issue-1996-05-29•Federal Register proposed rules — 1996-05-29
Federal Register proposed rules — 1996-05-29
issue-1996-05-29Federal Register proposed rules — 1996-05-29Proposed Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-13556 Lamps, Reflective Devices and Associated Equipment; Advisory Committee on Regulatory Negotiation Public Meeting
[Federal Register Volume 61, Number 104 (Wednesday, May 29, 1996)]
[Proposed Rules]
[Page 26872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13556]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. 95-28; Notice 7]
RIN 2127-AF73
Lamps, Reflective Devices and Associated Equipment; Advisory
Committee on Regulatory Negotiation Public Meeting
AGENCY: National Highway Traffic Safety Administration (NHTSA); DOT.
ACTION: Schedule of Advisory Committee on Regulatory Negotiation
Meeting.
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SUMMARY: This document announces the final meetings of NHTSA's Advisory
Committee on Regulatory Negotiation (concerning the improvement of
headlamp aimability performance and visual/optical headlamp aiming).
DATES: Wednesday-Thursday, May 29-30, 1996.
ADDRESSES: The meetings will be held at the Federal Mediation and
Conciliation Service, 2100 K Street, NW., Washington, D.C. The meeting
of May 29 is scheduled for noon to 5:00 p.m. The meeting of May 30 will
be from 9:00 a.m. to 5:00 p.m.
FOR FURTHER INFORMATION CONTACT: Jere Medlin, Office of Vehicle Safety
Standards, NHTSA (Phone: 202-366-5276; FAX: 202-366-4329). Mediator:
Lynn Sylvester, Federal Mediation and Conciliation Service, (phone:
202-606-9140; FAX: 202-606-3679).
SUPPLEMENTARY INFORMATION: The final meetings of the Advisory Committee
on Regulatory Negotiation (concerning the improvement of headlamp
aimability performance and visual/optical headlamp aiming) will be held
on May 29-30, at which time it is anticipated that final consensus will
be reached on a notice of proposed rulemaking on the subject of the
negotiations.
The meetings are open to the public.
Issued: May 24, 1996.
Barry Felrice,
Associate Administrator for Safety Performance Standards.
[FR Doc. 96-13556 Filed 5-24-96; 12:33 pm]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 96-13442 Pesticide Chemicals; Various Tolerance Actions
[Federal Register Volume 61, Number 104 (Wednesday, May 29, 1996)]
[Proposed Rules]
[Pages 26861-26863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13442]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 180, 185 and 186
[OPP-300408; FRL-4992-5]
RIN 2070-AC18
Pesticide Chemicals; Various Tolerance Actions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA proposes to revoke tolerances established for residues of
13 pesticide chemicals in or on certain raw agricultural commodities
(RACs) and processed foods. EPA is initiating this action because there
are no current registrations associated with these food uses. The
applicable registrations for these pesticide uses have been canceled
because of nonpayment of maintenance fees, or by company request.
DATES: Written comments, identified by the document control number
[OPP-300408], must be received on or before July 29, 1996.
ADDRESSES: By mail, submit written comments to: Public Response and
Program Resources Branch, Field Operations Division (7506C), Office of
Pesticide Programs, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460. In person, bring comments to: Rm. 1132, CM #2,
1921 Jefferson Davis Hwy., Arlington, VA 22202. Information submitted
as a comment concerning this document may be claimed confidential by
marking any part or all of that information as ``Confidential Business
Information'' (CBI). CBI should not be submitted through e-mail.
Information marked as CBI will not be disclosed except in accordance
with procedures set forth in 40 CFR part 2. A copy of the comment that
does not contain CBI must be submitted for inclusion in the public
record. Information not marked confidential may be disclosed publicly
by EPA without prior notice. All written comments will be available for
public inspection in Rm. 1132 at the address given above, from 8 a.m.
to 4:30 p.m., Monday through Friday, excluding legal holidays.
Comments and data may also be submitted electronically by sending
electronic mail (e-mail) to: opp [email protected]. Electronic
comments must be submitted as an ASCII file avoiding the use of special
characters and any form of encryption. Comments and data will also be
accepted on disks in WordPerfect in 5.1 file format or ASCII file
format. All comments and data in electronic form must be identified by
the docket number. [OPP-300408]. No Confidential Business Information
(CBI) should be submitted through e-mail. Electronic comments on this
proposed rule may be filed online at many Federal Depository Libraries.
Additional information on electronic submission can be found below in
this document.
FOR FURTHER INFORMATION CONTACT: By mail: Owen F. Beeder, Registration
Division (7505W), Office of Pesticide Programs, Environmental
Protection Agency, 401 M St. SW., Washington, DC 20460. Office location
and telephone number: Sixth Floor, Crystal Station #1, 2800 Jefferson
Davis Highway, Arlington, VA 22202, (703)-308-8351; e-mail:
[email protected].
