Unknown. Final rule

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--- schema: federal-register doc_type: fedreg source_file: FR-2005-12-28.xml --- 70 248 Wednesday, December 28, 2005 Contents Agricultural Agricultural Marketing Service RULES Fresh fruit and vegetable terminal market inspection services; fees increase, 76671-76674 05-24338 PROPOSED RULES Milk marketing orders: Appalachian and Southeast, 76718-76724 05-24543 Agriculture Agriculture Department See Agricultural Marketing Service See Commodity Credit Corporation See Foreign Agricultural Service See Forest Service Air Force Air Force Department NOTICES Meetings;

Sunshine Act, 76785 05-24600 Arctic Arctic Research Commission NOTICES Meetings, 76751 05-24491 Arts Arts and Humanities, National Foundation See National Foundation on the Arts and the Humanities Census Census Bureau NOTICES Surveys, determinations, etc.: Manufacturing area; annual, 76753-76754 E5-7945 Coast Guard Coast Guard RULES Drawbridge operations: Louisiana, 76689-76691 05-24539 Ports and waterways safety; regulated navigation areas, safety zones, security zones, etc.:

Chicago Sanitary and Ship Canal, IL, 76692-76694 05-24538 NOTICES Drug testing; covered crewmembers random testing rate, 76853 E5-7897 Commerce Commerce Department See Census Bureau See International Trade Administration See National Oceanic and Atmospheric Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 76751-76753 E5-7970 E5-7972 E5-7973 CITA Committee for the Implementation of Textile Agreements NOTICES Cotton, wool, and man-made textiles:

Belarus, 76784-76785 E5-7946 Textile and apparel products; annual shipping quota limits, 76785 E5-7947 Commodity Commodity Credit Corporation NOTICES Grants and cooperative agreements; availability, etc.: Emerging Markets Program, 76735-76738 E5-7949 Foreign Market Development Cooperator Program, 76738-76740 E5-7948 Market Access Program, 76740-76742 E5-7950 Quality Samples Program, 76742-76744 E5-7951 Community Community Development Financial Institutions Fund NOTICES Agency information collection activities; proposals, submissions, and approvals, 76913 E5-7901 Defense Defense Department See Air Force Department See Navy Department Drug Drug Enforcement Administration NOTICES Registration revocations, restrictions, denials, reinstatements:

NorthStar Wholesale, 76866-76868 05-24496 Siddall, Donley D., M.D., 76868-76869 05-24497 Education Education Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 76786-76787 E5-7880 Grants and cooperative agreements; availability, etc.: Innovation and improvement— Parental Information and Resource Centers Program, 76787-76790 E5-7986 Postsecondary education— North American Mobility in Higher Education Program; correction, 76790 05-24537 Employee Employee Benefits Security Administration NOTICES Employee benefit plans; individual exemptions:

Pennsylvania Institute of Neurological Disorders, Inc., 76870-76886 05-24493 Wachovia Corp., 76886-76889 05-24492 Employment Employment and Training Administration NOTICES Adjustment assistance; applications, determinations, etc.: Conopco, Inc., 76889 E5-7953 Georgia-Pacific Corp., 76889 E5-7955 Kimberly-Clark Corp., 76889 E5-7958 Leggett & Platt, et al., 76889-76890 E5-7956 Magna International, 76890 E5-7959 Midas International Corp., 76890-76891 E5-7957 Pendleton Woolen Mills, Inc., 76891 E5-7961 Rug Barn, 76891-76892 E5-7954 Teradyne, Inc., 76892 E5-7952 United States Sugar Corp., 76892 E5-7960 Energy Energy Department See Federal Energy Regulatory Commission NOTICES Committees; establishment, renewal, termination, etc.:

Nuclear Energy Research Advisory Committee, 76790 E5-7975 Meetings: Environmental Management Site-Specific Advisory Board— Hanford Site, WA, 76791 E5-7977 Idaho National Engineering and Environmental Laboratory, 76790-76791 E5-7976 EPA Environmental Protection Agency RULES Air pollutants, hazardous; national emission standards: Industrial, commercial, and institutional boilers and process heaters; reconsideration, 76918-76935 05-24299 Air quality implementation plans; approval and promulgation; various States:

Alabama, 76694-76697 05-24474 Pesticides; tolerances in food, animal feeds, and raw agricultural commodities: Dichlormid, 76697-76699 05-24470 Xanthomonas campestris pv. vesicatoria, etc., 76700-76704 05-24540 PROPOSED RULES Air quality implementation plans; approval and promulgation; various States: Alabama, 76733 05-24473 Colorado, 76734 E5-7993 NOTICES Meetings: Aircraft public water systems; scoping workshop, 76815-76816 E5-7992 National Pollution Prevention and Toxics Advisory Committee, 76816-76817 E5-7995 Pesticide Program Dialogue Committee, 76817-76818 05-24466 Pesticide programs:

Risk assessments— Cypermethrin, 76818-76820 05-24407 Dicamba, 76820-76823 05-24409 Tolerance reassessment decisions— Imazaquin, 76823-76825 E5-7991 Pesticide registration, cancellation, etc.: ARCADIS Innovative Tree Services et al., 76825-76826 05-24467 Azinphos-methyl, 76827-76828 05-24469 Mancozeb, 76828-76829 05-24465 Maneb, 76829-76830 05-24468 Metiram, 76830-76832 05-24464 Propargite, 76832 05-24408 Equal Equal Employment Opportunity Commission NOTICES Senior Executive Service Performance Review Board; membership, 76832-76833 05-24514 Executive Executive Office of the President See Management and Budget Office See Presidential Documents FAA Federal Aviation Administration RULES Airworthiness directives:

Burkhardt Grob Luft-Und Raumfahrt GmbH & Co KG, 76676-76681 05-24478 05-24480 DG Flugzeugbau GmbH, 76681-76683 05-24481 Airworthiness standards: Transport category airplanes— Front row passenger seats; acceptable compliance methods, 76676 05-24503 Class E airspace, 76684 05-24505 PROPOSED RULES Airworthiness standards: Transport category airplanes— Seat belt attachment fittings on passenger seats; unreliable design; policy statement, 76728-76729 05-24501 Class E airspace, 76729-76730 05-24535 Offshore airspace areas, 76730-76732 E5-7987 NOTICES Environmental statements; availability, etc.:

National Environmental Policy Act; revision; correction, 76901 05-24533 Environmental statements; notice of intent: San Antonio International Airport, TX; withdrawn, 76901-76902 05-24534 Exemption petitions; summary and disposition, 76902 E5-7899 Passenger facility charges; applications, etc.: Dallas-Fort Worth International Airport, TX, et al., 76902-76905 05-24504 Los Angeles International Airport, CA, et al., 76905-76907 05-24532 Technical standard orders: Extended squitter automatic dependent surveillance, broadcast and traffic information service, and broadcast equipment, 76907-76908 05-24502 FCC Federal Communications Commission RULES Common carrier services:

Individuals with hearing and speech disabilities; telecommunications relay and speech-to-speech services, 76712-76713 05-24418 Radio services, special: Private land mobile radio services— 800 MHz band; public safety interference proceeding, 76704-76712 05-24373 NOTICES Agency information collection activities; proposals, submissions, and approvals, 76833-76836 E5-7871 E5-7873 Television broadcasting: Television station construction permits auction, 76836-76849 E5-7872 Federal Energy Federal Energy Regulatory Commission NOTICES Complaints filed:

Alaska et al., 76799-76800 E5-7919 AmerenUE, 76800 E5-7926 Anadarko Petroleum Corp. et al., 76800 E5-7920 Sioux Falls, SD, et al., 76800-76801 E5-7932 Electric rate and corporate regulation combined filings, 76801-76806 E5-7902 E5-7924 E5-7933 Environmental statements; availability, etc.: Creole Trail LNG, L.P., et al., 76806-76807 E5-7915 Erie Boulevard Hydropower, L.P., 76807 E5-7922 PacifiCorp, 76807 E5-7921 Southern California Edison Co., 76807-76808 E5-7909 Environmental statements; notice of intent:

Maritimes & Northeast Pipeline, L.L.C., 76808-76810 E5-7903 Hydroelectric applications, 76810-76815 E5-7908 E5-7914 E5-7936 *Applications, hearings, determinations, etc.:* Air Products, L.P., 76791-76792 E5-7917 Alliance Pipeline L.P., 76792 E5-7927 CenterPoint Energy Gas Transmission Co., E5-7930 76792-76793 E5-7931 Columbia Gulf Transmission Co., 76793 E5-7929 Domtar Maine Corp., 76793-76794 E5-7938 E5-7939 East Tennessee Natural Gas, LLC, 76794-76795 E5-7925 Entergy Louisiana, Inc., 76795 E5-7937 Liberty Power New York LLC et al., 76795 E5-7907 Ontario Energy Trading International Corp., 76796 E5-7918 Pepperell Realty, LLC, 76796 E5-7906 Tennessee Gas Pipeline Co., 76796-76797 E5-7928 Texas Gas Transmission, LLC, 76797 E5-7905 Transcontinental Gas Pipe Line Corp., 76797-76798 E5-7904 Trunkline Gas Co., LLC, 76798-76799 E5-7923 Trunkline Gas Co., LLC, et al., 76799 E5-7940 Federal Highway Federal Highway Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 76908 E5-7967 Federal Housing Federal Housing Finance Board PROPOSED RULES Affordable Housing Program; amendments, 76938-76961 05-24396 NOTICES Federal home loan bank system:

Community financial institutions average total assets and directors annual compensation; limits; annual adjustments, 76849-76850 E5-7890 Federal Reserve Federal Reserve System NOTICES Banks and bank holding companies: Formations, acquisitions, and mergers, 76850-76851 E5-7944 Fish Fish and Wildlife Service NOTICES Comprehensive conservation plans; availability, etc.: Shawangunk Grasslands National Wildlife Refuge, NY; correction, 76916 C5-23642 Organization, functions, and authority delegations:

Alaska Migratory Bird Co-management Council, 76853-76854 E5-7969 Food Food and Drug Administration RULES Food for human consumption: Food labeling— Dietary supplements containing botanicals; ingredient labeling; withdrawn, 76684-76685 05-24511 PROPOSED RULES Animal drugs, feeds, and related products: Minor uses or minor species; new drugs designation, 76732 05-24512 NOTICES Human drugs: Drug products withdrawn from sale for reasons other than safety or effectiveness— DECADRON tablets, 76851 E5-7875 Meetings:

Animal Drug User Fee Act; performance and reauthorization, 76851-76852 E5-7876 MISSING FOR: Foreign Agricultural Service Foreign Agricultural Service NOTICES Adjustment assistance; applications, determinations, etc.: Fresh cut snapdragon producers, 76744-76745 E5-7892 Forest Forest Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 76745-76750 E5-7935 Environmental statements; notice of intent: Idaho Panhandle National Forests, ID, 76750 05-24516 Plumas National Forest, CA, 76750-76751 05-24517 Health Health and Human Services Department See Food and Drug Administration See Health Resources and Services Administration Health Health Resources and Services Administration NOTICES Meetings:

Heritable Disorders and Genetic Diseases in Newborns and Children Advisory Committee, 76852-76853 E5-7934 Homeland Homeland Security Department See Coast Guard Housing Housing and Urban Development Department NOTICES Public and Indian housing: Public Housing Operating Fund Program; project expense levels computation, 76964-76966 05-24490 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau See National Park Service IRS Internal Revenue Service RULES Income taxes:

Domestic entities; determining ownership by former shareholders or partners; Section 7874 guidance, 76685-76689 05-24450 PROPOSED RULES Income taxes: Domestic entities; determining ownership by former shareholders or partners; Section 7874 guidance; cross-reference, 76732-76733 05-24580 International International Trade Administration NOTICES Antidumping: Ball bearings and parts from— Japan and Singapore, 76754-76755 05-24510 Cased pencils from— China, 76755-76763 E5-7881 Corrosion-resistant carbon steel flat products from— Germany and Canada, 76763-76764 E5-7983 Cut-to-length carbon steel plate from— Romania, 76764-76765 E5-7985 Fresh garlic from— China, 76765-76766 E5-7882 Honey from— Argentina, 76766-76771 E5-7981 Individually quick frozen red raspberries from— Chile, 76771-76772 E5-7978 Preserved Mushrooms from— China, 76772-76773 E5-7982 Small diameter seamless carbon and alloy steel standard, line and pressure pipe, from— Germany, 76773-76774 E5-7980 Softwood lumber products from— Canada, 76774-76775 E5-7979 Stainless steel sheet and strip in coils from— Italy, 76775-76777 E5-7984 Justice Justice Department See Drug Enforcement Administration Labor Labor Department See Employee Benefits Security Administration See Employment and Training Administration See Mine Safety and Health Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, E5-7962 76869-76870 E5-7963 Land Land Management Bureau NOTICES Public land orders:

Nevada, 76854-76858 05-24579 Management Management and Budget Office NOTICES Meetings: Acquisition Advisory Panel, 76895 05-24605 Mine Mine Safety and Health Administration NOTICES Petitions for safety standards modification; summary of affirmative decisions, 76892-76893 E5-7900 National Foundation National Foundation on the Arts and the Humanities NOTICES Meetings: Arts Advisory Panel, 76893-76894 E5-7894 National Highway National Highway Traffic Safety Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 76909 E5-7968 NOAA National Oceanic and Atmospheric Administration RULES Fishery conservation and management:

Northeastern United States fisheries— Atlantic herring, 76714-76715 05-24520 Atlantic surfclam and ocean quahog, 76715-76717 05-24541 Emergency closure due to presence of toxin causing paralytic shellfish poisoning, 76713-76714 05-24519 NOTICES Environmental statements; notice of intent: National Marine Mammal Health and Stranding Response Program; public scoping meetings, 76777-76780 E5-7990 Steller sea lions and northern fur seals; research impacts, 76780-76783 E5-7989 Meetings:

Pacific Fishery Management Council, E5-7851 76783-76784 E5-7988 National Park National Park Service NOTICES Boundary establishment, descriptions, etc.: Antietam National Battlefield, MD, 76858 E5-7889 Environmental statements; availability, etc.: Big Thicket National Preserve, TX; oil and gas management plan, 76858 E5-7885 Golden Gate National Recreation Area, Muir Woods National Monument and Fort Point National Historic Site, CA; fire management plan, 76858-76860 E5-7898 Santa Monica Mountains National Recreation Area, Los Angeles and Ventura Counties, CA ; fire management plan, 76860-76862 E5-7893 Environmental statements; notice of intent:

Grand Teton National Park, WY, 76862 E5-7884 Sleeping Bear Dunes National Lakeshore, MI; general management plan and wilderness study, 76862-76863 E5-7888 Meetings: Acadia National Park Advisory Commission, 76863 05-24508 National Park System Advisory Board, 76863-76864 E5-7891 National Register of Historic Places; pending nominations, 76864 E5-7994 Native American human remains, funerary objects; inventory, repatriation, etc.: Sam Noble Oklahoma Museum of Natural History, University of Oklahoma, Norman, OK, 76864-76865 E5-7886 Thomas Burke Memorial Washington State Museum, University of Washington, Seattle, WA, 76865-76866 05-24509 Navy Navy Department NOTICES Environmental statements; availability, etc.:

Surveillance towed array sensor system low frequency active sonar, 76786 E5-7942 Undersea Warfare Training Range, 76786 E5-7943 Nuclear Nuclear Regulatory Commission PROPOSED RULES Rulemaking petitions: Hamrick, Barbara, 76724-76728 E5-7974 NOTICES Agency information collection activities; proposals, submissions, and approvals, 76894 E5-7966 Meetings; Sunshine Act, 76894-76895 05-24628 Office Office of Management and Budget See Management and Budget Office Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 76909-76912 05-24518 Presidential Presidential Documents PROCLAMATIONS *Special observances:* National Mentoring Month (Proc. 7972), 76967-76970 05-24641 SEC Securities and Exchange Commission NOTICES Self-regulatory organizations; proposed rule changes:

National Association of Securities Dealers, Inc., 76895-76897 E5-7896 Pacific Exchange, Inc., 76897-76899 E5-7895 State State Department NOTICES Meetings: Shipping Coordinating Committee, 05-24522 76899-76900 05-24523 05-24524 Surface Surface Transportation Board NOTICES Rail carriers: Control exemptions— Koch Forest Products, Inc. and Koch Industries, Inc., 76912 05-24403 Railroad services abandonment: BNSF Railway Co., 76912-76913 05-24558 Textile Textile Agreements Implementation Committee See Committee for the Implementation of Textile Agreements Thrift Thrift Supervision Office RULES Technical amendments, 76674-76676 05-24499 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See National Highway Traffic Safety Administration See Pipeline and Hazardous Materials Safety Administration See Surface Transportation Board NOTICES Aviation proceedings:

Agreements filed; weekly receipts, 76900-76901 E5-7965 Certificates of public convenience and necessity and foreign air carrier permits; weekly applications, 76901 E5-7964 Treasury Treasury Department See Community Development Financial Institutions Fund See Internal Revenue Service See Thrift Supervision Office Veterans Veterans Affairs Department NOTICES Agency information collection activities; proposals, submissions, and approvals, E5-7874 76914-76915 E5-7878 E5-7879 Separate Parts In This Issue Part II Environmental Protection Agency, 76918-76935 05-24299 Part III Federal Housing Finance Board, 76938-76961 05-24396 Part IV Housing and Urban Development Department, 76964-76966 05-24490 Part V Executive Office of the President, Presidential Documents, 76967-76970 05-24641 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 70 248 Wednesday, December 28, 2005 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 51 [Docket Number FV-04-310] RIN 0581-AC46 Revision of Fees for the Fresh Fruit and Vegetable Terminal Market Inspection Services AGENCY:

Agricultural Marketing Service, USDA. ACTION: Final rule. SUMMARY: This rule revises the regulations governing the inspection and certification for fresh fruits, vegetables and other products by increasing by approximately 15 percent certain fees charged for the inspection of these products at destination markets. These revisions are necessary in order to recover, as nearly as practicable, the costs of performing inspection services at destination markets under the Agricultural Marketing Act of 1946 (AMA of 1946).

The fees charged to persons required to have inspection on imported commodities are in accordance with the Agricultural Marketing Agreement Act of 1937 and for imported peanuts under section 1308 of the Farm Security and Rural Investigation Act of 2002. DATES: Effective January 27, 2006. FOR FURTHER INFORMATION CONTACT: Rita Bibbs-Booth, Program Support Section, Fresh Products Branch, Fruit and Vegetable Programs, USDA, 1400 Independence Ave., SW., Room 0640-S, Washington, DC 20250-0295, or call

(202)720-0391. SUPPLEMENTARY INFORMATION: Executive Order 12866 and Regulatory Flexibility Act This rule has been determined to be “non-significant” for the purposes of Executive Order 12866, and therefore, has not been reviewed by the Office of Management and Budget. Also, pursuant to the requirement set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. Accordingly, AMS proposed this initial regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. The action described herein is being taken for several reasons, including that additional user fee revenues are needed to cover the costs of:

(1)Providing current program operations and services;

(2)improving the timeliness in which inspection services are provided; and

(3)improving the work environment. AMS regularly reviews its user-fee financed programs to determine if the fees are adequate. The Fresh Products Branch

