Rules and Regulations. Notice of availability and request for comments

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BILLING CODE 4310-55-P 70 235 Thursday, December 8, 2005 Notices DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. 01-009-8] Wildlife Services; Availability of a Supplemental Environmental Assessment and Decision/Finding of No Significant Impact for Oral Rabies Vaccine Program on National Forest System Lands AGENCY: Animal and Plant Health Inspection Service, USDA. Cooperating Agency: Forest Service, USDA. ACTION: Notice of availability and request for comments. SUMMARY: We are advising the public that we have prepared a supplemental environmental assessment

(EA)and proposed decision/finding of no significant impact (FONSI) relative to oral rabies vaccination programs on National Forest System lands in several States. Since the publication of our original EA and decision/FONSI (2001), a subsequent supplemental decision/FONSI (2002), a supplemental EA and decision/FONSI (2003), and a second supplemental EA and decision/FONSI (2004), we determined the need to further expand the oral rabies vaccination program to include National Forest System lands, excluding Wilderness Areas, to effectively stop the westward and northward spread of the rabies virus across the United States and into Canada. Thus, an EA and decision/FONSI was prepared in 2004 to facilitate planning, interagency coordination, and program management and to provide the public with our analysis of potential individual and cumulative impacts of an expanded oral rabies vaccine program. The supplemental EA and proposed decision/FONSI

(2005)made available by this notice serves to update program needs and evaluate current data. DATES: We will consider all comments that we receive on or before January 9, 2006. Unless we determine that new substantial issues bearing on the effects of the proposed expansion of the oral rabies vaccine programs have been raised by public comments on this notice, the proposed decision/FONSI will become final and take effect upon the close of the comment period. ADDRESSES: You may submit comments by either of the following methods: • Federal eRulemaking Portal: Go to *http://www.regulations.gov* and, in the “Search for Open Regulations” box, select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click on “Submit.” In the Docket ID column, select APHIS-2005-0098 to submit or view public comments and to view supporting and related materials available electronically. After the close of the comment period, the docket can be viewed using the “Advanced Search” function in Regulations.gov. • Postal Mail/Commercial Delivery: Please send four copies of your comment (an original and three copies) to Docket No. 01-009-8, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 01-009-8. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov* . To obtain copies of any of the documents discussed in this notice, contact Tara Wilcox, Operational Support Staff, WS, APHIS, 4700 River Road, Unit 87, Riverdale, MD 20737-1234; phone

(301)734-7921, fax

(301)734-5157, or e-mail: *Tara.C.Wilcox@aphis.usda.gov* . When requesting copies, please specify the document or documents you wish to receive. FOR FURTHER INFORMATION CONTACT: Mr. Dennis Slate, Rabies Program Coordinator, Wildlife Services, APHIS, 59 Chenell Drive, Suite 7, Concord, NH 03301-8548;

(603)223-9623. SUPPLEMENTARY INFORMATION: Background The Wildlife Services

(WS)program in the Animal and Plant Health Inspection Service (APHIS) cooperates with Federal agencies, State and local governments, and private individuals to research and implement the best methods of managing conflicts between wildlife and human health and safety, agriculture, property, and natural resources. Wildlife-borne diseases that can affect domestic animals and humans are among the types of conflicts that APHIS-WS addresses. Wildlife is the dominant reservoir of rabies in the United States. On December 7, 2000, a notice was published in the **Federal Register** (65 FR 76606-76607, Docket No. 00-045-1) in which the Secretary of Agriculture declared an emergency and transferred funds from the Commodity Credit Corporation to APHIS-WS for the continuation and expansion of oral rabies vaccination

(ORV)programs to address rabies in the States of Ohio, New York, Vermont, Texas, and West Virginia. On March 7, 2001, we published a notice in the **Federal Register** (66 FR 13697-13700, Docket No. 01-009-1) to solicit public involvement in the planning of a proposed cooperative program to stop the spread of rabies in the States of New York, Ohio, Texas, Vermont, and West Virginia. The notice also stated that a small portion of northeastern New Hampshire and the western counties in Pennsylvania that border Ohio could also be included in these control efforts, and discussed the possibility of APHIS-WS cooperating in smaller-scale ORV projects in the States of Florida, Massachusetts, Maryland, New Jersey, Virginia, and Alabama. The March 2001 notice contained detailed information about the history of the problems with raccoon rabies in eastern States and with gray fox and coyote rabies in Texas, along with information about previous and ongoing efforts using ORV baits in programs to prevent the spread of the rabies variants or “strains” of concern. Subsequently, on May 17, 2001, we published in the **Federal Register** (66 FR 27489, Docket No. 01-009-2) a notice in which we announced the availability, for public review and comment, of an environmental assessment

