The Governmentwide Schedule A authority, 5 CFR 212.3102(f), was established in 1903. Competitive examining to fill Federal jobs has changed drastically in the almost 100 years since this authority's creation. Agencies can now successfully examine for positions with specific language requirements. They already do so for interpreters of many languages, including Chinese, Japanese, and Hindu.

Proposed regulations were published January 23, 2002 (67 FR 3128). We received two comments from agencies supporting the revocation. Because we did not received comments to support continuing the authority, we are continuing with our proposal to revoke it.

Agencies may no longer appoint persons under this authority as of November 21, 2002. Agencies will have 90 days from the date of publication to move the employees currently serving under § 213.3102(f) to the competitive service. The authority to retain persons in the competitive service based on revocation of an excepted appointing authority is 5 CFR 316.702.

We recognize the fact that agencies have critical workforce skill gaps for positions requiring foreign language skills. The General Accounting Office reported this in their January 2002 report on correcting foreign language staffing and proficiency shortfalls. However, almost all of the agencies identified in the report operate different personnel systems that do not follow OPM regulations. Consequently, the Schedule A we are revoking does not affect or help their efforts to fill the skill gaps.

I certify that these regulations will not have a significant economic impact on a substantial number of small entities because the regulations pertain only to Federal employees and agencies.

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

In 1994, the Department of Agriculture reorganized and transferred increased responsibilities for administration of conservation programs to the Natural Resources Conservation Service (NRCS) to provide technical and financial assistance to producers to improve the natural resource conditions on their land. The Federal Agricultural Improvement and Reform Act of 1996 (the 1996 Farm Bill), Public Law 104-127, created several new conservation programs for which the Secretary of Agriculture delegated administrative responsibility to NRCS.

Through the implementation of its conservation programs, NRCS utilizes its technical expertise to provide producers with information to help them make land management decisions. When a producer applies to participate in a conservation program, NRCS helps the producer evaluate the resource conditions on their land to determine the most appropriate way to meet the producer's conservation objectives. Through its conservation planning process, NRCS helps the producer develop a conservation plan and, depending upon the availability of funds, the Department provides financial assistance to the producer to implement identified conservation practices or systems.

The Farm Security and Rural Investment Act of 2002 (the “2002 Farm Bill”), Public Law 107-171, expanded the availability of financial and technical assistance funds for the implementation of conservation programs. At the time of enactment, the Congressional Budget Office estimated that the 2002 Farm Bill represented a $17 billion increase in the level of funding for conservation programs.

The current staffing levels of NRCS are insufficient to adequately meet the increased need for technical assistance under the conservation programs authorized or re-authorized by the 2002 Farm Bill. Section 2701 of the 2002 Farm Bill amended section 1242 of the Food Security Act of 1985 (“Food Security Act”), as amended, to require the Secretary of Agriculture to provide technical assistance under the Food Security Act conservation programs to a producer eligible for that assistance “directly * * * or at the option of the producer, through a payment * * * to the producer for an approved third party, if available.” The Secretary of Agriculture delegated authority to implement section 1242 to NRCS.

Section 1242 of the Food Security Act greatly expands the availability of technical assistance to producers by encouraging other potential providers of technical assistance to assist in the delivery of technical services. To ensure that high quality technical services are available to all producers, section 1242 requires the Secretary of Agriculture to establish, by regulation, a system for “approving individuals and entities to provide technical assistance to carry out programs under the (Farm Bill) * * * and establishing the amounts and methods for payments for that assistance.”

This interim final rule establishes a certification process under which NRCS may evaluate and approve individuals, entities, and public agencies as eligible to provide conservation technical services for certain conservation programs. The interim final rule establishes the criteria by which NRCS will evaluate all potential providers of technical assistance. NRCS will only make payment to a producer for technical services obtained from a technical service provider that has been certified by NRCS to provide such assistance.

The interim final rule distinguishes between certification of an individual working under his or her own auspices and that of an organization, such as a corporation or a public agency, which has individuals working on its behalf. Certification of an individual means the individual has the requisite education and technical expertise to perform the technical services. Certification of an entity or public agency means that the organization may receive payment for the services provided by individuals working under its auspices, but the work must be performed or warranted by certified individuals and the organization must assume the liability for the quality of work performed.

The interim final rule also sets forth conditions and procedures by which NRCS may determine that a certified technical service provider has failed to provide producers high quality technical services and thus, should not remain certified as a provider of technical assistance for conservation programs under Title XII of the Food Security Act.

While section 1242 increases a producer's available sources of technical assistance, it also maintains the options available to NRCS to acquire assistance in meeting its own responsibilities under Title XII. In particular, section 1242(b)(4) of the Food Security Act provides that the Secretary may request the services of, and enter into cooperative agreements or contracts with, non-Federal entities to assist in providing technical assistance necessary to develop and implement Title XII conservation programs. NRCS may utilize its inherent contracting authority or the authority under section 714 of the Agricultural Appropriations Act for FY 2001, Public Law 106-387, 7 U.S.C. 6962a, to obtain technical services. NRCS may also enter into a cooperative agreement with a technical service provider or other cooperator to stimulate the availability of technical assistance. NRCS will only utilize technical assistance from technical service providers that have been certified under the provisions of this interim final rule.

NRCS has determined that producers will need the delivery of high quality technical assistance immediately. Therefore, NRCS believes that the provisions of this rule are appropriately promulgated as an interim final rule.

Through this rulemaking process, the Department seeks to establish processes that provide efficient and effective technical services to producers participating in USDA conservation programs in a manner that optimizes conservation benefits. In particular, the Department aims to provide a performance-based system where producers can take full advantage of the marketplace and obtain cost-effective delivery of quality technical services.

The regulations promulgated by this interim final rule are divided into three subparts. Subpart A sets forth the general provisions related to the delivery of technical services. Subpart B sets forth the certification criteria and process NRCS will utilize to evaluate a technical service provider to determine whether such provider is eligible to provide technical assistance under Title XII. Subpart C sets forth the process and causes under which a technical service provider may become decertified and, therefore, ineligible to provide technical services.

Subpart A describes how program participants choose technical service providers, and how program participants may receive payment from the Department for those services. Specifically, the Department will reimburse a program participant if they select a technical service provider from the approved list of technical service providers and the technical services provided meet all legal and program requirements. The Department may also pay the technical service provider directly if the program participant submits an assignment of payment form.

Subpart A also describes how the Department will expand its delivery of technical services to program participants. Though not in the rule, the Department intends to establish in policy that it will not hire additional Federal employees above its baseline staffing levels unless it has first sought to meet the additional demand for technical services from non-Federal sources through contracts, contribution agreements, and cooperative agreements.

The Department must follow existing procurement and financial assistance laws when it enters into transactions to expand the availability of technical services. The types of transactions are described in greater detail in the preamble discussion under § 652.6.

Additionally, the Department and any technical service provider it hires must abide by Federal disclosure and privacy laws, including the Freedom of Information Act and the Privacy Act. However, the technical service providers hired directly by program participants are not subject to these legal requirements. Therefore, the Department encourages program participants to ensure that their contracts with their technical service providers provide for the appropriate confidentiality of personal information.

Subpart A also addresses the quality assurance measures that the Department will utilize to maintain high quality technical service delivery. The Department may decertify technical service providers based on information obtained through the quality assurance process.

Section 652.1, Definitions, sets forth the definitions for the terms used throughout the regulation.

Section 652.2, Applicability, sets forth the purpose and scope of the regulations for technical services. The purpose of the regulations is to establish a system for expanding the delivery of technical services available to producers under the Food Security Act.

Section 652.3, Administration, describes the basic responsibilities NRCS has in the management of the technical service delivery process, including certification, decertification, recertification, and certification renewal. NRCS will establish the processes and procedures for certification of technical service providers and will assess the availability and utilization of such providers. NRCS wants to ensure that technical service providers are available to producers. NRCS encourages all sources of technical service providers to participate in the delivery of conservation programs. In its management of the technical service delivery process, NRCS will track payments for the technical service provided by technical service providers. NRCS will also track conservation accomplishments based on information reported to NRCS by technical service providers pursuant to § 652.4(g).

Historical relationships and agreements between USDA and conservation partners will need to be evaluated, and modified as needed, to avoid conflicts of interest, or the appearance thereof, as those partners engage in providing technical services as technical service providers in accordance with this rule.

Section 652.4, Technical service standards, sets forth the technical service standards that all technical service providers must meet in order to receive payment from the Department for the technical services provided. In particular, all technical services provided by technical service providers must meet applicable NRCS standards and specifications. The regulations identify several of those standards but are not exhaustive. NRCS National standards, and State standards and specifications, may be found through links at the Web site http://www.nrcs.usda.gov . NRCS establishes this minimum standard for technical services to ensure uniformity among the various sources of technical service providers, conformity with NRCS conservation program requirements, and dependability of the quality of service that producers will receive.

NRCS has historically encouraged the development and utilization of new and innovative conservation practices through adoption of such practices when proven effective, for example, practices related to air quality. In particular, the Environmental Quality Incentives Program provides for the utilization of such new and innovative conservation practices. However, until NRCS has evaluated the effectiveness of such practices, it will not provide payment for the technical services needed to plan and implement new practices. Therefore, the interim final rule requires that a technical service provider seek NRCS approval prior to initiating technical services for a new or innovative technology or practice.

To assist NRCS with its quality assurance process set forth in § 652.7, NRCS incorporated in § 652.4 several requirements of technical service providers. In particular, NRCS requires that the technical service provider sign a written certification that the technical services provided for a particular practice or plan complies with all program requirements, legal requirements, and NRCS standards and specifications, and is consistent with the conservation goals and programs under which the assistance is given. This requirement makes it clear that a technical service provider is responsible for the quality of the assistance provided to either the producer or the Department.

NRCS requires a technical service provider to assume all legal responsibility for the quality of the work provided. Thus, if a producer implements a deficient conservation plan developed by a technical service provider and implementation of the plan results in harm or injury, the technical service provider, not the producer, is liable. This provision protects a producer from liability that was not caused through any fault of the producer. The producer is responsible in all cases for complying with the terms and conditions of the program contract or agreement, which includes meeting USDA technical standards and specifications.

Language is also included in the regulations regarding incorporation of low-cost alternatives, where appropriate, to address the resource issues and meet the objectives of both the program and program participant.

Finally, this section provides that NRCS is not contractually bound to the program participant to provide reimbursement for technical services or practice implementation that is not consistent with NRCS standards and specifications. Where NRCS does not provide the technical assistance for the development of a conservation plan incorporated into its program agreements, NRCS reserves the right to ensure that a program agreement is implemented in accordance with program requirements, including requiring that practices meet NRCS standards and specifications. This provision allows NRCS to continue to meet the conservation program goals and objectives for which it has the delegated responsibility.

This section also requires technical service providers to input data into the NRCS conservation accomplishments tracking system. NRCS will utilize this information as part of its quality assurance process under § 652.7.

Section 652.5, Program participant acquisition of technical services, describes how program participants may obtain technical services from sources other than the Department and receive reimbursement for those technical services. This section describes that a program participant may obtain technical services from the Department or any individual, entity, or public agency certified by NRCS under this interim final rule to provide technical services.

If a producer wishes the Department to provide technical services, he or she should contact NRCS at the local USDA Service Center. If the producer wishes to utilize a different source of technical service, he or she should obtain information from the Department about program requirements and payment terms. To ensure necessary funds are available to reimburse the program participant, the Department and the program participant must incorporate and obligate under the program contract or agreement the estimated amount of funds needed.

A producer must choose a certified technical service provider from the appropriate NRCS approved list of technical service providers in order to obtain reimbursement for the costs associated with those services. The list of approved technical service providers for the particular category of technical services will be available through the NRCS home page on the Internet, or can be obtained from the local USDA service center. In order to receive reimbursement, once the technical services have been provided and meet program requirements, the program participant would submit to NRCS or FSA, as appropriate, an invoice, any supporting documentation, and a request for payment.

In many situations, a program participant needs to obtain technical services prior to entering into a program contract or agreement with either NRCS or the Farm Service Agency. NRCS or the Farm Service Agency (collectively referred to as the Department) may reimburse a participant for pre-program contract or agreement technical services obtained to complete program related activities prior to entering a program contract or agreement and develop a conservation plan. The participant must provide to either NRCS or the Farm Service Agency an invoice and documentation of the technical services provided by a certified technical service provider in order to be reimbursed for these costs.

The terms and conditions of a program contract or agreement will provide for the reimbursement of the producer for technical services provided by a certified technical service provider. The Department is interested in developing a dynamic approach to its payment rates schedule in order to ensure that its payment rates do not lag behind the development of technological efficiencies that decrease the time and price associated with the delivery of technical services.

The Department's goal in developing a method of setting payment rates is to obtain the most competitive payment rates while ensuring that program participants have access to the widest available range of qualified technical service providers. The Department is seeking comments on how to design rate payments that are transparent, easy to implement, and ensure competition in program participant acquisition of technical services. The Department intends to publish an amendment to this interim final rule within the next 30 days that will explain in detail the payment rate process. The Department is seeking comments on how to design a rate setting process that would be easy to implement yet sensitive to regional or local pricing variation.

The Department is considering whether to establish payment rates by conducting a State by State solicitation of technical service prices from individuals, private-sector entities, and public agencies in order to ascertain the current market prices for delivering technical services. If chosen, the Department would utilize an existing Internet based notice posting system to solicit from technical service provider sources their respective price data for particular technical services. This process would involve electronically uploading a Departmental “Sources Sought Notice” to the posting system, requesting potential technical service providers to submit a listing of service prices, and consolidating the price data from all respondents. The Department would analyze the information submitted pursuant to its solicitation as part of its process for determining payment rates. After the first year of operation, the Department would adjust the rates each year thereafter, or more frequently if needed, using current market data it obtained from technical service providers, an updated solicitation to all sources, or a combination thereof.

In using the information obtained from this solicitation, the Department could set a “not-to-exceed” rate. To ensure healthy competition within the market, this rate could not be set so low as to discourage all participation by viable technical service providers nor could it be set so high as to result in wasteful federal expenditures. To encourage competition, the Department is also considering options that would create incentives for producers to choose the most efficient provider of technical services in the market place, such incentives could include providing a cost savings to program participants that choose a technical service provider with a price below a “not-to-exceed” rate.

The Department is also considering basing technical service payments upon a flat rate. Under this option, the Department would pay a flat rate for each project. Thus, if a project costs $20,000 to install, the program participant would be reimbursed $4000, or 20% of the project cost, for the technical services obtained from a technical service provider. However, this approach may not adequately reflect the actual price for technical services on any particular project and might adversely affect obtaining technical services for projects that are small or more complex in scope because the actual price for the design could exceed the flat rate.

In addition, the Department is also considering basing technical service payment rates based on its own costs to deliver the technical services. Under this option, the Department would estimate the technical service rates and establish not-to-exceed rates for use in program contracts or agreements. These rates would not exceed the Federal Government rates to deliver the same service. The Department is interested in obtaining public comment on these or other feasible methods for establishing payment rates that will provide the greatest opportunity for the market place to inform the price of technical services while providing maximum flexibility to program participants to choose a technical service provider.

