Unknown. Final rule

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

--- schema: federal-register doc_type: fedreg source_file: FR-2008-02-06.xml --- 73 25 Wednesday, February 6, 2008 Contents Agricultural Agricultural Marketing Service RULES Avocados Grown in South Florida; Order Amending Marketing, 6834-6838 08-536 Agriculture Agriculture Department See Agricultural Marketing Service See Forest Service See Rural Utilities Service Air Force Air Force Department NOTICES Privacy Act; Systems of Records, 6937-6938 E8-2145 Arts Arts and Humanities, National Foundation See National Foundation on the Arts and the Humanities Centers Centers for Medicare & Medicaid Services NOTICES Medicare Program;

Rural Community Hospital Demonstration Program; Solicitation of Additional Participants, 6971-6973 08-511 Coast Guard Coast Guard PROPOSED RULES Regattas and Marine Parades: Great Lake annual marine events, 6859-6861 E8-2165 Safety zone: Oceanside Harbor, California, 6861-6863 E8-2167 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 6985-6988 E8-2166 Commerce Commerce Department See Economic Development Administration See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 6921 E8-2105 Consumer Consumer Product Safety Commission RULES Standard for Flammability (Open Flame) of Mattress Sets; Correction, 6842-6843 E8-2027 Defense Defense Department See Air Force Department NOTICES Meetings: Defense Science Board, 6936 08-513 Privacy Act; Systems of Records, 6936-6937 E8-2146 Defense Defense Nuclear Facilities Safety Board NOTICES Safety Classification of Fire Protection Systems, 6938-6939 E8-2185 Drug Drug Enforcement Administration RULES Authorized Sources of Narcotic Raw Materials, 6843-6851 E8-2142 NOTICES Notice of Registration;

Importer of Controlled Substances, 7004 E8-2141 Economic Economic Development Administration NOTICES Trade Adjustment Assistance for Firms Program Announcement, 6921-6929 E8-2133 Education Education Department NOTICES Office of Elementary and Secondary Education: Indian Children Demonstration Grants; FY 2008 Applications Request, 6939-6943 E8-2154 Energy Energy Department See Federal Energy Regulatory Commission See Western Area Power Administration NOTICES Natural Gas and Liquefied Natural Gas Import/Export Authorization Holders;

Procedural Order, 6943-6950 E8-2147 EPA Environmental Protection Agency RULES Clothianidin: Pesticide Tolerance, 6851-6856 E8-1784 PROPOSED RULES Final 8-hour Ozone National Ambient Air Quality Standards: Designations for Early Action Compact Areas, 6863-6867 E8-2187 Proposed Tolerance Actions: 2,4-D, Bensulide, et al., 6867-6879 E8-2094 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 6961-6962 E8-2155 E8-2169 Disulfoton; Amendment to and Clarification of Order to Amend Registration to Terminate Uses, 6962-6963 E8-2174 Endocrine Disruptor Screening Program:

Draft Policies and Procedures for Initial Screening etc., 6963-6964 E8-2164 Filing of Pesticide Petitions for Residues of Pesticide Chemicals in or on Various Commodities, 6964-6967 E8-2172 Meetings: Tribal Pesticide Program Council, 6967-6968 E8-2086 Equal Equal Employment Opportunity Commission NOTICES Meetings; Sunshine Act, 6968 08-558 Executive Executive Office of the President See Presidential Documents FAA Federal Aviation Administration RULES Airworthiness Directives:

Rolls-Royce plc RB211 Series Turbofan Engines, 6838-6840 E8-2028 Special Federal Aviation Regulation: Mitsubishi MU-2B Series Airplane Special Training, Experience, and Operating Requirements, 7034-7167 08-398 Standard Instrument Approach Procedures: Miscellaneous Amendments, 6841-6842 E8-2005 NOTICES Exemption Petition Summary, 7028 E8-2098 Petitions for Exemption; Summary of Petitions Received, 7028-7029 E8-2261 FCC Federal Communications Commission PROPOSED RULES Amendment of the Commission's Rules and Policies Governing Pole Attachments:

Implementation of Section 224 of the Act, 6879-6888 E8-2177 Petition to Establish Procedural Requirements to Govern Proceedings: Forbearance Under Section 10 of Communications Act of 1934, as Amended, 6888-6895 E8-2180 NOTICES Meetings: North American Numbering Council, 6968 E8-2186 Federal Election Federal Election Commission NOTICES Filing Dates for Louisiana Special Election; 6th Congressional District, 6968-6970 E8-2149 Federal Energy Federal Energy Regulatory Commission NOTICES Bicent (California) Malburg, LLC;

