stated earlier in this document, Phytophthora ramorum is known to infect arrowwood ( Viburnum × bodnantense ), big leaf maple ( Acer macrophyllum ), black oak ( Quercus kelloggii ), California bay laurel ( Umbellularia californica ), California buckeye ( Aesculus califorica ), California coffeeberry ( Rhamnus californica ), California honeysuckle ( Lonicera hispidula ), coast live oak ( Quercus agrifolia ), huckleberry ( Vaccinium ovatum ), madrone ( Arbutus menziesii ), manzanita ( Arctostaphylos spp.), rhododendron ( Rhododendron spp., including azalea ), Shreve's oak ( Quercus parvula var. shrevei ), tanoak ( Lithocarpus densiflorus ), and Toyon ( Heteromeles arbutifolia ). P. ramorum has been confirmed to exist in 10 counties along or near the northern California coastline: Alameda, Marin, Mendocino, Monterey, Napa, San Mateo, Santa Clara, Santa Cruz, Solano, and Sonoma. P. ramorum also has been found in a portion of Curry County, OR.

This interim rule is issued to quarantine portions of the States of California and Oregon where P. ramorum is confirmed to exist, and regulate the movement of certain host articles to prevent the risk of spread of P. ramorum to other noninfested areas in the United States. California is not attempting to eradicate P. ramorum from the 10 counties in the State where the disease is confirmed to exist. Oregon is attempting to eradicate the disease from an area in Curry County, the only county where P. ramorum is known to exist in the State. Both States have restricted the intrastate movement of certain articles from infested areas to prevent the spread of P. ramorum within California and Oregon. A Federal quarantine of the affected counties, comprising approximately 5 percent of the area of the State of California, and a portion of one county in Oregon is necessary to protect oak forests and urban tree resources across the United States.

P. ramorum is apparently capable of killing healthy, mature black oaks ( Quercus kelloggii ), coast live oak ( Quercus agrifolia ), and tanoaks ( Lithocarpus densiflorus ). Quercus spp. are considered the most important and widespread of the hardwood trees in the north temperate zone, consisting of about 300 species. The United States has about 58 oak species of tree size and 10 species that are classified as shrubs. If other Quercus or Lithocarpus spp. in the Eastern deciduous forests prove susceptible to the pathogen under natural environmental conditions, the economic impact could be significant. The commercial hardwood timber production in the United States alone is worth over $30 billion. Should the disease become widespread, some countries would likely place restrictions on U.S. exports of oak and other hardwood products which generated nearly $3 billion in revenue in 2000.

The pathogen has also been isolated from Rhododendron spp., arrowwood ( Viburnum × bodnantense ), and in huckleberry ( Vaccinium spp.), the genus of which includes the commercially important blueberries and cranberries. P. ramorum causes leaf spotting and twig dieback on these species, and in severe cases in huckleberry, can kill the plant. Nursery stock is a probable route of long distance spread of the disease since spores that give rise to P. ramorum can be dispersed by soil, or infected shoots, and foliage. Federal restrictions on nursery stock is necessary as Rhododendron spp. and viburnum are important components of the ornamental nursery trade. Additionally, two of the host species of oak are sold as nursery stock and are used as ornamentals in landscaping. The importance of the Federal quarantine and restrictions is further underscored by the fact that there is currently no known treatment for infected plants that kills the fungus but allows plants to survive. Federal action is necessary to protect the U.S. nursery industry whose sales in 1997 was estimated at almost $11 billion.

Under the interim rule, nursery stock moving interstate from the quarantined area must be accompanied by a certificate stating that, among other things, the stock (1) originates from a nursery that has been inspected for P. ramorum on an annual basis and that has been found free, and (2) is part of shipment of nursery stock that has been inspected for P. ramorum prior to interstate movement and that has been found free. The impact of the restriction on interstate movement of nursery stock would depend on the amount of host products that are to be moved outside the quarantined area. The 1997 Census of Agriculture data show that in that year, there were some 1,214 nurseries in the 10 affected counties in California which accounted for 24 percent of the number of nurseries and 27 percent of the value of nursery sales in California, or 5.5 percent of total U.S. sales of nursery stock in 1997. There were 7 nurseries in Curry County, OR, which comprised less than 0.2 percent of the number of nurseries, and 0.15 percent of sales. Not all of the 1,214 nurseries in the 10 California counties, however, are expected to be affected by this rule. Some indication of the impact may be surmised from the preliminary results of a survey jointly conducted by the California Department of Food and Agriculture and USDA/APHIS, between January and March 2001. The respondents to the survey were 517 wholesale and retail establishments in 6 counties in California (no survey was available for Oregon). These businesses include facilities that sold lumber, firewood cutters and dealers, and nurseries involved in propagation and sale of oaks, rhododendrons, and other host products.

Approximately 234, or 45 percent, of the businesses surveyed had contact with host materials. The total sales value of these businesses amounted to some $7 million. A large amount of the aggregate receipts (nearly 85 percent) were derived from the sale of azaleas and rhododendron. The next largest category of sales is from oak firewood (12.7 percent), followed by oak nursery stock (2.5 percent), and mulch and chips from oak (0.17 percent).

This interim rule may impact some of the wholesale nurseries who move rhododendrons and oak nursery stock to nurseries outside the State. Nurseries that do not meet APHIS's requirements must divert their products to markets within the quarantined area, or if a market cannot be found, lose sales of that commodity. Although some information is available from the survey on the number of businesses who have contact with host materials (234 establishments), and the relatively large amount of receipts earned from sales of Rhododendron spp. (including azaleas) is also known, the amount of these hosts that are intended for interstate shipment is unknown. Thus, a conclusive statement cannot be made about the extent of the impact due to the movement restriction. APHIS invites comments from members of the public who may be impacted by the restriction on interstate movement of Rhododendron spp.

Besides rhododendrons and azaleas, wholesale nurseries within the affected area that sell oak seedlings and trees to nurseries outside the State would also be affected by the rule. The proportion of the 234 establishments that would be affected by the restrictions on movement of oak seedlings is unknown. However, trade of seedlings is primarily on one type of host species, the coast live oak, which is not believed to be shipped interstate to a significant degree. We therefore expect that the restriction on the movement of oak nursery stock to be small.

Under this rule, producers in the quarantined counties who wish to sell wreaths, garlands, or greenery outside their counties are required to treat these products with hot water. The cost of hot water treatment is not known, and we invite public comments on treatment costs.

The economic effects that could result from the requirement that unprocessed wood or wood products (including firewood, logs, lumber, and other wood products) be debarked prior to interstate movement are unknown. We invite public comments on any costs to affected entities that may result from the debarking requirements of this rule.

The businesses surveyed that are involved in firewood distribution, from cutters to wholesalers to retailers, are generally small entities who sell primarily intrastate. The economic effects of the rule on entities involved in the firewood business is expected to be small as their sales are believed to be largely to markets within the quarantined area.

The effects of this rule on persons moving soil interstate from quarantined areas, and persons who wish to move forest stock (non-nursery grown trees, shrubs, etc.) interstate is also unknown at this time. We invite public comments on these potential effects.

In general, the economic effects of this rule could be small because many host products are sold primarily within the affected States, often within quarantined areas. Consequently, State regulations on intrastate movement would likely have a larger impact on business within the affected counties than APHIS's quarantine and regulations on interstate movement.

The Regulatory Flexibility Act requires that APHIS specifically consider the economic impact of the interim rule on small entities. The Small Business Administration (SBA) has established size criteria for determining which economic entities meet the definition of a small firm. The small entity size standard for nursery and tree production (NAICS 111421) is $750,000 or less in annual receipts; for forest nurseries and gathering of forest products (NAICS 113210) is $5,000,000 or less in annual receipts. The SBA classifies logging operations (NAICS 113310), as well as sawmills, and wood product manufacturers as small entities if fewer than 500 people are employed.

Based on the above criteria, the majority of nurseries in the affected counties of California and Oregon would likely be classified as small entities. The impact of the rule on businesses handling host materials, whether small or large, would depend on the amount of regulated articles moved in interstate commerce that would have to meet APHIS's requirements as a condition of movement. Some businesses may incur additional costs for hot water treatment or debarking.

Preliminary results from a survey of businesses in 6 of the 10 affected counties in California indicate that host materials worth over $7 million in annual sales may be potentially affected by the interim rule. The actual impact (that is, the number of affected establishments and the amount of additional costs or losses incurred) is not known. The negative impact of this interim rule could be small as a majority of host products is sold primarily within the regulated counties in the States. Consequently, State regulations on intrastate movement would likely have a larger impact on businesses within the affected counties than APHIS's regulations on interstate movement. The public is invited to submit information regarding the percentage of sales of regulated articles that moves intra-county, inter-county, and interstate.

The economic effects of this rule are expected to be offset by large benefits to the public in terms of preventing disease spread and harm to forest and urban resources in unaffected regions across the country.

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.

In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection and recordkeeping requirements included in this interim rule have been submitted for emergency approval to the Office of Management and Budget (OMB). OMB has assigned control number 0579-0191 to the information collection and recordkeeping requirements.

We plan to request continuation of that approval for 3 years. Please send written comments on the 3-year approval request to the following addresses: (1) Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503; and (2) Docket No. 01-054-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comments refer to Docket No. 01-054-1 and send your comments within 60 days of publication of this rule.

This interim rule quarantines portions of the States of California and Oregon because of the presence of P. ramorum and restricts the interstate movement of regulated articles from quarantined areas. Its implementation will require us to engage in certain information collection activities, in that regulated articles may not be moved interstate from quarantined areas unless they are accompanied by a certificate. A certificate may be issued by an inspector (i.e., an APHIS employee or other person authorized by the APHIS Administrator to enforce the regulations) or by a person who has entered into a written compliance agreement with APHIS. We are soliciting comments from the public concerning our information collection and recordkeeping requirements. These comments will help us:

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

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

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

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

Estimate of burden: Public reporting burden for this collection of information is estimated to average 0.07372 hours per response.

Respondents: Persons engaged in growing, processing, handling, or moving regulated articles.

Estimated annual number of respondents: 387.

Estimated annual number of responses per respondent: 43.002.

Estimated annual number of responses: 16,642.

Estimated total annual burden on respondents: 1,227 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

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

This final rule is issued under Marketing Agreement No. 126 and Order No. 911, both as amended (7 CFR part 911), regulating the handling of limes grown in Florida, 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.”

This final rule is also issued under section 8e of the Act, which provides that whenever certain specified commodities, including limes, are regulated under a Federal marketing order, imports of these commodities into the United States are prohibited unless they meet the same or comparable grade, size, quality, or maturity requirements as those in effect for the domestically produced commodities.

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

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

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. 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.

There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of import regulations issued under section 8e of the Act.

This final rule suspends regulations currently prescribed under the Florida lime marketing order. This rule suspends grade, size, quality, pack, inspection, assessment collection, and other requirements for one year. This suspension provides the industry time to evaluate citrus canker eradication efforts and assess the market effects of no regulation on the industry after the one-year suspension. This change also reduces costs and will help the industry recover from the effects of citrus canker.

Section 911.48 of the order authorizes the issuance of regulations for grade, size, quality, and pack for limes grown in the production area. Section 911.49 authorizes the modification, suspension, or termination of regulations issued under § 911.48. Section 911.51 provides that whenever limes are regulated pursuant to § 911.48, such limes must be inspected by the Federal-State Inspection Service, and certified as meeting the applicable requirements of such regulations. The cost of inspection and certification is borne by handlers.

