Unknown. Interim rule and request for comments

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--- schema: federal-register doc_type: fedreg source_file: FR-2007-12-07.xml --- 72 235 Friday, December 7, 2007 Contents Agricultural Agricultural Marketing Service RULES Pistachios grown in California, 69139-69142 07-5989 Agriculture Agriculture Department See Agricultural Marketing Service See Animal and Plant Health Inspection Service Alcohol Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Explosives: Commerce in explosives— Explosive materials list, 69228-69230 E7-23729 Animal Animal and Plant Health Inspection Service RULES Plant-related quarantine, domestic:

Mediterranean fruit fly, 69137-69139 E7-23770 Blind Blind or Severely Disabled, Committee for Purchase From People Who Are See Committee for Purchase From People Who Are Blind or Severely Disabled Centers Centers for Medicare & Medicaid Services NOTICES Agency information collection activities; proposals, submissions, and approvals, 69218-69219 E7-23746 Children Children and Families Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 07-5964 69219-69220 07-5965 Coast Guard Coast Guard RULES Drawbridge Operations:

Florida, 69144-69145 E7-23600 Commerce Commerce Department See Foreign-Trade Zones Board See International Trade Administration See National Oceanic and Atmospheric Administration Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement list; additions and deletions, E7-23790 69181-69182 E7-23791 Comptroller Comptroller of the Currency RULES Risk-based capital: Advanced capital adequacy framework; Basel II, 69288-69445 07-5729 Corporation Corporation for National and Community Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 69195-69196 E7-23793 Defense Defense Acquisition Regulations System RULES Acquisition regulations:

Ownership by contractor; patent rights, 69159-69162 E7-23655 Technical amendment, 69158-69159 E7-23658 PROPOSED RULES Acquisition regulations: Government equipment lease for display or demonstration; costs allowability, 69176-69177 E7-23654 Ground and flight risk clause, 69177-69180 E7-23657 NOTICES Agency information collection activities; proposals, submissions, and approvals, 69197 E7-23656 Defense Defense Department See Defense Acquisition Regulations System NOTICES Committees; establishment, renewal, termination, etc.:

National Defense Intelligence College Board of Visitors, 69196 E7-23765 Meetings: Electron Devices Advisory Group, 69196-69197 E7-23764 Education Education Department RULES Grants: Direct Grant Programs, 69145-69148 E7-23817 NOTICES Agency information collection activities; proposals, submissions, and approvals, 69197-69198 E7-23811 Grants and cooperative agreements; availability, etc.: Safe and drug-free schools programs— Integration of Schools and Mental Health Systems Program, 69198-69202 E7-23749 Employment Employment Standards Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 69230-69231 E7-23720 Energy Energy Department See Federal Energy Regulatory Commission NOTICES Reports and guidance documents; availability, etc.:

Mid-Atlantic Area and Southwest Area National Interest Electric Transmission Corridors; Designation Orders, 69202 E7-23809 EPA Environmental Protection Agency RULES Air quality implementation plans; approval and promulgation; various States: Georgia, 69148-69150 E7-23710 Pesticides; tolerances in food, animal feeds, and raw agricultural commodities: Crop Grouping Program; expansion, 69150-69158 E7-23659 PROPOSED RULES Air pollution; standards of performance for new stationary sources:

Petroleum refineries; comment period extension, 69175-69176 E7-23824 Air pollution control; new motor vehicles and engines: Compression-ignition marine engines at or above 30 liters per cylinder; emissions control, 69522-69552 E7-23556 Air quality implementation plans; approval and promulgation; various States: Georgia, 69175 E7-23713 NOTICES Agency information collection activities; proposals, submissions, and approvals, 69213-69215 E7-23845 Environmental statements; availability, etc.:

Agency comment availability, 69215-69216 E7-23807 Agency weekly receipts, 69216 E7-23820 Executive Executive Office of the President See Management and Budget Office FCC Federal Communications Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 69216-69217 E7-23803 FDIC Federal Deposit Insurance Corporation RULES Risk-based capital: Advnced capital adequacy framework; Basel II, 69288-69445 07-5729 Federal Energy Federal Energy Regulatory Commission NOTICES Environmental statements; availability, etc.:

Duke Energy Carolinas, LLC, 69204 E7-23781 Hydroelectric applications, 69204-69209 E7-23777 E7-23778 E7-23779 E7-23780 Meetings: Massena, NY; dispute resolution panel and technical conference, 69209 E7-23751 Midwest Independent Transmission System Operator, Inc., 69209-69210 E7-23782 Southwest Power Pool Independent Coordinator of Transmission Stakeholders Policy Committee, 69210-69211 E7-23766 Natural gas pipeline rate and refund report filings, 69211-69213 E7-23752 Senior Executive Service Performance Review Board; membership, 69213 E7-23776 *Applications, hearings, determinations, etc.:* Allegheny Generating Co., 69202-69203 E7-23775 Ameren Services Co., et al, 69203 E7-23767 ISO New England, Inc., 69203 E7-23774 NorthPoint Energy Solutions, Inc., 69203 E7-23773 Federal Motor Federal Motor Carrier Safety Administration NOTICES Grants and cooperative agreements; availability, etc.:

Commercial Vehicle Information Systems and Networks Program, 69279 E7-23783 Motor carrier safety standards: Driver qualifications; diabetes exemptions, 69280-69283 E7-23785 Federal Reserve Federal Reserve System RULES Risk-based capital: Advanced capital adequacy framework; Basel II, 69288-69445 07-5729 NOTICES Bank and bank holding companies: Formations, acquisitions, and mergers, 69217-69218 E7-23787 Fish Fish and Wildlife Service NOTICES Endangered and threatened species permit applications, 69223-69224 E7-23760 Food Food and Drug Administration RULES Animal drugs, feeds, and related products:

Erythromycin, 69142 E7-23763 MISSING FOR: Foreign-Trade Zones Board Foreign-Trade Zones Board NOTICES *Applications, hearings, determinations, etc.:* Alabama NACCO Materials Handling Group, Inc.; forklift truck components manufacturing facility, 69182-69183 E7-23802 Kentucky NACCO Materials Handling Group, Inc.; forklift truck manufacturing and distribution facility, 69183 E7-23799 North Carolina NACCO Materials Handling Group, Inc.; forklift truck manufacturing and distribution facilities, 69183-69184 E7-23801 Volvo Construction Equipment North America, Inc.; construction equipment manufacturing facilities, 69183 E7-23798 Health Health and Human Services Department See Centers for Medicare & Medicaid Services See Children and Families Administration See Food and Drug Administration See National Institutes of Health NOTICES Federal Medical Assistance Percentages and Enhanced Federal Medical Assistance Percentages (FY 2009) Correction, 69285 C7-5847 Homeland Homeland Security Department See Coast Guard Housing Housing and Urban Development Department NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-23733 69220-69221 E7-23735 Homeless assistance; excess and surplus Federal properties, 69221-69223 E7-23507 Indian Indian Affairs Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 69224 E7-23723 Interior Interior Department See Fish and Wildlife Service See Indian Affairs Bureau See Land Management Bureau International International Trade Administration NOTICES Antidumping:

Carbazole violet pigment 23 from— India, 69184-69186 E7-23805 Glycine from— India, 69187 E7-23804 Hot-rolled carbon steel flat products from— Thailand, 69187-69193 E7-23806 Polyester staple fiber from— Taiwan, 69193-69195 E7-23815 International International Trade Commission NOTICES Import investigations: Rechargeable lithium-ion batteries, components, and products containing same, 69227-69228 E7-23761 E7-23762 Justice Justice Department See Alcohol, Tobacco, Firearms, and Explosives Bureau RULES Contraband drug evidence, destruction:

Liquid phencyclidine (PCP); proper handling and disposal, 69143-69144 E7-23792 Labor Labor Department See Employment Standards Administration Land Land Management Bureau NOTICES Closure of public lands: California, 69225 07-5952 Environmental statements; availability, etc.: Southwest Alaska Bay planning area; resource management plan, 69225-69226 E7-23719 Resource management plans, etc.: Eastern San Diego County planning area, CA, 69226-69227 E7-23771 Management Management and Budget Office NOTICES Reports and guidance documents; availability, etc.:

Federal financial report; financial reporting for grants and cooperative agreements, 69236-69257 07-5941 NASA National Aeronautics and Space Administration NOTICES Inventions, Government-owned; availability for licensing, 69231-69233 E7-23739 E7-23741 E7-23742 E7-23744 NIH National Institutes of Health NOTICES Meetings: National Heart, Lung, and Blood Institute, 69220 07-5970 NOAA National Oceanic and Atmospheric Administration RULES Fishery conservation and management: West Coast States and Western Pacific fisheries— Pacific Coast groundfish, 69162-69174 E7-23812 National Science National Science Foundation NOTICES Agency information collection activities; proposals, submissions, and approvals, 69233-69234 07-5975 Nuclear Nuclear Regulatory Commission NOTICES Environmental statements; availability, etc.:

BWX Technologies, Inc., 69234-69236 E7-23784 Office Office of Management and Budget See Management and Budget Office Personnel Personnel Management Office NOTICES Excepted service; positions placed or revoked, 69257-69258 E7-23758 SEC Securities and Exchange Commission RULES Securities: Compensatory employee stock options; registration requirements exemption, 69554-69567 E7-23756 NOTICES Meetings; Sunshine Act, 69258-69259 E7-23830 Securities: Suspension of trading— Kimber-X-Resources Corp., 69259 07-5992 Self-regulatory organizations; proposed rule changes:

American Stock Exchange LLC, 69259-69262 E7-23747 E7-23788 Board of Trade of the City of Chicago, Inc., 69262-69263 E7-23721 NASDAQ Stock Market LLC, 69263-69269 E7-23769 National Stock Exchange, Inc., 69269-69271 E7-23753 NYSE Arca, Inc., 69271-69274 E7-23750 E7-23755 Options Clearing Corp., 69274-69276 E7-23768 Philadelphia Stock Exchange, Inc., 69276-69278 E7-23754 State State Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 69278 E7-23814 Culturally Significant Objects Imported for Exhibition Determinations:

Degas, Forain and Toulouse-Lautree; the Dancer, 69279 07-5981 Gifts to Federal employees from foreign governments; list (2006 CY), 69448-69520 E7-23674 Meetings: International Telecommunication Advisory Committee, 69279 07-5971 Surface Surface Transportation Board NOTICES Railroad operation, acquisition, construction, etc.: Kaiser Eagle Mountain Railroad, 69283-69284 E7-23813 Thrift Thrift Supervision Office RULES Risk-based capital: Advanced capital adequacy framework; Basel II, 69288-69445 07-5729 Transportation Transportation Department See Federal Motor Carrier Safety Administration See Surface Transportation Board Treasury Treasury Department See Comptroller of the Currency See Thrift Supervision Office Separate Parts In This Issue Part II Federal Deposit Insurance Corporation;

Federal Reserve System; Treasury Department, Comptroller of the Currency; Treasury Department, Thrift Supervision Office, 69288-69445 07-5729 Part III State Department, 69448-69520 E7-23674 Part IV Environmental Protection Agency, 69522-69552 E7-23556 Part V Securities and Exchange Commission, 69554-69567 E7-23756 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 72 235 Friday, December 7, 2007 Rules and Regulations DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 301 [Docket No. APHIS-2007-0133] Mediterranean Fruit Fly; Add Portions of Santa Clara and Solano Counties, CA, to the List of Quarantined Areas AGENCY:

Animal and Plant Health Inspection Service, USDA. ACTION: Interim rule and request for comments. SUMMARY: We are amending the Mediterranean fruit fly regulations by adding portions of Santa Clara and Solano Counties, CA, to the list of quarantined areas and restricting the interstate movement of regulated articles from those areas. We are also amending the definitions of the terms *core area* and *day degrees* and adding blueberries ( *Vaccinium* spp.) to the list of articles regulated for Mediterranean fruit fly.

These actions are necessary to prevent the artificial spread of Mediterranean fruit fly to noninfested areas of the United States and to update the regulations to reflect current science and practices. DATES: This interim rule is effective December 7, 2007. We will consider all comments that we receive on or before February 5, 2008. ADDRESSES: You may submit comments by either of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* , select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click “Submit.

” In the Docket ID column, select APHIS-2007-0133 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. • *Postal Mail/Commercial Delivery:* Please send four copies of your comment (an original and three copies) to Docket No.