SUPPLEMENTARY INFORMATION: This document proposes the revocation of
tolerances and food and feed additive regulations (tolerances)
established under sections 408 and 409 of the Federal Food, Drug, and
Cosmetic Act (FFDCA) (21 U.S.C. 346a and 348) for residues of the
herbicides dalapon, diphenamid, sesone, fluchloralin and metobromuron;
the fungicides basic zinc sulfate, glyodin, hexachlorophene and manam;
the insecticide hydrogen cyanide; the plant regulators DNOC and
metachlorphenprop; and the food additive ethyl formate, in or on raw
agricultural commodities (RACs), processed foods, and feeds. EPA is
initiating this action because all registered uses of these pesticide
chemicals in or on RACs and processed foods have been canceled. The
registrations for these pesticide chemicals were canceled because the
registrant failed to pay the required maintenance fee and/or the
registrant voluntarily canceled all registered uses of the pesticide.
Because there are no current food use registrations for any of these 13
pesticide chemicals, EPA proposes to revoke the tolerance and food
additive and feed additive regulations for these pesticide chemicals. A
tolerance, food additive, or feed additive regulation is not generally
necessary for a pesticide chemical that is not registered for a
particular food use. The Agency is not recommending the establishment
of action levels in place of these regulations. Since there are no food
use registrations associated with these tolerances-hence, no legal use
in the United States-and since these pesticides are either not
persistent, or sufficient time has elapsed since their prior use for
residues to dissipate, residues should not appear in any domestically
produced commodities.
Because there no current food use registrations for any of these 13
pesticide chemicals EPA proposes to immediately revoke the tolerances
for all of the pesticides listed above with the exception of dalapon,
diphenamid, glyodin, and DNOC and its sodium salt.
Although no usages in 1992 have been found for the herbicides
dalapon and diphenamid, the fungicide glyodin, and the plant regulater
DNOC and its sodium salt, and their registered products were canceled
over three years ago (except for DNOC, for which the last product was
canceled in February 1993), each of these chemicals still had small
domestic usages on certain crops as late as 1994 and 1995. EPA has
therefore decided to delay the revocation of dalapon, diphenamid,
glyodin and DNOC until May 1, 1999, instead of immediately to allow
domestic growers who may still have stocks on hand to use up their
supplies and permit any treated raw commodities and products processed
from such commodities to move through marketing channels, and,
therefore, result in little or no domestic impacts. EPA is effecting
this delayed revocation by including an expiration date in the
tolerance.
The tolerances, food additive and feed additive regulations listed
in 40 CFR part 180 being proposed for revocation are as follows:
Sec. 180.102 (sesone), Sec. 180.124 (glyodin), Sec. 180.130 (hydrogen
cyanide), Sec. 180.150 (dalapon), Sec. 180.161 (manganous
dimethyldithiocarbamate (manam)), Sec. 180.230 (diphenamid),
Sec. 180.244 (basic zinc sulfate), Sec. 180.250 (metobromuron),
Sec. 180.302 (hexachlorophene), Sec. 180.325 2-(m-Chlorophenoxy)
propionic acid (metachlorphenprop), Sec. 180.344 (4,6-dinitro-o-cresol)
(DNOC), and its sodium salt, Sec. 180.363 (fluchloralin), Sec. 185.2900
(ethyl formate), Sec. 185.1500 (dalapon), and Sec. 186.1500 (dalapon).
Any person who has registered or submitted an application for
registration of a pesticide, under the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA) as amended, which contains any of the
ingredients listed herein, may request within 30 days after publication
of this document in the Federal Register that this rulemaking proposal
be referred to an Advisory Committee in accordance with section 408(e)
of the Federal Food, Drug, and Cosmetic Act (FFDCA).
Interested persons are invited to submit written comments on the
proposed regulation. Further, EPA is soliciting comments from anyone
adversely affected by revocation of these tolerances, exemption from
tolerance, food additive and feed additive regulations. EPA requests
that anyone
[[Page 26862]]
adversely affected by these revocations submit information pertaining
to why and provide specific information as follows: 1. Are there any
existing stocks of the chemical? 2. If so, how much? 3. When will the
stocks be depleted? 4. How long would the commodities treated with
these chemicals be in the channels of trade? 5. Would residues on any
of these pesticide chemicals be present in or on commodities grown in
foreign countries and imported into the United States? Comments must
bear a notation indicating the document control number, [OPP-300408].
All written comments filed in response to this document will be
available for public inspection in the Public Response Section, at the
Virginia address given above, from 8:00 a.m. to 4:30 p.m., Monday
through Friday, except legal holidays.
A record has been established for this rulemaking under docket
number [OPP-300408] (including comments and data submitted
electronically as described below). A public version of this record,
including printed, paper versions of electronic comments, which does
not include any information claimed as CBI, is available for inspection
from 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The public record is located in Rm. 1132 of the Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA.
Electronic comments can be sent directly to EPA at:
opp D[email protected]
Electronic comments must be submitted as an ASCII file avoiding the
use of special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer all comments received electronically into printed,
paper form as they are received and will place the paper copies in the
official rulemaking record which will also include all comments
submitted directly in writing. The official rulemking record is the
paper record maintained at the address in ``ADDRESSES'' at the
beginning of this document.