Section 652.6, Department delivery of technical services, describes the types of legal instruments the Department may enter into to deliver technical services to producers. The Department will provide technical services directly to a producer when chosen by the producer to provide those services. When Department baseline staffing levels do not meet the demand for its technical services, the Department may procure additional technical services through a procurement contract or a cooperative agreement entered into under the authority of section 714 of the Agricultural Appropriations Act of 2001 (the 2001 Act), Public Law 106-387, 7 U.S.C. 6962a. As mentioned above, the Department intends to adopt by policy that it will seek to meet the additional demand for technical services from non-Federal sources. To avoid confusion, “non-assistance” cooperative agreements under section 714 are identified as “contribution agreements” to distinguish them from cooperative agreements as defined by the Federal Grant and Cooperative Agreement Act (FGCAA), 31 U.S.C. 6301 et seq. The Department may also meet the additional demand for technical services by stimulating the availability of additional technical services through a cooperative agreement as defined by the FGCAA.

NRCS utilizes contribution agreements for obtaining technical services and receives from a contributing party financial and in-kind donation of goods, services, and personal services. NRCS ensures Federal funds are wisely spent by requiring that the level of contribution by the other party justify the non-competitive nature of the transaction. For transactions where NRCS seeks to obtain technical services for a particular project or for more widespread programmatic needs, NRCS will only enter into a contribution agreement with a certified technical service provider where such a provider donates at least 50% of the technical services needed.

Contribution agreements that do not include the provision of technical services are outside of the scope of this rule, and NRCS will evaluate the merit of entering into each such agreement based upon the particular nature of the project and the level of contribution by the other party.

For transactions where the Department seeks to stimulate the expansion of the level of technical services provided to producers, the Department may enter into a cooperative agreement that is governed by the FGCAA and its implementing regulations and circulars.

The Department reaffirms its commitment to competitive cooperative agreements by referencing in § 652.6 the competition requirements in 7 CFR part 3015. Section 652.6(b) identifies that the Chief of the NRCS or his designee, or the Administrator of FSA as appropriate, are authorized to determine that an exception to the competition requirements are in the best interest of the Government and needed to fulfill the objectives of the program.

The Department anticipates that most technical service providers will be selected and hired directly by the program participant and paid under the terms of the program contract or agreement entered into between the program participant and the Department. However, because of the anticipated increase in workload that the 2002 Farm Bill creates, the Department may need to procure services from technical service providers in meeting its own responsibilities to deliver conservation program technical assistance.

Department policy encourages the expansion of technical services provided by all sources, especially private and commercial sources. Wherever appropriate and in the best interest of the Government, the Department will utilize the procurement process to obtain any additional technical services necessary to implement the conservation programs. The interim final rule, in § 652.6(b) indicates that the Chief or the Administrator of FSA may limit the utilization of cooperative agreements and contribution agreements in obtaining or stimulating technical services in order to ensure openness and competitiveness in the process.

Section 652.6(c) addresses an NRCS concern about the possibility of unfair competitive advantage by the individuals, private-sector entities, and public agencies with which NRCS may enter into a contract or agreement. NRCS believes that a technical service provider hired directly by NRCS to assist the agency with its responsibilities could have an unfair competitive advantage over other technical service providers when being selected by program participants. For example, individuals and organizations hired by NRCS may have superior knowledge regarding the technical service needs of particular producers that would give them a competitive advantage over other providers. In addition, NRCS is concerned that a technical service provider may receive payment twice for performing the same work, once through the contract or agreement with the Department and a second time through the producer's program contract or agreement.

Therefore, NRCS requires in the interim final rule that a technical service provider hired by NRCS to provide technical services to a particular program participant is ineligible to receive a payment under a program contract or agreement for that same program participant.

Section 652.7 , Quality assurance, provides that NRCS will evaluate the quality of the technical services provided by certified technical service providers. This section provides for a process through which NRCS will evaluate technical services performed by technical service providers. NRCS requires under § 652.4(g) that technical service providers make available certain information that can be utilized in its quality assurance process. While this information may be utilized to decertify a technical service provider, the purpose is to discover deficiencies in the technical service delivery and allow the technical service provider to take remedial action before such decertification action becomes necessary.

This subpart contains technical service provider criteria for certification requirements; processes to certify individuals, private-sector entities, and public agencies; requirements for recommending organizations; and the process and requirements for certification renewal.

In order to meet the requirements of 16 U.S.C. 3842(b)(3) regarding “Interim Assistance,” NRCS will consider entities and individuals who are currently providing technical services through the Department under a contract, cooperative agreement, or contribution agreement as “conditionally certified” to ensure the continued availability of technical services from these providers for a transitional period before this regulation is effective and implemented. The terms of this conditional certification are: (1) The individual or entity must be operating under a contract, cooperative agreement, or contribution agreement that is in effect on the date of publication of this rule; (2) the individual or entity must submit an Application for Certification by March 1, 2003; and (3) the conditional certification expires by either the date a Certification Agreement is entered or September 30, 2003, whichever is earlier. These terms will allow entities and individuals to continue to provide technical services under their respective contracts, cooperative agreements, or contribution agreements during FY 2003 until NRCS is able to evaluate such individuals and organizations under the certification process set forth in this part. Section 652.21(f) of this rule sets forth these terms and conditions for conditional certification of individuals, private-sector entities, and public agencies providing technical services under current contracts, cooperative agreements, or contribution agreements.

Additionally, NRCS will also consider individuals that are certified under NRCS policies in place prior to the publication of this interim final rule as conditionally certified. The terms of this conditional certification are: (1) The individual or entity must have been certified under such policies prior to the publication of this interim final rule; (2) the individual or entity must submit an Application for Certification by March 1, 2003; and (3) the conditional certification expires either by the date a Certification Agreement is entered or September 30, 2003, whichever is earlier. Section 652.21(g) of this rule sets forth these terms and conditions for conditional certification of individuals who were certified under pre-existing NRCS policy.

NRCS believes that the availability of training is essential to the successful implementation of the certification process. NRCS anticipates that a substantial amount of training will be needed for applicants to become certified as technical service providers. The specific training needed will vary from State-to-State depending on the type and quantity of technical services needed to address the additional Title XII Farm Bill workload in each State, the overall interest by applicants to become technical service providers, and the private and public sector mix in providing technical services.

NRCS encourages the development and presentation of training opportunities from a wide variety of sources. NRCS anticipates that universities, colleges, land grant institutions, the Extension Service, private entities, and other sources may be used by the Department to develop and provide the training. NRCS is particularly interested in comments from the public regarding all aspects of technical service provider training.

Individuals interested in becoming certified are responsible for obtaining the training they need to become certified as technical service providers, for keeping their own training records current, and for providing documentation for certification purposes on the training they have received. Costs associated with becoming a technical service provider, as well as maintaining or renewing certification, are the responsibility of the individual seeking certification.

NRCS will publish on its home web page by December 31, 2002, further instructions, guidance, forms, and the process related to the submittal of applications for certification. NRCS will begin to accept applications and recommendations for certification on January 2, 2003, and will review these submittals as they are received. While NRCS may enter into Certification Agreements with technical service providers prior to March 1, 2003, such certifications will not be effective until the effective date of this interim final rule.

NRCS is seeking comments and ideas for streamlining the certification process to make it as efficient and effective as possible. NRCS is also seeking input regarding methods to minimize the burden of certification for applicants seeking certification for more than one state. Of particular interest is how variation in State laws and requirements should be addressed within a certification system.

Section 652.21 , Certification criteria and requirements, sets forth the certification criteria and other requirements for certification of individuals. All individuals must meet the NRCS certification criteria and requirements in order to be certified by the agency to provide technical services to program participants and the Department. NRCS requires that all certified individuals have the necessary training, experience, and knowledge to perform the technical services for which certification is sought. Because the technical services are performed to assist producers to participate in Department conservation programs, the certified individual must have working familiarity with Department standards, specifications, and program requirements. These requirements are set forth in Department manuals, handbooks, and other references that are available on the web at http://www.nrcs.usda.gov to the technical service provider.

In conjunction with the certification, NRCS will enter into a Certification Agreement with the applicant. The Certification Agreement documents the terms and conditions of the certification. Technical service providers are certified for a three-year time period and may have their certification renewed for subsequent time periods. The interim final rule also provides that NRCS will establish and collect fees related to the certification of technical service providers. NRCS will make available to the public any fee schedule established under this provision.

Section 652.22 , Certification process for individuals, sets forth the certification process for individuals to become certified. In order to be considered for certification, individuals must: submit an Application for Certification to NRCS, be recommended for certification by a recommending organization as provided by § 652.25, or be included as part of the certification application submitted by a private-sector entity or public agency. Whatever avenue is chosen by the individual, NRCS will determine within 60 days of receipt of an application if the applicant meets the requirements for certification and will enter into a Certification Agreement with the applicant at the time of certification. After execution of a Certification Agreement, NRCS then place the individual's name on the approved list of technical service providers for that State. The list will be available on the Department's Web site. A payment will not be made for technical services provided by the individual under this part until the individual is certified and placed on the approved list.

The Application for Certification and the Certification Agreement will be available on the National and State NRCS Web sites in a PDF format for easy accessibility and use.

Section 652.23 , Certification process for private-sector entities, sets forth the certification process for private-sector entities. Certification of an entity means that the entity may receive payment for the services provided by individuals working under its auspices, but the work must be warranted first by a certified individual within the entity, and the organization must assume the liability for the quality of work performed.

Thus, a private-sector entity may be approved to provide technical services and receive payment for those services as long as the entity has at least one certified individual acting on its behalf. In addition, the entity must identify an official of the entity that is authorized to receive official correspondence related to the status of the entity's certification. The interim final rule provides that an individual(s) may seek certification as part of the application package of the private-sector entity.

All individuals warranting technical services on behalf of the entity must be individually certified and identified on the entity's Application and Certification Agreement. Non-certified individuals may provide input to the technical services provided by the entity, but the work products developed by these individuals must be adopted and warranted by one of the certified individuals identified on the entity's Application and Certification Agreement. Thus, if a non-certified engineer drafts an engineering drawing, the engineer who is certified to provide such engineering services must sign the final drawing and warrant that it meets the requirements set forth in § 652.4. Individuals working under the private-sector's auspices must act within the terms and conditions of a signed Certification Agreement between NRCS and the entity.

NRCS may decertify the entire entity or any individual or individuals working under the auspices of such entity in accordance with the provisions of Subpart C.

Section 652.24 , Certification process for public agencies, sets forth the certification process for public agencies. Public agencies possess through their employees certain expertise and skills to carry out their mission that may match the expertise and skills needed to provide technical services to program participants and the Department.

The interim final rule distinguishes between certification of a public agency under this section and certification of an individual working under the individual's own auspices. Certification of a public agency means that the agency may receive payment for the services provided by individuals working under its auspices, but the work must first be warranted by a certified individual within the agency, and the public agency must assume liability for the quality of the work provided.

Thus, a public agency may be approved to provide technical services and receive payments for those services as long as the agency has at least one certified individual acting on its behalf. In addition, the agency itself must identify an official that is authorized to receive official correspondence related to the status of the agency's certification. The interim final rule provides that an individual may seek certification as part of the application package of the public agency.

Employees of the public agency that warrant technical services on behalf of the agency must be individually certified and identified by the public agency as those employees authorized to perform the technical services in the Application and Certification Agreement. Just as described for private-sector entities, a non-certified employee of a public agency may provide input into the technical services provided by the public agency, but the work products developed by these individuals must be adopted and warranted by one of the certified individuals identified on the agency's Application and Certification Agreement. These individuals must operate within the terms and conditions of a signed Certification Agreement between the agency and NRCS.

NRCS believes that there exists a potential appearance of impropriety where public officials provide similar duties in both their official public and private capacities. NRCS is concerned that program participants may be confused about the capacity under which a certified individual that works for a public agency is providing services to them. Public employees are held to a higher standard of conduct when providing assistance than private sector individuals and entities providing a similar service to a customer. For example, public agencies have certain disclosure and confidentiality requirements regarding information they obtain from producers that do not apply to private sector individuals and entities.

While nearly all public agencies already have restrictions regarding outside employment of its employees, the Department requires, as part of the public agency's certification that its employees may not provide technical services as an individual or as a member of a public-sector entity outside of the auspices of that agency.

Section 652.25 , Alternative application process for individual certification, provides for an alternative to the process set forth in § 652.22 for individuals to be considered for certification by NRCS. In lieu of submitting an Application for Certification directly to NRCS pursuant to § 652.22, individuals may be considered for certification through the recommendation of an organization (“recommending organization”) with which NRCS has a memorandum of understanding or other appropriate agreement providing for such recommendation. A recommending organization is a professional organization, association, licensing board or other entity that NRCS has determined has an accreditation program to train, test, and evaluate individuals for competency in a particular area or areas of technical service delivery and whose accreditation program meets the certification criteria set forth in § 652.25.

NRCS's use of, or partnership with, recommending organizations is intended to streamline the certification process to the greatest extent possible by eliminating the need for each individual to submit an Application for Certification and by recognizing the specific accreditation expertise of various organizations.

Prior to entering into an agreement with a recommending organization, NRCS determines whether the organization's accreditation program meets NRCS standards and specifications for the particular technical services to be provided. As set forth in § 652.25(b), the agreement between NRCS and a recommending organization contains specific requirements related to how the organization recommends individuals to NRCS for certification.

NRCS makes the final determination whether to certify for each individual recommended by an organization. The authority of the agency to certify is non-delegable and is made by the appropriate NRCS official based upon his or her assessment of whether an applicant meets the criteria as set forth in this part. NRCS may terminate an agreement with a recommending organization if NRCS determines that the organization has violated any of the terms of the agreement or if any other problems arise in the organization's certification recommendations. In considering whether to terminate any agreement with a recommending organization, the agency's duty to ensure that only qualified individuals are certified to be technical service providers is paramount.

Section 652.26 , Certification renewal, sets forth the process and requirements for certification renewal for individuals, private-sector entities, and public agencies. NRCS believes that technical service provider certifications should have a finite time limit in order to ensure that the certification requirements are still being met and to reaffirm the terms and conditions of the current Certification Agreement. Accordingly, all technical service providers must renew their certification every three years. Technical service providers decertified in accordance with the provisions in Subpart C, who are seeking to become re-certified after the period of decertification has expired, must reapply for certification through the regular application process.

NRCS is providing a streamlined process for certification renewal in the interim rule. A standard renewal form, Certification Renewal, will be available on the National and State NRCS Web sites in a PDF format. The technical service provider must complete and submit their request for Certification Renewal to NRCS at least 60 days prior to the current certification expiration date. All renewals are in effect for three years and may be subsequently renewed for three-year periods.

In order to protect the public interest and to ensure the adequate provision of technical assistance under its conservation programs, the Department's policy is to certify and maintain certification of only those individuals who meet the criteria set forth in this rule and who act responsibly in the provision of technical assistance. The decertification process set forth in subpart C is the means by which the Department carries out this policy. The Department is promulgating these regulations to provide for a decertification process because neither the National Appeals Division nor Government-wide Suspension and Debarment regulations apply to the decertification of technical service providers. Specifically, the National Appeal Division's regulations apply to appeals related to program participants as that term is defined by 7 CFR 11.1. Technical service providers are not “program participants.” The decertification process described herein is more akin to the Government-wide Debarment and Suspension (Nonprocurement) regulations at 7 CFR part 3017, which are specifically excluded from the definition of program participant in 7 CFR 11.1. However, the Government-wide Suspension and Debarment regulations at 7 CFR 3017.110(a)(3)(iii) exclude conservation programs from applicability.