APHIS-2007-0133, 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-2007-0133. *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: Mr. Wayne D. Burnett, Domestic Coordinator, Fruit Fly Exclusion and Detection Programs, PPQ, APHIS, 4700 River Road Unit 137, Riverdale, MD 20737-1234;

(301)734-4387. SUPPLEMENTARY INFORMATION: Background The Mediterranean fruit fly (Medfly, *Ceratitis capitata* [Wiedemann]) is one of the world's most destructive pests of numerous fruits and vegetables. The short life cycle of the Medfly allows rapid development of serious outbreaks, which can cause severe economic losses. Heavy infestations can cause complete loss of crops. The Mediterranean fruit fly regulations, contained in 7 CFR 301.78 through 301.78-10 (referred to below as the regulations), were established to prevent the spread of Medfly into noninfested areas of the United States. Section 301.78-3(a) provides that the Administrator will list as a quarantined area each State, or each portion of a State, in which Medfly has been found by an inspector, in which the Administrator has reason to believe that Medfly is present, or that the Administrator considers necessary to regulate because of its inseparability for quarantine enforcement purposes from localities in which Medfly has been found. The regulations impose restrictions on the interstate movement of regulated articles from the quarantined areas. Quarantined areas are listed in § 301.78-3(c). Less than an entire State will be designated as a quarantined area only if the Administrator determines that:

(1)The State has adopted and is enforcing restrictions on the intrastate movement of the regulated articles that are substantially the same as those imposed on the interstate movement of regulated articles and

(2)the designation of less than the entire State as a quarantined area will prevent the interstate spread of Medfly. Recent trapping surveys by inspectors of California State and county agencies have revealed that portions of Santa Clara and Solano Counties, CA, are infested with Medfly. State agencies in California have begun an intensive Medfly eradication program in the quarantined areas in Santa Clara and Solano Counties. Also, California has taken action to restrict the intrastate movement of regulated articles from the quarantined areas. Accordingly, to prevent the spread of Medfly into noninfested areas of the United States, we are amending the regulations in § 301.78-3 by designating portions of Santa Clara and Solano Counties, CA, as quarantined areas for Medfly. The quarantined areas are described in the regulatory text at the end of this document. Section 301.78-1 of the regulations currently defines the term *core area* as “the 1 square mile area surrounding each property where Mediterranean fruit fly has been detected.” We have determined that it is necessary to amend the definition of *core area* because the use of GPS technology allows us to more accurately measure the distance from a positive detection site of Medfly. Therefore, we are revising the definition of the term *core area* to read “the area within a circle surrounding each detection using a 1/2 -mile radius with the detection as a center point.” The regulations currently define the term *day degrees* as a mathematical construct combining average temperature over time that is used to calculate the length of a Mediterranean fruit fly life cycle. Day degrees are the product of the following formula, with all temperatures measured in °F.: [(Minimum Daily Temp + Maximum Daily Temp)/2]−54° = Day Degrees. We have determined that it is necessary to amend the definition of *day degrees* because the use of weather service data entered into a computer model enables us to more accurately measure day degree accumulation based upon the latest biological information than was previously possible. Therefore, we are revising the definition of *day degrees* to read “a unit of measurement used to measure the amount of heat required to further the development of fruit flies through their life cycle. Day-degree life cycle requirements are calculated through a modeling process specific for each fruit fly species.” We are also adding blueberries ( *Vaccinium* spp.) to the regulated articles list in § 301.78-2 because recent scientific information supports the conclusion that blueberries are susceptible to infestation by Medfly; therefore, the movement of blueberry fruit from infested areas poses a pest risk. Supporting documentation regarding the host status of blueberries can be found at: *http://www.aphis.usda.gov/plant_health/plant_pest_info/fruit_flies/index.shtml* . Emergency Action This rulemaking is necessary on an emergency basis to prevent Medfly from spreading to noninfested areas of the United States. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the **Federal Register** . We will consider comments we receive during the comment period for this interim rule (see DATES above). After the comment period closes, we will publish another document in the **Federal Register** . The document will include a discussion of any comments we receive and any amendments we are making to the rule. Executive Order 12866 and Regulatory Flexibility Act This rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866. This rule amends the Medfly regulations by adding portions of Santa Clara and Solano Counties, CA, to the list of quarantined areas. The regulations restrict the interstate movement of regulated articles from the quarantined areas. Within the quarantined areas there are approximately 251 small entities that may be affected by this rule. These include 125 markets (including swap meets and farmer's markets), 53 growers, 24 shippers, 23 nurseries, 17 yard maintenance firms, 8 packers/processors, and 1 green waste hauler. These 251 entities comprise less than 1 percent of the total number of similar entities operating in the State of California. Additionally, few of these small entities move regulated articles interstate during the normal course of their business, nor do consumers of products purchased from those entities generally move those products interstate. The effect on those few entities that do move regulated articles interstate will be minimized by the availability of various treatments that, in most cases, will allow these small entities to move regulated articles interstate with very little additional cost. Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities. Executive Order 12372 This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.) Executive Order 12988 This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule:

