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Code · REGISTER · 2006-02-06 · Animal and Plant Health Inspection Service, USDA · Rules and Regulations

Rules and Regulations. Proposed rule

15,461 words·~70 min read·/register/2006/02/06/06-1041

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 6560-50-P 71 24 Monday, February 6, 2006 Proposed Rules DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 319 [Docket No. APHIS-2006-0009] Importation of Tomatoes From Certain Central American Countries AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Proposed rule. SUMMARY: We are proposing to amend the regulations governing the importation of fruits and vegetables in order to allow pink and red tomatoes grown in approved registered production sites in Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama to be imported into the United States without treatment.
The conditions to which the proposed importation of tomatoes would be subject, including trapping, pre-harvest inspection, and shipping procedures, are designed to prevent the introduction of quarantine pests into the United States. This action would allow for the importation of pink and red tomatoes from those countries in Central America while continuing to provide protection against the introduction of quarantine pests into the United States. DATES: We will consider all comments that we receive on or before April 7, 2006.
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-2006-0009 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.
APHIS-2006-0009, 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. APHIS-2006-0009. *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.* FOR FURTHER INFORMATION CONTACT: Ms. Donna L. West, Senior Import Specialist, Commodity Import Analysis and Operations, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231;
(301)734-8758. SUPPLEMENTARY INFORMATION: Background The regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56 though 319.56-8, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests that are new to or not widely distributed within the United States. Section 319.56-2dd of the regulations contains administrative instructions allowing the importation of tomatoes from various countries where the Mediterranean fruit fly (Medfly, *Ceratitis capitata* ) is present. In this document, we are proposing to amend that section by adding a new paragraph
(f)that would set forth administrative instructions concerning the importation of pink and red tomatoes from Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama. In a decision sheet 1 dated December 28, 1934, we authorized the importation of tomatoes from Central America and Mexico. However, in a subsequent set of decision sheets dated April 15, 1982, and January 27, 1983, we identified red tomatoes from Ecuador, Costa Rica, and Panama as an occasional Medfly host. Given the similar pest situations in the other Central American countries, we changed the conditions of the permits issued for Central American tomatoes to allow only green tomatoes to be imported, since they are not a Medfly host. Pink tomatoes were prohibited in order to reduce confusion between pink and red tomatoes during port-of-entry inspections. 1 Before we routinely prepared pest risk assessments according to the guidelines provided by the Food and Agriculture Organization and the North American Plant Protection Organization we prepared decision sheets. Decision sheets contain relatively the same information that is contained in modern pest risk assessments, but without the standardized format. The Government of El Salvador has requested the reauthorization of the importation of pink and red tomatoes from that country. In response, the Animal and Plant Health Inspection Service (APHIS) developed a systems approach, described below, under which tomatoes could be imported into the United States without treatment. We have determined that the systems approach could also be used by producers throughout Costa Rica, Guatemala, Honduras, Nicaragua, and Panama because of the similar pest risks present in these countries. Therefore, we are proposing to allow tomatoes to be imported into the United States from those six Central American countries under conditions very similar to current requirements for importing tomatoes from France, Morocco and Western Sahara, and Spain. Currently, tomatoes are being shipped from over 200 greenhouses in Europe using this systems approach. Since the start of the tomato systems approach in France and Spain, the number of pest interceptions has been very low, with an approximate shipment infestation rate of 0.005 percent in Spain and 0.06 percent in France. We have prepared a document in which we examine the risks of importing tomatoes from the six Central America countries that was based on an examination of relevant information (e.g., pest risk assessments, decisions sheets, pest interception data, etc.) regarding this commodity. The document may be viewed on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov) or on the APHIS Web site at *http://www.aphis.usda.gov/ppq/pra/draft/.* The quarantine pests of concern in Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama, as identified in the document prepared for this proposed rule, are Medfly, the tomato fruit borer ( *Neoleucinodes elegantalis* ), the pea leafminer ( *Liriomyza huidobrensis* ), and the potato spindle tuber viroid. With the exception of Medfly, for which we have developed the specific systems approach described below as mitigation, the pests of concern (tomato fruit borer, the pea leafminer, and the potato spindle tuber viroid) exhibit symptoms that are macroscopic and detectable upon visual inspection in the production areas or during pre-export or port-of-entry inspections. Specifically: • Tomato fruit borer larvae penetrate the fruit and may cause the fruit to fall or become otherwise unmarketable. More mature larvae create large exit holes in the fruit that can be easily detected. In addition, the screen size required by the systems approach described below is too small to allow the entry of adult tomato fruit borers. • Pea leafminers spend a majority of their lifecycle in larval form, mining host leaves. These mines are easily detectable via visual inspection. • Potato spindle tuber viroid is primarily a pest of potatoes, but may also affect tomatoes. Symptoms of the viroid, except for mild strains, would be readily detected with the naked eye. Recent data on the potato spindle tuber viroid indicate there has only been one interception of the viroid from one country in Central America, Costa Rica. The interception was on potatoes, not tomatoes, and was easily detected by inspectors. This evidence suggests that it is unlikely that the potato spindle tuber viroid will be found on tomatoes from Central America, and we believe that inspections throughout the growing season will provide sufficient mitigation. Thus, we would utilize inspection as the primary mitigation measure for tomato fruit borer, pea leafminer, and potato spindle tuber viroid, and the specific systems approach described in this document would serve to mitigate the risks associated with Medfly. The systems approach, outlined below, utilizes pest exclusionary greenhouses and packinghouses. As stated previously, we believe this approach could be used by producers throughout Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama, given the similar pest risks present in these countries. We are confident that these measures would effectively mitigate the risk posed by Medfly while production site, pre-export, and port-of-entry inspections would continue to provide mitigation for any additional pests. Green tomatoes could continue to be imported as before, but the systems approach would provide importers with alternative sources of tomatoes at a more advanced stage of ripeness. In addition, we would also allow the importation of pink or red field-grown tomatoes from areas certified free of Medfly. The proposed conditions for the importation of greenhouse-grown and field-grown tomatoes are explained in the following paragraphs. Areas Where Medfly Is Present Tomatoes grown in an area that has not been determined to be free of Medfly would be required to be grown in approved production sites registered with the national plant protection organization
(NPPO)of the exporting country and would be subject to the systems approach detailed below. Initial approval of the production sites would be completed jointly by the exporting country's NPPO and APHIS. Representatives of the exporting country's NPPO would have to visit and inspect the production sites monthly, starting 2 months before harvest and continuing through until the end of the shipping season. APHIS could monitor the production sites at any time during this period. Tomato production sites would have to consist of pest exclusionary greenhouses with self-closing double doors. All additional openings would be required to be covered with 1.6 (or less) millimeter screening. Registered sites would have to contain traps with an approved protein bait for the detection of Medfly within the greenhouses at a density of four traps per hectare, with a minimum of at least two traps per greenhouse. Traps would have to be serviced on a weekly basis. Medfly traps with an approved protein bait would also have to be placed inside a buffer area 500 meters wide around the registered production site, at a density of 1 trap per 10 hectares. These traps would have to be checked at least once every 7 days. At least one trap would have to be near the greenhouse. Traps would have to be set for at least 2 months prior to export, and trapping would have to continue to the end of harvest. Capture of 0.7 or more Medflies per trap per week within the buffer zone would suspend or delay the harvest, depending on whether the harvest had begun, for consignments of tomatoes from that production site until APHIS and the exporting country's NPPO determine that the pest risk has been mitigated. If a single Medfly is detected inside a registered production site or in a consignment, the registered production site would lose its ability to export tomatoes to the United States until APHIS and the exporting country's NPPO mutually determine that risk mitigation has been achieved. For the other pests of concern listed above, the greenhouse would have to be inspected prior to harvest, and if any of these pests or any other quarantine pests is found to be generally infesting the greenhouse, the NPPO would not allow export from that production site until APHIS and the NPPO agree that risk mitigation has been achieved. If the NPPO detected any quarantine pests in the consignment, the shipment would be deemed ineligible for export to the United States. The exporting country's NPPO would have to maintain records of trap placement, checking of traps, and any Medfly captures, as well as production site and packinghouse inspection results. In addition, the exporting country's NPPO would have to maintain an APHIS-approved quality control program to monitor or audit the trapping program. The trapping records would have to be maintained for APHIS's review. We would require that tomatoes be packed within 24 hours of harvest in a pest-exclusionary packinghouse. The tomatoes would have to be safeguarded by an insect-proof mesh screen or plastic tarpaulin while in transit from the production site to the packinghouse and while awaiting packing. The tomatoes would have to be packed in insect-proof cartons or containers, or covered with insect-proof mesh or plastic tarpaulin, for transit into the United States. These safeguards would have to remain intact until arrival in the United States or the shipment would not be allowed