(EA)that examined the potential environmental effects of the ORV programs described in our March 2001 notice. We solicited comments on the EA for 30 days ending on June 18, 2001. We received one comment by that date. The comment was from an animal protection organization and supported APHIS' efforts toward limiting or eradicating rabies in wildlife populations. The commenter did not, however, support the use of lethal monitoring methods or local depopulation as part of an ORV program. Finally, on August 30, 2001, we published a notice in the **Federal Register** (66 FR 45835-45836, Docket No. 01-009-3) in which we advised the public of APHIS' decision and finding of no significant impact (FONSI) regarding the use of oral vaccination to control specific rabies virus strains in raccoons, gray foxes, and coyotes in the United States. That decision allows APHIS-WS to purchase and distribute ORV baits, monitor the effectiveness of the ORV programs, and participate in implementing contingency plans that may involve the reduction of a limited number of local target species populations through lethal means (i.e., the preferred alternative identified in the EA). The decision was based upon the final EA, which reflected our review and consideration of the comments received from the public in response to our March 2001 and May 2001 notices and information gathered during planning/scoping meetings with State health departments, other State and local agencies, the Ontario Ministry of Natural Resources, and the Centers for Disease Control and Prevention. Following the August 2001 publication of our original decision/FONSI, we determined there was a need to expand the ORV programs to include the States of Kentucky and Tennessee to effectively stop the westward spread of raccoon rabies. Accordingly, we prepared a supplemental decision/FONSI to document the potential effects of expanding the programs. We published a notice announcing the availability of the supplemental decision/FONSI in the **Federal Register** on July 5, 2002 (67 FR 44797-44798, Docket No. 01-009-4). Following the publication of the supplemental decision/FONSI in July 2002, we determined the need to further expand the ORV program to include the States of Georgia and Maine to effectively prevent the westward and northward spread of the rabies virus across the United States and into Canada. To facilitate planning, interagency coordination, and program management and to provide the public with our analysis of potential individual and cumulative impacts of the expanded ORV programs, we prepared a supplemental EA that addresses the inclusion of Georgia and Maine, as well as the 2002 inclusion of Kentucky and Tennessee, in the ORV program. In addition, we prepared a new decision/FONSI based on the supplemental EA that was published in the **Federal Register** on June 30, 2003 (68 FR 38669-38670, Docket No. 01-009-5). Following publication of the 2003 supplemental EA and decision/FONSI, we determined the need to further expand the ORV program to include portions of National Forest System lands, excluding Wilderness Areas, within several eastern States. The National Forest System lands where APHIS-WS involvement could be expanded included the States of Maine, New York, Vermont, New Hampshire, Pennsylvania, Ohio, Virginia, West Virginia, Tennessee, Kentucky, Alabama, Georgia, Florida, North Carolina, South Carolina, Massachusetts, Maryland, and New Jersey. Cooperative rabies surveillance activities and/or baiting programs were already being conducted on various land classes, with the exception of National Forest System lands, in many of the aforementioned States. The programs' primary goals were to stop the spread of a specific raccoon rabies variant or “strain” of the rabies virus. If not stopped, this strain could potentially spread to much broader areas of the United States and Canada and cause substantial increases in public and domestic animal health costs because of increased rabies exposures. As numerous National Forest System lands are located within current and potential ORV barrier zones, it became increasingly important to bait these large land masses to effectively combat this strain of the rabies virus. In addition, we prepared a new decision/FONSI based on the supplemental EA that was published in the **Federal Register** on February 20, 2004 (69 FR 7904-7905, Docket No. 01-009-6). Following the 2004 supplemental EA and decision/FONSI for expansion of the ORV program to include portions of National Forest System lands, we determined the need to further expand the ORV program to include 25 eastern States (Maine, New York, Vermont, New Hampshire, Pennsylvania, Ohio, Virginia, West Virginia, Tennessee, Kentucky, Alabama, Georgia, Florida, North Carolina, South Carolina, Massachusetts, Maryland, Connecticut, Rhode Island, Delaware, Indiana, Michigan, Mississippi, Louisiana and New Jersey), the District of Columbia, and Texas to effectively prevent the westward and northward spread of the rabies virus across the United States and into Canada. In addition, we prepared a new decision/FONSI based on the supplemental EA that was published in the **Federal Register** on September 23, 2004 (69 FR 56992-56993, Docket No. 01-009-7). Following the 2004 supplemental EA and decision/FONSI, we determined the need to also expand the ORV program to include portions of National Forest System lands, excluding Wilderness Areas, within the same 25 eastern States and the District of Columbia. As numerous National Forest System lands are located within current and potential ORV barrier zones, it has become increasingly important to bait these large land masses to effectively combat this strain of the rabies virus. The supplemental EA made available by this notice analyzes the proposed action and several alternatives with respect to a number of environmental and other issues raised by involved cooperating agencies and the public. The August 2001 EA and decision/FONSI, the July 2002 supplemental decision/FONSI, the June 2003 supplemental EA and decision/FONSI, the February 2004 EA and decision/FONSI for expanded ORV program activities on National Forest System lands, the September 2004 supplemental EA and decision/FONSI, and the supplemental EA and proposed decision/FONSI for further expansion of ORV program activities on National Forest System lands, that are the subject of this notice have been prepared in accordance with:

(1)The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 *et seq.* ),

(2)regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508),

(3)USDA regulations implementing NEPA (7 CFR part 1), and

(4)APHIS' NEPA Implementing Procedures (7 CFR part 372). Done in Washington, DC, this 2nd day of December, 2005. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E5-7064 Filed 12-7-05; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Commodity Credit Corporation Tobacco Transition Assessments AGENCY: Commodity Credit Corporation, USDA. ACTION: Notice. SUMMARY: This notice sets forth the interpretation the Commodity Credit Corporation

(CCC)will use in administering the regulations set forth at 7 CFR part 1463 with respect to the Tobacco Transition Assessments. Generally, under these regulations CCC must determine the market share of a tobacco product manufacturer or tobacco product importer as a percentage of six statutorily specified sectors of the tobacco trade. Based upon information provided to CCC in the conduct of administrative hearings held pursuant to 7 CFR 1463.11, CCC has determined that the manner in which it calculates this percentage is subject to more than one interpretation and, based upon the evidence provided at these hearings, has determined that changes to the calculation should be made beginning with assessments collected under 7 CFR part 1463 after January 1, 2006. However, this change will not apply to invoices issued February 1, 2006. These invoices will reflect corrections and other necessary adjustments associated with fiscal year 2005. FOR FURTHER INFORMATION CONTACT: Misty Jones, Tobacco Division, Farm Service Agency (FSA), United States Department of Agriculture (USDA), Stop 0514, 1400 Independence Avenue, SW., Washington, DC 20250-0514. Phone:

(202)720-7413; e-mail: *Misty.Jones@wdc.usda.gov* . Persons with disabilities who require alternative means for communication (Braille, large print, audio tape, etc.) should contact the USDA Target Center at

