This rule has been determined to be Significant and was reviewed by the Office of Management and Budget under Executive Order 12866.

The Food Stamp Program is listed in the Catalog of Federal Domestic Assistance under No. 10.551. For the reasons set forth in the final rule in 7 CFR part 3015, subpart V and related Notice (48 FR 29115, June 24, 1983), this Program is excluded from the scope of Executive Order 12372 which requires intergovernmental consultation with State and local officials.

This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Eric M. Bost, Under Secretary for Food, Nutrition, and Consumer Services, has certified that this rule will not have a significant economic impact on a substantial number of small entities. State and local welfare agencies will be the most affected to the extent that they administer the Program.

Unfunded Mandate Reform Act of 1995 (UMRA). Title II of UMRA establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the Food and Nutrition Service (FNS) generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires FNS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector of $100 million or more in any one year. This rule is, therefore, not subject to the requirements of sections 202 and 205 of the UMRA.

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under section (6)(b)(2)(B) of Executive Order 13132. FNS has considered this rule's impact on State and local agencies and has determined that it does not have Federalism implications under E.O. 13132. This rule does not impose substantial or direct compliance costs on State and local governments. Therefore, under section 6(b) of the Executive Order, a Federalism summary impact statement is not required.

FNS has reviewed this interim rule in accordance with the Department Regulation 4300-4, “Civil Rights Impact Analysis,” to identify and address any major civil rights impacts the rule might have on minorities, women, and persons with disabilities. After a careful review of the rule's intent and provisions, FNS has determined that this rule has no impact on any of the protected classes. These changes affect the quality control review system and not individual recipients' eligibility for or participation in the Food Stamp Program. FNS has no discretion in implementing these changes. The changes are required to be implemented by law. All data available to FNS indicate that protected individuals have the same opportunity to participate in the Food Stamp Program as non-protected individuals. FNS specifically prohibits the State and local government agencies that administer the Program from engaging in actions that discriminate based on race, color, national origin, gender, age, disability, marital or family status. Regulations at 7 CFR 272.6 specifically state that “State agencies shall not discriminate against any applicant or participant in any aspect of program administration, including, but not limited to, the certification of households, the issuance of coupons, the conduct of fair hearings, or the conduct of any other program service for reasons of age, race, color, sex, handicap, religious creed, national origin, or political beliefs. Discrimination in any aspect of program administration is prohibited by these regulations, the Food Stamp Act of 1977 (the Act), the Age Discrimination Act of 1975 (Pub. L. 94-135), the Rehabilitation Act of 1973 (Pub. L. 93-112, section 504), and title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d). Enforcement action may be brought under any applicable Federal law. Title VI complaints shall be processed in accord with 7 CFR Part 15.”

This interim rule does not contain changes to the reporting or recordkeeping requirements subject to approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507). Reporting and recordkeeping requirements for quality control are approved under OMB numbers 0584-0074, 0584-0299, 0584-0303, and 0584-0034. There are no changes being made in this rulemaking that will alter the reporting and recordkeeping requirements related to quality control approved under these burdens. The legislative change concerning corrective action planning does not affect the burden in 0584-0010 for reporting and recordkeeping because the change only affects which States would be required to submit corrective action plans and because the number of states required to submit corrective action plans will not change under the new requirement. The burden approved under OMB number 0584-0010 was allowed to expire. The Food and Nutrition Service has initiated action to reinstate the burden under 0584-0010.

In compliance with the Government Paperwork Elimination Act, FNS is committed to providing electronic submission as an alternative for information collections associated with this rule. However, we are not able to make the entire process electronic at this time.

Part of the process allows electronic submission. The Quality Control review schedule (approved under OMB #0584-0299) serves as both the data summary entry form that the reviewer completes during each review, and subsequently, as the data input document for direct data entry into the Kansas City Computer Center (KCCC). While the data is manually collected on a paper form from information extracted from a case file, it is electronically submitted to the KCCC for tabulation and analysis. Some States have begun to use computerized versions of the worksheet (OMB number 0584-0074), which provides information collected on the review schedule. In addition, the FNS contractor for the data collection system has developed, at FNS request, a computerized version of the worksheet. States are being given the option to continue to use their own systems, the new computerized version provided by FNS or the paper version. When FNS computerized versions of the worksheet are used, the information is linked to and creates the review schedule.

Under OMB number 0584-0034, the burden for collecting and reporting information related to the review of negative cases and the status of sample selection and completion is approved. The FNS-245 serves as both the data summary entry form that the reviewer completes during each negative case review, and subsequently as the data input document for direct data entry into the KCCC. Therefore, while data is manually collected, it is electronically submitted to the KCCC for tabulation and analysis. The FNS-248 (Status of Sample Selection and Completion) collects information on the status of State reviews. The FNS-248 contains information not produced by the automated system, therefore this report is still necessary. However, we are considering ways that this data could be collected electronically.

The burden under OMB number 0584-0303 encompasses the sampling plan, arbitration, and good cause. At this time, these areas are not substantively electronic submittals. To the extent possible, States may submit documents or portions of documents electronically.

States have the option to maintain in paper or electronic format information compiled for the Performance Reporting System, including Management Evaluation, Data Analysis and Corrective Action information. The State maintains the information on site to be available for FNS review (OMB number 0584-0010).

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations, or policies that conflict with its provisions or that would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless so specified in the “Effective Date” paragraph of the final rule. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted. In the Food Stamp Program the administrative procedures are as follows: (1) For Program benefit recipients—State administrative procedures issued pursuant to 7 U.S.C. 2020(e)(1) and 7 CFR 273.15; (2) for State agencies—administrative procedures issued pursuant to 7 U.S.C. 2023 set out at 7 CFR 276.7 (for rules related to non-quality control (QC) liabilities) or Part 283 (for rules related to QC liabilities); (3) for retailers and wholesalers—administrative procedures issued pursuant to 7 U.S.C. 2023 set out at 7 CFR 278.8 and part 279.

Need for Action: This rule amends the Food Stamp Program regulations to implement certain provisions concerning the Quality Control system in sections 4118 and 4119 of the Food Stamp Reauthorization Act of 2002. These provisions revise the liability procedures and establish new deadlines for completing the Quality Control review process and announcement of payment error rates. The rule has no Federal Program cost impacts, however, fewer States will be identified as having any potential liability, and any such liabilities will be significantly lower than under the existing system.

Justification of alternatives. The Department has no discretion regarding the legislative mandate to revise the liability and enhanced funding provisions of the QC system. Nor does it have discretion regarding the provision that revises time frames for completing the review and arbitration process and announcing individual State agency payment error rates at the end of each annual review period. The Department does have discretion in resolving the liabilities established under the new system. The Secretary may: Waive all or a portion of the liability; require the State agency to reinvest up to 50 percent of the liability in activities to improve program administration, which new investment money shall not be matched by Federal funds; designate up to 50 percent of the liability as at-risk for repayment if a liability is established based on the State agency's payment error rate for the subsequent fiscal year; or assert any combination of these options. Once the Secretary issues the original resolution proposal, only the amounts designated as waived or reinvestment are subject to negotiation between the State agency and the Department.

Effects on Food Stamp Recipients. This action is not anticipated to have any impact on benefit levels or food stamp program participation, as it does not change the program's eligibility requirements or benefit calculation.

Effects on Federal Program Costs. Since this action is not anticipated to have any impact on benefit levels or food stamp participation, we do not anticipate any impact on food stamp benefit costs. There is also no anticipated financial impact in administration costs from the changes in how liabilities are calculated, assessed, or collected.

Effects on Administering State Agencies: This rule affects State agencies by revising the QC sanction system. Under this rule, fewer States will be identified as having any potential liability, and any such liabilities will be significantly lower than under the existing sanction system. State agencies will also have additional time to complete the quality control review process.

Effect on Retailers. This action is not anticipated to have any impact on food stamp retailers.

This action is being finalized without prior notice or public comment under authority of 5 U.S.C. 553(b)(3)(A) and (B). The provisions contained in this rule are mandated by sections 4118 and 4119 of the Food Stamp Reauthorization Act of 2002. The Department has no discretion in implementing the specific provisions contained in this rule. These provisions are effective for the Fiscal Year 2003 review period beginning October 1, 2002. The provisions included in this rule are mandated by legislation, and the Department has no discretion in the methodology establishing the national performance measure, or in determining when State agencies develop corrective action plans resulting from payment error rates. Thus, the Department has determined in accordance with 5 U.S.C. 553(b) that a notice of proposed rulemaking and an opportunity for prior public comments is unnecessary. Discretionary regulatory changes that result from sections 4118 and 4119 will be addressed subsequently in one or more proposed rulemakings.

On May 13, 2002, the President signed Public Law 107-171, the Farm Security and Rural Investment Act of 2002. Title IV of Public Law 107-171, the Food Stamp Reauthorization Act of 2002, significantly revised the liability and enhanced funding provisions of the Quality Control (QC) system. In this interim rule, we are addressing the provisions in section 4118 of the Food Stamp Reauthorization Act of 2002 concerning establishment, adjustment, and collection of potential liabilities and the requirement to develop a corrective action plan when a State's payment error rate exceeds six percent. In this interim rule, we are also addressing the provision in Section 4119 that revises time frames for completing the review and arbitration process and announcing individual State agency error rates at the end of each annual review period. All remaining provisions not addressed in this rule will be addressed in one or more subsequent proposed rulemakings.

Section 4118 of the Food Stamp Reauthorization Act of 2002 amended Section 16(c) of the Food Stamp Act of 1977, as amended, significantly revising the system for determining liabilities for payment error rates. Under the Food Stamp Act, as amended, prior to enactment of the Food Stamp Reauthorization Act of 2002, liability was determined each fiscal year. As defined in 7 CFR 275.23(e) of the program regulations, the payment error tolerance level was the national performance measure for the fiscal year. The national performance measure is defined as the sum of the products of each State agency's payment error rate times that State agency's proportion of the total value of national allotments issued for the fiscal year using the most recent issuance data available at the time the State agency is notified of its payment error rate. A State agency that exceeded this tolerance level was subject to a liability claim equivalent to the total value of the allotments issued in the fiscal year by the State agency, multiplied by a factor that is the lesser of: (1) The ratio of the amount by which the payment error rate of the State agency for the fiscal year exceeds the national performance measure for the fiscal year, to the national performance measure for the fiscal year, or (2) one. This figure was then multiplied by the amount by which the payment error rate of the State agency for the fiscal year exceeded the national performance measure for the fiscal year.

