The regulations in 9 CFR parts 93, 94, 95, and 96 (referred to below as the regulations) govern the importation of certain animals, birds, poultry, meat, other animal products and byproducts, hay, and straw into the United States in order to prevent the introduction of various animal diseases, including bovine spongiform encephalopathy (BSE).

BSE is a neurological disease of cattle and is not known to exist in the United States. It appears that BSE is primarily spread through the use of ruminant feed containing protein and other products from ruminants infected with BSE. Therefore, BSE could become established in the United States if materials carrying the BSE agent, such as certain meat, animal products, and animal byproducts from ruminants, are imported into the United States and are fed to ruminants in the United States. BSE could also become established in the United States if ruminants with BSE are imported into the United States.

Sections 94.18, 95.4, and 96.2 of the regulations prohibit or restrict the importation of certain meat and other animal products and byproducts from ruminants that have been in regions in which BSE exists or in which there is an undue risk of introducing BSE into the United States. Paragraph (a)(1) of § 94.18 lists the regions in which BSE exists. Paragraph (a)(2) lists the regions that present an undue risk of introducing BSE into the United States because their import requirements are less restrictive than those that would be acceptable for import into the United States and/or because the regions have inadequate surveillance. Paragraph (b) of § 94.18 prohibits the importation of fresh, frozen, and chilled meat, meat products, and most other edible products of ruminants that have been in any region listed in paragraphs (a)(1) or (a)(2). Paragraph (c) of § 94.18 restricts the importation of gelatin derived from ruminants that have been in any of these regions. Section 95.4 prohibits or restricts the importation of certain byproducts from ruminants that have been in any of those regions, and § 96.2 prohibits the importation of casings, except stomach casings, from ruminants that have been in any of these regions. Additionally, the regulations in part 93 pertaining to the importation of live animals provide that the Animal and Plant Health Inspection Service (APHIS) may deny an application for a permit for the importation of ruminants from regions where a communicable disease such as BSE exists and from regions that present risks of introducing communicable diseases into the United States ( see § 93.404(a)(3)).

On May 20, 2003, the Canadian Food Inspection Agency reported a case of BSE in a beef cow in northern Alberta. Therefore, in order to prevent the introduction of BSE into the United States, we are amending § 94.18(a)(1) by adding Canada to the list of regions where BSE is known to exist. This action prohibits or restricts the importation of ruminants that have been in Canada and the importation of meat, meat products, and certain other products and byproducts of ruminants that have been in Canada. We are making this amendment effective retroactively to May 20, 2003, which is the date that Canada reported the BSE case.

As noted previously, the regulations in § 93.404(a)(3) provide the basis for APHIS to deny an application for a permit for the importation of ruminants from regions listed in § 94.18(a)(1) or (a)(2). Because, with certain exceptions, ruminants may not be imported into the United States unless their importation is authorized by a permit, the provisions of § 93.404(a)(3) have been sufficient to prevent the entry of live ruminants from regions affected with BSE. However, the regulations in part 93 provide exemptions from the permit requirement for ruminants from several regions, including Canada, under certain circumstances. Given that the denial of a permit application may not serve in all cases to provide a regulatory basis for preventing the importation of ruminants from regions affected with BSE, we have amended the regulations in § 93.401, “General prohibitions; exceptions,” to include an explicit prohibition on the importation of ruminants that have been in any region listed in § 94.18(a)(1) or (a)(2).

This rulemaking is necessary on an emergency basis to prevent the introduction of BSE into the United States. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register .

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

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

This emergency situation makes timely compliance with section 604 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) impracticable. We are currently assessing the potential economic effects of this action on small entities. Based on that assessment, we will either certify that the rule will not have a significant economic impact on a substantial number of small entities or publish a final regulatory flexibility analysis.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has retroactive effective to May 20, 2003; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

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

The regulations in 9 CFR part 94 (referred to below as the regulations) prohibit or restrict the importation of certain animals and animal products into the United States to prevent the introduction of various animal diseases, including rinderpest, foot-and-mouth disease (FMD), African swine fever, hog cholera, and swine vesicular disease. These are dangerous and destructive communicable diseases of ruminants and swine. Section 94.1 of the regulations lists regions of the world that are considered free of rinderpest or free of both rinderpest and FMD. The Animal and Plant Health Inspection Service (APHIS) considers rinderpest or FMD to exist in all regions of the world not listed.

On February 10, 2003, we published in the Federal Register a proposed rule (68 FR 6673-6677, Docket No. 02-109-1) to amend the regulations by allowing the importation of fresh (chilled or frozen) beef from Uruguay provided certain conditions were met. In that proposed rule, we notified the public of the availability of a risk assessment entitled, “Risk Assessment—Importation of Fresh (chilled or frozen) Beef from Uruguay” (November 2002).

We solicited comments concerning the proposed rule and the risk assessment for 60 days ending April 11, 2003. On April 14, 2003, we published in the Federal Register a notice (68 FR 17886, Docket No. 02-109-2) in which we reopened and extended the comment period for a period of 2 weeks ending April 25, 2003. We received a total of 28 comments by that date. The comments were submitted by domestic cattle producers, domestic cattle and livestock associations, a food company, a trade association, a State department of agriculture, a State public lands council, State veterinarians, foreign livestock associations, a representative of a foreign government, and other members of the public. Five commenters were supportive of the proposed rule, and three additional commenters generally supported the proposed rule provided APHIS continues to evaluate the validity and efficacy of the mitigation measures. The other commenters expressed concern about the effects of the proposed rule and about some of the specific provisions of the proposal. These comments are discussed by subject below.

Several commenters expressed concern that there would be negative economic effects on the domestic cattle industry if fresh beef is allowed to be imported from Uruguay. Under its statutory authority, APHIS may prohibit or restrict the importation or entry of any animal or article in order to prevent the introduction or dissemination of a pest or disease of livestock. APHIS does not, however, have authority to restrict trade based on its potential economic effects. It should be noted, however, that past importations of fresh beef from Uruguay have comprised 0.2 percent or less of the total U.S. beef supply.

Several commenters expressed concerns that Uruguay's health environment, level of management of disease control, and epidemiology are not equivalent to those of the United States. Based on our evaluation of information obtained from Uruguay, from APHIS site visits to that country, and from periodic visits conducted by the U.S. Department of Agriculture's (USDA) Food Safety and Inspection Service (FSIS), we have concluded that Uruguay's health standards, demonstrated ability to implement effective disease control methods in the event of an outbreak, and familiarity with modern epidemiology are effective.

One commenter stated that APHIS “needs to verify that the Uruguay FMD surveillance program is valid and that Uruguay is indeed free of the virus” and that “if APHIS confirms that FMD has been eliminated it must verify that the mitigating measures of de-boning, no blood clots, lymphatic tissue, and a pH of 5.8 or less is achieved in Uruguay.” The commenter also stated that “[i]f these steps are verified, a wealth of scientific data indicates beef from Uruguay will not pose an FMD threat to the United States.” Three commenters asked if APHIS had evaluated Uruguay's FMD surveillance program, processing system, and mitigation measures. One commenter stated that “APHIS must also verify that these mitigating measures are being conducted in an adequate manner in Uruguay.* * *” Three commenters suggested that evaluation teams include State laboratory officials, representatives of APHIS, the U.S. Food and Drug Administration (FDA), State animal health officials, and industry representatives. One commenter stated that more stringent inspections by non-Uruguayan officials are needed. Some of these commenters asked whether we would develop a verification plan.

We evaluate each request for initiation or resumption of trade in animals or animal products with foreign countries individually. The complete review process involves a thorough evaluation of the relevant infrastructure of the individual country by technical experts with experience in country disease evaluation and risk assessment. The risk assessment process, which is detailed below, is implemented specifically to evaluate and verify the efficacy of the surveillance programs, border controls, processing systems, and other disease control measures of the country in question.

The information is evaluated by personnel from APHIS's National Center for Import and Export (NCIE); Centers for Epidemiology and Animal Health (CEAH), which is an Office International des Epizooties (OIE) collaborating center for risk assessment and surveillance; 1 other Veterinary Services (VS) personnel, as appropriate; personnel from the National Veterinary Services Laboratories (NVSL); and personnel from APHIS's International Services who have first-hand knowledge of the animal health conditions in the region under evaluation. APHIS reviews the information provided by foreign government officials for completeness and acceptability with regard to all of the factors for evaluation listed in 9 CFR 92.2, “Application for recognition of the animal health status of a region.” Topics covered in this review include, but are not limited to, border controls, surveillance, slaughter/processing plant controls, and security of sample integrity. In addition, the evaluation addresses effectiveness of veterinary infrastructure, disease status of the region, status of adjacent regions, disease control programs, vaccination status, separation of the region from adjacent higher risk regions, animal movement controls, livestock demographics and marketing practices, laboratory capabilities, and emergency response capabilities. APHIS requests additional information, if necessary, and seeks relevant information from other sources such as published literature.

Once the information provided by foreign officials is considered sufficient to conclude that the risks are low enough that the evaluation may proceed, a site visit to the region is scheduled. In addition to representation by VS personnel, the site review team also includes field personnel from APHIS's International Services, a State veterinarian, and, if a quantitative model is used to assess risk, individuals with expertise in quantitative risk analysis techniques.

We believe that the disease evaluation expertise of personnel from NCIE and CEAH, with input as appropriate from other APHIS units for additional expertise in quantitative risk analysis techniques and in-country conditions, and the foreign animal disease (FAD) laboratory expertise of NVSL are adequate for these evaluations. We do not include FDA personnel, as FAD evaluations are not within the FDA's authority or expertise. We do not include State laboratory personnel since FAD laboratory expertise is provided by NVSL.

Industry representatives have not historically participated in APHIS evaluations. APHIS believes that it is not appropriate to include industry commodity groups on country evaluation teams for several reasons, but primarily because industry participation might make it appear that the review is not impartial. Inclusion of industry representatives might generate the appearance of, and potential for, conflicts of interest between the U.S. and foreign industry interests. In addition, APHIS questions whether information would be provided freely by foreign governments and commercial interests if U.S. industry representatives were present. In this regard, the site visit teams typically include visits to commercial facilities that might be unwilling to openly exchange commercial or proprietary information, which is critical to the verification and evaluation process. Also from a practical standpoint, industry representation would be necessarily limited to a very few individuals representing a very limited spectrum of the industry, thereby possibly providing a competitive advantage for participants. Further, inclusion of industry representation on a team that will provide recommendations to the agency could raise concerns under the Federal Advisory Committee Act unless the team was formally chartered as a Federal advisory committee. This would not be feasible for site visit teams.

The information obtained from these reviews is used to conduct an assessment of the risk of importation of the requested commodity. The risk assessments APHIS prepares are made available for public review prior to any final rulemaking. All comments from the public are considered in the final decisionmaking process.

Uruguay's surveillance program, border controls, and processing and slaughter controls, as well as its implementation of various mitigation measures, have all been evaluated during our site visits in preparation for the risk assessment. Evidence of the effectiveness of the measures being taken is presented in the risk assessment. Periodic visits to the slaughtering establishments are also conducted by FSIS. Although we do not conduct scheduled, annual visits to the processing plants, we note that we have an APHIS representative who is permanently located in Uruguay, and that all processing plants approved for export must allow periodic on-site evaluation and subsequent inspection of their facilities, records, and operations by an APHIS representative at our request. We will continue to monitor the situation in Uruguay and will conduct reinspections if we feel they are necessary.

We do not consider it necessary to establish a specific verification plan for Uruguay. In fact, on March 6, 2003, we published in the Federal Register (68 FR 10667, Docket No. 01-036-1) a proposed rule that, if made final, will reinforce our current authority to reevaluate regions when there is a reason for concern.

Several commenters asked whether we will provide for reinspection of fresh beef from Uruguay at the U.S. port of first arrival to verify that all mitigation measures, including measurement of pH levels, have been effectively and adequately carried out. Based on the evidence in the risk assessment and the site visit report regarding Uruguay's effective implementation of the required mitigation measures, reinspection would be unlikely to provide additional risk mitigation. Reinspection at the port of first arrival would be a valid safeguard only if it could provide verification of the pH level of the beef at the time of maturation. Variations in pH levels during cold storage, freezing, and transport, however, would make it very difficult to obtain data that can be correlated with pH levels at the time of maturation. Therefore, the type of reinspection upon arrival suggested by the commenters would offer no additional protection. Inspectors at the port of first arrival will, however, monitor all shipments that come into the United States and verify that the beef is accompanied by the foreign meat inspection certificates required under this rule to ensure that all requirements have been met.

One commenter stated that we should enforce documentation measures to protect against the possibility of transshipment ( i.e., beef from Uruguay being shipped through another FMD-affected country while en route to the United States). The regulations in § 94.1(d) provide conditions that must be met in order for fresh (chilled or frozen) meat that enters a port or otherwise transits a region where rinderpest or FMD exists to be eligible for importation into the United States. Those conditions include certification requirements and safeguarding measures, including the use of official seals, to prevent the meat from coming into contact with any other cargo or being handled during transit. However, the provisions of § 94.1(d) apply specifically to the transshipment of fresh (chilled or frozen) meat of ruminants or swine raised and slaughtered in a region free of FMD and rinderpest. Therefore, in response to this comment, we are amending § 94.1(d) in this final rule to provide that the conditions in that paragraph also apply to fresh (chilled or frozen) beef from Uruguay. We are also amending paragraph (b) of § 94.1, which refers to the provisions of paragraph (d), to reflect this change.

Two commenters expressed concern about the risk posed by formerly exposed cattle who can carry the FMD virus in the oropharynx, where it can persist for between 30 and 36 months and be preserved by refrigeration or freezing. According to Thomson (1994)  2 , recovered cattle or vaccinated cattle that had been exposed to diseased animals, the FMD virus was found only in the pharyngeal area of carriers, and in only minute quantities. This virus usually is bound to antibodies and virus inhibitors. In general, carriers have high levels of circulating antibodies. Carrier animals do not have the virus in the blood (viremia), bone marrow, lymph nodes, or muscle tissue. In addition, the head, in which the oropharynx is located, is one of the bovine parts that is prohibited importation.

We proposed that beef imported from Uruguay must come from bovine carcasses that were allowed to maturate for a minimum of 36 hours after slaughter and that reached a pH of 5.8 or less in the loin muscle at the end of the maturation period. We also proposed that any carcass in which the pH did not reach 5.8 after 36 hours could maturate an additional 24 hours and be retested. If the carcass had not reached a pH of 5.8 or less after 60 hours, the meat from the carcass could not be exported to the United States. Several commenters stated that, based on OIE standards, standards of specific international markets, and cited studies, the minimum maturation time for beef from countries where vaccination is practiced should be 24 hours rather than the 36 hours that we proposed, with an additional 12 hours allowed for beef that had not reached 5.8 or less after 24 hours. The commenters stated that a minimum maturation time of 36 hours is cost prohibitive and logistically difficult to maintain. One of the commenters stated that the pH level in beef tends to rise when maturation time exceeds 24 hours.