(1)Preempts all State and local laws and regulations that are inconsistent with this rule;

(2)has no retroactive effect; and

(3)does not require administrative proceedings before parties may file suit in court challenging this rule. Paperwork Reduction Act This rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 7 CFR Part 301 Agricultural commodities, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation. Accordingly, 7 CFR part 301 is amended as follows: PART 301—DOMESTIC QUARANTINE NOTICES 1. The authority citation for part 301 continues to read as follows: Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, and 371.3. Section 301.75-15 issued under Sec. 204, Title II, Public Law 106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 issued under Sec. 203, Title II, Public Law 106-224, 114 Stat. 400 (7 U.S.C. 1421 note). 2. Section 301.78-1 is amended by revising the definitions of *core area* and *day degrees* to read as follows: § 301.78-1 Definitions. *Core area* . The area within a circle surrounding each detection using a 1/2-mile radius with the detection as a center point. *Day degrees* . A unit of measurement used to measure the amount of heat required to further the development of fruit flies through their life cycle. Day-degree life cycle requirements are calculated through a modeling process specific for each fruit fly species. § 301.78-2 [Amended] 3. In § 301.78-2, paragraph

(a)is amended by adding, in alphabetical order, an entry for “Blueberry ( *Vaccinium* spp.)”. 4. In § 301.78-3, paragraph

(c)is revised to read as follows: § 301.78-3 Quarantined areas.

(c)The areas described below are designated as quarantined areas: California *Santa Clara County* . That portion of Santa Clara County in the San Jose area bounded by a line as follows: Beginning at the intersection of Interstate 880 and Montague Expressway; then northeast and east on Montague Expressway to Trade Zone Boulevard; then southeast and northeast on Trade Zone Boulevard to Cropley Avenue; then northeast on Cropley Avenue to Old Piedmont Road; then northwest on Old Piedmont Road to Berryessa Creek; then northeast, east, southeast, northeast, southeast, northeast, east, and northeast along Berryessa Creek to its intersection with Berryessa Creek Branch; then southeast from Berryessa Creek Branch along an imaginary line to the intersection of Sierra Road and the City of San Jose boundary line; then northeast, southeast, southwest, southeast, northeast, southeast, southwest, and southeast along the City of San Jose boundary line to Alum Rock Falls Road; then southeast, northeast, southeast, southwest, southeast, northeast, southeast, northeast, east, southeast, southwest, northwest, southwest, southeast, southwest, northwest, southwest, southeast, southwest, northwest, west, southeast, northwest, west, and southwest on Alum Rock Falls Road to State Highway 130; then southeast on State Highway 130 to Quimby Road; then southwest, northwest, southwest, northwest, southwest, and south on Quimby Road to Buckeye Ranch; then southeast and southwest on Buckeye Ranch to its southwesternmost point; then southwest from that point along an imaginary line to the northeasternmost point of Fowler Road; then southwest, southeast, east, southeast, northwest, southwest, southeast, south, west, northwest, and west on Fowler Road to Yerba Buena Road; then south and west on Yerba Buena Road to San Felipe Road; then southeast on San Felipe Road to Farnsworth Drive; then southwest, northwest, and southwest on Farnsworth Drive to Silver Creek Valley Road; then southwest, southeast, southwest, and west on Silver Creek Valley Road to Blossom Hill Road; then west and southwest on Blossom Hill Road to State Highway 82; then northwest on State Highway 82 to Southside Drive; then southeast from the intersection of State Highway 82 and Southside Drive along an imaginary line to the northeasternmost point of Hillsdale Drive; then southwest on Hillsdale Drive to Hillsdale Avenue; then west on Hillsdale Avenue to State Highway 87; then northwest on State Highway 87 to Interstate 880; then northeast and north on Interstate 880 to the point of beginning. *Solano County* . That portion of Solano County in the Dixon area bounded by a line as follows: Beginning at the intersection of Boyce Road and Putah Creek Road; then northeast, southeast, and northeast on Putah Creek Road to Stevenson Bridge Road; then northeast and northwest on Stevenson Bridge Road to Putah Creek; then southeast along Putah Creek to the south fork of Putah Creek; then southeast along the south fork of Putah Creek to Old Davis Road; then south, west, and south on Old Davis Road to Tremont Road; then east on Tremont Road to Bulkley Road; then south on Bulkley Road to Midway Road; then west on Midway Road to Sikes Road; then south on Sikes Road to Swan Road; then west on Swan Road to Bunker Station Road; then south on Bunker Station Road to Binghamton Road; then west on Binghamton Road to State Highway 113; then north on State Highway 113 to Hawkins Road; then west on Hawkins Road to Lewis Road; then north on Lewis Road to Weber Road; then west and northwest on Weber Road to North Meridian Road; then northwest and north on North Meridian Road to Sweeney Road; then west on Sweeney Road to Halley Road; then north, southwest, and northwest on Halley Road to Wolfskill Road; then southwest on Wolfskill Road to Boyce Road; then northwest on Boyce Road to the point of beginning. Done in Washington, DC, this 30th day of November 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-23770 Filed 12-6-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 983 [Docket No. AMS-FV-07-0082; FV07-983-1 IFR] Pistachios Grown in California; Changes in Handling Requirements AGENCY: Agricultural Marketing Service, USDA. ACTION: Interim final rule with request for comments. SUMMARY: This rule changes the handling requirements currently authorized under the California pistachio marketing order (order). The order regulates the handling of pistachios grown in California and is administered locally by the Administrative Committee for Pistachios (committee). This rule suspends the minimum quality requirements, including maximum defects and minimum sizes, for California pistachios. This will reduce handler costs and provide handlers more flexibility in meeting customer needs. DATES: Effective December 10, 2007; comments received by February 5, 2008 will be considered prior to issuance of a final rule. ADDRESSES: Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Fax:

(202)720-8938; or Internet: *http://www.regulations.gov.* All comments should reference the docket number and the date and page number of this issue of the **Federal Register** and will be made available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Terry Vawter, Senior Marketing Specialist, or Kurt J. Kimmel, Regional Manager, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone:

(559)487-5901, Fax:

(559)487-5906, or Email: *Terry.Vawter@usda.gov* or *Kurt.Kimmel@usda.gov.* Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone:

(202)720-2491, Fax:

(202)720-8938, or E-mail: *Jay.Guerber@usda.gov.* SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order No. 983 (7 CFR part 983), regulating the handling of pistachios grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Department of Agriculture

(USDA)is issuing this rule in conformance with Executive Order 12866. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. This rule changes the handling requirements for pistachios currently authorized under the order. This rule suspends the minimum quality requirements, including maximum defects and minimum sizes, for California pistachios. This will reduce handler costs and provide handlers more flexibility in meeting customer needs. This action was recommended by the committee. Section 983.39 establishes minimum quality levels for pistachios, including maximum defects and minimum sizes permitted under the order. Under § 983.46, the Secretary may modify, suspend, or make rules and regulations to implement §§ 983.38 through 983.45 based upon a recommendation by seven concurring committee members or other available information. The quality and size requirements have been in effect for California pistachios since the order's inception in 2004. Evidence provided at the promulgation hearing suggested that there was a direct link between lower-quality pistachios and the incidence of aflatoxin contamination (see 68 FR 45990). Aflatoxin is one of a group of mycotoxins produced by the molds *Aspergillus flavus* and *Aspergillus parasiticus.* Aflatoxins are naturally-occurring in the field and can be further spread in improperly processed and stored nuts, dried fruits, and grains. The data presented at the hearing was based on aflatoxin analyses of pistachios with different defects. Although the data also indicated that the levels of aflatoxin associated with each defect varied widely, researchers attributed this to variability among the samples. As further data was collected in 2005 and 2006, University of California researchers concluded that variability in aflatoxin levels seen in previous studies may have been due to geographic variability 1 2 . Aflatoxin contamination is more prevalent in pistachios produced in the northern San Joaquin Valley, while quality defects, largely due to insect damage, are less prevalent. The opposite is true for the southern San Joaquin Valley. It is now believed that these differences in aflatoxin contamination between the growing areas are due to differences in climate. The northern San Joaquin Valley has more aflatoxin contamination because its cooler temperatures and greater moisture are more conducive to *Aspergillus* and aflatoxin development, but less conducive to insect population and damage. However, in the southern San Joaquin Valley, there is a higher incidence of insect damage and a much lower incidence of aflatoxin contamination because of the drier environment and higher temperatures. Thus, recent research suggests that aflatoxin occurrence in pistachios may be attributable to climatic factors. 1 Doster, M.A., T.J. Michailides, L.D. Boeckler, and D.P. Morgan, 2006. Development of expert systems and predictive models for aflatoxin contamination in pistachios. In California Pistachio Industry Annual Report Crop Year 2005-2006, pg. 101-102. 2 Doster, M.A., T.J. Michailides, L.D. Boeckler, and D.P. Morgan, 2007. Prediction of aflatoxin contamination and a survey of fungi producing Ochratoxin A in California pistachios. In California Pistachio Industry Annual Report Crop Year 2006-2007, pg. 109-110. Additionally, growers and handlers are reporting unexpected problems with the size of pistachios this season, as well as with staining of the nut shell from the hull. Pistachios are smaller than usual, and the large crop has resulted in a large percentage of pistachios which may not meet the requirements of the order because the sizes are smaller than currently authorized, which is 30/64ths of an inch. Staining is a problem this season due to unseasonable humidity and spotty rains on August 26th and 30th. The moisture wet the outer hull, and the hull then stained the pistachio shell. Dark stains