Section 4118 of the Food Stamp Reauthorization Act of 2002 establishes a new multi-year liability system. The national performance measure continues to be defined as the sum of the products of each State agency's payment error rate times that State agency's proportion of the total value of national allotments issued for the fiscal year using the most recent issuance data available at the time the State agency is notified of its payment error rate. However, the method for determining any potential liability has changed. Under this system, Fiscal Year 2003 serves as the initial base year. For Fiscal Year 2004 and subsequent years, liability for payment shall be established whenever there is a 95 percent statistical probability that, for the second or subsequent consecutive fiscal year, a State agency's payment error rate exceeds 105 percent of the national performance measure. For example, if there were a 95 percent statistical probability that a State agency's payment error rate for Fiscal Year 2003 exceeded 105 percent of the Fiscal Year 2003 national performance measure, and again in Fiscal Year 2004, if there was a 95 percent statistical probability that the State's payment error rate exceeded 105 percent of the Fiscal Year 2004 national performance measure, a liability for Fiscal Year 2004 would be established. The amount of the liability shall be equal to the product of: The value of all allotments issued by the State agency in the (second or subsequent consecutive) fiscal year; multiplied by the difference between the State agency's payment error rate and 6 percent; multiplied by 10 percent.

In order to implement this change, we are revising 7 CFR 275.23(e). First, we are deleting subsections (e)(2), (e)(3), and (e)(4) because they address liability determinations for prior fiscal years that have already been resolved. Second, we are redesignating paragraph (e)(5) as paragraph (e)(2) and amending that subsection by deleting the words “and beyond” and replacing them with the words “through Fiscal Year 2002.” Finally, a new paragraph (e)(3) is being added that established the liability system for Fiscal Year 2004 and beyond. A conforming amendment is also being made redesignating paragraphs (e)(6), (e)(7), (e)(8), (e)(9), (e)(10), and (e)(11) as (e)(4), (e)(5), (e)(6), (e)(7), (e)(8), and (e)(9).

Prior to the passage of the Food Stamp Reauthorization Act of 2002, potential liabilities were established each year. The Secretary had unlimited authority to propose a resolution, including: waiving any or all of the amount; requiring that any or all of the amount be repaid to the Federal government; entering into an agreement to allow some or all of the liability amount to be reinvested in error reduction activities; or combining these options. Once issuing a proposed settlement plan to a State agency, the Secretary could negotiate with the State agency to revise any and all aspects of the proposed liability resolution.

Section 4118 establishes new requirements for resolving State agency liabilities for payment errors. Under the Food Stamp Act, as amended by the Food Stamp Reauthorization Act of 2002, the Secretary has the authority to waive or reduce any liability. The Secretary may require a State agency to reinvest up to 50 percent of the established liability in activities designed to reduce the payment error rate. The Secretary may also designate up to 50 percent of the liability as being “at-risk.” A State agency would be required to pay to USDA any money designated as “at-risk” if a liability for payment errors is established for the State agency the following fiscal year. The Secretary may combine these three options. In accordance with the Food Stamp Reauthorization Act of 2002, the Department and any State agency found liable for an excessive payment error rate must settle any waiver amount or reinvestment amount before the end of the fiscal year in which the liability is determined. The amount designated as being at-risk in the proposed settlement plan sent to the State agency is not subject to negotiation, in accordance with the provision in the Food Stamp Reauthorization Act of 2002 which provides that the Department shall make its liability resolution determinations and enter into a settlement with the State agency only with respect to any waiver amount or new investment amount (emphasis added). When the Department notifies the State agency of its payment error rate and its potential liability, that letter will also designate the amount to be waived, and what amount is designated as at risk and/or subject to reinvestment. Because the Department is authorized to enter into a settlement with a State agency concerning the amount to be waived or reinvested, the Department may opt to enter into negotiations with the State agency to waive any or all of the amount designated for reinvestment. Current regulations specify the requirements for reinvestment. Any reinvestment plan established for the amount designated for reinvestment either in the initial letter or as a result of negotiations much meet the requirements in 7 CFR 275.23(e)(11). However, the law does not allow the Department to negotiate any amount designated as at-risk, once that amount has been designated. Therefore, the Department will not negotiate with the State agency on the amount designated as at-risk once the notification letter has been sent to the State agency. The amount designated as at-risk cannot be reconsidered for waiving or reinvestment in the following year if a liability for payment errors is established for the State agency in the following fiscal year. A new paragraph (e)(10) is being added to § 275.23 establishing the Secretary's authority to resolve the liabilities under these three options.

In accordance with the Food Stamp Act, as amended, State agencies may appeal the amount of the liability established as described above. However, State agencies may not appeal the Secretary's decision as to how such liability will be resolved; i.e. , waived, at-risk, or reinvestment. Nor is the amount of the national performance measure subject to either administrative or judicial appeal, in accordance with section 4118 of the Food Stamp Reauthorization Act of 2002. The time frames and procedures for appealing were not changed by the Food Stamp Reauthorization Act of 2002 and the procedures in 7 CFR part 283 of the regulations remain in place.

The Secretary is required to initiate collection for any amount owed by the State agency before the end of the fiscal year in which the liability is determined. However, the requirement to resolve all liabilities before the end of the fiscal year shall be suspended if an administrative appeal relating to the liability is pending. The provision suspending collection pending an administrative appeal existed in the Food Stamp Act prior to the passage of the Food Stamp Reauthorization Act of 2002 and was not changed by that Act. Current regulations address this suspension, and accordingly, no changes are being made to the regulations.

Section 4118 provides that if a State agency appeals its liability determination, if the State agency began required reinvestment activities prior to an appeal determination, and if the liability amount is reduced to $0 through the appeal, the Secretary shall pay to the State agency an amount equal to 50 percent of the new investment amount that was included in the liability amount subject to the appeal. If the Secretary wholly prevails on a State agency's appeal, section 4118 provides that the Secretary will require the State agency to invest all or a portion of the amount designated for reinvestment during the appeal to be reinvested or to be repaid to the Federal government. Section 4118 further specifies that if neither party wholly prevails that the remaining liability will be treated pursuant to regulations issued by the Secretary. In this rule, we are incorporating into new § 275.23(e)(10) the provisions in section 4118 concerning either the Secretary or the State wholly prevailing. We will address in a proposed rule how any remaining liability will be handled if neither party wholly prevails on appeal.

Section 4119 of the Food Stamp Reauthorization Act of 2002 establishes new dates for resolution of the case review and arbitration process and for issuance of the national average payment error rate, the individual State final error rates, and the amounts of any payments claimed or liability amounts established. Under the Food Stamp Act prior to the Food Stamp Reauthorization Act of 2002, all case reviews and arbitration had to be completed not later than 180 days after the end of the fiscal year. FNS was required to announce the national average payment error rate, the individual State final error rates, and the amounts of any liabilities within 30 days following completion of the case reviews and arbitration. Under section 4119, all case reviews and arbitration are required to be completed by May 31 following the end of the fiscal year. The national average payment error rate, the individual State final error rates, and the amounts of any payments claimed or liability amounts established are required to be announced by June 30 following the end of the fiscal year. In accordance with section 4118, this rule also requires that FNS provide a copy of each State agency's notice of payment claimed or liability amount due to the State's chief executive officer and legislature. In this interim rulemaking, we are revising redesignated paragraph (e)(7) in § 275.23 to establish these new dates. Redesignated paragraph (e)(7) also requires FNS to provide the State chief executive officer and the legislature with a copy of the State's notice of payment claimed or liability amount. At this time we are not revising the time frames for processing individual cases or conducting individual arbitration cases. Implementing guidance was issued on January 22, 2003, providing interim direction to State agencies on completing cases reviews under these new time frames for Fiscal Year 2003. A proposed rule will be issued that addresses these issues.

Current regulations provide that corrective action planning shall be done by a State agency when it fails to reach the yearly target (§ 275.16(b)(1)), when the State agency is not entitled to enhanced funding (§ 275.16(b)(2)), or when the State agency's negative case error rate exceeds one percent (§ 275.16(b)(3)). Section 4118 of the Food Stamp Reauthorization Act of 2002 requires State agencies to do corrective action planning whenever its payment error rate is six percent or greater. Accordingly, we are revising § 275.16(b)(1) to require corrective action planning whenever a State agency's error rate equals or exceeds six percent. This change will have little real impact on State agencies because current regulations require corrective action planning whenever a State agency is not eligible for enhanced funding. One of the criteria for enhanced funding is that the payment error rate is below 5.90 percent. Therefore, all State agencies with error rates above 5.90 percent are already required to develop corrective action plans.

In addition several technical changes throughout 7 CFR part 275 have been made to correct references to paragraphs changed in this rulemaking and to fix typographical errors.

This rule is effective December 15, 2003. Section 4118 of the Food Stamp Reauthorization Act of 2002 was effective October 1, 2002, and section 4119 was effective upon enactment, May 13, 2002. This rule reflects these statutory provisions which impact the establishment of payment error rates, the national performance measure, and sanctions and liabilities for Fiscal Year 2003 and beyond.

This rule is issued under Marketing Agreement No. 98 and Marketing Order No. 945, both as amended (7 CFR part 945), regulating the handling of Irish potatoes grown in certain designated counties in Idaho, and Malheur County, Oregon, hereinafter referred to as the “order”. The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act”.

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

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Idaho-Eastern Oregon potato handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable potatoes beginning on August 1, 2003, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

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

This rule increases the assessment rate established for the Committee for the 2003-04 and subsequent fiscal periods from $0.0026 to $0.0045 per hundredweight of potatoes handled.