Under the order, fresh market shipments of Florida limes are required to be inspected and are subject to grade, size, quality, pack, and container requirements. Section 911.344 Grade and Size Requirements (7 CFR 911.344) states that no handler shall handle any variety of limes grown in the production area unless such limes of the group known as seeded or true limes meet the requirements specified for U.S. No. 2 grade, except as to color. Further, if such limes do not meet these requirements, they may be handled within the production area if they meet the minimum juice content requirement of at least 42 percent by volume and if handled in containers other than those specified in § 911.329. Such limes of the group known as seedless, large-fruited, or Persian limes must meet the requirements in §§ 911.311 and 911.329 and grade at least a U.S. Combination, Mix Color. They also must be at least two inches in diameter from January 1 through May 31, and at least 1 7/8 inches in diameter from June 1 through December 31. Further, they must contain not less than 42 percent juice content by volume. Section 911.344 also includes some container specifications and inspection requirements.

The order's pack and container requirements are specified in §§ 911.311 and 911.329. These sections state, in part, that limes must be packed in containers of 5.5, 8, 10, 20, and 38 pounds designated net weight. Each container of limes in each lot must be marked or stamped on the outside end in letters at least 1/4 inch in height to show the United States grade and either the average juice content of the limes or the phrase “average juice content forty-two percent (42%) or more.” The containers must also be marked with a Federal-State Inspection Service lot stamp number showing that the limes have been inspected and with a stamp indicating size. Related provisions appear in the regulations at § 911.110 Exemption certificates; § 911.120 Handler registration; § 911.130 Limes not subject to regulation; and § 911.131 Limes for processing.

At its April 18, 2001, meeting, in a vote of six in favor and one opposed, the Committee recommended suspending the grade, size, quality, pack, inspection, assessment collection, and other requirements for one year. The Committee met again on May 16, 2001, to review the recommendation made at the earlier meeting and to clarify its original motion. The Committee requested that this rule be in place for one year beginning with the effective date of this rule.

Because limes are marketed all year, the Committee was not concerned about recommending a specific effective date for the suspension. The fiscal year covers the 12-month period beginning April 1 and ending March 31. Since the suspension only applies for the 12 months following the effective date of this final rule, the suspension of the handling, inspection, assessment, and other requirements will start during the 2001/2002 fiscal period and end during the 2002/2003 fiscal period. This is not expected to cause any problems for handlers.

The objective of the handling and inspection requirements is to ensure that only limes of acceptable quality enter fresh market channels, thereby ensuring consumer satisfaction, increasing sales, and improving returns to producers. While the industry continues to believe that quality is an important factor in maintaining sales, the Committee believes the costs associated with the order may exceed the benefits derived at this time, especially in view of the reduction in production due to citrus canker.

The Committee is concerned, however, that the elimination of current requirements could possibly result in lower quality limes being shipped to fresh markets and that markets will be hurt by poor quality. For this reason, the Committee recommended that the suspension of requirements be effective for one-year only. This will enable the Committee to study the impacts of canker and the suspension and consider appropriate actions for ensuing seasons.

This rule allows handlers to ship limes without regard to the minimum grade, size, quality, pack, and inspection requirements for one year. This allows handlers to decrease costs by eliminating the costs associated with inspection and assessments. This rule does not restrict handlers from seeking inspection on a voluntary basis.

The purpose of this rule is to reduce the burden on the industry. If at any time during the suspension the Committee determines this action is having an unfavorable impact on the industry, the Committee could meet and rescind the suspension.

This rule suspends §§ 911.110, 911.120, 911.130, 911.131, 911.311, 911.329, and 911.344 of the rules and regulations in effect under the order. Section 911.110 provides for hardship exemptions from inspection. Section 911.120 provides for the registration of handlers. Section 911.130 specifies minimum quantity and gift exemptions, and defines commercial processing. Section 911.131 provides requirements for limes for processing.

This rule also suspends § 911.234 requiring that an assessment rate of $0.16 per 55-pound bushel equivalent of limes be collected from Florida lime handlers. Authorization to assess lime handlers enables the Committee to incur expenses that are necessary to administer the marketing order. With the suspension of handling, inspection, and assessment requirements, a limited Committee budget is needed for program administration. For the period of suspension, the Committee will meet and recommend a reduced budget. The Committee has about $26,000 in operating reserves to cover approved Committee expenses.

In 1995, citrus canker was detected near the Miami International Airport. Citrus canker spread throughout South Florida and by March 2000, almost 1,500 acres of lime groves had tested positive for citrus canker. Prior to the outbreak of citrus canker, there were approximately 3,200 acres of commercial lime groves in Dade County. Estimates now place the Florida lime industry at somewhere between 600 and 1,000 acres of production. During the 1999-2000 season, fresh lime production was 774,111 bushels. This past season, production fell to 344,032 bushels. Production in 2001-02 is estimated to be 300,000 bushels.

Citrus canker is a highly infectious disease that attacks citrus trees. Canker attacks the tree and the fruit and may produce a variety of effects, including defoliation, severely blemished fruit, reduced fruit quality, and premature fruit drop. The only known method of eradicating citrus canker is to bulldoze and burn infected and exposed trees. Trees surrounding infected trees must also be bulldozed and burned. At the beginning of the eradication program, trees within a 125 feet radius of an infected tree were destroyed. However, after research was conducted, it was determined that all trees within a 1,900 feet radius had to be destroyed. The removal of these additional trees has quickened the reduction of lime acreage in South Florida.

Many lime growers have lost all of their production to canker. By regulation, until citrus canker is eradicated, lime growers are not permitted to replant. The production area is also under a quarantine that makes it difficult to sell harvested fruit. Lost income from reduced volume and the cost of maintaining groves with reduced monetary returns have hurt the industry. Because of this and the substantially reduced crop, the Committee believes that regulation should be suspended.

By suspending regulation, the industry has an opportunity to evaluate how the citrus canker eradication efforts are progressing. The industry also has an opportunity to assess the market impact of having no regulation. Also, under a suspension, inspection fees and program assessment costs are eliminated. This is a savings for both growers and handlers. The savings will help offset some of the effects of citrus canker.

The Committee member who opposed the recommendation believes that there is enough limes remaining to warrant regulation. Without regulation, the member believes that poor quality lime shipments will negatively impact better quality shipments. He also stated that he believes imported limes will flood the market and destroy the market for domestically produced limes. USDA received several letters emphasizing these points. They were considered prior to the issuance of the proposed rule. As mentioned earlier, the Committee has similar concerns, but believes that a one-year suspension of regulations is necessary to help reduce costs for those producers and packers who still have limes to market. The suspension provides time to assess canker eradication efforts, evaluate the effects on the market of having no regulations for one year, and offers the industry some needed cost relief from assessments and inspection fees. For these reasons, the Committee voted to recommend that grade, size, quality, maturity, pack, inspection, assessment collection, and other requirements be suspended for one year.

Suspension of all of the specified requirements is expected to reduce the reporting burden on small or large Florida lime handlers by about 22 hours, and should further reduce industry expenses. During the suspension period, handlers will not have to file the following forms with the Committee: Application for Registered Handler (16.5 burden hours); Application for Registered Processor (10 minutes); Application for Lime Grade Label (5.5 burden hours).

Section 8e of the Act provides that when certain domestically produced commodities, including limes, are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements. Since this rule suspends regulations for domestically produced limes, a corresponding change to the import regulations must also be made.

Minimum grade, size, maturity, and quality requirements for limes imported into the United States are effective under § 944.209 (7 CFR 944.209). This rule suspends § 944.209 requiring that limes imported into the United States be inspected for grade, size, maturity, and quality. Because this rule suspends import requirements for one year, it could also result in reduced costs for importers.

Mexico is the largest exporter of limes to the United States. In calendar year 2000, Mexico exported approximately 9,630,909 bushels of limes to the United States, while all other import sources shipped a combined total of approximately 98,182 bushels during the same time period. Other sources of lime imports to the United States include Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, and Venezuela. Mexico's highest volume occurs in the months of June through September.

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 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 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 52 producers of limes in the production area and approximately 10 handlers subject to regulation under the marketing order. In addition, approximately 240 importers of limes are subject to import regulations and will be impacted by this suspension. Small agricultural producers are defined as those having annual receipts of less than $750,000, and small agricultural service firms, which include handlers and importers, are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $5,000,000.

The average f.o.b. price for fresh limes during the 2000-01 season was around $14.75 per bushel and total shipments were 344,032 bushels for the season. Using this price and total volume for the season, all lime handlers could be considered small businesses under the SBA definition, excluding receipts from other sources. The majority of Florida lime producers and handlers may be classified as small entities.

In calendar year 2000, imports of limes totaled about 9.7 million bushels. Assuming the same average f.o.b. price as for Florida limes, the average importer receives gross receipts of about $600,000. Thus, the majority of lime importers can be classified as small entities.

This final rule suspends grade, size, quality, pack, inspection, assessment collection, and other requirements as specified in §§ 911.110, 911.120, 911.130, 911.131, 911.234, 911.311, 911.329, and 911.344. Section 944.209 of the import regulations, specifying the requirements for limes imported into the United States, is also suspended in its entirety. The suspensions are in effect for one year.

Citrus canker has reduced Florida lime production from 3,200 acres to between 600 and 1,000 acres. The only known method for eradicating citrus canker is to bulldoze and burn infected trees and exposed trees. This suspension gives the industry time to evaluate citrus canker eradication efforts and to assess the effects on the market of having no regulations for one year. This change also reduces costs and will help the industry recover from the effects of citrus canker.

At the April and May meetings, the Committee discussed the impact of this change on handlers and producers in terms of cost. This rule allows handlers to ship limes without regard to the minimum grade, size, quality, maturity, pack, and inspection requirements. It will decrease handler costs associated with inspection. This action also will eliminate the cost of assessments. Currently, handlers are required to pay an inspection fee of $0.14 per bushel and an assessment rate of $0.16 per bushel handled. Eliminating these costs will result in a savings for growers and handlers. Importers also will benefit from the reduction in inspection costs. These savings will help offset the loss of income from canker, as well as assist in the costs of replanting, when replanting is again authorized. The purpose of this rule is to reduce the burden on the industry. If at any time during the suspension the Committee determines this action is having an unfavorable impact on the industry, the Committee could meet and rescind the suspension. The benefits of this rule are expected to be available to lime handlers, growers, and importers, regardless of their size of operation.

The Committee discussed alternatives to this change, including not suspending regulations at all, as well as terminating the order. Terminating the order was deemed too drastic an action at this time. However, most of the Committee members believe that suspension is necessary because of the substantially reduced crop and to reduce inspection and assessment costs. Citrus canker has had a negative economic impact on the lime industry and cost savings will be beneficial. Suspending regulations also provides the Committee time to evaluate the effects of canker and to consider what actions should be taken in the future. The Committee acknowledged that quality problems might occur in the absence of regulation, but believed that suspension was the best course of action at this time given the industry situation. Therefore, the alternatives of termination and continuing without change were rejected.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection requirements being suspended by this rule were approved previously by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189. Suspension of all of the specified requirements is expected to reduce the reporting burden on small or large Florida lime handlers by 22 hours, and should further reduce industry expenses. During the suspension period, handlers will not have to file the following forms with the Committee: Application for Registered Handler (16.5 burden hours); Application for Registered Processor (10 minutes); Application for Lime Grade Label (5.5 burden hours). As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sectors.