Issuance of Order, 6950 E8-2116 California Wave Energy Partners I, LLC: Application Accepted for Filing and Soliciting Motions to Intervene, Protest, and Comments, 6950-6951 E8-2113 Combined Notice of Filings 1, 6951-6952 E8-2135 Complaint, Request for Fast Track Processing: Dominion Resources Services, Inc., 6952 E8-2115 Effectiveness of Exempt Wholesale Generator of Foreign Utility Co. Status: Reliant Energy Mandalay, Inc. et al., 6952-6953 E8-2109 Filing and Soliciting Comments, Protests, and Motions to Intervene;

Application: NT Hydro, 6953-6954 E8-2117 Investigation of Practices: California Independent System Operator and California Power Exchange— San Diego Gas & Electric Company v. Sellers of Energy and Ancillary Services, 6954 E8-2114 License Amendment and Soliciting Comments, Motions to Intervene, and Protests; Application: Georgia Power Co., 6954-6955 E8-2107 Meetings: Tarpon Whitetail Gas Storage, LLC; Whitetail Natural Gas Storage Project Site Visit, 6955 E8-2118 Notice of Application;

Columbia Gulf Transmission Co., 6956-6957 E8-2112 Notice of Application; Tennessee Gas Pipeline Co., 6957 E8-2108 Notice of Filing; AES Hawaii, Inc., 6955-6956 E8-2110 Notice of Filing; Anthracite Power and Light Co., 6957-6958 E8-2111 Federal Highway Federal Highway Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7029-7030 E8-2168 Federal Reserve Federal Reserve System NOTICES Change in Bank Control Notices; Acquisition of Shares of Bank or Bank Holding Companies, 6970-6971 E8-2126 Formations, Acquisitions, and Mergers of Bank Holding Companies;

Correction, 6971 E8-2125 E8-2127 Federal Transit Federal Transit Administration NOTICES National Transit Database: Strike Adjustments for Urbanized Area Apportionments, 7030-7031 E8-2162 Financial Financial Management Service See Fiscal Service Fiscal Fiscal Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7032 08-509 08-510 Fish Fish and Wildlife Service NOTICES Marine Mammal Protection Act: Stock Assessment Reports, 6994-6996 08-498 Food Food and Drug Administration NOTICES Guidance for Industry;

Fish and Fisheries Products Hazards and Controls: Seafood Processors that Purchase Grouper, Amberjack, and Related Predatory Reef Species Captured in the Northern Gulf of Mexico, 6973 08-537 Memorandums of Understanding: National Institutes of Health, 6973-6982 08-496 Forest Forest Service NOTICES Centennial Salvage Timber Sale: Caribou-Targhee National Forest, Fremont and Clark Counties, ID, 6920 08-514 Health Health and Human Services Department See Centers for Medicare & Medicaid Services See Food and Drug Administration See Health Resources and Services Administration See National Institutes of Health NOTICES Meetings:

American Health Information Community, 6971 08-516 Health Health Resources and Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 6982 E8-2157 Homeland Homeland Security Department See Coast Guard Housing Housing and Urban Development Department PROPOSED RULES Independent Public Accountant Roster, 7170-7177 E8-2097 NOTICES Housing Choice Voucher Program; FY 2007 Funding Awards, 6988-6994 E8-2087 Industry Industry and Security Bureau NOTICES Meetings:

Information Systems Technical Advisory Committee, 6929 E8-2150 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau International International Trade Administration NOTICES Certain Cut-to-Length Carbon Steel Plate from Russia: Preliminary Results of Administrative Review of Suspension Agreement, 6929-6930 E8-2176 Polyethylene Terephthalate Film Sheet and Strip from the Republic of Korea: Extension of Time Limit for Final Results of Changed Circumstances Review, 6931 E8-2179 Pure Magnesium from the Peoples Republic of China:

Extension of Time for Preliminary Results; Antidumping Duty Administrative Review, 6931-6932 E8-2178 Stainless Steel Sheet and Strip in Coils from Taiwan: Final Results and Rescission in Part of Antidumping Duty Administrative Review, 6932-6936 E8-2181 Justice Justice Department See Drug Enforcement Administration Land Land Management Bureau NOTICES Privacy Act; Systems of Records, 6996-6999 E8-2136 Proposed Reinstatement of Terminated Oil and Gas Lease; TXNM 106959, 6999 E8-2129 E8-2130 Public Land:

Colorado; Camping and Occupancy; Proposed Supplementary Rules, 6999-7002 E8-2137 Realty Action: Lease/Conveyance for Recreation and Public Purposes of Public Lands; Clark County, NV, 7002-7003 E8-2132 Proposed Direct Sale of Public Land, ID, 7003-7004 08-485 Merit Merit Systems Protection Board RULES Practices and Procedures, 6833-6834 E8-2104 National Foundation National Foundation on the Arts and the Humanities NOTICES Meetings: National Council on the Humanities, 7004-7005 E8-2138 National Highway National Highway Traffic Safety Administration NOTICES Nissan North America, Inc., Decision of Inconsequential Noncompliance Petition Receipt, 7031-7032 E8-2099 NIH National Institutes of Health NOTICES Meetings:

National Center for Complementary and Alternative Medicine, 6982 08-507 National Heart, Lung, and Blood Institute, 6982 08-504 National Human Genome Research Institute, 6983 08-502 National Institute of Allergy and Infectious Diseases, 6983 08-499 National Institute of Arthritis and Musculoskeletal and Skin Diseases, 6984-6985 08-505 National Institute of Diabetes and Digestive and Kidney Diseases, 6983-6984 08-500 08-501 National Institute of Nursing Research, 6984 08-503 National Institute on Drug Abuse, 6985 08-506 NOAA National Oceanic and Atmospheric Administration PROPOSED RULES Endangered and Threatened Species:

Critical Habitat for Threatened Elkhorn and Staghorn Corals, 6895-6919 08-497 NOTICES Meetings: North Pacific Fishery Management Council, 6936 E8-2119 National Science National Science Foundation NOTICES Meetings: National Science Board Task Force on Sustainable Energy, 7005 E8-2106 Nuclear Nuclear Regulatory Commission NOTICES Meetings: Independent External Review Panel— Identify Vulnerabilities in Nuclear Regulatory Commission's Materials Licensing Program, 7005-7006 E8-2144 Personnel Personnel Management Office PROPOSED RULES Time-in-Grade Rule Eliminated, 6857-6858 E8-2122 Presidential Presidential Documents EXECUTIVE ORDERS International Atomic Energy Agency-U.S.

Agreement for the Application of Safeguards in the U.S., Implementation of Additional Protocol (EO 13458), 7179-7182 08-568 ADMINISTRATIVE ORDERS Cote d’Ivoire; Continuation of National Emergency Blocking Property of Persons Contributing to the Conflict (Notice of February 5, 2008), 7183-7185 08-575 Presidio Presidio Trust NOTICES Privacy Act; Systems of Records, 7006-7011 E8-2128 Public Public Debt Bureau See Fiscal Service RUS Rural Utilities Service NOTICES Meetings: Basin Electric Power Cooperative, Inc.;

Public Scoping Meeting and Environmental Assessment, 6920-6921 E8-2101 SEC Securities and Exchange Commission NOTICES MLIG Variable Insurance Trust and Roszel Advisors, LLC; Notice of Application, 7012-7016 E8-2120 Self-Regulatory Organizations; Proposed Rule Changes: American Stock Exchange LLC, 7016 E8-2139 Financial Industry Regulatory Authority, Inc., 7017-7020 E8-2074 E8-2134 International Securities Exchange, LLC, 7020-7021 E8-2124 New York Stock Exchange LLC, 7021-7026 E8-2073 E8-2075 E8-2140 SBA Small Business Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 7027 E8-2102 E8-2103 Disaster Declaration Nos. 11160 and 11161: Indiana Disaster No. IN-00017, 7027 E8-2152 State State Department NOTICES Culturally Significant Objects Imported for Exhibition Determinations: Terra Cotta Warriors: Guardians of the First Emperor, 7028 E8-2159 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Federal Transit Administration See National Highway Traffic Safety Administration Treasury Treasury Department See Fiscal Service Western Western Area Power Administration NOTICES Washoe Project—Rate Order No.

WAPA-136, 6958-6960 E8-2148 Separate Parts In This Issue Part II Transportation Department, Federal Aviation Administration, 7034-7167 08-398 Part III Housing and Urban Development Department, 7170-7177 E8-2097 Part IV Executive Office of the President, Presidential Documents, 7179-7182 08-568 Part V Executive Office of the President, Presidential Documents, 7183-7185 08-575 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. 73 25 Wednesday, February 6, 2008 Rules and Regulations MERIT SYSTEMS PROTECTION BOARD 5 CFR Parts 1201 and 1207 Practices and Procedures AGENCY: Merit Systems Protection Board. ACTION: Final rule. SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is amending its rules of practice and procedure to clarify a number of matters:

That the date of receipt of an agency decision is date on which the petitioner receives it; that a witness who is not a federal employee may obtain an order requiring the payment of witness fees; that the time for filing a petition for review begins on the date the initial decision is first received by either the appellant or the representative; and that complaints of discrimination must be clearly marked as raising such an issue. The Board also amends its mixed case procedures to make clear that any case older than 120 days is subject to the 30 day filing requirement once the appellant receives the agency's final decision.