The dual goals of the decertification process are: (1) To establish an efficient administrative process by which technical service providers who fail to meet NRCS standards and specifications in the provision of technical service or otherwise fail to meet the terms of the Certification Agreement, i.e., act responsibly, are decertified from providing technical services to the Department and to program participants, and (2) to ensure adequate due process to the technical service providers who are proposed for decertification. The purpose of the decertification process is to protect the public interest by removing those technical service providers from the approved list who fail to act responsibly.

Section 652.31 , Policy, sets forth general guidelines regarding the causes for decertification. It is not the Department's intent to decertify an otherwise responsible technical service provider for minor inconsistencies with NRCS standards and specifications if those failures are infrequent events, and the technical service provider works in good faith to remedy any problems. The Department encourages technical service providers to act proactively in remedying any technical services that fail to meet NRCS standards and specifications. To the extent it is able, NRCS will work with those technical service providers who ask for assistance in addressing deficiencies in their provision of technical service. The Department will decertify those technical service providers who demonstrate a failure to act responsibly in the provision of technical service.

Accordingly, § 652.32, Causes of decertification, sets forth the causes for decertification. These causes include failures in the provision of technical service to the extent that the practice is ineffective or environmentally harmful and/or other violations of the terms of the Certification Agreement. In addition, a catch-all provision is included under this section to cover any other cause of a serious or compelling nature demonstrating a technical service provider's failure to fulfill the terms of their Certification Agreement.

Section 652.33, Notice of proposed decertification, provides that the State Conservationist will send to any technical service provider proposed for decertification a Notice of Proposed Decertification. This section also sets forth the required content of the Notice of Proposed Decertification. In addition, this section provides that the Notice will identify the certified individuals who work under the auspices of a technical service provider (such as a public agency or private-sector organization), who are also being considered for decertification. Certified individuals have a separate right of appeal. In order to appeal, certified individuals must follow the process and deadlines set forth in this subpart.

Section 652.34, Opportunity to contest decertification, sets forth the process, including the deadlines, for a technical service provider to contest any Notice of Proposed Decertification.

Section 652.35, State Conservationist decision, provides the time lines for the State Conservationist's decision regarding whether to decertify, the basis for the decision, and the required notices to the technical service provider of the State Conservationist's decision.

Section 652.36, Appeals of decertification decisions, provides for appeal by the technical service provider of a State Conservationist's decision to the Chief, deadlines for appeal, issuance of the final decision, and the contents of the Chief's final decision. Section 652.36 also provides that the Chief may delegate his duties as the decertifying officer to an NRCS employee in the National Office.

Section 652.37, Period of decertification, provides general guidelines for the decertifying official's (the State Conservationist or Chief, as appropriate) determination regarding the period of decertification. These guidelines are meant to be flexible while at the same time providing technical service providers with a general idea of how the period of decertification is decided upon. As is true of the entire decertification process, determination of the length of the decertification period is intended to protect the public interest by removing from the list of approved providers those technical service providers who fail to act responsibly in the provision of technical service. The length of the decertification period is commensurate with the degree to which the technical service provider has violated the terms of the Certification Agreement, including meeting NRCS standards and specifications. It is within the decertifying official's discretion to decide the period of decertification based upon the general guidelines, the facts of the particular case, and any mitigating factors.

Section 652.38, Scope of decertification, provides guidance on the scope of a decertification. Decertification applies to an entire entity and all organizational elements thereunder of a technical service provider, whether the provider is a private sector entity or a public agency. The decertifying official must determine, based upon the facts of a situation, whether to decertify the entire organization (including the individuals identified as authorized to provide technical services under the auspices of such organization); the organization only; a particular individual or individuals acting under the auspices of that organization; and/or an organizational element of the public agency or private sector entity. For example, the decertifying official may decertify the private sector entity or public agency and a particular individual or individuals, but not all the individuals identified in the Certification Agreement, if the decertifying official finds that the actions of the entity or public agency and/or particular authorized individuals cannot be imputed to all the individuals identified as authorized to provide technical services under the auspices of the organization. The intent of this subpart is to decertify only those organizations or elements thereof and employees that are deficient in the provision of technical services. In making this determination, the decertifying official will also consider the terms of the Certification Agreement itself, which require the public agency and private sector to be responsible for the actions of their employees and/or agents.

As set forth in § 652.39, Mitigating factors, the decertifying official takes into consideration any mitigating factors presented by the technical service provider when deciding whether to decertify as well as the scope and the period of decertification. Even though mitigating factors may be presented by a technical service provider, the decertifying official may still decide to decertify. This section provides general examples of mitigating factors. For example, subsection (c) provides as a mitigating factor actions a technical service provider takes to prevent future deficiencies in the provision of technical services which led to the Notice of Proposed Decertification, including deficiencies in the provision of technical service or in otherwise complying with the terms of the Certification Agreement. Technical service providers are encouraged to mitigate any deficiencies in the provision of technical services.

Section 652.40, Effect of decertification, sets forth the effect of a decertification determination. During the time period of decertification, NRCS will not procure or cooperate with a decertified technical service provider nor will the Department reimburse a program participant for the services of a decertified provider. Current or on-going procurements, cooperative agreements or program agreements will not be affected retroactively by the listing of a technical service provider as decertified.

In addition, § 652.40 provides that the agency shall maintain a list of decertified technical service providers. When a technical service provider is decertified in one State, the effect is to decertify that provider in all States. NRCS will work diligently to keep the list current. The list will be available to the public through NRCS's Web site and at USDA Service Centers. It is the program participant's responsibility to check the list prior to securing a technical service provider's services. Further, the rule requires that no program participant may knowingly hire a decertified technical service provider.

Section 652.41, Effect of filing deadlines, provides that the failure of a technical service provider to meet filing deadlines results in the forfeiture of appeal rights and also clarifies the deadline for contest and appeal filings. These policies assist in the efficient and fair administration of the decertification process.

Finally, section 652.42, Recertification, states the agency's recertification policy for those technical service providers who have been decertified.

Pursuant to Executive Order 12866 (58 FR 51735, October 4, 1993), it has been determined that this interim final rule is a significant regulatory action and has been reviewed by the Office of Management and Budget (OMB). Pursuant to section 6(a)(3) of Executive Order 12866, NRCS conducted an economic analysis of the potential impacts associated with this rulemaking, and included the analysis as part of a Regulatory Impact Analysis document prepared for this interim final rule. The analysis estimates that the technical service provider process will have a beneficial impact on the Nation's natural resources by accelerating adoption of conservation practices, increasing environmental and resource benefits, maintaining and enhancing long-term productivity of the resource base, reducing non-point source pollution damage, reducing farming costs, and contributing to an increase in net farm income. A copy of this analysis is available upon request from Gary Gross, Resource Conservationist, Natural Resources Conservation Service, P.O. Box 2890, Washington, DC 20013-2890, or by e-mail to gary.gross@usda.gov; attn: Technical Service Provider Assistance—Economic Analysis, or at the following Web address: http://www.nrcs.usda.gov.

This interim final rule has been reviewed in accordance with Executive Order 12988. The provisions of this interim final rule are not retroactive. The USDA has not identified any State or local laws that are in conflict with this regulation or that would impede full implementation of this rule. Nevertheless, in the event that such conflict is identified, the provisions of this interim final rule preempt State and local laws to the extent such laws are inconsistent with this rule.

Pursuant to 5 U.S.C. 605(c) of the Regulatory Flexibility Act, it has been determined that this rule will not have a significant impact on a substantial number of small entities as defined by the Act. This rule sets forth the process by which entities could, on a voluntary basis, become certified providers. Therefore, a regulatory flexibility analysis is not required for this interim final rule. This interim final rule sets forth the policies and procedures for the provision of technical service provider assistance, which involves the voluntary participation of technical service providers.

The regulations promulgated by this rule do not authorize any action that may negatively affect the human environment. Accordingly, an analysis of impacts under the National Environmental Policy Act has not been performed. The technical service provider process will help implement new and existing USDA conservation programs which are subject to the environmental analyses pursuant to the National Environmental Policy Act.

Section 2702 of the Farm Security and Rural Investment Act of 2002 requires that the promulgation of regulations and the administration of Title II of said act be carried out without regard to the chapter 35 of title 44 of the United States Code (commonly known as the Paperwork Reduction Act). Accordingly, these regulations and the forms, and other information collection activities need to administer technical service provider assistance under these regulations, are not subject to review by the Office of Management and Budget under the Paperwork Reduction Act.

NRCS is committed to compliance with the Government Paperwork Elimination Act (GPEA) and the Freedom to E-File Act, which require Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible and NRCS in particular to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. The forms and other information collection activities required for participation in technical services delivery under this rule are not fully implemented for the public to conduct business with NRCS electronically. However, the required standard forms discussed in this rule will be available electronically through the USDA eForms Web site at www.sc.egov.usda.gov for downloading. The regulation will be available at the NRCS homepage at www.nrcs.usda.gov. Applications may be submitted as provided for in this rule. At this time, electronic submission is not available. However, NRCS is currently working on fully implementing electronic submission so that it is available in the future.

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, NRCS assessed the effects of this rulemaking action on State, local, and Tribal governments, and the public. This action does not compel the expenditure of $100 million or more by any State, local, or Tribal governments, or anyone in the private sector; therefore, a statement under section 202 of the Unfunded Mandates Reform Act of 1995 is not required.

Pursuant to section 304 of the Department of Agriculture Reorganization Act of 1994, Public Law 104-354, USDA classified this interim final rule as not major.

A Civil Rights Impact Analysis has been completed regarding this rule. The review reveals no factors indicating any disproportionate adverse civil rights impacts for participants in NRCS programs and services who are minorities, women, or persons with disabilities. A copy of this analysis is available upon request from Gary Gross, Resource Conservationist, Natural Resources Conservation Service, PO Box 2890, Washington, DC 20013-2890, or by e-mail to gary.gross@usda.gov; attn: Technical Service Provider Assistance—Civil Rights Impact Analysis, or at the following web address: http://www.nrcs.usda.gov.

For the reasons stated in the preamble, the Natural Resources Conservation Service hereby amends Title 7 of the Code of Federal Regulations as set forth below:

This rule is issued under Marketing Agreement No. 84 and Marketing Order No. 905, both as amended (7 CFR part 905), regulating the handling of oranges, grapefruit, tangerines, and tangelos 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.”

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

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

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

This rule limits the volume of sizes 48 and 56 red seedless grapefruit shipped during the first 22 weeks of the 2002-03 season by continuing in effect the weekly percentages established for each of the 22 weeks, beginning September 16, 2002. This action supplies enough small red seedless grapefruit, without saturating all markets with these small sizes. This rule should help stabilize the market and improve grower returns.

Section 905.52 of the order provides authority to limit shipments of any grade or size, or both, of any variety of Florida citrus. Such limitations may restrict the shipment of a portion of a specified grade or size of a variety. Under such a limitation, the quantity of such grade or size a handler may ship during a particular week is established as a percentage of the total shipments of such variety shipped by that handler during a prior period, established by the Committee and approved by USDA.

Section 905.153 of the regulations provides procedures for limiting the volume of small red seedless grapefruit entering the fresh market. The procedures specify that the Committee may recommend that only a certain percentage of sizes 48 and 56 red seedless grapefruit be made available for shipment into fresh market channels for any week or weeks during the regulatory period. The regulation period is 22 weeks long and begins the third Monday in September. Under such a limitation, the quantity of sizes 48 and 56 red seedless grapefruit that may be shipped by a handler during a regulated week is calculated using the recommended percentage. By taking the recommended weekly percentage times the average weekly volume of red seedless grapefruit handled by such handler in the previous five seasons, handlers can calculate the total volume of sizes 48 and 56 they may ship in a regulated week.

This rule limits the volume of sizes 48 (3 9/16 inches minimum diameter) and 56 (3 5/16 inches minimum diameter) red seedless grapefruit entering the fresh market by continuing in effect the weekly percentages established for the first 22 weeks of the 2002-03 season. This rule establishes weekly percentages at 45 percent for weeks 1 and 2 (September 16 through September 29), 35 percent for weeks 3 through 19 (September 30, 2002 through January 26, 2003), and 40 percent for weeks 20, 21, and 22 (January 27 through February 16). The Committee recommended this action by a vote of 14 in favor and 2 against at a meeting on May 22, 2002.

The Committee believes the over shipment of smaller-sized red seedless grapefruit has a detrimental effect on the market. While there is a market for small-sized red seedless grapefruit, the availability of large quantities oversupplies the fresh market with these sizes and negatively impacts the market for all sizes. These smaller sizes, 48 and 56, normally return the lowest prices when compared to the other larger sizes. However, when there is too much volume of the smaller sizes available, the overabundance of small sized fruit pulls the prices down for all sizes.

For the past four seasons, the volume of small sizes available throughout the season has been considerably larger than in past seasons. The smaller sizes have represented a larger portion of the crop at the beginning of the season and this trend has continued throughout the season. The fruit has not been sizing well. This means a greater number of small sizes are available later in the season. The percentage of total available volume represented by small sizes has been higher for nearly every month of the season when compared to the same months in previous seasons. This has exacerbated the problems stemming from the oversupply of small sizes and increased the number of weeks of a season impacted.

For the last three seasons, 1999-2000, 2000-01, and 2001-02, the percentage of the remaining crop represented by small sizes in February has averaged around 53 percent. This compares to an average of 31 percent for the same month for the seasons 1995-96 through 1997-98. In fact, the last three seasons have averaged a greater percentage of smaller sizes across each month, October through February, than over the three seasons 1995-96 through 1997-98. For the last seven seasons there has been a movement toward an increased volume of small sizes as a percentage of the overall crop. This is most dramatically evidenced by the 72 percent increase in small sizes as a percentage of the overall crop from February 1996 to February 2001.

The volume of small-sized red seedless grapefruit available in December, January, and February for the 1999-2000, 2000-01, and 2001-02 seasons were comparable or exceeded the volume available in October, November, and December for the 1995-96, 1996-97, and 1997-98 seasons. The following chart shows the volume of sizes 48 and smaller red seedless grapefruit available for these months as a percentage of the total crop.

This rule is issued under Marketing Order No. 920, as amended (7 CFR part 920), regulating the handling of kiwifruit grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

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

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

This rule continues in effect container and pack requirements currently prescribed for California kiwifruit under the order. This rule continues to allow handlers to pack more individual pieces of fruit per 8-pound sample for three size designations and one less piece of fruit per 8-pound sample for one size designation. This rule continues in effect revisions to lot stamping requirements for plastic containers, suspension of the standard packaging requirement for volume filled containers of kiwifruit designated by weight for the 2002-03 season, and removal of obsolete language from the text of the regulation. These changes were unanimously recommended by the Committee and are expected to help handlers compete more effectively in the marketplace, better meet the needs of buyers, and to improve grower returns. The Committee unanimously recommended these changes at its April 9, 2002, meeting.

Under the terms of the order, fresh market shipments of kiwifruit grown in California are required to be inspected and meet grade, size, maturity, pack, and container requirements.

Section 920.52 authorizes the establishment of pack requirements. Section 920.302(a)(4) of the order's administrative rules and regulations outlines pack requirements for fresh shipments of California kiwifruit.

Section 920.302(a)(4)(iii) establishes a maximum number of fruit per 8-pound sample for each numerical count size designation for fruit packed in bags, volume filled, or bulk containers.