Section 945.40 of the order provides authority for the Committee, with the approval of the Secretary, to incur reasonable expenses for its maintenance and functioning. Section 945.41 requires the Committee to formulate an annual budget estimating its income and expenditures for the upcoming fiscal year and to present such budget to the Secretary for approval. Section 945.42(a) authorizes the Committee to assess handlers for their pro rata share of such expenses and § 945.42(b) provides that the rate of assessment be set by the Secretary based on the recommendation of the Committee. The members of the Committee are producers and handlers of potatoes grown in Idaho and Eastern Oregon. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are therefore in a position to formulate an appropriate budget and assessment rate. The assessment rate was discussed in a public meeting before the Committee members voted to recommend an increase. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 1996-97 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met on June 16, 2003, and unanimously recommended 2003-04 expenditures of $149,417 and an assessment rate of $0.0026 per hundredweight of potatoes handled, the same rate currently in effect. The Committee estimated the 2003-04 potato shipments at 36,500,000 hundredweight, which would generate $94,900 in assessment revenue. At that meeting, the Committee discussed increasing the assessment rate to respond to rising Committee expenses, declining assessment revenue, and shrinking operating reserves. After discussion, the Committee postponed any action until later in the fiscal period, believing that assessment revenue and operating reserves were sufficient to maintain Committee operations through the fiscal period.

The Committee conducted a telephone vote on July 18, 2003, and unanimously recommended a revised budget of $145,317 (down from $149,417) and to raise the assessment rate to $0.0045 per hundredweight of potatoes handled (up from $0.0026). In comparison, last fiscal period's budgeted expenditures were $137,094. The recommended assessment rate is $0.0019 higher than the rate currently in effect. The increase is necessary to offset an increase in salaries and operating expenses, declining potato shipments, and the depletion of operating reserves.

This major expenditures recommended by the Committee for the 2003-04 fiscal period include $95,067 for salaries and benefits, $16,500 for transportation, $13,500 for travel, $6,800 for rent and utilities, and $4,800 for office expenses. Budgeted expenses for these items in 2002-2003 were $92,144, $9,000, $14,000, $6,300, and $6,500, respectively. The transportation budget item covers the purchase of a new Committee vehicle and all of the operating and maintenance costs associated with it. The manager uses a Committee vehicle for handler compliance visits throughout the season, and other authorized Committee activities. Travel covers the cost of travel, lodging, and meals for the Committee manager and members when attending Committee meetings and conventions involving Committee authorized business.

The Committee estimates potato shipments for the 2003-04 fiscal period at 36,500,000 hundredweight, which should provide $164,250 in assessment income at the issued assessment rate. This income should be adequate to cover budgeted expenses. The Committee estimated monetary reserves to be approximately $33,000 at the beginning of the 2003-04 fiscal period. The reserves could potentially increase to $51,933 by the fiscal period end. The order permits an operating reserve in an amount not to exceed approximately one fiscal period's budgeted expenses (§ 945.44). Funds held in reserve will be kept within the maximum permitted by the order.

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

Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2003-04 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by USDA.

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

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

There are approximately 900 producers of potatoes in the production area and approximately 54 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.

Based on a three-year average fresh potato production of 35,448,000 hundredweight as calculated from Committee records, a three-year average of producer prices of $6.10 per hundredweight reported by the National Agricultural Statistics Service, and 900 Idaho-Eastern Oregon potato producers, the average annual producer revenue is approximately $240,259. It can be concluded, therefore, that most of these producers may be classified as small entities.

In addition, based on Committee records and 2002-03 f.o.b. shipping point prices ranging from $5.00 to $35.00 per hundredweight reported by USDA's Market News Service, many Idaho-Eastern Oregon potato handlers may ship over $5,000,000 worth of potatoes. In view of the foregoing, few of the handlers may be classified as small entities as defined by the SBA.

This rule increases the assessment rate established for the Committee and collected from handlers for the 2003-04 and subsequent fiscal periods from $0.0026 to $0.0045 per hundredweight of potatoes handled. The Committee unanimously recommended 2003-04 expenditures of $145,317 and an assessment rate of $0.0045 per hundredweight. The proposed assessment rate is $0.0019 per hundredweight higher than the 2002-03 rate. The quantity of assessable potatoes for the 2003-04 fiscal period is estimated to be 36,500,000 hundredweight. Income derived from handler assessments (approximately $164,250) should be adequate to cover budgeted expenses.

The major expenditures recommended by the Committee for the 2003-04 fiscal period include $95,067 for salaries and benefits, $16,500 for transportation, $13,500 for travel, $6,800 for rent and utilities, and $4,800 for office expenses. Budgeted expenses for these items in 2002-2003 were $92,144, $9,000, $14,000, $6,300, and $6,500, respectively.

The assessment rate increase is necessary to offset increases in salaries and operating expenses, declining potato shipments, and the depletion of operating reserves. The Committee estimated the reserve to be $33,000 at the 2002-03 fiscal period end. At the current rate of $0.0026 per hundredweight, and the estimated potato production of 36,500,000 hundredweight for the 2003-04 fiscal period, the projected income for the 2003-04 fiscal period would be $94,900. This amount, along with the projected reserve of $33,000, is approximately $19,417 less than required to fund the proposed 2003-04 budget and $9,194 less than the 2002-03 budgeted amount. Thus, the Committee believes that the projected assessment income at the current assessment rate and funds held in reserve would not be sufficient to fund the Committee's operations without increasing the assessment rate.

At the recommended rate of $0.0045 per hundredweight (assessment income of $164,250) and expenditures of $145,317, the Committee may increase its reserve by up to $18,933. The projected reserve would be approximately $51,933 on July 31, 2004, which the Committee determined to be both appropriate and acceptable.

The Committee considered alternate levels of assessment but determined that increasing the assessment rate to $0.0045 per hundredweight will allow the Committee to adequately fund operations and replenish the reserve to an acceptable level. The Committee decided that any assessment rate between $0.0026 per hundredweight and $0.0045 per hundredweight would not be sufficient to accomplish the Committee's goals. Prior to arriving at the budget and assessment rate recommendations, the Committee considered information from various sources, including the Committee's Finance and Executive Committees.

A review of historical information and preliminary information pertaining to the upcoming fiscal period indicates that the producer price for the 2003-04 fiscal period could range between $4.50 and $6.00 per hundredweight of potatoes. Therefore, the estimated assessment revenue as a percentage of total producer revenue could range between 0.1 and 0.075 percent.

This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the marketing order. In addition, the Committee's meeting was widely publicized throughout the Idaho-Eastern Oregon potato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the June 16, 2003, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

This rule imposes no additional reporting or recordkeeping requirements on either small or large Idaho-Eastern Oregon potato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

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

A proposed rule concerning this action was published in the Federal Register on August 28, 2003 (68 FR 51713). Copies of the proposed rule were also mailed or sent via facsimile to all potato handlers. Finally, the proposal was made available through the Internet by the Office of the Federal Register and USDA. A 15-day comment period ending September 12, 2003, was provided for interested persons to respond to the proposal. No comments were received.

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

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

Pursuant to 5 U.S.C. 553, it is also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because the 2003-2004 fiscal period began on August 1, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable Idaho-Eastern Oregon potatoes handled during such fiscal period. Further, handlers are aware of this rule which was unanimously recommended by the Committee. Also, a 15-day comment period was provided for in the proposed rule, and no comments were received.

The regulations in 9 CFR part 94 (referred to below as the regulations) govern the importation of certain animals and animal products into the United States in order to prevent the introduction of various animal diseases, including rinderpest, foot-and-mouth disease, African swine fever, classical swine fever (CSF), and swine vesicular disease. These are dangerous and destructive communicable diseases of ruminants and swine. Section 94.9 of the regulations restricts the importation into the United States of pork and pork products from regions where CSF is known to exist. Section 94.10 of the regulations prohibits, with certain exceptions, the importation of swine that originate in or are shipped from or transit any region in which CSF is known to exist. The regulations in §§ 94.9(a) and 94.10(a) provide that CSF exists in all regions of the world except for certain regions listed in those sections.

In an interim rule effective August 4, 2000, and published in the Federal Register on September 20, 2000 (65 FR 56774-56775, Docket No. 00-080-1), we amended the regulations by removing East Anglia (a region of England that includes Essex, Norfolk, and Suffolk counties) from the lists of regions considered to be free of CSF (which, at the time, we referred to as hog cholera). That action was necessary because CSF had been confirmed in East Anglia. The effect of the interim rule was to restrict the importation of pork and pork products and to prohibit the importation of swine into the United States from East Anglia.

Although we removed East Anglia from the list of regions considered to be free of CSF, we recognized that Great Britain's Ministry of Agriculture, Fisheries and Food (now part of the Department for Environment, Food, and Rural Affairs) immediately responded to the detection of CSF by initiating measures to eradicate the disease. In addition, disease spread was contained within East Anglia. Therefore, we limited the effect of our interim rule to East Anglia. We also stated that we intended to reassess the situation in the region at a future date in the context of Office International des Epizooties (OIE) standards, and that as part of that reassessment process, we would consider all comments received regarding the interim rule.

Additionally, we stated in the interim rule that the future reassessment would enable us to determine whether it was necessary to continue to prohibit the importation of swine and to restrict the importation of pork and pork products from East Anglia, or whether we could restore East Anglia to the list of regions in which CSF is not known to exist.

We solicited comments concerning the interim rule for 60 days ending November 20, 2000. We received one comment by that date, from a national pork industry association. This comment is addressed below.

On March 13, 2003, we published a notice in the Federal Register (68 FR 11998-11999, Docket No. 00-080-2) in which we advised the public of the availability of an evaluation that we had prepared concerning the CSF status of East Anglia. The evaluation, entitled “APHIS Evaluation of the Classical Swine Fever Status of East Anglia (counties of Norfolk, Suffolk, and Essex) November 2002,” assessed the CSF status of East Anglia and the related disease risks associated with importing animals and animal products into the United States from East Anglia.

We solicited comments concerning the evaluation for 60 days ending May 12, 2003, and received one comment by that date. The comment, which was submitted by a national pork industry association, was a resubmission of the comment sent by that organization in response to the September 2000 interim rule. The comment is discussed below.

Comment: The Animal and Plant Health Inspection Service (APHIS) should have followed its regulations in 9 CFR part 92 in the initial rulemaking to remove East Anglia from the list of regions recognized as free of CSF. In that rulemaking, APHIS established East Anglia, England, as a region affected with CSF, and continued to recognize the rest of Great Britain as free of that disease. There are several specific procedures set forth in part 92 that APHIS should be following. These are: (1) That APHIS will make information submitted in support of a request for regionalization available to the public prior to rulemaking; (2) that APHIS will publish a proposed rule for public comment; and (3) that during the comment period, the public will have access to the information upon which APHIS based its risk analysis, as well as to the methodology used to conduct the analysis.