Regulatory Assessment Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, Oct. 4, 1993), the Agency
must determine whether the regulatory action is ``significant'' and
therefore subject to all the requirements of the Executive Order (i.e.,
Regulatory Impact Analysis, review by the Office of Management and
Budget (OMB)). Under section 3(f), the order defines ``significant'' as
those actions likely to lead to a rule (1) having an annual effect on
the economy of $100 million or more, or adversely and materially
affecting a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local or tribal
governments or communities (also known as ``economically
significant''); (2) creating serious inconsistency or otherwise
interfering with an action taken or planned by another agency; (3)
materially altering the budgetary impacts of entitlement, grants, user
fees, or loan programs; or (4) raising novel legal or policy issues
arising out of legal mandates, the President's priorities, or the
principles set forth in this Executive Order.
Pursuant to the terms of this Executive Order, it has been
determined that this rule is not a ``significant regulatory action''
because it does not meet any of the regulatory-significance criteria
listed above.
B. Regulatory Flexibility Act
This proposed rule has been reviewed under the Regulatory
Flexibility Act of 1980 (Pub. L. 96-354; 94 Stat. 1164, 5 U.S.C. 601 et
seq.) and it has been determined that it will not have an economic
impact on any small businesses, governments, or organizations.
Accordingly, I certify that this proposed rule does not require a
separate regulatory flexibility analysis under the Regulatory
Flexibility Act.
C. Paperwork Reduction Act
This proposed regulatory action does not contain any information
collection requirements subject to review by OMB under the Paperwork
Reduction Act of 1980, 44 U.S.C. 3501 et seq.
D. Unfunded Mandates
This action does not impose any enforceable duty, or contain any
``unfunded mandates'' as described in Title II of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4), or require prior consultation as
specified by Executive Order 12875 (58 FR 58093, October 28, 1993),
entitled Enhancing the Intergovernmental Partnership, or special
consideration as required by Executive Order 12898 (59 FR 7629,
February 16, 1994).
List of Subjects
40 CFR Part 180
Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and Pests Reporting and
recordkeeping requirements.
40 CFR Part 185
Environmental protection, Food Additives, Pesticides and Pests.
40 CFR Part 186
Environmental protection, Animal feeds, Pesticides and Pests.
Dated: May 15, 1996.
Stephen L. Johnson,
Director, Registration Division, Office of Pesticide Programs.
Therefore, it is proposed that chapter I of title 40 of the Code of
Federal Regulations be amended as follows:
PART 180--[AMENDED]
1. In part 180:
a. The authority citation for part 180 continues to read as
follows:
Authority: 21 U.S.C. 346a and 371.
Sec. 180.102 [Removed]
b. By removing Sec. 180.102 Sesone; tolerances for residues.
c. By revising Sec. 180.124 Glyodin; tolerances for residues to
read as follows.
Sec. 180.124 Glyodin; tolerance for residues.
A time-limited tolerance of 5 parts per million, with an expiration
date of May 1, 1999, is established for the residues of the fungicide
glyodin (2-heptadecyl-2-imidazoline acetate or 2-heptadecyl-2-
imidazoline (base) in or on the following raw agricultural commodities:
apples, cherries, peaches, and pears.
Sec. 180.130 [Removed]
d. By removing Sec. 180.130 Hydrogen cyanide; tolerances for
residues.
e. By revising Sec. 180.150 Dalapon; tolerances for residues to
read as follows.
Sec. 180.150 Dalapon; tolerances for residues.
(a) A time-limited tolerance, with an expiration date of May 1,
1999, is established for residues of the herbicide dalapon (2,2-
dichloropropionic acid) resulting from application of dalapon sodium
salt or sodium-magnesium salt mixtures in or on the following raw
agricultural commodities:
------------------------------------------------------------------------
Parts per
Commodity million
------------------------------------------------------------------------
Almonds.................................................... 10
Almonds, hulls............................................. 50
Apples..................................................... 3
Apricots................................................... 1
Asparagus.................................................. 30
[[Page 26863]]
Bananas.................................................... 5
Beans...................................................... 1
Beans, straw............................................... 1
Beets, sugar (roots)....................................... 5
Beets, sugar (tops)........................................ 5
Cattle, mbyp............................................... 0.2
Cattle, meat............................................... 0.2
Coffee beans............................................... 2
Corn, ear, dried (K+C)..................................... 10
Corn, fodder............................................... 5
Corn, forage............................................... 5
Corn, fresh (including sweet K+CWHR)....................... 5
Corn, grain................................................ 10
Cottonseed................................................. 35
Cranberries................................................ 5
Eggs....................................................... 0.3
Flaxseed................................................... 75
Goats, mbyp................................................ 0.2
Goats, meat................................................ 0.2
Grapefruit................................................. 5
Grapes..................................................... 3
Grasses, pasture........................................... 10
Grasses, range............................................. 10
Hogs, mbyp................................................. 0.2
Hogs, meat................................................. 0.2
Lemons..................................................... 5
Limes...................................................... 5
Macadamia nuts............................................. 1
Milk....................................................... 0.1
Oranges.................................................... 5
Peaches.................................................... 15
Pears...................................................... 3
Peas, shelled.............................................. 15
Peas, unshelled............................................ 15
Peas, vine, with pod....................................... 15
Peas, vine, without pod.................................... 15
Pecans..................................................... 0.1
Pineapples................................................. 3
Plums...................................................... 1
Potatoes................................................... 10
Poultry, (excluding kidney)................................ 3
Poultry, kidney............................................ 9
Sheep, mbyp................................................ 0.2
Sheep, meat................................................ 0.2
Sorghum.................................................... 1
Sorghum, forage............................................ 5
Soybeans................................................... 1
Soybeans, straw............................................ 1
Sugarcane.................................................. 0.1
Tangerines................................................. 5
Walnuts.................................................... 5
------------------------------------------------------------------------
(b) A time-limited tolerance, with an expiration date of May 1,
1999, is established for residues of dalapon (2,2-dichloropropionic
acid) resulting from application of dalapon sodium-magnesium salt
mixtures to irrigation ditch banks in the western United States in or
on the following raw agricultural commodities. Where tolerances are
established at higher levels from other uses of dalapon on the subject
crops, the higher tolerance applies also to residues from the
irrigation ditch bank use.