The amount of kiwifruit supplied to the domestic market by California handlers has declined 40 percent since the 1992-93 season, while imports from Europe have increased 1,409 percent. During the 2000-01 season approximately 3.2 million tray equivalents were imported from Europe. Imports from Europe are in direct competition with California kiwifruit. Additionally, grower prices have steadily declined in spite of a continuous increase in the U.S. per capita consumption of kiwifruit. When the order was implemented in 1984, the average Free-on-Board (FOB) value was $1.14 per pound. A recent review of FOB values showed that the average FOB value for the 1992-93 season through the 1999-2000 season was $0.56 per pound, a decline of $0.58 per pound.

As previously mentioned, the rules and regulations specify a maximum number of fruit per 8-pound sample for each numerical count size designation for kiwifruit packed in bags, volume filled, or bulk containers. California and imported fruit size designations by weight have differed since the implementation of the order. In 1998, the Committee addressed these differences by revising the numerical count per size designation specified in § 920.302(a)(4)(iv) of the order's administrative rules and regulations. An interim final rule published in the Federal Register on September 3, 1998 (63 FR 46861), increased the number of fruit that could be packed per 8-pound samples of size designations 30 through 42. A final rule concerning this matter was published in the Federal Register on July 29, 1999 (64 FR 41010).

Buyers generally prefer to purchase containers with a greater number of pieces of fruit in the box. Therefore, at its September 19, 2001, meeting, the Committee again addressed the differences in size designations between California kiwifruit and imported kiwifruit and unanimously recommended relaxing pack requirements under § 920.302(a)(iii) to permit handlers to pack more individual pieces of fruit in an 8-pound sample for various sizes.

The Committee unanimously recommended increasing the maximum number of fruit per 8-pound sample for sizes 42 through 25, eliminating size 21, and adding new sizes 20 and 23. These changes as shown in the following chart were implemented through an interim final rule (66 FR 1413, October 29, 2001) and a final rule (67 FR 11396, March 14, 2002). Changes are in bold.

This chart is commonly referred to as the “Size Designation Chart” in the industry. Increasing the maximum number of fruit per 8-pound sample allowed some smaller-sized fruit to be packed into a larger-size category. This change allowed one more piece of fruit to be packed per 8-pound sample in sizes 42 and 39, three more pieces of fruit to be packed in size 36, seven more pieces of fruit to be packed in size 33, and five more pieces of fruit to be packed in sizes 27/28 and 25.

Increasing the maximum number of fruit permitted per 8-pound samples during the 2001-02 season enabled handlers to better meet the needs of buyers, because kiwifruit sells by the piece, and buyers desire as much fruit in each container as the container can comfortably hold.

The changes to the size designation chart helped reduce the sizing differences between California and imported kiwifruit during the 2001-02 season and allowed more fruit to be sold; however, handlers found that adjustments were still needed in some of the size designations to bring them closer to imported fruit size designations and to allow more accurate sorting into the size categories with handler sizing equipment. Sizing equipment had difficulty during the 2001-02 season distinguishing between sizes.

At its April 9, 2002, meeting, the Committee unanimously recommended and the USDA approved increasing the maximum number of fruit per 8-pound sample for sizes 23, 30, and 36, and reducing the maximum number of fruit per 8-pound sample for size 42 (67 FR 54327, August 22, 2002). The maximum number of fruit allowed in size 23 increased from 29 pieces of fruit per 8-pound sample to 30 pieces; in size 30, 39 pieces of fruit were allowed instead of 38 pieces; in size 36, 46 pieces of fruit were allowed instead of 45; and in size 42, the number of fruit allowed was decreased from 54 pieces of fruit per 8-pound sample to 53 pieces. These changes are shown in bold in the following chart.

The Committee believes that increasing the number of fruit permitted per 8-pound samples of sizes 23, 30, and 36, and decreasing the number of fruit per 8-pound sample for size 42 will result in more clearly defined size categories, and allow sizing equipment to more uniformly separate fruit of different sizes. Additionally, these adjustments will make the four size designations more similar to those for imported fruit. This action will not affect import requirements.

Section 920.52 of the order authorizes the establishment of container requirements. Section 920.55 of the order requires inspection and certification of kiwifruit, handled by handlers.

Prior to issuance of the interim final rule (67 FR 54327, August 22, 2002), § 920.303(d) required all exposed or outside containers of kiwifruit, but not less than 75 percent of the total containers on a pallet to be plainly marked with the lot stamp number corresponding to the lot inspection conducted by an authorized inspector. It further required that individual consumer packages of kiwifruit placed directly on a pallet have all outside or exposed packages on a pallet plainly marked with the lot stamp number corresponding to the lot inspection conducted by an authorized inspector or have one inspection label placed on each side of the pallet. However, kiwifruit packed into individual consumer packages within a master container that are being directly loaded into a vehicle for export shipment under the supervision of the Federal or Federal-State Inspection Service (inspection service) were exempted, and continue to be exempted, from the lot stamp number requirement. The lot stamp number is used by the inspection service to identify and locate the corresponding inspector's working papers or notes. Working papers are the documents each inspector completes while performing an inspection on a lot of kiwifruit.

During the 2001 season, the kiwifruit industry began using plastic containers of various dimensions that can hold either bulk or tray packed kiwifruit. Some of these containers are reusable. Kiwifruit packed in reusable plastic containers (RPCs) is typically delivered to the retailer, where the containers are emptied and returned to a clearinghouse for cleaning and redistribution. As RPCs do not support markings that are permanently affixed to the container, all markings must be printed on cards, which slip into tabs on the front or sides of the containers. The cards are easily inserted and removed and contribute to the efficient use of the container. Because of their unique portability, the industry and inspection service are concerned that the cards on pallets of inspected containers could easily be moved to pallets of uninspected containers, enabling a handler to avoid inspection on a lot or lots of kiwifruit.

The industry experimented last season with round adhesive labels on RPCs. The lot stamp number was stamped on the round adhesive label and placed on the RPCs; however, manufacturers found that it was difficult to remove the adhesive label in the wash cycle. Additionally, handlers found that increased labor was needed to affix the adhesive labels and lot stamp number to the plastic containers. Handler members calculated that affixing adhesive labels to RPCs and one-way plastic containers cost the kiwifruit industry approximately $0.10 per container in materials and labor.

The inspection service and the Committee have presented their concerns to the manufacturers of these types of containers. One manufacturer has indicated a willingness to address the problem by offering an area on the principal display panel where the container markings will adhere to the plastic container. However, the manufacturer believes that this change may not be feasible in the near future.

To address the additional time and cost of affixing adhesive labels to containers, the Committee unanimously recommended and the USDA approved allowing handlers to use any method of positive lot identification (PLI) in accordance with Federal or Federal-State Inspection Service (inspection service) procedures (67 FR 54327, August 22, 2002). The Committee estimated that allowing handlers to use any method of PLI acceptable to the inspection service will reduce handler costs by $8,700, and will make handler operations more efficient. This action will not affect import requirements.

Section 920.52 authorizes the establishment of pack requirements. Paragraphs (a)(1) and (3) of § 920.52 specify that the USDA may fix the weight of containers used in the handling of kiwifruit.

Section 920.302(a)(4) of the order's administrative rules and regulations outlines pack requirements for fresh shipments of California kiwifruit.

Prior to issuance of the interim final rule (67 FR 54327, August 22, 2002), § 920.302(a)(4)(v) required that all volume filled containers of kiwifruit designated by weight shall hold 22-pounds (10-kilograms) net weight of kiwifruit unless such containers hold less than 10-pounds or more than 35-pounds net weight of kiwifruit.

In a volume filled container, fairly uniform size kiwifruit are loosely packed without cell compartments, cardboard fillers or molded trays. Handlers may ship volume filled containers marked by either the appropriate count or net weight of kiwifruit. Handler shipments are based upon the preference of the receiver.

In 1994, the Committee unanimously recommended and USDA established standard packaging for certain volume filled containers designated by weight. At that time 52 percent of the total crop was packed into volume filled containers. The percentage of the total crop packed into volume filled containers increased to 85 percent during the 2001-02 season. In 2001-02, imports from the Northern hemisphere (Greece, Italy, and France) totaled approximately 17 percent of the U.S. market share. The majority of imported kiwifruit was shipped in 19.8-pound (9-kilogram) volume filled containers, whereas the order limited California handlers to 22-pound (10-kilogram) net weight volume filled containers. Retailers did not differentiate between an imported 19.8-pound (9-kilogram) and a 22-pound (10-kilogram) net weight volume filled container from California. Because buyers paid the same price for each container in 2001, the effect was not favorable for California handlers.

Additionally, prior to publication of the above-mentioned interim final rule, § 920.302(a)(4)(v) required handlers to utilize a standard packaging of 22-pounds (10-kilograms) net weight for volume filled containers that were over 10-pounds or less than 35-pounds net weight of kiwifruit. This restriction limited California kiwifruit handlers in meeting buyer's demands for other types of packaging.

At its April 9, 2002, meeting, the Committee unanimously recommended and the USDA approved suspending the standardized packaging requirement of 22-pounds (10-kilograms) net weight for volume filled containers for the 2002-03 season (67 FR 54327, August 22, 2002). The Committee expects that this suspension will enable California handlers to meet the packaging demands of retailers for volume filled containers, make California kiwifruit more competitive by allowing handlers to match other packaging styles, and reduce handlers' packaging costs. This change will not affect the import regulation.

Paragraphs (a) and (b) of § 920.60 authorize reporting requirements for kiwifruit handlers under the marketing order.

Section 920.160 requires each handler who ships kiwifruit to file a report of shipment and inventory data to the Committee no later than the fifth day of the month following such shipment. Handlers who ship less than 10,000 trays or the equivalent thereof, per fiscal year, and who have qualified with the Committee are only required to furnish such report of shipment and inventory data twice each year. Prior to publication of the interim final rule (67 FR 54327, August 22, 2002), paragraphs (a)(1) through (a)(6) of § 920.160 specified the types of information to be provided on the shipment report. Paragraph (a)(4) required handlers to report inventory at the end of the reporting period by container; paragraph (a)(5) required handlers to report the amount of kiwifruit lost in repack; and paragraph (a)(6) required handlers to report the amount of fruit set aside for processing.

The Committee had not been collecting this information from handlers since the early 1990's. Therefore, the Committee unanimously recommended removing these obsolete reporting requirements from § 920.160 of the order's rules and regulations at the April 9, 2002, meeting.

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 the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 52 handlers of California kiwifruit subject to regulation under the marketing order and approximately 326 growers in the production area. Small agricultural service firms are defined as those whose annual receipts are less than $5,000,000, and small agricultural growers are defined by the Small Business Administration (13 CFR 121.201) as those whose annual receipts are less than $750,000. None of the 52 handlers subject to regulation have annual kiwifruit sales of at least $5,000,000. Two of the 326 growers subject to regulation have annual sales of at least $750,000. Therefore, a majority of the kiwifruit handlers and growers may be classified as small entities.

This rule continues to allow handlers to pack more individual pieces of fruit per 8-pound sample for three size designations and one less piece of fruit per 8-pound sample for one size designation. This rule continues in effect revisions to lot stamping requirements for plastic containers, suspension of the standard packaging requirement for volume filled containers of kiwifruit designated by weight for the 2002-03 season, and removal of obsolete language contained in paragraphs (a)(4), (a)(5), and (a)(6) of § 920.160 that has not been applicable for several years. This rule is expected to help handlers compete more effectively in the marketplace, better meet the needs of buyers, and to improve grower returns. Authority for these actions is provided in §§ 920.52, 920.55, and 920.60 of the order.

Under the terms of the order, fresh market shipments of kiwifruit grown in California are required to be inspected and meet grade, size, maturity, pack, and container requirements.

Section 920.302(a)(4) of the order's administrative rules and regulations outlines pack requirements for fresh shipments of California kiwifruit.

Section 920.302(a)(4)(iii) establishes a maximum number of fruit per 8-pound sample for each numerical count size designation for fruit packed in bags, volume filled, or bulk containers.

The amount of kiwifruit supplied to the domestic market by California handlers has declined 40 percent since the 1992-93 season, while imports from Europe have increased 1,409 percent. During the 2000-01 season approximately 3.2 million tray equivalents were imported from Europe. Imports from Europe are in direct competition with California kiwifruit. Additionally, grower prices have steadily declined in spite of a continuous increase in the U.S. per capita consumption of kiwifruit. When the order was implemented in 1984, the average Free-on-Board (FOB) value was $1.14 per pound. A recent review of FOB values showed that the average FOB value for the 1992-93 season through the 1999-2000 season was $0.56 per pound, a decline of $0.58 per pound.

As previously mentioned, the rules and regulations specify a maximum number of fruit per 8-pound sample for each numerical count size designation for kiwifruit packed in bags, volume filled, or bulk containers. California and imported fruit size designations by weight have differed since the implementation of the order. In 1998, the Committee addressed these differences by revising the numerical count per size designation specified in § 920.302(a)(iv) of the order's administrative rules and regulations. An interim final rule published in the Federal Register on September 3, 1998 (63 FR 46861), increased the number of fruit that could be packed per 8-pound samples of size designations 30 through 42. A final rule concerning this matter was published in the Federal Register on July 29, 1999 (64 FR 41010).

Buyers generally prefer to purchase containers with a greater number of pieces of fruit in the box. Therefore, at its September 19, 2001, meeting, the Committee again addressed the differences in size designations between California kiwifruit and imported kiwifruit and unanimously recommended relaxing pack requirements under § 920.302(a)(4)(iii) to permit handlers to pack more individual pieces of fruit in an 8-pound sample for various size designations, and, thus, better meet buyer preferences.

The Committee unanimously recommended increasing the maximum number of fruit per 8-pound sample for sizes 42 through 25, eliminating size 21, and adding new sizes 20 and 23. These changes, as shown in the following chart, were implemented through an interim final rule (66 FR 1413, October 29, 2001), and finalized by a final rule (67 FR 11396, March 14, 2002). Changes are shown in bold.

This chart is commonly referred to as the “Size Designation Chart” in the industry. Increasing the maximum number of fruit per 8-pound sample allowed some smaller-sized fruit to be packed into a larger-size category. This change allowed one more piece of fruit to be packed per 8-pound sample in sizes 42 and 39, three more pieces of fruit to be packed in size 36, seven more pieces of fruit to be packed in size 33, and five more pieces of fruit to be packed in sizes 27/28 and 25.

Increasing the maximum number of fruit permitted per 8-pound samples during the 2001-02 season enabled handlers to better meet the needs of buyers, because kiwifruit sells by the piece, and buyers desire as much fruit in each container as the container can comfortably hold.

The changes to the size designation chart helped reduce the sizing differences between California and imported kiwifruit during the 2001-02 season and allowed more fruit to be sold. However, handlers found that adjustments were still needed in some of the size designations to bring them closer to imported fruit size designations and to allow more accurate sorting into the size categories with handler sizing equipment. Sizing equipment had difficulty during the 2001-02 season distinguishing between sizes.

At its April 9, 2002, meeting, the Committee unanimously recommended and the USDA approved increasing the maximum number of fruit per 8-pound sample for sizes 23, 30, and 36, and reducing the maximum number of fruit per 8-pound sample for size 42 (67 FR 54327, August 22, 2002). Size 23 was increased from 29 pieces of fruit per 8-pound sample to 30 pieces, size 30 was increased from 38 pieces of fruit per 8-pound sample to 39 pieces of fruit, size 36 was increased from 45 pieces of fruit per 8-pound sample to 46 pieces, and size 42 was decreased from 54 pieces of fruit per 8-pound sample to 53 pieces. These changes are shown in the following chart in bold.