to enter the United States. During the time the packinghouse is in use for exporting fruit to the United States, the packinghouse could accept fruit only from registered approved production sites. The exporting country's NPPO would be responsible for export certification, inspection, and issuance of phytosanitary certificates. Each shipment of tomatoes would have to be accompanied by a phytosanitary certificate issued by the NPPO and bearing the declaration, “These tomatoes were grown in an approved production site and the shipment has been inspected and found free of the pests listed in the requirements.” The shipping box would have to be labeled with the identity of the production site. Medfly-Free Areas We would allow tomatoes grown in a Medfly-free area to be imported under conditions less stringent than those described above for tomatoes grown in areas where Medfly is present. The tomatoes would have to be grown and packed in an area that APHIS has determined to be free of Medfly in accordance with the procedures described in § 319.56-2(f); currently, the Department of Peten in Guatemala is the only Medfly-free area in the Central American countries covered by this proposed rule. For the tomato fruit borer, pea leafminer, and potato spindle tuber viroid, the production site would have to be inspected prior to harvest and if any of these pests or any other quarantine pests are found to be generally infesting the production site, the NPPO would not allow export from that production site until APHIS and the NPPO agree that risk mitigation has been achieved. If the NPPO detects any quarantine pests in the consignment, the shipment would be deemed ineligible for export to the United States. We would require that the tomatoes be packed in insect-proof cartons or containers, or covered with insect-proof mesh or plastic tarpaulin, for transit into the United States. These safeguards would have to remain intact until arrival in the United States or the shipment would not be allowed to enter the United States. These measures would be necessary since, although the production area is Medfly-free, the tomatoes would need to be protected against infestation while in transit. The exporting country's NPPO would be responsible for export certification, inspection, and issuance of phytosanitary certificates. Each shipment of tomatoes would have to be accompanied by a phytosanitary certificate issued by the NPPO and bearing the declaration, “These tomatoes were grown in an area recognized to be free of Medfly and the shipment has been inspected and found free of the pests listed in the requirements.” The shipping box would have to be labeled with the identity of the production site. Executive Order 12866 and Regulatory Flexibility Act This proposed rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. The Regulatory Flexibility Act
(RFA)requires that agencies consider the economic impact of their rules on small businesses, organizations, and governmental jurisdictions. In accordance with section 603 of the RFA, we have prepared an initial regulatory flexibility analysis describing the expected impact of the changes proposed in this document on small entities. Under the Plant Protection Act (7 U.S.C. 7701 *et seq.* ), the Secretary of Agriculture is authorized to regulate the importation of plants, plant products, and other articles to prevent the introduction of plant pests and noxious weeds. We are proposing to amend the regulations governing the importation of fruits and vegetables in order to allow pink and red tomatoes grown in approved registered production sites in Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama to be imported into the United States without treatment. The conditions to which the proposed importation of tomatoes would be subject, including trapping, pre-harvest inspection, and shipping procedures, are designed to prevent the introduction of quarantine pests into the United States. This action would allow for the importation of pink and red tomatoes from those countries in Central America while continuing to provide protection against the introduction of quarantine pests into the United States. Central American Production and Exports While agriculture is an important industry in the countries that would be affected by this rule, it does not account for the largest share of gross domestic product in any of the countries. Tomatoes do not appear to be major crops in those Central American countries. However, production and exports of tomatoes are following upward trends. Tomato production in Central America has been steadily increasing since the early 1960s. Over this period, production has increased almost 300 percent. In conjunction with this increase in production, exports of tomatoes from the region have also increased. Exports in 2003 were 42 times the exports in 1962. Between 1980 and 2003, exports increased by 45 percent. From 1962 to 2003, exports of tomatoes to countries within Central America accounted for 96 percent of total exports. In more recent times, specifically the period between 1980 and 2003, this percentage has increased by 99 percent. Thus, the vast majority of the tomatoes exported from any Central American country are destined for another country within the same region. U.S. Import Levels U.S. imports of Central American tomatoes have fluctuated greatly over the last 15 years. 2 In fact, 2003 was the end of a 10-year period during which the United States did not import tomatoes from any Central American country. U.S. imports of fresh tomatoes principally originate in Mexico, Canada, and the Netherlands, with Mexico being by far the largest supplier. 2 It is important to note here that this discussion refers to imports of all varieties of tomatoes. Disaggregated data were not available for this analysis. Although this proposed rule would allow for more liberal importation of tomatoes from certain Central American countries, it is unlikely that the proposed changes would lead to dramatic increases in U.S. import levels from this region. Effects on Small Entities This proposed rule would affect domestic producers of tomatoes as well as importers that deal with these commodities. It is likely that the entities affected would be small according to Small Business Administration
(SBA)guidelines. As detailed below, information available to APHIS indicates that the effects on these small entities would not be significant. Two alternatives to the proposed course of action are as follows: Maintaining the status quo with respect to the importation of tomatoes from these Central American countries (i.e., green tomatoes only) or allowing importation without establishing the proposed risk mitigations. The first alternative would maintain current safeguards against the entry of quarantine pests. However, this option would also mean that those specified Central American countries as well as the United States would forgo the economic benefits expected to be afforded by the proposed trade. Allowing the importation of fresh tomatoes from certain Central American countries under phytosanitary requirements less restrictive than are proposed could potentially lead to the introduction of pests not currently found in the United States. This option could result in significant damage and costs to domestic production and is not desirable for those reasons. Affected U.S. tomato producers are expected to be small based on the 2002 Census of Agriculture data and SBA guidelines for entities in two farm categories: Other Vegetable (except Potato) and Melon Farming (North American Industry Classification System [NAICS] code 111219) and Other Food Crops Grown Under Cover (NAICS code 111419). The SBA classifies producers in these farm categories as small entities if their total annual sales are $750,000 or less. APHIS does not have information on the size distribution of domestic tomato producers, but according to 2002 Census data, there were a total of 2,128,892 farms in the United States. 3 Of this number, approximately 97 percent had total annual sales of less than $500,000 in 2002, which is well below the SBA's small entity threshold for commodity farms. 4 This indicates that the majority of farms are considered small by SBA standards, and it is reasonable to assume that most of the 19,539 tomato farms that could be affected by the proposed rule would also qualify as small. In the case of fruit and vegetable wholesalers (NAICS code 422480), 5 those entities with fewer than 100 employees are considered small by SBA standards. 6 In 1997, there were a total of 4,811 fruit and vegetable wholesale trade farms in the United States. 7 Of these farms, 4,610 or 95.8 percent employed fewer than 100 employees and were considered small by SBA standards. Between 1997 and 2002, there is not likely to have been substantial changes in the industry. Therefore, domestic producers and importers that may be affected by this proposed rule are predominantly small entities. 3 This number represents the total number of farms in the United States, thus including barley, buckwheat, corn, millet, oats, rice, soybean, and sugarcane farms. 4 Source: SBA and 2002 Census of Agriculture. 5 Note that this NAICS code relates to the 1997 Economic Census. The 2002 NAICS code for this group is 424480. 6 For NAICS 424480, SBA guidelines state that an entity with not more than 100 employees should be considered small unless that entity is a Government contractor. In this case, the size standard increases to 500 employees. However, in this instance, it is fair to assume that fruit and vegetable importers will not be under Government contract since it is against regulations for imports to be used in relevant Government programs ( *e.g.* school lunch programs). 7 Source: SBA and 1997 Economic Census. Economic analysis of the expected increase in imports of tomatoes from Central America shows that the proposed importation of this commodity would lead to negligible changes in domestic prices. APHIS estimates that an additional 13,092 metric tons of tomatoes may be imported from Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama on a yearly basis. Using historical consumption data to estimate an elasticity of demand for tomatoes, an increase in imports of this size would result in a price decrease of $0.50 per hundredweight