------------------------------------------------------------------------
Parts per
Commodity million
------------------------------------------------------------------------
Avocados................................................... 0.2
Citrus fruits.............................................. 0.2
Cottonseed................................................. 0.2
Cucurbits.................................................. 0.5
Flaxseed................................................... 2.0
Fruits, pome............................................... 0.2
Fruits, small.............................................. 0.2
Fruits, stone.............................................. 0.2
Grain crops (exc wheat).................................... 0.5
Grasses, forage............................................ 2
Hops....................................................... 0.2
Legumes, forage............................................ 2
Nuts....................................................... 0.2
Vegetables, fruiting....................................... 0.2
Vegetables, leafy.......................................... 0.5
Vegetables, root crop...................................... 0.2
Vegetables, seed and pod................................... 0.5
Wheat...................................................... 2
------------------------------------------------------------------------
Sec. 180.161 [Removed]
f. By removing Sec. 180.161 Manganous dimethyldithio-carbamate;
tolerances for residues.
g. By revising Sec. 180.230 Diphenamid; tolerances for residues to
read as follows.
Sec. 180.230 Diphenamid; tolerances for residues.
A time-limited tolerance with an expiration date of May 1, 1999, is
established for the residues of the herbicide dipenamid (N,N,-dimethyl-
2,2-diphenylacetamide) including its desmethyl metabolite N-methyl-2,2-
diphenylacetamide in or on the raw agricultural commodities as follows:
2 parts per million in or on peanut hay and forage.
1 parts per million in or on potatoes and strawberries.
0.5 parts per million in or on peanut hulls and soybean hay and
forage.
0.2 parts per million in or on cotton forage.
0.1 parts per million (negligible residue) in or on apples,
cottonseed, fruiting vegetables, okra, peaches, peanuts, soybeans,
and sweet potatoes.
0.05 parts per million in or on (negligible residue) in meat,
fat, and meat byproducts of cattle, goats, hogs, horses, and sheep.
0.01 parts per million (negligible residue) in milk.
1.0 parts per million in or on raspberries.
Sec. 180.244 [Removed]
h. By removing Sec. 180.244 Basic zinc sulfate; tolerances for
residues.
Sec. 180.250 [Removed]
i. By removing Sec. 180.250 Metobromuron; tolerances for residues.
Sec. 180.325 [Removed]
j. By removing Sec. 180.325 2-(m-Chlorophenoxy) propionic acid;
tolerances for residues.
k. By revising Sec. 180.344 4,6-Dinitro-o-cresol and its sodium
salt; tolerance for residues to read as follows.
Sec. 180.344 4,6-dinitro-o-cresol and its sodium salt; tolerance for
residues.
A time-limited tolerance of 0.2 part per million, with an
expiration date of May 1, 1999, is established for residues of the
plant regulators 4,6-dinitro-o-cresol (DNOC) and its sodium salt in or
on the raw agricultural commodity apples from application to apple
trees at the blossom stage as a fruit-thinning agent.
Sec. 180.363 [Removed]
l. By removing Sec. 180.363 Fluchloralin; tolerances for residues.
PART 185--[AMENDED]
2. In part 185:
a. The authority citation for part 185 continues to read as
follows:
Authority: 21 U.S.C. 346a and 348.
b. By revising Sec. 185.1500 Dalapon; tolerances for residues to
read as follows.
Sec. 185.1500 Dalapon; tolerances for residues.
A time-limited tolerance of 0.2 part per million, with an
expiration date of May 1, 1999, is established for the residues of the
herbicide dalapon (2,2-dichloropropionic acid) in potable water when
present therein as a result of the application of dalapon sodium-
magnesium salt mixtures to irrigation ditch banks in the western United
States.
Sec. 185.2900 [Removed]
c. By removing Sec. 185.2900 Ethyl formate; tolerances for
residues.
PART 186--[AMENDED]
3. In part 186:
a. The authority citation for part 186 continues to read as
follows:
Authority: 21 U.S.C. 348.
b. By revising Sec. 186.1500 Dalapon; tolerances for residues to
read as follows:
Sec. 186.1500 Dalapon; tolerances for residues.