The Committee believes that increasing the number of fruit permitted per 8-pound samples of sizes 23, 30, and 36, and decreasing the number of fruit in 8-pound samples for size 42 will result in more clearly defined size categories and allow sizing equipment to more uniformly separate fruit of different sizes. Additionally, these adjustments will make the four size designations more similar to those for imported fruit. This action will not affect import requirements.

The Committee discussed alternatives to these changes. It considered suspending the size designation chart to lower inspection costs and allow handlers to pack similar to imports. However, it did not adopt this option because it concluded inspection costs will not be significantly lowered and because a recent grower survey showed that uniform sizing is one of the most important issues to California kiwifruit growers.

Another suggestion presented was to leave the size designation chart unchanged. The Committee did not adopt this suggestion because it believes that handlers will benefit from the revised numerical counts for sizes 23, 30, 36, and 42.

After considering these alternatives, the Committee recommended and the USDA approved relaxing the pack requirements for three sizes and tightening the pack requirements for one size (67 FR 54327, August 22, 2002). Small and large growers and handlers are expected to benefit from these changes. A reasonable crop estimate for the 2002-03 season is 7.5 million tray equivalents. The average FOB value for the 2001-02 season is estimated to be $3.50 per tray equivalent. The Committee estimated that the changes to the numerical count for size designations 23, 30, 36, and 42 will increase the average FOB value for the 2002-03 season to $3.75 per tray equivalent. It is anticipated that the FOB value for the 2002-03 season will increase by $1,875,000 ($3.75 − $3.50 × 7,500,000 tray equivalents). This change will not affect the minimum size and will not allow fruit currently considered “undersized” to be shipped. These changes will not affect import requirements. These changes are expected to help handlers compete more effectively in the marketplace, better meet the needs of buyers, and to improve grower returns.

Prior to issuance of the interim final rule (67 FR 54327, August 22, 2002), § 920.303(d) required all exposed or outside containers of kiwifruit, but not less than 75 percent of the total containers on a pallet, to be plainly marked with the lot stamp number corresponding to the lot inspection conducted by an authorized inspector. It further required that individual consumer packages of kiwifruit placed directly on a pallet have all outside or exposed packages on a pallet plainly marked with the lot stamp number corresponding to the lot inspection conducted by an authorized inspector or have one inspection label placed on each side of the pallet. However, kiwifruit packed into individual consumer packages within a master container that are being directly loaded into a vehicle for export shipment under the supervision of the inspection service were exempted, and continue to be exempted, from the lot stamp number requirement. The lot stamp number is used by the inspection service to identify and locate the corresponding inspector's working papers or notes. Working papers are the documents each inspector completes while performing an inspection on a lot of kiwifruit and the information in the working papers is used by the inspector to determine the grade of the inspected lot.

During the 2001 season, the kiwifruit industry began using plastic containers of various dimensions that can hold either bulk or tray packed kiwifruit. Some of these containers are reusable. Kiwifruit packed in reusable plastic containers (RPCs) is typically delivered to the retailer where the containers are emptied and returned to a clearinghouse for cleaning and redistribution. As RPCs do not support markings that are permanently affixed to the container, all markings must be printed on cards, which slip into tabs on the front or sides of the containers. The cards are easily inserted and removed and further contribute to the efficient use of the container. Because of their unique portability, the industry and inspection service are concerned that the cards on pallets of inspected containers could easily be moved to pallets of uninspected containers, enabling a handler to avoid inspection on a lot or lots of kiwifruit.

The industry experimented last season with round adhesive labels on RPCs. The lot stamp number was stamped on the round adhesive label and placed on the RPCs; however, manufacturers found that it was difficult to remove the adhesive label in the wash cycle. Additionally, handlers found that increased labor was needed to affix the adhesive labels and lot stamp number to the plastic containers. Handler members calculated that affixing adhesive labels to RPCs and one-way plastic containers cost the kiwifruit industry approximately $0.10 per container in materials and labor. The inspection service and the Committee have presented their concerns to the manufacturers of these types of containers. One manufacturer has indicated a willingness to address the problem by offering an area on the principal display panel where the container markings will adhere to the plastic container. However, this change may not be feasible in the near future.

To address the additional time and cost of affixing adhesive labels to containers, the Committee unanimously recommended that handlers be allowed to use any method of PLI in accordance with Federal or Federal-State Inspection Service (inspection service) procedures. The Committee estimated that allowing handlers to use any method of PLI acceptable to the inspection service will reduce handler costs by $8,700, and will make handler operations more efficient. This action will not affect import requirements.

The Committee discussed alternatives to this change including not changing the lot stamp requirements for plastic containers. After considering this alternative, the Committee recommended and the USDA approved relaxing the container marking requirements provided that plastic containers meet any approved method of PLI (67 FR 54327, August 22, 2002). The Committee believes that handlers and growers will benefit from such a relaxation. This change is expected to help handlers compete more effectively in the marketplace and to improve grower returns, and will not affect import requirements.

Section 920.302(a)(4) of the order's administrative rules and regulations outlines pack requirements for fresh shipments of California kiwifruit.

Prior to issuance of the interim final rule (67 FR 54327, August 22, 2002), § 920.302(a)(4)(v) required all volume filled containers of kiwifruit designated by weight to hold 22-pounds (10-kilograms) net weight of kiwifruit unless such containers hold less than 10-pounds or more than 35-pounds net weight of kiwifruit.

In a volume filled container, fairly uniform size kiwifruit are loosely packed without cell compartments, cardboard fillers or molded trays. Handlers may ship volume filled containers marked by either the appropriate count or net weight of kiwifruit. Handler shipments are based upon the preference of the receiver.

In 1994, the Committee unanimously recommended, and USDA established standard packaging for certain volume filled containers packed by weight. At that time, 52 percent of the total crop was packed into volume filled containers. The percentage of the total crop packed into volume filled containers increased to 85 percent during the 2001-02 season. In 2001-02, imports from the Northern Hemisphere (Greece, Italy, and France) totaled approximately 17 percent of the U.S. market share. The majority of imported kiwifruit was shipped in 19.8-pound (9-kilogram) volume filled containers, whereas the order limits California handlers to 22-pound (10-kilogram) net weight volume filled containers. Retailers do not differentiate between an imported 19.8-pound (9-kilogram) and 22-pound (10-kilogram) net weight volume filled container from California. Because buyers pay the same price for each container, the effect is not favorable for California handlers.

Prior to publication of the interim final rule (67 FR 54237, August 22, 2002), § 920.302(a)(4)(v) required handlers to utilize a standard 22-pound (10-kilogram) net weight standard for packaging volume filled containers that were over 10-pounds or less than 35-pounds net weight. This restriction limited California kiwifruit handlers in meeting buyer's demands for other types of packaging.

Therefore, at its April 9, 2002, meeting, the Committee unanimously recommended and the USDA approved suspending the standard 22-pounds (10-kilograms) net weight packaging requirement for volume filled containers designated by weight for the 2002-03 season (67 FR 54327, August 22, 2002). The Committee expects that this suspension will enable California handlers to meet packaging demands of retailers for volume filled containers; make California kiwifruit more competitive with imports by allowing handlers to pack similar to imports; and reduce handlers' packaging costs. This change will not impact import requirements.

The Committee discussed alternatives at the April 9, 2002, meeting. One Committee member suggested leaving the standard packaging requirement unchanged. However, the Committee believes that relaxing the standard packaging requirement of 22-pounds (10-kilograms) net weight for volume filled containers designated by weight will allow handlers the flexibility to meet buyer container preferences and to increase sales.

The Committee considered other alternatives to revising packing and container requirements, but determined that these suggestions will not adequately address the industry problems.

Paragraphs (a) and (b) of § 920.60 authorize reporting requirements for kiwifruit handlers under the marketing order.

Section 920.160 requires each handler who ships kiwifruit to file a report of shipment and inventory data to the Committee no later than the fifth day of the month following such shipment. Handlers who ship less than 10,000 trays or the equivalent thereof, per fiscal year, and who have qualified with the Committee are only required to furnish such report of shipment and inventory data twice each year. Prior to publication of the interim final rule (67 FR 54327, August 22, 2002), paragraphs (a)(1) through (a)(6) of § 920.160 specified the types of information to be provided on the shipment report. Paragraph (a)(4) required handlers to report inventory at the end of the reporting period by container; paragraph (a)(5) required handlers to report the amount of kiwifruit lost in repack; and paragraph (a)(6) required handlers to report the amount of fruit set aside for processing.

The Committee had not been collecting this information from handlers since the early 1990's. Therefore, the Committee unanimously recommended removing these obsolete reporting requirements from § 920.160 of the order's rules and regulations at the April 9, 2002, meeting. It is estimated that the handler burden will not be impacted, as the current shipment report form approved by the Office of Management and Budget (OMB) under OMB No. 0581-0189 does not contain these data elements.

This rule will continue to relax pack and container requirements under the kiwifruit order. Accordingly, this action will not impose any additional reporting or recordkeeping requirements on either small or large kiwifruit handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sectors.

In addition, as noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

Further, the Committee's meeting was widely publicized throughout the kiwifruit industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the April 9, 2002, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue.

An interim final rule concerning this action was published in the Federal Register on August 22, 2002. Copies of the rule were mailed by the Committee Staff to all Committee members and kiwifruit handlers. In addition, the rule was made available through the Internet by the Office of the Federal Register and USDA. The rule provided for a 60-day comment period which ended October 21, 2002. No comments were received.

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

After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that finalizing the interim final rule, without change, as published in the Federal Register (67 FR 54327, August 22, 2002) will tend to effectuate the declared policy of the Act.

This rule is issued under Marketing Agreement and Order No. 984 both as amended, (7 CFR part 984), regulating the handling of walnuts grown in California, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California walnut handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable walnuts beginning on August 1, 2002, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, 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 decreases the assessment rate established for the Board for the 2002-03 and subsequent marketing years from $0.0124 to $0.0120 per kernelweight pound of assessable walnuts.

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

For the 2001-02 and subsequent marketing years, the Board recommended, and USDA approved, an assessment rate of $0.0124 per kernelweight pound of assessable walnuts that would continue in effect from year to year unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Board or other information available to USDA.

The Board met on September 13, 2002, and unanimously recommended 2002-03 expenditures of $2,970,000 and an assessment rate of $0.0120 per kernelweight pound of assessable walnuts. In comparison, last year's budgeted expenditures were $3,124,800. The recommended assessment rate is $0.0004 lower than the $0.0124 rate currently in effect. The lower assessment rate is necessary because this year's crop is estimated by the California Agricultural Statistics Service (CASS) to be 275,000 tons (247,500,000 kernelweight pounds merchantable), and the budget is about 5 percent less than last year's budget. Thus, sufficient income should be generated at the lower rate for the Board to meet its anticipated expenses.

Major categories in the budget recommended by the Board for the 2002-03 year include $2,438,403 for program expenses, including marketing and production research projects, $333,100 for employee expenses such as administrative and office salaries, payroll tax and benefits, $80,500 for office expenses, $79,500 for other operating expenses, and $38,497 as a reserve for a contingency. Budgeted expenses for these items in 2001-02 were $2,566,569 for program expenses including marketing and production research projects, $313,200 for employee expenses, $130,600 for office expenses, $76,000 for other operating expenses, and $38,431 as a reserve for a contingency, respectively.

The assessment rate recommended by the Board was derived by dividing anticipated expenses by expected shipments of California walnuts certified as merchantable. Merchantable shipments for the year are estimated at 247,500,000 kernelweight pounds which should provide $2,970,000 in assessment income and allow the Board to cover its expenses. Unexpended funds may be used temporarily to defray expenses of the subsequent marketing year, but must be made available to the handlers from whom collected within 5 months after the end of the year, according to § 984.69.

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

Although this assessment rate is effective for an indefinite period, the Board will continue to meet prior to or during each marketing year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Board meetings are available from the Board or USDA. Board meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Board recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Board's 2002-03 budget and those for subsequent marketing years will be reviewed and, as appropriate, approved by USDA.

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

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

There are approximately 5,800 producers of walnuts in the production area and about 43 handlers subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those having annual receipts of less than $5,000,000.

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

This rule decreases the assessment rate established for the Board and collected from handlers for the 2002-03 and subsequent marketing years from $0.0124 to $0.0120 per kernelweight pound of assessable walnuts. The Board unanimously recommended 2002-03 expenditures of $2,970,000. The decreased assessment rate should generate sufficient income to meet the Board's 2002-03 anticipated expenses. The lower assessment rate is due to a reduced budget that is about 5 percent less than last year's budget.

Major categories in the budget recommended by the Board for the 2002-03 year include $2,438,403 for program expenses, including marketing and production research projects, $333,100 for employee expenses such as administrative and office salaries, payroll tax and benefits, $80,500 for office expenses, $79,500 for other operating expenses, and $38,497 as a reserve for a contingency. Budgeted expenses for these items in 2001-02 were $2,566,569 for program expenses including marketing and production research projects, $313,200 for employee expenses, $130,600 for office expenses, $76,000 for other operating expenses, and $38,431 as a reserve for a contingency, respectively.

Prior to arriving at this budget, the Board considered information from various sources, such as the Board's Budget and Personnel Committee, Research Committee, and Marketing Development Committee. Alternative expenditure levels were discussed by these groups, based upon the relative value of various research projects to the walnut industry. The recommended $0.0120 per kernelweight pound assessment rate was then determined by dividing the total recommended budget by the 247,500,000 kernelweight pound estimate of assessable walnuts for the year. Unexpended funds may be used temporarily to defray expenses of the subsequent marketing year, but must be made available to the handlers from whom collected within 5 months after the end of the year according to § 984.69.

A review of historical information and preliminary information pertaining to the current marketing year indicates that the grower price for 2002-03 could range between $0.50 and $0.70 per kernelweight pound of assessable walnuts. Therefore, the estimated assessment revenue for the 2002-03 year as a percentage of total grower revenue could range between 1.7 and 2.5 percent.

This action decreases the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In addition, the Board's meeting was widely publicized throughout the walnut industry and all interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, the September 13, 2002 meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

This action imposes no additional reporting or recordkeeping requirements on either small or large California walnut handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

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

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

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The 2002-03 marketing year began on August 1, 2002, and the order requires that the rate of assessment for each marketing year apply to all merchantable walnuts handled during the year; (2) this action decreases the assessment rate for merchantable California walnuts; (3) handlers are aware of this action which was unanimously recommended by the Board at a public meeting and is similar to other assessment rate actions issued in past years; and (4) this interim final rule provides a 60-day comment period, and all comments timely received will be considered prior to finalization of this rule.

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

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California dried prune handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable dried prunes beginning on August 1, 2002, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

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

This rule continues to decrease the assessment rate established for the Committee for the 2002-03 and subsequent crop years from $2.80 per ton to $2.60 per ton of salable dried prunes.

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

For the 2001-02 and subsequent crop years, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from crop year to crop year unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met on June 27, 2002, and unanimously recommended 2002-03 expenditures of $386,880 and an assessment rate of $2.60 per ton of salable dried prunes. In comparison, last year's budgeted expenditures were $384,370. The assessment rate of $2.60 per ton is $0.20 lower than the rate currently in effect. The $0.20 per ton decrease in the assessment rate will allow the Committee to meet its 2002-03 expenses. The Committee was able to recommend a lower assessment rate this year because salable prune production this year is expected to be 148,800 tons, 16,750 tons higher than production last year. Although 2002-03 recommended expenses are slightly higher than 2001-02 expenses, an assessment rate of $2.60 per ton will provide sufficient funds for Committee operations this year.