(cwt)overall. Table 1.—U.S. Supply, Utilization, and Farm Weight Price of Fresh Tomatoes, 2000-2005 Year Supply Production Imports Total Utilization Exports Domestic Per capita use Season-average price Current dollars Constant 2000 dollars (Million pounds) (Pounds) ($/cwt) 2000 4,162.0 1,609.5 5,771.5 410.4 5,361.2 19.0 $30.70 $30.70 2001 4,061.1 1,815.6 5,876.7 398.2 5,478.5 19.2 30.00 29.30 2002 4,289.3 1,896.2 6,185.5 332.1 5,853.4 20.3 31.60 30.36 2003 3,909.8 2,070.7 5,980.5 314.1 5,666.4 19.5 36.70 34.62 2004 3,975.7 2,054.6 6,030.3 367.5 5,662.8 19.3 36.70 33.92 2005 f 4,086.0 2,000.0 6,086.0 360.0 5,726.0 19.4 — — Notes: —= not available, f = ERS forecast. Source: USDA/ERS, “Vegetables and Melons Yearbook,” *http://usda.mannlib.cornell.edu/data-sets/specialty/89011/.* For this analysis, it is assumed that imports of tomatoes from Central America would compete with all fresh tomatoes produced domestically. In 2004, U.S. fresh tomato production totaled 3,976 million pounds (table 1). APHIS estimates that an additional 13,092 metric tons (28.7 million pounds) of tomatoes would be imported from Central America. These imports would account for only 0.7 percent of domestic production in 2004 and 1.4 percent of 2004 imports. Given the additional imports, it is possible that the domestic price would fall by as much as $0.50 per cwt. In 2004, the average producer price was $36.70 per cwt. Thus, the expected price decline would represent a 1.4 percent decline. However, this percentage is likely overstated because the new imports would be close substitutes for tomatoes from other countries. Imports from Central America would probably displace at least some of those imports from other countries. This likely substitution is not taken into account in the analysis. In order to put this price change into perspective, we consider it in terms of average revenue for small-entity tomato producers. Due to the lack of data on tomato farming, it is difficult to determine an accurate potential change in revenues for all producers. Averaging the total drop in revenues across all firms would overstate the loss to small producers while understating that for the larger ones. Data from the 2002 Census of Agriculture were used to estimate tomato production by small and large firms. This, in turn, was used to estimate revenues for these two categories. An average revenue per firm was then calculated. We conclude that any producer with fewer than 80 acres of tomatoes may be considered small, based on industry yields and revenues and the small-entity definition of not more than $750,000 in annual revenue. For small-entity producers with fewer than 100 acres (the reported category closest to 80 acres), a price change of $0.50 per cwt would lead to an estimated per firm decline in annual revenue of $293, or 1.6 percent. Given this small change and recalling that these effects are likely overstated, domestic producers are not likely to be significantly impacted by the proposed rule. Although domestic producers may face slightly lower prices as a result of the potential increase in the tomato supply, these price changes are expected to be negligible. APHIS welcomes public comment on these preliminary estimates. Domestic import firms, on the other hand, may actually benefit from more open trade with Central America resulting from increased opportunities that could be made available as a result of establishing new sources of tomatoes at a more advanced stage of ripeness. In both instances, changes of the magnitude presented here should not have large repercussions for either domestic producers or importers of tomatoes. This proposed rule contains information collection or recordkeeping requirements (see “Paperwork Reduction Act” below). Executive Order 12988 This proposed rule would allow pink and red tomatoes grown in approved registered production sites in Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama to be imported into the United States. If this proposed rule is adopted, State and local laws and regulations regarding tomatoes imported under this rule would be preempted while the fruit is in foreign commerce. Fresh fruits and vegetables are generally imported for immediate distribution and sale to the consuming public and would remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. If this proposed rule is adopted, no retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule. National Environmental Policy Act To provide the public with documentation of APHIS' review and analysis of the potential environmental impacts associated with the importation of tomatoes from Central America, we have prepared an environmental assessment. The environmental assessment, entitled “Proposed Rule for the Importation of Tomatoes from Central America,” was 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 1b), and
(4)APHIS' NEPA Implementing Procedures (7 CFR part 372). The environmental assessment may be viewed on the Regulations.gov Web site or in our reading room (see ADDRESSES above for instructions for accessing Regulations.gov and information on the location and hours of the reading room). You may request paper copies of the environmental assessment by calling or writing to the person listed under FOR FURTHER INFORMATION CONTACT . Please refer to the title of the environmental assessment when requesting copies. Paperwork Reduction Act In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2006-0009. Please send a copy of your comments to:
(1)Docket No. APHIS-2006-0009, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and
(2)Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue, SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule. In this document, we are proposing to allow certain types of tomatoes grown in approved registered production sites in Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua to be imported into the United States without treatment, under certain conditions. Those conditions include trapping, pre-harvest inspection, and shipping procedures designed to prevent the introduction of quarantine pests into the United States. These precautions, along with other requirements, would allow for the importation of tomatoes from those countries in Central America while continuing to provide protection against the introduction of quarantine pests into the United States. Allowing tomatoes to be imported would necessitate the use of certain information collection activities, including the completion of pre-harvest inspections, phytosanitary certificates, and fruit fly monitoring records. We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:
(1)Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;
(2)Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
(3)Enhance the quality, utility, and clarity of the information to be collected; and
(4)Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses). *Estimate of burden:* Public reporting burden for this collection of information is estimated to average 0.0061148 hours per response. *Respondents:* National plant protection organizations and growers. *Estimated annual number of respondents:* 172. *Estimated annual number of responses per respondent:* 26,081. *Estimated annual number of responses:* 4,485,992. *Estimated total annual burden on respondents:* 27,431 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.) Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at
(301)734-7477. Government Paperwork Elimination Act Compliance The Animal and Plant Health Inspection Service is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. For information pertinent to GPEA compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at
(301)734-7477. List of Subjects in 7 CFR Part 319 Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables. Accordingly, we propose to amend 7 CFR part 319 as follows: PART 319—FOREIGN QUARANTINE NOTICES 1. The authority citation for part 319 would continue to read as follows: Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3. 2. Section 319.56-2dd would be amended by adding a new paragraph
(f)to read as follows: § 319.56-2dd Administrative instructions: conditions governing the entry of tomatoes.
(f)*Tomatoes (fruit) (Lycopersicon esculentum) from certain countries in Central America.* Pink or red tomatoes may be imported into the United States from Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama only under the following conditions:
(1)From areas free of Mediterranean fruit fly:
(i)The tomatoes must be grown and packed in an area that has been determined by APHIS to be free of Mediterranean fruit fly (Medfly) in accordance with the procedures described in § 319.56-2(f) of this subpart.
(ii)A pre-harvest inspection of the production site must be conducted by the national plant protection organization
(NPPO)of the exporting country for pea leafminer, tomato fruit borer, and potato spindle tuber viroid. If any of these pests are found to be generally infesting the production site, the NPPO may not allow export from that production site until the NPPO and APHIS have determined that risk mitigation has been achieved.
(iii)The tomatoes must be packed in insect-proof cartons or containers or covered with insect-proof mesh or plastic tarpaulin at the packinghouse for transit to the United States. These safeguards must remain intact until arrival in the United States.
(iv)The exporting country's NPPO is responsible for export certification, inspection, and issuance of phytosanitary certificates. Each shipment of tomatoes must be accompanied by a phytosanitary certificate issued by the NPPO and bearing the declaration, “These tomatoes were grown in an area recognized to be free of Medfly and the shipment has been inspected and found free of the pests listed in the requirements.”
(2)From areas where Medfly is considered to exist:
(i)The tomatoes must be grown in approved registered production sites. Initial approval of the production sites will be completed jointly by the exporting country's NPPO and APHIS. The exporting country's NPPO must visit and inspect the production sites monthly starting 2 months before harvest and continuing through until the end of the shipping season. APHIS may monitor the production sites at any time during this period.
(ii)Tomato production sites must consist of pest-exclusionary greenhouses, which must have self-closing double doors and have all other openings and vents covered with 1.6 (or less) mm screening.
(iii)Registered sites must contain traps for the detection of Medfly both within and around the production site as follows:
(A)Traps with an approved protein bait for Medfly must be placed inside the greenhouses at a density of four traps per hectare, with a minimum of two traps per greenhouse. Traps must be serviced on a weekly basis.
(B)If a single Medfly is detected inside a registered production site or in a consignment, the registered production site will lose its ability to export tomatoes to the United States until APHIS and the exporting country's NPPO mutually determine that risk mitigation is achieved.
(C)Medfly traps with an approved protein bait must be placed inside a buffer area 500 meters wide around the registered production site, at a density of 1 trap per 10 hectares and a minimum of 10 traps. These traps must be checked at least every 7 days. At least one of these traps must be near the greenhouse. Traps must be set for at least 2 months before export and trapping must continue to the end of the harvest.
(D)Capture of 0.7 or more Medflies per trap per week will delay or suspend the harvest, depending on whether harvest has begun, for consignments of tomatoes from that production site until APHIS and the exporting country's NPPO can agree that the pest risk has been mitigated.
(E)The greenhouse must be inspected prior to harvest for pea leafminer, tomato fruit borer, and potato spindle tuber viroid. If any of these pests, or other quarantine pests, are found to be generally infesting the greenhouse, exports from that production site will be halted until the exporting country's NPPO and APHIS determine that the pest risk has been mitigated.
(iv)The exporting country's NPPO must maintain records of trap placement, checking of traps, and any Medfly captures in addition to production site and packinghouse inspection records. The exporting country's NPPO must maintain an APHIS-approved quality control program to monitor or audit the trapping program. The trapping records must be maintained for APHIS's review.
(v)The tomatoes must be packed within 24 hours of harvest in a pest-exclusionary packinghouse. The tomatoes must be safeguarded by an insect-proof mesh screen or plastic tarpaulin while in transit to the packinghouse and while awaiting packing. The tomatoes must be packed in insect-proof cartons or containers, or covered with insect-proof mesh or plastic tarpaulin, for transit into the United States. These safeguards must remain intact until arrival in the United States or the consignment will be denied entry into the United States.
(vi)During the time the packinghouse is in use for exporting tomatoes to the United States, the packinghouse may only accept tomatoes from registered approved production sites.