Pursuant to section 8e of the Act, this action also suspends the lime import regulation (7 CFR 944.209). That regulation specifies grade, size, quality, maturity, inspection, and other requirements.

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

The Committee's meetings were widely publicized throughout the lime industry and all interested persons were invited to attend the meetings and participate in Committee deliberations on all issues. Like all Committee meetings, the April 18, 2001, and the May 16, 2001, meetings were public meetings and all entities, both large and small, were able to express views on this issue.

A proposed rule concerning this action was published in the Federal Register on August 6, 2001 (66 FR 40923). Copies of the rule were mailed or sent via facsimile to all Committee members and lime handlers. Finally, the Office of the Federal Register and USDA made the rule available through the Internet. A 30-day comment period ending September 5, 2001, was provided to allow interested persons to respond to the proposal.

Twenty-five comments were received during the comment period in response to the proposal. Many of the points made in the comments were thoroughly discussed prior to the Committee vote and the issuance of the proposed rule.

Of the twenty-five comments received, four were in support of the proposal, one from a grower, two from handlers, and one from an importer. Three of the comments in support of the suspension discussed the costs associated with growing, handling, and importing limes.

An importer of limes stated that, with no requirement to have limes inspected, there would be reduced costs for importers. The commenter further stated that this suspension would also result in cost savings for both growers and handlers of limes.

A handler and a grower of Florida limes stated that the lime industry cannot afford to maintain the Federal marketing order. One commenter stated that the costs for picking limes have exceeded the return to the grower, increasing the need for cost savings. Another commenter stated that the average return per bushel has declined by $4.00 since 1999. The effort to prevent the further spread of canker has also increased industry costs.

Before making a recommendation to suspend regulation, the Committee prepared a budget of expenses to determine the assessment rate necessary to cover expenses required to maintain the order. With the reduced production, the Committee determined an assessment rate of $0.30 per bushel would be necessary to maintain the order. That rate is almost double the existing assessment rate. Increasing the assessment rate would have meant a further reduction in returns. The Committee believes the suspension will help increase returns by reducing costs.

Citrus canker has reduced the Florida lime industry from approximately 3,200 acres before the outbreak of citrus canker to less than 1,000 acres currently. The only known way to eradicate citrus canker is to bulldoze the infected and exposed trees and burn them. The production area is also quarantined and no new trees can be planted at this time. The money saved as a result of the suspension can be used to offset the loss of income due to the reduced production of limes.

Two commenters in support of suspension noted that this change is for a period not to exceed one year. The Committee determined that suspending regulations for a period not to exceed one year would give the industry time to assess the citrus canker eradication efforts and evaluate the effects of no regulations on the market. During the suspension, the Committee will meet periodically to discuss the effects citrus canker has had on the industry and the impact of no regulation. After the one-year period, regulations will return absent further action by the Committee. However, if conditions warrant, the Committee could recommend reinstating the suspended requirements earlier. During the period of suspension, handlers of domestic and imported limes are free to voluntarily obtain inspection to assure the quality of the limes marketed, and to meet the needs of their customers.

Two of the comments in favor of the rule discussed maintaining quality in the absence of regulations. Both commenters stated that the market and consumers would dictate the quality of limes that is acceptable. Shippers will continue to supply their customers with a high quality product because the buyer will pay a premium price for it. Also, as previously noted, inspection can be obtained to assure that the limes meet buyer specifications.

Twenty-one comments were received in opposition to this rule. Fourteen were from importers of limes and seven comments were received from Florida lime growers and handlers.

The fourteen lime importers opposing the suspension were concerned by the potential of poor quality imports, and the negative impact such imports could have on market prices and sales. Section 8e of the Act provides that when certain domestically produced commodities, including limes, are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements. Since this rule suspends regulations for domestically produced limes, a corresponding change to the import regulations must also be made.

The comments received from importers all expressed concern for the impact on quality resulting from the suspension. These same or similar concerns were also expressed in six of the comments received from Florida lime growers and handlers. The Committee itself had similar concerns, and weighed these concerns against the need to reduce costs. For this reason, the Committee recommended that the suspension of requirements be effective for one year only. This will enable the Committee to study the impacts of canker and the suspension, reduce costs during a very difficult time, and consider appropriate actions for ensuing seasons. If the elimination of the current requirements does result in the shipment of lower quality limes and markets are hurt, the Committee could recommend reinstitution of the requirements.

This rule relaxes requirements and provides handlers and importers of limes with more flexibility in meeting the needs of their buyers. Handlers and importers will be able to market limes without inspection and eliminate inspection costs. Buyer and seller interaction will determine the terms and conditions of sales and the quality of limes sold and purchased. As previously noted, even though inspection requirements are suspended, inspection of limes can be obtained on a voluntary basis for a fee by the handler or importer to assure quality and meet customer requirements.

The Committee believes one year of suspension will determine if consumer demand will keep quality high or result in product substitution and loss of market share. The purpose of this rule is to reduce the burden on the industry. If at any time during the suspension the Committee determines this action is having an unfavorable impact on the industry, the Committee could meet and rescind the suspension. Consequently, the Committee recommended suspending provisions for one year to garner the benefits of the associated cost savings and to study the effect on the market. This action reduces costs in view of the current industry situation. It also provides an opportunity to evaluate the progress on the eradication of citrus canker and the market impact of no regulation.

Five commenters addressed the suspension as if it were a termination of the marketing order. This action does not terminate the order. It only provides a one-year suspension of the regulations specified above. Terminating the order would require additional Committee action or action on the part of the industry.

Four comments stated that this rule change would only benefit importers of limes by allowing inferior limes to be imported into the U.S. It is doubtful whether the importation of inferior quality limes will benefit importers. Experience has shown that the marketing of poor quality tends to cause the market to deteriorate for everyone.

Another commenter expressed concern regarding Committee membership when an industry member may import limes in addition to handling limes. The commenter was concerned that this could unduly shape the decision-making of the Committee and bias decisions in favor of importers. The Committee is established and selected in accordance with the provisions of the order. Committee meetings concerning this action were widely publicized throughout the lime industry and all interested persons were invited to attend the meetings and participate in Committee deliberations on all issues. Further, many of the comments received in opposition to this action were from importers.

One commenter stated that some of the members voting for suspension were not qualified to serve as members. Nominations for the Committee were held in February 2001, and the new Committee was seated for the April meeting. Prior to seating the new Committee, qualifications to serve were confirmed by USDA field representatives.

Two comments expressed concern that some Committee members were not present at the time the Committee voted to make this recommendation. As with all Committee meetings, the time and place of the Committee meetings were well publicized throughout the industry. All members of the Committee and growers and handlers in the industry were given reasonable notice of the meeting, and given an opportunity to attend.

One commenter expressed concern that the members of the Committee that made this recommendation would be responsible for ending the suspension. The suspension of the handling, inspection, and assessment requirements is for a period of time not to exceed one year. At the end of that time, no action by the Committee will be required to reinstate regulations. Regulations will revert back at the end of the one-year period. However, further suspension or termination would require action on the part of the Committee and a vote. The suspension could be removed sooner if marketing conditions deteriorate for limes, or for other good cause.

Two commenters stated that this action should be postponed until after the continuance referendum required under the order. Every sixth year, growers vote in a continuance referendum to determine whether or not the industry continues to support the marketing order. Such a referendum, absent this suspension, would have been scheduled for some time during the coming year. It now will most likely be scheduled after the suspension expires.

However, a continuance referendum would be an indication of industry support for the order, not an indicator of support or opposition to the suspension. Support for the order is something different than what is contemplated by this action. This suspension does not terminate the marketing order. This action was recommended by the Committee to reduce industry costs and to evaluate the progress of citrus canker and the market's response to no regulation during the one-year suspension.

USDA believes postponing the suspension until after a continuance referendum is held would not be in the best interest of industry. The question at hand is not whether or not to terminate the marketing order, but on whether or not the industry would benefit from the cost savings provided by the suspension. The Committee is the organization responsible for the local administration of the marketing order. The Committee voted six in favor to one opposed in support of the suspension. Delaying the suspension would only postpone the industry's opportunity to benefit from the cost saving offered by this suspension.

Another commenter stated that growers who have the majority of lime acreage do not support the suspension. The marketing order is created to benefit all growers, not just the ones with the most acreage. We do note that, of the grower members seated for the vote recommending this suspension, all three voted for suspension.

One commenter stated that the industry is still strong enough to maintain the marketing order. Another stated that the industry has a willingness to continue. The lime industry has overcome past hardships. However, this action will provide cost reduction relief in view of the current situation facing the lime industry.

Growers are facing reduced production from canker and increased costs from requirements established to battle its spread. After Hurricane Andrew, the Committee recommended that certain regulations be relaxed and assessments be eliminated for two years to help the industry recover. This action is another such incidence. This action does not terminate the order, but offers some cost relief to provide the industry an opportunity to recover.

In January 1996, the Committee was concerned by the state of the industry. To address its concerns, the Committee voted to suspend all regulation for a six-month period. However, prior to the suspension taking effect, the Committee determined the industry had sufficiently recovered and voted to rescind the suspension. The Committee has taken a similar action here. At any time during the one-year suspension, the Committee could vote to rescind the suspension and return to regulation.

Another commenter recommended that requirements for imports of size 250's apply year round as opposed to six months. However, this recommendation is not within the scope of the proposed rule on suspending the requirements.

One comment was received after the comment period ended. This comment did not raise any issues that were raised by comments that were timely filed.

The suspension will allow those still active in the lime industry to benefit from a needed reduction in costs given the current circumstances facing the industry. A one-year suspension of the regulations will provide needed cost savings and a period to evaluate the status of canker and on the market effects of the suspension of regulation. Accordingly, no changes are being made to the rule as it was proposed, based on the comments 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.

In accordance with section 8e of the Act, the United States Trade Representative has concurred with the issuance of this final rule.

After consideration of all relevant matter presented, including the information and recommendation submitted by the Committee, the comments received, and other available information, it is hereby found that the provisions suspended, as hereinafter set forth, will not tend to effectuate the declared policy of the Act for the period of suspension. Therefore, these provisions of the order are being suspended.

It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register (5 U.S.C. 553) because handlers are already shipping limes from the 2001-02 crop, and this rule needs to be in effect as soon as possible to provide relief to the Florida lime industry. No special preparations are needed by handlers and importers to take advantage of this relaxation. Also, the industry has been discussing this issue for some time, and the Committee has kept the industry well informed. It has also been widely discussed at various industry and Committee meetings.

This rule is issued under Marketing Order No. 929, as amended (7 CFR part 929), regulating the handling of cranberries grown in Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York, 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. Under the marketing order now in effect, cranberry 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 cranberries beginning September 1, 2001, 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 2001-2002 and subsequent fiscal years for cranberries from $0.08 to $0.18 per barrel of cranberries.

The cranberry marketing order provides that one of the duties of the Committee is to formulate an annual budget of expenses and to recommend a rate of assessment necessary to administer the provisions of the order. The members of the Committee are producers of cranberries. 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.

Authority to fix the rate of assessment to be paid by each handler and to collect such assessment appears in § 928.41 of the order. In addition, § 929.45 of the order provides that the Committee, with the approval of USDA, may establish or provide for the establishment of production research, marketing research, and market development projects designed to assist, improve, or promote the marketing, distribution, consumption, or efficient production of cranberries. The expense of such projects is paid from funds collected pursuant to § 929.41 (Assessments), or from such other funds as approved by USDA.