The Board also deletes an outdated reference to Appendix 1. DATES: *Effective Date:* February 6, 2008. FOR FURTHER INFORMATION CONTACT: William D. Spencer, Clerk of the Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419;

(202)653-7200; fax:

(202)653-7130; or e-mail: *mspb@mspb.gov* . SUPPLEMENTARY INFORMATION: The Board is amending its rules of practice and procedure in 5 CFR part 1201 and 5 CFR Part 1207 as follows: Section 1201.22(b)(1) is amended to make clear that the date of receipt of the agency's decision is the date on which the petitioner receives the decision; Section 1201.37(d) and

(e)and 1201.182(c) are amended to state that a witness who is not a federal employee may obtain an order requiring the payment of witness fees and may file a petition for enforcement of such an order. Section 1201.114(d) is amended to make clear that the time for filing a petition for review begins to run from the date of receipt of the initial decision by either the appellant or the representative, whichever comes first. The rule is consistent with that followed by the Federal Circuit with respect to petitions for judicial review. *See Monzo* v. *Department of Transportation* , 735 F.2d 1335 (Fed. Cir. 1984); 1201.154(a) &

(d)are amended to make clear that the date of receipt of the agency's decision is the date on which the petitioner receives the decision; 1201.154(b)(2) is amended to make clear that an agency case older than 120 days is subject to the 30 day filing requirement once the appellant receives the agency's final decision. This amendment addresses an issue that arose in *Paine* v. *MSPB* , 467 F.3d 1344 (2006). 1207.170(b)(2) &

(4)are amended to ensure that MSPB administrative judges and the Board are aware that a party is raising a complaint of discrimination in the adjudication of a Board case. List of Subjects 5 CFR Part 1201 Administrative practice and procedure, Government employees. 5 CFR Part 1207 Administrative practice and procedure, Government employees. Accordingly, the Board amends 5 CFR parts 1201 and 1207 as follows: PART 1201—[AMENDED] 1. The authority citation for part 1201 continues to read as follows: Authority: 5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, unless otherwise noted. 2. Revise § 1201.22(b)(1) to read as follows: § 1201.22 Filing an appeal and responses to appeals.

(b)* * *

(1)Except as provided in paragraph (b)(2) of this section, an appeal must be filed no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of the appellant's receipt of the agency's decision, whichever is later. Where an appellant and an agency mutually agree in writing to attempt to resolve their dispute through an alternative dispute resolution process prior to the timely filing of an appeal, however, the time limit for filing the appeal is extended by an additional 30 days—for a total of 60 days. A response to an appeal must be filed within 20 days of the date of the Board's acknowledgment order. The time for filing a submission under this section is computed in accordance with § 1201.23 of this part. 3. In § 1201.37, add paragraphs

(d)and

(e)as follows: § 1201.37 Witness fees.

(d)A witness who is denied the witness fees and travel costs required by paragraphs

(b)and

(c)of this section may file a written request that the judge order the party who requested the presence of the witness to provide such fees and travel costs. The judge will act on such a request promptly and, where warranted, will order the party to comply with the requirements of paragraphs

(b)and

(c)of this section.

(e)An order obtained under paragraph

(d)of this section may be enforced as provided under subpart F of this part. 4. Revise § 1201.114(d) to read as follows: § 1201.114 Filing petition and cross petition for review.

(d)Time for filing. Any petition for review must be filed within 35 days after the date of issuance of the initial decision or, if the petitioner shows that the initial decision was received more than 5 days after the date of issuance, within 30 days after the date the petitioner received the initial decision. If the petitioner is represented, the 30-day time period begins to run upon receipt of the initial decision by either the representative or the petitioner, whichever comes first. A cross petition for review must be filed within 25 days of the date of service of the petition for review. Any response to a petition for review or to a cross petition for review must be filed within 25 days after the date of service of the petition or cross petition. 5. Amend § 1201.154 by revising paragraphs (a), (b)(2), and

(d)to read as follows: § 1201.154 Time for filing appeal; closing record in cases involving grievance decisions.

(a)Where the appellant has been subject to an action appealable to the Board, he or she may either file a timely complaint of discrimination with the agency or file an appeal with the Board no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of the appellant's receipt of the agency's decision on the appealable action, whichever is later.

(b)* * *

(2)If the agency has not resolved the matter or issued a final decision on the formal complaint within 120 days, the appellant may appeal the matter directly to the Board at any time after the expiration of 120 calendar days. Once the agency resolves the matter or issues a final decision on the formal complaint, an appeal must be filed within 30 days after the appellant receives the agency resolution or final decision on the discrimination issue.