(202)720-2600 (voice and TDD). Background Title VI of the American Jobs Creation Act of 2004 (Pub. L. 108-357) (the 2004 Act) repealed the marketing quota and acreage allotment (marketing quota) and price support programs for tobacco that were authorized by the Agricultural Adjustment Act of 1938 and the Agricultural Act of 1949, effective with the 2005 and subsequent crops of tobacco. Sections 622 and 623 of the 2004 Act establish a 10-year transitional payment program for tobacco producers and owners of tobacco marketing quotas who were affected by the termination of the marketing quota and price support programs. Sections 625 through 627 of the 2004 Act established an assessment regime under which CCC collects assessments to fund the 10-year transitional payment program. Generally, these assessments are to be collected for 40 calendar quarters (2005-2014) and are based upon individual market shares of tobacco product manufacturers and importers within six sectors specified by the 2004 Act. The regulations issued by CCC with respect to these assessments were issued in a final rule published in the **Federal Register** on February 10, 2005 (70 FR 7007-7014). The purpose of this notice to advise tobacco product manufacturers and tobacco product importers that effective with assessment notices issued after January 1, 2006, CCC will determine such entities' market share within a sector as a percentage expressed to the sixth decimal point. As explained below, section 625(a)(3) of the 2004 Act is ambiguous with respect to its directive in calculating entities' market shares. Section 625(b)(3) defines “market share” as follows: *Market Share* .—The term “market share” means the share of each manufacturer or importer of a class of tobacco product (expressed as a decimal to the fourth place) of the total volume of domestic sales of the class of tobacco product. In implementing this provision, CCC construed “market share” to mean an entity's percentage of the market determined, for all products except cigars, by dividing the volume of gross taxable removals for the entity by the total removals for the sector for all entities reporting to CCC, and, for cigars, by dividing the excise taxes paid for each entity by the total excise taxes paid for all cigar manufacturers and importers. Accordingly, under CCC's initial interpretation, if there were 10 entities who equally comprised all of the market of a sector, each market share was expressed as 0.1000. CCC recognized that in using its initial method of calculating a market share of an entity that there could be a disproportionate impact on entities with market shares less than .0001 that reach the “cut-off point” in that entities with market shares from .00005 to .00009 would, due to rounding, each be deemed to have a .0001 market share. Thus, CCC provided that once this determination had been made as to which entities to include in the assessment, CCC would calculate the actual assessment for an entity to the ninth decimal point. During the course of administrative hearings in which appellants contested the level of their assessments in the first two quarters, it was brought to CCC's attention that this was not the only interpretation that could be given to the concept of expressing a market share to the “fourth decimal point”. Appellants argued that a “market share” of 10 percent is more properly referred to in this example as 10.0000 percent and not .1000. The following is the written submission in support of this interpretation presented jointly by six of the entities subject to the assessment: FETRA (the Fair and Equitable Tobacco Reform Act) assessments should be allocated based on *percentage* market shares expressed as decimals to the fourth place. FETRA defines market share as the “share of each manufacturer or importer of a class of tobacco product (expressed as a decimal to the fourth place) of the total volume of domestic sales of the class of tobacco product.” This language, properly read, means that market share is to be calculated as a *percentage* share expressed to four decimal places. Accordingly, under FETRA, a manufacturer or importer should be required to pay an assessment unless its market share rounds to less than 00.0001% (which can also be written as .000001). The USDA's first three assessment notices did not adopt this approach. Instead, the agency has exempted from assessment liability any company whose market share rounds to less than 00.01% (which can also be written as .0001). Consequently, there is a two-decimal place difference between the two approaches, which means that a company exempted from FETRA assessments under the USDA approach could have a market share as much as 100 times larger than the largest company exempted under the correct percentage share approach. Under the USDA's approach, manufacturers and importers selling substantial quantities of tobacco products would avoid paying assessments—in direct violation of the clear statutory mandate of FETRA. As is explained below, if