(vii)The exporting country's NPPO is responsible for export certification, inspection, and issuance of phytosanitary certificates. Each shipment of tomatoes must be accompanied by a phytosanitary certificate issued by the NPPO and bearing the declaration, “These tomatoes were grown in an approved production site and the shipment has been inspected and found free of the pests listed in the requirements.” The shipping box must be labeled with the identity of the production site. Done in Washington, DC, this 31st day of January 2006. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E6-1553 Filed 2-3-06; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Federal Crop Insurance Corporation 7 CFR Part 457 RIN 0563-AC03 Common Crop Insurance Regulations; Mint Crop Insurance Provisions AGENCY: Federal Crop Insurance Corporation, USDA. ACTION: Proposed rule with request for comments. SUMMARY: The Federal Crop Insurance Corporation
(FCIC)proposes to add to 7 CFR part 457 a new § 457.169 that provides insurance for mint. The provisions will be used in conjunction with the Common Crop Insurance Policy Basic Provisions, which contain standard terms and conditions common to most crops. The intended effect of this action is to convert the mint pilot crop insurance program to a permanent insurance program for the 2007 and succeeding crop years. DATES: Written comments and opinions on this proposed rule will be accepted until close of business April 7, 2006, and will be considered when the rule is to be made final. Comments on information collection under the Paperwork Reduction of 1995 must be received on or before April 7, 2006. ADDRESSES: Interested persons are invited to submit written comments to the Director, Product Development Division, Risk Management Agency, United States Department of Agriculture, 6501 Beacon Drive, Stop 0812, Room 421, Kansas City, MO 64133-4676. Comments titled “Mint Crop Insurance Provisions” may be sent via the Internet to *DirectorPDD@rma.fcic.usda.gov,* or the Federal eRulemaking Portal: *http://www.regulations.gov.* Follow the online instructions for submitting comments. A copy of each response will be available for public inspection and copying from 7 a.m. to 4:30 p.m., c.s.t., Monday through Friday, except holidays, at the above address. FOR FURTHER INFORMATION CONTACT: Linda Williams, Risk Management Specialist, Research and Development, Product Development Division, Risk Management Agency, at the Kansas City, MO address listed above, telephone
(816)926-7730. SUPPLEMENTARY INFORMATION: Executive Order 12866 The Office of Management and Budget
(OMB)has determined that this rule is not significant for the purpose of Executive Order 12866 and, therefore, it has not been reviewed by OMB. Paperwork Reduction Act of 1995 Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the collections of information in this rule have been approved by the OMB under control number 0563-0057 through June 30, 2006. Government Paperwork Elimination Act
(GPEA)Compliance FCIC is committed to compliance with the GPEA, which requires Government agencies, in general, to provide the public with the option of submitting information or transacting business electronically to the maximum extent possible. FCIC requires that all reinsured companies be in compliance with the Freedom to E-File Act and section 508 of the Rehabilitation Act. Unfunded Mandates Reform Act of 1995 Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. 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. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA. Executive Order 13132 It has been determined under section 1(a) of Executive Order 13132, Federalism, that this rule does not have sufficient implications to warrant consultation with the States. The provisions contained in this rule will not have a substantial direct effect on States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Regulatory Flexibility Act FCIC certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Program requirements for the Federal crop insurance program are the same for all producers regardless of the size of their farming operation. For instance, all producers are required to submit an application and acreage report to establish their insurance guarantees, and compute premium amounts, and all producers are required to submit a notice of loss and production information to determine the amount of an indemnity payment in the event of an insured cause of crop loss. Whether a producer has 10 acres or 1000 acres, there is no difference in the kind of information collected. To ensure crop insurance is available to small entities, the Federal Crop Insurance Act authorizes FCIC to waive collection of administrative fees from limited resource farmers. FCIC believes this waiver helps to ensure small entities are given the same opportunities to manage their risks through the use of crop insurance. A Regulatory Flexibility Analysis has not been prepared since this regulation does not have an impact on small entities, and, therefore, this regulation is exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C. 605). Federal Assistance Program This program is listed in the Catalog of Federal Domestic Assistance under No. 10.450. Executive Order 12372 This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. *See* the notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115, June 24, 1983. Executive Order 12988 This proposed rule has been reviewed in accordance with Executive Order 12988 on civil justice reform. The provisions of this rule will not have a retroactive effect. The provisions of this rule will preempt State and local laws to the extent such State and local laws are inconsistent herewith. With respect to any direct action taken by FCIC or to require the insurance provider to take specific action under the terms of the crop insurance policy, the administrative appeal provisions published at 7 CFR part 11 and 7 CFR part 400, subpart J, for the informal administrative review process of good farming practices, as applicable, must be exhausted before any action against FCIC for judicial review may be brought. Environmental Evaluation This action is not expected to have a significant impact on the quality of the human environment, health, and safety. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed. Background FCIC offered a pilot crop insurance program for mint beginning with the 2000 crop year in the states of Indiana, Montana, Washington, and Wisconsin. Mint crop insurance is an actual production history
(APH)crop that protects against a loss in yield. However, coverage is provided for the oil that is extracted from the mint plant. If the amount of mint oil produced in the crop year is less than the production guarantee, the producer will receive an indemnity if all other policy provisions have been complied with. The production guarantee is determined the same as all other APH crops in that the producer certifies to the number of pounds of mint oil produced per acre for at least the previous four crops years building to a base of ten crop years. The covered causes of loss are the same as for other APH crops and include such causes as adverse weather, fire, wildlife, failure of the irrigation water supply, etc. Prevented planting coverage was not provided under the policy and, as with all pilot programs, written agreements were not available. In the 2004 crop year, 81 producers with approximately 13,143 acres were insured under the pilot mint program. FCIC contracted with an independent firm to conduct an evaluation of the mint pilot program. The evaluation found the mint crop insurance program to be valuable risk management tool for mint producers. In fact, financial institutions were more willing to approve operating loans for those producers who purchased crop insurance. While the evaluation identified the availability of a mint crop insurance program did not have an adverse effect on the mint market, two changes in the Crop Provisions were recommended. The contractor's report identified that a benefit for mint producers in the Midwest would be to offer coverage for two separate spearmint types (native and scotch spearmint) as is available in Washington State. In addition, the evaluation identified the potential of moral hazard in allowing producers to self-certify the adequacy of their mint crop stand without having insurance providers inspect the mint acreage to verify the crop met all insurability requirements after an indemnity had been paid the previous crop year. FCIC's Board of Directors concurred with the evaluation results and approved the conversion of the pilot status to that of a permanent crop insurance program. FCIC has revised certain provisions to be consistent with other Crop Provisions. In section 1, FCIC has also added a definition of “stolon” because the term was previously used but not defined. In section 2, FCIC has revised the language to clarify that the basic units will be divided into additional basic units by mint type. In section 6(a), provisions have been added that clarify the inspection and acceptance requirements in the crop year following an indemnified loss. FCIC has revised section 6(b) to clarify that the Winter Coverage Option must be executed before the sales closing date designated in the Special Provisions because now that the program can be expanded to additional states and counties, the sales closing dates may be different. Section 8 has been revised to specify that the date coverage begins and ends for states other than Indiana, Montana, Washington, or Wisconsin will be provided in the Special Provisions because this is a new expanding program and until the states and counties are added, FCIC does not know what the appropriate date coverage should be. Provisions have also been added clarifying when inspection will occur for the year of application and that coverage will not attach if the insurability requirements have not been met. The provision also requires the producer to provide any information required for the crop or to determine the condition of the crop. FCIC has also removed the prohibition against written agreements because the program is no longer considered a pilot program. Written agreements are prohibited for pilot programs because of the need to test the concept without the possibility of additional changes that could skew the results. Now written agreements will be authorized as specified in the Basic Provisions and the Mint Crop Provisions. With respect to the Winter Coverage Option, FCIC has revised certain language for readability. Further, FCIC has added a provision that specifies that acreage on which a Winter Coverage Option payment has been made will receive zero production for the purposes of determining the subsequent year's approved yield. FCIC intends to convert the mint pilot crop insurance program to a permanent crop insurance program beginning with the 2007 crop year. Mint insurance would then be available in any state in county in which mint was included in the actuarial documents. To effectuate this, FCIC proposes to amend the Common Crop Insurance regulations (7 CFR part 457) by adding a new section § 457.169, Mint Crop Insurance Provisions. These provisions will replace and supersede the current unpublished provisions that insure mint under a pilot program status. List of Subjects in 7 CFR Part 457 Crop insurance, Mint, Reporting and recordkeeping requirements. Proposed Rule Accordingly, as set forth in the preamble, the Federal Crop Insurance Corporation proposes to amend 7 CFR part 457, Common Crop Insurance Regulations, for the 2007 and succeeding crop years as follows: PART 457—COMMON CROP INSURANCE REGULATIONS 1. The authority citation for 7 CFR part 457 continues to read as follows: Authority: 7 U.S.C. 1506(l), 1506(p). 2. Section 457.169 is added to read as follows: § 457.169 Mint crop insurance provisions. The Mint Crop Insurance Provisions for the 2007 and succeeding crop years are as follows: FCIC policies: United States Department of Agriculture Federal Crop Insurance Corporation Reinsured policies: (Appropriate Title for Insurance Provider) Both FCIC and reinsured policies: Mint Crop Insurance Provisions 1. Definitions. *Adequate Stand.* A population of live mint plants that equals or exceeds the minimum required number of plants or percentage of ground cover, as specified in the Special Provisions. *Appraisal.* A method of determining potential production by harvesting and distilling a representative sample of the mint crop. *Cover crop.* A small grain crop seeded into mint acreage to reduce soil erosion and wind damage. *Cutting.* Severance of the upper part of the mint plant from its stalk and roots. *Distillation.* A process of extracting mint oil from harvested mint plants by heating and condensing. *Existing mint.* Mint planted for harvest during a previous crop year. *Ground cover.* Mint plants, including mint foliage and stolons, grown on insured acreage. *Harvest.* Removal of mint from the windrow. *Mint.* A perennial spearmint or peppermint plant of the family Labiatae and the genus *Mentha* grown for distillation of mint oil. *Mint oil.* Oil produced by the distillation of harvested mint plants. *New mint.* Mint planted for harvest for the first time. *Planted acreage.* In addition to the definition in the Basic Provisions, land in which mint stolons have been placed in a manner appropriate for the planting method and at the correct depth into a seedbed that has been properly prepared. *Pound.* 16 ounces avoirdupois. *Stolon.* A stem at or just below the surface of the ground that produces new mint plants at its tips or nodes. *Windrow.* Mint that is cut and placed in a row. 2. Unit Division. A basic unit, as defined in section 1 of the Basic Provisions, will be divided into additional basic units by each mint type designated in the Special Provisions. 3. Insurance Guarantees, Coverage Levels, and Prices for Determining Indemnities.