(FPB)has and will continue to seek out cost saving opportunities and implement appropriate changes to reduce its costs. Such actions can provide alternatives to fee increases. However, even with these efforts, FPB's existing fee schedule will not generate sufficient revenue to cover program costs while maintaining the Agency mandated reserve balance. Current revenue projections for FPB's destination market inspection work during FY 2005 are $14.6 million with costs projected at $20.9 million and an end-of-year reserve balance of $17.6 million. However, this reserve balance is due to appropriated funding received in October 2001, and for infrastructure, workplace, and technological improvements. FPB's costs of operating the destination market program are expected to increase to approximately $22.4 million during FY 2006 and $23.1 million during FY 2007. The current fee structure with the infusion of the appropriated funding is expected to fund the terminal market inspection program until FY 2008, when FPB will fall below the Agency's mandated four-month reserve level. This fee increase should result in an estimated $1.4 million in additional revenues per year (effective in FY 2006). This will not cover all of FPB's costs. FPB will need to continue to increase fees in order to cover the program's operating cost and maintain the required reserve balance. FPB believes that increasing fees incrementally is appropriate at this time. Additional fee increases beyond FY 2006 will be needed to sustain the program in the future. Employee salaries and benefits are major program costs that account for approximately 80 percent of FPB's total operating budget. A general and locality salary increase for Federal employees, ranging from 3.71 to 4.87 percent depending on locality, effective January 2005, has significantly increased program costs. In addition, general and locality salary increases for Federal employees ranging from 3.90% to 4.92% depending on locality, effective from January 2004, also significantly increased program costs. These salary adjustments have increased FPB's costs by over $700,000 per year. Increases in health and life insurance premiums, along with workers compensation will also increase program costs. In addition, inflation also impacts FPB's non-salary costs. These factors have increased FPB's costs of operating this program by over $600,000 per year. Additional funds of approximately $155,000 are necessary in order for FPB to continue to cover the costs associated with additional staff and to maintain office space and equipment. Additional revenues are also necessary to improve the work environment by providing training and purchasing needed equipment. In addition, FPB began, in 2001, developing (with appropriated funds) the Fresh Electronic Inspection Reporting/Resource System (FEIRS) to replace its manual paper and pen inspection reporting process. FEIRS was implemented in 2004. This system has been put in place to enhance and streamline FPB's fruit and vegetable inspection process, however, additional revenue is required to maintain FEIRS. This rule should increase user fee revenue generated under the destination market program by approximately 15 percent. This action is authorized under the Agricultural Marketing Act of 1946 (AMA of 1946) (See 7 U.S.C. 1622(h)), which provides that the Secretary of Agriculture may assess and collect “such fees as will be reasonable and as nearly as may be to cover the costs of services rendered * * *” There are more than 2,000 users of FPB's destination market grading services (including applicants who must meet import requirements 1 —inspections which amount to under 2.5 percent of all lot inspections performed). A small portion of these users are small entities under the criteria established by the Small Business Administration (13 CFR 121.201). There would be no additional reporting, recordkeeping, or other compliance requirements imposed upon small entities as a result of this rule. In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements in part 51 have been approved previously by OMB and assigned OMB No. 0581-0125. FPB has not identified any other Federal rules which may duplicate, overlap or conflict with this rule. 1 Section 8e of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), requires that whenever the Secretary of Agriculture issues grade, size, quality or maturity regulations under domestic marketing orders for certain commodities, the same or comparable regulations on imports of those commodities must be issued. Import regulations apply during those periods when domestic marketing order regulations are in effect. Section 1308 of the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171), 7 U.S.C. 7958, required USDA among other things to develop new peanut quality and handling standards for imported peanuts marketed in the United States. Currently, there are 14 commodities subject to 8e import regulations: Avocados, dates (other than dates for processing), filberts, grapefruit, kiwifruit, olives (other than Spanish-style green olives), onions, oranges, potatoes, prunes, raisins, table grapes, tomatoes and walnuts. A current listing of the regulated commodities can be found under 7 CFR parts 944, 980, 996, and 999. The destination market grading services are voluntary (except when required for imported commodities) and the fees charged to users of these services vary with usage. However, the impact on all businesses, including small entities, is very similar. Further, even though fees will be raised, the increase is not excessive and should not significantly affect these entities. Finally, except for those persons who are required to obtain inspections, most of these businesses are typically under no obligation to use these inspection services, and, therefore, any decision on their part to discontinue the use of the services should not prevent them from marketing their products. Executive Order 12988 This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect. This rule will not preempt any state or local laws, regulations or policies, unless they present an irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this rule. Action The AMA of 1946 authorizes official inspection, grading, and certification, on a user-fee basis, of fresh fruits, vegetables and other products such as raw nuts, Christmas trees and flowers. The AMA of 1946 provides that reasonable fees be collected from the users of the services to cover, as nearly as practicable, the cost of the services rendered. This rule would amend the schedule for fees and charges for inspection services rendered to the fresh fruit and vegetable industry to reflect the costs necessary to operate the program. The Agricultural Marketing Service