The following table compares major budget expenditures recommended by the Committee on June 27, 2002, and major budget expenditures in the revised 2001-02 budget.

The assessment rate recommended by the Committee was derived by dividing anticipated expenses by the estimated salable tons of California dried prunes. Production of dried prunes for the year is estimated at 148,800 salable tons, which should provide $386,880 in assessment income. Income derived from handler assessments will be adequate to cover budgeted expenses. Interest income also will be available if assessment income is reduced for some reason. The Committee is authorized to use excess assessment funds from the 2001-02 crop year (currently estimated at $76,878) for up to 5 months beyond the end of the crop year to meet 2001-02 crop year expenses. At the end of the 5 months, the Committee refunds or credits excess funds to handlers (§ 993.81(c)).

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

Although this assessment rate is effective for an indefinite period, the Committee will continue to meet prior to or during each crop year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2002-03 budget and those for subsequent crop years will be reviewed and, as appropriate, approved by USDA.

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

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

There are approximately 1,205 producers of dried prunes in the production area and approximately 24 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.

An updated prune industry profile shows that 9 of the 24 handlers (37.5%) shipped over $5,000,000 of dried prunes and could be considered large handlers by the Small Business Administration. Fifteen of the 24 handlers (62.5%) shipped under $5,000,000 of dried prunes and could be considered small handlers. An estimated 32 producers, or less than 3% of the 1,205 total producers, will be considered large growers with annual income over $500,000. The majority of handlers and producers of California dried prunes may be classified as small entities.

This rule continues to decrease the assessment rate established for the Committee and collected from handlers for the 2002-03 and subsequent crop years from $2.80 per ton to $2.60 per ton of salable dried prunes. The Committee unanimously recommended 2002-03 expenditures of $386,880 and an assessment rate of $2.60 per ton of salable dried prunes. The assessment rate is $0.20 lower than the previous rate. The quantity of assessable dried prunes for the 2002-03 crop year is now estimated at 148,800 salable tons. Thus, the $2.60 rate should provide $386,880 in assessment income and be adequate to meet this year's expenses. Interest income also will be available to cover budgeted expenses if the 2002-03 expected assessment income falls short.

The following table compares major budget expenditures recommended by the Committee on June 27, 2002, and major budget expenditures in the revised 2001-02 budget.

The Committee reviewed and unanimously recommended 2002-03 expenditures of $386,880. Prior to arriving at this budget, the Committee considered information from various sources, such as the Committee's Executive Subcommittee. An alternative to this action would be to continue with the $2.80 per ton assessment rate, but the anticipated larger crop, with an assessment rate of $2.80 per ton, would generate monies in excess of that needed to fund all the budget items. The assessment rate of $2.60 per ton of salable dried prunes was determined by dividing the total recommended budget by the estimated salable dried prunes. The Committee is authorized to use excess assessment funds from the 2001-02 crop year (currently estimated at $76,878) for up to 5 months beyond the end of the crop year to fund 2002-03 crop year expenses. At the end of the 5 months, the Committee refunds or credits excess funds to handlers (§ 993.81(c)). Anticipated assessment income and interest income during 2002-03 will be adequate to cover authorized expenses.

The grower price for the 2002-03 season is expected to average above the estimated 2001-02 average grower price of about $750 per salable ton of dried prunes. Based on estimated shipments of 148,800 salable tons, assessment revenue during the 2002-03 crop year is expected to be less than 1 percent of the total expected grower revenue.

This action continues to decrease the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In addition, the Committee's meeting was widely publicized throughout the California dried prune industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the June 27, 2002, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

This action imposes no additional reporting or recordkeeping requirements on either small or large California dried prune handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

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

An interim final rule concerning this action was published in the Federal Register on August 15, 2002 (67 FR 53293). Copies of that rule were also mailed or sent via facsimile to all prune handlers. Finally, the interim final rule was made available through the Internet by the Office of the Federal Register and USDA. A 60-day comment period was provided for interested persons to respond to the interim final rule. The comment period ended on October 15, 2002, and no comments were received.

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

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

This 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 (OMB).

This rule is excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require consultation with State and local officials. See the final rule related notice entitled “Department Programs and Activities Excluded from Executive Order 12372,” (50 FR 47034) advising that RUS loans and loan guarantees were not covered by Executive Order 12372.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. RUS has determined that this rule meets the applicable standards provided in section 3 of the Executive Order. In addition, all state and local laws and regulations that are in conflict with this rule will be preempted; no retroactive effect will be given to this rule; and, in accordance with section 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6912(e)) administrative appeal procedures, if any are required, must be exhausted before an action against the Department or its agencies.

It has been determined that the Regulatory Flexibility Act is not applicable to this rule since the Rural Utilities Service is not required by 5 U.S.C. 551 et seq. or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule.

The Administrator of RUS has determined that this rule will not significantly affect the quality of the human environment as defined by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ). Therefore, this action does not require an environmental impact statement or assessment.

The program described by this rule is listed in the Catalog of Federal Domestic Assistance programs under No. 10.850, Rural Electrification Loans and Loan Guarantees. This catalog is available on a subscription basis from the Superintendent of Documents, the United States Government Printing Office, Washington, DC 20402-9325, telephone number (202) 512-1800.

This rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).

This rule contains no Federal mandates (under the regulatory provision of title II of the Unfunded Mandates Reform Act) for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act.

The Rural Utilities Service (RUS) is removing from part 1710 of its regulations entitled “General and Pre-Loan Policies and Procedures” subpart H thereof, which separately treats demand side management and renewable energy systems. Subpart H has seldom been used. Since it was first promulgated in 1994, RUS has averaged less than one of these loans a year. More recently, changes in the energy industry and technological advances have produced increased interest in utilizing these approaches for smaller scaled projects and projects employing innovative technologies. However, subpart H with its requirements for such things as integrated resource plans (IRP's) and demand side management plans present formidable barriers for the development of smaller projects. Furthermore, the usefulness of such traditional analytical devices in today's radically changed energy industry has become questionable. In addition, projects of this sort often possess unique attributes that make the application of detailed regulations impractical and sometimes even counterproductive. For example, subpart H precludes the use of innovative technologies. See 7 CFR 1710.351(a) and 1710.353. For all of these reasons, RUS believes that subpart H has become unjustified and unnecessary as a result of changed circumstances and should be removed or substantially revised.

After considering the low volume of loan requests RUS receives annually for these loans, the disparate nature of the projects that can be characterized as demand side management or renewable energy systems, and the rapidly evolving nature of this industry, RUS has determined that the removal of subpart H is the better alternative. Accordingly, RUS will proceed case-by-case in considering requests for demand side management and renewable energy system loans.

RUS expects that utility scale projects will continue to conform to the remaining provisions of part 1710 establishing its general and pre-loan policies and procedures. RUS recognizes that the particular circumstances of an individual project may necessitate adjustments in the application or interpretation of its general polices and procedures to specific demand side management or renewable energy systems loans regardless of scale. The Administrator may, of course, waive or reduce any requirement imposed by part 1710 by resorting to the exception authority contained in the rule itself. See 7 CFR 1710.4. In light of their rarity so far, RUS anticipates that it may be necessary to interpret the application of part 1710 to utility scale demand side management and renewable energy system loans on a somewhat frequent basis at first. RUS will treat small-scale projects as pilot projects for which the remainder of part 1710 will serve merely as guidance. As used in this rule, “small scale project” refers to projects requesting loans less than $5 million or generating less than 10 MW (nameplate rating). “Utility scale project” refers to everything else.

As RUS acquires greater experience with loans for demand side management and renewable energy systems, it may reissue regulations on this subject in the event that the volume of loans requests or the number of recurring issues raised warrant it. Accordingly, subpart H is being reserved.

A proposed rule was issued April 25, 2001, at 66 FR 20759, inviting comments this action. The comment period for this proposed rule ended May 25, 2001. Only one comment was received. The Regulatory Flexibility Act Certification discussion has been modified in the Supplementary Information section of this final rule to respond to the comment. No changes where made to the text of the rule from that as proposed.

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

This rule is excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require consultation with State and local officials. See the final rule related notice titled “Department Programs and Activities Excluded from Executive Order 12372” (50 FR 47034) advising that RUS loans and loan guarantees from coverage were not covered by Executive Order 12372.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. RUS has determined that this rule meets the applicable standards provided in section 3 of the Executive Order. In addition, all state and local laws and regulations that are in conflict with this rule will be preempted; no retroactive effect will be given to this rule, and, in accordance with section 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6912(e)), administrative appeals procedures, if any are required, must be exhausted before and action against the Department or its agencies.

It has been determined that the Regulatory Flexibility Act is not applicable to this rule since the Rural Utilities Service is not required by 5 U.S.C. 551 et seq. or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule.

This rule contains no additional information collection or recordkeeping requirements under OMB control number 0572-0032 that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).

This rule contains no Federal mandates (under the regulatory provision of title II of the Unfunded Mandates Reform Act) for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act.

The Administrator of RUS has determined that this rule will not significantly affect the quality of human environment as defined by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ). Therefore, this action does not require an environmental impact statement or assessment.

The program described by this rule is listed in the Catalog of Federal Domestic Assistance Programs under No. 10.850, Rural Electrification Loans and Loan Guarantees. This catalog is available on a subscription basis from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9325, telephone number (202) 512-1800.

On May 24, 2002, at 67 FR 101, RUS published a proposed rule, 7 CFR Part 1710 and 1717, Exceptions of RUS Operational Controls Under Section 306E of the RE Act, which proposed the elimination of 7 CFR 1710.7. RUS currently treats the general subject of operational controls for recipients of electric loans and guarantees in three separate places, namely in RUS loan documents, in 7 CFR part 1717, subpart M, and in 7 CFR 1710.7. In the interest of eliminating confusion and to continue in its ongoing program to streamline RUS regulations, RUS will eliminate 7 CFR 1710.7.

Written comments were received June 24, 2002, from Tex-LA Electric Cooperative of Texas, Inc., Northeast Texas Electric Cooperative, Inc, and Sam Rayburn G&T Electric Cooperative, Inc., on behalf of themselves and their respective member distribution cooperatives. The three cooperatives support the removal of 7 CFR 1710.7 and provided additional comments on regulations not covered in this rulemaking. Specifically the cooperatives ask that more precise reference be made throughout the regulations when the phrase “other RUS regulations” is used as reference. The three cooperatives also ask that RUS take the opportunity to correct a typographical error found in 7 CFR 1717.615 (f)(2). RUS agrees with the comments made by the three cooperatives that whenever possible, precise reference to other sections of the regulations should be made instead of a more general statement and will continue to make rules with clear reference to other sections of its regulations as appropriate. RUS will also take this opportunity to correct the typographical error that was identified.

In this rulemaking, as presented in the proposed rule, it appears that 7 CFR 1710.7 has become an anachronism because the subsequent promulgation of new loan documents and subpart M effectively conferred the benefits of 7 CFR 1710.7 to all borrowers. Borrowers who are relying on subpart M are encouraged to switch to the new forms of loan documents so that subpart M itself can eventually be removed at a later date once the universe of legacy borrowers has sufficiently contracted to the point that any remaining legacy borrowers could be dealt with either informally or on a case-by-case basis. RUS does not believe this action will diminish or abrogate any rights or privileges conferred upon 110 percent borrowers by section 306e of the RE Act, and no such consequences are intended.

Background

Federal Register Document 02-27176 published on Friday, October 25, 2002, (67 FR 65498) modifies Class D and Class E airspace at Knob Noster, Whiteman AFB, MO.

Accordingly, pursuant to the authority delegated to me, the effective date of the modification of Class D and Class E airspace, Knob Noster, Whiteman AFB, MO, as published in the Federal Register Friday, October 25, 2002, (67 FR 65498), (FR Doc. 02-27176), is corrected as follows:

The Twinkletown Airport, within the Memphis, TN, Class E5 airspace area, has closed. Therefore, the Memphis, TN, Class E5 legal description must be amended to reflect the closure. This amendment will become effective on the date specified in the DATE section. Since this action has no impact on the users of the airspace in the vicinity of the Memphis, TN, Class E5 airspace area, notice and public procedure under 5 U.S.C. 553(b) are unnecessary. Designations for Class E are published in FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR part 71.1. The Class E designations listed in this document will be published subsequently in the Order.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) amends Class E5 airspace at Memphis, TN.

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

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation Regulations (FAR). The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, and 8260-5. Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form document is unnecessary. The provisions of this amendment state the affected CFR (and FAR) sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to part 97 is effective upon publication of each separate SIAP as contained in the transmittal. Some SIAP amendments may have been previously issued by the FAA in a National Flight Data Center (NFDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP amendments may require making them effective in less than 30 days. For the remaining SIAPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in the appropriate FAA Form 8260 and the National Flight Data Center (FDC)/Permanent (P) Notices to Airmen (NOTAM) which are incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation's Regulations (FAR). Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction of charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form document is unnecessary. The provisions of this amendment state the affected CFR (and FAR) sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes SIAPs. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained in the content of the following FDC/P NOTAMs for each SIAP. The SIAP information in some previously designed FDC/Temporary (FDC/T) NOTAMs is of such duration as to be permanent. With conversion to FDC/P NOTAMs, the respective FDC/T NOTAMs have been canceled.

The FDC/P NOTAMs for the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these chart changes to SIAPs by FDC/P NOTAMs, the TERPS criteria were applied to only these specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a National Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Further, the SIAPs contained in this amendment are based on the criteria contained in the TERPS. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This document corrects two errors in the List of Items Controlled sections for Export Controlled Classification Numbers (ECCNs) 9B115 and 9B116, which were revised in a final rule that was published by the Bureau of Industry and Security (BIS) on September 18, 2002 (67 FR 58691).

The SUPPLEMENTARY INFORMATION section of the September 18, 2002 rule stated that BIS was revising the headings for ECCNs 9B115 and 9B116 and adding a List of Items Controlled section to those ECCNs to clarify that all missile technology production equipment and facilities are subject to the Export Administration Regulations (EAR) and controlled on the Commerce Control List (CCL). The September 18, 2002 rule inadvertently omitted ECCN 9A011 from the List of Items Controlled sections of ECCNs 9B115 and 9B116, although it appears in the headings of those ECCNs. This document corrects that oversight.

In addition, this rule corrects for an inadvertent omission by adding the “Related Definitions” paragraph for these respective ECCNs.

1. This final rule has been determined to be not significant for purposes of E.O. 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid Office of Management and Budget Control Number. This rule involves a collection of information subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq. ). This collection has been approved by the Office of Management and Budget under control number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 45 minutes for a manual submission and 40 minutes for an electronic submission.

3. This rule does not contain policies with Federalism implications as this term is defined under E.O. 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this interim rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable. Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to Matthew Blaskovich, Office of Exporter Services, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044, or mblaskov@bis.doc.gov. Accordingly, in the final rule FR Doc. 02-23716 (Doc. 020830206-2206-01) published at 67 FR 58691, make the following corrections:

Document Availability :

In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's home page ( http://www.ferc.gov ) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.