(d)This paragraph does not apply to employees of the Postal Service or to other employees excluded from the coverage of the federal labor-management relations laws at chapter 71 of title 5, United States Code. If the appellant has filed a grievance with the agency under a negotiated grievance procedure, he may ask the Board to review the final decision on the grievance if he alleges before the Board that he is the victim of prohibited discrimination. Usually, the final decision on a grievance is the decision of an arbitrator. A full description of an individual's right to pursue a grievance and to request Board review of a final decision on the grievance is found at 5 U.S.C. 7121 and 7702. The appellant's request for Board review must be filed within 35 days after the date of issuance of the decision or, if the appellant shows that he or she received the decision more than 5 days after the date of issuance, within 30 days after the date the appellant received the decision. The appellant must file the request with the Clerk of the Board, Merit Systems Protection Board, Washington, DC 20419. The request for review must contain:

(1)A statement of the grounds on which review is requested;

(2)References to evidence of record or rulings related to the issues before the Board;

(3)Arguments in support of the stated grounds that refer specifically to relevant documents, and that include relevant citations of authority; and

(4)Legible copies of the final grievance or arbitration decision, the agency decision to take the action, and other relevant documents. Those documents may include a transcript or tape recording of the hearing. 6. Amend § 1201.182 as follows: a. Redesignate paragraphs (c)(3) and (c)(4) as paragraphs (c)(4) and (c)(5) respectively. b. Add new paragraph (c)(3) and revise newly redesignated paragraph (c)(5) to read as follows: § 1201.182 Petition for enforcement.

(c)* * *

(3)Under § 1201.37(e) of this part, a nonparty witness who has obtained an order requiring the payment of witness fees and travel costs may petition the Board for enforcement of the order.

(5)A petition for enforcement under paragraph (c)(1), (c)(2), (c)(3) or (c)(4) of this section must be filed promptly with the regional or field office that issued the order or, if the order was issued by the Board, with the Clerk of the Board. The petitioner must serve a copy of the petition on each party or the party's representative. If the petition is filed under paragraph (c)(1) of this section, the motion to intervene must be filed and served with the petition. PART 1207—[AMENDED] 7. The authority citation for part 1207 continues to read as follows: Authority: 29 U.S.C. 794. 8. Amend § 1207.170 by revising paragraphs (b)(2) and (b)(4) to read as follows: § 1207.170 Compliance procedures.

(b)* * *

(2)An allegation of discrimination in the adjudication of a Board case must be raised within 10 days of the alleged act of discrimination or within 10 days from the date the complainant should reasonably have known of the alleged discrimination. If the complainant does not submit a complaint within that time period, it will be dismissed as untimely filed unless a good reason for the delay is shown. The pleading must be clearly marked “5 CFR part 1207 allegation of discrimination in the adjudication of a Board case.”

(4)If the judge to whom the case was assigned has issued the initial decision, recommended decision, or recommendation by the time the party learns of the alleged discrimination, the party may raise the allegation in a petition for review, cross petition for review, or response to the petition or cross petition. The petition for review, cross petition for review or response to the petition or cross petition must be clearly marked “5 CFR part 1207 allegation of discrimination in the adjudication of a Board case.” Dated: January 31, 2008. William D. Spencer, Clerk of the Board. [FR Doc. E8-2104 Filed 2-5-08; 8:45 am] BILLING CODE 7400-01-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 915 [Docket No. AO-254-A10; AMS-FV-06-0220; FV06-915-2] Avocados Grown in South Florida; Order Amending Marketing Order No. 915 AGENCY: Agricultural Marketing Service (AMS), USDA. ACTION: Final rule. SUMMARY: This final rule amends Marketing Order No. 915 (order), which regulates the handling of avocados grown in South Florida. The amendments are based on those proposed by the Florida Avocado Administrative Committee (committee), which is responsible for local administration of the order. The amendments will: Add authority for the committee to borrow funds; revise voting requirements for changing the assessment rate; allow for District 1 nominations to be conducted by mail; and, add authority for the committee to accept voluntary contributions. All of the proposals were favored by avocado growers in a mail referendum, held July 23 through August 6, 2007. The amendments are intended to improve the operation and functioning of the marketing order program. DATES: This rule is effective February 7, 2008. FOR FURTHER INFORMATION CONTACT: Marc McFetridge or Melissa Schmaedick, Marketing Specialists, Fruit and Vegetable Programs, Marketing Order Administration Branch (MOAB), AMS, USDA, 1400 Independence Ave., SW., Washington, DC 20250-0237; Telephone:

(202)720-2491, Fax:

(202)720-8938, or E-mail: *Marc.McFetridge@usda.gov* or *Melissa.Schmaedick@usda.gov.* Small businesses may request information on this proceeding 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, E-mail: *Jay.Guerber@usda.gov.* SUPPLEMENTARY INFORMATION: Prior documents in this proceeding: Notice of Hearing issued on July 18, 2006, and published in the July 24, 2006 issue of the **Federal Register** (71 FR 41740); Recommended Decision issued on March 23, 2007 and published in the March 30, 2007 issue of the **Federal Register** (72 FR 15056); and, a Secretary's Decision and Referendum Order issued on July 9, 2007, and published in the **Federal Register** on July 12, 2007 (72 FR 38027). This action is governed by the provisions of sections 556 and 557 of title 5 of the United States Code and is therefore excluded from the requirements of Executive Order 12866. Preliminary Statement This final rule was formulated on the record of a public hearing held in Homestead, Florida on August 16, 2006. Notice of this hearing was issued on July 18, 2006, and published in the July 24, 2006 issue of the **Federal Register** (71 FR 41740). The hearing was held to consider the proposed amendment of Marketing Order No. 915, hereinafter collectively referred to as the “order.” The hearing was held pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act,” and the applicable rules of practice and procedure governing the formulation of marketing agreements and marketing orders (7 CFR part 900). The Notice of Hearing contained four proposals submitted by the Avocado Administrative Committee (committee), which is responsible for local administration of the order. Upon the basis of evidence introduced at the hearing and the record thereof, the Administrator of AMS on March 23, 2007, filed with the Hearing Clerk, U.S. Department of Agriculture, a Recommended Decision and Opportunity to File Written Exceptions thereto by April 30, 2007. None were filed. That document also announced AMS's intent to request approval of new information collection requirements to implement the program. Written exceptions on the proposed information collection requirements were due by May 29, 2007. None were filed. A Secretary's Decision and Referendum Order was issued on July 9, 2007, directing that a referendum be conducted during the period of July 23, 2007 to August 6, 2007, among growers of avocados in South Florida to determine whether they favored the proposed amendments to the order. To become effective, the amendments had to be approved by at least two-thirds of those growers voting, or by voters representing at least two-thirds of the volume of avocados represented by voters voting in the referendum. Voters voting in the referendum favored all of the proposed amendments. The amendments favored by voters and included in this order will: Add authority for the committee to borrow funds; revise voting requirements for changing the assessment rate; allow for District 1 nominations to be conducted by mail; and, add authority for the committee to accept voluntary contributions. USDA also made such changes as were necessary to the order so that all of the order's provisions conform to the effectuated amendments. The amended marketing agreement was subsequently mailed to all avocado handlers in the production area for their approval. The marketing agreement was not approved by handlers representing more than 50 percent of the volume of avocados handled by all handlers during the representative period of April 1, 2006, through March 31, 2007. Small Business Consideration Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions so that small businesses will not be unduly or disproportionately burdened. Marketing orders and amendments thereto are unique in that they are normally brought about through group action of essentially small entities for their own benefit. Small agricultural growers have been defined by the Small Business Administration

(SBA)(13 CFR 121.201) as those having annual receipts of less than $750,000. Small agricultural service firms, which include handlers regulated under the order, are defined as those with annual receipts of less than $6,500,000. Avocado Industry Background and Overview The record indicates that there are an estimated 352 growers of avocados in the production area and 32 handlers subject to regulation under the order. According to the National Agricultural Statistics Service