A time-limited tolerance of 20 parts per million, with an
expiration date of May 1, 1999, is established for residues of the
herbicide dalapon (2,2-dichloropropionic acid) in dehydrated citrus
pulp for cattle feed, when present therein as a result of the
application of dalapon sodium salt or dalapon sodium-magnesium salt
mixtures during the growing of citrus fruit.
[FR Doc. 96-13442 Filed 5-28-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-13441 Methyl Esters of Tall-Oil Fatty Acids; Tolerance Exemption
[Federal Register Volume 61, Number 104 (Wednesday, May 29, 1996)]
[Proposed Rules]
[Pages 26859-26861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13441]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[PP 6E04666/P660; FRL-5371-6]
RIN 2070-AC18
Methyl Esters of Tall-Oil Fatty Acids; Tolerance Exemption
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: This document proposes that methyl esters of tall-oil fatty
acids be exempted from the requirement of a tolerance when used as an
inert ingredient (adjuvant) in pesticide formulations. This proposed
regulation was requested by Union Camp Corporation pursuant to the
Federal Food, Drug, and Cosmetic Act (FFDCA).
DATES: Comments, identified by the docket number [PP 6E04666/P660],
must be received on or before June 28, 1996.
ADDRESSES: By mail, submit written comments to: Public Response and
Program Resources Branch, Field Operations Division (7506C), Office of
Pesticide Programs, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460. In person deliver comments to: Rm. 1132, Crystal
Mall #2, 1921 Jefferson Davis Highway, Arlington, VA.
Information submitted as a comment concerning this document may be
claimed confidential by marking any part or all of that information as
``Confidential Business Information'' (CBI). Information so marked will
not be disclosed except in accordance with procedures set forth in 40
CFR part 2. A copy of the comment that does not contain CBI must be
submitted for inclusion in the public record. Information not marked
confidential will be included in the public docket by EPA without prior
notice. The public docket is available for public inspection in Rm.
1132 at the address given above, from 8 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays.
Comments and data may also be submitted electronically by sending
electronic mail (e-mail) to: [email protected]. Electronic
comments must be submitted as an ASCII file avoiding the use of special
characters and any form of encryption. Comments and data will also be
accepted on disks in WordPerfect in 5.1 file format or ASCII file
format. All comments and data in electronic form must be identified by
the docket number, [PP 6E04666/P660]. No CBI should be submitted
through e-mail. Electronic comments on this proposed rule may be filed
online at many Federal Depository Libraries. Additional information on
electronic submissions can be found below in this document.
FOR FURTHER INFORMATION CONTACT: By mail: Bipin Gandhi, Registration
Support Branch, Registration Division (7505W), Office of Pesticide
Programs, Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460. Office location, telephone number, and e-mail address: 2800
Crystal Drive, North Tower, Arlington, VA, (703) 308-8380, e-mail:
[email protected].
SUPPLEMENTARY INFORMATION: Union Camp Corporation, P.O.Box 2668,
Savannah, GA. 31402, has submitted pesticide petition (PP) 6E04666 to
EPA requesting that the Administrator, pursuant to section 408(e) of
the FFDCA, 21 U.S.C. 346a(e), propose to amend 40 CFR 180.1001(c) by
establishing an exemption from the requirement of a tolerance for
methyl esters of tall-oil fatty acids when used as an inert ingredient
(adjuvant) in pesticide formulations applied to growing crops or to raw
agricultural commodities after harvest.
Inert ingredients are all ingredients that are not active
ingredients as defined in 40 CFR 153.125 and include, but are not
limited to, the following types of ingredients (except when they have a
pesticidal efficacy of their own): solvents such as alcohols and
hydrocarbons; surfactants such as polyoxyethylene polymers and fatty
acids; carriers such as clay and diatomaceous earth; thickeners such as
carrageenan and modified cellulose; wetting, spreading, and dispersing
agents; propellants in aerosol dispensers; microencapsulating agents;
and emulsifiers. The term ``inert'' is not intended to imply
nontoxicity; the ingredient may or may not be chemically active.
The data submitted in the petition and other relevant material have
been evaluated. As part of the EPA policy statement on inert
ingredients published in the Federal Register of April 22, 1987 (52 FR
13305), the Agency set forth a list of studies which would generally be
used to evaluate the risks posed by the presence of an inert ingredient
in a pesticide formulation. However, where it can be determined without
that data that the inert ingredient will present minimal or no risk,
the Agency generally does not require some or all of the listed studies
to rule on the proposed tolerance or exemption from the requirement of
a tolerance for an inert ingredient. The Agency has decided that no
data, in addition to that described below, for methyl esters of tall-
oil fatty acids will need to be submitted. The rationale for this
decision is described below:
(1) Tall-oil fatty acids are exempted from the requirement of a
tolerance under 40 CFR 180.1001(c) as ``Tall-oil; fatty acids not less
than 58 percent, rosin acids not more than 44 percent, unsaponifiables
not more than 8 percent.''
[[Page 26860]]
(2) Methyl esters of tall-oil fatty acids are prepared from tall-
oil fatty acids. These methyl esters degrade to tall-oil fatty acids
and therefore, are considered no more toxic than the corresponding
tall-oil fatty acids.