We are making no changes based on these comments. The scientific literature available to us does not support the statement that the pH level in beef tends to rise when maturation time exceeds 24 hours. Available literature showed that there is a gradual trend towards lower pH with time and that the pH averages 5.6 to 5.8 after 48 hours of aging, although the pH does tend to rise slightly after 72 to 96 hours of maturation. 3 Other research indicated that, although the FMD virus survived for 24 hours in beef stored at 4 °C, the virus was inactivated by the third day after the pH had declined. 4

The data used in our risk assessment for the proposed rule change comes from our site visits and from data provided by Uruguay. Because all plants in Uruguay currently operate according to the European Union's (EU) requirement of a minimum of 24 hours of maturation and a pH level of less than 6.0, the only data available to us were for the number of carcasses in Uruguay that failed to meet that level. That rejection rate was used in assessing the proportion of viremic carcasses that could pass undetected through the processing system. However, because the current rejection rate is based on a pH threshold of less than 6.0, APHIS' requirement of pH 5.8 could increase the rejection rate by an unknown amount. Since we are requiring a minimum maturation time of 36 hours, and the literature indicates a gradual trend towards lower pH over time, we considered it unlikely that the rejection rate will increase significantly. Using that information, we concluded that fresh beef could be imported from Uruguay in accordance with the conditions described in the proposed rule without an unacceptable risk of FMD being present in the beef. Because no data are available to us regarding the rejection rate at pH 5.8 or less after a minimum of 24 hours of maturation, we are retaining the requirement that fresh beef from Uruguay undergo maturation for a minimum of 36 hours and reach a pH of 5.8 or less.

One commenter stated that pH measurements should be taken at the middle of both longissimus dorsi muscles. Although we did not specify this requirement in the proposed rule because it is common practice, for clarity's sake we are including it in the final rule.

Because of the importance of proper pH measurements, one commenter asked (1) how we will verify that Uruguayan processing plants use the best available pH testing technology, (2) if we will initiate an approved pH meter standard, (3) if we will require the processing plants to have standard operating procedures for the use of pH meters on file, and (4) if we will require them to record pH meter serial numbers and document their meter standardization. Another commenter requested that a certified U.S. veterinary official oversee all pH testing and verify that conditions at slaughter facilities are equivalent to U.S. standards. One commenter requested that APHIS require the presence of a full-time APHIS or FSIS inspector to ensure that all processing is done in compliance with U.S. standards.

The pH control in Uruguay is regulated under the Government of Uruguay's Procedure 2001/2, “Generic procedure for maturation and pH control in bovine and ovine meat and offal” and Circular 2002/4, “Procedure for official verification of the calibration of pH measuring devices for meat.” The former procedure specifies time and temperature for the maturation process and requires that all meat processed for export be pH-tested. The latter procedure requires calibration of pH measuring devices at the beginning of each workday and after every 200 measurements. Other Uruguayan requirements include official control of the preparation and storage of buffer solutions.

As noted in our site visit report, we evaluated pH control procedures at the San Jacinto plant, which exports to the EU and to other countries, during the July 2002 site visit to Uruguay. We verified that the instrument used to measure pH is calibrated according to the manufacturer's specifications. There is a laboratory in the plant where pH calibration takes place on a daily basis. Calibration and rejection records were examined and verified. All records were found to be adequate. In addition, we verified that pH testing is done by plant personnel under strict supervision by official inspectors. We concluded that adequate pH measuring technologies are available at export plants and that calibration of devices and control of pH inspection is carried out under the control of official authorities. Based on this evidence, we do not believe it is necessary for this rule to require an additional approved pH meter standard or to specifically require every plant keep its standard operating procedures for the use of pH meters on file, to record pH meter serial numbers, and to document their meter standardization, since these measures are already required by the Uruguayan government and all of the necessary documentation and procedures are already on file in each plant. Nor do we consider continuous APHIS supervision of the process necessary. However, this rule provides that APHIS reserves the right to conduct reinspections at any time that we feel it is necessary.

One commenter noted that, according to two studies, 5 pH can change slightly during cold storage. As a result, although beef may have achieved a pH of 5.8 or less in Uruguay, upon arrival in the United States the pH level may have increased slightly. The commenter requested that APHIS develop a project to collect pH data from specific lots of beef destined for export to the United States and then to verify the pH upon departure and arrival in order to establish a baseline of pH changes during transport. This baseline could then be used to verify that the beef had reached a pH of 5.8 during the maturation process in Uruguay.

The variations in pH level fluctuations would make it difficult, if not impossible, to correlate the pH levels of beef arriving in the United States with the pH levels that had been achieved at maturation in Uruguay. We do not believe that a project of this type would offer meaningful data or provide additional protection. Additionally, for the reason discussed previously, we consider the pH readings reported by Uruguayan officials to be sufficient.

One commenter noted that although the risk assessment states that vaccinating twice with an oil adjuvant vaccine offers 99 percent protection, the proposed rule does not require any specific vaccine or number of vaccinations. The commenter questioned whether changes in Uruguay's choice of vaccine or the number of doses would affect the efficacy of the mitigation measure and affect the outcome of the risk assessment. The commenter also asked if we would change the import requirements and mitigation measures if Uruguay decides to stop vaccinating in the future.

Because Uruguay responded so quickly to the outbreak of FMD in April 2001, officials there did not have the opportunity to test different FMD vaccines to determine which was most effective. Uruguay used trivalent vaccines from Brazil and Paraguay and bivalent vaccines from Colombia and Argentina that had been approved and certified in their respective country of origin by the competent sanitary authority. In all cases, safety and efficacy tests used were those established by the regional reference agency, the Pan American FMD Center (PANAFTOSA). Once the outbreak was under control, however, Uruguay's Ministry of Livestock, Agriculture, and Fisheries, together with PANAFTOSA, conducted tests on a variety of vaccines in order to determine which would be most effective for use in the ongoing vaccination program. We have reviewed the results of these tests and have found Uruguay's choice of vaccine, which offered a protection level of 99.7 percent after revaccination, to be adequate and effective. We do not believe it is necessary to require the use of a particular vaccine in this rule, as it is unlikely that Uruguay will choose a less efficacious vaccine in the future. However, we will continue to monitor the situation and make any necessary adjustments to the mitigation measure requirements if any changes occur.

As stated in the site visit report, under Uruguayan law, cattle are not allowed to be moved until they have been vaccinated against FMD twice. All cattle that are moved within Uruguay are required to be accompanied by a certificate that contains information about the date, brand, and series of vaccine that was used. Because this dosage requirement is already in place, we do not believe it is necessary to add this requirement to the rule. We will continue to monitor the situation and will reassess the situation and the risk level if any changes in Uruguay's vaccination requirements occur.

One commenter, referring to the scenarios presented in the risk assessment, asked about the expected incursions of FMD using a scenario of over 100 undetected herds.

We believe the commenter has misinterpreted the scenarios presented in the risk assessment. First, we note that the risk assessment never states that the data refer to potential “incursions” of FMD. The results from the scenarios described in the risk assessment were derived from the negative binomial distribution, which calculates the number of years before the first importation of FMD-infected beef, not the first outbreak or case of FMD, from such imports. Second, the commenter appears to assume that we are comparing scenarios with a maximum of 35 undetected, infected herds versus a maximum of 62 undetected, infected herds. In our risk assessment, we developed two scenarios. The first scenario, which we believe is the most realistic, offers data for a situation involving between 1 and 35 undetected, infected herds. This scenario was run using a uniform distribution of values rather than point values, which means that every value within the range of 1 to 35 has an equal likelihood of occurrence. The second scenario, which we believe is less realistic but necessary in order to capture the full range of possible uncertainty, offers data for a situation involving between 1 and 62 undetected, infected herds, with a most likely value of 35 undetected, infected herds.

In order to reasonably evaluate a scenario for over 100 undetected, infected herds, we also had to present point value results at 35 and at 62 undetected herds. The results are presented in table 1, below. These results represent the number of years until the first importation of FMD-infected beef from Uruguay, not the first expected incursion of FMD.

The results show that for an average of 100 undetected, infected herds per year in Uruguay, the most likely number of years until the first importation of FMD-infected beef is 510. However, based on past history, we believe that it is likely that FMD would be detected before the number of undetected infected herds reached 100. Therefore, we do not believe that this risk scenario offers any realistic information about the risk of importing fresh (chilled or frozen) beef from Uruguay.

One commenter noted that APHIS did not discuss FMD infection in feral species in Uruguay. The commenter asked if surveillance has been done in feral populations. Although the information available to us indicates that there is no surveillance of wildlife populations in Uruguay, we have no evidence that indicates that feral animal populations in Uruguay are infected with FMD. To our knowledge, infections of FMD in wildlife were not a factor in the spread of FMD, nor were wildlife populations reservoirs of infection in past outbreaks. We have concluded that authorities in Uruguay are conducting adequate surveillance for FMD to detect the disease if it were to be reintroduced into the country. While there was no specific information presented to show that susceptible feral animals in Uruguay are free of FMD, the active surveillance program includes domestic animals that may be exposed to feral animal populations.

One commenter inquired whether there were any results available from surveillance in susceptible species other than bovine. Uruguay has conducted surveillance of sheep, as discussed below. There has been no active surveillance of swine in Uruguay, partly because there are only approximately 300,000 pigs in the entire country. During the past outbreak, only 112 pigs were affected by FMD. Based on the small population of swine, combined with the fact that the FMD virus that was present in Uruguay affects primarily cattle, and that swine react differently to FMD in general, we do not consider swine to be critical as the primary focus of serological surveillance.

One commenter asked whether the results of the sampling of sheep that was scheduled to be completed by May 2002 were available. A serological survey of the sheep population of Uruguay was conducted between May and August 2002. The survey was designed to detect virus activity in 1 percent of the sheep population and to identify sheep flocks with 5 percent or more infected sheep. Three groups were defined for sampling by geographical strata based on distance from the nearest FMD focus in previous outbreaks: Stratum I-less than 5 km, stratum II-5-10 km, and stratum III-greater than 10 km. Within each group, sheep operations were randomly selected in proportion to flock size.

The survey sampled 18,296 sheep from 340 flocks. Using the Virus Infection Associated Antigen (VIAA) test, the estimated seroprevalence for antibodies to the FMD virus was 0.16 percent. The results show a decline from a previous survey. By geographic area, the seroprevalence was 0.23 percent in stratum I, 0.08 percent in stratum II, and 0.04 percent in stratum III. A subsequent epidemiological investigation of the 20 seropositive animals concluded that the positive results were due to residual antibodies from exposure during the previous epidemic.

Because unvaccinated sheep were not involved in large numbers during the most recent outbreak of FMD, one commenter questioned the utility of using unvaccinated sheep as sentinels for the virus. We agree that sheep were not a major factor in the establishment and spread of FMD during the 2001 outbreak in Uruguay. In addition, the available evidence suggests that sheep may not be good sentinels for detecting the presence of clinical disease. However, the serological evidence provided by Uruguay indicates that sheep may serve as serological sentinels based on the data on seroconversion that were received during surveys conducted in 2001. Monitoring the fluctuations in the levels of antibodies that the sheep develop will give scientists and veterinarians a warning about the presence of FMD.

One commenter asked if serosampling since February 2002 has continued to show a decline in prevalence. Serological sampling of the cattle population in November 2002 indicated a decline in FMD prevalence compared to previous surveys. As stated in the risk assessment, Uruguay conducted two serological surveys in 2001 and 2002 in the cattle population, using the 3ABC enzyme-linked immunosorbent assay (ELISA) to detect antibodies against FMD non-structural protein. The seroprevalence of FMD was estimated to be 9.26 percent in 2001 and 2.3 percent in February 2002.

Using the 3B ELISA test for non-structural antibodies to the FMD virus, the estimated seroprevalence in November 2002 was 1.98 percent. Sera positive on the 3B ELISA were retested using the 3A ELISA in order to increase specificity, resulting in an adjusted seroprevalence estimate of 0.65 percent. This indicates that there is a declining trend of non-structural antibodies.

One commenter asked whether the USDA had looked at the test kit variation for the 3ABC ELISA test. We have evaluated test results obtained by Uruguay in their serological survey conducted in February 2002 in cattle. The data were obtained using two different 3ABC ELISA kits (United Biomedical Incorporated (UBI) and Pirbright 3ABC ELISA kits) and the Virus Infection Associated Antigen (VIAA) test. The types of tests and the results obtained during that survey are provided in table 2. The FMD prevalence estimates provided by Uruguay were based on results obtained using the UBI kit. After retesting of serum samples using the Pirbright 3ABC ELISA kit and the VIAA test, the data showed a three-fold reduction in the number of positive samples. However, the number of positive samples in the two additional tests were quite comparable. In order to maximize the risk estimates, APHIS used the prevalence estimates that were obtained using the UBI kit in the quantitative risk assessment.

One commenter noted that the site visit report states that “[a]lthough the team felt that positive 3ABC ELISA tests may not be a result of field virus, that possibility cannot be totally excluded,” and asked if more serological surveys will be done to exclude the possibility of circulating FMD virus.

We will continue to monitor the situation in Uruguay and will evaluate the results of serological surveys being conducted by Uruguay. We evaluated data from the two previous serological surveys conducted in 2001 and 2002 and concluded that serological surveillance and sampling schemes were adequate. In addition, APHIS concluded that the official national laboratory in Montevideo, which is the only laboratory approved to carry out FMD serological testing in Uruguay, has the capacity to run valid serological tests for FMD.

Based on the serological data provided by Uruguay, APHIS could not exclude the possibility that positive 3ABC ELISA tests are due to field virus. APHIS believes that this possibility cannot be excluded under any circumstances. In the July 2002 site visit report, APHIS mentioned that the positive results were likely due to the use of partially purified or unpurified vaccines, or to false-positive tests for the following reasons: (1) There was a declining pattern of FMD prevalence in the two surveys, which indicates that the positive response may not be due to infection; (2) the distribution of the positive holdings was quite comparable among the three different geographical regions (strata I, II, and III), which suggested false-positive tests since both strata II and III did not include any farms with registered FMD cases at any time during the outbreaks; and (3) when the sera were further processed by the central laboratory using 3ABC ELISA kits from a different source, in addition to the VIAA test, the number of positives was markedly reduced (see table 2). The 101 total positive sera from the UBI kit were distributed among 49 different holdings that were scattered all over the country with no geographical or epidemiological relationship. We used the higher prevalence estimates based on 101 positive animals in our quantitative risk assessment in order to maximize the risk estimate.

One commenter asked what the future follow-up procedures for serosamples found to be positive using the 3ABC ELISA test will be and how we will ensure that 3ABC positive serology cases trigger follow-up testing for virus isolation by OIE approved methods.

In bovine sampling, Uruguay has been using the UBI ELISA test kit to identify 3B FMD non-structural antibodies. According to the manufacturer's recommendation, the ELISA test for the detection of 3A FMD non-structural antibodies is used as a confirmatory test. As stated in the site visit report, this testing and retesting strategy has been followed in Uruguay. In cases in which positive animals persist after the two rounds of tests, Uruguayan officials proceed with clinical investigation of the susceptible species in order to confirm or reject any suspected presence of the disease.