For the 2000-2001 fiscal year, the Committee recommended, and the Department approved, an assessment rate of $.08 per barrel of cranberries handled that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee voted by mail and recommended 2001-2002 expenditures of $1,206,772 and an assessment rate of $.18 per barrel of cranberries. Six of the eight committee members voted in support of the $.10 per barrel increase. Two members did not return their mail ballots to the Committee. The assessment rate increase was considered by the Committee at an earlier public meeting. The budget for 2001-2002 was recommended to the full Committee by the Executive Committee. The major expenditures recommended by the Committee for the 2001-2002 fiscal period include $846,953 for market development (including $490,000 for domestic market development, $273,953 for export market development, and $83,000 for export market consulting services), $123,952 for administration costs, $129,500 for personnel, $75,000 for Committee meetings, and $31,367 for payroll taxes and benefits. Included in the budget calculations is about $6,000 interest and $213,953 Market Access Program (MAP) funds from USDA's Foreign Agricultural Service (FAS) for export market development. Budgeted expenses in the Committee's amended 2000-2001 budget were $223,647 for administration costs, $270,407 for export market development, $71,000 for export market consulting services, $119,464 for personnel, and $67,500 for Committee meetings. There was no domestic market development program for the 2000-2001 fiscal year.

The Committee recommended the $.10 per barrel increase to fund a domestic market development program to increase demand for cranberries and cranberry products and thus expand cranberry shipments. Currently, supplies are outpacing demand. The Committee believes that a domestic market development program is needed to increase consumer awareness of the health benefits of cranberries and cranberry products. Currently, the Committee funds an export market development program with MAP money from FAS.

Over the past several years, per capita consumption of cranberries has averaged 1.68 pounds. Per capita consumption peaked in 1994 at 1.80 pounds and began trending downward. In 1998, per capita consumption was 1.67 pounds. Associated with these per capita consumption figures is the fact that total domestic sales also peaked in 1994 at 4,692,507 barrels and declined to 4,506,632 barrels in 1998. However, cranberry production reached an all-time high of 6,389,000 barrels in 1999. This is a 17 percent increase over 1998 production of approximately 5.4 million barrels. Available cranberry supplies continue to outpace demand, resulting in high levels of carryin inventories and low grower prices. Grower returns have fallen 73 percent from 1997 to 2000, dropping from $65.90 to $15-$20 per barrel.

The assessment rate recommended by the Committee was derived by estimating the cost of a viable domestic market development program ($490,000) and then increasing the assessment rate to cover such costs. Cranberry shipments are projected at 4.9 million barrels which will provide $882,000 in assessment income. Income derived from handler assessments, along with interest income, FAS market access program funds for export market development, and funds from the Committee's authorized reserve will be adequate to cover budgeted expenses expected to total $1,206,772 in 2001-2002. Funds in the reserve (currently $115,000) will be kept within the approximately one year's operational expenses permitted by the order (§ 929.42(a)).

The assessment rate will continue in effect indefinitely unless modified, suspended, or terminated by the Secretary upon recommendation and information submitted by the Committee or other available information.

Although the assessment rate will be effective for an indefinite period, the Committee will continue to meet prior to or during each fiscal period 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 the Department. Committee meetings are open to the public and interested persons may express their views at these meetings. The Department evaluates Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2001-2002 budget and those for subsequent fiscal periods 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 action 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 rules thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 20 handlers of cranberries who are subject to regulation under the order and approximately 1,100 producers of cranberries in the regulated area. Small agricultural service firms, which includes handlers, are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000. The majority of cranberry handlers and producers may be classified as small businesses.

This rule increases the assessment rate established for the Committee and collected from handlers for the 2001-2002 and subsequent fiscal periods from $.08 to $.18 per barrel of cranberries. One barrel equals 100 pounds of cranberries.

The Committee discussed the alternative of continuing the existing assessment rate, but concluded that it needed to implement a domestic market development program funded through assessments. The assessment rate recommended by the Committee was derived by determining the cost of a viable domestic market development program ($490,000), and then increasing the assessment rate to cover the additional costs. Cranberry shipments are projected at 4.9 million barrels which would provide $882,000 assessment income. Income derived from handler assessments, along with interest income, FAS market access program funds, and funds from the Committee's authorized reserve will be adequate to cover budgeted expenses. Funds in the reserve (currently $115,000) would be kept within the approximately one year's operational expenses permitted by the order (§ 929.42(a)).

The major expenditures recommended by the Committee for the 2001-2002 fiscal period include $846,953 for market development (including $490,000 for domestic market development, $273,953 for export market development, and $83,000 for export market development consulting services), $123,952 for administration costs, $129,500 for personnel, $75,000 for Committee meetings, and $31,367 for payroll taxes and benefits. Included in the budget calculations is approximately $6,000 interest and $213,953 MAP funds from FAS for export market development. Budgeted expenses in the Committee's amended 2000-2001 budget were $223,647 for administration costs, $270,407 for export market development, $119,464 for personnel, and $67,500 for Committee meetings. There was no domestic market development program for the 2000-2001 fiscal period.

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 will be offset by the benefits derived by the operation of the marketing order. In addition, the Committee's meeting was widely publicized throughout the cranberry industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, all entities, both large and small, were able to express views on this issue.

This rule will impose no additional reporting or recordkeeping requirements on either small or large cranberry 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 September 21, 2001 (66 FR 48626). Copies of the rule were mailed by the Committee's staff to all Committee members and handlers. In addition, the rule was made available through the Internet by the Office of the Federal Register and USDA. A 15-day comment period ending October 9, 2001, was provided to allow interested persons to respond to the proposal.

Eighteen comments were received during the comment period in response to the proposal. Nine were received in favor of the proposal and nine were in opposition. Most of the comments were received from cranberry growers. Comments also were received from the Committee, two handlers, and an institute that supports research on the health benefits of cranberries.

Those in support favored the assessment rate increase because the funds will be the major source of funding for domestic market development activities, needed to increase shipments. The cranberry industry is faced with low prices primarily due to large surpluses. Industry-wide market development activities are needed to expand domestic markets and the consumption of cranberries and cranberry products. The initiation of these activities is expected to bring demand closer into balance with supply over the long term, and, in turn, help bring returns to growers back to acceptable levels.

The main comments in opposition to the proposal were: The funds would be wasted because the Committee's marketing efforts have not been successful in the past and the Committee does not have the public relations/marketing development expertise of well known public relations firms; growers do not have a means of holding the Committee accountable for its results; other State organizations can work with the Cranberry Institute (an organization that funds research on the potential health benefits of cranberries and cranberry products) to accomplish the same goal; growers have not been informed of the domestic marketing plan, and, thus, do not know how the increased assessments will be spent; and farm gate prices are extremely low at this time to fund such an endeavor.

Any market development program initiated by the Committee to expand domestic markets would be approved and overseen by USDA. In the development stages, USDA would provide general guidance on the conduct of market development. USDA also would review the program goals and the program activities, methods, and techniques to be employed in meeting the goals. The Committee and USDA would monitor any program implemented to determine that the program goals have or have not been met, and if not, the reason for the failure, that the assessment funds used for the program have been properly spent, and to determine whether the program should be continued unchanged, changed, or discontinued. Also, upon conclusion of any program, but at least annually, the Committee would report on the program status and accomplishments to the industry and the USDA.

With respect to the comment that the Wisconsin Cranberry Board already collects funds for generic promotion and health related research and that the growers do not need to fund similar Committee activities, it should be noted that the Committee's anticipated domestic market development effort is intended to be industry-wide and not regional in scope. A broader based effort is needed to foster the domestic market growth needed to absorb production. The Committee commented that it surveyed growers in the industry and they overwhelmingly favored (449 out of 496 respondents) an industry-wide market development program. The Committee also stated that the market development program will be designed to complement ongoing promotion programs within the industry and to take advantage of the Cranberry Institute's health related research.

With respect to the type of promotion that would be funded, the Committee's comments describe its initial plans for a promotion program. The Committee comprised of members from the different growing areas would decide what type of program would be implemented. Preliminary discussions on a domestic market development effort have begun, but have not been finalized by the Committee. The Committee commented that the initial focus of any market development effort undertaken would be to inform buyers of the health benefits of cranberries and cranberry products. Once the final plan is developed and recommended by the Committee, the plan would have to be approved by USDA before it could be implemented.

Commenters in favor of the increased assessment rate stated that the goal of a domestic market development program implemented under the order would be to build markets and that this should help bring demand closer to the productive capacity of the industry. The ultimate goal, of course, is to help the industry return to profitability over time.

Finally, those in opposition commented that prices are at an all time low and the Committee should not be raising assessments while farmers are going broke. One commenter in favor of the proposed assessment rate increase stated that the additional $.10 per barrel assessment is insignificant to the lost income growers are enduring as a result of the surplus situation currently being faced by the industry because of overproduction and reduced demand. The Committee expects such a program to stimulate growth in demand for cranberries and cranberry products and increase grower returns to a more acceptable level. Another commenter in favor of the increase noted that growers need to recognize that building demand for cranberries is the only long-term sustainable solution to the oversupply problem.

One commenter did not approve of the increase because Ocean Spray members would pay a disproportionate share of the cost. Ocean Spray management submitted a comment in favor of the increase.

Two commenters stated that growers have not been allowed to vote for some time on the continuation of the marketing order. They said that growers should be allowed to vote on whether they want to continue the order before raising the assessment rate. The issue of holding a continuance referendum was not part of the notice concerning this rulemaking action, but such referenda are periodically conducted by USDA.

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

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at the following Web site: 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 matter presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register (5 U.S.C. 553) because the 2001-2002 fiscal period began on September 1, 2001, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable cranberries handled during such fiscal period, and the Committee needs to have sufficient funds to pay its expenses which are incurred on a continuous basis. Further, handlers are aware of this action which was recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years. Also, a 15-day comment period was provided for in the proposed rule, and all comments received have been addressed.

On June 8, 1998, FAA issued AD 98-13-03, Amendment 39-10591 (63 FR 33532, June 19, 1998). This AD currently requires the following on the above-referenced airplanes:

Accomplishment of these actions is required in accordance with the following service information:

The actions of AD 98-13-03 are consistent with our aging commuter aircraft policy, which briefly states that, when a modification exists that could eliminate or reduce the number of required critical inspections, the modification should be incorporated. This policy is based on our determination that reliance on critical repetitive inspections on airplanes utilized in commuter service carries an unnecessary safety risk when a design change exists that could eliminate or, in certain instances, reduce the number of those critical inspections.

The alternative to installing improved design MLG hinge fittings would be to repetitively inspect this area for the life of the airplane.

Since AD 98-13-03 became effective, FAA received comments regarding the applicability. The applicability of AD 98-13-03 exempts those airplanes with the improved design MLG hinge fittings installed as of the effective date of the AD. However, those airplanes that have the improved design MLG hinge fittings incorporated after the effective date of the AD are subject to repetitive inspections of the MLG support angles. Our intent was to require the inspections of the MLG support angles regardless of when the improved design MLG hinge fittings are incorporated.

Therefore, we then determined that the exemption of those airplanes with the improved design MLG hinge fittings installed should be removed, and that all affected airplanes should have the MLG support angles repetitively inspected.