the data for the most recent quarterly assessment (for the April-June 2005 quarter) are annualized, the portion of the cigarette market, for example, that would be excused from paying any assessment would collectively amount to more than 9.5 million packs of cigarettes, representing sales revenues of more than $33 million. By contrast, the percentage share approach limits the exemption to companies that legitimately can be viewed as having *de minimis* market shares, thereby effectuating the legislative intent that all manufacturers and importers must pay assessments. As explained below, the percentage share approach is supported by the language of FETRA and by analogous precedents. Defining market share as a percentage expressed to the fourth decimal place is necessary to effectuate the clear purposes of FETRA. FETRA imposes the following clear mandate: “The Secretary, acting through the Commodity Credit Corporation, shall impose quarterly assessments * * * on *each* tobacco product manufacturer and tobacco products importer that sells tobacco products in domestic commerce in the United States * * *.” 7 U.S.C. 518d(b)(1) (emphasis added). This language provides no discretion to exempt any manufacturers or importers. The approach taken by USDA in the initial assessments violates this statutory mandate because it allows companies with substantial sales of cigarettes to avoid FETRA assessments. This point can be illustrated with the following example: Assume a manufacturer had revenues of $850,000 in the fourth quarter of 2004. There is no rational basis for defining this company as a *de minimis* seller of cigarettes and exempting it from assessment: • Revenue—$850,000. • No. of packs sold (assuming $3.50 per pack) = 242,857. • Taxes owed (FET at .39 per pack) = $94,714.23. • Market share: [94,714/1,949,053,653] = 0.00004859486. Under the approach used in the initial assessments, this company would be exempt from the payment of assessments because its market share is .000049, which rounds to .0000 (00.00%). However, if the percentage share approach is applied, the company would have to pay an assessment, since its market share—00.0049%—exceeds the threshold of 00.0001%. As noted above, the approach used in the initial assessments will allow a significant portion of the cigarette market to remain exempt from assessment. On a per-company basis, this means that an individual manufacturer or importer could have annual sales of as much as 900,000 packs and revenues in excess of $3 million per year and still escape the payment of assessments. In contrast, under the approach described in this paper, the exemption would apply only to companies with annual sales less than approximately 9,000 packs and revenues less than approximately $32,000 per year—which appropriately can be viewed as de minimis. *Id* . More importantly, the percentage of the market that USDA is exempting from assessment has more than doubled from the first assessment for the fourth quarter of calendar 2004 (companies selling 1,040,638 packs of cigarettes in this quarter exempted from assessment) to the assessment for April-June 2005 (companies selling 2,376,331 packs of cigarettes in this quarter exempted from assessment). This means that millions of packs of cigarettes per year will not be subject to assessment. For example, if the figures from the second calendar quarter of 2005 are projected on an annual basis, USDA's approach to FETRA will result in over 9.5 million packs of cigarettes, representing more than $33 million in revenue, being exempted from FETRA assessment. This is clearly inconsistent with the congressional mandate that USDA impose quarterly assessments on each tobacco product manufacturer and importer that sells tobacco products domestically in the United States. 7 U.S.C. 518d(b)(1). Adopting the percentage share approach, and thus limiting any exemption to companies with truly *de minimis* market shares, achieves a number of important objectives by— • More closely effectuating the statutory mandate to assess all manufacturers and importers; • Leveling the playing field among competitors since no company with substantial sales would have the unfair advantage of an exemption; • Substantially reducing the USDA's exposure in the likely event that companies subject to assessment are successful in persuading a court that USDA cannot assess them in excess of their true market shares to cover the shares of companies exempted from assessment liability; and • Perhaps, by reducing the amount at issue, facilitating a resolution of the current market share cap issue short of litigation. The percentage share approach is supported by the language of FETRA. In another section of FETRA, Congress clearly uses the word “share” to denote *percentage* share. Thus, in describing how assessments are to be allocated among different classes of tobacco products in subsequent years, FETRA states that: The Secretary shall periodically adjust the *percentage* of the total amount required under subsection