One commenter asked what the scientific basis was for the statement in the risk assessment that fully protected animals are unlikely to become viremic. According to the commenter, a 2002 Pirbright Laboratory study showed that vaccinated swine will become viremic and shed virus despite their lack of clinical signs.

First, we note that our risk assessment was conducted specifically to determine the risk level associated with beef from Uruguay. The word “animal” throughout the risk assessment refers exclusively to the bovine species from which beef is derived.

Second, based on several different transmission studies, 6 a case can be made for the lack of significant viremia in vaccinated cattle. The findings of these studies suggest that higher immunity levels due to multiple applications of FMD vaccine or increased duration between vaccination and virus challenge result in reduced virus production or none at all.

We also note that swine respond differently than cattle do to the FMD virus. The study cited by the commenter relates to vaccinated swine, which were not largely affected by the strain of the virus that was present in Uruguay, and is not pertinent to this rule. However, we welcome any additional information or data that the commenter can provide, and we will review all such information as appropriate.

One commenter asked whether we had reviewed Uruguay's surveillance data to determine if Uruguay satisfies the OIE's “FMD-free with vaccination” status requirements. Although we do take international standards into consideration, we conduct independent risk assessments using our own stringent criteria as detailed previously. This rule relates to determining what mitigation measures would be effective in protecting the United States from the introduction of FMD in light of the fact that Uruguay does vaccinate, and this rule does not address whether Uruguay can be considered FMD-free with vaccination according to OIE standards.

One commenter expressed concern that FMD is often carried in animals that show no signs of disease until they are under stress. The commenter wanted to know how we would protect against this. We note that animals that show signs of FMD when under stress will do so as a consequence of viremia. All of our mitigation measures specifically target viremic animals.

Several commenters expressed concern that the last outbreak of FMD was too recent for Uruguay to be considered a safe source of imported beef. Two of these commenters stated that we should require a longer disease-free waiting period, ranging from 3 to 5 years, and one commenter suggested that we conduct periodic, independent verification of the disease-free status of Uruguay during that waiting period. One commenter stated that we need to evaluate and take into consideration both the FMD status of Uruguay and the longevity of its disease-free status.

Our risk assessment process is thorough and rigorous. All of the evidence in our risk assessment and site visit report indicates that Uruguay is effectively controlling FMD and has established adequate precautions, including border and movement controls and surveillance and vaccination programs, to ensure the safety of the commodity it wishes to export. Further, the mitigation measures that we require offer additional protection against the introduction of FMD into the United States from the importation of fresh (chilled or frozen) beef from Uruguay. We do not consider a 3 to 5 year disease-free waiting period to be either necessary or required by international requirements or standards.

One commenter noted that vampire bats are common in South America and asked if we had taken into account the fact that they could spread disease among cattle and how we planned to protect against this possibility. The commenter did not provide data to support the hypothesis that vampire bats are a transmission issue for FMD in Uruguay, and we are unaware of any such evidence.

One commenter noted that some of the supporting documents that accompanied the proposed rule were made available only in Spanish. The commenter stated that expenses to the reader are incurred when countries do not supply us with translated documents.

Although we were unable to identify the supporting documentation to which the commenter referred, the regulations in 9 CFR 92.2, which relate to applications by regions for recognition of the animal health status of that region, require that countries supply supporting documents in English. While we occasionally post supporting documents in a foreign language, these are usually documents obtained and discussed during site visits. In these instances, oral translation was provided to the site visit team, but no English language version of the document was made available. We have not always required written translations of such documents since the information in them, which was presented orally during the site visit, is included in the site visit report.

Two commenters stated that Uruguay should establish agreements with its neighboring countries and trading partners to ensure that they receive timely information about the presence of FMD in those countries. We agree that FMD in South America presents a regional challenge and that an effective regional approach is necessary to reduce the risk of disease spread from the region. Such a regional approach does exist. As noted in our site visit report, Uruguay, Argentina, and Brazil participate in the Cuenca del Plata FMD program under the auspices of PANAFTOSA. The main objective of the Cuenca del Plata program is to eradicate FMD with a regional, harmonized approach. Shortly after FMD outbreaks in 2001 in Argentina, Uruguay, and Brazil, PANAFTOSA conducted inspection visits in the three countries and issued recommendations to strengthen and improve the existing FMD programs.

In addition, Uruguay has reviewed its own FMD strategy and has increased the authority of local offices in border areas, improved communication between local offices, developed a communication and education program for producers, and established a National Honorary Animal Health Commission with the participation of producers and both private and official veterinarians. The regional situation has greatly improved since 2001.

It is evident that Uruguay's government is committed to strengthening and improving its information systems for FMD surveillance and eradication in the region. Uruguay is continually reviewing and improving its regional coordination agreements. As a matter of national policy, Uruguay is coordinating with neighboring countries to establish common strategies for combating FMD and for direct information exchange between both official and private sectors.

We carefully considered the regional situation as an integral part of assessing Uruguay's FMD status, and we are continually monitoring the FMD situation in South America. We believe that Uruguay, Argentina, and Brazil have an effective cooperative, regional approach to FMD surveillance and control programs, and that each of these countries is committed to transparency and to collaboration in controlling and eradicating FMD.

A few commenters asked what guarantee we have that FMD has been eradicated in Uruguay. As noted in our site visit report, we have no evidence of the presence of the FMD virus in Uruguay, and have concluded that Uruguay has the ability to detect, control, and respond to FMD outbreaks in an effective way. The mitigation measures that we have put in place protect against the introduction of FMD into the United States.

A few commenters expressed concern that Uruguay is not able to determine where every beef animal is located or to confirm whether wild cattle are pastured on the same ranches with domestic cattle or that every herd is FMD-free. All cattle in Uruguay are identified with tags for movement that indicate the farm and herd of origin. All shipments of cattle must be accompanied by certificates that indicate that each animal has been vaccinated twice, and information about the date, brand, and series of vaccine that was used must also be on the certificate. In addition, Uruguay's ongoing surveillance program, combined with all of the movement control measures, provide adequate levels of surveillance for FMD in herds in Uruguay. Also, international trade agreements entered into by the United States provide that we should not require more of our trading partners than we carry out ourselves. The United States does not have a system that allows us to determine where every beef animal is located.

One commenter asked what guarantee we have that the mitigating measures are effective. The scientific literature supporting the efficacy of the mitigation measures such as the requirement that carcasses reach a pH level of 5.8 or below and the requirement that all bones, major lymph nodes, and blood clots be removed, is cited in the risk assessment. In addition, these measures comply with or exceed international standards for importing fresh (chilled or frozen) beef from countries that vaccinate against FMD. The OIE prescribes that the meat reach a pH level below 6.0 during the first 24 hours of maturation. Our requirement of a pH level of 5.8 or below provides a margin of safety and ensures the complete inactivation of the FMD virus.

One commenter requested that we provide details about the FSIS export plant approval process, Hazard Analysis and Critical Control Point (HACCP) related equivalency, and resampling procedures used to verify microbiological and residue requirements monitored upon arrival in the United States.

The FSIS regulations related to imported products are found in 9 CFR part 327. In those regulations, § 327.2(a)(2)(i) requires foreign countries to have a system of meat inspection that provides standards equivalent to those of the Federal system of meat inspection in the United States in areas that include, but are not limited to, ultimate control and supervision by the national government; the assignment of competent, qualified inspectors; and inspection, sanitation, quality, species verification, and residue standards.

The requirement listed in § 327.2(a)(2)(ii)(H) states that the foreign country must have an HACCP system as described in 9 CFR part 417. The regulations in § 327.2(a)(3) require a responsible official of the foreign meat inspection system to certify processing plants as eligible to participate in an export program according to all FSIS regulations contained within 9 CFR part 327. Sections 327.5 and 327.6 list the regulations and instructions related to importer applications for inspection of products for entry and related to reinspection of imported products. The actual procedures that FSIS uses for sampling and reinspection are detailed in that agency's Import Manual of Procedures. Information about FSIS requirements, procedures, and regulations can also be obtained on the Internet at http://www.fsis.usda.gov.

One commenter asked whether Uruguay's bovine spongiform encephalopathy (BSE) safeguarding system is equivalent to that of the United States. Although the intent of the proposal was to address the risk of importing fresh beef from Uruguay in the absence of other diseases, not to assess the risk of BSE in Uruguay, it should be noted that there is no evidence of which we are aware that BSE is a concern in Uruguay. Canada has evaluated Uruguay and found it to be low risk for BSE. Through our tricountry agreement with Canada and Mexico, we accept Canada's evaluation for our purposes. Furthermore, Uruguay has had minimal, if any, imports from Europe, and therefore minimal potential exposure to BSE. Additionally, regulations are set forth in § 94.18 of the regulations to guard against the introduction of BSE into the United States. We will continue to monitor the health status of Uruguay, and will reassess the situation if we determine that BSE has become a cause for concern with respect to Uruguay.

A few commenters asked how we will ensure that all biologicals, chemotherapeutics, extra-label usage, and pesticides in raw feed production are used under an approval system equivalent to ours. The issues raised by the commenters are beyond the scope of this rulemaking and deal primarily with products and practices that are under the purview of the FSIS and FDA and outside of our regulatory authority.

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

This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made effective less than 30 days after publication in the Federal Register . Immediate implementation of this rule is warranted to relieve certain restrictions on the importation of fresh (chilled or frozen) beef from Uruguay that are no longer necessary. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective upon publication in the Federal Register .

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

This rule amends the regulations governing the importation of certain animals, meat, and other animal products to allow, under certain conditions, the importation of fresh (chilled or frozen) beef from Uruguay. Based on the evidence documented in our recent risk assessment, we believe that fresh (chilled or frozen) beef can be safely imported from Uruguay provided certain conditions are met. This action provides for the importation of beef from Uruguay into the United States while continuing to protect the United States against the introduction of FMD.

This rule reopens the U.S. market to Uruguayan beef producers. Beef producers and importers in the United States should not experience any notable economic effects as a result of these changes because the United States has imported only a small amount of beef from Uruguay in the past (table 3).

Uruguay's share in the value of U.S. imports of fresh (chilled or frozen) beef has been very small. From 1997 to 2000, Uruguayan exports accounted for only 1.8 to 2.7 percent of total U.S. imports of fresh (chilled or frozen) beef. During the same period, imports from Uruguay accounted for 0.2 percent or less of the value of the U.S. supply (domestic production plus imports minus exports) of fresh (chilled or frozen) beef.

According to the Small Business Administration's (SBA) size standards, beef cattle ranches and farms having $750,000 or less in annual revenue, and cattle feedlots having $1,500,000 or less in annual revenue, are considered small entities. The number of farms and ranches with beef herds in the United States in 1997 was reported to be 766,991, and 99.8 percent of these beef farms could be categorized as small according to the SBA's criteria. 7 It is impossible to determine from published data how many U.S. cattle feedlots could be categorized as small according to the SBA's criteria. Industry analysts suggest that feedlots with a capacity of roughly 1,000 head of cattle would have annual revenues of approximately $1,500,000. In 2000, roughly 18 percent (2,508) of cattle feedlots in the United States would have been considered small by SBA standards. 8

Although this rule could potentially affect a large number of small beef farms and a relatively small number of small feedlots because it allows Uruguayan beef into the U.S. market, it is not expected to have a significant economic effect on these entities because the import volumes involved are low.

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

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

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

In 1981, the NCUA defined small credit union for purposes of the Regulatory Flexibility Act (RFA), Pub. L. 96-354, as any credit union having less than one million dollars in assets. NCUA IRPS 81-4, 46 FR 29248, June 1, 1981. IRPS 87-2 superseded IRPS 81-4 but continued the definition of small credit unions for purposes of the RFA as those with less than one million dollars in assets. 52 FR 35231, 35232, September 8, 1987. IRPS 87-2 is incorporated by reference into NCUA's current rule governing the promulgation of regulations. 12 CFR 791.8(a).

The Board believes that NCUA's current definition of small credit union as one with less than one million dollars in assets, adopted in 1981, is now outdated. On November 21, 2002, the Board issued a Notice of Proposed Rulemaking (NPRM) to amend the definition of small credit union in IRPS 87-2. 67 FR 72113, December 4, 2002. The Board proposed to change the qualifying asset size for a small credit union from less than one million dollars in assets to less than ten million dollars in assets. This final rule adopts the proposed rule's definition of small credit union.

As discussed in the NPRM, the RFA is intended in part to encourage federal agencies to give special attention when making rules to the inability of smaller entities to handle incremental compliance burdens created by new rules. Credit unions with ten or more million dollars in assets have staff that may devote some of their time to compliance issues and incremental compliance burdens, but credit unions with significantly less than ten million dollars in assets may be forced to seek and pay for outside assistance when addressing incremental compliance burdens. Accordingly, credit unions with more than ten million dollars in assets should be able to handle incremental compliance burdens more easily than credit unions with less than ten million dollars in assets.

A definition of small credit union as one with less than ten million dollars in assets is also consistent with recent statutes and NCUA regulations providing credit unions with regulatory compliance relief. For example, in 1998 Congress amended the Federal Credit Union Act to require that credit unions follow generally accepted accounting principles, but at the same time excused credit unions with less than ten million dollars in assets under a de minimus exception. 12 U.S.C. 1782(a)(6)(C)(i), (iii). Another 1998 amendment to the FCUA requires NCUA to provide “small credit unions,” defined as those under ten million dollars in assets, with special assistance in meeting prompt corrective action requirements. 12 U.S.C. 1790d(f)(2). Finally, NCUA regulations provide that federally insured credit unions with less than ten million dollars in assets may file a short form call report in the spring and fall. 12 CFR 741.6(a).

The Board also notes that by increasing the threshold from one million dollars in assets to ten million dollars in assets the percentage of federally insured credit unions considered to be small will return to a percentage much closer to the percentage captured by the size standard first adopted in 1981.

The Board also proposed to add a provision in Section IV of IRPS 87-2 stating how NCUA carries out the policy of reviewing all existing regulations every three years and providing for notice to the public of that portion of the regulations that are under review each year. The final rule includes this provision.

This final rule includes a reference to The Regulatory Flexibility Act: An Implementation Guide for Federal Agencies (U.S. Small Business Administration, November, 2002) and requires NCUA staff to consult it when interpreting and implementing the requirements of the RFA. While a regulatory flexibility analysis is unnecessary if the Board certifies a regulation will not have a significant economic effect on a substantial number of small entities, the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) requires that agencies publish a statement “providing the factual basis for” any such certification in the Federal Register . Pub. L. 104-121, 5 U.S.C. 605(b). IRPS 87-2 has provided that the certification will be published with a statement “explaining” the certification. This final rule replaces “explaining” with “providing the factual basis for.”

NCUA received seventeen comment letters on the proposed rule: two from federal credit unions, five from state credit unions, eight from credit union trade organizations, one from a bank trade organization, and one from the National Association of State Credit Union Supervisors.