Consequently, we issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain British Aerospace Models HP.137 Jetstream Mk.1, Jetstream Series 200, and Jetstream Series 3101 airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on July 18, 2001 (66 FR 37435). The NPRM proposed to supersede AD 98-13-03. The NPRM also proposed to:

Based on comments received on this NPRM, we made minor changes to the proposed action. Another comment indicated that the manufacturer was not providing parts to accomplish the proposed action free of charge as previously referenced. Because this shifts the cost burden of these improved design MLG hinge fittings from the manufacturer to the owner/operator, we reopened the comment period for this proposed AD and issued a supplemental NPRM.

This supplemental NPRM was published in the Federal Register on November 19, 2001 (66 FR 57890). We received no comments on this supplemental NPRM.

We carefully reviewed all available information related to the subject presented above and determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial changes. We have determined that these changes:

We estimate that this AD affects 71 airplanes in the U.S. registry.

The FAA estimates that this AD will affect 71 airplanes in the U.S. registry. We estimate the following costs to accomplish the actions:

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that is applicable to CMFI CFM56-5 series turbofan engines was published in the Federal Register on October 19, 2001 (66 FR 53131). That action proposed to require replacement of the magnetic drain plug on certain ­P/N air turbine engine starters manufactured by Honeywell Engines & Systems, in accordance with Honeywell Service Bulletin 3505582-80-1706, dated March 8, 2000.

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

The commenter states that the new drain plug P/N is incorrect, the replaced packing P/N is incorrect, and the new packing P/N is incorrect as called out in paragraph (a) of the NPRM.

The FAA agrees. Paragraph (a) is now corrected to reflect new drain plug P/N 572-8510-9152, replaced packing P/N S9413-555, and new packing P/N S3225-905.

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

The FAA estimates that about 512 engines installed on airplanes of U.S. registry would be affected by this AD. The FAA also estimates that it would take approximately 0.1 work hours per engine to accomplish the actions, and that the average labor rate is $60 per work hour. Required parts would cost approximately $787 per engine. Based on these figures, the total cost effect of this AD on U.S. operators is estimated to be $406,016. CFMI may provide parts at no cost, which would significantly reduce this figure.

This final rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this final rule.

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain BAE Systems (Operations) Limited Model BAe 146 and Avro 146-RJ series airplanes was published in the Federal Register on October 4, 2001 (66 FR 50586). That action proposed to require a one-time inspection to detect corrosion of the flap structure and machined ribs, corrective actions if necessary, and reprotection of the rib boss bores.

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

For conditions where corrosion is detected, paragraph (a)(2)(ii) of the proposed AD specifies eventual repetition of the detailed visual inspection in paragraph (a) of the proposed AD (following the accomplishment of corrective actions and reprotection of the boss bores). However, paragraph (a)(2)(ii) of the proposed AD does not make clear that any follow-on actions to the detailed visual inspection must also be accomplished. Therefore, for clarification, we have revised paragraph (a)(2)(ii) of this final rule to require eventual repetition of the detailed visual inspection and accomplishment of applicable follow-on actions. We find that this change does not expand the scope of the proposed AD but merely provides clarification of the requirements of this AD.

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

The FAA estimates that 60 Model BAe 146 and Avro 146-RJ series airplanes of U.S. registry will be affected by this AD, that it will take approximately 160 work hours per airplane (including access, testing, and close-up) to accomplish the required inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the inspection required by this AD on U.S. operators is estimated to be $576,000, or $9,600 per airplane.

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

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

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

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

The Direction Ge ne rale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, recently notified FAA that an unsafe condition may exist on certain SOCATA Model TBM 700 airplanes. The DGAC reports an incident in which the elevator controls jammed on one of the affected airplanes.

Jamming of the elevator controls occurred because water accumulated in the fuselage and froze. Water had accumulated in the fuselage because the strainer and draining hole became clogged.

If this condition is not corrected, water may accumulate in the fuselage, freeze and interfere with or cause the elevator controls to seize. This could result in loss of elevator control.

We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain SOCATA Model TBM 700 airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on November 14, 2001 (66 FR 57007). The NPRM proposed to require you to install a new strainer draining system in the cabin fuselage.

The FAA encouraged interested persons to participate in the making of this amendment. We did not receive any comments on the proposed rule or on our determination of the cost to the public.

After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for minor editorial corrections. We have determined that these minor corrections:

—provide the intent that was proposed in the NPRM for correcting the unsafe condition; and

—do not add any additional burden upon the public than was already proposed in the NPRM.

We estimate that this AD affects 79 airplanes in the U.S. registry.

We estimate the following costs to accomplish the modification:

The compliance time of this AD is “within the next 3 months after the effective date of this AD”.

Although water in the cabin fuselage could interfere with the elevator controls and become unsafe during flight, the condition is not a direct result of airplane operation. The chance of this situation occurring is the same for an airplane with 10 hours time-in-service (TIS) as it would be for an airplane with 500 hours TIS. A calendar time for compliance will assure that the unsafe condition is addressed on all airplanes in a reasonable time period.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain BAE Systems (Operations) Limited Model BAe 146 and Avro 146-RJ series airplanes was published in the Federal Register on November 23, 2001 (66 FR 58678). That action proposed to require repetitive inspections to detect cracking of the oleo strut of the nose landing gear, and corrective actions if necessary. That action also proposed to provide for optional terminating action for the repetitive inspections.

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

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

The FAA estimates that 60 Model BAe 146 series airplanes and Model Avro 146-RJ series airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the requirements of this AD on U.S. operators is estimated to be $3,600, or $60 per airplane, per inspection cycle.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that is applicable to Honeywell International, Inc., (formerly AlliedSignal, Inc., and Textron Lycoming) T5311A, T5311B, T5313B, T5317A, T5317B, and former military T53-L-11, T53-L-11A, T53-L-11B, T53-L-11C, T53-L-11D, T53-L-11A S/SA, T53-L-13B, T53-L-13B S/SA, T53-L-13B S/SB, and T53-L-703 series turboshaft engines was published in the Federal Register on June 15, 2001 (66 FR 32591). That action proposed to require initial and repetitive special vibration tests of the engine, and if necessary replacement with a serviceable reduction gearbox assembly, or a serviceable engine before further flight, in accordance with AlliedSignal, Inc., Service Bulletin (SB) No.”s T5311A/B-0100, dated January 20, 2000; T5313B/17-0100, dated November 19, 1999; T53-L-11-0100, dated January 20, 2000; T53-L-13B-0100, Revision 2, dated May 11, 1999; and T53-L-703-0100, Revision 2, dated May 11, 1999.

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

The commenter stated that further investigation into the root problem causing the spur gear failures needs to be addressed. The problem may be a manufacturing problem from one U.S. Government contract supplier.

The FAA does not agree. The commenter did not supply sufficient evidence substantiating a design nonconformity.

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

There are about 4,500 engines of the affected design in the worldwide fleet. The FAA estimates that 300 engines installed on aircraft of U.S. registry would be affected by this AD, and that it would take about four work hours per engine to accomplish each special vibration test, and that the average labor rate is $60 per work hour. Based on these figures, for each special vibration test, the total labor cost effect on U.S. operators is estimated to be $240 per engine. The FAA estimates that operators, on average, will perform ten special vibration tests per year, resulting in a total annual cost on U.S. operators of $720,000.

This final rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this final rule.

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

The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom (UK), had notified the Federal Aviation Administration (FAA) in March of 2000, that an unsafe condition may exist on certain Rolls-Royce plc (RR) RB211-524 series turbofan engines. The CAA had received reports of three fan blade failures up to that time. Subsequent inspections of the dovetail root area on other fan blades revealed the existence of dovetail root cracks in the same region as the failed blades.

The FAA issued AD 2000-05-12 to require initial and repetitive ultrasonic inspections for cracks in fan blade dovetail roots, and, if necessary, replacement with serviceable parts. That action also provided the options of installing improved design fan blades or reworking current fan blades to the improved configuration as terminating action for the inspections. Since that AD was published, two additional reports of fan blades found cracked have been received. The FAA has determined through information provided by RR that the fan blade inspection requirements and rejection criteria need to be changed. This condition, if not corrected, could result in possible multiple fan blade failures, which could result in an uncontained engine failure and damage to the aircraft.

Rolls-Royce plc has issued mandatory service bulletin (MSB) No. RB.211-72-C818, Revision 5, dated March 30, 2001, that specifies lower initial inspection thresholds, and repetitive ultrasonic inspections for cracks in fan blade dovetail roots, using either the blade root probe method, or the surface wave probe method. However, fan blades part numbers (P/N's) UL38052 and UL38628, are restricted to the root probe method only. Investigation by the manufacturer has shown that the surface wave probe method on these fan blades does not routinely detect cracking of this blade root design configuration. Also, this MSB Revision 5 adds the model RB211-524H-T-36 engine to the applicability.

These engine models are manufactured in the United Kingdom (UK) 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 UK has kept the FAA informed of the situation described above. The FAA has examined the findings of the UK, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Although none of these affected engine models are used on any airplanes that are registered in the United States, the possibility exists that the engine models could be used on airplanes that are registered in the United States in the future. Since an unsafe condition has been identified that is likely to exist or develop on other Rolls-Royce plc RB211-524G series and RB211-524H series turbofan engines of the same type design, this AD is being issued to detect cracked fan blades, which could result in an uncontained engine failure and damage to the airplane. This AD requires initial ultrasonic inspection at lower thresholds, and repetitive ultrasonic inspections, for cracks in fan blade dovetail roots, using either the blade root probe method or the surface wave probe method. This AD also adds the model RB211-524H-T-36 engine to the applicability. The actions are required to be done in accordance with the mandatory service bulletin described previously.

Since there are currently no domestic operators of these engine models, notice and opportunity for prior public comment are unnecessary. Therefore, a situation exists that allows the immediate adoption of this regulation.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES . All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NE-02-AD.” The postcard will be date stamped and returned to the commenter.

This final rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this final rule.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 2001-07-10, amendment 39-12176 (66 FR 18870, April 12, 2001), which is applicable to certain McDonnell Douglas Model DC-9-81, -82, -83, and -87 series airplanes, Model MD-88 airplanes, and Model MD-90-30 series airplanes, was published in the Federal Register on June 29, 2001 (66 FR 34593). The action proposed to continue to require a revision to the applicable Airplane Flight Manual (AFM) to provide the flightcrew with the appropriate landing distance and flap positions, if applicable, for wet or icy runways. That action also proposed to continue to provide for an optional terminating action for the applicable AFM revision. For certain airplanes, that action also proposed to require accomplishment of the previously optional terminating action.

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

One commenter requests that AMOCs approved for AD 2001-07-10 (amendment 39-12176) remain valid for the purposes of the the proposed rule. The commenter notes that, since the proposed rule merely requires compliance with a previously optional terminating action, the existing AMOCs should also be given credit in the proposed rule.

The FAA agrees with the commenter's request, and has revised paragraph (e) of the final rule to reflect credit for the accomplishment of AMOCs in accordance with AD 2001-07-10.

One commenter notes that paragraph (d) of the proposed rule (which is applicable to Model MD-90 series airplanes) refers to doing the actions specified in paragraphs (c)(1) and (c)(2) of the AD (which applies to Model MD-80 series airplanes). To eliminate any confusion, the commenter requests that paragraph (d) of the proposed rule be revised to clearly specify the actions required for the MD-90 series airplanes, rather than refering to paragraph (c) of the proposed rule.