(b)to be assessed against, and paid by, the manufacturers and importers of each class of tobacco product * * * to reflect changes in the *share of gross domestic volume* held by that class of tobacco product. 7 U.S.C. 518d(c)(2) (emphasis added). In this context, it is explicitly clear that the “share” of gross domestic volume is a *percentage share* . The same section of FETRA uses the same term—“share”—when it defines the term “market share” as each manufacturer's “share * * * of the total volume of domestic sales of the class of tobacco product.” This use of the same term is significant because “[i]t is a settled principle of statutory construction that ‘(w)hen the same word or phrase is used in the same section of an act more than once, and the meaning is clear as used in one place, it will be construed to have the same meaning in the next place.’ ” *United States* v. *Nunez* , 573 F.2d 769, 771 (2d Cir.), *cert denied* , 436 U.S. 930 (1978), *quoting Meyer* v. *United States* , 175 F.2d 45, 47 (2d Cir. 1949), *quoting Lewellyn* v. *Harbison* , 31 F.2d 740, 742 (3d Cir.), *cert. denied* , 280 U.S. 560 (1929); *Arnold* v. *Eastern Air Lines, Inc.* , 712 F.2d 899, 904 (4th Cir. 1983). Thus, when FETRA is read as a whole, the proper interpretation of “share” in section 518d(a)(3)—defining “market share”—is that it means a *percentage share* of the total market. Nothing in FETRA provides any basis for a different approach. Accordingly, when section 518d(a)(3) states that each manufacturer's or importer's “share” is to be expressed as a decimal to four places, it means that it should be expressed as a percentage share expressed to four decimal places. Other federal agencies have interpreted statutory references to “market share” to mean a percentage share of the total market. The Food, Drug and Cosmetic Act imposes limitations on the types of claims that can appear on food labels. Among other things, the labels on a food product cannot claim that it is low cholesterol unless “the level of cholesterol is substantially less than the level usually present in the food or in a food which substitutes for the food and which has a significant *market share* * * *.” 21 U.S.C. § 343(r)(2)(A)(iii)(I) (emphasis added). The statute does not define market share. However, the FDA regulations define that term as a *percentage* of the total market: If the product meets these conditions only as a result of special processing, alteration, formulation, or reformulation, the amount of cholesterol is reduced by 25 percent or more from the reference product it replaces as described in § 317.313(j)(1) and for which it substitutes as described in § 317.313(d) that has a *significant (e.g., 5 percent or more of a national or regional market) market share.* 9 CFR 317.362(d)(1)(v) (emphasis added). Clearly, the FDA interpreted the term market share using its ordinary and reasonable meaning of a percent of the total market. The Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”) requires EPA to re-register and assess fees for all pesticides initially registered prior to November 1, 1984. If more than one party sought to register the same active ingredient, the EPA would allocate the $150,000 fee based on each registrant's market share for that active ingredient. Specifically, FIFRA stated that: [i]f two or more registrants are required to pay [a re-registration fee] with respect to a particular active ingredient, the fees for such an active ingredient shall be apportioned among such registrants on the basis of *market share* in United States sales of the active ingredient for the three calendar years preceding the payment of such fee. 7 U.S.C. 136a-1(i)(7) (emphasis added). The term “market share” is not explicitly defined in the statute or in the Agency's regulations. However, when EPA actually assessed each registrant's fee, it did so based upon its percentage share of the total market. The courts have also interpreted the term “market share” to mean a percentage share. For example, under the “market share liability” theory used in mass tort cases, “causation and damages are apportioned to defendants based on the *percentage of the product sold by each defendant* within the entire production of the product.” *Wood* v. *Eli Lilly & Co.* , 38 F.3d 510, 513 (10th Cir. 1994) (emphasis added), *citing Sindell* v. *Abbott Labs.* , 607 P.2d 924, 937, *cert. denied* , 449 U.S. 912 (1980); *Martin* v. *Abbott Lab.* , 689 P.2d 368, 380 (Wash. 1984). *See also Bateman* v. *Johns-Manville Sales Corp.* , 781 F.2d 1132, 1133 (5th Cir. 1986) (“Each defendant that could not make that exculpatory showing would then be held liable for a proportion of the judgment corresponding to its *percentage* share of the DES market”) (emphasis added). Similarly, in antitrust cases, when courts address market share, they are clearly viewing that term as a *percentage* of the total market at issue. *See, e.g., Brooke Group Ltd.* v. *Brown & Williamson Tobacco Corp.* , 509 U.S. 209, 213-14