Response: The regulations in 9 CFR part 92, “Importation of Animals and Animal Products; Procedures for Requesting Recognition of Regions,” were published in October 1997 in conjunction with APHIS' policy on regionalization (see Docket No. 94-106-8, 62 FR 56027-56033, October 28, 1997). The regulations set out the process by which a foreign government may apply to have all or part of a country recognized as a region or for approval to export animals or animal products to the United States under conditions based on the risk associated with animals or animal products from that region. Our intention was for these regulations to tell veterinary officials of foreign governments that have different risk levels within the country or extending across national boundaries and that wish to begin exporting animals or animal products to the United States how to request an initial evaluation of animal disease status or conditions for import of commodities. We did not intend for these regulations to apply in circumstances where an outbreak of a disease in a region previously recognized as disease-free, or an increased incidence of disease in a foreign region makes it necessary for the United States to take interim measures to protect its livestock from the foreign animal disease. In these cases, APHIS must take immediate action to prohibit or restrict imports from the region that now presents a disease concern, and the scope of that action may be limited to the portion of the region that presents the disease risk. Such action may include publishing an interim rule to provide an appropriate basis for enforcing prohibitions or restrictions that may initially be announced administratively. In these circumstances, APHIS has a responsibility to take whatever measures appear necessary to prevent the introduction of disease. We believe that publishing a proposed rule for comment would be contrary to the public interest because doing so would delay our taking protective actions. We also believe that making the information upon which we base our decisions for establishing a region via an interim rule available to the public for comment prior to publishing the interim rule would also be contrary to the public interest for the same reason. In the case of East Anglia, we felt that risk considerations justified our regionalization approach. However, we understand the commenter's concerns, and we have taken actions to address them. One of the actions we took in this case was the preparation of a risk assessment on the disease status of East Anglia, which we made available to the public for comment prior to this final rule.

We took action at a regional level in the case of East Anglia because we believed that the disease situation warranted it. We already had extensive information about the region, including information on the authority, organization, and infrastructure of the veterinary services organization of the region; the extent to which movement of animals and animal products is controlled from regions of higher risk, and the level of biosecurity for such movements; livestock demographics and marketing practices in the region; the type and extent of disease surveillance conducted in the region; diagnostic laboratory capabilities in the region; and the region's policies and infrastructure for animal disease control, i.e. , the region's emergency response capacity. This information provided the basis for our previous recognition of the region as free of the disease. Our obligations under international trade agreements compel us to take no more restrictive actions than necessary to prevent the introduction of disease. Unless we determine that this information is no longer reliable, it should provide a rational basis for believing that the region can effectively control an outbreak within a smaller region.

Comment: While the CSF outbreak in East Anglia presented an emergency situation justifying the issuance of an interim rule in order to protect against the introduction of CSF into the United States, the specific action APHIS took was not justified. The emergency situation only justified an interim rule removing all of Great Britain from the list of CSF-free regions, and any action with respect to regionalizing East Anglia should have been handled according to the procedures in § 92.2.

Response: As explained previously, we believe that it was appropriate to limit the scope of our action to the specific region of East Anglia, given the specific disease situation and the extensive information we already possessed about East Anglia and Great Britain as a whole. Given these factors, we are confident that we had sufficient justification for taking action with respect to East Anglia on an emergency basis to protect against the introduction of CSF into the United States. We believe that any action to remove all of Great Britain from the list of CSF-free regions would have been unnecessary and unjustified.

Comment: The Veterinary Equivalency Agreement (VEA) signed by the United States and the European Union (EU), which includes provisions concerning the recognition of regionalization decisions taken by the parties with respect to certain diseases, does not supercede or change U.S. statutory or regulatory law regarding regionalization. Thus, APHIS should have followed its procedures in part 92 in regionalizing East Anglia for CSF.

Response: The action that we took regarding East Anglia was not related to the VEA. As noted elsewhere in this document, we believe our action was consistent with our regulations and statutory authority, neither of which was affected by the VEA.

Comment: APHIS has received requests from the EU to recognize certain regions in the EU as free of specified animal diseases, but has not yet made any decisions or changes to the regulations based on these requests. How was APHIS able to reach a decision about the disease-free status of Great Britain with the exception of East Anglia while the other regionalization requests it had received from the EU have been under consideration since June 1999?

Response: The request that we received from the EU related to a much larger region that was not already recognized as free of CSF. In addition, that request related to establishing a single region composed of multiple countries, some of which continue to experience outbreaks of CSF. Immediate action at a regional level was not necessary in the case of the EU as it was for East Anglia. The amount of time necessary to reach a decision in these two situations is not comparable because the two situations are not comparable.

One factor that influenced the comparative speed of the evaluation of Great Britain in comparison with the evaluation of other EU regions was that Great Britain was already recognized individually as disease-free. In comparison, other EU regions under consideration were not previously recognized as disease-free, and several of these regions continue to experience periodic outbreaks of CSF. In addition, our long-standing trade relationship with Great Britain provided us with the information necessary to reach a decision about the disease status of the entire country. This particular outbreak was a temporary emergency situation that was ultimately limited to 16 sites in a particular region of the country and was contained and eradicated quickly.

Comment: Veterinary infrastructure and animal health authorities of the United Kingdom are highly professional and extremely conscientious, and APHIS confidence in them is well-founded. APHIS was also correct in its decision to take action in order to protect against the introduction of CSF into the United States. However, it is possible that APHIS might take similar action in the future ( i.e. , prohibit or restrict the movement of animals and animal products from particular regions within a disease-free country rather than from the entire country) with countries whose veterinary infrastructures are not as adequate as that of the United Kingdom. Thus, APHIS should clarify the regionalization procedures it intends to follow in the future. Further, in the interim rule, APHIS stated that it intended to reassess the disease situation in East Anglia in accordance with the standards of the OIE to determine whether it is necessary to continue to prohibit or restrict the importation of animals and animal products from that region. This statement suggests that APHIS intends at some future time to declare these regions free of the specified disease without following the process set forth in § 92.2. Finally, does APHIS' stated intent to reassess the situation in accordance with the standards of the OIE mean that APHIS plans to wait until East Anglia had completed the 6-month disease-free waiting period prescribed by the OIE before it considered the region disease-free?

Response: We wish to note that we have developed a uniform set of procedures to be followed when a region that we recognize as free of disease experiences an outbreak of that disease. These procedures, which are described in a proposed rule published in the Federal Register on June 24, 2003 (68 FR 37426-37429, Docket No. 02-001-1), include steps we would take to prevent the introduction of disease from that region or from a portion of that region and steps we would take to further assess the region's animal health status. These procedures include the release of a risk assessment for public comment prior to final rulemaking.

We will continue to implement our thorough and rigorous risk assessment process and will continue to require information about the authority, organization, and infrastructure of the veterinary services organization of each region; the extent to which movements of animals and animal products are controlled from regions of higher risk, and the level of biosecurity for such movements; livestock demographics and marketing practices in each region; diagnostic laboratory capabilities in each region; and each region's policies and infrastructure for animal disease control, i.e. , the region's emergency response capacity.

We will continue to take immediate action to protect U.S. livestock by prohibiting or restricting imports of animals and animal products from regions that experience outbreaks of specified animal diseases.

We will continue to reassess the disease status of each region in the context of the standards of the OIE and additional relevant information, and will continue to consider all public comments we receive regarding any action that we take. Although we do take international standards such as those of the OIE into consideration, we conduct independent risk assessments using our own stringent criteria. We do not base our decisions about the disease-free status of regions or countries on the decisions of the OIE.

The commenter is correct that our stated intent to reassess situations such as the one in East Anglia in accordance with the standards of the OIE means that we intend to declare regions free of specified diseases without following the process set forth in § 92.2. Rather, we will follow the process described in the previous paragraphs. As stated previously, part 92 was not specifically intended to apply to the type of situation dealt with in the interim rule that removed East Anglia from the list of CSF-free regions. An interim rule of that type is intended to be just that, an “interim” or “temporary” measure which provides the immediate protection necessary for animal health purposes. Interim rules of this type give APHIS an opportunity to evaluate the effectiveness of emergency response measures taken in the subject region to deal with the outbreak and to determine whether the outbreak is indeed a temporary situation or indicates a fundamental change in the region's disease status. If a region takes immediate and effective steps to control and eradicate the disease, as East Anglia did, we believe it is appropriate for the region to be returned to its previous disease-free status.

Therefore, for the reasons given in this document, and based on our evaluation, we are amending §§ 94.9 and 94.10 in this final rule to add East Anglia to the list of regions considered free of CSF.

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 CSF-related prohibitions and restrictions on the importation of swine and other products of swine into the United States from East Anglia 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. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.

We are amending the regulations governing the importation of certain animals, meat, and other animal products by restoring East Anglia, a region of England that includes the counties of Essex, Norfolk, and Suffolk, to the list of regions considered free of CSF. This final rule follows an interim rule that removed East Anglia from that list due to the detection of CSF in that region. Based on the results of an evaluation of the current CSF situation in East Anglia, we have determined that East Anglia can be restored to the list of regions considered to be free of CSF. This rule relieves certain CSF-related prohibitions and restrictions on the importation of swine and other products of swine into the United States from East Anglia.

The economic effects of this rule on U.S. entities will depend upon the number of swine and the quantity of pork products that will be exported to the United States from East Anglia, and the significance of these exports with respect to overall U.S. swine and pork product imports. Swine and pork producers and pork product wholesalers are the entities we expect will be affected by this rule.