The FAA acknowledges that clarification is needed. We have revised paragraph (d) of the final rule to add new paragraphs (d)(1) and (d)(2) to clarify the actions required for Model MD-90 series airplanes.

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

There are approximately 224 Model DC-9-81, -82, -83, and -87 series airplanes, Model MD-88 airplanes, and Model MD-90-30 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 67 airplanes of U.S. registry will be affected by this AD.

The AFM revisions that are currently required by AD 2001-07-10, and retained in this AD, take approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be $4,020, or $60 per airplane.

For certain airplanes, the new terminating action that is required by this AD will take approximately 22 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. The manufacturer has committed previously to its customers that it will bear the cost of replacement parts. Based on these figures, the cost impact of these requirements on U.S. operators of Model MD-90-30 series airplanes is estimated to be $1,320 per airplane.

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

Should an operator of Model DC-9-81, -82, -83, and -87 series airplanes, and Model MD-88 airplanes elect to accomplish the optional terminating action that will be provided by this AD action, it will take approximately 22 work hours to accomplish it, at an average labor rate of $60 per work hour. The manufacturer has committed previously to its customers that it will bear the cost of replacement parts. Based on these figures, the cost impact of the optional terminating action will be $1,320 per airplane.

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

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

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

On November 15, 2001, the Federal Aviation Administration (FAA) issued AD 2001-23-13, amendment 39-12512 (66 FR 58918, November 26, 2001), which applies to certain Boeing Model 747 series airplanes. That AD requires an inspection of the flap drive transmission of the trailing edge flaps at positions 2 and 7 to determine if a discrepant torque brake is installed; and corrective action, if necessary. That AD also imposes certain restrictions on the installation of affected spare parts. The actions required by that AD are intended to prevent damage to the flap system, adjacent systems, or structural components; or excessive skew of the trailing edge flap, which could result in flap asymmetry and consequent reduced controllability of the airplane.

Information obtained recently by the FAA indicates that the spares requirement in paragraph (b) of the final rule needs to be clarified and corrected.

As published, paragraph (b) of the final rule states that “no person shall install on any airplane any transmission or torque brake assembly identified in the “Existing Part Number” column of Paragraph 2.E. of Boeing Service Bulletin 747-27-2374, dated November 18, 1999.”

Although paragraph (b) of the final rule did not limit the spares requirement to only positions 2 and 7 of the trailing edge flaps of the flap drive transmission, as indicated in the “Summary” of the final rule, and as clearly described in the “Differences” paragraph in the Notice of Proposed Rulemaking, it was the FAA's intent to do so.

The FAA has determined that a correction to AD 2001-23-13 is necessary to correct and clarify the spares requirement. This correction will specify that the spares requirement in paragraph (b) of this AD is limited to the transmission or torque brake assembly of the trailing edge flaps at positions 2 and 7.

This document corrects the error in AD 2001-23-13 and correctly adds the AD as an amendment to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13).

The AD is reprinted in its entirety for the convenience of affected operators. The effective date of the AD remains December 31, 2001.

Since this action only clarifies and corrects a current requirement, it has no adverse economic impact and imposes no additional burden on any person. Therefore, the FAA has determined that notice and public procedures are unnecessary.

Pfizer, Inc., 235 East 42d St., New York, NY 10017-5755, filed a supplement to approved NADA 141-111 that provides for veterinary prescription use of RIMADYL (carprofen) Chewable Tablets for the relief of pain and inflammation associated with osteoarthritis in dogs. The supplemental NADA provides for a once daily, 2-mg/lb dosage for the oral chewable tablet dosage form. The supplemental application is approved as of November 26, 2001, and the regulations are amended in 21 CFR 520.309 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

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

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

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

Schering-Plough Animal Health Corp., 1095 Morris Ave., P.O. Box 3182, Union, NJ 07083, is the sponsor of NADA 141-063 that provides for use of NUFLOR (florfenicol) Injectable Solution in cattle. Schering-Plough Animal Health Corp. filed a supplemental NADA providing for changing a pathogen genus from Pasteurella to Mannheimia on product labeling. The NADA is approved as of November 8, 2001, and the regulations are amended in § 522.955 (21 CFR 522.955) to reflect the approval. Section 522.955 is also being amended to reflect an updated format. Approval of this supplemental NADA did not require review of safety or effectiveness data; therefore, a freedom of information summary is not required.

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

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

1. The authority citation for 21 CFR part 522 continues to read as follows:

(a) Specifications . Each milliliter of solution contains 300 milligrams (mg) of florfenicol.

Schering-Plough Animal Health Corp., 1095 Morris Ave., P.O. Box 3182, Union, NJ 07083, filed NADA 141-192 for RALGRO LA (zeranol), a subcutaneous ear implant containing 138 milligrams (mg) zeranol. The implants are used for increased rate of weight gain for up to 210 days in pasture cattle (slaughter, stocker, and feeder steers, and heifers). The application is approved as of November 1, 2001, and the regulations are amended in § 522.2680 (21 CFR 522.2680) to reflect the approval. The basis of approval is discussed in the freedom of information summary.

Section 522.2680 is also being amended to reflect a current format for regulations pertaining to cattle ear implants. This action is being taken to improve the clarity and readability of the regulations. In addition, the regulations are amended in 21 CFR 556.760 by adding the previously established ADI for total residues of zeranol, and editorially, to reflect current format.

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

Under section 512(c)(2)(F)(ii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(ii)), this approval for food-producing animals qualifies for 3 years of marketing exclusivity beginning November 1, 2001, because the application contains substantial evidence of the effectiveness of the drug involved, any studies of animal safety, or, in the case of food-producing animals, human food safety studies (other than bioequivalence or residue studies) required for the approval and conducted or sponsored by the applicant.

The agency has carefully considered the potential environmental impact of this action and has concluded that the action will not have a significant impact on the human environment and that an environmental impact statement is not required. FDA's finding of no significant impact and the evidence supporting that finding, contained in an environmental assessment, may be seen in the Dockets Management Branch (address above) between 9 a.m. and 4 p.m., Monday through Friday.

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

1. The authority citation for 21 CFR part 522 continues to read as follows:

(a) Specifications . Each pellet contains 12, 18, or 20 milligrams (mg) zeranol.

Alpharma, Inc., One Executive Dr., P.O. Box 1399, Fort Lee, NJ 07024, filed supplemental NADA 141-085 that provides for combining approved BMD (10, 25, 30, 40, 50, 60, or 75 grams per pound (g/lb) bacitracin methylene disalicylate) and ZOAMIX (113.5 g/lb zoalene) Type A medicated articles to make two-way combination drug Type C medicated chicken feeds containing 50 or 100 to 200 g/ton bacitracin methylene disalicylate and 36.3 to 113.5 or 113.5 g/ton zoalene. The combination Type C feeds containing 50 g/ton bacitracin methylene disalicylate and 36.3 to 113.5 g/ton zoalene are used as an aid in the prevention of necrotic enteritis caused or complicated by Clostridium spp. or other organisms susceptible to bacitracin and for the development of active immunity to coccidiosis in replacement chickens. The combination Type C feeds containing 100 to 200 g/ton bacitracin methylene disalicylate and 36.3 to 113.5 g/ton zoalene are used as an aid in the control of necrotic enteritis caused or complicated by Clostridium spp. or other organisms susceptible to bacitracin and for the development of active immunity to coccidiosis in replacement chickens. The combination Type C feeds containing 50 g/ton bacitracin methylene disalicylate and 113.5 g/ton zoalene are used as an aid in the prevention of necrotic enteritis caused or complicated by Clostridium spp. or other organisms susceptible to bacitracin and for the prevention and control of coccidiosis in broiler chickens. The combination Type C feeds containing 100 to 200 g/ton bacitracin methylene disalicylate and 113.5 g/ton zoalene are used as an aid in the control of necrotic enteritis caused or complicated by Clostridium spp. or other organisms susceptible to bacitracin and for the prevention and control of coccidiosis in broiler chickens. The supplemental NADA is approved as of November 30, 2001, and the regulations are amended in 21 CFR 558.680 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

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

FDA has determined under 21 CFR 25.33(a)(2) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

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

1. The authority citation for 21 CFR part 558 continues to read as follows:

(a) Specifications . Type A medicated article containing 25 percent zoalene.

(b) Approvals . See No. 046573 in § 510.600(c) of this chapter.

The Saint Lawrence Seaway Development Corporation (SLSDC) and the St. Lawrence Seaway Management Corporation (SLSMC) of Canada, under international agreement, jointly publish and presently administer the St. Lawrence Seaway Tariff of Tolls in their respective jurisdictions. (The Tariff is called the Schedule of Fees and Charges in Canada.) The amendments are described in the following summary.

The Tariff sets forth the level of tolls assessed on all commodities and vessels transiting the facilities operated by the SLSDC and the SLSMC. The SLSDC is revising § 402.8, “Schedule of tolls”, to reflect the fees and charges charged by the SLSMC in Canada starting in the 2002 navigation season. The changes affect the tolls for commercial vessels and are applicable only in Canada as the collection of the U.S. portion of tolls for commercial vessels is waived by law (33 U.S.C. 988a(a)).

This regulation involves a foreign affairs function of the United States and therefore Executive Order 12866 does not apply. This regulation has also been evaluated under the Department of Transportation's Regulatory Policies and Procedures and the regulation is not considered significant under those procedures and its economic impact is expected to be so minimal that a full economic evaluation is not warranted.

The Saint Lawrence Seaway Development Corporation certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The St. Lawrence Seaway Tariff of Tolls primarily relates to commercial users of the Seaway, the vast majority of whom are foreign vessel operators. Therefore, any resulting costs will be borne mostly by foreign vessels.

This regulation does not require an environmental impact statement under the National Environmental Policy Act (49 U.S.C. 4321, et seq. ) because it is not a major federal action significantly affecting the quality of human environment.

The Corporation has analyzed this rule under the principles and criteria in Executive Order 13132, dated August 4, 1999, and has determined that the rule does not have sufficient federalism implications to warrant a Federalism Assessment.

The Corporation has analyzed this rule under title II of the Unfunded Mandates Reform Act of 1995 (Public Law 104-4, 109 Stat. 48) and determined that it does not impose unfunded mandates on State, local, and tribal governments and the private sector requiring a written statement of economic and regulatory alternatives.

This regulation has been analyzed under the Paperwork Reduction Act of 1995 and does not contain new or modified information collection requirements subject to the Office of Management and Budget review.

In the “Veterans' Dioxin and Radiation Exposure Compensation Standards Act,” Public Law 98-542, Congress concluded that VA had no specific guidelines, standards, or criteria for use in deciding claims for entitlement to disability benefits based on exposure to ionizing radiation. Thus, Congress required VA to undertake rulemaking to specify, among other things, which diseases result from exposure to ionizing radiation in service and the circumstances under which VA would award benefits to veterans on the basis of claimed radiation-related disabilities.

The Act established the “Veterans Advisory Committee on Environmental Hazards” and required VA to consult with this Committee in the development of the new regulations. Section 5 of the Act specifically required VA to determine whether service connection could be granted based on exposure to ionizing radiation for the following diseases: soft tissue sarcoma, porphyria cutanea tarda, chloracne, leukemia, malignancies of the thyroid, female breast, lung, bone, liver and skin, and polycythemia vera. Based on the advice of the Committee, VA concluded that service connection can be granted for all of these diseases except polycythemia vera and implemented the provisions of the governing statute by publishing 38 CFR 3.311b.