(1993)(describing market share in terms of percentages); *Richter Concrete Corp.* v. *Hilltop Concrete Corp.* , 691 F.2d 818, 826 (6th Cir. 1982) (“Market strength is often indicated by market share. During the relevant period, Hilltop's market share declined from approximately 40% to approximately 30%”).” As noted in the submission of the six appellants, the ambiguity in the 2004 Act stems from whether a “market share” refers to a “percentage share” determined to the fourth decimal point, *e.g.,* is a 10 percent market share to be expressed as 10.000 or .10000? Accordingly, under this approach the following “market shares” would be determined with respect to an entity comprising the following sizes of the sector: Size of sector Market share in percent Market share as fraction Assessments Levied All 100.00000 1.0000000 One tenth 10.00000 0.1000000 One hundredth 1.00000 0.0100000 One thousandth 0.10000 0.0010000 One ten-thousandths 0.01000 0.0001000 One hundred-thousandths 0.00100 0.0000100 One millionth 0.00010 0.0000010 Assessments Not Levied For All Shares Less Than Nine Ten-millionths Nine ten-millionths 0.00009 0.0000009 With respect to the assessments levied by CCC in a typical quarter with an assessment of $237.5 million, use of the interpretation set forth by these six appellants would likely produce the following changes for each sector: Additional Companies Assessed Under the New Method for a Typical $237.5 Million Assessment Class Cigarettes Cigars Snuff Roll-own Chew Pipe Total Number of Additional Companies Paying an Assessment 20 57 4 4 1 2 88 Assessment Collected from Above Companies $105,928 $4,752 $45 $48 $3 $9 $110,784 Use of the interpretation set forth by these six appellants would also produce the following changes for two different sized companies: Impact of Change on Two Different Sized Tobacco Product Manufacturers Share Typical Quarterly Assessment: All kinds $237,500,000 Cigarettes' Share 0.96331 Typical Quarterly Assessment: Cigarettes $228,786,125 Big Company Example New Method 1 Big Company Share 25.0000% Big Company Quarterly Assessment $57,196,653 Previous Method 2 Big Company Share 25.00% Big Company Share recomputed after small companies dropped out) 25.00729% Big Company Quarterly Assessment $57,213,210 Big Company Savings Big Company savings per quarter −$16,557 Small Company Example New Method 1 Small Company Share 0.0040% Small Company Quarterly Assessment $9,151 Previous Method 2 Small Company Share 0.004% Small Company Share Rounded Up 0.000% Small Company Share recomputed after small companies dropped out — Small Company Quarterly Assessment $0 Small Company Cost Small Company cost per quarter $9,151 1 Shares not recalculated after small companies drop out. 2 Shares recalculated to 9 decimal places after small companies drop out. Interpretation It is CCC's position that either interpretation is possible under section 625(b)(3) of the 2004 Act. But, in construing this section within the overall framework established by Congress, CCC has determined that use of the approach set forth by the six appellants provides a more accurate representation of an individual entity's share in each of the six statutorily-defined tobacco sectors. Accordingly, after January 1, 2006, when making determinations under 7 CFR parts 1463.1 through 1463.11 that relate to “market share”, CCC will interpret such phrase to mean the percentage share of an entity's market position in one of the six individual tobacco product sectors specified in section 625(c) of the 2004 Act. In expressing this share to the fourth decimal point as provided in section 625(a)(3), for example, a market share of 1/10 of the market will be converted to 10.0000 percent and a market share of 1/10000 will be converted to .0100 percent. In addition, this approach is also consistent with the manner in which Congress has addressed the six sector segments of the tobacco industry. In section 625(c)(3) of the 2004 Act, for example, the share for manufacturers and importers of cigarettes of the overall tobacco industry for Fiscal Year 2005 is expressed as “96.331 percent” and not as .96331. As a result of this change, CCC will no longer further modify assessments to the ninth decimal point for individual companies within these six sectors. Signed at Washington, DC November 30, 2005. Thomas B. Hofeller, Executive Vice President, Commodity Credit Corporation. [FR Doc. E5-7030 Filed 12-7-05; 8:45 am] BILLING CODE 3410-05-P DEPARTMENT OF AGRICULTURE Cooperative State Research, Education, and Extension Service Notice of Intent To Revise a Currently Approved Information Collection AGENCY: Cooperative State Research Education, and Extension Service, USDA. ACTION: Notice and request for comments. SUMMARY: In accordance with the Paperwork Reduction act of 1995 and Office of Management and Budget