From FERC's home page on the Internet, this information is available in the Federal Energy Regulatory Records Information System (FERRIS). The full text of this document is available on FERRIS in PDF and WordPerfect format for viewing, printing, and/or downloading. To access this document in FERRIS, type the docket number excluding the last three digits of this document in the docket number field.

User assistance is available for FERRIS and the FERC Web site during normal business hours from our Help line at (202) 502-8222 or the Public Reference Room at (202) 502-8371 Press 0, TTY (202) 502-8659. E-mail the Public Reference Room at public.referenceroom@ferc.gov.

The Commission has concluded, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB that this rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C 804(2).

This document, the final rule, the NPRM, and all comments received may be viewed online through the Document Management System (DMS) at: http:// dms.dot.gov . The DMS is available 24 hours each day, 365 days each year. Electronic submission and retrieval help and guidelines are available under the help section of the web site.

An electronic copy of this document may also be downloaded by using a computer, modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may also reach the Office of the Federal Register's home page at: http://www.archives.gov and the Government Printing Office's web page at: http://www.access.gpo.gov .

The final rule on Traffic Control Devices on Federal-Aid and Other Streets and Highways; Color Specifications for Retroreflective Sign and Pavement Marking Materials, was published in the Federal Register on July 31, 2002, at 67 FR 49569. This final rule went into effect on August 30, 2002. In response to the final rule, we received 17 comments to the docket. These comments are discussed below.

Several docket comments to the Notice of Proposed Amendment, published in the Federal Register on December 21, 1999, stated that the FHWA did not specify if the specifications were for “service life” or new product installation. As a result of these comments, the FHWA published the final rule inserting “service life” of the product without providing further justification. The FHWA received 17 comments submitted to the docket as a result of the final rule (9 from State and local DOTs; 2 from industry; 3 from associations; 3 from other individuals). The FHWA received significant comments from the American Association of State Highway and Transportation Officials (ASSHTO), the National Association of County Engineers (NACE), the National Committee on Uniform Traffic Control Devices Markings Technical Subcommittee, and several State and local highway agencies that objected to the FHWA inserting the language “service life” into the final rule. These commenters stated that the FHWA did not provide sufficient research results or further justification for such a requirement. Additionally, these commenters did not believe there was sufficient opportunity for public comment before the FHWA adopted this requirement.

These commenters went on to indicate that traditionally, color specifications are considered as initial values only and are used only in the acceptance of new materials. By specifically stating that the color specifications apply throughout the service life of signs and markings, these commenters believe that the FHWA has significantly changed the traditional application of color specifications and placed additional burden on transportation agencies.

The FHWA believes these comments received after publication of the final rule have merit and warrant immediate correction to the final rule. The FHWA made some initial assumptions about maintenance of traffic control devices and was not fully aware of the economic impact that the State and local jurisdictions may face. We agree that this “service life” requirement, without an extended phase-in compliance period, may have an unknown economic impact on compliance with these specifications. Therefore, the FHWA is removing this language from the appendix to subpart F of Part 655.

Furthermore, the FHWA plans to undertake a study on color fastness testing, to include weathering studies, and human factors studies related to color recognition by motorists. The FHWA anticipates that this will be a multi-year research effort.

The Reflexite Corporation advised the FHWA of a typographical error in table 2 to the appendix to part 655, subpart F—Nighttime Color Specification Limits for Retroreflective Material with CIE 2° Standard Observer and Observation Angle of 0.33°, Entrance Angle of +5° and CIE Standard Illuminant A. The first value for the color blue was mistakenly typed incorrectly while the table was being reformatted from the notice of proposed rulemaking (NPRM).

Therefore, the FHWA is correcting the typographical error. The first “x” coordinate value for the color “blue” is corrected to read “0.033” instead of “0.33”. The value “0.033” was correctly stated in the NPRM.

We also received a comment from the Virginia Department of Transportation (VDOT) regarding the use of Color Tolerance Charts as a valid source for daytime color measurement. The VDOT believes that the color tolerance charts for assessing nighttime color is not appropriate as the traditional highway color charts were developed for painted signs with button copy legend and thus are not even suitable for daytime color retroreflective materials.

The FHWA will have to address this issue through a separate rulemaking to solicit public comment.

The FHWA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866 or significant within the meaning of the U.S. Department of Transportation regulatory policies and procedures. The amendment of the final rule is considered a ministerial correction with no economic impact expected.

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), the FHWA has evaluated the effects of this action on small entities and has determined that this action will not have a significant economic impact on a substantial number of small entities. As stated above, the removal of the language “service life” will alleviate the concerns surrounding the unknown economic impact on complying with this requirement. The minor correction to the first value of the color blue in Table 2 is considered editorial in nature. For these reasons, the FHWA certifies that this action will not have a significant economic impact on a substantial number of small entities.

This rule will not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (2 U.S.C. 1531 et seq ).

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

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

We have analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or safety that may disproportionately affect children.

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999, and the FHWA has determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism assessment. The FHWA has also determined that this action will not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq. ), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that this action does not contain collection of information requirements for the purposes of the PRA.

The FHWA has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and has determined that this action will not have any effect on the quality of the environment.

The FHWA has analyzed this action under Executive Order 13175, dated November 6, 2000, and believes that it will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal law. Therefore, a tribal summary impact statement is not required.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a significant energy action under that order because it is not a significant regulatory action under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects under Executive Order 13211 is not required.

A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

Design standards, Grant programs-transportation, Highways and roads, Incorporation by reference, Signs, Traffic regulations.

On September 24, 2002 (67 FR 59798) a proposed rule was published in the Federal Register with an invitation to comment. No comments were received.

This order relates to individuals rather than small business entities. Nevertheless, pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, this order will not have a significant economic impact on a substantial number of small entities.

This part establishes policy, assigns responsibilities, and prescribes procedures for attorneys practicing law under the supervision of the Judge Advocate General (JAG) for relations with non-DOD civilian counsel, petitions for outside law practice of naval service attorneys, and a description of the complaint processing procedure. This part ensures that attorneys practicing law under the supervision of the JAG will be provided with rules of professional conduct with which they must comply in order to remain in “good standing.”

Although the rules of professional conduct do not apply to non-lawyers, they do define the type of ethic conduct that the public and the military community have a right to expect not only of lawyers but also of their non-lawyer employees. It has been determined that invitation of public comment on these changes to the JAG's Instruction prior to adoption would be impractical and unnecessary, and is therefore not required under the public rule-making provisions of 32 CFR parts 336 and 701. However, interested persons are invited to comment in writing. Written comments received will be considered in making amendments or revisions to 32 CFR 776 or the JAG Instruction 5803.1 series upon which it is derived. It has been determined that this final rule is not a major rule within the criteria specified in Executive Order 12291 and does not have substantial impact on the public. This submission is a statement of policy and as such can be effective upon publication in the Federal Register .

This rule does not meet the definition of “significant regulatory action” for purposes of E.O. 12866.

This rule will not have a significant economic impact on a substantial number of small entities for purposes of the Regulatory Flexibility Act (5 U.S.C. chapter 6).

This rule does not impose collection of information requirements for purposes of the Paperwork Reduction Act (44 U.S.C. chapter 35, 5 CFR part 1320).

The existing regulations in 33 CFR 117.915(a) govern the operation of the US17 highway bridges across the Ashley River. Those regulations require the bridges to open on signal; except that from 7 a.m. to 9 a.m., Monday through Friday and from 4 p.m. to 7 p.m. daily, the draws need only open if at least 12 hours notice is given. The draws of either bridge shall open as soon as possible for the passage of vessels in an emergency involving danger to life or property.

The US17 bridges across the Ashley River, miles 2.4 and 2.5, are both twin double-leaf bascule bridges with vertical clearances of 14 feet at mean high water and horizontal clearances of 100 feet between the fenders. On July 8, 2002, the Industrial Company (TLC), representing the South Carolina Department of Transportation, requested a temporary deviation from the existing regulations governing the US17 bridges to facilitate repairs to the bridge structures. The Industrial Company requested permission to be able to keep one span of each bridge in the closed position for a period to facilitate repairs. This temporary deviation allows the US17 bridges to only open a single leaf of each bridge from 7 a.m. on November 8, 2002 until 7 p.m. on December 30, 2002. The single leaf openings will still provide a horizontal clearance of 50 feet. The Coast Guard is unaware of any vessel that will be unable to pass through this 50-foot horizontal clearance.

The Commander, Seventh Coast Guard District has granted a temporary deviation from the operating requirements listed in 33 CFR 117.915(a) to allow the US17 bridges to only open a single leaf of each bridge from 7 a.m. on November 8, 2002 until 7 p.m. on December 30, 2002.

Periodically, catastrophic events such as severe drought conditions, insect and disease outbreaks, wildfires, floods, and windthrow occur on forested lands within, or near, National Forest System (NFS) lands. As a result of such catastrophic events, substantial amounts of private and other public timber may be severely damaged. This damaged timber must be harvested within a relatively short time period to avoid substantial losses in both the quantity and quality of the timber due to deterioration. The critical time period available for harvesting this damaged timber and avoiding substantial deterioration varies with the season of the year, the species of timber, the damaging agent, and the location of the damaged timber. In most cases, substantial deterioration can be avoided if the damaged timber is harvested within 1 year of the catastrophic event. The number of wildfires and the extent of damage experienced in the last few years has resulted in renewed requests by forest products companies and forest industry associations for the Forest Service to adjust its contracting procedures to support expeditious removal of damaged timber on non-National Forest System lands.

The National Forest Management Act of 1976 (16 U.S.C. 472a(c)) provides that timber sale contracts with an original term of 2 years or more may not be extended unless there is a finding that substantial overriding public interest justifies an extension. Section 223.115 of Title 36 of the Code of Federal Regulations delegates the authority to make extensions of timber sale contracts to Contracting Officers once a substantial overriding public interest finding has been made.

The Forest Service timber sale contract provides authority to allow additional contract time on undamaged (green) NFS timber sale contracts in order to harvest damaged timber outside the sale area on NFS lands. However, the Forest Service does not have the current authority to allow additional contract time on NFS timber sale contracts for the harvest of damaged timber from private or other non-National Forest System (non-NFS) lands.

When significant catastrophic events occur on non-NFS lands, timber sale purchasers often do not have the personnel, equipment, or mill capacity to take on new contracts. Thus, landowners who have suffered from catastrophic events may find themselves competing for available loggers, buyers, and mill capacity to get damaged timber removed before deterioration occurs. If a purchaser has an opportunity to contract for timber on non-NFS land that is now damaged and also holds an NFS timber sale contract for undamaged (green) timber, that purchaser may face three choices: (1) Declining to bid on the contract for harvest of damaged timber from non-NFS lands, and harvesting the NFS undamaged (green) timber contract, thus allowing the damaged non-NFS timber to deteriorate; (2) harvesting both the NFS undamaged (green) timber and the damaged non-NFS timber under the terms and deadlines of the applicable contracts; (3) or harvesting only the damaged, non-NFS timber and potentially breaching the NFS undamaged (green) timber sale contract. If a purchaser already has a non-NFS timber sale contract, which now must be operated more quickly than anticipated because of catastrophic damages, that purchaser also faces difficult and costly choices.

Even if the purchaser has personnel and equipment to handle NFS and non-NFS timber sale contracts, a purchaser may face significant additional costs arising from stockpiling the undamaged (green) NFS timber, if manufacturing capacity is not available. The additional costs incurred in this scenario include the cost of carrying inventories, logging expenses, stumpage payments, and other payments required under the NFS contract terms. If log-decking space is not available, stockpiling inventory may not be possible. If logging equipment is scarce, a purchaser may have little to no opportunity to remove the damaged non-NFS timber in a timely manner.

Damaged timber can provide a source of highly flammable fuel for future wildfires, with inherent risks to public safety and property as well as to resource values of any nearby NFS lands. Damaged timber also can provide a habitat conducive to the development of insect infestations and subsequent diseases that could threaten nearby undamaged (green) timber stands on private, NFS, or other public land.

The overriding public benefit and justification for extending certain NFS timber sale contracts to allow the harvest of damaged timber requiring expeditious removal from non-NFS lands is the improved protection of nearby NFS lands from loss due to fire and/or insect and disease outbreaks, reduction of the threat to public safety and property from such catastrophic events, and promotion of wise use and conservation of the natural resources of the Nation by utilizing rather than wasting damaged timber. In addition, expeditiously harvesting the damaged non-NFS timber before it deteriorates provides private and other public landowners direct economic benefits from the utilization of the resource through revenues received through sale of the timber and indirect benefits as a result of the employment generated by converting the raw salvage timber into marketable products.

Having considered (1) the plight of private and other non-NFS landowners whose timber has been damaged by wildfire and other catastrophes this year; (2) the Forest Service statutory and regulatory framework for adjusting contracts; (3) the need for purchasers to plan their operation and to enter into contracts for the timely removal of damaged timber, and (4) the ability to protect the U.S. taxpayer from any losses associated with Forest Service contract extensions or loss of valuable timber; the Chief of the Forest Service has found there is substantial overriding public interest in extending NFS timber sale contracts for the harvest of undamaged (green) timber not requiring expeditious removal, when such an extension will expedite the rapid harvest of damaged timber requiring expeditious removal from private or other non-NFS lands. Extensions of undamaged (green) NFS timber sale contracts will only be approved if the delay of harvesting will not cause resource damage, delay the completion of needed projects, delay the harvest of damaged NFS timber, or in any other manner adversely impact the management of National Forest System lands. Highest priority consideration will be given to requests for extensions that involve damaged non-NFS timber adjacent to National Forest System lands.

Section 223.53 Urgent Removal Extensions. This interim rule adds a new § 223.53. Paragraph (a) of this new section documents the Chief's finding that there is substantial, overriding public interest in extending NFS timber sale contracts to facilitate expeditious removal of timber on non-NFS lands damaged by a specific catastrophic event.

Paragraph (b) requires that the Regional Forester make a written determination on whether cause for an urgent removal extension exists. It also sets out the criteria that Regional Foresters must apply when making this determination. The rule provides that, in making this determination, the Regional Forester must document that the specific conditions, listed in paragraph (b), items 1 through 4, exist and that an extension of NFS timber sale contracts for the expeditious removal of damaged timber from non-NFS land is in the public interest.

Paragraph (c) lists the required documentation that purchasers must provide to the Contracting Officer when requesting urgent removal extensions of undamaged (green) NFS timber sale contracts to expedite salvage operations of catastrophically damaged timber on non-NFS lands. The agency has limited this information to only that essential to determine that expeditious removal is in the public interest. A full disclosure of the information required is set out later in this document under the heading “Controlling Paperwork Burdens on the Public.”

Paragraph (d) assigns Contracting Officers the authority to grant an urgent removal extension on an individual sale, up to a maximum of one year, for the purpose of expeditious removal of damaged non-NFS timber.

Paragraph (e) sets forth terms and conditions that must be included in a mutual contract modification before a Contracting Officer may grant an extension of an NFS timber sale contract. A formula is provided in this paragraph that must be used to determine the amount that purchasers must pay at the time of a contract modification in consideration for the additional contract term. This payment would be in keeping with the Comptroller General's long-standing rule that no officer or agent of the Government has the authority to waive contractual rights which have accrued to the United States or to modify existing contracts to the detriment of the Government without legal consideration (44 Comp. Gen. 746, 749 (1965); 5 Comp. Gen. 605 (1926)).