(3) Methyl esters (distilled) of tall-oil fatty acids contain 1 to
5 percent rosin acids and 2 percent unsaponifiables and are therefore
expected to be less toxic compared to the maximum permitted levels of
44 percent rosin acids and 8 percent unsaponifiables respectively for
tall-oil fatty acids specified under 40 CFR 180.1001(c).
Based upon the above information and review of its use, EPA has
found that, when used in accordance with good agricultural practice,
this ingredient is useful and a tolerance is not necessary to protect
the public health. Therefore, EPA proposes that the exemption from the
requirement of a tolerance be established as set forth below.
Any person who has registered or submitted an application for
registration of a pesticide, under the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA) as amended, which contains any of the
ingredients listed herein, may request within 30 days after publication
of this document in the Federal Register that this proposal be referred
to an Advisory Committee in accordance with section 408(e) of FFDCA.
Interested persons are invited to submit written comments on the
proposed regulation. Comments must bear a notation indicating the
docket number, [PP 6E04666/P660].
A record has been established for this rulemaking under docket
number [PP 6E04666/P660] (including comments and data submitted
electronically as described below). A public version of this record,
including printed, paper versions of electronic comments, which does
not include any information claimed as CBI, is available for inspection
from 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The public record is located in Room 1132 of the Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA.
Electronic comments can be sent directly to EPA at:
[email protected]
Electronic comments must be submitted as an ASCII file avoiding the
use of special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer all comments received electronically into printed,
paper form as they are received and will place the paper copies in the
official rulemaking record which will also include all comments
submitted directly in writing. The official rulemaking record is the
paper record maintained at the address in ``ADDRESSES '' at the
beginning of this document.
The Office of Management and Budget has exempted this proposed rule
from the requirements of section 3 of Executive Order 12866.
This action does not impose any enforceable duty, or contain any
``unfunded mandates'' as described in Title II of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4), or require prior consultation as
specified by Executive Order 12875 (58 FR 58093, October 28, 1993),
entitled Enhancing the Intergovernmental Partnership, or special
consideration as required by Executive Order 12898 (59 FR 7629,
February 16, 1994).
Pursuant to the requirements of the Regulatory Flexibility Act
(Pub. L. 96-3 54, 94 Stat. 1164, 5 U.S.C. 601-612), the Administrator
has determined that regulations establishing new tolerances or raising
tolerance levels or establishing exemptions from tolerance requirements
do not have a significant economic impact on a substantial number of
small entities. A certification statement to this effect was published
in the Federal Register of May 4, 1981 (46 FR 24950).
List of Subjects in 40 CFR Part 180
Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.
Dated: May 16, 1996.
Stephen L. Johnson,
Director, Registration Division, Office of Pesticide Programs.
Therefore, it is proposed that 40 CFR part 180 be amended as
follows:
PART 180--[AMENDED]
1. The authority citation for part 180 continues to read as
follows:
Authority: 21 U.S.C. 346a and 371.
2. In Sec. 180.1001, the table to paragraph (c) is amended by
adding alphabetically the inert ingredient ``Methyl esters of tall-oil
fatty acids,'' to read as follows:
Sec. 180.1001 Exemptions from the requirements of a tolerance.
* * * * *
------------------------------------------------------------------------
Ingredients Limits Uses
------------------------------------------------------------------------
* * * * * * *
Methyl esters of tall-oil .............. Adjuvant
fatty acids. (Fatty acids
not less than 58 percent,
rosin acids not less than 44
percent unsaponifiables not
less than 8 percent).
* * * * * * *
------------------------------------------------------------------------
[[Page 26861]]
[FR Doc. 96-13441 Filed 5-28-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-13435 Drinking Water; National Primary Drinking Water Regulations; Enhanced Surface Water Treatment Requirements
[Federal Register Volume 61, Number 104 (Wednesday, May 29, 1996)]
[Proposed Rules]
[Pages 26857-26858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13435]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 141 and 142
[WH-FRL-5511-6]
Drinking Water; National Primary Drinking Water Regulations;
Enhanced Surface Water Treatment Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Announcement of extension of public comment period.
-----------------------------------------------------------------------
SUMMARY: In this notice, EPA is announcing an extension of the public
comment period for the National Primary Drinking Water Regulations
(NPDWR) for the Enhanced Surface Water Treatment Regulations (ESWTR)
(59 FR 38832, July 29, 1994). The NPDWR consists of a set of regulatory
options related to treatment techniques for microbiological pathogens.
The NPDWR also includes proposed monitoring, reporting, and public
notification requirements for these compounds. The comment period is
being extended from May 30, 1996 until August 30, 1996.
DATES: Comments should be postmarked or delivered by hand on or before
August 30, 1996. Comments received after this date may not be
considered.
ADDRESSES: Send written comments to the ESWTR Docket Clerk, Water
Docket (MC-4101); U.S. Environmental Protection Agency; 401 M Street,
SW., Washington, DC 20460, or hand deliver to the Water Docket, Room
2616, Waterside Mall, 401 M Street, SW., Washington, DC.