(a)In addition to the requirements of section 3 of the Basic Provisions, you may only select one price election for all the mint in the county insured under this policy unless the actuarial documents provide different price elections by type, in which case you may only select one price election for each type designated in the actuarial documents. The price elections you choose for each type must have the same percentage relationship to the maximum price election offered by us for each type. For example, if you choose 100 percent of the maximum price election for one specific type, you must also choose 100 percent of the maximum price election for other types.
(b)In addition to the provisions in section 3 of the Basic Provisions, you must report:
(1)The total amount of mint oil produced from insurable acreage for all cuttings for each unit;
(2)Any damage to or removal of mint plants or stolons; the stand age; any change in practices; or any other circumstance that may reduce the expected yield below the yield upon which the insurance guarantee is based, and the number of affected acres;
(3)The date existing mint acreage was planted;
(4)The date new mint acreage was initially planted; and
(5)The type of mint.
(c)If you fail to notify us of any circumstance that may reduce your yields or insurable acres from previous levels, we will reduce your production guarantee and insurable acres at any time we become aware of the circumstance based on our estimate of the effect of damage to or removal of mint plants or stolons; stand age; change in practices; and any other circumstance that may affect the yield potential or insurable acres of the insured crop. 4. Contract Changes. In accordance with section 4 of the Basic Provisions, the contract change date is June 30 preceding the cancellation date. 5. Cancellation and Termination Dates. In accordance with section 2 of the Basic Provisions, the cancellation date is September 30 and the termination date is November 30. If your policy is terminated after insurance has attached for the subsequent crop year, coverage will be deemed to not have attached to the acreage for the subsequent crop year. 6. Insured Crop.
(a)In accordance with the provisions of section 8 of the Basic Provisions, the crop insured will be all mint types in the county for which a premium rate is provided by the actuarial documents:
(1)In which you have a share;
(2)That are planted for harvest and distillation for mint oil;
(3)That have an adequate stand by the date coverage begins; and
(4)That have been:
(i)Inspected and accepted by us for the first crop year you are insured, and for the subsequent crop year following an indemnified loss; or
(ii)Certified by you as having an adequate stand on the date coverage begins after the first crop year you are insured, and in the subsequent crop years, unless an indemnity was paid the previous crop year.
(b)In lieu of the provisions of section 8 of the Basic Provisions that prohibit insurance of a second crop harvested following the same crop in the same crop year, multiple harvests of mint on the same acreage will be considered as one mint crop.
(c)In addition to the coverages provided in these Crop Provisions, you may also elect the Winter Coverage Option, which provides coverage for mint that is damaged after the date coverage ends in the fall and before the date coverage begins in the spring. Coverage under the option is effective only if you execute the option by the sales closing date designated in the Special Provisions for the Winter Coverage Option. 7. Insurable Acreage.
(a)Mint interplanted with a cover crop will not be considered interplanted for the purposes of section 9 of the Basic Provisions if the cover crop is destroyed prior to its maturity and is not harvested as grain.
(b)In addition to the provisions of section 9 of the Basic Provisions, we will not insure any acreage that:
(1)Does not meet rotation requirements contained in the actuarial documents; or
(2)Exceeds existing mint age limitations contained in the actuarial documents. 8. Insurance Period. In lieu of the provisions of section 11 of the Basic Provisions:
(a)Coverage begins on each unit or part of a unit for acreage with an adequate stand on the following calendar dates:
(1)June 16 in Indiana, Montana, and Wisconsin;
(2)May 16 in Washington; and
(3)For all other states, the date as provided in the Special Provisions.
(b)For the year of application, we will inspect all mint acreage within the two-week period before coverage begins. Insurance will attach on the date coverage begins after your properly completed application is received in our local office, unless we inspect the acreage during the two-week period and determine it does not meet insurability requirements as specified in section 2 of the Basic Provisions, the application, or these Crop Provisions. You must provide any information we require for the crop or to determine the condition of the crop.
(c)Coverage ends for each unit or part of a unit at the earliest of:
(1)Total destruction of the insured crop;
(2)Final adjustment of a loss;
(3)Harvest for each cutting;
(4)Abandonment of the crop; or
(5)The following calendar date:
(i)September 30 in Indiana and Wisconsin;
(ii)October 15 in Montana;
(iii)October 31 in Washington; and
(iv)For all other states, the date as provided in the Special Provisions. 9. Causes of Loss.
(a)In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss that occur during the insurance period:
(1)Adverse weather conditions;
(2)Fire;
(3)Insects or plant disease (except Verticillium Wilt disease), but not damage due to insufficient or improper application of control measures;
(4)Wildlife;
(5)Earthquake;
(6)Volcanic eruption; or
(7)Failure of the irrigation water supply, if caused by an insured cause of loss listed in sections 9(a)(1) through
(6)that occurs during the insurance period.
(b)In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure against any loss of production that:
(1)Occurs after harvest;
(2)Is due to your failure to distill the crop, unless such failure is due to actual physical damage to the crop caused by an insured cause of loss that occurs during the insurance period; or
(3)Is due to Verticillium Wilt disease. 10. Duties In The Event of Damage or Loss. In addition to your duties contained in section 14 of the Basic Provisions, if you discover that any insured mint is damaged, or if you intend to claim an indemnity on any unit:
(a)You must give us notice of probable loss at least 15 days before the beginning of any cutting or immediately if probable loss is discovered after cutting has begun or when cutting should have begun; and
(b)You must timely harvest and completely distill a sample of the crop on any acreage you do not intend to harvest, as designated by us, to determine if an indemnity is due. 11. Settlement of Claim.
(a)We will determine your loss on a unit basis. In the event you are unable to provide separate, acceptable production records:
(1)For any optional units, we will combine all optional units for which such production records were not provided; or
(2)For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b)We may defer appraisals until the crop reaches maturity or the date mint harvest is general in the area.
(c)In the event of loss or damage covered by this policy, we will settle your claim by:
(1)Multiplying the insured acreage by its respective production guarantee;
(2)Multiplying the result of section 11(c)(1) by the price election;
(3)Multiplying the total production to be counted (see section 11(d)) by the price election;
(4)Subtracting the total in section 11(c)(3) from the total in section 11(c)(2); and
(5)Multiplying the result in section 11(c)(4) by your share. For example: Assume that you have a 100 percent share in 100 acres of mint in the unit, with a guarantee of 50 pounds of oil per acre and a price election of $12 per pound. Because an insured cause of loss has reduced production, you only harvest and distill 2,500 pounds of oil. Your indemnity would be calculated as follows:
(1)100 acres × 50 pounds = 5,000 pound guarantee;
(2)5,000 pound guarantee × $12 price election = $60,000 value of guarantee;
(3)2,500 pounds production to count × $12 price election = $30,000 value of production to count;
(4)$60,000−$30,000 = $30,000 loss; and
(5)$30,000 × 100 percent share = $30,000 indemnity payment.
(d)The total production to count (in pounds of oil) from all insurable acreage on the unit will include:
(1)All appraised production as follows:
(i)Not less than the production guarantee per acre for acreage:
(A)That is abandoned;
(B)That is put to another use without our consent;
(C)For which you fail to meet the requirements contained in section 10 of these Crop Provisions;
(D)That is damaged solely by uninsured causes; or
(E)For which you fail to provide production records that are acceptable to us;
(ii)All production lost due to uninsured causes;
(iii)All unharvested production;
(iv)All potential production on insured acreage that you intend to put to another use or abandon with our consent:
(A)If you do not elect to continue to care for the crop, we may give you our consent to put the acreage to another use if you agree to leave intact and provide sufficient care for representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or fail to provide sufficient care for the samples, the amount of production to count will be not less than the production guarantee per acre); or
(B)If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or the appraised production at the time the crop reaches maturity.
(2)All harvested production from the insurable acreage.
(e)Harvested production must be distilled to determine production to count.
(f)Any oil distilled from plants growing in the mint will be counted as mint oil on a weight basis.
(g)You are responsible for the cost of distilling samples for loss adjustment purposes. 12. Late and Prevented Planting. The late and prevented planting provisions of the Basic Provisions are not applicable. 13. Winter Coverage Option.
(a)The provisions of this option are continuous and will be attached to and made part of your insurance policy, if:
(1)You elect the Winter Coverage Option on your application, or on a form approved by us, on or before the fall sales closing date for the crop year in which you wish to insure mint under this option, and pay the additional premium indicated in the actuarial documents for this optional coverage; and
(2)You have not elected coverage under the Catastrophic Risk Protection Endorsement.
(b)This option provides a guarantee equal to 60 percent of the guarantee determined under section 3 of these Crop Provisions.
(c)If you elect this option, all of the insurable acreage in the county will be insured by this option.