Although over the years VA added several conditions to the list, VA treated the list of radiogenic diseases in § 3.311b (later recodified as § 3.311) as an exclusive list and generally denied service connection based on radiation exposure for any disease not included on that list. However, the U.S. Court of Appeals for the Federal Circuit in Combee v. Brown , 34 F.3d 1039 (Fed. Cir. 1994), held that Public Law 98-542 did not authorize VA to establish an exclusive list of radiogenic diseases for which a claimant might establish entitlement to direct service connection under § 3.311. Following the Combee decision, Congress amended 38 U.S.C. 1113(b) to provide that nothing in section 5 of Public Law 98-542 shall be construed to prevent granting of service connection for any disease or disorder shown by sound judgment to have been incurred in or aggravated by active duty service.

VA subsequently amended § 3.311 (60 FR 9627, February 21, 1995) to permit consideration of service connection for any disease other than polycythemia vera if a claimant cites or submits competent scientific or medical evidence that the claimed disease may be induced by ionizing radiation.

The list of radiogenic diseases in § 3.311(b)(2) is not an exclusive list. The fact that VA has determined that polycythemia vera is not a radiogenic disease does not deprive claimants of the opportunity to cite or submit evidence showing that polycythemia vera may be induced by exposure to ionizing radiation. We are amending § 3.311(b) to indicate that if a claimant cites or submits evidence showing polycythemia vera may be induced by exposure to ionizing radiation, VA will obtain a dose estimate, forward the claim for review by the Under Secretary for Benefits, and request an advisory medical opinion from the Under Secretary for Health under the provisions of § 3.311.

This final rule simply reflects legislative changes and case law requirements. Thus, there is a basis for dispensing with prior notice and comment and 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. 3501-3520).

This document has been reviewed by the Office of Management and Budget Under Executive Order 12866.

Because no notice of proposed rule making 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 directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final flexibility analysis requirements of sections 603 and 604.

In the Federal Register of July 20, 2001 (66 FR 37940-37941), we published a proposal to implement section 302 of the Veterans Benefits and Health Care Improvement Act of 2000, Public Law 106-419, 114 Stat. 1822, 1853 which amended 38 U.S.C. 1114(k) by providing entitlement to special monthly compensation (SMC) if a woman veteran suffers the anatomical loss of one or both breasts (including loss by mastectomy) as a result of service-connected disability. We proposed to amend 38 CFR 3.350(a), which is titled “Special monthly compensation ratings,” by adding new paragraph (7) to define “anatomical loss of a breast” for purposes of this benefit as requiring “complete surgical removal of breast tissue (or the equivalent loss of breast tissue due to injury).” This includes radical mastectomy, modified radical mastectomy, and simple (or total) mastectomy, but not wide local excision (including partial mastectomy, lumpectomy, tylectomy, segmentectomy, and quadrantectomy).

We received 19 comments on the proposed regulation, one from the Vietnam Veterans of America, one from the Disabled American Veterans, and 17 from individuals. Fifteen commenters supported the proposal, many very strongly.

Three commenters, while supporting the proposal, felt that men should also receive SMC for a mastectomy. Public Law 106-419, Section 302, 114 Stat. at 1853, authorizes this benefit only “in the case of a woman veteran,” and we therefore have no legal authority to award SMC to male veterans based on anatomical loss of one or both breasts.

One commenter inquired about whether this rulemaking would encourage women veterans to choose mastectomy over lumpectomy. We do not believe that payment of this additional benefit for complete surgical removal of breast tissue will influence a woman's decision about what procedure to undergo in order to rid her body of cancer. Rather, we believe that this decision, like other medical decisions, will be based on many factors and will be made in consultation with her physician. Moreover, VA has statutory authority to award SMC only for anatomical loss of one or both breasts and a lumpectomy clearly does not constitute such loss.

The same commenter inquired about the rationale for paying SMC for a mastectomy. The commenter asked whether a mastectomy impinges on an individual's ability to do a job and whether SMC is intended to negate mental anguish. The commenter also asked whether there is disability, i.e., restricted ability to earn income, after an individual's recovery from a mastectomy is complete. Another commenter objected to payment of SMC based on anatomical loss of a breast because a mastectomy does not interfere with the ability to hold a job or earn a living.

Generally, basic rates of wartime disability compensation are based on the average impairment in earning capacity resulting from a particular disability, as set forth in the Schedule for Rating Disabilities. 38 U.S.C. 1155. Congress, however, has authorized payment of SMC based on noneconomic factors resulting from a service-connected disability such as personal inconvenience, social inadaptability, or the profound nature of the disability. See S. Rep. No. 82-1681, at 2, 130-31 (1952); H.R. Rep. No. 89-6, at 4 (1965). Congress has authorized SMC for anatomical loss of a breast, and VA is obligated to carry out 38 U.S.C. 1114(k), as amended by Public Law 106-419.

One commenter felt that anatomical loss of a breast is not a service-connected disability and that SMC should be paid only if the breast surgery took place on active duty. Another commenter inquired about whether a veteran must develop the condition that results in loss of a breast or breasts while on active duty. Another commenter opposed paying this benefit at all because there is no evidence that anything in service could have caused breast cancer.

New 38 U.S.C. 1114(k) provides SMC if the loss of one or both breasts occurred “as the result of a service-connected disability.” “Service connected” means that a disability was incurred or aggravated in line of duty in the active military, naval, or air service. 38 U.S.C. 101(16). “Line of duty” means that, at the time the injury or disease causing the disability occurred, the veteran was in active military, naval, or air service and that the injury or disease was not the result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. 105(a). Thus, a disability need not be the result of exposure to contaminants, chemicals, or drugs during service, as one of the commenters suggested, in order to be service connected. Further, if a woman veteran contracts breast cancer while on active duty, any disability resulting from the cancer would be service connected and SMC would be payable for a resulting mastectomy, irrespective of when the operation occurred. If a veteran is diagnosed with breast cancer after service, any resulting disability would be service connected, and SMC would be payable for a resulting mastectomy, if the evidence establishes that the cancer was incurred during service or during a post-service presumptive period. 38 CFR 3.303(a). The statute entitles women who have anatomical loss of one or both breasts to this benefit, and VA is obligated to pay the benefit as directed by Congress. Again, if the disability causing the mastectomy is service connected, a woman veteran would be entitled to SMC, irrespective of when her surgery occurred.

One commenter asked whether SMC would be paid for prophylactic mastectomies. We will pay SMC for any mastectomy that is medically determined to be secondary to, or necessary to treat, a service-connected condition.

Two commenters objected to restricting this benefit to those who have had a complete mastectomy, rather than including those with less extensive breast surgery such as wide local excision that they maintain can result in “significant” anatomical loss. They feel that VA's definition of the statutory term “anatomical loss” in new section 3.350(a)(7) as requiring loss of all breast tissue is contrary to 38 U.S.C. 1114(k) and Congress' intent. 38 U.S.C. 1114(k), to which Congress added loss of one or both breasts as a basis for SMC, clearly distinguishes between anatomical loss and loss of use of a body part. Section 1114(k) provides SMC if a veteran, as a result of a service-connected disability, “has suffered the anatomical loss or loss of use of one or more creative organs, or one foot, or one hand, or both buttocks,” or, in the case of a woman veteran, “the anatomical loss of one or both breasts.” Anatomical loss for purposes of section 1114(k) in each case means loss of the entire body part, although less than complete anatomical loss may qualify as “loss of use”. For example, when VA pays SMC due to less than complete removal of a testicle, it is paid on the basis of loss of use, rather than anatomical loss, of the affected organ. (See 38 CFR 3.350(a)(1).) Given the plain language of section 302 of Public Law 106-419, providing SMC for “anatomical loss of one or both breasts (including loss by mastectomy),” we believe that the definition of this phrase in new section 3.350(a)(7), requiring complete removal of a breast in order to receive SMC, is in accord with 38 U.S.C. 1114(k).

One of these commenters noted that, in the preamble to the proposed rule, VA chose complete peroneal nerve paralysis as an analogous situation to anatomical loss of one or both breasts and said that a much better analogy is loss of use of a testicle, where SMC is awarded based on a reduction in the size of the organ.

SMC is payable under 38 U.S.C. 1114(k) for “the anatomical loss or loss of use of one or more creative organs.” Consistent with section 1114(k), 38 CFR 3.350(a)(1)(i) states that loss of a creative organ (such as a testicle) means acquired absence of the organ. Section 3.350(a)(1)(i)(a) and (b) also define loss of use of one testicle as the situation where either the diameters of the affected testicle are reduced to one-third of the corresponding diameters of the paired normal testicle, or the diameters of the affected testicle are reduced to one-half or less of the corresponding normal testicle and there is alteration of consistency so that the affected testicle is considerably harder or softer than the corresponding normal testicle. We believe that defining “anatomical loss” of a breast as “complete surgical removal of breast tissue” is consistent with defining loss of a creative organ to mean “acquired absence” of the organ. Since Congress provided no statutory authority to pay SMC for loss of use of one or both breasts, we make no change based on this comment.

One of the commenters also said that VA requirements for finding “anatomical loss” of other body parts present even more compelling evidence that it has not approached this rulemaking fairly and objectively because under 38 CFR 4.71a, diagnostic codes 5126 to 5131, VA considers the amputation of four or five fingers to constitute anatomical loss of a hand. The footnotes under these diagnostic codes state “Entitled to [SMC]” but do not indicate whether SMC is based on anatomical loss of a hand or loss of use of a hand. The language of 38 CFR 3.350(a)(2)(i), dealing with SMC ratings for loss of use of a hand, however, makes it clear that the situations cited in diagnostic codes 5126 to 5131 constitute loss of use of a hand for purposes of SMC. Section 3.350(a)(2)(i) states that “[l]oss of use of a hand . . . will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow . . . with use of a suitable prosthetic appliance.” We therefore make no change based on these comments.

VA appreciates the comments submitted in response to the proposed rule, which is now adopted without change.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

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 (RFA), 5 U.S.C. 601-612. The reason for this certification is that this amendment would not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

This final rule has been reviewed by the Office of Management and Budget under Executive Order 12866.

On October 5, 2001, HHS published an interim final rule establishing methods for radiation dose reconstruction to be conducted for certain cancer claims filed under EEOICPA, Public Law 106-398 [See FR Vol. 66, No. 194, 50978]. The notice included a public comment period that ended November 5, 2001. However, DHHS requested the ABRWH to conduct a review of its dose reconstruction methods.

The ABRWH held its first meeting in Washington, DC on January 22-23, 2002. Due to the ABRWH's intensive work on the statutorily required technical review of the proposed probability of causation rule, the ABRWH was unable to complete the requested review of the interim final rule. Public comments, both written and oral, were accepted for inclusion in the docket on both the interim final rule and proposed rulemaking prior to and during the ABRWH meeting. The public comment period closed on the last day of the ABRWH meeting, January 23, 2002.

To allow the ABRWH ample opportunity to complete their review of and comments on the interim final rule, the public comment period for the interim final rule on dose reconstruction will be re-opened until Friday, March 1, 2002. This will allow the ABRWH to have at least one more meeting to prepare their comments on the interim final rule, and to accept further written and oral comments from the general public at its next meeting.

All written comments on the interim final rule for dose reconstruction must be received at the Docket Office on or before Friday, March 1, 2002. Written and oral comments made during the meeting(s) of the ABRWH prior to Friday, March 1, 2002 will also be included in the docket for the interim final rule.