(OMB)regulations (5 CFR part 1320) which implement the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the Cooperative State Research, Education, and Extension Service's (CSREES) intention to revise and request an extension for a currently approved information collection (OMB No. 0524-0038) for Form CSREES-2103 “Certification of Offset and Entitlement for 1890 Land-Grant Institutions.” DATES: Submit comments on or before February 6, 2006. ADDRESSES: Written comments concerning this notice and requests for copies of the information collection may be submitted by any of the following methods to Joanna Moore, Policy Specialist, Office of Extramural Programs; Policy, Oversight, and Funds Management Branch; Mail: CSREES/USDA; Mail Stop 2299; 1400 Independence Avenue, SW.; Washington, DC 20250-2299; Hand Delivery/Courier: 800 9th Street, SW., Waterfront Centre, Room 2249, Washington, DC 20024; Fax:

(202)401-7752; or E-mail: *jmoore@csrees.usda.gov.* FOR FURTHER INFORMATION CONTACT: Ellen Danus, Chief, Policy, Oversight, and Funds Management Branch; Office of Extramural Programs; CSREES/USDA; Mail Stop 2299; 1400 Independence Avenue, SW.; Washington, DC 20250-2299; Phone:

(202)401-4325; E-mail: *edanus@csrees.usda.gov.* SUPPLEMENTARY INFORMATION: Background and Purpose CSREES proposes to revise this information collection to include all forms used by grantees to certify the availability of matching funds for the formula funds provided to CSREES cooperating institutions, most of which are the 1862 and 1890 land-grant institutions. The formula funds are provided to the eligible CSREES cooperating institutions under sections 1433, 1444, and 1445 of the National Agricultural research, Extension, and Teaching Policy Act of 1977 (NARETPA), Hatch Act, Smith-Lever Act, and McIntire-Stennis Cooperative Forestry Research Act. Consequently, CSREES proposes revising the title of the Information Collection from “Certification of Offset and Entitlement for 1890 Land-Grant Institutions” to “Certification of Offset and Entitlement” as these forms would now apply to all CSREES cooperating institutions required to certify that matching funds are available. Previously this information collection only applied to the 1890 land-grant institutions for the purposes of certifying the matching requirements under NARETPA sections 1444 and 1445. CSREES plans to eventually develop a form (i.e., to replace the current form) that would be part of the set of SF-424 Mandatory, Application for Federal Assistance, to be used for the annual application of CSREES formula funds. CSREES is in the process of developing a pilot for the submission of required forms via Grants.gov for one of the CSREES formula grant programs (i.e., formula funds provided under the McIntire-Stennis Cooperative Forestry Research Act). *Title:* Certification of Offset and Entitlement. *OMB Number:* 0524-0038. *Expiration Date of Current Approval:* May 31, 2006. *Type of Request:* Intent to revise and extend a currently approved information collection for three years. *Abstract:* CSREES has primary responsibility for providing linkages between the Federal and State components of a broad-based, national agricultural research, extension, and education system. Focused on national issues, its purpose is to represent the Secretary of Agriculture and carry out the intent of Congress by administering formula and grant funds appropriated for agricultural research, extension, and education. This information collection is needed for eligible cooperating institutions to certify that matching funds are available prior to the receipt of formula funds provided under NARETPA sections 1433, 1444, and 1445; Hatch Act; Smith-Lever Act; and McIntire-Stennis Cooperative Forestry Research Act. *Need for the Information:* Form CSREES-2103, “Certification of Offset and Entitlement” will be submitted up to three times per year for research and extension activities to provide information on the projected matching funds, the actual matching funds, and any revisions to the actual matching funds. *Respondents:* Respondents will be the 57 1862 land-grant institutions: 2 state agricultural experiment stations not associated with an 1862 land-grant institution; 18 1890 land-grant institutions, including Tuskegee University and West Virginia State University; 9 schools of veterinary medicine; and 10 certified forestry schools, which will provide information to USDA on the amount and source of non-Federal funds made available by the States to the eligible institutions to meet the matching requirements for each CSREES formula program. *Estimate of the Burden:* The estimated burden on the respondents for Form CSREES-2103, “Certification of Offset and Entitlement,” is 3.6 hours per response. This burden estimate is based on a small survey of eligible institutions that have experience completing the current form. *Estimated Number of Respondents:* 96. *Estimated Number of Responses:* 838. *Estimated Total Annual Burden on Respondents:* 3,016.8 hours. *Frequency of Responses:* Up to three times a year. *Comments:* Comments are invited on:

(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;

(b)the accuracy of the Agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used;

(c)ways to enhance the quality, utility, and clarity of the information to be collected; and

(d)ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Done at Washington, DC, this 1st day of December 2005. Joseph J. Jen, Under Secretary, Research, Education, and Economics. [FR Doc. 05-23769 Filed 12-7-05; 8:45 am]

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