(d)In addition to the requirements of section 6 of the Basic Provisions, any acreage of new mint planted after the applicable acreage reporting date must be reported to us not later than two weeks after planting.
(e)In lieu of section 6(a) of these Crop Provisions, the crop insured will be all mint types in the county for which a premium rate is provided by the actuarial documents:
(1)In which you have a share;
(2)That are planted for harvest and distillation as mint oil;
(3)That have an adequate stand on the date coverage begins, if an existing stand of mint;
(4)For new mint acreage, that is planted during the Winter Coverage Option insurance period; and
(5)That has been:
(i)Inspected and accepted by us for the first crop year you are insured (We will inspect all mint acreage and will notify you of the acceptance or rejection of your application not later than November 15. If we fail to notify you by that date, your application will be accepted unless other grounds exist to reject the application, as specified in the Basic Provisions, the application, or these Crop Provisions);
(ii)Inspected and accepted by us for the subsequent crop year following an indemnified loss;
(iii)Certified by you as having an adequate stand on the date coverage begins after the first crop year you are insured, and in the subsequent crop years, unless an indemnity was paid the previous crop year; or
(iv)Certified by you within two weeks of planting new mint acreage that was planted during the Winter Coverage Option insurance period.
(f)Coverage under this option begins:
(1)On existing mint acreage with an adequate stand at 12:01 a.m. on the calendar date listed below:
(i)October 1 in Indiana and Wisconsin;
(ii)October 16 in Montana;
(iii)November 1 in Washington; and
(iv)For all other states, the date as provided in the Special Provisions.
(2)On new mint acreage, on the later of the date the crop is planted (provided the acreage is planted during the Winter Coverage Option insurance period) or the date we accept your application.
(g)Coverage under this option ends on the unit or part of the unit at 11:59 p.m. on the calendar date listed below:
(1)June 15 in Indiana, Montana, and Wisconsin;
(2)May 15 in Washington; and
(3)For all other states, the date as provided in the Special Provisions.
(h)In lieu of section 10(a) of these Crop Provisions, you must give notice of probable loss within 72 hours after you discover any insured mint is damaged and does not have an adequate stand, but no later than the date coverage ends for this option.
(i)In addition to the requirements of section 10 of these Crop Provisions, you must give us notice if you want our consent to put any mint acreage to another use before a determination can be made if there is an adequate stand on the acreage. We will inspect the acreage and you must agree in writing no payment or indemnity will be made for the acreage put to another use. The total production to count for acreage put to another use with our consent according to this section will be the production guarantee.
(j)In addition to section 11(a) of these Crop Provisions we will make a Winter Coverage Option payment only on acreage that had an adequate stand on the date that insurance attached if the adequate stand was lost due to an insured cause of loss occurring within the Winter Coverage Option insurance period and the acreage consists of at least 20 acres or 20 percent of the insurable planted acres in the unit.
(k)In lieu of section 11(b) of these Crop Provisions, we may defer appraisals until the date coverage ends under this option.
(l)In lieu of section 11(c) of these Crop Provisions, in the event of loss or damage covered by this policy, we will settle your claim by:
(1)Multiplying 60 percent by your production guarantee per acre;
(2)Multiplying the result in section 13(l)(1) by the number of acres that do not have an adequate stand;
(3)Multiplying the result in section 13(l)(2) by the price election; and
(4)Multiplying the result in section 13(l)(3) by your share. For example: Assume that you have a 100 percent share in 100 acres of mint with a guarantee of 50 pounds of oil per acre and a price election of $12 per pound. Also assume that you do not have an adequate stand on 50 acres by the date coverage ends for this option because an insured cause has damaged the stand. Your Winter Coverage Option payment would be calculated as follows:
(1)60 percent × 50 pound guarantee = 30 pound guarantee per acre;
(2)30 pound guarantee per acre × 50 acres without an adequate stand = 1,500 pounds;
(3)1,500 pounds × $12 price election = $18,000; and
(4)$18,000 × 100 percent share = $18,000 Winter Coverage Option payment.
(m)In lieu of section 11(d) of these Crop Provisions, the population of live mint plants to be counted from insurable acreage on the unit will be not less than the population of live mint plants in an adequate stand for acreage:
(1)That is abandoned;
(2)That is put to another use without our consent;
(3)For which you fail to meet the requirements contained in section 13(h); or
(4)That is damaged solely by uninsured causes.
(n)Acreage for which a Winter Coverage Option payment has been made is no longer insurable under the Crop Provisions for the current crop year. Any mint production subsequently harvested from uninsured acreage for the crop year and not kept separate from production from insured acreage will be considered production to count.
(o)Acreage for which a Winter Coverage Option payment has been made will receive an amount of production of zero when computing subsequent year's approved yield.
(p)Sections 11(e), (f), and
(g)of these Crop Provisions do not apply to this option. Signed in Washington, DC, on January 30, 2006. Eldon Gould, Manager, Federal Crop Insurance Corporation. [FR Doc. E6-1529 Filed 2-3-06; 8:45 am] BILLING CODE 3410-08-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 1250 [Docket No. PY-05-005] Egg Research and Promotion Program; Section 610 Review AGENCY: Agricultural Marketing Service. ACTION: Notice of regulatory review and request for comments. SUMMARY: This document announces the Agricultural Marketing Service's
(AMS)review of the Egg Research and Promotion Program (conducted under the Egg Research and Promotion Order), under the criteria contained in Section 610 of the Regulatory Flexibility Act (RFA). DATES: Written comments must be received by April 7, 2006. ADDRESSES: Interested persons are invited to submit written comments concerning this notice to Angela C. Snyder, Chief, Research and Promotion, Office of the Deputy Administrator, Poultry Programs, Agricultural Marketing Service, U.S. Department of Agriculture, 1400 Independence Avenue, SW.; STOP 0256, Room 3932-South; Washington, DC 20250-0256; or by fax to
(202)720-5631. Alternatively, comments may be submitted electronically to: *angie.snyder@usda.gov* or *http://www.regulations.gov* . All comments should reference the docket number and the date and page number of this issue of the **Federal Register** . All comments received will be made available for public inspection at the above address during regular business hours. A copy of this notice may be found at: *http://www.ams.usda.gov/poultry/pyrp.htm/* . FOR FURTHER INFORMATION CONTACT: Angela C. Snyder, Office of the Deputy Administrator, Poultry Programs, Agricultural Marketing Service, U.S. Department of Agriculture, 1400 Independence Avenue, SW.; STOP 0256, Room 3932-South; Washington, DC 20250-0256 telephone
(760)386-0424; fax
(202)720-5631, or e-mail at *angie.snyder@usda.gov* . SUPPLEMENTARY INFORMATION: The Egg Research and Consumer Information Act of 1974, as amended (7 U.S.C. 1201 *et seq.* ), authorized the Egg Research and Promotion Order (7 CFR part 1250), which is industry-operated and funded with oversight by USDA. The Egg Research and Promotion Order's objective is to establish, finance, and carry out promotion, research, and education programs to improve, maintain, and develop markets for eggs, egg products, spent fowl, and products of spent fowl. The program became effective on August 1, 1976, when the Egg Research and Promotion Order (7 CFR part 1250) was implemented. In accordance with the legislation, the American Egg Board was established, and assessments at 5 cents per 30-dozen case of eggs soon began to be levied. Since that time, assessments have fluctuated from 2 1/2 cents per 30-dozen case of eggs to the current 10 cents per 30-dozen case approved by producer referendum in 1994. Assessments collected under this program are used to carry out promotion, research, and education programs to improve, maintain, and develop markets for eggs, egg products, spent fowl, and products of spent fowl. The program is administered by the American Egg Board, which is composed of egg producers and egg producer representatives. Each of the 18 members and their specific alternates are appointed by the Secretary of Agriculture from nominations submitted by certified producer organizations. The Secretary annually appoints half of the Board, nine members and nine alternates, for 2-year terms. AMS published in the **Federal Register** (64 FR 8014; February 18, 1999) its plan to review certain regulations, including the Egg Research and Promotion Program (conducted under the Egg Research and Promotion Order), under criteria contained in section 610 of the Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612). The plan was updated in the **Federal Register** on August 14, 2003 (68 FR 48574). Because many AMS regulations impact small entities, AMS decided, as a matter of policy, to review certain regulations which, although they may not meet the threshold requirement under section 610 of the RFA, warrant review. Accordingly, this notice and request for comments is made for the Egg Research and Promotion Order. The purpose of the review is to determine whether the Order should be continued without change, amended, or rescinded (consistent with the objectives of the Egg Research and Consumer Information Act of 1974) to minimize the impacts on small entities. AMS will consider the continued need for the Order; the nature of complaints or comments received from the public concerning the Order; the complexity of the Order; the extent to which the Order overlaps, duplicates, or conflicts with other Federal rules, and, to the extent feasible, with State and local regulations; and the length of time since the Order has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the Order. Written comments, views, opinions, and other information regarding the Order's impact on small businesses are invited. Dated: January 31, 2006. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E6-1563 Filed 2-3-06; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF ENERGY Office of Energy Efficiency and Renewable Energy 10 CFR Part 430 [Docket No. EE-RM-PET-100] Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers AGENCY: Office of Energy Efficiency and Renewable Energy, Department of Energy. ACTION: Petition for Exemption. SUMMARY: The Department of Energy (hereafter “the Department”) announces the filing of the California Energy Commission's Petition for Exemption from Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers (hereafter “California Petition”). To help the Department evaluate the California Petition's request, the Department invites interested members of the public to submit comments they may have on the California Petition and information related to the evaluation factors outlined in the Energy Policy and Conservation Act. DATES: The Department will accept written comments, data, and information regarding the California Petition until, but no later than April 7, 2006. ADDRESSES: A document entitled “California Preemption Exemption Petition” is available for review on the Internet at *http://www.eere.energy.gov/buildings/ appliance_standards/state_petitions.html* or from Ms. Brenda Edwards-Jones, U.S. Department of Energy, Building Technologies Program, EE-2J, Room 1J-018, 1000 Independence Ave., SW., Washington, DC 20585-0121, or by telephone