The proposed rule with supporting documents and all comments
received are available for review at the Water Docket at the address
above. For access to Docket materials, call (202) 260-3027 between 9 am
and 3:30 pm for an appointment.
FOR FURTHER INFORMATION CONTACT:
General information may be obtained from the Safe Drinking Water
Hotline, telephone (800) 426-4791; Stig Regli, Office of Ground Water
and Drinking Water (4603), U.S. Environmental Protection Agency, 401 M
Street, SW., Washington, DC 20460, telephone (202) 260-7379; or Paul
Berger, Office of Ground Water and Drinking Water (4603), U.S.
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460, telephone (202) 260-3039.
SUPPLEMENTARY INFORMATION: On July 29, 1994 EPA proposed two drinking
water regulations: the Disinfectant/Disinfection Byproducts (D/DBP) and
[[Page 26858]]
Enhanced Surface Water Treatment (ESWTR) rules. These proposals were
the product of a negotiated rulemaking. The negotiators included State
and local health and regulatory agency staff and elected officials,
consumer groups, environmental groups, and representatives of public
water systems.
The group agreed to propose a disinfectant/disinfection byproduct
rule to extend coverage to all community and non-transient, non-
community water systems that use disinfectants, reduce the current
total trihalomethane (TTHM) maximum contaminant level (MCL), regulate
additional disinfection byproducts, set limits for the use of
disinfectants, and reduce the level of compounds that may react with
disinfectants to form byproducts. The group further agreed that
revisions to the current Surface Water Treatment Rule might be required
at the same time to ensure that microbial risk is not increased as
byproduct rules go into effect, and to provide explicit control of
Cryptosporidium. As a result, the Enhanced Surface Water Treatment Rule
was proposed with a number of options for microbial control, including
the option to simply retain the requirements of the current Surface
Water Treatment Rule. Data being collected through a separate
Information Collection Rule (May 14, 1996, 61 FR 24354) and a research
program will be used to identify the appropriate option.
The comment period for submission of formal written comments in
response to the D/DBPR rule closed on December 29, 1994. The comment
period for formal written comments in response to the ESWTR rule was
listed in the proposed rule as closing on May 30, 1996. The reason a
longer time was allowed for comments on the ESWTR was to allow time for
the public to consider data being collected under the Information
Collection Rule and the research program prior to that date. Due to
delays in the initiation of data collection, the May 30, 1996 date no
longer allows commenters time to consider the results of any of those
data.
The Agency believes it would be useful to allow the public
additional time in which to review the final Information Collection
Rule and provide comments on its implications for the ESWTR. The Agency
would also like to obtain comments on the ESWTR which are independent
of the collection of subsequent data so that analysis of those comments
may begin on a timely basis. An extension until August 30, 1996 in
essence gives commenters 90 days to file those comments. Once at least
eight months of data collected under the Information Collection Rule
have been collected and analyzed, the Agency will issue a Notice of
Availability providing its analysis of the data and its recommendation
for the appropriate regulatory option for the ESWTR. At that time, the
Agency will reopen the public comment period for the ESWTR so that
commenters can consider the data and EPA's analysis.
Please submit any references cited in your comments. EPA would
appreciate an original and three copies of your comments and enclosures
(including references). Commenters who want EPA to acknowledge receipt
of their comments should include a self-addressed, stamped envelope. No
facsimiles (faxes) will be accepted because EPA cannot ensure that they
will be submitted to the Water Docket. To ensure that EPA can read,
understand and therefore properly respond to comments, the Agency would
prefer that commenters type or print comments in ink, and cite, where
possible, the paragraph(s) in the proposed regulation (eg., 141.76(b))
to which each comment refers. Commenters should use a separate
paragraph for each method or issue discussed.
Dated: May 21, 1996.
Robert Perciasepe,
Assistant Administrator.
[FR Doc. 96-13435 Filed 5-28-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-13423 Proposed amendment to Class E Airspace; Rochester, MN
[Federal Register Volume 61, Number 104 (Wednesday, May 29, 1996)]
[Proposed Rules]
[Pages 26854-26856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13423]
-----------------------------------------------------------------------
[[Page 26855]]
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 96-AGL-1]
Proposed amendment to Class E Airspace; Rochester, MN
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice proposes to amend the Class E airspace at
Rochester, MN. Additional controlled airspace is required for the
Copter GPS 325 degrees approach procedure to St. Mary's Hospital
Heliport. Controlled Airspace extending upward from 700 to 1200 feet
above ground level (AGL) is needed for aircraft executing the
approach..
DATES: Comment must be received on or before June 30, 1996.
ADDRESSES: Send comments on the proposal in triplicate to: Federal
Aviation Administration, Office of the Assistant Chief Counsel, AGL-7,
Rules Docket No. 96-AGL-1, 23000 East Devon Avenue, Des Plaines,
Illinois 60018.
The official docket may be examined in the Office of the Assistant
Chief Counsel, Federal Aviation Administration, 2300 East Devon Avenue,
Des Plaines, Illinois. An informal docket may also be examined during
normal business hours at the Air Traffic Division, Operations Branch,
Federal Aviation Administration, 2300 East Devon Avenue, Des Plaines,
Illinois.