are an external defect, which affects overall pistachio quality. Thus, the committee recommended suspending the minimum quality requirements, which include maximum defects and minimum sizes, under the order. This will reduce handler costs and provide handlers more flexibility in meeting customer needs. Suspending these requirements also necessitates modifications to other sections of the order and regulations that reference minimum quality and size requirements. Accordingly, this rule partially suspends or amends language in §§ 983.6, 983.7, 983.31, 983.38, 983.40, 983.41, 983.42, 983.45, 983.138, 983.143, and 983.147 of the order; and suspends §§ 983.19, 983.20, 983.39, and 983.141 in their entirety. Additionally, the third sentence in § 983.11(b), and all of § 983.71 are removed because the committee's State counterpart, the California Pistachio Commission, has been terminated and there is currently no relationship between the two organizations. Initial Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), Agricultural Marketing Service

(AMS)has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses would not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. There are approximately 740 producers in the production area, and 50 handlers of California pistachios subject to regulation. The Small Business Administration

(SBA)(13 CFR 121.201) defines small agricultural producers as those having annual receipts less than $750,000, and defines small agricultural service firms those whose annual receipts are less than $6,500,000. Of the 740 producers, approximately 722 have annual receipts of less than $750,000. Forty-two of the 50 handlers subject to regulation have annual pistachio receipts of less than $6,500,000. Thus, the majority of producers and handlers of California pistachios may be classified as small entities. This rule changes the handling requirements authorized under the order. This rule suspends the minimum quality requirements, including maximum defects and minimum sizes, for California pistachios. Authority for this action is provided in § 983.46. Regarding the impact on affected entities, suspending the minimum quality requirements will decrease handler inspection costs. The committee currently estimates that the direct costs to obtain inspection average approximately $50.00 per lot. The average lot is approximately 44,000 pounds. With over 100,000,000 pounds shipped domestically, the direct costs for inspection for approximately 2,300 lots could total $115,000 for the industry. The direct costs do not include handler staff time in preparing samples, and handler storage and recordkeeping costs associated with inspected pistachios. The committee considered alternatives to suspending the minimum quality requirements. Some producers were concerned that this could give handlers too much latitude in their operations. Other producers commented that handlers' customers would likely dictate product quality and prevent shipment of substandard pistachios into the market. Ultimately, the majority of committee members supported the changes. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the form ACP-5, “Minimal Testing” being suspended by this rule was previously approved by the Office of Management and Budget and assigned OMB No. 0581-0215, Pistachios Grown in California, for 1 burden hour. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. Further, the committee meetings where this action was discussed were widely publicized throughout the pistachio industry and all interested persons were encouraged to attend the meetings and participate in the committee's deliberations. Like all committee meetings, these were public meetings, and entities of all sizes were encouraged to express their views on these issues. Finally, interested persons are invited to submit comments on this interim final rule, including the regulatory and informational impacts of this action on small businesses. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/fv/moab/html.* Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. This rule invites comments on changes to the handling requirements currently prescribed under the order. Any comments received will be considered prior to finalization of this rule. The order provisions suspended by this action no longer tend to effectuate the declared policy of the Act. Accordingly, after consideration of all relevant material presented, including the committee's recommendation, and other information, it is found that this interim final rule, as hereinafter set forth, will effectuate the declared policy of the Act. Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the **Federal Register** because:

(1)It relaxes quality requirements currently in effect;

(2)handlers are already receiving 2007-08 crop pistachios, and this rule should apply to as much of the 2007-08 crop as possible;

(3)handlers are aware of these changes, which were discussed at two public meetings; and

(4)this rule has a 60-day comment period and any comments received will be considered prior to finalization of this rule. List of Subjects in 7 CFR Part 983 Pistachios, Marketing agreements and orders, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, 7 CFR part 983 is amended as follows: PART 983—PISTACHIOS GROWN IN CALIFORNIA 1. The authority citation for 7 CFR part 983 continues to read as follows: Authority: 7 U.S.C. 601-674. §§ 983.19, 983.20, 983.39, 983.141 [Amended] 2. In part 983, §§ 983.19, 983.20, 983.39, and 983.141 are suspended indefinitely. § 983.6 [Amended] 3. In § 983.6, the words “free of internal defects as defined in § 983.39(b)(4) and (5)” are suspended indefinitely. § 983.7 [Amended] 4. In § 983.7, the words “and minimum quality” are suspended indefinitely. § 983.11 [Amended] 5. In § 983.11, paragraph (b), the third sentence is removed. § 983.31 [Amended] 6. In § 983.31, the words “and/or minimum quality” are suspended indefinitely. § 983.38 [Amended] 7. In § 983.38, paragraph (d)(1), the words “and divided between those pistachios for aflatoxin testing and those for minimum quality testing” are suspended indefinitely. 8. In § 983.38, paragraph (d)(4), the word “, grade” is suspended from the penultimate sentence indefinitely. § 983.40 [Amended] 9. Paragraph

(a)of § 983.40 is suspended indefinitely. 10. In § 983.40, paragraph (b), the words “and/or the minimum quality” are suspended from the first sentence indefinitely, the words “either” and “or the minimum quality” are suspended from the second sentence indefinitely, and the words “, and the handler, under the supervision of an inspector, shall send the failed lot notification reports for the lots that do not meet the minimum quality requirements to the committee” are suspended from the third sentence indefinitely. 11. In § 983.40, paragraph (c), the fifth sentence is suspended indefinitely. 12. Paragraph

(e)of § 983.40 is suspended indefinitely. § 983.41 [Amended] 13. Paragraph

(b)of § 983.41 is suspended indefinitely. § 983.42 [Amended] 14. In § 983.42, the words “and minimum quality certificate” are suspended indefinitely. § 983.45 [Amended] 15. In § 983.45, the words “and minimum quality requirements,” the first “§ ,” and “and 983.39” are suspended indefinitely. § 983.71 [Removed] 16. Section 983.71 is removed. 17. Section 983.138 is revised to read as follows: § 983.138 Samples for testing. Prior to testing, a sample shall be drawn from each lot to be used to test pistachios for aflatoxin. The lot sample shall be of sufficient weight to comply with Tables 1 and 2 of § 983.38. § 983.143 [Amended] 18. Section 983.143 is amended by revising paragraph

(b)to read as follows: § 983.143 Reinspection.

(a)* * *

(b)Each handler who handles pistachios shall cause any lot or portion of a lot initially certified for aflatoxin, and subsequently materially changed, to be reinspected for aflatoxin and certified as a new lot or new lots: *Provided* , That, handlers exempted from order requirements under § 983.170 are exempt from all reinspection requirements. 19. In § 983.147, paragraph

(a)is revised to read as follows: § 983.147 Reports.

(a)*ACP-2, Failed Lot Notification.* Each handler shall notify the Administrative Committee for Pistachios (committee) of all lots that fail to meet the order's maximum aflatoxin requirements by completing section A of this form. Handlers shall furnish this report to the committee no later than 10 days after completion of the aflatoxin test. Each USDA-approved aflatoxin testing laboratory shall complete section C of this report, and forward this report and the failing aflatoxin test results to the committee and to the handler within 10 days of the test failure. § 983.147 [Amended] 20. Paragraph

(d)of § 983.147 is suspended indefinitely. Dated: December 4, 2007. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. 07-5989 Filed 12-5-07; 10:02 am]

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