All of the commenters expressed support for changing the definition of small credit union to include more credit unions in the definition, with most of the commenters agreeing that small credit union should be redefined as a credit union with less than ten million dollars in assets. In addition, all the commenters who addressed the proposal to provide public notice of those regulations NCUA is reviewing each year as part of its three-year rolling review expressed approval for that notice.

The eleven commenters who supported a ten million dollar threshold generally noted it was consistent with current statutory definitions of small credit union and with the effects of inflationary changes since 1981 and would result in a reasonable percentage of all credit unions (about 52%) being considered small. One commenter supported the ten million dollar threshold but stated it should not be greater than ten million.

Five commenters thought the asset threshold should be greater than ten million dollars. Of these commenters, two thought the threshold should be 20 million dollars, one thought it should be 25 million dollars, one thought it should be at least 50 million dollars, and another thought it should be 100 million dollars.

The commenters supporting thresholds of 20 and 25 million dollars note that the percentage of credit unions under one million dollars in assets in 1981, when the current definition of small credit union was established, was roughly 63% of all credit unions, and that the percentages of credit unions today under 20 million and 25 million dollars (66% and 70%, respectively) are close to 63%. One of these commenters also states that “credit unions with 20 million dollars in assets, although slightly larger than those with ten million dollars in assets, typically still do not have the resources to devote staff time solely to compliance issues.”

The commenter who supported a 50 million dollar threshold stated that: (1) only 10% of credit unions under 20 million dollars in assets have “paid compliance directors,” (2) only 16% of credit unions under 50 million dollars in assets have such directors, and (3) only 31% of credit unions between 50 million and 100 million dollars in assets have such directors. This commenter also noted that the federal banking regulators and the U.S. Small Business Administration generally set the RFA's small entity threshold for their regulated financial entities at 150 million dollars in assets. The commenter who supported a 100 million dollar threshold also made similar comments.

The Board appreciates the comments of those who supported a more expansive definition of small credit union but notes that a majority of the commenters supported the proposed definition. Further, the proposed is consistent with other statutory uses of the term small credit union while more expansive definitions would not be. In addition, while credit unions with ten million dollars or more in assets may not have staff devoted exclusively to compliance issues, the Board concludes, as noted in the NPRM, they are likely to have some staff that can devote time to compliance. This analysis is appropriate in light of the legislative history of the RFA discussed in the NPRM. Accordingly, the Board has decided to adopt the definition of small credit union from the proposed rule.

A few commenters thought the asset threshold for small credit unions should be adjusted periodically: one suggested revisiting the threshold each year; two suggested tying it to inflation; and another suggested that NCUA should reset the threshold yearly by declaring as small that group of the smallest credit unions whose combined assets equal 10% of the aggregate assets of all credit unions. The Board believes that annual adjustment is unnecessary and might have undesirable consequences. For example, with inflation levels likely to remain low for the foreseeable future, the Board does not think the threshold needs to be revisited each year. In addition, the rulemaking process for particular rules often spans more than one calendar year, and it would be difficult and confusing to change the definition for rules in progress every year. Finally, the use of a fixed, round number makes it easier to assess which credit unions are small and to explain how NCUA is applying the RFA analysis in a particular rulemaking. The Board will revisit the definition of small credit union as necessary in the future.

One commenter thought that, for rules in which the NCUA determines the RFA does not apply, the NCUA should publish details of its determination. As discussed above, this final rule amends IRPS 87-2 to reflect the SBREFA requirement that NCUA publish the factual basis for each certification in the Federal Register .

Two commenters thought the NCUA should go beyond the requirements of the RFA and should undertake and publish a detailed analysis of the economic impact of each rule on all credit unions, regardless of asset size. The Board does not believe an RFA-type analysis is needed for every rulemaking, but notes that it is NCUA's longstanding policy, as stated in IRPS 87-2, that it will impose only minimum required burdens on credit unions.

One commenter suggested that each year at its December meeting the Board announce which regulations would be reviewed by the NCUA Office of General Counsel in the coming year and which provisions in those regulations were specifically under consideration for change. The commenter thought this notice should be published both on the agency's website and in the Federal Register . Another commenter wanted the notice of regulations under review published twice a year and a designated contact point at NCUA for all questions and comments about a regulation under review.

The Board will publish notice of the regulations under rolling review in a particular year far enough in advance of the review to give interested parties a meaningful opportunity for input. The notice may be published on NCUA's website, in the Federal Register , or in other appropriate media as determined by NCUA. NCUA also publishes a semi-annual regulatory agenda in the Federal Register as part of the federal government's Unified Agenda of Federal Regulatory and Deregulatory Actions. That agenda, generally published each November and May, includes contact information and a description of rules that are in process or on which regulatory action is anticipated for the next 12 months.

One commenter thought that NCUA should add the following statement to IRPS 87-2: “Nothing in the Office of General Counsel's rolling review schedule prohibits the review of existing regulations ahead of schedule.” While the Board believes that this is a true statement, the Board does not believe it need be added to IRPS 87-2.

Two commenters thought the definition of small credit union in the Small Credit Union Program (SCUP) should be changed to correlate with the RFA definition. Another commenter stated the NCUA should also provide a definition of large credit unions. Since this rule applies only to NCUA rulemaking and the requirements of the RFA and does not affect the SCUP or large credit unions, these two issues are not addressed in the final rule.

The RFA requires the NCUA to prepare an analysis to describe any significant economic effect any regulation may have on a substantial number of small credit unions, currently meaning those under one million dollars in assets. This final rule, when effective, will change the definition of small credit union to increase the number of credit unions receiving the procedural benefits of the RFA and will provide notice to the public and opportunity to comment on regulations under internal review. This final rule is procedural in nature and will not have any ascertainable economic impact on credit unions. Accordingly, the NCUA Board has determined and certifies that the final rule will not have a significant economic impact on a substantial number of small credit unions. No regulatory flexibility analysis is required.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. This final rule will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined that this rule does not constitute a policy that has federalism implications for purposes of the executive order.

NCUA has determined that the final rule does not increase paperwork requirements under the Paperwork Reduction Act of 1995 and regulations of the Office of Management and Budget.

The NCUA has determined that this final rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 2681 (1998).

The SBREFA provides for congressional review of agency rules. A reporting requirement is generally triggered in instances where NCUA issues a final rule as defined by Section 551 of the Administrative Procedure Act. 5 U.S.C. 551. Rules relating to management, personnel, or agency procedure or practice that do not substantially affect the rights or obligations of non-agency parties are exempt from congressional review. 5 U.S.C. 804(3). The NCUA Board has determined that this final rule, which deals with agency procedures and does not substantially affect the rights or obligations of non-agency parties, is exempt from congressional review.

For the reasons stated above, IRPS 03-2 amends IRPS 87-2 (52 FR 35231, September 18, 1987) by revising the second sentence in Section II, paragraph 2.; adding a sentence to the end of Section II, paragraph 2; revising the fourth sentence in Section II, paragraph 4; and adding a sentence to the end of Section IV to read as follows:

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all Israel Aircraft Industries, Ltd. Model 1121, 1121A, 1121B, 1123, 1124, and 1124A series airplanes was published in the Federal Register on February 21, 2003 (68 FR 8473). That action proposed to require removing the existing oxygen shutoff valve and installing a new oxygen shutoff valve.

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

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

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. However, for clarity and consistency in this final rule, we have retained the language of the NPRM regarding that material.

The FAA estimates that 300 Israel Aircraft Industries, Ltd. Model 1121, 1121A, 1121B, 1123, 1124, and 1124A series airplanes of U.S. registry will be affected by this AD, that it will take approximately 8 work hours per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Required parts will cost approximately $900 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $414,000, or $1,380 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions. The manufacturer may cover the cost of replacement parts associated with this AD, subject to warranty conditions. Manufacturer warranty remedies may also be available for labor costs associated with this AD. As a result, the costs attributable to this AD may be less than stated above.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Gulfstream Aerospace LP Model Astra SPX and 1125 Westwind Astra series airplanes was published in the Federal Register on February 21, 2003 (68 FR 8475). That action proposed to require removing the existing oxygen shutoff valve and installing a new oxygen shutoff valve.

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

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

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. However, for clarity and consistency in this final rule, we have retained the language of the proposed AD regarding that material.

The FAA estimates that 100 airplanes of U.S. registry will be affected by this AD, that it will take approximately 8 work hours per airplane to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Required parts will cost approximately $900 per airplane. Based on these figures, the cost impact of this AD on U.S. operators is estimated to be $138,000, or $1,380 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions. The manufacturer may cover the cost of replacement parts associated with this AD, subject to warranty conditions. Manufacturer warranty remedies may also be available for labor costs associated with this AD. As a result, the costs attributable to the AD may be less than stated above.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Dassault Model Mystere-Falcon 900 and Falcon 900EX series airplanes was published in the Federal Register on March 3, 2003 (68 FR 9954). That action proposed to require replacement of certain self-adhering soundproofing mats under the passenger consoles in the cabin, which are not sufficiently fire-retardant, with mats that are not self-adhering and are sufficiently fire-retardant.

Interested persons have been afforded an opportunity to participate in the making of this amendment. The sole commenter supports the proposed AD.

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

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. However, for clarity and consistency in this final rule, we have retained the language of the NPRM regarding that material.

The FAA estimates that 18 airplanes of U.S. registry will be affected by this AD, that it will take approximately 80 work hours per airplane to replace the mats, and that the average labor rate is $60 per work hour. Required parts will be provided by the manufacturer at no cost to the operators. Based on these figures, the cost impact of this AD on U.S. operators is estimated to be $86,400, or $4,800 per airplane.

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

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

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

On October 22, 2001, the FAA issued airworthiness directive (AD) 2001-22-09, amendment 39-12488 (66 FR 54658, October 30, 2001). (A correction of that AD was published in the Federal Register on November 26, 2001 (66 FR 58931), and a second correction of that AD was published in the Federal Register on December 14, 2001 (66 FR 64739).) That AD is applicable to certain Bombardier Model CL-600-2B19 series airplanes and currently requires repetitive eddy current inspections for cracking of the main landing gear (MLG) main fittings, and replacement with new or serviceable MLG main fittings if necessary. That AD also requires servicing the MLG shock struts; inspecting the MLG shock struts for nitrogen pressure, visible chrome dimension, and oil leakage; and performing corrective actions, if necessary. The actions required by that AD are intended to prevent failure of the MLG main fittings, which could result in collapse of the MLG upon landing.

As described in the notice of proposed rulemaking (NPRM) for AD 2001-22-09, three cases of premature failure of the MLG main fittings had been reported. The reports indicated that a circumferential crack was found on the MLG main fittings at the radius between the fitting cylinder area and the upper attachment lug for the shock strut. Further investigation indicated that, under certain conditions, an incorrectly serviced shock strut could lead to premature failure of the MLG main fittings.

Since the issuance of AD 2001-22-09, Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, has advised us of reports of another premature failure of the MLG main fittings. Subsequent laboratory examination has confirmed that the failure was at the identical location of the previously reported failures, except that this new incident resulted from a different failure mode.

Since the findings of this latest premature failure of the MLG main fittings, the following new service information has been issued:

The manufacturer issued Bombardier Alert Service Bulletin A601R-32-079, Revision “E,” dated September 12, 2002; including Appendix 1, Revision D, dated September 12, 2002; including Appendices 2 and 3, dated September 12, 2002. The revised service bulletin describes procedures for performing repetitive visual, eddy current, and fluorescent penetrant inspections of the MLG fittings, and replacement if necessary; servicing and inspecting the MLG shock struts; and performing corrective actions if necessary. The major changes to Bombardier Alert Service Bulletin A601R-32-079, Revision D, dated December 1, 2000, which is cited as the appropriate source of service information for accomplishment of AD 2001-22-09, include revising certain compliance times, adding repetitive fluorescent penetrant inspections, and removing the escalation of eddy current repetitive inspections. TCCA classified this service bulletin as mandatory.

TCCA has issued Canadian airworthiness directive CF-1999-32R2, dated September 19, 2002, to ensure the continued airworthiness of these airplanes in Canada. The Canadian airworthiness directive removes the procedure for escalation of the eddy current inspection interval and adds a detailed visual inspection of the MLG main fittings to supplement the eddy current inspection.

This airplane model is manufactured in Canada and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, TCCA has kept us informed of the situation described above. We have examined the findings of TCCA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD supersedes AD 2001-22-09 to continue to require certain requirements. Those requirements include performing repetitive eddy current inspections for cracking of the MLG main fittings; replacing with new or serviceable MLG main fittings if necessary; servicing the MLG shock struts; inspecting the MLG shock struts for nitrogen pressure, visible chrome dimension, and oil leakage; and performing corrective actions if necessary.

This AD clarifies the applicability, adds certain repetitive inspections, reduces an initial inspection threshold, and removes a provision to extend the repetitive interval for the eddy current inspection. The actions required by this AD must be accomplished per the referenced service bulletin, as described previously.

The compliance times specified in AD 2001-22-09 did not specify that the total flight cycles in paragraphs (a) and (b) of that AD are related to the MLG or shock struts, as applicable. To clarify this, we have revised certain paragraphs in this AD to specify that the compliance time is related to the components referenced in those paragraphs rather than to the airplane.

The Canadian airworthiness directive and Bombardier service bulletin both include Messier Dowty part numbers (P/Ns) for the MLG main fittings, which are comparable to the Bombardier P/Ns. For this reason, we have determined that it is necessary to clarify the applicability of this AD by referencing both Messier Dowty and Bombardier P/Ns.

AD 2001-22-09 requires replacement of any cracked MLG main fitting with a new or serviceable MLG, and the Bombardier service bulletin specifies such replacement with either an MLG or MLG fitting. However, in consonance with the Canadian airworthiness directive, this AD requires replacing any cracked MLG main fitting with a new or serviceable main fitting instead of replacing the entire MLG.

We have added paragraph (m)(2) of this AD to prohibit the use of alternative methods of compliance issued per paragraph (e) of AD 2001-22-09 that would have allowed escalation of the repetitive intervals for the eddy current inspections from 500 to 1,000 flight cycles.

This is considered to be interim action until final action is identified, at which time we may consider further rulemaking.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

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

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

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

Commenters wishing us to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-03-AD.” The postcard will be date stamped and returned to the commenter.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all BAE Systems (Operations) Limited Model ATP airplanes was published in the Federal Register on February 27, 2003 (68 FR 9032). That action proposed to require a one-time inspection of the fuel pipes within the fuel “float switch” test pipelines in the left and right inner wings for evidence of damage, cracks, misalignment, or fuel leakage; follow-on corrective actions, if necessary; and repetitive replacement of the fuel pipes at regular intervals.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposed AD.

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

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. However, for clarity and consistency in this final rule, we have retained the language of the proposed AD regarding that material.

The FAA estimates that 3 airplanes of U.S. registry will be affected by this AD.