(202)586-2945. Please submit comments, identified by docket number EE-RM-PET-100 by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments. • *E-mail: California.Petition@ee.doe.gov* . Include either the docket number EE-RM-PET-100, and/or “California Preemption Exemption Petition” in the subject line of the message. • *Mail:* Ms. Brenda Edwards-Jones, U.S. Department of Energy, Building Technologies Program, Mailstop EE-2J, Room 1J-018, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Please submit one signed original paper copy. • *Hand Delivery/Courier:* Ms. Brenda Edwards-Jones, U.S. Department of Energy, Building Technologies Program, Room 1J-018, 1000 Independence Avenue, SW., Washington, DC 20585-0121. *Instructions:* All submissions received must include the agency name and docket number for this proceeding. For detailed instructions on submitting comments and additional information on the proceeding, see section II. C of this document (Submission of Comments). *Docket:* For access to the docket to read the background documents relevant to this matter, go to the U.S. Department of Energy, Forrestal Building, Room 1J-018 (Resource Room of the Building Technologies Program), 1000 Independence Avenue, SW., Washington, DC,
(202)586-2945, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Available documents include the following items: The California Petition; California's 2005 water plan, *California Water Plan Update 2005: Public Review Draft;* prior Department rulemakings regarding clothes washers or comments received. Please call Ms. Brenda Edwards-Jones at the above telephone number for additional information regarding visiting the Resource Room. Please note: The Department's Freedom of Information Reading Room (formerly Room 1E-190 at the Forrestal Building) is no longer housing rulemaking materials. Electronic copies of the California Petition are available online at either the Department of Energy's Web site at the following URL address: *http://www.eere.energy.gov/buildings/ appliance_standards/state_petitions.html* or the California Energy Commission's Web site at the following URL address: *http://www.energy.ca.gov/appliances/2005-09-13_ PETITION_CLOTHES_WASHERS.PDF* . An electronic copy of California's water plan update and related material is available online at the California Department of Water Resources Web site at the following URL address: *http://www.waterplan.water.ca.gov/* . Electronic copies of prior Department rulemakings regarding clothes washers and of the Final Rule Technical Support Document for clothes washers are available from the Department's Building Technologies Program's Web site at the following URL address: *http://www.eere.energy.gov/buildings/ appliance_standards/ residential/clothes_washers.html* . This notice also refers to California standards for residential clothes washers adopted by the California Energy Commission
(CEC)in 2004. Material related to this State regulation is available at the following URL address under Docket # 03-AAER-1(RCW): *http://www.energy.ca.gov/appliances/2003rulemaking/clothes_washers/index.html* . FOR FURTHER INFORMATION CONTACT: Bryan Berringer, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121,
(202)586-0371, or e-mail: *Bryan.Berringer@ee.doe.gov* . Thomas DePriest, Esq., U.S. Department of Energy, Office of General Counsel, GC-72, 1000 Independence Avenue, SW., Washington, DC 20585,
(202)586-9507, e-mail: *Thomas.DePriest@hq.doe.gov.* SUPPLEMENTARY INFORMATION: I. Introduction A. Authority B. Background 1. Department Rulemakings Regarding Clothes Washers 2. California Petition for Waiver of Federal Preemption and Summary of State Regulation 3. Factors to Consider in Granting or Declining an Exemption II. Discussion A. Summary of Reasons for Petition B. Issues on which the Department Seeks Comment C. Submission of Comments I. Introduction A. Authority Part B of Title III of the Energy Policy and Conservation Act, as amended (hereafter “Act”or EPCA) established the Energy Conservation Program for Consumer Products Other Than Automobiles. (42 U.S.C. 6291-6309) Products covered under the program, including residential clothes washers, and the authority to regulate them, are listed in section 322. (42 U.S.C. 6292) Section 325(g) (42 U.S.C. 6295(g)) establishes standards for certain types of residential clothes washers and requires the Department to issue two rulemakings to consider further amendments. Federal energy efficiency requirements for residential products generally preempt State laws or regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) However, the Department can grant waivers of Federal preemption (hereafter “waiver” or “exemption”) for particular State laws or regulations, in accordance with the procedures and other provisions of section 327(d) of the Act. (42 U.S.C. 6297(d)) In particular, section 327(d)(1)(A) of EPCA provides that any State or river basin commission with a State regulation regarding energy use, energy efficiency, or water use requirements for products regulated by the Energy Conservation Program, may petition for an exemption from Federal preemption and seek to apply its own State regulation. (42 U.S.C. 6297(d)(1)(A)) B. Background 1. Department Rulemakings Regarding Clothes Washers On January 12, 2001, the Department issued a final rule for energy efficiency and design standards for five product classes of clothes washers (hereafter referred to as the January 2001 final rule): Top-loading compact; Top-loading, standard; Front-loading; Top-loading, semi-automatic; and Top-loading, suds-saving. (66 FR 3314-3333) The January 2001 final rule set minimum energy efficiency standards that would become effective on January 1, 2004, and January 1, 2007. DOE standards for residential products are energy efficiency standards only; DOE has not set a water use requirement for residential clothes washers. (10 CFR 430.32(g)) Table I.1.—Federal Residential Clothes Washer Standard Levels Product class Capacity (ft. 3 ) Modified energy factor (ft. 3 /kWh/cycle) Effective date 1/1/2004 Effective date 1/1/2007 Top-Loading, compact <1.6 0.65 0.65 Top-Loading, standard ≥1.6 1.04 1.26 Front-Loading 1.04 1.26 Top-Loading, Semi-automatic Unheated rinse water option Unheated rinse water option. Suds-saving Unheated rinse water option Unheated rinse water option. The January 2001 final rule constituted the second residential clothes washer rulemaking required by EPCA. The initial standards prescribed in EPCA, as amended by the National Appliance Energy Conservation Act of 1987, required an unheated water option, and permitted a water rinse option for clothes washers manufactured on or after January 1, 1988. (42 U.S.C. 6295(g)) Subsequent standard amendments made by the Department established the five product classes in Table I.1 and set minimum energy efficiency standards. The Energy Policy Act of 2005 amended the Act to adopt new energy efficiency and water conservation standards for commercial clothes washers. The commercial clothes washer standards require products manufactured on or after January 1, 2007, to have a modified energy factor of at least 1.26 and a water factor of not more than 9.5. (42 U.S.C. 6313(e)) 2. California Petition for Waiver of Federal Preemption and Summary of State Regulation On September 16, 2005, the Department received a petition for an exemption from the California Energy Commission
(CEC)(hereafter referred to as the California Petition), dated September 13, 2005, pursuant to the requirements of section 327(d) of the Act (42 U.S.C. 6297(d)) and Title 10 Code of Federal Regulations
(CFR)Part 430, Subpart D, and Sections 430.41(a)(1) and 430.42 of the CFR. However, by letter dated November 18, 2005, the Department notified the CEC that its petition had failed to comply with certain requirements set out in 10 CFR 430.42(c). The CEC responded on December 5, 2005, and provided the required information. By letter dated December 23, 2005, the Department notified the CEC that it had accepted the California petition as supplemented. California Assembly Bill 1561, passed by the California legislature and signed into law in 2002, required the CEC to adopt water efficiency standards for residential clothes washers by January 2004, and to file a petition with the Department for a waiver by April 2004. The law also required that the new standards be at least as efficient as commercial clothes washers. (California Public Resources Code section 25402 (e)) California currently requires that commercial clothes washers meet a maximum water factor of 9.5 by January 1, 2007, the same standard as prescribed by Section 342 of EPCA, as amended by the Energy Policy Act of 2005 in August of 2005. (20 C.C.R. 1605.3(p) and 42 U.S.C. 6313(e)) (CEC, No. 1 at 2) 1 1 A notation in the form “CEC, No. 1 at p. 2” identifies a written comment the Department has received and has included in the docket of this rulemaking. This particular notation refers to a comment
(1)By the California Energy Commission (CEC),
(2)in document number 1 in the docket of this proceeding (maintained in the Resource Room of the Building Technologies Program), and
(3)appearing on page 2 of document number 1. In 2004, the CEC adopted water efficiency standards for Top- and Front-Loading residential clothes washers, setting a two-tier standard of 8.5 maximum water factor effective January 1, 2007, and of 6.0 maximum water factor, effective January 1, 2010. (20 C.C.R 1605.2(p)) (CEC, No. 1 at 3) 3. Factors to Consider in Granting or Declining an Exemption Section 327(d) of the Act sets forth factors that the Secretary of Energy (hereafter “Secretary”) is to consider in evaluating whether to grant an exemption. (42 U.S.C. 6297(d)) Section 327 (d)(1)(B) requires the Secretary to grant an exemption if the Secretary determines that the proffered State regulation “is needed to meet unusual and compelling State or local water interests.” (42 U.S.C. 6297(d)(1)(B)) According to section 327(d)(1)(C) of the Act, “unusual and compelling” interests are defined as interests which “(i) are substantially different in nature or magnitude than those prevailing in the United States generally; and