The Corporation published a notice of proposed rulemaking (NPRM) for the Retired and Senior Volunteer Program 45 CFR part 2553 in the Federal Register at 66 FR 56793, November 13, 2001.

In response to the Corporation's invitation in the NPRM, the Corporation received 41 letter and/or email responses. Of these, 30 were in full support of the proposed rule, 3 sought clarification, and 8 opposed the proposed rule. The eight opposing the proposed rule voiced specific objection to the following Section:

Section 2553.72 (e), How much of the grant must be budgeted to pay volunteer expenses or cost reimbursements?

Comments: The eight opposing the proposed rule to eliminate the requirement that cost reimbursements for RSVP volunteers be an amount equal to at least 25 percent of the Corporation funds, objected because they feared it would permit the sponsor to use RSVP funds for purposes unrelated to RSVP.

Response: The Corporation response is that all funds approved in the grant award must be used for purposes set forth in the grant application, and may not be used for purposes unrelated to RSVP.

After carefully reviewing the changes implemented by this amendment, it has been determined that (1) This is not a significant regulatory action under section 3(f)(4) of Executive Order 12866, “Regulatory Planning and Review”; and (2) The Regulatory Flexibility Act does not apply because there is no “significant economic impact on a substantial number of small entities”; (3) The Unfunded Mandates Act of 1995 does not apply because the amendment does not result in any annual expenditures of $100 million by State, local, Indian Tribal governments or the private sector; (4) The Paperwork Reduction Act does not apply because the amendments do not impose any additional reporting or record-keeping requirements; (5) The Small Business Regulatory Enforcement Fairness Act of 1996 does not apply because it is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, and would not result in an annual effect on the economy of $100 million or more; result in an increase in cost or prices; or have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets; and (6) Executive Order 13132: Federalism does not apply because it would not have substantial direct effects on the States or the relationship between the national government and the States.

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-1, adopted February 1, 2002, and released February 6, 2002. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

Part 73 of Title 47 of the Code of Federal Regulations is amended as follows:

This is a synopsis of the Commission's Report and Order, MM Docket No. 00-117, adopted February 1, 2002, and released February 6, 2002. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-301, adopted February 1, 2002, and released February 7, 2002. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

This is a summary of the Commission's Report and Order, adopted January 2, 2002, and released January 11, 2002. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC, 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

The Fishery Management Plan for the Summer Flounder, Scup, and Black Sea Bass Fisheries (FMP) requires that NMFS compile all landings information on summer flounder, scup, and black sea bass and compare these landings to the quotas allocated to those fisheries. Landings in excess of quota allocations (overages) are required to be deducted from the quota allocations for the following year. The annual quota allocations are specified through a process that culminates in the publication of final specifications, which are to be published prior to January 1 each year. However, because the fishing year for these fisheries does not end until December 31, it is impossible to have a final accounting of annual landings at the time the annual specifications are published for the fishing year beginning January 1. As a result, NMFS has had to make overage adjustments during the fishing year, when overages were identified.

This regulatory amendment to the FMP resolves the timing problems associated with the overage provisions of the FMP by establishing a cut-off date of October 31 for commercial summer flounder, scup, and black sea bass landings data to be used in setting quotas for the upcoming fishing year. Therefore, this final rule will enable NMFS to compile landings information, determine quota overages, and publish final adjusted annual fishing quotas for these fisheries prior to January 1. If, during the fishing year, NMFS discovers that any overage deduction was made in error, e.g., based on calculated landings that exceeded actual landings for the period concerned, NMFS will restore all or part of the overage to the appropriate quota allocation and announce the restoration by publishing a notification in the Federal Register .

This final rule also removes the regulatory language in §§ 648.100(d), 648.120(c), and 648.140(c) that specifies publication dates for proposed annual summer flounder, scup, and black sea bass fishing measures. The data required to conduct the analyses necessary for developing proposed measures are not available in time to allow publication by the current specified dates of October 15 for proposed annual fishing measures and of February 15 for proposed recreational measures.

The measures contained in this final rule are unchanged from those published in the proposed rule (66 FR 64392, December 13, 2001). A complete discussion of the development of this regulatory amendment appeared in the preamble of the proposed rule and is not repeated here.

As stated previously, this final rule establishes a landings cut-off date of October 31. Landings data for the full fishing year 2000 were used to calculate overages and make necessary adjustments in 2001. This measure is being phased in for the 2002 fishery; only landings from January through October 2001 are being used to determine 2001 overages for purposes of the 2002 quotas. The quota overages reflected in the final 2002 specifications for the summer flounder, scup, and black sea bass fisheries (66 FR 66348, December 26, 2001) are based on landings from January 1 - October 31, 2001. However, the quota adjustments were noted as preliminary in the final rule for 2002 specifications because the proposed rule for this regulatory amendment was still under public comment (66 FR 64392, December 13, 2001). This final rule notifies the public that the preliminary quota adjustments made in the final rule establishing the 2002 specifications for the summer flounder, scup, and black sea bass fisheries are final. For the 2003 fishery and subsequent years, implementation will occur as described below.

During November of a given year, all available landings data for January 1 - October 31 of that year will be compiled and compared to that year’s state quota allocations. Any overages will be determined and required deductions will be made to state allocations for the upcoming fishing year in the final rule that establishes those measures (to be published by December 31). If any further overage deductions are necessary as a result of landings made during November - December, or as a result of late data submitted for January 1 - October 31, those overages will be applied to the quota allocations for the next fishing year.

Table 1 provides an example of how the quota counting procedures established by this final rule will function with respect to the establishment of the 2002 and 2003 annual summer flounder quota allocations.

During November of each year, all available landings data for that year for January 1 - October 31 will be compiled and compared to that year’s Winter I (Jan-Apr) and Summer (May-Oct) quota allocations. Any overages will be determined and required deductions will be made to the Winter I and/or Summer allocations for the upcoming fishing year in the final rule that establishes those measures (to be published by December 31).

By June 30 of the following year, all available landings data for the prior year’s Winter II quota period (November-December) will be compiled and compared to the Winter II quota allocation for that year. Any overages will then be determined and required deductions will be made to the Winter II allocation for the current fishing year. The public will be informed of this adjustment in a Federal Register notification published in July of the current fishing year. Any further overages identified as the result of late data submitted for any of a given year’s quota periods will be applied to the quota allocations for the next fishing year.

Table 2 provides an example of how the quota counting procedures established in this final rule will function with respect to the establishment of the 2002 and 2003 annual scup quota allocations.

During November of each year, all available landings data for that year for Quarters 1-3 (January 1 - September 30) received by the cut-off date of October 31 will be compiled and compared to that year’s quota allocations for Quarters 1, 2 and 3. Any overages will be determined and required deductions will be made to the Quarter 1, 2 or 3 quota allocations for the upcoming fishing year in the final rule that establishes those measures (to be published by December 31).

By June 30 of the following year, all available landings data for the prior year’s Quarter 4 quota period (October-December) will be compiled and compared to the Quarter 4 allocation for that year. Any overage will be determined and required deductions will be made to the Quarter 4 allocation for the current fishing year. The public will be informed of this adjustment in a Federal Register notification published in July of the current fishing year. Any further overages identified as the result of late data submitted for any of a given year’s quota periods will be applied to the quota allocations for the next fishing year.

Table 3 provides an example of how the quota counting procedures established in this final rule will function with respect to the establishment of the 2002 and 2003 annual black sea bass quota allocations.

One comment was received in support of the proposed measures, which NMFS is implementing through this final rule. The commentor stated its support for the proposed means of calculating quota overages for the summer flounder, scup, and black sea bass fisheries, and also supported the removal of the regulatory language specifying publication dates for annual management measures for these fisheries. The commentor felt that this regulatory amendment would address many of their concerns regarding the timing of annual specifications for the summer flounder, scup, and black sea bass fisheries.

Response : Comment is acknowledged.

This final rule makes a technical amendment to § 648.120(a), which specifies the annual exploitation targets for scup. In Amendment 8 to the FMP the exploitation target specified for 2002 and thereafter was Fmax. The value of F max estimated in Amendment 8 corresponded to an exploitation rate of 19 percent and thus § 648.120(a) included that value. However, the F max estimate has changed and the 19-percent figure currently contained in the regulatory text is no longer correct. Therefore, the regulatory text is revised to clarify that the annual target exploitation rate is associated with F max , rather than a fixed percentage. There are no other changes from the proposed rule.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

In accordance with 5 U.S.C. 553(b)(B), the Administrator finds that advance notice and public comment on the portion of this rule that implements the technical change in the regulations for specifying the annual target exploitation rate for scup are not necessary. This technical change is not substantive. It merely modifies the regulations by incorporating a reference to F(max) instead of the numerical value of the exploitation rate associated with a specific value of F(max) since F(max) is not a constant and may change slightly over time. This modification is consistent with the FMP. Further, this technical change corrects a previous NMFS action that inadvertently removed this text from the Code of Federal Regulations and reinserted the numerical value of the exploitation rate associated with a previous estimate of F(max) that is no longer correct. This inadvertent revision was inconsistent with the FMP. The application of the exploitation rate associated with the current value of F(max) during the specification process resulted in a negligible change to the quota calculation. Any change to the overall quota would be further minimized and dispersed as the quota is allocated into the three quota periods. Any impacts that would be experienced by individual fishermen as a consequence of a change in the overall quota would be de minimus.

This final rule’s removal of publication date requirements for proposed annual fishing measures for these fisheries and modification of the procedure for tabulating landings in order to calculate quota overages are not substantive. These changes merely inform the public of the change in the agency’s process for tabulating landings data in order to calculate overages for the upcoming and subsequent fishing year. This process does not change the proposition that all landings in excess of a state or period quota during a fishing year constitute an overage. As is currently the practice, changes to annual quotas to reflect the impacts of landings on the summer flounder, scup and black sea bass stocks would be made pursuant to future rulemakings. Because none of the measures in this final rule is substantive, the 30-day delay in effectiveness required by 5 U.S.C. 553(d) does not apply.

This final rule does not contain policies with federalism implications, as that term is defined in Executive Order 13132.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed rule for this action would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published within the proposed rule. No comments were received regarding the economic impacts of this action. As a result no regulatory flexibility analysis was prepared.

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (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 A season allowance of Atka mackerel TAC in the Central Aleutian District of the BSAI is 11,008 metric tons (mt) as established by an emergency rule implementing 2002 harvest specifications and associated management measures for the groundfish fisheries off Alaska (67 FR 956, January 8, 2002).

In accordance with § 679.20 (d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the A season allowance of the Atka mackerel TAC in the Central Aleutian District will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 10,008 mt, and is setting aside the remaining 1,000 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20 (d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will be reached. Consequently, NMFS is prohibiting directed fishing for Atka mackerel in the Central Aleutian District of the BSAI.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to prevent exceeding the amount of the A season allowance of Atka mackerel TAC in the Central Aleutian District of the BSAI constitutes good cause to waive the requirement to provide prior notice opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553 (b)(3)(B) and 50 CFR 679.20 (b)(3)(iii)(A), as such procedures would be unnecessary and contrary to the public interest. Similarly, the need to implement these measures in a timely fashion to prevent exceeding the A season allowance of Atka mackerel TAC in the Central Aleutian District of the BSAI constitutes good cause to find that the effective date of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553 (d), a delay in the effective date is hereby waived.

This action is required by §§ 679.20 and 679.22 and is exempt from review under Executive Order 12866.