It will take approximately 6 work hours per airplane to accomplish the inspection, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the inspection on U.S. operators is estimated to be $1,080, or $360 per airplane.

It will take approximately 1 work hour per airplane to accomplish the records check, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the records check on U.S. operators is estimated to be $180, or $60 per airplane.

It will take approximately 5 work hours per airplane to accomplish the replacement, at an average labor rate of $60 per work hour. Required parts will be provided by the manufacturer at no cost to the operators. Based on these figures, the cost impact of the replacement on U.S. operators is estimated to be $900, or $300 per airplane, per replacement cycle.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 89-12-07, amendment 39-6232 (54 FR 24161, June 6, 1989), which is applicable to all Boeing Model 747 series airplanes, was published in the Federal Register on October 16, 2002 (67 FR 63856). The action proposed to continue to require periodic inspections and cleaning of the drainage system cavity of the canted pressure deck, aft of the wing center section. The new action proposed to add new repetitive tests and inspections for discrepancies of the drainage system of the canted pressure deck located in the wheel wells of the main landing gear of the left and right wings; and corrective actions, if necessary. The new action also proposed to terminate the requirements of the existing AD.

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

One commenter (the manufacturer) asks that the compliance times specified in paragraphs (b), (c), and (d) of the proposed AD be changed to allow a grace period for operators of new airplanes. The commenter states that the drain system is already open and clean when the airplane is delivered.

The FAA agrees with the commenter that the drain system should already be open and clean when the airplane is delivered. Therefore, paragraphs (b), (d), and (e) of this final rule (paragraphs (b), (c), and (d) of the proposed AD) have been changed to allow a grace period relative to the date of issuance of the original airworthiness certificate, or the date of issuance of the export certificate of airworthiness, whichever is first.

The same commenter asks that the Summary section in the proposed AD be changed, for clarification, to limit the location specified to “the drainage system of the canted pressure deck” to allow operators some leeway when doing the maintenance tasks. The commenter states that the intent of the proposed AD is to keep the drain system open and clean, and the phrase “drainage system of the canted pressure deck” refers to a series of drains normally mounted to the canted pressure deck. The commenter adds that the drain system includes different drains and drain lines, and the drain lines are mounted in the wheel well area and the area above the fairings below the wing. The commenter notes that the phrase “wing landing gear wheel well” is used interchangeably with the phrase “wheel well of the main landing gear” throughout the proposed AD.

We agree with the commenter, and we have changed the applicable sections in this final rule for clarification to the phrase “wheel well of the landing gear.”

The same commenter asks that the unsafe condition in the Summary section be changed to “The actions specified by this AD are intended to prevent ice accumulation on the lateral flight control cables and/or components due to water entering the wheel well of the MLG and freezing, which could restrict or jam control cable movement, resulting in degraded or loss of controllability of the airplane.” The commenter states that this would provide a better explanation of the unsafe condition.

We agree to add “and/or components,” but we do not agree to add the word “degraded.” The phrase “loss of controllability of the airplane” adequately describes the end-level effect on the airplane. “Degraded controllability” would not necessarily result in loss of control of the airplane, unless there were other contributing factors. We do not list all possible conditions that could result from ice accumulation—only the end-level effect.

The same commenter asks that the first and third paragraphs of the Explanation of Relevant Service Information section in the preamble of the proposed AD be changed to remove the phrase “located in the wheel wells of the main landing gear of the left and right wings” for clarification. The commenter also asks that the same phrase in the first paragraph of the Explanation of Requirements of Proposed Rule section be removed for clarification. The commenter also asks for minor editorial changes.

We acknowledge and agree with the commenter's remarks on the preamble of the proposed AD; however, the sections referred to are not restated in this final rule. Therefore, no change to the final rule is necessary in this regard.

Two commenters ask for changes to paragraph (b)(1) of the proposed AD. One commenter states that the tests specified in paragraph (b)(1) do not allow any leeway to the airline. The commenter adds that operators may find it easier to use a vacuum or “snake” to do the test and notes that this paragraph should be changed to allow other methods to verify the drains are open and clean. The other commenter suggests that the drains at left buttock line (LBL) 45.75 and LBL 65.00 be used as an alternative means for determining the condition of the drainage of the canted pressure deck.

We do not agree to change paragraph (c)(1) of the final rule (paragraph (b)(1) of the proposed AD). We acknowledge that alternate inspection methods can be used to ensure that the drains are open and clean if such methods are submitted to the FAA for approval as an alternative method of compliance (AMOC), as provided in paragraph (g)(1) of this final rule. No change to the final rule is necessary in this regard.

One commenter asks that the last sentence in paragraph (b)(2) of the proposed AD be changed to state, “Accomplishment of paragraphs (b)(1) and (b)(2) of this AD replaces the requirements in paragraph (a) of this AD.” The commenter states that the sentence is not accurate as written because doing the procedures specified in Work Package 2 does not verify that the drains are open and clean. The commenter adds that paragraph (b)(2) does not terminate the requirements in paragraph (a) of the proposed AD; it merely replaces them with new requirements.

We do not agree with the commenter. The inspection procedures required by paragraph (c)(2) of the final rule (paragraph (b)(2) of the proposed AD) meet the requirements specified in paragraph (a) of the final rule, which is to verify that all drains are open and clean. We acknowledge that the inspections required by paragraph (c)(1) of the final rule also address inspections of the drains, but the test in that paragraph goes beyond the inspection requirements in paragraph (a) of this final rule. No change to the final rule is necessary in this regard.

Three commenters state that, since the issuance of AD 89-12-07, they have had no findings of drainage problems in the canted pressure deck area on the subject airplanes. The comments are as follows:

• One commenter states that it has incorporated numerous service bulletin modifications to improve the drainage of the subject area. The commenter adds that it would be interesting to determine if such modifications have been incorporated on the airplanes specified in the proposed AD and if the inspections and cleaning required by AD 89-12-07 have been done, as the commenter has done. The commenter also notes that the proposed AD is not necessary for Model 747-400 series airplanes because all the improvement modifications were incorporated per the service bulletins.

• One commenter states that the actions required by the proposed AD are done per AD 89-12-07, and per the current maintenance review board (MRB) inspections.

• One commenter provides data showing its inspection results and states that, as the data indicate, it has found virtually no trapped water in the canted pressure deck, and based on this, the actions required by the proposed AD are not necessary.

We infer that the commenters are asking that the proposed AD be withdrawn, and we do not agree. We have received several reports on Model 747-400 series airplanes, and other airplanes on which the service bulletin modifications have been incorporated to improve the drainage of the subject area, and water is still entering the landing gear wheel well and freezing. Operators of these airplanes have been inspecting the subject area per the requirements in AD 89-12-07. In addition, because the procedures specified in MRBs vary from operator to operator, there are no assurances that each operator's MRB contains the equivalent actions required by this AD. We have determined that the inspections specified in the existing MRB and AD 89-12-07 do not provide an adequate level of safety; therefore, we have determined that this final rule is appropriate and warranted. No change is made to the final rule in this regard.

One commenter asks that the repetitive interval for the cabin pressurization tests required by paragraph (d) of the proposed AD be extended to every 8 years so the tests can be at the “D” check interval because some operators have been using this interval for several years. The commenter states that the intervals specified in the proposed AD are taken from the referenced service information, and seem to be based on the MRB intervals and the present average intervals used by 747 operators. The commenter adds that the proposed AD should provide technically possible maximum intervals with substantiation. The commenter notes that the referenced service information and the proposed AD do not make any distinction between the oldest, least modified Model 747-100 airplane, and the latest Model 747-400 airplane. The commenter states that it would be reasonable to take the airplane type and modification status into account when determining the test intervals.

We do not agree with the commenter that operators are entitled to inspection intervals based on the maximum intervals between maintenance checks, nor do we agree that the intervals should be adjusted based on the level of modification. As stated under “Request To Withdraw Proposed AD,” we have received reports of freezing problems found on Model 747-400 series airplanes and modified airplanes, as well as airplanes not yet modified. If operators can provide substantiating data for adjustment of the repetitive test intervals required by paragraph (e) of the final rule (paragraph (d) of the proposed AD), we will consider approving the commenter's request as an AMOC, as provided in paragraph (g)(1) of this final rule.

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

There are approximately 1,127 airplanes of the affected design in the worldwide fleet. The FAA estimates that 255 airplanes of U.S. registry will be affected by this AD.

It takes approximately 1 work hour per airplane to accomplish the actions that are required by AD 89-12-07, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the currently required actions is estimated to be $60 per airplane, per inspection cycle.

It will take approximately 12 work hours per airplane to accomplish the test/inspection/cleaning of the drainage system specified in Work Packages 1 and 2 of Boeing Alert Service Bulletin 747-51A2057, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the test/inspection/cleaning required by this AD on U.S. operators is estimated to be $183,600, or $720 per airplane, per cycle.

It will take approximately 4 work hours per airplane to accomplish the inspection specified in Work Package 3 of the service bulletin, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the inspection required by this AD on U.S. operators is estimated to be $61,200, or $240 per airplane, per inspection cycle.

It will take approximately 4 work hours per airplane to accomplish the cabin pressurization test specified in Work Package 4 of the service bulletin, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the test required by this AD on U.S. operators is estimated to be $61,200, or $240 per airplane, per test cycle.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 727, 737-100, 737-200, and 737-200C series airplanes was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on January 3, 2003 (68 FR 311). That supplemental NPRM proposed to require one-time inspections to determine the part numbers of hydraulic accumulators installed in various areas of the airplane, and follow-on corrective actions if necessary.

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

The commenter, the manufacturer, asks that Boeing part number (P/N) BACA11E4S (vendor P/N 60857-4) be removed from paragraphs (b)(3) and (c)(3) of the proposed AD. The commenter states that the proposed AD specifies replacement of the existing clamps and mounting hardware with stronger clamps and hardware if a hydraulic accumulator having P/N BACA11E4S is installed. The commenter adds that Boeing P/N BACA11E4S is an acceptable alternative to the suspect accumulators and was identified in the service bulletins referenced in those paragraphs as needing no work if installed. The commenter concludes that it is not necessary to replace existing accumulator clamps and mounting hardware for these accumulators, as the existing clamps and mounting hardware have been analyzed and found to be sufficient for the anticipated loads.

The FAA agrees with the commenter. The referenced service bulletins specify that no action is required if the subject part number is installed. Hydraulic accumulators having vendor P/N 60857-4 are equivalent to P/N BACA11E4S; these accumulators have aluminum end caps but are an acceptable alternative to the discrepant accumulators. We have removed P/N BACA11E4S from paragraphs (b)(3) and (c)(3) of this final rule.

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

There are approximately 1,832 Model 727 series airplanes and 1,033 Model 737 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 1,294 Model 727 series airplanes and 376 Model 737 series airplanes of U.S. registry will be affected by this AD.

We estimate that it will take approximately 1 work hour per airplane to accomplish each one-time inspection, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of each one-time inspection on U.S. operators is estimated to be $100, $200, or $60 per airplane.

For an airplane subject to the replacement per Service Bulletin 727-29-0064, we estimate that it will take approximately 5 work hours per accumulator (two hydraulic system accumulators per airplane) to accomplish, at an average labor rate of $60 per work hour. Required parts will cost between $1,400 (new part) and $2,810 (vendor-modified part) per accumulator. Based on these figures, the cost impact of this replacement, if necessary, will be between $1,700 and $3,110 per accumulator.

For an airplane subject to the replacement of both the mounting clamps and hardware and the hydraulic accumulator per Service Bulletin 727-32-0410, we estimate that it will take approximately 6 work hours per airplane to accomplish (one landing gear brake accumulator per airplane), at an average labor rate of $60 per work hour. Required parts will cost between $2,500 (new part) and $3,975 (vendor-modified part) per airplane. Based on these figures, the cost impact of this replacement, if necessary, will be between $2,860 and $4,335 per airplane.

For an airplane subject to the replacement of both the mounting clamps and hardware and the hydraulic accumulator per Service Bulletin 727-52-0148, we estimate that it will take approximately 6 work hours per airplane to accomplish (one aft airstairs hydraulic accumulator per airplane), at an average labor rate of $60 per work hour. Required parts will cost between $2,500 (new part) and $3,975 (vendor-modified part) per airplane. Based on these figures, the cost impact of this replacement, if necessary, will be between $2,860 and $4,335 per airplane.

For an airplane subject to the replacement per Service Bulletin 737-32-1334, we estimate that it will take approximately 5 work hours per accumulator to accomplish (two landing gear hydraulic brake accumulators per airplane), at an average labor rate of $60 per work hour. Required parts will cost between $2,175 (operator-modified part) and $2,410 (vendor-modified part) per accumulator. Based on these figures, the cost impact of this replacement, if necessary, will be between $2,475 and $2,710 per accumulator.

For an airplane subject to the replacement per Service Bulletin 737-78-1068, we estimate that it will take approximately 5 work hours per accumulator to accomplish, at an average labor rate of $60 per work hour. Required parts will cost between $2,175 (operator-modified part) and $2,410 (vendor-modified part) per accumulator. Based on these figures, the cost impact of this replacement, if necessary, will be between $2,475 and $2,710 per accumulator.

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

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

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

A proposal to amend Part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all McDonnell Douglas Model MD-90-30 airplanes was published in the Federal Register on March 3, 2003 (68 FR 9950). That action proposed to require replacement of the starter relay of the auxiliary power unit (APU) with a new, improved relay.

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

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

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. However, for clarity and consistency in this final rule, we have retained the language of the NPRM regarding that material.

There are approximately 110 airplanes of the affected design in the worldwide fleet. The FAA estimates that 21 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required actions, and that the average labor rate is $60 per work hour. Required parts will cost approximately $1,039 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $23,079, or $1,099 per airplane.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that is applicable to Turbomeca Turmo IV A and IV C series turboshaft engines was published in the Federal Register on December 2, 2002 (67 FR 71493). That action proposed to require initial and repetitive borescope and eddy current or ultrasonic inspections of centrifugal compressor intake wheel blades for cracks and evidence of corrosion pitting, and, if found cracked or if there is evidence of corrosion pitting, replacement with serviceable parts in accordance with Turbomeca Turmo IV service bulletin (SB) 249 72 0117, dated March 11, 2001; and Turbomeca Turmo IV SB 249 72 0100, Update 4, dated January 25, 2000.

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

A typographical error is being corrected in the AD relative to the issue date of Turbomeca Turmo IV SB 249 72 0117. The Notice of Proposed Rule Making (NPRM) lists the issue date as March 11, 2000. That date is corrected in the AD to March 11, 2001.

A typographical error is also being corrected in the Regulatory requirements of the AD. Paragraph (e) is corrected to (d) and paragraph (f) is corrected to (e).