We do not have specific information on the level of swine or pork products imported from East Anglia before that region was removed from the list of regions considered free of CSF in August 2000. However, an indication of the level of imports from East Anglia that may result once the region is again considered CSF-free can be acquired by comparing imports of swine and pork products from the United Kingdom prior to and during the period of East Anglia's restriction. Average annual imports from the United Kingdom including East Anglia for the 3-year period 1997-1999 are compared to average annual imports from the United Kingdom excluding East Anglia for the 2-year period 2001-2002. 1

Live swine have been prohibited entry into the United States from East Anglia since August 2000. During 1997-1999, the number of swine imported from the United Kingdom averaged 249 per year, and represented about 0.01 percent of average U.S. imports of 3.8 million swine per year. The average annual value of swine imported from the United Kingdom was about $123,000, or about 0.05 percent of the average annual value of all swine imports ($265 million). The average price of swine imported from the United Kingdom during the period 1997-1999 was much higher than the average price of all swine imports ($567 per animal compared to $72 per animal), reflecting their value as breeding stock rather than slaughter stock. 2

During 2001-2002, there were no swine imports from the United Kingdom. If all swine imported from the United Kingdom during 1997-1999 came, in fact, from East Anglia, then a similar number, if not more, can be expected to be imported once East Anglia is again considered CSF-free. Total annual imports from all sources in 2001-2002 increased to over 5.5 million swine. While the effect of renewed swine imports from East Anglia will be small in terms of its percentage share of swine imported by the United States, the high average price during 1997-1999 suggests that future imports may again help serve breeding demands of U.S. swine operations.

A similar comparison of pork product imports from the United Kingdom over the two time periods can be used in considering the impact of renewed importation of these commodities from East Anglia. During 1997-1999, the quantity of pork products imported from the United Kingdom averaged about 3.5 million kilograms per year, and represented about 1.55 percent of average U.S. imports of 225 million kilograms per year. Their average annual value was about $13 million, or about 2.76 percent of the average annual value of all product imports of $476 million.

During 2001-2002, there was a significant decline in the quantity of pork products imported from the United Kingdom, to about 509,400 kilograms per year, while total U.S. pork imports increased to 346 million kilograms per year. The United Kingdom's share of total imports fell to 0.15 percent, one-tenth of its share during 1997-1999. The average annual value was about $1.8 million, or about 0.24 percent of the average annual value of all pork product imports of $745 million (again, one-tenth of the United Kingdom's share during 1997-1999). The dramatic increase in annual pork product imports by the United States from the period 1997-1999 to the period 2001-2002—from 225 million kilograms to 346 million kilograms—contributed to the large percentage decline in imports from the United Kingdom.

If the decline in pork product imports from the United Kingdom was caused by the restrictions placed upon imports from East Anglia, then removal of those restrictions can be expected to result in a percentage share of U.S. imports for the United Kingdom similar to that acquired during 1997-1999, about 1.6 percent of total pork product imports by quantity and 2.8 percent by value. Based on the average annual level of total pork product imports during 2001-2002, these percentages represent about 5.4 million kilograms, valued at about $21 million.

Imports of swine and pork products from the United Kingdom are likely to expand once East Anglia is again considered CSF-free. The expansion could be noteworthy for the United Kingdom if exports to the United States return to the levels seen during 1997-1999: Breeding swine exports in the hundreds of animals per year where currently there are none, and an increase in pork product exports by a factor of 10. The economic effects will not be significant for U.S. entities. As a percentage of overall U.S. imports, the United Kingdom's supply of swine and pork products during 1997-1999 was small. Similar export levels can be expected to result from this rule.

Swine and pork producers and pork product wholesalers are the U.S. entities that may be affected by this rule. The Small Business Administration (SBA) has established size standards for determining which entities can be considered small, using the North American Industrial Classification System (NAICS). The SBA defines small hog and pig farms (NAICS 112210, “Hog and pig farming”) as those earning not more than $750,000 in annual receipts. National Agricultural Statistics Service data on hog farm inventories include farm size categories, among others, with minimums of 2,000 and 5,000 head. Only those swine operations with inventories well in excess of 3,000 animals would likely earn more than $750,000 in annual sales. 3 Over 95 percent of U.S. swine operations hold inventories of fewer than 2,000 head. Thus, most swine and pork producers can be considered small entities based on SBA standards.

In the same way, pork product wholesalers are also primarily small entities. The SBA defines pork product wholesalers (NAICS 424420, “Packaged frozen food merchant wholesalers,” and NAICS 424470, “Meat and meat product merchant wholesalers”) as small if they employ 100 or fewer employees. Information on the size distribution of meat wholesalers is not available, but the 1997 Economic Census indicates that the average number of employees per establishment that year was 14. 4

Although the industries that may be affected by this final rule are largely composed of small entities, the economic effects of the rule will not be significant. While imports of swine and pork products from the United Kingdom are expected to increase as a result of this rule, their market shares of overall U.S. imports are expected to remain small.

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

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

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

The FAA proposed to amend 14 CFR part 39 with a proposed airworthiness directive (AD). The proposed AD applies to PWC models PW118, PW120, PW120A, and PW121 turboprop engines. We published the proposed AD in the Federal Register on June 6, 2003 (68 FR 33885). That action proposed to require replacing the low pressure rotor speed (NL) sensor port sealing tube and reworking or replacing the external air tube connecting the P2.5/P3 switching valve to the rear inlet case.

Since the issuance of the notice of proposed rulemaking (NPRM), we found that the Accomplishment paragraphs referenced in compliance paragraphs (g), (h), (h)(1), and (h)(2) of the proposed rule are incorrect because of a change in service bulletin revisions. This AD corrects those Accomplishment paragraph references.

We provided the public with the opportunity to participate in the development of this AD. We have considered the comments received.

Two commenters state that there is no reference in the NPRM to the original service bulletin (SB) or any earlier revisions. The commenters have received confirmation from the manufacturer that the original SB and earlier revisions are technically equivalent to PWC SB No. 20914, Revision 4, dated December 14, 2001. Therefore, they are requesting that compliance with the original SB or any earlier revisions be permitted as full compliance with the intent of the AD and that no further action be required.

The FAA agrees. The AD is revised to add new compliance paragraph (f). The regulatory section of this AD is renumbered from (e), (f), (g), (h), (i), and (j) to (e), (f), (g), (h), (i), (j), and (k).

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

On July 10, 2002, the FAA published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's AD system. That regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. The material previously was included in each individual AD. Since the material is included in 14 CFR part 39, we will not include it in future AD actions.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 2003-NE-11-AD” in your request.

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 airplanes was published in the Federal Register on April 16, 2003 (68 FR 18567). That action proposed to require an inspection to determine the material composition of the auxiliary spar cap of the lower inboard of the left and right wings. For certain airplanes, that action also proposed to require repetitive detailed and dye penetrant inspections for cracking of the spar cap, and corrective actions if necessary.

The FAA has reviewed the descriptive phrase, “auxiliary spar cap of the lower inboard of the left and right wings,” as specified in the NPRM, and has determined that the phrase, “the lower inboard auxiliary spar cap of the left and right wing,” is more consistent with the wording of McDonnell Douglas DC-8 Service Bulletin 57-85, Revision 1, dated July 5, 1991 (the service bulletin specified in the NPRM). Therefore, we have revised that phrase where it appears in this final rule.

We also have revised paragraph (b) of this final rule to more accurately reflect the intent of the referenced service bulletin by specifying that the detailed inspection and a dye penetrant inspection for cracking be performed on both the lower inboard auxiliary spar caps.

Additionally, we have revised paragraph (b) of the final rule, added new paragraphs (c) and (d) of the final rule, and renumbered subsequent paragraphs accordingly to clarify the follow-on actions required for any cracking that is found.

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 FAA clarify the compliance time in paragraph (b) of the Notice of Proposed Rulemaking (NPRM). The commenter suggests that adding the words, “whichever occurs later” would clarify the intention of “Within 2 years or 2,000 flight cycles.”

The FAA agrees that clarification is needed. We inadvertently omitted the qualifying phrase after the words, “Within 2 years or 2,000 flight cycles.” However, our intention was not to permit the operator to choose whichever compliance time occurred later. We have determined that a compliance time of within 2 years or 2,000 flight cycles, whichever occurs first, is sufficient and adequate time to perform the detailed inspection and dye penetrant inspections required by paragraph (b) of the AD. We point out that the inspections required by paragraph (b) of the AD are required within 2 years or 2,000 flight cycles, whichever occurs first, after accomplishing the inspection required by paragraph (a) of the AD. Paragraph (a) of the AD has a compliance time of within 24 months or 2,000 flight cycles after the effective date of the AD, whichever occurs later. Considering the ample lead time to plan for these inspections, we have determined that a compliance time of 2 years or 2,000 flight cycles, whichever occurs first, after accomplishing the compliance time of paragraph (a) of the AD, is reasonable and provides an adequate level of safety of the affected fleet. We have revised paragraph (b) of the AD to clarify that the qualifying phrase for the compliance time is, “Within 2 years or 2,000 flight cycles, whichever occurs first, after accomplishing the compliance time of paragraph (a).” However, under the provisions of paragraph (e) of the AD, we may approve requests for adjustments to the compliance time if data are submitted to substantiate that such adjustments would provide an acceptable level of safety.

The same commenter also requests that the repetitive inspection interval specified in paragraph (b)(2) of the NPRM be increased from 1,600 flight cycles to 1,800 flight cycles. The commenter explains that such an extension of the repetitive inspection interval would coincide with the “C” check interval for its fleet. In addition, the commenter points out that the FAA has an obligation to consider many factors, such as other AD requirements and compliance times, when developing an appropriate compliance time. The commenter considers that the proposed repetitive inspection interval also would require scheduling special times to accomplish the inspections—at considerable additional expense.

We do not concur that the repetitive inspection interval should be extended. In developing an appropriate inspection interval for this AD, we considered the manufacturer's recommendation, the degree of urgency associated with the subject unsafe condition, the average utilization of the affected fleet, and the time necessary to perform the inspections. In light of all of these factors, we find that a repetitive inspection interval of 1,600 flight cycles represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety. No change is necessary to the final rule in this regard. However, under the provisions of paragraph (e) of the AD, we may approve requests for adjustments to the repetitive inspection interval if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety.

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 this change will neither increase the economic burden on any operator nor increase the scope of the AD.

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.

We have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.

There are approximately 264 airplanes of the affected design in the worldwide fleet. The FAA estimates that 244 airplanes of U.S. registry will be affected by this AD, that it will take approximately 2 work hours per airplane to accomplish the required actions, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $31,720, or $130 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 February 12, 2003, we published a notice of proposed rulemaking (NPRM) entitled “Drawbridge Operation Regulations; Atlantic Intracoastal Waterway, South Branch of the Elizabeth River to the Albemarle and Chesapeake Canal, Chesapeake, VA” in the Federal Register (68 FR 7087). We received 84 written comments and two petitions on the proposed rule. No public hearing was requested nor held.