(NASS)and committee data, the average price for Florida avocados during the 2005-06 season was around $46.75 per 55-pound bushel container, and total shipments were near 470,000 55-pound bushel equivalent. Using this average price and shipment information, the majority of avocado handlers could be considered small businesses under the SBA definition. In addition, based on avocado production, grower prices, and the total number of Florida avocado growers, the average annual grower revenue is less than $750,000. Thus, the majority of Florida avocado growers may also be classified as small entities. The NASS reported that in 2005, total Florida avocado bearing acres were 5,300 and the average yield per acre was 2.26 tons. The total Florida production reported in 2005 was 12,000 tons, with growers receiving an average (farm gate) price of $940/ton. The estimated total value of 2005 Florida avocado production was $11.28 million. Over the past 30 years, the U.S. avocado industry has seen many changes. According to NASS, the total U.S. production acres for avocados have decreased by 13 percent, from 78,000 acres in 1982 to 67,600 acres in 2005. Prices have trended upward from 1959 to 2005, although there has been significant variability in prices from year to year. The average grower price for the U.S. in 1959 was $109 per ton and in 2005 the average grower price was $1,280 per ton. The total value of U.S. avocado production has increased dramatically since 1959, reaching a peak of $394 million in 2003. The per capital consumption of fresh avocados has risen significantly since 1970. Between 1970 and 2004, per capital consumption increased almost five-fold to 2.9 pounds per person in 2004. According to the hearing record, one of the factors that may be contributing to this increase is the new year-round availability of avocados due to the volume of imported avocados in addition to domestically produced avocados. Comparatively, Florida's avocado industry has seen similar trends. According to NASS, the production acreage has decreased by 53 percent over the last three decades. According to record evidence, the rapid decrease in Florida production acreage compared to that of U.S. acreage can be directly associated with crop damage resulting from hurricanes. Florida's production trended upward to 34,700 tons in the early 1980's and has shown great variability since. Production in 2005 was at a 10 year low of 12,000 tons. Prices for Florida avocados have also trended upward from 1959 to 2005. The average grower price for Florida avocados in 1959 was $88 per ton and in 2005 the average grower price was $940 per ton, which was the highest average grower price over the time span. The total value of Florida avocado production was $620,000 in 1959. After Hurricane Andrew, which affected the value of production in 1992 and 1993, the value of Florida's production has ranged from a high of $17.2 million in 2003 to a low of $11.3 million in 2005. Material Issues This action amends the order to: Add authority for the committee to borrow funds; revise voting requirements for changing the assessment rate; allow for District 1 nominations to be conducted by mail; and, add authority for the committee to accept voluntary contributions. These amendments will streamline program organization, but are not expected to result in a significant change in industry production, handling or distribution activities. In discussing the impacts of the amendments on growers and handlers, record evidence indicates that the changes are expected to be positive because the administration of the programs would be more efficient, and therefore more effective, in executing committee duties and responsibilities. There would be no significant cost impact on either small or large growers or handlers. Interested persons were invited to present evidence at the hearing on the probable regulatory and informational impact of the proposed amendments to the order on small entities. The record evidence shows that the amendments are designed to increase efficiency in the functioning of the order. USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule. These amendments are designed to enhance the administration and functioning of the order to the benefit of the Florida avocado industry. Paperwork Reduction Act In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection continued in this action was submitted to the Office of Management and Budget

(OMB)and has been approved under OMB No. 0581-0243, Avocados Grown in South Florida. The burden and associated forms in this collection were also included in the renewal submission of OMB No. 0581-0189, Generic OMB Fruit Crops, currently at OMB for review. Upon approval of OMB No. 0581-0189, a discontinuation notice will be submitted to OMB to retire OMB No. 0581-0243. The amendment authorizing mail nominations for District 1 requires a nomination form and ballot to conduct mail nominations. It is estimated that there are 384 growers and handlers who will be entitled to vote by mail ballot once every two years. The estimated burden to each grower and handler is 0.083 hour per response. 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. Civil Justice Reform The amendments to Marketing Order No. 915 proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have retroactive effect. If adopted, the proposed amendments would not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this proposal. 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 Sates 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 no later than 20 days after the date of the entry of the ruling. Order Amending the Order Regulating the Handling of Avocados Grown in Florida Findings and Determinations The findings and determinations hereinafter set forth are supplementary and in addition to the findings and determinations previously made in connection with the issuance of the order; and all of said previous findings and determinations are hereby ratified and affirmed, except insofar as such findings and determinations may be in conflict with the findings and determinations set forth herein.

(a)*Findings and Determinations Upon the Basis of the Hearing Record* . Pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), and the applicable rules of practice and procedure effective thereunder (7 CFR part 900), a public hearing was held upon the proposed amendments to the Marketing Order No. 915 (7 CFR part 915), regulating the handling of avocados grown in Florida. Upon the basis of the evidence introduced at such hearing and the record thereof, it is found that:

(1)The marketing order, as amended, and as hereby further amended, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the Act;

(2)The marketing order, as amended, and as hereby further amended, regulates the handling of avocados grown in the production area in the same manner as, and is applicable only to persons in the respective classes of commercial and industrial activity specified in the marketing order upon which hearings have been held;

(3)The marketing order, as amended, and as hereby further amended, is limited in application to the smallest regional production area which is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several orders applicable to subdivision of the production area would not effectively carry out the declared policy of the Act;

(4)The marketing order, as amended, and as hereby further amended, prescribes, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of avocados grown in the production area; and,

(5)All handling of avocados grown in the production area is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.

(b)*Additional findings. * It is necessary and in the public interest to make these amendments to the order effective not later than one day after publication in the **Federal Register** . A later effective date would unnecessarily delay implementation of the amendments for the new crop year. These amendments should be in place as soon as possible as the new crop year begins April 1. Therefore, making the effective date one day after publication in the Federal Register will allow the amendments, which are expected to be beneficial to the industry, to be implemented as soon as possible. In view of the foregoing, it is hereby found and determined that good cause exists for making these amendments effective one day after publication in the **Federal Register** , and that it would be contrary to the public interest to delay the effective date for 30 days after publication in the **Federal Register** (Sec. 553(d), Administrative Procedure Act; 5 U.S.C. 551-559).