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

There are approximately 1,110 Turbomeca Turmo IV A and IV C series turboshaft engines of the affected design in the worldwide fleet. The FAA estimates that 11 engines installed on helicopters of U.S. registry will be affected by this AD, that it will take approximately 41 work hours per engine to perform the required inspections, including disassembling and assembling engines and that the average labor rate is $60 per work hour. A replacement centrifugal compressor assembly costs approximately $21,651. Based on these figures, the total cost per inspection to U.S. operators is estimated to be $265,221.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that is applicable to Turbomeca S.A. Arrius -2F turboshaft engines with certain SN FCUs was published in the Federal Register on February 5, 2003 (68 FR 5856). That action proposed to require adjusting the FCU maximum fuel flow mechanical stop position to a higher fuel flow setting in accordance with Alert Service Bulletin (ASB) No. A319 73 4808, dated September 1, 2000.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 334 Turbomeca S.A. Arrius -2F turboshaft engines of the affected design in the worldwide fleet. The FAA estimates that four engines installed on aircraft of U.S. registry will be affected by this AD, that it will take approximately three work hours per engine to perform the required actions, and that the average labor rate is $60 per work hour. Required tooling would cost approximately $300 per engine. Based on these figures, the total cost of the AD to U.S. operators is estimated to be $1,920. The manufacturer has advised the FAA and Direction Generale de L'Aviation Civile, which is the airworthiness authority for France, that the operator may be provided with material and tooling at no cost to the operator, thereby substantially reducing the cost of the AD.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that is applicable to Turbomeca S.A. Arriel -1B, -1D, and -1D1 series turboshaft engines was published in the Federal Register on February 7, 2003 (68 FR 6380). That action proposed to require replacement of modules M03 modified to TU 204 standard with modules M03 not modified to TU 204 standard in accordance with Turbomeca S.A. Service Bulletin (SB) No. 292 72 0258, Update No. 1, dated April 4, 2002, and SB No. 292 72 0265, Update No. 1, dated August 18, 2000.

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

One commenter requests that the applicability be expanded to include Turbomeca engine model -1S1. The -1S1 engine model powers the twin-engine S76 helicopter, and the commenter states that the -1S1 engine model is the same type design as the -1B, -1D, and -1D1 model series turboshaft engines. The commenter states that the -1S1 engine model can incorporate the same high pressure turbine (HPT) blade modification TU 204, and is, therefore, affected by the same risk failure as the other engine models.

The FAA does not agree. The FAA recognizes that the -1S1 engine model may have the same probability of failure as the other engine models installed on the single engine helicopter application if the HPT blade modification TU 204 is installed. However, the probability of a dual-engine failure on a twin-engine helicopter, and the risk of loss of the helicopter, is very low. Furthermore, the engine manufacturer issued instructions (Turbomeca S.A. mandatory SB No. 292 72 0288, dated October 21, 2002) to retire the HPT blades with modification TU 204 installed on the -1S1 engine model. The FAA believes that no specific action is necessary at this time for the -1S1 engine model to increase safety on the twin-engine helicopter application. Therefore, the applicability in this AD is not changed.

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

There are approximately 1,319 Turbomeca S.A. Arriel -1B, -1D, and -1D1 series turboshaft engines of the affected design in the worldwide fleet. The FAA estimates that 48 engines installed on helicopters of U.S. registry will be affected by this AD, that it will take approximately 12 work hours per engine to perform the required actions, and that the average labor rate is $60 per work hour. Required parts will cost approximately $160,000 per engine. Based on these figures, the total cost of the AD to U.S. operators is estimated to be $7,714,560. Turbomeca has advised the FAA that material and tooling may be provided at no cost to the operator, thereby substantially reducing the cost of the final rule.

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

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30, DC-10-30F, DC-10-30F (KC-10A and KDC-10), DC-10-40, and DC-10-40F airplanes was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on March 17, 2003 (68 FR 12618). That action proposed to require inspections of the linear variable differential transducers (LVDTs) of the autopilot for discrepancies, and follow-on actions if necessary. That action also proposed to expand the applicability of the original NPRM.

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

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

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. However, for clarity and consistency in this final rule, we have retained the language of the supplemental NPRM regarding that material.

There are approximately 394 Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30, DC-10-30F, DC-10-30F (KC-10A and KDC-10), DC-10-40, and DC-10-40F airplanes of the affected design in the worldwide fleet. The FAA estimates that 252 airplanes of U.S. registry will be affected by this AD.

We estimate that it will take approximately 1 work hour per airplane to accomplish the inspection specified in Boeing Alert Service Bulletin DC10-22A126, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of that inspection required by this AD on U.S. operators is estimated to be $15,120, or $60 per airplane.

We estimate that it will take approximately 1 work hour per airplane to accomplish the inspections specified in Boeing Alert Service Bulletin DC10-22A127, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of these inspections required by this AD on U.S. operators is estimated to be $15,120, or $60 per airplane.

Should an operator be required to perform the follow-on actions specified in Boeing Alert Service Bulletin DC10-22A126, the cost estimates are as follows:

• Condition 2-Repair/inspect: 1 work hour per airplane at $60 per work hour.

• Condition 4-Realign: 1 work hour per airplane at $60 per work hour.

• Condition 5-Replace LVDT: 1 work hour per airplane at $60 per work hour; estimated parts cost of $900.

• Condition 6-Replace hangar: 1 work hour per airplane at $60 per work hour; estimated parts cost of $100.

Should an operator be required to perform the follow-on actions specified in Boeing Alert Service Bulletin DC10-22A127, the cost estimates are as follows:

• Option 1-Replace LVDT and do adjustment/test: 2 work hours per airplane at $60 per work hour; estimated parts cost of $900.

• Option 2-Install a heat shrinkable sleeve and inspect: 2 work hours per airplane at $60 per work hour.

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

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

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

Background

Section 641 of the Tariff Act of 1930, as amended (19 U.S.C. 1641), provides that a person (an individual, corporation, association, or partnership) must hold a valid customs broker's license and permit in order to transact customs business on behalf of others, sets forth standards for the issuance of broker's licenses and permits, and provides for the taking of disciplinary action against brokers that have engaged in specified types of infractions. In the case of an applicant for an individual broker's license, section 641 provides that the Secretary of the Treasury may conduct an examination to determine the applicant's qualifications for a license. Section 641 also authorizes the Secretary of the Treasury to prescribe rules and regulations relating to the customs business of brokers as may be necessary to protect importers and the revenue of the United States and to carry out the provisions of section 641.

The regulations issued under the authority of section 641 are set forth in part 111 of the Customs Regulations (19 CFR part 111). Part 111 includes detailed rules regarding the licensing of, and granting of permits to, persons desiring to transact customs business as customs brokers, including the qualifications required of applicants and the procedures for applying for licenses and permits. Section 111.11 sets forth the basic requirements for a broker's license and, in paragraph (a)(4), provides that an applicant for an individual broker's license must attain a passing grade on a written examination taken within the 3-year period before submission of the license application prescribed under § 111.12. Section 111.13 sets forth the requirements and procedures for the written examination for an individual broker's license. Paragraph (b) of § 111.13 concerns the date and place of the examination and, in the first sentence, provides that “[w]ritten examinations will be given on the first Monday in April and October.”

Customs and Border Protection (CBP) notes that the first Monday in October 2003, that is, October 6th, coincides with the observance of Yom Kippur, and CBP further notes that the regulatory text quoted above does not provide for the adoption of alternative examination dates. In order to avoid conflicts with national holidays, religious observances, and other foreseeable events that could limit an individual's opportunity to take the broker's examination, CBP believes that § 111.13(b) should be amended to provide CBP with some flexibility in those circumstances as regards the determination of the specific date on which an examination will be given. Accordingly, this document amends the first sentence of § 111.13(b) to provide for an exception to the general rule when the scheduled examination date conflicts with a national holiday, religious observance, or other foreseeable event and CBP publishes in the Federal Register an appropriate notice of a change in the examination date.

Before adopting this interim regulation as a final rule, consideration will be given to any written comments timely submitted to CBP, including comments on the clarity of this interim rule and how it may be made easier to understand. Comments submitted will be available for public inspection in accordance with the Freedom of Information Act (5 U.S.C. 552) and § 103.11(b) of the Customs Regulations (19 CFR 103.11(b)), on regular business days between the hours of 9 a.m. and 4:30 p.m. at the Office of Regulations and Rulings, Bureau of Customs and Border Protection, 799 9th Street, NW., Washington, DC. Arrangements to inspect submitted comments should be made in advance by calling Mr. Joseph Clark at (202) 572-8768.

Pursuant to the provisions of 5 U.S.C. 553(b)(B), CBP has determined that prior public notice and comment procedures on this regulation are unnecessary and contrary to the public interest. The regulatory change provides a benefit to prospective applicants for individual customs broker licenses and imposes no new regulatory burden or obligation on any member of the general public. For the same reasons, pursuant to the provisions of 5 U.S.C. 553(d)(1) and (3), CBP finds that there is good cause for dispensing with a delayed effective date. Because no notice of proposed rulemaking is required for interim regulations, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply.

This document does not meet the criteria for a “significant regulatory action” as specified in E.O. 12866.

The principal author of this document was Francis W. Foote, Office of Regulations and Rulings, Bureau of Customs and Border Protection. However, personnel from other offices participated in its development.

Regulatory Information

On January 22, 2003, a notice of proposed rulemaking (NPRM) was published entitled Security Zone: Portland Rose Festival on Willamette River in the Federal Register (68 FR 2946). We received one letter commenting on the proposed rule. No public hearing was requested, and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Waiting 30 days for this rule to be effective is contrary to the public interest. The Captain of the Port has an urgent and critical security need to control the movement of vessels in the vicinity of the Rose Festival. This need is based on the continuing and ongoing terrorist threat against the United States.

The Coast Guard believes that this finding is consistent with the principle of fundamental fairness, which require that all affected persons be afforded a reasonable time to prepare for the effective date of the rulemaking. In 2002 the Coast Guard published a temporary final rule for the Rose Festival in 67 FR 34842 that was substantively identical to this rule. Further, the notice of proposed rulemaking for this rule was published four months prior to the 2003 Rose Festival. Lastly, the security zone in this regulation has been carefully designed to minimally impact the public while providing a reasonable level of protection for the vessels participating in the Rose Festival. For these reasons waiting 30 days for the rule to be enforceable would be impracticable, unnecessary, and contrary to the public interest.

This security zone is necessary to provide for the security of vessels participating in the 2003 Portland Rose Festival in the navigable waters of the United States. This rule will be effective less than 30 days after publication in the Federal Register .

There was one comment to this rulemaking. The comment focused on the fact that there is no terrorist threat to the Rose Festival and that this rule will affect recreational boaters.

The Coast Guard has considered this comment and determined that the risk of inaction is outweighed by the risk of action. There are continuing and ongoing terrorist threats against the United States. The Rose Festival is a large gathering of the public that often includes several public vessels from the U.S. Navy and Coast Guard. This rule is designed to minimally impact the public, including recreational boaters, while providing a reasonable level of protection for the public and public vessels. Accordingly, no changes were made to the rule.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DHS is unnecessary.

This expectation is based on adequate resources allowing vessel approvals from the Captain of the Port or his designated representatives to transit through the regulated area. For the above reasons, the Coast Guard only anticipates minor economic impact.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in this portion of the Willamette River. The likely impacts to small entities would include minor time delays, potential inspections, and possibly non-entrance if the Captain of the Port or his designated representatives sense the vessels participating in the Rose Festival are threatened. The security zone will not have a significant economic impact because adequate resources will allow vessels timely approval from the Captain of the Port or his designated representatives to transit through the regulated area.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. A notice of proposed rulemaking was published in January to accommodate mariners by giving them proper notice and to provide a forum for their comments, questions, and concerns.

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

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

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

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

We have analyzed this rule 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 create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.

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. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because the temporary security zone would not last longer than one week in duration. The temporary security zone would be established on Wednesday, June 4 with the arrival of the first vessel to the City of Portland's Waterfront Park and extend until the last vessel departs the Waterfront Park on Monday, June 9. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES.

Because we received comments that oppose this authorization, we are withdrawing the immediate final rule for Utah: Final Authorization of State Hazardous Waste Management Program Revision published on April 10, 2003, at 68 FR 17556, which intended to grant authorization for the tenth revision to Utah's Hazardous Waste Rules. We stated in the immediate final rule that if we received comments that opposed this action, we would publish a timely notice of withdrawal in the Federal Register . Subsequently, we received comments that opposed this action. We will address all comments in a subsequent final action based on the proposed rule previously published on April 10, 2003, at 68 FR 17577. We will not provide for additional public comment during the final action.

A list of the references used in this notice and other information related to the status of this stock of killer whales is available on the Internet at < http://www.nwr.noaa.gov/mmammals/whales/proposal.htm. >

Section 3(1)(A) of the MMPA (16 U.S.C. 1362(1)(A)) defines the term, “depletion” or “depleted,” as any case in which “the Secretary, after consultation with the Marine Mammal Commission and the Committee of Scientific Advisors on Marine Mammals ... determines that a species or population stock is below its optimum sustainable population [(OSP)].” Section 3(9) of the MMPA defines OSP “...with respect to any population stock, [as] the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity [(K)] of the habitat and the health of the ecosystem of which they form a constituent element.” NMFS' regulations at 50 CFR 216.3 clarify the definition of OSP as a population size which falls within a range from the population level of a given species or stock that is the largest supportable within the ecosystem (carrying capacity [K]) to the population level that results in the maximum net productivity level (MNPL). MNPL is the greatest net annual increment (increase) in population numbers resulting from additions due to reproduction less losses due to natural mortality.

A population stock below its MNPL is, by definition, below OSP and thus would be considered depleted under the MMPA. Historically, the estimated MNPL has been expressed as a range of values, generally 50 to 70 percent of K (42 FR 12010, March 1, 1977). In 1977, the midpoint of this range (60 percent of K) was used to determine whether dolphin stocks in the eastern tropical Pacific Ocean were depleted under the MMPA (42 FR 64548, December 27, 1977). The 60-percent-of-K value was used in the final rule governing the taking of marine mammals incidental to commercial tuna purse seine fishing in the eastern tropical Pacific Ocean (45 FR 72178, October 31, 1980) and has been used since that time for other status reviews under the MMPA. For stocks of marine mammals, including killer whales, K is generally unknown. NMFS, therefore, has used the best estimate available of maximum historical abundance as a proxy for K.

On May 2, 2001, NMFS received a petition from the Center for Biological Diversity and 11 co-petitioners to list Southern Resident killer whales under the Endangered Species Act (ESA). After conducting a status review to consider the information in the petition and other information related to the status of Southern Resident killer whales, NMFS determined that listing these killer whales as a threatened or endangered species was not warranted at this time because Southern Resident killer whales did not constitute a species as defined by the ESA. Scientific information evaluated during the status review, however, indicated that the population stock may be depleted under the MMPA.