The Virginia Cut of the Atlantic Intracoastal Waterway (AICW) extends approximately 28 statute miles from the Southern Branch of the Elizabeth River to the North Landing River. General regulations governing the operation of bridges are set out in 33 CFR 117.1 through 117.49. Specific drawbridge regulations, which supplement the general regulations for certain AICW bridges, are set out in 33 CFR 117.997.

The City of Chesapeake (the City), through a Resolution submitted by the Chesapeake City Council, requested changes to the existing regulations for the Jordan, Gilmerton, Dominion Boulevard and Centerville Turnpike bridges crossing the AICW, in order to balance the needs of mariners and motorists transiting in and around Chesapeake. Bridge openings at peak traffic hours during the weekdays cause considerable backups. The City is seeking to reduce the amount of vehicular traffic congestion during the weekday morning and evening rush hours. The City requested an additional change for the Dominion Boulevard bridge, from opening on signal to opening on the hour and half hour between peak traffic hours.

Recreational, public, and commercial vessels use the AICW. During the spring and fall months, the flow of recreational vessels is constant due to vessel owners that are referred to as “snowbirds”. Owners of these recreational vessels are either transiting north to south towards a warmer climate in the fall or south to north towards a cooler climate in the spring and this can result in excessive bridge openings during the rush hour due to their numbers.

On February 12, 2003, a NPRM was published in the Federal Register (68 FR 7087) proposing changes to the Jordan, Gilmerton, and Dominion Boulevard bridges that all span the Southern Branch of the Elizabeth River and the Centerville Turnpike bridges across the Albemarle and Chesapeake Canal. As a result of this proposal, 84 comments and two petitions were received on the proposed changes. Based on all the information received, we have made no changes from the proposed schedules for the Jordan, Gilmerton and Centerville Turnpike Bridges. However, we have made changes to the final rule for the Dominion Boulevard Bridge.

The Coast Guard received 12 comments on the NPRM for the Jordan Bridge. Seven of the comments requested a change in the start of the morning rush hour closure period by a half-hour from 6:30 a.m. to 6 a.m. The Coast Guard reviewed the City's weekday road traffic counts that were conducted in 1996 and again in 2001. The rush hour traffic count for these years revealed that vehicular traffic starts around 6:30 a.m. during the weekday. The remaining five comments requested mid-point bridge openings for vessels at 7:30 a.m., during the morning closure period from 6:30 a.m. to 8:30 a.m., and 4:30 p.m., during the evening closure period from 3:30 p.m. to 5:30 p.m. Based on the increased frequency of weekday vehicular traffic, as discussed in the NPRM, providing a mid-point bridge opening would undo the intent for reducing traffic congestion. The Coast Guard considered the comments, but has not changed the final rule.

The Coast Guard received 10 comments on the NPRM for the Gilmerton Bridge. Two comments requested that vessel openings be provided only on the hour or half-hour between the morning and evening rush hours. The remaining eight comments requested an extension of the evening closure period. The Coast Guard reviewed the draw logs and believes the proposal is designed to balance the competing needs of vehicular and vessel traffic. The Coast Guard considered the comments, but has not changed the final rule.

The Coast Guard received 48 comments and two petitions on the NPRM for the Dominion Boulevard Bridge. Thirty-four comments requested changing the proposed opening schedule on the hour and half-hour between 8:30 a.m. and 5 p.m., Monday through Friday, except Federal holidays, to open every hour on the half-hour during this period.

The Great Bridge (S168) Bridge across the Albermarle and Chesapeake Canal at mile 12.0 located just south of the Dominion Boulevard Bridge provides drawbridge openings on the hour between 6 a.m. to 7 p.m., seven days a week, year round. The Great Bridge Locks, (the Locks) owned and operated by the U. S. Army Corps of Engineers, (the Army Corps) is located between the Dominion Boulevard and the Great Bridge (S168) Bridges. The Locks opens for vessels traveling south on demand between 7 a.m. to 6 p.m., seven days a week. In practice, the Locks close their gates near the quarter of the hour at which time the water level is raised. However, according to the Army Corps if a boater reaches the gates after they have been closed, the Army Corps will open the gates to allow the boater inside in order to avoid missing the hourly opening of the Great Bridge (S168) Bridge. After attaining the required water level, the gates are opened so boaters can continue their transit with the hourly opening schedule of the Great Bridge (S168) Bridge.

A study conducted on March 3, 1999, determined an average transiting time of mariners at each location along the AICW between the Dominion Boulevard and the Great Bridge (S168) Bridges. A 41-foot Coast Guard (CG) Search and Rescue vessel assisted in the study. The Coast Guard vessel traveling at an average speed of 10 knots, determined to be the average speed of most AICW boaters, started at the Dominion Boulevard Bridge at approximately 10:13 a.m. Proceeding south of the Dominion Boulevard Bridge, the CG vessel arrived at the Locks at approximately 10:30 a.m. The Locks released the CG vessel at approximately 10:50 a.m. At 10:54 a.m., the CG vessel arrived in time for the scheduled hour opening of the Great Bridge (S168) Bridge. The CG vessel transiting time between the Dominion Boulevard and Great Bridge (S168) Bridges totaled 41 minutes. This total transit time included the 20 minutes the CG vessel waited for the Locks to open.

Based on the transit times, we have determined changing the regulations that govern the operation of the Dominion Boulevard Bridge to open every hour on the half-hour to coincide with the Great Bridge (S168) Bridge and the Locks will enable transient craft to reduce delays in navigating the AICW while also helping to ease vehicular traffic congestion. The bridge will open on signal for commercial vessels that provide a 2-hour advance notice and will open on demand at all times for commercial vessels carrying liquefied flammable gas or other hazardous materials. The final rule was changed to reflect these modifications.

The remaining 14 comments requested no vessel openings of the Dominion Boulevard Bridge during the morning and evening closure periods. The Coast Guard considered these comments, but has not changed the final rule.

Two petitions offered by local marinas requested a change to the proposed schedule between 8:30 a.m. and 5 p.m. Monday through Friday, except Federal holidays, from year-round to Memorial Day through Labor Day. The local marina owners also suggested that due to the high volume of “snowbirds” transiting the AICW, openings should be provided on signal before Memorial Day and after Labor Day for the safety of navigation.

The remaining comments indicate that road congestion starts at 4 p.m. versus 5 p.m. The final rule will maintain the current evening closure period from 4 p.m. to 6 p.m., Monday through Friday, except Federal holidays.

The Coast Guard considered these changes to be more efficient and safer to navigation and the final rule was changed to reflect these modifications.

The Coast Guard received 17 comments on the NPRM for the Centerville Turnpike bridge. The comments varied to change the half-hour opening proposal for recreational vessels between 8:30 a.m. to 4 p.m., Monday through Friday, except Federal holidays to provide one and two hour openings. Based on the draw logs and traffic counts provided by the City, an additional restriction is unfair to the boating public and would be potentially hazardous to boaters. The Coast Guard considered the comments, but has not changed the final 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 reached this conclusion based on the fact that this rule will have only a minimal impact on maritime traffic transiting the bridges. Mariners can plan their transits in accordance with the scheduled bridge openings, to further minimize delay.

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 that 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will not have a significant economic impact on a substantial number of small entities because the rule adds minimal restrictions to the movement of navigation, and mariners can plan their transits in accordance with the schedule bridge openings to minimize delay.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1966 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. In our notice of proposed rulemaking, we provided a point of contact to small entities who could answer questions concerning proposed provisions or options for compliance.

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 affect 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 section 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 would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it 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. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have analyzed this rule under Commandant Instruction M16475.1D, 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 (32)(e) of the Instruction, from further environmental documentation.

On March 20, 2003, we published a notice of proposed rulemaking (NPRM) in the Federal Register entitled “Safety and Security Zone; Cove Point Liquefied Natural Gas Terminal, Chesapeake Bay, Maryland” (68 FR 13647). In it we proposed a permanent safety and security zone. We received six letters commenting on the proposed rule. And in response to a request for a public meeting, we announced a June 5, 2003 public meeting and reopened the comment period to June 12, 2003. (68 FR 26247, May 15, 2003).

On August 1, 2003, we published a temporary final rule (TFR) entitled “Safety and Security Zone; Cove Point Natural Gas Terminal, Chesapeake Bay, Maryland, to provide temporary protection while the rulemaking for the permanent rule was underway (68 FR 45165). That TFR expired September 26, 2003.

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 . The Coast Guard is currently reviewing the additional comments received during the re-opened comment period and public meeting and requires more time to develop the final rule based on these additional comments. The Coast Guard believes it is in the best interest of public safety to establish this temporary safety and security zone while it continues to consider comments that may affect the final rule.

In preparation for the re-opening of the LNG terminal at Cove Point, MD, the Coast Guard is evaluating the current safety zone established in 33 CFR 165.502. This safety zone was established during the initial operation of the terminal in 1979 and includes both the terminal and associated vessels. To better manage the safety and security of the LNG terminal, this rule incorporates necessary security provisions and changes the size of the zone. This rule establishes a 500 yard combined safety zone and security zone in all directions around the LNG terminal at Cove Point.

Based on the September 11, 2001 terrorist attacks on the World Trade Center buildings in New York, NY and the Pentagon building in Arlington, VA, there is an increased risk that subversive activity could be launched by vessels or persons in close proximity to the Cove Point LNG Terminal. As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended section 7 of the Ports and Waterways Safety Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take actions, including the establishment of security and safety zones, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures. The Coast Guard also has authority to establish security zones pursuant to the Espionage Act of June 15, 1917, as amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 et seq. ) (“Magnuson Act”), section 104 of the Maritime Transportation Security Act of November 25, 2002, and by implementing regulations promulgated by the President in subparts 6.01 and 6.04 of part 6 of title 33 of the Code of Federal Regulations.

This temporary final rule is identical to the previous TFR published in the Federal Register (68 FR 45165) on August 1, 2003. The Coast Guard was unable to publish an extension to that rule, but the practical effect of this new TFR is the same—to continue to provide a temporary safety and security zone in this area.