(c)*Determinations.* It is hereby determined that:

(1)Handlers (excluding cooperative associations of growers who are not engaged in processing, distributing, or shipping avocados covered by the order as hereby amended) who, during the period April 1, 2006, through March 31, 2007, handled 50 percent or more of the volume of such avocados covered by said order, as hereby amended, have not signed an amended marketing agreement;

(2)The issuance of this amendatory order, further amending the aforesaid order, is favored or approved by at least two-thirds of the growers who participated in a referendum on the question of approval and who, during the period of April 1, 2006, through March 31, 2007 (which has been deemed to be a representative period), have been engaged within the production area in the production of such avocados, such growers having also produced for market at least two-thirds of the volume of such commodity represented in the referendum; and

(3)In the absence of a signed marketing agreement, the issuance of this amendatory order is the only practical means pursuant to the declared policy of the Act of advancing the interests of growers of avocados in the production area. Order Relative to Handling of Avocados Grown in South Florida *It is therefore ordered,* That on and after the effective date hereof, all handling of avocados grown in Florida, shall be in conformity to, and in compliance with, the terms and conditions of the said order as hereby amended as follows: The provisions of the proposed marketing agreement and order further amending the order contained in the Secretary's Decision issued by the Administrator on July 9, 2007, and published in the **Federal Register** on July 12, 2007, shall be and are the terms and provision of this order amending the order and are set forth in full herein. List of Subjects in 7 CFR Part 915 Avocados, Marketing agreements, Reporting and recordkeeping requirements. PART 915—AVOCADOS GROWN IN SOUTH FLORIDA For the reasons set forth in the preamble, Title 7 of Chapter XI of the Code of Federal Regulations is amended by amending part 915 as follows: 1. The authority citation for 7 CFR part 915 continues to read as follows: Authority: 7 U.S.C. 601-674. 2. In § 915.11, paragraphs

(a)and

(b)are revised to read as follows: § 915.11 District.

(a)*District 1* shall include Miami-Dade County.

(b)*District 2* shall include all of the production area except Miami-Dade County. 3. In § 915.22, paragraph (b)(1) is revised to read as follows: § 915.22 Nomination.

(b)*Successor members.*

(1)The committee shall hold or cause to be held a meeting or meetings of growers and handlers in each district to designate nominees for successor members and alternate members of the committee; or the committee may conduct nominations in Districts 1 and 2 by mail in a manner recommended by the committee and approved by the Secretary. Such nominations shall be submitted to the Secretary by the committee not later than March 1 of each year. The committee shall prescribe procedural rules, not inconsistent with the provisions of this section, for the conduct of nomination. 4. In § 915.30, paragraph

(c)is revised to read as follows: § 915.30 Procedure.

(c)For any recommendation of the committee for an assessment rate change, a quorum of seven committee members and a two-thirds majority vote of approval of those in attendance is required. 5. In § 915.41, paragraph

(b)is revised to read as follows: § 915.41 Assessments.

(b)The Secretary shall fix the rate of assessment per 55-pounds of fruit or equivalent in any container or in bulk, to be paid by each such handler. At any time during or after a fiscal year, the Secretary may increase the rate of assessment, in order to secure sufficient funds to cover any later finding by the Secretary relative to the expense which may be incurred. Such increase shall be applied to all fruit handled during the applicable fiscal year. In order to provide funds for the administration of the provisions of this part, the committee may accept the payment of assessments in advance, or borrow money on an emergency short-term basis. The authority of the committee to borrow money is subject to approval of the Secretary and may be used only to meet financial obligations as the obligations occur or to allow the committee to adjust its reserve funds to meet such obligations. 6. Add a new § 915.43 to read as follows: § 915.43 Contributions. The committee may accept voluntary contributions. Such contributions shall be free from any encumbrances by the donor and the committee shall retain complete control of their use. 7. Revise § 915.45 to read as follows: § 915.45 Production research, marketing research and development. The committee may, with the approval of the Secretary, establish or provide for the establishment of production research, marketing research and development projects designed to assist, improve or promote the marketing, distribution, and consumption or efficient production of avocados. Such products may provide for any form of marketing promotion, including paid advertising. The expenses of such projects shall be paid from funds collected pursuant to the applicable provisions of § 915.41, or from such other funds as approved by the USDA. Dated: February 1, 2008. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. 08-536 Filed 2-4-08; 9:46 am]

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