As required by the MMPA, NMFS initiated consultation with the Marine Mammal Commission (Commission) in a letter dated June 25, 2002, and began the process for determining if the stock was depleted. The Commission responded to NMFS in a letter dated November 18, 2002, with recommendations to: (1) prepare research plans for killer whales in the North Pacific, particularly to collect specific information needed to re-evaluate the status of Southern Resident killer whales within four years; (2) to proceed with the depletion determination; and (3) to identify and implement needed actions to protect important habitat as a conservation plan is developed for the Southern Resident killer whale stock. In a subsequent letter, dated March 31, 2003, the Commission: (1) reiterated its recommendation to designate the stock as depleted; (2) recommended that NMFS should thoroughly review information related to historical abundance and other information to establish recovery goals during conservation planning; and (3) recommended that NMFS prepare a conservation plan as soon as possible and, in the interim, initiate any conservation measures identified to date.

Pursuant to section 115 of the MMPA (16 U.S.C. 1383b), NMFS published an advance notice of proposed rulemaking (ANPR) (67 FR 44132, July 1, 2002) which included a request for scientific information. Specifically, the ANPR requested information, comments, and supporting documents on stock status, areas of significance to the stock, and any factors that may be causing the decline or impeding the recovery of the stock. After considering comments received in response to the ANPR and the recommendations of the Commission, NMFS published a proposed rule to designate the Southern Resident stock as depleted (68 FR 4747, January 30, 2003) and solicited comments on the proposal and on potential conservation measures that may benefit these whales. The 60-day comment period on the proposed rule closed on March 31, 2003. A summary of the public comments received and the agency's responses is presented below.

NMFS received 38 comments in response to the proposed rule. Eleven of these comments voiced opinion on the status of Southern Resident killer whales relative to the Endangered Species Act. Summaries and responses are provided below for those substantive comments that address the proposed depleted designation or the potential conservation measures for the benefit of Southern Resident killer whales under the MMPA.

Comment 1: Twenty-four commenters either supported NMFS' proposal to designate the Southern Resident stock of killer whales as depleted or agreed that the stock meets the statutory definition of depleted.

Response: The agency agrees with the comments.

Comment 2: One commenter questioned how NMFS could establish an OSP level for Southern Resident killer whales when both “resident” and “non-resident” types use the same areas.

Response: By definition, the upper and lower bounds of OSP are estimated for discrete stocks of marine mammals. NMFS recognizes Southern Resident killer whales as a separate stock of killer whales under the MMPA based upon genetic, behavioral, and ecological information. Therefore, NMFS must evaluate the status of Southern Resident killer whales relative to its OSP even though other stocks of killer whales are sometimes found in Puget Sound. Because researchers can distinguish between Southern Residents and other types of killer whales and there are ecological differences between residents and non-residents, the periodic overlap of Southern Resident and other killer whales within Puget Sound does not confound the estimation of the OSP levels for Southern Resident killer whales.

Comment 3: Twenty-one commenters included thoughts on factors that may be contributing to population decline. Pollution and related effects dominated the majority of comments on factors for decline and suggested subjects for the development of conservation measures, but a number of other potential stresses to the population were also identified. The summary of issues related to pollution includes: bio-accumulation of persistent chemical contaminants and heavy metals; non-point source contamination from commercial and residential development affecting salmon runs and bait fish survival; over use of pesticides, fertilizer, creosoted pilings and railroad ties, chemical cleaners and auto care products; agricultural run-off and pet waste; depleted uranium dumping; and oil spills and petroleum/fossil fuel discharges or exhaust. Among the remaining issues identified as possibly contributing to the decline of killer whales are: infectious diseases; over fishing on orca prey species or smaller forage fishes; shoreline modifications that reduce fish habitat; dams that block salmon passage or contribute to salmon mortality; noise and stress associated with shipping and vessel activities including commercial traffic, military operations and whale watching; indiscriminate release of real time killer whale sighting information for use by boaters; and the expansion of commercial fall/winter whale watching into central and southern Puget Sound. A number of ideas for addressing these concerns, including regulatory and non-regulatory approaches, were also received.

Response: With this notice, NMFS is announcing its intent to prepare a Conservation Plan to assist in restoring the Southern Resident stock. The comments received in response to the proposal will help NMFS to define the scope of the planning effort to build a comprehensive recovery strategy. NMFS will seek continued stakeholder support and co-manager participation as it develops the content for the conservation plan.

Comment 4: Six commenters supported research efforts to close gaps in the available information about the Southern Resident population and their habitat. Areas for research include questions regarding: killer whale taxonomy; the effects of disease; the effects of anthropogenic underwater noise associated with vessel traffic or naval sonar activities; historic versus current contaminant load in killer whale tissues; killer whale feeding ecology and prey abundance/distribution; year round orca range determination; and shoreline resources and nearshore habitats that are vulnerable to oil spills and may be degraded thereby contributing to reduced productivity for forage species.

Response: In spite of the volume of scientific information available on the Southern Resident stock, NMFS acknowledges that significant data gaps still exist in a number of areas. Little is known of the diseases affecting this population. Research into the effects of sound in the marine environment, including sonar, on whales and other marine mammals is ongoing but incomplete. Research is necessary to fill the gaps and improve our understanding of this population and the factors that may affect its recovery. Accordingly, NMFS has developed an initial list of research priorities and has begun several studies to answer some of the outstanding questions. It is anticipated that additional research needs will be identified during the development of conservation measures associated with the preparation of the Conservation Plan.

Section 3(11) of the MMPA defines a population stock or stock as a group of marine mammals of the same species or smaller taxa in a common spatial arrangement, that interbreed when mature. Although this definition is in part a legal concept, stocks, species, and populations are biological concepts that must be defined on the basis of the best scientific data available.

All extant forms of killer whales are currently classified as the same biological species, O. orca . Three forms, Resident, Transient and Offshore, have been identified along the west coast of North American and vary in morphology, ecology, behavior, group size, social organization, acoustic repertoire, and genetic characteristics. A summary of information on the different forms was presented in the proposed rule (68 FR 4747, January 30, 2003).

Specific stock definitions for west coast killer whales are provided in the U.S. Pacific Marine Mammal Stock Assessments (Carretta et al. 2001) and include consideration of data on association patterns, acoustics, movements, genetic differences and potential fishery interactions. Five killer whale stocks are recognized within the Pacific U.S. exclusive economic zone: 1) the eastern North Pacific Northern Resident stock; 2) the eastern North Pacific Southern Resident stock; 3) the eastern North Pacific Transient stock; 4) the eastern North Pacific Offshore stock; and 5) the Hawaiian stock. Eastern North Pacific Southern Residents occur in the inland waterways of southern British Columbia and Washington, including the Georgia Strait, the Strait of Juan de Fuca, and Puget Sound.

While there are no empirical estimates of the historical stock size for Southern Resident killer whales, NMFS examined indirect evidence to derive an estimate of historical abundance for the population. A minimum historical abundance of 140 whales was derived by combining the total abundance based upon the original 1974 census population (71) with the estimated number of animals that were removed or died (68) during live capture operations for display conducted in the 1960s and early 1970s (67 FR 44132, 44133, July 1, 2002). The number of animals that may have been killed by shooting or other human interactions is unknown but, based on anecdotal evidence, is likely to have been greater than zero. Additionally, a comparison of genetic diversity with the larger Northern Resident killer whale stock (214 whales) indicates that the Southern Resident stock may have been of similar size in the recent past (Barrett-Lennard, L.G. and Ellis, G.M. 2001 and Krahn, M.M., et al. 2002). Therefore, the best available scientific information suggests that the minimum estimate of historical abundance is approximately 140 whales, and the genetic evidence suggests it may have been about 200 whales. However, the actual historical abundance may have been higher than these two estimates.

The abundance of the Southern Resident stock has declined by approximately 20 percent over the past 6 years (1996-2002)(Krahn, M.M., et al. 2002). The true K and MNPL are unknown for Southern Resident killer whales. Using an estimated range of historical stock size of 140-200 whales as a proxy for K, the estimated MNPL for the Southern Resident stock would be 84-120 whales (i.e., 60 percent of 140-200). A more complete discussion of the estimated historical stock size can be found in the ANPR referenced above. The 2002 abundance of 80 Southern Resident killer whales (Center for Whale Research, 2002 Orca Survey) is below the lower bound of the estimated MNPL range (84) for the stock. The current population size meets the statutory definition of a depleted stock. NMFS recognizes that the current population size is very near the estimated lower bound of MNPL for this stock but is taking this risk averse approach in light of recent declines. Therefore, based on the best scientific information available and consultation with the Commission, NMFS determines that the Southern Resident stock of killer whales is depleted under the MMPA.

Section 115(b) of the MMPA (16 U.S.C. 1383b(b)(1)(C)) provides that a Conservation Plan shall be prepared as soon as possible, following a depleted designation, unless it is determined that such a plan will not promote the conservation of the species or stock. NMFS, after consultation with the Marine Mammal Commission, has determined that a Conservation Plan will assist in the conservation of the stock and is expediting the preparation of such a plan concurrent with the publication of this action.

NMFS, as part of the proposed rule, requested public comment on: areas of ecological significance (mating, rearing, resting, feeding) to the eastern North Pacific Southern Resident stock; impacts that may be causing the decline or impeding the recovery of the stock; and potential conservation measures that may be useful in alleviating those impacts. Information was also solicited on the potential economic impacts and the potential biological benefits of alternative conservation measures. NMFS will use the information collected in response to the proposed rule for the development of conservation measures and in the preparation of the Conservation Plan. To promote and implement an open public dialogue concerning stock conservation and rebuilding measures, NMFS will hold public meetings beginning in May to obtain the views of stakeholders, scientists, advocacy groups, and the general public to aid in identifying the elements of a successful Conservation Plan. NMFS will advise the public on the progress of and opportunities to participate in the conservation planning process.

A complete list of all cited references is available via the Internet (see Electronic Access) or upon request (see ADDRESSES ).

This final rule has been determined to be not significant for the purposes of Executive Order 12866. Depletion designations under the MMPA are similar to ESA listing decisions, which are exempt from the requirement to prepare an environmental assessment or environmental impact statement under the National Environmental Policy Act. See NOAA Administrative Order 216-6.03(e)(1). Thus, NMFS has determined that the depletion designation of this stock under the MMPA is exempt from the requirements of the National Environmental Policy Act of 1969, and an Environmental Assessment or Environmental Impact Statement is not required.

The Assistant General counsel for Legislation and Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule will not have a significant economic impact on a substantial number of small entities. No comments were received regarding this certification. As a result, no regulatory flexibility analysis was prepared.

This rule does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act of 1980. This rule does not contain policies with federalism implications sufficient to warrant preparation of a federalism assessment under E.O. 13132.

The Atlantic shark fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP) is implemented by regulations at 50 CFR part 635.

On May 8, 2002, NMFS announced the availability of the first SCS stock assessment since 1992 (67 FR 30879). The Mote Marine Laboratory and the University of Florida provided NMFS with another SCS stock assessment in August 2002. Both these stock assessments indicate that overfishing is occurring on finetooth sharks. The three other species in the SCS complex (Atlantic sharpnose, bonnethead, and blacknose) are not overfished and overfishing is not occurring.

On October 17, 2002, NMFS announced the availability of the LCS stock assessment (67 FR 64098), which currently constitutes the best available science for LCS. The results of this stock assessment indicate that the LCS complex is still overfished and overfishing is occurring; that sandbar sharks are no longer overfished but that overfishing is occurring; and that blacktip sharks are rebuilt and overfishing is not occurring. The peer review process for the 2002 LCS stock assessment, required under the December 2000 settlement agreement with commercial fishermen, was completed in mid-December, 2002.

As a result of these stock assessments, NMFS published an emergency rule on December 27, 2002 (67 FR 78990), that implemented management measures based on the best available science. The December 2002 emergency rule expires on June 30, 2003.

This extension to the December 2002 emergency rule (1) maintains the commercial annual quotas for ridgeback and non-ridgeback LCS at 783 mt dw and 931 mt dw, respectively; (2) maintains the commercial annual quota for SCS at 326 mt dw; and (3) continues to suspend the regulation regarding the commercial ridgeback LCS minimum size. This emergency rule does not affect commercial management measures for pelagic sharks and does not affect the management measures for prohibited species or recreational fisheries.

The extension is necessary to manage and conserve LCS and SCS based on the best scientific information available. Without this emergency rule extension, the reduced LCS and SCS commercial quotas of 816 mt dw and 329 mt dw, respectively, adopted in the HMS FMP and based on the 1998 LCS stock assessment, would be in force, inconsistent with the terms of the court-approved settlement agreement and with National Standard 2 of the Magnuson-Stevens Act. The settlement agreement with commercial fishermen explicitly provided that NMFS could adjust LCS quotas and other management measures in the 1999 HMS FMP based on the 2002 LCS stock assessment after completion of a peer review process, but could take emergency action as needed based on the assessment pending completion of the review process.

NMFS is developing Amendment 1 to the HMS FMP for Atlantic sharks in response to the new stock assessments. NMFS recently completed scoping hearings on Amendment 1 to the HMS FMP and is developing a proposed rule for public review and comment. The proposed rule should be available during the summer of 2003 and the final rule should be effective by January 1, 2004.

NMFS conducted four public hearings on the emergency rule (68 FR 1024, January 8, 2003) and received many written and oral comments over a 50 day comment period. In addition, HMS Advisory Panel members provided NMFS with comments specific to the shark emergency rule at a meeting in Silver Spring, Maryland on February 10-12, 2003. Comments were submitted by recreational and commercial fishing organizations, state agencies, conservation groups, and the general public. The following is a summary of the major comments together with NMFS' responses. The comments are arranged by topic similar to the organizational structure of the EA/RIR.

Comment 1: The LCS quota established by the December 27, 2002, emergency rule is 2 million pounds dw less than the 1996 quota. The 1996 quota level would be available now if NMFS had assessed certain species of shark such as bull, dusky, silky, spinner, three species of hammerheads, and tiger. This is especially true given that dusky and tiger sharks, in particular, have shown large increases in catch lately.

Response: The status of the LCS stock and the quota set in the emergency rule are based on the results of the 2002 LCS stock assessment which represents the best available science. The stock assessment was conducted for individual species for which there was sufficient information and for the complex as a whole to account for other species. The information from the stock assessment on the LCS complex as a whole indicates the LCS complex is overfished and that overfishing is occurring. This result does not warrant an increase in quotas for the species mentioned. Information may be available to conduct a stock assessment on dusky sharks in the future.

Comment 2: The NMFS EA/RIR failed to describe which models were used to arrive at the quota levels. The EA/RIR did not provide the justification for choosing certain models. Additionally, NMFS did not acknowledge that uncertainty levels are high. NMFS should establish formal criteria for selecting appropriate models for determining quotas prior to completion of the stock assessment and not after. Also, NMFS should consider incorporating formal decision analysis techniques as part of the stock assessment.

Response: NMFS relied on overall conclusions and findings of the stock assessment to determine quota levels consistent with the status of stocks. Similarly, determinations as to whether a stock is overfished or whether overfishing is occurring are based on the overall conclusions and findings of the stock assessment. The conclusions and findings of the stock assessment are based on balancing the results of all models, the appropriate application of the models, the sensitivity of the models to the data, and the convergence of the models. NMFS will consider formally identifying the criteria used to balance the results of the models in advance of the next stock assessment.