(ii)are such that the costs, benefits, burdens, and reliability of energy or water savings resulting from the State regulation make such regulation preferable or necessary when measured against the costs, benefits, burdens, and reliability of alternative approaches to energy or water savings or production, including reliance on reasonably predictable market-induced improvements in efficiency of all products subject to the State regulation.” (42 U.S.C. 6297(d)(1)(C)) According to sections 327(d)(3)-(4), the Secretary may not grant an exemption if the Secretary finds the State regulation would “significantly burden manufacturing, marketing, distribution, sale, or servicing of the covered product on a national basis,” or “result in the unavailability” in the State of any covered product's “performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the State at the time of the Secretary's finding, except that the failure of some classes (or types) to meet this criterion shall not affect the Secretary's determination of whether to prescribe a rule for other classes (or types).” (41 U.S.C. 6297(d)(3) and (4)) To evaluate whether the State regulation will create a significant burden, the Secretary is to consider “all relevant factors,” including the following: “(A) The extent to which the State regulation will increase manufacturing or distribution costs of manufacturers, distributors, and others;
(B)The extent to which the State regulation will disadvantage smaller manufacturers, distributors, or dealers or lessen competition in the sale of the covered product in the State;
(C)The extent to which the State regulation would cause a burden to manufacturers to redesign and produce the covered product type (or class), taking into consideration the extent to which the regulation would result in a reduction—
(i)In the current models, or in the projected availability of models, that could be shipped on the effective date of the regulation to the State and within the United States; or
(ii)In the current or projected sales volume of the covered product type (or class) in the State and the United States; and
(D)The extent to which the State regulation is likely to contribute significantly to a proliferation of State appliance efficiency requirements and the cumulative impact such requirements would have.” (U.S.C. 6297(d)(3)(A) through (D)) II. Discussion A. Summary of Reasons for Petition The California Petition seeks waivers of Federal preemption for all classes of residential clothes washers that are covered products under the Act, “including but not necessarily limited to—Compact and Standard; Top-Loading and Front-Loading; Automatic and Semi-Automatic; and Suds-Saving and Non-Suds-Saving.” (CEC, No. 1 at p. 4) According to the California Petition, the CEC states that California currently uses, and will continue to need, cost-effective water conservation strategies. The CEC states that every water supply source for the State is “over-appropriated” and water demand is projected to grow rapidly. (CEC, No. 1 at p. 1) Furthermore, the CEC claims that clothes washer standards are distinctly preferable to alternative approaches to water savings and production. (CEC, No. 1 at p. 26) The CEC additionally argues that California's local and state water interests are unusual and compelling, and that “California's water interests (and associated energy interest) are different in both nature and magnitude than those prevailing in the United States generally. * * *” (CEC, No. 1 at p. 5) The California Petition also provides information relating to the California standard's burden on manufacturing, marketing, distribution, sale, or servicing of the residential clothes washers on a national basis, and states that California's water efficiency standards will achieve benefits without significantly impacting the residential clothes washer industry or the consumer-usefulness of appliances. (CEC, No. 1 at pp. 37 through 41) B. Issues on Which the Department Seeks Comment The Department is interested in receiving comments on all aspects of the California Petition and this notice. The Department is especially interested in public comment on information related to the evaluation of factors outlined in section 327 of the Act, including the following: whether the California Petition has established that California has unusual and compelling State or local water interests to warrant a waiver from Federal preemption; whether the State regulation will be burdensome; and whether the State regulation will affect the availability of covered products with features generally available in California. In that regard, the Department is particularly interested in receiving comment on the following questions: • Are California's water interests “unusual and compelling,” and how do they compare to those of the Nation and of other States? (42 U.S.C. 6297(d)(1)(B)) • Are there other factors and information in addition to the California Petition the Department should consider in determining whether California's water interests are “unusual and compelling”? (42 U.S.C. 6297(d)(1)(C)) • Are the water use issues “substantially different in nature or magnitude than those prevailing in the United States generally?” Should the phrase, “in the United States generally” be interpreted to include comparison to regions as well as national averages? Are the water use issues in California substantially different in nature or magnitude than those prevailing in other western states? (42 U.S.C. 6297(d)(1)(C)(i)) • Are there “alternative approaches to * * * [clothes washer] water savings” that could achieve the same water savings in California as would be achieved by the California clothes washer standards? (42 U.S.C. 6297(d)(1)(C)(ii)) • Are there “alternative approaches to * * * water savings or production” not considered in the California water plan that could achieve the same water savings in California as would be achieved by the California clothes washer standards? (42 U.S.C. 6297(d)(1)(C)(ii)) • Are there alternative policies or programs in California that can achieve the same water savings at the same or lower cost or burden, or with greater reliability and benefit? (42 U.S.C. 6297(d)(1)(C)(ii)) • Are there estimates of market-induced improvements in efficiency of all products subject to the California regulation? (42 U.S.C. 6297(d)(1)(C)(ii)) • Is the analysis used in the California Petition accurate? For example, are the State's savings estimates correct? How valid are the State's assumptions? • Is California Petition's statement that water supplies are not “fungible” and that it is very difficult to transfer any water savings from one sector of the State to another accurate? Are there ways California can transfer water savings more easily? • What impacts would the State standards have on manufacturing, marketing, distribution, sale, or servicing of covered products on a national basis? (42 U.S.C. 6297(d)(3)) • What impact will the California clothes washer standard have on manufacturing or distribution costs of manufacturers, distributors and others? (42 U.S.C. 6297(d)(3)(A)) • Will the California clothes washer standard disadvantage smaller manufacturers, distributors, or dealers or lessen competition in California? (42 U.S.C. 6297(d)(3)(B)) • To what extent would the California standard cause a burden to manufacturers to redesign their residential clothes washers? (42 U.S.C. 6297(d)(3)(C)) • Would the California standard result in a reduction in product availability? (42 U.S.C. 6297(d)(3)(C)(i)) • Would the California standard result in a reduction in sales volume of clothes washers either in California or in the United States as a whole? (42 U.S.C. 6297(d)(3)(C)(ii)) • To what extent is the California regulation likely to contribute significantly to a proliferation of State appliance efficiency requirements? What cumulative impact would such requirements have? (42 U.S.C. 6297(d)(3)(D)) • Would the California regulation impact the availability in the State of any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the State? (42 U.S.C. 6297(d)(4)) • Would the California standard affect the availability of classes of clothes washers or clothes washer performance characteristics, reliability, features, sizes, capacities and volumes that are generally available in California? (42 U.S.C. 6297(d)(4)) After the period for written comments, the Department will consider the information and views submitted, and make a decision on whether to prescribe a waiver from Federal preemption for California with regard to water use standards for residential clothes washers. C. Submission of Comments The Department will accept comments, data, and information regarding this notice no later than the date provided at the beginning of the notice. Please submit comments, data, and information electronically. Send them to the following e-mail address: *California.Petition@ee.doe.gov.* Submit electronic comments in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format and avoid the use of special characters or any form of encryption. Identify comments in electronic format by the docket number EE-RM-PET-100 and wherever possible include the electronic signature of the author. Absent an electronic signature, comments submitted electronically must be followed and authenticated by submitting the signed original paper document. DOE does not accept telefacsimiles (faxes). In accordance with 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: one copy of the document including all the information believed to be confidential, and one copy of the document with the information believed to be confidential deleted. The Department will make its own determination about the confidential status of the information and treat it according to its determination. Factors of interest to the Department when evaluating requests to treat submitted information as confidential include:
(1)A description of the items;
(2)whether and why such items are customarily treated as confidential within the industry;
(3)whether the information is generally known by or available from other sources;
(4)whether the information has previously been made available to others without obligation concerning its confidentiality;
(5)an explanation of the competitive injury to the submitting person which would result from public disclosure;
(6)when such information might lose its confidential character due to the passage of time; and
(7)why disclosure of the information would be contrary to the public interest. Issued in Washington, DC, on January 27, 2006. Douglas L. Faulkner, Acting Assistant Secretary, Energy Efficiency and Renewable Energy. [FR Doc. 06-1041 Filed 2-3-06; 8:45 am]
Connectionstraces to 18
16 references not yet in our index
  • 7 CFR 319
  • 7 CFR 319.56
  • 7 CFR 1
  • 7 CFR 372
  • 7 CFR 2.22
  • 7 CFR 457
  • Pub. L. 104-4
  • 7 CFR 3015
  • 7 CFR 11
  • 7 CFR 400
  • 7 CFR 1250
  • 7 USC 1201
  • 5 USC 601-612
  • 10 CFR 430
  • 42 USC 6291-6309
  • 41 USC 6297(d)(3)
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U.S.C.§ 450
U.S.C.§ 136
Fed. Reg.Proposed Rules
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