The Coast Guard is establishing a temporary safety and security zone on specified waters of the Chesapeake Bay near the Cove Point Liquefied Natural Gas Terminal to reduce the potential threat that may be posed by vessels or persons that approach the terminal. The zone will extend 500 yards in all directions from the terminal. The effect will be to prohibit vessels or persons entry into the safety and security zone, unless specifically authorized by the Captain of the Port, Baltimore, Maryland. Federal, state and local agencies may assist the Coast Guard in the enforcement of this 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). This regulation is of limited size, and vessels may transit around the zone.

There may be some adverse effects on the local maritime community that has been using the area as a fishing ground. Since the terminal has not been in operation, the Coast Guard has not enforced the current zone under 33 CFR 165.502. Commercial vessel operators have been using the area on a regular basis for commercial fishing, passenger tours, and fishing parties. Enforcement of the proposed zone or the current zone will prohibit these commercial vessel operators from using this area.

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 rule will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Chesapeake Bay near the Cove Point LNG Terminal.

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

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

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

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 will 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 this rule establishes a security zone. A final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES.

In a document published in the Federal Register on March 26, 2003 (68 FR 14567-14570), VA proposed to amend its adjudication regulations to provide for a presumption of service connection for CLL based on herbicide exposure. VA provided a 60-day comment period which ended on May 27, 2003. We received a written comment from Vietnam Veterans of America (VVA) and a joint written comment from two individuals.

The joint comment from two individuals expressed support for the proposed rule.

One commenter urged that the final rule specifically state that VA will develop and implement outreach mechanisms by which attempts will be made to contact all in-country Vietnam veterans who are eligible for this benefit.

VA has already initiated a number of outreach activities. In January 2003, VA issued a news release concerning the Secretary's decision regarding CLL. This news release has also been distributed at health fairs, health care conferences, and on the National Mall in conjunction with Public Service Recognition Week. An article conveying this information can currently be found on VA's Web site. The lead article of the July issue of the Agent Orange Review, which will be sent to hundreds of thousands of Vietnam veterans, is about the Secretary's decision regarding CLL. Further, outreach efforts are procedural in nature, and are outside the scope of this rulemaking; therefore, no change is made based on this comment.

The same commenter urged that the final rule state that compensation for CLL will be retroactive for those eligible in-country Vietnam veterans who had previously applied for benefits based on CLL and were denied. We will make no change based on this comment because VA does not have authority to award such retroactive benefits. As explained below, existing statutes make clear that VA may not award retroactive benefits based on this final rule for any period before the date this final rule is published in the Federal Register . Those statutes prohibit VA from granting benefits retroactive to the date of a previously denied claim. No statute or judicial decision authorizes VA to ignore those statutory requirements for purposes of this final rule.

Title 38 U.S.C. 1116(c)(2) clearly and unambiguously requires that regulations promulgated as a result of a decision of the Secretary of Veterans Affairs that a positive association exists between exposure to herbicides and a specified condition or disease “shall be effective on the date of issuance.” The effective date established by this rule is in accordance with 38 U.S.C. 1116(c)(2). Under 38 U.S.C. 5110(g), when benefits are awarded based on a new regulation, the effective date of the award may not be earlier than the effective date of the regulation. In view of 38 U.S.C. 1116(c)(2) and 5110(g), VA does not have authority to provide in this rule for assignment of an effective date earlier than the date on which this rule is issued.

We note that a series of orders from the United States District Court for the Northern District of California in the class-action litigation in Nehmer v. U.S. Veterans' Administration requires VA to pay retroactive benefits for certain diseases associated with herbicide exposure, in certain circumstances, in a manner that would otherwise be prohibited by 38 U.S.C. 1116(c)(2) and 5110(g). We conclude, however, that those orders do not apply to benefits based on a disease for which the Secretary of Veterans Affairs establishes a presumption of service connection after September 30, 2002.

The Nehmer court orders rely upon a May 1991 Final Stipulation and Order between the parties to that litigation. The 1991 stipulation and order required VA to accord retroactive effect to presumptions of service connection established by VA pursuant to the Agent Orange Act of 1991, Public Law 102-4. The Agent Orange Act of 1991, Public Law 102-4, established a sunset date of September 30, 2002, for the Secretary to establish such presumptions. Accordingly, the Nehmer stipulation and order applies only to awards based on presumptions established within the time frame specified in the Agent Orange Act of 1991, Public Law 102-4.

The Agent Orange Act of 1991, Public Law 102-4, added section 1116 to title 38, United States Code. Section 1116(b) authorized the Secretary of Veterans Affairs to issue regulatory presumptions of service connection for diseases associated with herbicide exposure. Section 1116(e), as added by the Act, stated that section 1116(b) would cease to be effective 10 years after the first day of the fiscal year in which the NAS transmitted its first report to VA. The first NAS report was transmitted in June 1993, during the fiscal year that began on October 1, 1992. Accordingly, under the Act, VA's authority to issue regulatory presumptions as specified in section 1116(b) would have expired on September 30, 2002.

In December 2001, Congress enacted the Veterans Education and Benefits Expansion Act of 2001 (Benefits Expansion Act), Public Law 107-103, section 201(d) of which extended VA's authority under section 1116(b) through September 30, 2015. Pursuant to this statute, VA may issue new regulations between October 1, 2002, and September 30, 2015, establishing additional presumptions of service connection for diseases that are found to be associated with herbicide exposure based on evidence contained in future NAS reports. Because presumptions established pursuant to the authority of the Benefits Expansion Act, Public Law 107-103 are beyond the scope of the Nehmer stipulation and order, the effective-date provisions of the stipulation and order would not apply to benefit awards based on those presumptions.

The United States District Court for the Northern District of California and the United States Court of Appeals for the Ninth Circuit stated that the Nehmer stipulation and order applies only to awards based on presumptions issued within the time period established by the Agent Orange Act of 1991, Public Law 102-4. The district court noted that the retroactive payment provisions of the stipulation and order are “expressly tied” to the Agent Orange Act of 1991, Public Law 102-4, and that “the Stip. & Order is not therefore boundless.” Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal. Dec. 12, 2000). The Ninth Circuit stated that “the district court was careful to prescribe temporal limits on the effect of the consent decree, with which we agree.” Nehmer v. Veterans' Administration, 284 F.3d 1158, 1162 n.3 (9th Cir. 2002).

In its December 12, 2000, order, the district court held that the 1991 stipulation and order must be interpreted in accordance with general principles of contract law. It is well established that, unless the parties provide otherwise, a contract is presumed to incorporate the law that existed at the time the contract was made. See Norfolk & Western Ry. Co. v. American Train Dispatchers' Ass'n, 499 U.S. 117, 129-30 (1991). The terms of a contract “do not change with the enactment of subsequent legislation, absent a specific contractual provision providing for such a change.” Winstar Corp. v. United States, 64 F.3d 1531, 1547 (Fed. Cir. 1995), aff'd , 518 U.S. 839 (1996). A subsequent change in the law cannot retrospectively alter the terms of the agreement. See Florida East Coast Ry. Co. v. CSX Transportation, Inc., 42 F.3d 1125, 1129-30 (7th Cir. 1994). Accordingly, the enactment of the Benefits Expansion Act of 2001 cannot expand the Government's authority under the May 1991 stipulation and order.

VA is required to give effect to the clear statutory requirements in 38 U.S.C. 1116(c)(2) and 5110(g), in the absence of authority to the contrary. To the extent the Nehmer court orders require action seemingly at odds with those statutes, we believe they are most reasonably viewed as creating a non-statutory exception to the requirements of 38 U.S.C. 1116(c)(2) and 5110(g). We believe it would be inappropriate, however, to disregard the clear requirements of section 1116(c)(2) and 5110(g) in cases that are not within the scope of the Nehmer court orders. The United States Court of Appeals for the Federal Circuit and the United States Court of Appeals for Veterans Claims have held that 38 U.S.C. 5110(g) governs the effective date of awards made pursuant to regulatory presumptions of service connection for diseases associated with herbicide exposure, at least in cases that are not clearly within the scope of the Nehmer court orders. See Williams v. Principi, 15 Vet. App. 189 (2001) (en banc); aff'd, 310 F.3d 1374 (Fed. Cir. 2002). Accordingly, the district court orders in the Nehmer case do not permit VA to ignore the clear requirements of 38 U.S.C. 1116(c)(2) and 5110(g) as they apply to this final rule or to grant retroactive benefits in a manner prohibited by those statutes. We therefore make no change based on this comment.

The commenter urged that the final rule state that widows of in-country Vietnam veterans who died as a result of CLL are eligible for dependency and indemnity compensation (DIC). This rule is not intended to define the criteria governing eligibility for DIC or any other benefit. Several existing statutes and regulations already provide that veterans and their survivors are entitled to benefits for disability or death due to a service-connected disease or injury. This rule would establish a presumption that CLL is service connected in veterans who were exposed to certain herbicide agents used in Vietnam and who subsequently developed that disease. That presumption will assist claimants in establishing entitlement to specific benefits under the statutes and regulations authorizing such benefits, and will apply whether the claimant is a veteran seeking compensation or a survivor seeking service-connected death benefits. We therefore make no change based on this comment, because the suggested change is beyond the scope of this rule and is unnecessary.

The commenter urged that we extend eligibility to service connection for CLL to all Vietnam veterans who served within the geographical boundaries of the Republic of Vietnam and those who served on naval vessels within the territorial waters of the Republic of Vietnam. As revised by this final rule, 38 CFR 3.309(e) will expressly provide that CLL will be presumed service connected in any veteran who was exposed to certain herbicide agents during service. Veterans who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, are presumed to have been exposed to such herbicide agents. Veterans who served only in other locations or at other times, including those who served on naval vessels in the territorial waters of Vietnam but never set foot within the Republic of Vietnam, would need to establish that they were exposed to herbicide agents during service.