Comment 3: Increasing the LCS quota was unjustified and could result in an increase in effort, which in turn, could result in an increase in bycatch of sharks and protected species.

Response: NMFS set the ridgeback quota on a slightly reduced level from the average ridgeback harvest, based on average landings of each species, as a precautionary measure to ensure the species in the ridgeback LCS group, other than sandbar sharks, do not decline further. A similar process was followed to ensure that the non-ridgeback LCS, other than blacktip and spinners, do not decline further. The addition of 20 percent to the blacktip portion of the non-ridgeback quota level corresponds to the lower end of the increase suggested for blacktip sharks by the 2002 LCS stock assessment. NMFS does not expect the LCS quotas established in the emergency rule to result in increased fishing effort. From 1999 to 2001, the average LCS landings for all fishermen, including fishermen fishing in state waters, has been 1,693 mt dw and has ranged from 1,616 to 1,778 mt dw. The total ridgeback and non-ridgeback quota under the emergency rule is within this range of recent landings at 1,714 mt dw. Under this landings level, the stock assessment found that the status of the LCS complex as a whole has improved since 1998. Because a number of states now close state waters with the closure of federal waters, because state landings are considered in LCS quota monitoring, and because federal permits are under a limited access system, NMFS does not expect an increase in LCS landings or effort or an increase in non-target finfish or protected species impacts.

Comment 4: The LCS quota appears to be appropriate and does not pose significant risk to the continued rebuilding of the sandbar shark or the LCS complex. Additionally, experience shows that fishermen can target and produce catches that are largely dominated by blacktip sharks.

Response: NMFS agrees. As described in response to comment 2, NMFS believes the quotas are appropriate.

Comment 1: The method of measuring ridgeback sharks described in the final rule for the HMS FMP (64 FR 29090, May 28, 1999) will not work properly.

Response: This extension to the emergency rule suspends the minimum size requirement. NMFS will re-consider this comment when developing management alternatives for Amendment 1 to the HMS FMP.

Comment 2: NMFS should provide an explanation as to why the ridgeback minimum size was lifted.

Response: The ridgeback minimum size requirement was finalized in the 1999 HMS FMP based in part on the status of sandbar sharks according to the 1998 LCS stock assessment. Due to a lawsuit by the commercial fishing industry, the regulation was never implemented. In 2002, NMFS conducted another LCS stock assessment that found that sandbar sharks were no longer overfished. Given that sandbar sharks are rebuilding without a minimum size requirement and given that implementation of a minimum size requirement can increase discards of sandbar and other sharks, NMFS believes that implementation of a minimum size could slow rebuilding of sandbar sharks and other LCS. NMFS will re-examine in Amendment 1 to the HMS FMP the implications, including those regarding dead discard, of implementing the minimum size in the commercial fishery.

Comment 1: The SCS quota should not have been reduced because the assessment for finetooth sharks was incomplete and NMFS needs to gather more information about this species.

Response: A stock assessment for SCS was completed in 2002. This stock assessment examined all SCS individually and as a whole complex and found that overfishing is occurring on finetooth sharks. While the stock assessment states that findings for finetooth sharks should be regarded more cautiously from the results for some of the other species because it used shorter catch-per-unit-effort series and it lacked some bycatch estimates and catches in some years, the results of the stock assessment are still considered the best available science and NMFS must manage the fishery accordingly. In Amendment 1 to the HMS FMP, NMFS plans to examine the available information for finetooth and other SCS to determine the sources of fishing mortality and consider other alternatives, such as time/area closures, that may reduce fishing effort on finetooth sharks while minimizing impacts on the SCS fishery.

Comment 2: Because finetooth, blacknose, and bonnethead may not be legally taken by recreational fishermen in federal or state waters because they do not reach the 4.5 foot FL size limit, commercial fishermen should be allowed to land more.

Response: The SCS quota capped landings at the highest level of landings by commercial fishermen, including fishermen fishing in state waters. This quota cap was implemented to ensure fishing effort did not increase on finetooth sharks pending Amendment 1 to the HMS FMP.

Comment 3: NMFS estimates of shark bycatch in the shrimp trawl fleet would exceed the annual quota for SCS.

Response: NMFS acknowledges the incorrect estimates provided in the EA/RIR and clarifies in this emergency rule extension that only dead discards from HMS fisheries will be counted against the federal commercial SCS quota. Bycatch and discards in non-HMS fisheries are considered in the stock assessment. NMFS will work with the appropriate management body to minimize shark bycatch in those fisheries, to the extent practicable.

Comment 1: Dead discards should not be counted against future shark quotas. The number of dead discards should only be used in stock assessments that set quotas, in order to prevent confusion among fishermen.

Response: Dead discards are used in stock assessments to determine the current level of fishing mortality and the status of the stocks. The stock assessment does not set the quota; instead the stock assessment provides estimates on the current rate of fishing mortality, the current biomass level, the rate of fishing mortality that the stock may be able to withstand, and the biomass level that could support maximum sustainable yield. From those estimates, NMFS can calculate a total allowable catch level. The quota level set in this emergency rule should be considered a commercial total allowable catch, including all state and federal landings and dead discards in HMS fisheries. NMFS is considering other methods for setting commercial landings quotas in Amendment 1 to the HMS FMP.

Comment 2: NMFS should be commended for including state landings and dead discards in the quota. However, NMFS has not demonstrated that raising the quota to account for state landings and discards will not increase landings further.

Response: The LCS ridgeback and non-ridgeback quotas in the emergency rule are based on average landings from 1999 to 2001 including landings after federal closures. Any state landings and dead discards by HMS fishermen will be counted against the federal commercial quota. Additionally, if the catch quota is exceeded, the quota for the following year will be reduced. Similarly, dead discards will also reduce the quota in future years. Thus, overall landings should not increase. As described above, because a number of states now close state waters with the closure of federal waters, because state landings are considered in LCS quota monitoring, and because federal permits are under a limited access system, NMFS does not expect an increase in LCS landings or effort or an increase in non-target finfish or protected species impacts.

Comment 3: NMFS should explain why accounting for dead discards will not take effect until 2005.

Response: There is a time lag between the season closure dates and when all final landings are reported, entered into a database, and checked for quality control. Logbook data being reported in 2003 will not be fully entered and checked until late spring/early summer 2004. At that time, NMFS will attempt to verify logbook data with dealer and observer reports. However, the actual amount of dead discards for 2003 will not be available until after the fishing seasons for 2004 have begun or ended. Thus, dead discards from 2003 cannot be used to adjust the catch quota until 2005.

Comment 1: NMFS should consider staggered closure dates. Closing the fishery early would allow NMFS to tally the catch to date and then reopen it if there is quota remaining.

Response: NMFS has tried this approach in the past and received numerous complaints from fishermen. Because most shark fishermen are permitted in numerous fisheries, after the shark season is closed, many of them refit their vessels to fish for other species. If NMFS then reopens the fishery, fishermen once again need to refit their vessels. Additionally, staggered closure dates with no advanced notice of when or if the fishery will reopen makes it difficult for fishermen to maintain a market niche. NMFS may examine this issue in Amendment 1 to the HMS FMP or in a future rulemaking.

Comment 2: NMFS should consider moving the season start date from July 1 to June 1 for better market opportunities during the Forth of July holiday season. Similar consideration should be given to moving the January 1 start date to December 1.

Response: Changing the season start date may have ecological and economic impacts. An analysis of these impacts needs to be fully considered by the public and NMFS before implementation. NMFS may consider changing season start dates in Amendment 1 to the HMS FMP or in a future rulemaking.

Comment 3: The seasons for ridgeback and non-ridgeback LCS are out of sync with one another and will result in additional discards. NMFS should set a single season closure date for both ridgeback and non-ridgeback LCS. This would also help with enforcement of fishing season closures.

Response: The opening and closure dates for ridgeback and non-ridgeback LCS are based in part on catch rates in previous years. When setting the opening and closure dates, NMFS also considered the fact that, even though fishermen can target certain species, ridgeback LCS could be discarded during the non-ridgeback LCS season. NMFS may consider a single season closure and other options in Amendment 1 to the HMS FMP.

Comment 1: NMFS should consider time/area closures to protect juvenile sharks.

Response: Time/area closures may have ecological and economic impacts. The impacts of any closures need to be fully considered by the public and NMFS before implementation. Additionally, some time/area closures to protect juvenile sharks may require coordination with states. NMFS may consider time/area closures as part of Amendment 1 to the HMS FMP.

Comment 2: The LCS fishery should be closed in April to protect pregnant females and pups.

Response: NMFS is considering several alternatives to protect pregnant female sharks and pups in Amendment 1 to the HMS FMP. These alternatives include time/area closures, regional quotas, and changing fishing season start dates.

In 1997, Amendment 5 to the FMP established a limited entry program for the Illex squid fishery in response to a concern that fishing capacity could otherwise expand to overexploit the stock. At the time the program was established, there was a concern that the capacity of the limited entry vessels might prove, over time, to be insufficient to fully exploit the annual quota. In response to this concern, a 5-year sunset provision was placed on the Illex squid limited entry program. Framework 2 to the FMP extended the Illex squid moratorium for 1 year, and it is currently scheduled to end on July 1, 2003. Since the implementation of the limited entry program, the Illex squid fishery's performance has demonstrated that the current fleet possesses the capacity to harvest the long-term potential yield from this fishery. The Mid-Atlantic Fishery Management Council (Council) must prepare an amendment to the FMP (Amendment 9) to evaluate whether or not the limited entry program should be made permanent. In the meantime, this action extends the Illex squid moratorium through July 1, 2004, to prevent overcapitalization while Amendment 9 is being prepared and considered by the Council. This extension would comply with the criteria in section 303(b)(6) of the Magnuson-Stevens Act. The extension would allow the Council additional time to consider long-term management for the Illex squid fishery, including the limited entry program. Vessels that took small quantities of Illex squid in the past may continue to do so under the incidental catch provision of the FMP.

The Council developed Framework 3 under the framework abbreviated rulemaking procedure codified at 50 CFR part 648, subpart B. This procedure provided the public with the opportunity to comment on the proposed actions at Council meetings held in October and December 2002. In addition, the proposed rule provided an opportunity for public comment. Two commenters submitted one comment on the proposed rule.

Comment : The commenters supported extending the Illex squid moratorium through July 1, 2004, while Amendment 9 is being prepared and considered by the Council.

Response : This final rule implements the proposed measure.

There were no changes from the proposed rule.

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

The Council and NMFS prepared a FRFA for this action. Two comments were submitted on the proposed rule, but were not specific to the initial regulatory flexibility analysis (IRFA) or economic impacts of the rule. No changes were made to the proposed rule as a result of the comments received. This action does not contain any reporting, or recordkeeping requirements. There are 73 vessels that have been issued moratorium permits, all of which would be impacted by this action. Since the data are not available to calculate per vessel costs for vessels participating in the Illex moratorium fishery, individual vessel profitability could not be estimated. Therefore, changes in gross revenue of the aggregate fleet is used as a proxy for changes in individual vessel profitability. Furthermore, assumptions are made that revenue losses and gains are shared equally among all vessels. NMFS' guidelines suggest consideration of disproportionate economic impacts between large and small entities that may result from the regulatory action. Because there are no large entities (vessels) participating in this fishery, small vessels will not be placed at a competitive disadvantage relative to large vessels, thus rendering the issue of disproportionate impacts between these two classes moot. The FRFA consists of the IRFA and a summary of the analyses done in support of this action. A copy of the analyses is available from the Council (see ADDRESSES ) or via the Internet at http://www.nero.noaa.gov/ro/doc/com.htm . A summary of the FRFA follows:

In addition to the preferred Alternative 1, the Council considered three non-preferred alternatives. Alternative 2 would extend the moratorium on entry to the Illex fishery for an additional 2 years (through July 1, 2005); Alternative 3 would extend the moratorium on entry to the Illex fishery for an additional 3 years (through July 1, 2006); and Alternative 4 would allow the moratorium on entry to the Illex fishery to expire on July 1, 2003 (no action).

The preferred alternative and Alternatives 2 and 3 would extend the moratorium on entry of new vessels into the Illex fishery; therefore, no impact is expected on vessels in the fishery in 2003 (and the first half of 2004), compared to individual vessel revenues in 2002. The Council assumed that the market and prices would remain stable. Therefore, any changes in individual vessel revenues would be the result of factors outside the scope of the moratorium (e.g., change in fishing practices for individual vessels, or changes in abundance and distribution of Illex squid).

Under Alternative 4, the no-action alternative, the Illex fishery would revert to open access. This would result in an increase in fishing effort in the Illex fishery. New vessels entering the fishery would limit per vessel share of the Illex squid quota and reduce revenues for the present participants. Computing the total revenue losses for the existing moratorium vessels is impossible due to the unpredictability of redirection of effort into the Illex squid fishery. Therefore, the Council developed a sensitivity analysis to determine the impact of the entry of additional vessels into the fishery on revenues earned by individual vessels already engaged in the fishery. The sensitivity analysis examined three scenarios that presumed revenues derived from landings of Illex squid would be reduced by 75, 50, and 25 percent. The analysis was based on 1998 data because in 1998 the Illex quota was completely harvested. Therefore, those data would allow the greatest impact to be assessed.

Under scenario 1, the review of revenue impacts examined the landings of vessels that landed at least 1 pound (0.45 kg) of Illex in 1998 and presumed that revenues derived from landing Illex for these vessels would be reduced by 75 percent. The 109 impacted vessels (the 73 vessels with moratorium permits, plus open access vessels who landed Illex in 1998) were projected to be impacted by revenue losses that ranged from less than 5 percent for 79 vessels, to a maximum of 40-49 percent for two vessels. There were no impacted vessels home-ported in Maryland, New Hampshire, or Virginia; a high of 15 vessels had home ports in New Jersey. Other impacted vessels were home-ported in Massachusetts, Maine, Rhode Island, New York, and North Carolina. Presumably, other vessels entering the fishery would experience gains in revenues.

Under scenario 2, the review of revenue impacts presumed that vessel revenues derived from landing Illex would be reduced by 50 percent. The 109 impacted vessels were projected to be impacted by revenue losses that ranged from less than 5 percent for 84 vessels, to a maximum of 30-39 percent for one vessel. There were no impacted vessels home-ported in Maryland, New Hampshire, or Virginia; a high of 11 vessels had home ports in New Jersey. Others were in Massachusetts, Maine, Rhode Island, and North Carolina. Presumably, other vessels entering the fishery would experience gains in revenues.

Under scenario 3, the review of revenue impacts presumed that vessel revenues derived from landing Illex would be reduced by 25 percent. The 109 impacted vessels were projected to be impacted by revenue losses that ranged from less than 5 percent, for 88 vessels, to a maximum of 10-19 percent for eight vessels. The number of impacted vessels by home state ranged from none in Maryland, New Hampshire, New York, and Virginia, to a high of 11 in New Jersey. Other impacted vessels were home-ported in Massachusetts, Maine, Rhode Island, and North Carolina.