(AMS)regularly reviews its user-fee programs to determine if the fees are adequate. While FPB continues to search for opportunities to reduce its costs, the existing fee schedule will not generate sufficient revenues to cover program costs while maintaining the Agency mandated reserve balance. Current revenue projections for destination market inspection work during FY-05 are $14.6 million, with costs projected at $20.9 million and an end-of-year reserve of $17.6 million. However, this reserve balance is due to appropriated funding received from Congress in October of 2001. These funds were established to build up the terminal market inspection reserve fund and for infrastructure improvements including development and maintenance of the inspector training center, workplace and technological improvements, including digital imaging and automation of the inspection process. However, by FY-08, without increasing fees, FPB's trust fund balance for this program will be below the agency mandated four months of operating reserve (approximately $4.6 million) deemed necessary to provide an adequate reserve balance in light of increasing program costs. Further, FPB's costs of operating the destination market program are expected to increase to approximately $22.4 million in FY-06 and to approximately $23.1 million during FY-07. These cost increases (which are outlined below) will result from inflationary increases with regard to current FPB operations and services (primarily salaries and benefits), increased inspection demands, and the acquisition and maintenance of computer technology ( *i.e.* , FEIRS). Employee salaries and benefits are major program costs that account for approximately 80 percent of FPB's total operating budget. A general and locality salary increase for Federal employees, ranging from 3.71 to 4.87 percent depending on locality, effective January 2005, has significantly increased program costs. In addition, general and locality salary increases for Federal employees ranging from 3.90% to 4.92% depending on locality, effective from January 2004, also significantly increased program costs. These salary adjustments have increased FPB's costs by over $700,000 per year. Increases in health and life insurance premiums, along with workers compensation, will also increase program costs. In addition, inflation also impacts FPB's non-salary costs. These factors have increased FPB's costs of operating this program by over $600,000 per year. Additional revenues (approximately $155,000) are necessary in order for FPB to continue to cover the costs associated with additional staff and to maintain office space and equipment. Additional revenues are also necessary to continue to improve the work environment by providing training and purchasing needed equipment. In addition, FPB began, in 2001, developing (with appropriate funds) an automated system known as FEIRS, to replace its manual paper and pen inspection reporting process. Approximately $10,000 in additional revenue per month will be needed to maintain the system. This system has been put in place to enhance FPB's fruit and vegetable inspection processes. Based on the aforementioned analysis of this program's increasing costs, AMS proposed to increase the fees for destination market inspection services. The following table compares current fees and charges with the proposed fees and charges for fresh fruit and vegetable inspections as found in 7 CFR 51.38. Unless otherwise provided for by regulation or written agreement between the applicant and the Administrator, the charge in the schedule of fees as found in § 51.38 are: Service Current Proposed Quality and condition inspections of products each in quantities of 51 or more packages and unloaded from the same land or air conveyance: —Over a half carlot equivalent of each product $99.00 $114.00 —Half carlot equivalent or less of each product 83.00 95.00 —For each additional lot of the same product 45.00 52.00 Condition only inspections of products each in quantities of 51 or more packages and unloaded from the same land or air conveyance: —Over a half carlot equivalent of each product 83.00 95.00 —Half carlot equivalent or less of each product 76.00 87.00 —For each additional lot of the same product 45.00 52.00 Quality and condition and condition only inspections of products each in quantities of 50 or less packages unloaded from the same land or air conveyance: —For each product 45.00 52.00 —For each additional lot of any of the same product 45.00 52.00 Lots in excess of carlot equivalents will be charged proportionally by the quarter carlot Dock side inspections of an individual product unloaded directly from the same ship: —For each package weighing less than 30 pounds 2.5 cents 2.9 cents —For each package weighing 30 or more pounds 3.8 cents 4.4 cents —Minimum charge per individual product 99.00 114.00 —Minimum charge for each additional lot of the same product 45.00 52.00 Hourly rate for inspections performed for other purposes during the grader's regularly scheduled work week: —Hourly rate for other work performed during the grader's regularly scheduled work week will be charged at a reasonable rate 49.00 56.00 Audit based services: 75.00 Overtime or holiday premium rate (per hour additional) for all inspections performed outside the grader's regularly scheduled work week 25.00 29.00 Hourly rate for inspections performed under 40 hour contracts during the grader's regularly scheduled work week 49.00 56.00 Rate for billable mileage, per mile 1.00 1.00 A notice of proposed rulemaking was published in the **Federal Register** on August 25, 2005 (70 FR 49882). FPB received three comments during this period. The first comment was received from Western Growers in support of the proposed rule to increase fees by approximately 15 percent for the inspection of products at destination markets. In addition, Western Growers urged the department to utilize an efficient business model to help infuse and enhance the program. Western Growers recognized that cost saving opportunities had been sought and asked that efforts continue to achieve an efficient business model and generate sufficient savings. The second comment was received from the United Fresh Fruit & Vegetable Association (United) in support of the fee increase. However, United also requested that other funding options be explored before additional fee increases are considered in subsequent years. The final comments were received from the North American Perishable Agricultural Receivers (NAPAR). NAPAR expressed concern regarding the fee increase, stating that a 15 percent increase seems excessive compared to inspection fees in Canada. It is difficult to compare the USDA fee structure with the Canadian fee structure since both operationally and logistically, the programs are different. NAPAR also commented on the validity of fees charged on multi-lot inspections. We reviewed the charges assessed in the example given and noted that the fee was calculated correctly. NAPAR also commented on the Fresh Electronic Inspection Reporting/Resource System (FEIRS). First, identifying early functionally concerns. Second, noting FEIRS improvements and third, recommending that funds from any increase in fees be used for continued FEIRS development. Appropriate funding for the FEIRS program has been included in the user fee calculations. NAPAR also requested a two week extension to allow their members an opportunity to file comments, which was granted on October 20, 2005, and ended on November 4, 2005. No additional comments from NAPAR members were received during the extension period. However, during the extended period for comments, two additional comments were received. A comment from Frahm Fresh Produce, Inc., urged that fees not be increased. The State of Washington Potato Committee expressed understanding for the need to increase fees and cited their anticipation of greater efficiencies. In addition, we received a comment concerning FEIRS noting that the program was appreciated at terminal markets and encouraged implementation at shipping point. However, the State of Washington Potato Committee does not support an increase in fees to maintain FEIRS. Finally, the comment stated that the Washington potato industry is feeling funding pressure and has no choice but to opt-out of the inspection process. We do note that there has been a decline in shipping point inspections. Each of the five comments received was carefully considered. Nevertheless, FPB's current fees are not adequate and an increase in fees is necessary. At the same time, FPB has and continues to realize cost savings to the terminal market program by re-assessing hours of service and staffing, improved management of overtime charged and travel and supply purchases. List of Subjects in 7 CFR Part 51 Agricultural commodities, Food grades and standards, Fruits, Nuts, Reporting and record keeping requirements, Trees, Vegetables. For reasons set forth in the preamble, 7 CFR part 51 is amended as follows: PART 51—[AMENDED] 1. The authority citation for 7 CFR part 51 continues to read as follows: Authority: 7 U.S.C. 1621-1627. 2. Section 51.38 is revised to read as follows: § 51.38 Basis for fees and rates.