Title 38 U.S.C. 1116 requires that a veteran have served “in the Republic of Vietnam” to be eligible for the presumption of exposure to herbicides. 38 CFR 3.307(a)(6)(iii) provides that “Service in the Republic of Vietnam” includes service in offshore waters or other locations only if the conditions of service involved duty or visitation within the Republic of Vietnam. In interpreting similar language in 38 U.S.C. 101(29)(A), VA's General Counsel has concluded that service in a deep-water vessel in waters offshore the Republic of Vietnam does not constitute service “in the Republic of Vietnam.” ( See VAOPGCPREC 27-97.) VA's regulatory definition of “Service in the Republic of Vietnam” predates the enactment of section 1116(a)(3) (see former 38 CFR 3.311a(a)(1)(1990)), and we find no basis to conclude that Congress intended to broaden that definition. The commenter cited no authority for concluding that individuals who served in the waters offshore of the Republic of Vietnam were subject to the same risk of herbicide exposure as those who served within the geographic boundaries of the Republic of Vietnam, or for concluding that offshore service is within the meaning of the statutory phrase “Service in the Republic of Vietnam.” We therefore make no change based on this comment.

The commenter stated that because of the common etiology and shared symptoms between CLL and non-Hodgkin's lymphoma (NHL), all in-country Vietnam veterans who are eligible for compensation because of NHL should also be eligible for CLL diagnoses, treatment plans, and compensation.

We disagree. While CLL and NHL may share certain traits and symptomatology, they are, nonetheless, distinct diagnostic entities, both of which VA presumes to result from herbicide exposure. We believe the responsibilities of diagnosing disease and establishing treatment plans must rest with health care professionals. Further, it would be improper and contrary to current statutes to provide for automatic compensation for a disease that the claimant may not even have. Whether a veteran has one of these conditions, or which one, must be established by competent medical evidence. Therefore, no changes have been made based on this comment.

Based on the rationale set forth in the proposed rule document and this document, we are adopting the provisions of the proposed rule as a final rule without change.

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

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

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

The Secretary hereby certifies that this regulatory amendment will not have significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The reason for this certification is that this amendment would not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of 603 and 604.

The Catalog of Federal Domestic Assistance program numbers are 64.109 and 64.110.

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

EPA concludes that West Virginia's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant West Virginia final authorization to operate its hazardous waste program with the changes described in its application for program revisions, subject to the procedures described in Section E, below. West Virginia has responsibility for permitting treatment, storage, and disposal facilities (TSDFs) within its borders and for carrying out the aspects of the RCRA program described in its application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those HSWA requirements and prohibitions for which West Virginia has not been authorized, including issuing HSWA permits, until the State is granted authorization to do so.

This decision serves to authorize revisions to West Virginia's authorized hazardous waste program. This action does not impose additional requirements on the regulated community because the regulations for which West Virginia is being authorized by today's action are already effective and are not changed by today's action. West Virginia has enforcement responsibilities under its State hazardous waste program for violations of its program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

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

• Enforce RCRA requirements and suspend or revoke permits; and

• Take enforcement actions regardless of whether West Virginia has taken its own actions.

EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's Federal Register we are publishing a separate document that proposes to authorize West Virginia's program changes. If EPA receives comments which oppose this authorization, or portions thereof, that document will serve as a proposal to authorize the changes to West Virginia's program that were the subject of adverse comment.

If EPA receives comments that oppose this authorization, or portions thereof, we will withdraw this rule, or portions thereof, as appropriate, by publishing a document in the Federal Register before the rule would become effective. EPA will base any further decision on the authorization of West Virginia's program changes on the proposal mentioned in the previous section. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

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

Initially, West Virginia received final authorization to implement its hazardous waste management program effective May 29, 1986 (51 FR 17739). EPA granted authorization for changes to West Virginia's regulatory program on May 10, 2000, effective July 10, 2000 (65 FR 29973).

On June 4, 2003, West Virginia submitted a program revision application, seeking authorization of additional changes to its program in accordance with 40 CFR 271.21. West Virginia's revision application includes various regulations which are equivalent to, and no less stringent than, changes to the Federal hazardous waste program, as published in the Federal Register through March 8, 2000. We now make an immediate final decision, subject to receipt of written comments that oppose this action, the West Virginia's hazardous waste program revision satisfies all of the requirements necessary to qualify for final authorization. Therefore, EPA grants West Virginia final authorization for the following program changes:

West Virginia seeks authority to administer the Federal requirements that are listed in Table 1. This Table lists the State analogs that are being recognized as so less stringent than the appropriate Federal requirements. Unless otherwise stated, the State's statutory references are to the West Virginia Code (W. Va. Code), 1994 Cumulative Supplement, Chapter 22- Environmental Resources, Article 1 (Division of Environmental Protection), Article 5 (Air Pollution Control), and Article 18 (Hazardous Waste Management Act). The regulatory references are to the following Legislative Rules: Title 33, Series 20, Code of State Regulations (33CSR20), “Hazardous Waste Management Rule”, effective July 1, 2001; 45CSR25, “To Prevent and Control Air Pollution From Hazardous Waste Treatment, Storage, or Disposal Facilities,” effective July 1, 2001; and 47CSR13 Underground Injection Control'' effective June 1, 2002.

In particular, West Virginia is seeking authority for the Federal Corrective Action Program under HSWA as addressed in Revision Checklists 17L, 44A, B, C, and 121; Federal delisting requirements at 40 CFR 260.22, Revision Checklist 17B; post closure permit requirement and closure process regulations (alternative to post-closure rule), Revision Checklist 174; the radioactive mixed waste requirements, and Project XL rulemaking for Osi Specialities, Inc., Sisterville, WV (aka Crompton Corporation).

The West Virginia hazardous waste program contains certain provisions which are beyond the scope of the Federal program. These broader in scope provisions are not part of the program being authorized by today's action. EPA cannot enforce requirements which are broader in scope, although compliance with such provisions is required by West Virginia law. Examples of broader in scope provisions of West Virginia's program include, but are not limited to, the following:

1. At HWMR § 33-20-2.4.c, West Virginia provides for the acceptance of an EPA determination granting a petition to exclude hazardous waste, provided that certain conditions are met. If such conditions are not met, and West Virginia does not accept EPA's delisting of the hazardous waste, the waste would still be considered a hazardous waste under West Virginia's regulations, even though such waste would not be considered a hazardous waste by EPA. In this respect, West Virginia's program would be beyond the scope of the Federal program.

2. At HWMR § 33-20-2.4.b West Virginia regulations require a petitioner for a delisting to pay an initial non-refundable application fee of $1000 and allow the Director to recover all reasonable costs attributable to the review and investigation of such petition in excess of the initial fee. Since the Federal program does not require application fees to be submitted with a delisting petition, the collection of such fees is beyond the scope of the Federal program.

After authorization, West Virginia will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which it issued prior to the effective date of this authorization. Until such time as formal transfer of EPA permit responsibility to West Virginia occurs and EPA terminates its permit, EPA and West Virginia agree to coordinate the administration of permits in order to maintain consistency. EPA will not issue any additional new permits or new portions of permits for the provisions listed in Section G after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which West Virginia is not yet authorized.

West Virginia is not seeking authorization to protect the program on Indian lands, since there are no Federally-recognized Indian Lands in West Virginia.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by referencing the authorized State rules in 40 CFR part 272. EPA reserves the amendment of 40 CFR part 272, subpart XX, for this authorization of West Virginia's program changes until a later date.

This rule only authorizes hazardous waste requirements pursuant to RCRA 3006 and imposes no requirements other than those imposed by State law ( see SUPPLEMENTARY INFORMATION : Section A. Why are Revisions to State Programs Necessary?). Therefore, this rule complies with applicable executive orders and statutory provisions as follows:

1. Executive Order 12866: Regulatory Planning Review —The Office of Management and Budget has exempted this rule from its review under Executive Order (EO) 12866. 2. Paperwork Reduction Act —This rules does not impose an information collection burden under the Paperwork Reduction Act. 3. Regulatory Flexibility Act —After considering the economic impacts of today's rule on small entities under the Regulatory Flexibility Act, I certify that this rule will not have a significant economic impact on a substantial number of small entities. 4. Unfunded Mandates Reform Act —Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act. 5. Executive Order 13132: Federalism —EO 12132 does not apply to this rule because it will not have federalism implications ( i.e. , 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). 6. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments —EO 13175 does not apply to this rule because it will not have tribal implications ( i.e. , substantial direct effects 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). 7. Executive Order 13045: Protection of Children from Environmental Health & Safety Risks —This rule is not subject to EO 13045 because it is not economically significant and it is not based on health or safety risks. 8. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use —This rule is not subject to EO 13211 because it is not a significant regulatory action is defined in EO 12866. 9. National Technology Transfer Advancement Act —EPA approves State programs as long as they meet criteria required by RCRA, so it would be inconsistent with applicable law for EPA, in its review of a State program, to require the use of any particular voluntary consensus standard in place of another standard that meets the requirements of RCRA. Thus, section 12(d) of the National Technology Transfer and Advance Act does not apply to this rule. 10. Congressional Review Act —EPA will submit a report containing this rule and other information required by the Congressional Review Act (5 U.S.C. 801 et seq.) to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective on December 15, 2003.

In the Federal Register of October 2, 2003, in FR Vol. 68, No. 191, page 56783, in the third column, correct the DATES caption to read:

DATES: This rule is effective November 3, 2003. The final initial quota specifications and General category effort controls are effective November 3, 2003, through May 31, 2004.

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

NMFS closed the directed fishery for Pacific cod by vessels catching Pacific cod for processing by the offshore component in the Central Regulatory Area of the GOA at 2400 hrs, October 1, 2003 (68 FR 57636, October 6, 2003).

NMFS has determined that, approximately 560 mt of Pacific cod remain in the directed fishing allowance. Therefore, in accordance with §§ 679.25(a)(1)(i) and (a)(2)(iii)(D), and to fully utilize the Pacific cod apportioned to vessels catching Pacific cod for processing by the offshore component in the Central Regulatory Area, NMFS is terminating the previous closure and is reopening directed fishing for Pacific cod by vessels catching Pacific cod for processing by the offshore component in the Central Regulatory Area of the GOA. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will be reached after 48 hours. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels catching Pacific cod for processing by the offshore component in the Central Regulatory Area of the GOA effective 1200 hrs, A.l.t., October 14, 2003.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent the Agency from responding to the most recent fisheries data in a timely fashion and delay the opening of the fishery for Pacific cod apportioned to vessels catching Pacific cod for processing by the offshore component in the Central Regulatory Area, thus reducing the public's ability to use and enjoy the fishery resource.

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

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