Purchasers are also required by paragraph (e) to make payment to cover the cost of re-marking timber, if necessary. Such a payment is consistent with the Comptroller General's rule requiring reimbursement to the Government for costs incurred if remarking of the timber or reestablishing cutting unit boundaries is required due to the extension. This payment is also a standard requirement for other NFS contract extensions under the terms of the timber sale contract (contract provision B/BT8.23).

Paragraph (f) states that the information purchasers are required to provide, as outlined in paragraph (c), constitutes a new information collection and cites the Office of Management and Budget's control number.

Section 223.50 Periodic Payments. Establishment of a contract extension for the purposes of expeditious removal at § 223.53 requires a conforming amendment to § 223.50. The interim rule revises paragraph (e) of this section to authorize adjustments of dates for determining future periodic payment date(s) when an urgent removal extension is granted under the new rule and when contract term extensions are granted under the general authority of § 223.115(b).

The current text, at § 223.50(e), provides for adjustment of future periodic payment determination dates when contract term adjustments are granted under § 223.46 or when market-related contract term additions are granted under § 223.52, but explicitly prohibits a similar adjustment when contract term extensions are granted under the general authority of § 223.115.

Therefore, the adjustment of periodic payment determination date(s) is necessary to allow purchasers to transfer their financial resources from an NFS contract to facilitate harvesting of non-NFS timber needing expeditious removal.

By adoption of this interim rule, the Chief of the Forest Service is making a finding that there is substantial overriding public interest in extending NFS timber sale contracts when such an extension will facilitate the expeditious removal of timber damaged by catastrophic events on non-NFS lands, thus reducing the threat to public safety and property and promoting the wise use and conservation of the Nation's natural resources. An urgent removal extension will not be approved for an NFS timber sale contract that contains dead or dying timber subject to rapid deterioration.

The 2002 fire season is on pace to be more damaging than that seen in 1988, 1994, and 2000. These fire seasons are considered to be some of the more noteworthy in modern times. Over 6.7 million acres have been burned this year, nearly doubling the 10-year average. Two-thirds of the acreage burned, 4.5 million acres, has been on private or other non-NFS lands. This interim rule is necessary because burned timber not harvested promptly will deteriorate and lose volume and value, making harvest and utilization of the damaged timber uneconomical. Without prompt removal of damaged timber, nearby NFS lands will be more likely to experience fire or insect and disease outbreaks, the threat to public safety and property from such catastrophic events will be higher, and affected landowners would not be able to achieve wise use and conservation of the natural resources on their lands. Further, without prompt harvest, private and other public landowners will be unable to obtain the economic benefits and revenues from the utilization of the resource and the public will lose the indirect benefits that will result from the employment generated by converting the raw salvage timber into marketable products.

This interim rule will assist timber sale purchasers who, with limited processing or manufacturing capacity or limited logging equipment capacity, must make immediate decisions on whether to meet their contract requirements by harvesting undamaged (green) NFS timber under contract or to purchase and harvest salvage timber burned during the summer of 2002 on private, tribal, State, or other Federal land. Under these circumstances, the Department has determined that prior notice and opportunity for public comment are not practicable and are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective immediately after publication in the Federal Register .

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

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

Moreover, this interim rule has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), and it has been determined that this rule will not have a significant economic impact on a substantial number of small entities. The interim rule imposes minimal additional requirements on all timber purchasers for the purpose of validating the need for such extensions and to determine whether or not to approve the requested extension. The information required is easily within the capability of small entities to produce. All businesses that desire an urgent removal extension must show that the extension is needed in order to harvest and salvage deteriorating non-NFS timber, while avoiding contract default on NFS timber.

This interim rule establishes uniform criteria to be followed when consideration is being given to extending an NFS timber sale contract because of the need for expeditious removal of damaged non-NFS timber. Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43180; September 18, 1992) excludes from documentation in an environmental assessment or impact statement “rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions” that do not significantly affect the quality of the human environment. The agency's preliminary assessment is that this rule falls within this category of actions and that no extraordinary circumstances exist which would require preparation of an environmental assessment or environmental impact statement. The intent of this interim rule is to provide authority to allow additional contract time on NFS timber sale contracts for the harvest of damaged timber from private or other non-NFS lands, thus saving valuable resources from deterioration. No change in resources on NFS land would occur from implementation of this rule except to defer operations on an NFS timber sale. A final determination will be made upon adoption of a final rule.

This interim rule represents a new information requirement as defined in 5 CFR Part 1320, Controlling Paperwork Burdens on the Public. In accordance with those rules and the Paperwork Reduction Act of 1995 as amended (44 U.S.C. 3501, et seq. ), the Forest Service has requested emergency approval from the Office of Management and Budget for this new information collection.

The information to be collected from purchasers applying for an urgent removal extension (para. c of § 223.53) is the minimum needed for the Contracting Officer to make an informed decision on whether good cause exists to grant an extension.

Title: Contract Extension Request to Harvest Damaged Non-National Forest System Timber.

OMB Number: 0596-0167.

Expiration Date of Approval: April 30, 2003.

Type of Request: The following collection requirements are new and have not previously received approval by the Office of Management and Budget.

Abstract: This collection requires a purchaser to provide information needed to grant an extension of NFS timber sale contracts to allow the harvest of damaged timber, located on private or other public lands, which is in need of expeditious removal because of catastrophic events beyond the control of the landowner. Catastrophic events, which may result in the need for expeditious removal of damaged timber, include, but are not limited to, severe wildfire, flood, insect and disease infestations, drought, and windthrow. Specifically, purchasers applying for an extension would be required to provide:

(1) An explanation of how the harvest of the damaged non-NFS timber in need of expeditious removal affects or prevents the removal of undamaged (green) NFS timber within the term of the existing NFS contract(s);

(2) Documentation that the manufacturing facilities or logging equipment capacity available to a purchaser would be insufficient to provide for both the rapid salvage of damaged non-NFS timber in need of expeditious removal and continued harvest of undamaged (green) NFS timber under contract with the Forest Service; and

(3) A notarized statement that the purchaser will not hold the Forest Service liable for any damages or lost time incurred on the non-NFS and NFS contracts in the event that a request for an extension is delayed or denied, or for any damages under NFS contracts due to delay, suspension, modification, or cancellation (in whole or in part) subsequent to or during the extension.

Estimate of Burden: The public reporting burden to provide information when requesting a timber sale contract extension is estimated to average 2 hours per response.

Respondents: Individuals, large and small businesses, and corporations purchasing NFS timber sales.

Estimated Number of Respondents: 25.

Estimated Number of Responses per Respondent: 1 response per year.

Estimated Total Annual Burden on Respondents: 50 hours.

Comments are Invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of this agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.

Use of Comments: All comments received in response to this information collection will be summarized and included in the request for final OMB approval. All comments, including names and addresses when provided, will become a matter of public record.

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, which the President signed into law on March 22, 1995, the Department has assessed the effects of this rule on State, local, and tribal governments and the private sector. This interim rule does not compel the expenditure of $100 million or more by any State, local, or tribal government or anyone in the private sector. Therefore, a statement under section 202 of the Act is not required.

The supplementary information is organized in the following order:

The EPA is providing notice that it has delegated authority for implementation and enforcement of the Federal standards shown in the tables below to the state and local air agencies in Region 7. This rule updates the delegation tables previously published at 66 FR 50110 (October 2, 2001). The EPA has established procedures by which these agencies are automatically delegated the authority to implement the standards when they adopt regulations which are identical to the Federal standards. We then periodically provide notice of the new and revised standards for which delegation has been given.

1. Section 111(c)(1) of the Clean Air Act (CAA) authorizes EPA to delegate authority to any state agency which submits adequate regulatory procedures for implementation and enforcement of the NSPS program. The NSPS standards are codified at 40 CFR part 60.

2. Section 112(l) of the CAA and 40 CFR part 63, subpart E, authorizes the EPA to delegate authority to any state or local agency which submits adequate regulatory procedures for implementation and enforcement of emission standards for hazardous air pollutants. The hazardous air pollutant standards are codified at 40 CFR parts 61 and 63, respectively.

Delegation confers primary responsibility for implementation and enforcement of the listed standards to the respective state and local air agencies. However, EPA also retains the authority to enforce the standards if it so desires.

Tables I, II, and III below list the delegated standards. The first date in each block is the reference date to the CFR contained in the state rule. In general, the state or local agency has adopted the applicable standard through this date as noted in the table. The second date is the most recent effective date of the state agency rule for which the EPA has granted the delegation.

1. The EPA regulations effective after the first date specified in each block have not been delegated, and authority for implementation of these regulations is retained solely by EPA.

2. In some cases, the standards themselves specify that specific provisions cannot be delegated. You should review the applicable standard for this information.

3. In some cases, the agency rules do not adopt the Federal standard in its entirety. Each agency rule (available from the respective agency) should be consulted for specific information.

4. In some cases, existing delegation agreements between the EPA and the agencies limit the scope of the delegated standards. Copies of delegation agreements are available from the state agencies, or from this office.

5. With respect to 40 CFR part 63, subpart A, General Provisions (see Table III), the EPA has determined that sections 63.6(g), 63.6(h)(9), 63.7(e)(2)(ii) and (f), 63.8(f), and 63.10(f) cannot be delegated. Additional information is contained in an EPA memorandum titled “Delegation of 40 CFR Part 63 General Provisions Authorities to State and Local Air Pollution Control Agencies' from John Seitz, Director, Office of Air Quality Planning and Standards, dated July 10, 1998.

All sources subject to the requirements of 40 CFR Parts 60, 61, and 63 are also subject to the equivalent requirements of the above-mentioned state or local agencies.

This notice informs the public of delegations to the above-mentioned agencies of the above-referenced Federal regulations.

To better assure comprehensive and consistent management of the agency's financial responsibilities and compliance with all Federal financial management requirements, including the Federal Debt Collection Act and implementing regulations adopted by the Department of Justice and the Department of Justice, the Federal Financial Management Improvement Act of 1996 (FFMIA), the Federal Managers Financial Integrity Act of 1982 (FMFIA), the Government Management Reform Act of 1994 (GRMA), the Information Technology Management Reform Act of 1996 (ITMRA), the Federal Credit Reform Act of 1990 (FCRA), the Federal Acquisition Regulation (FAR), and the Government Performance and Results Act of 1993, and others, the Commission thinks it necessary and prudent to involve the Office of the Managing Director in any such matters. The Commission's Managing Director currently has responsibility for overseeing Commission financial management activities, including compliance with the foregoing requirements, as well as the responsibility for advising the Commission on management implications of Commission and Bureau actions. See 47 CFR 0.11(a)(4), (8). As such, in this order, we amend section 0.5 of the Commission's rules, 47 CFR 0.5, to require any Bureau or Office recommending Commission action or taking action under delegated authority on any matter that may affect compliance with Federal financial management requirements to confer with the Office of the Managing Director. Upon forwarding any such item to the Commission the Office or Bureau must indicate the position of the Managing Director. The amended rule will not, however, affect the existing authority of the various Bureaus and Offices over substantive regulatory matters associated with their programs. See 47 CFR 0.11(a)(1)

The rule amendments adopted herein involve rules of agency organization, procedure, or practice, and the notice and comment and effective date provisions of the Administrative Procedure Act are therefore inapplicable. 5 U.S.C. 553(b)(A), (d).

Accordingly, it is ordered, that pursuant to sections 4(i), 4(j), 5(c), 303(r), 47 U.S.C. 4(i), 4(j), 5(c), 303(r), 47 CFR part 0 is amended as set forth below, effective November 21, 2002.

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-208, adopted November 7, 2002, and released November 15, 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, MB Docket No. 02-219, adopted November 7, 2002, and released November 15, 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. 00-125, adopted November 7, 2002, and released November 15, 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, MB Docket No. 02-221, adopted November 7, 2002, and released November 15, 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. 00-180, adopted November 14, 2002, and released November 20, 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 Nos. 01-263, 01-264, 01-265, 01-266, and 01-267, adopted October 16, 2002, and released October 25, 2002. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 445 12th Street, SW., Washington, DC. 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.

At the request of Jeraldine Anderson, Channel 226C2 is allotted at Aspermont, Texas, as the community's first local aural transmission service. Channel 226C2 is allotted at Aspermont with a site restriction of 6.7 kilometers (4.1 miles) at coordinates 33-11-27 NL and 100-14-50 WL.

At the request of Jeraldine Anderson, Channel 289A is allotted at Cotulla, Texas, as the community's second local aural service. Channel 289A is allotted at Cotulla with a site restriction of 5.0 kilometers (3.1 miles) southwest of the community at coordinates 28-24-57 NL and 99-16-49 WL. Mexican concurrence has been received for this allotment.

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

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

A final rule authorizing the unintentional take of small numbers of harbor seals ( Phoca vitulina ), gray seals ( Halichoerus grypus ), harp seals ( Phoca groenlandica ), and hooded seals ( Cystophora cristata ) incidental to the routine operation of the Seabrook Station nuclear power plant was issued for the North Atlantic Energy Services Corporation (NAESC) on May 25, 1999 (64 FR 28114). That final rule put in place the regulations found at § 216.132, which state that under a Letter of Authorization (LOA) the NAESC, specifically, may incidentally but not intentionally, take marine mammals in the course of operating the station's intake cooling water system while in possession of a valid LOA issued by NMFS. The regulations also require that the LOA holder report, within 6 months from the issuance of a final rule, to the Administrator, Northeast Region, NMFS on possible mitigation measures effecting the least practicable adverse impacts on seals.

Subsequent to the publication of the final rule, a tentative sale agreement was reached between the NAESC and the FPL Energy Seabrook, LLC, for the Seabrook Station nuclear power plant. The closing date for the sale of the Seabrook Station nuclear power plant is tentatively scheduled for the fall of 2002. As noted above, the regulations authorizing the unintentional take of seals specifically names the NAESC as the owner. Since the sale of the power plant is imminent, this action will change the regulatory language regarding the power plant ownership to a generic owner/operator designation.

In addition, the final rule contains a reporting requirement and a schedule for implementation of mitigation measures, which are no longer applicable to the owner/operator of the Seabrook Station nuclear power plant. Specifically, § 216.134 requires NAESC to issue a report to NMFS by January 2000 regarding possible mitigation measures to address any adverse impacts on seals. The report was generated and the recommended mitigation measure (installation of seal deterrent barriers on all three cooling water system intakes) was completed prior to January 2000; therefore, this amendment will remove this reporting requirement and implementation schedule since NAESC has already complied with this requirement. Consequently, this final rule corrects the regulatory language to reflect the fact that this reporting requirement and schedule are no longer applicable, by reserving § 216.134 and removing cross-references to that section in § 216.135(i) and § 216.136(a)(3).

The Assistant Administrator for Fisheries (AA) finds that providing prior notice and opportunity to comment on this final rule is unnecessary, because the rule merely removes the specific name of the power plant's owner/operator, inserts a generic designation in its place, removes the requirement that has already been complied with and has no future effect, and removes cross-references to that former section. This action does not change the number of regulated entities, nor does it create new requirements or relieve any current restrictions. Therefore, the AA, under 5 U.S.C. 553(b)(B), finds good cause exists to waive requirements for prior notice and opportunity for comment. Also, because this final rule does not impose any new requirements on entities subject to these regulations, it is not a substantive rule subject to a 30-day delay in effective date under 5 U.S.C. 553(d).

This final rule is exempt from review under Executive Order 12866.

Because prior notice and opportunity for public comment are not required for this final rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , are inapplicable.