(a)When performing inspections of product unloaded directly from land or air transportation, the charges shall be determined on the following basis:

(1)Quality and condition inspections of products in quantities of 51 or more packages and unloaded from the same air or land conveyance:

(i)$114 for over a half carlot equivalent of an individual product;

(ii)$95 for a half carlot equivalent or less of an individual product;

(iii)$52 for each additional lot of the same product.

(2)Condition only inspections of products each in quantities of 51 or more packages and unloaded from the same land or air conveyance:

(i)$95 for over a half carlot equivalent of an individual product;

(ii)$87 for a half carlot equivalent or less of an individual product;

(iii)$52 for each additional lot of the same product.

(3)For quality and condition inspections and condition only inspections of products in quantities of 50 or less packages unloaded from the same conveyance:

(i)$52 for each individual product:

(ii)$52 for each additional lot of any of the same product. Lots in excess of carlot equivalents will be charged proportionally by the quarter carlot.

(b)When performing inspections of palletized products unloaded directly from sea transportation or when palletized product is first offered for inspection before being transported from the dock-side facility, charges shall be determined on the following basis:

(1)Dock side inspections of an individual product unloaded directly from the same ship:

(i)2.9 cents per package weighing less than 30 pounds;

(ii)4.4 cents per package weighing 30 or more pounds;

(iii)Minimum charge of $114 per individual product;

(iv)Minimum charge of $52 for each additional lot of the same product.

(2)[Reserved]

(c)When performing inspections of products from sea containers unloaded directly from sea transportation or when palletized products unloaded directly from sea transportation are not offered for inspection at dock-side, the carlot fees in

(a)of this section shall apply.

(d)When performing inspections for Government agencies, or for purposes other than those prescribed in paragraphs

(a)through

(c)of this section, including weight-only and freezing-only inspections, fees for inspections shall be based on the time consumed by the grader in connection with such inspections, computed at a rate of $56 per hour: *Provided,* that:

(1)Charges for time shall be rounded to the nearest half hour;

(2)The minimum fee shall be two hours for weight-only inspections, and one-half hour for other inspections;

(3)When weight certification is provided in addition to quality and/or condition inspections, a one hour charge shall be added to the carlot fee;

(4)When inspections are performed to certify product compliance for Defense Personnel Support Centers, the daily or weekly charge shall be determined by multiplying the total hours consumed to conduct inspections by the hourly rate. The daily or weekly charge shall be prorated among applicants by multiplying the daily or weekly charge by the percentage of product passed and/or failed for each applicant during that day or week. Waiting time and overtime charges shall be charged directly to the applicant responsible for their incurrence.

(e)When performing inspections at the request of the applicant during periods which are outside the grader's regularly scheduled work week, a charge for overtime or holiday work shall be made at the rate of $29.00 per hour or portion thereof in addition to the carlot equivalent fee, package charge, or hourly charge specified in this subpart. Overtime or holiday charges for time shall be rounded to the nearest half hour.

(f)When an inspection is delayed because product is not available or readily accessible, a charge for waiting time shall be made at the prevailing hourly rate in addition to the carlot equivalent fee, package charge, or hourly charge specified in this subpart. Waiting time shall be rounded to the nearest half hour. Dated: November 16, 2005. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. 05-24338 Filed 12-27-05; 8:45 am]

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