FOR FURTHER INFORMATION CONTACT:
John A. Clayborn, Air Traffic Division, Operations Branch, AGL-530,
Federal Aviation Administration, 2300 East Devon Avenue, Des Plaines,
Illinois 60018, telephone (847) 294-7459.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested partiers are invited to participate in this proposed
rulemaking by submitting such written data, views, or agruments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify the airspace docket number and be
submitted in triplicate to the address listed above. Commenters wishing
the FAA to acknowledge receipt of their comments on this notice must
submit with those comments a self-addressed, stamped postcard on which
the following statment is made: ``Comments to Airspace Docket No. 96-
AGL-1.'' The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the specified
closing date for comments will be considered before taking action on
the proposed rule. The proposal contained in this notice may be changed
in light of comments received. All comments submitted will be available
for examination in the Rules Docket, FAA, Great Lakes Region, Office of
the Assistant Chief Counsel, 2300 East Devon Avenue, Des Plaines,
Illinois, both before and after the closing date for comments. A report
summarizing each substantive public contact with FAA personnel
concerned with this rulemaking will be filed in this docket.
Availability of NPRM's
Any person may obtain a copy of the Notice of Proposed Rulemaking
(NPRM) by submitting a request to the Federal Aviation Administration,
Office of Public Affairs, Attention: Public Inquiry Center, APA-230,
800 Independence Avenue, S.W., Washington, DC 20591, or by calling
(202) 267-3484. Communications must identify the notice number of this
NPRM. Persons interested in being placed on a mailing list for future
NPRM's should also request a copy of Advisory Circular No. 11-2A, which
describes the application procedure.
The Proposal
The FAA is considering an amendment to part 71 of the Federal
Aviation Regulations (14 CFR part 71) to amend Class E airspace at
Rochester, MN. This proposal would provide adequate Class E airspace
for IFR operators executing the Copter GPS 325 degrees approach
procedure to St. Mary's Hospital Heliport. Controlled airspace
extending upward from 700 to 1200 feet AGL is needed to contained
aircraft executing the approach. The area would be depicted on
appropriate aeronautical charts thereby enabling pilots to
circumnavigate the area or otherwise comply with IFR procedures. Class
E airspace designations for airspace areas extending upward from 700
feet or more above the surface of the earth are published in paragraph
6005 of FAA Order 7400.9C dated August 17, 1995, and effective
September 16, 1995, which is incorporated by reference in 14 CFR 71.1.
The Class E. airspace designation listed in this document would be
published subsequently in the Order.
The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore this, proposed regulation--(1) is not a ``significant
regulatory action' under Executive Order 12866; (2) is not a
``significant rule'' under DOT Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3) does not warrant preparation of a
Regulatory Evaluation as the anticipated impact is so minimal. Since
this is a routine matter that will only affect air traffic procedures
and air navigation, it is certified that this proposed rule will not
have a significant economic impact on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me, the Federal
Aviation administration proposes to amend part 71 of the Federal
Aviation Regulations (14 CFR part 71) as follows:
PART 71--[AMENDED]
1. The authority citation for part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E airspace areas extending from 700 feet or
more above the surface of the earth.
* * * * *
AGL MN E5 Rochester, MN [Revised]
Rochester International Airport, MN
(lat. 43 deg.54'32''N, long. 92 deg.29'53''W)
St. Mary's Hospital Heliport, MN
(lat. 44 deg.01'11''N, long 92 deg.28'59''W)
Rocester VOR/DME
(lat. 43 deg.46'58''N, long. 92 deg.35'49''W)
That airspace extending upward for 700 feet above the surface
within a 6.7-mile radius of the Rochester International Airport and
within 3.2 miles each side of the Rochester VOR/DME 028 radial
extending from the 6.7-mile radius to 7.9 miles southwest of the
airport, within 5.3 miles southwest and 4 miles northeast of the
Rochester northwest localizer course extending from the 6.7-mile
radius to 20 miles northwest of the airport, within 5.3
[[Page 26856]]
miles northeast and 4 miles southwest of the Rochester southeast
localizer course extending from the 6.7-mile radius to 17.3 miles
southeast of the airport and within a 6.4 mile radius of the St.
Mary's Hospital Heliport.
* * * * *
Issued in Des Plaines, Illinois on May 14, 1996.
Jeffrey L. Griffith,
Acting Manger, Air Traffic Division.
[FR Doc. 96-13423 Filed 5-28-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-13421 Revision of Class E Airspace; Delta County Airport, Escanaba, MI
[Federal Register Volume 61, Number 104 (Wednesday, May 29, 1996)]
[Proposed Rules]
[Pages 26856-26857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13421]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 96-AGL-3]
Revision of Class E Airspace; Delta County Airport, Escanaba, MI
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice proposes to revise the Class E2 airspace to
accommodate the addition of an Automatic Weather Observation System
(AWOS-3) at Delta County Airport, Escanaba, MI, to operate turbo-jet
charter service on a 24 hour basis.
DATES: Comments must be received on or before June 30, 1996.
ADDRESSES: Send comments on the proposal in triplicate to: Federal
Aviation Administration, Office of the Assistant Chief Counsel, AGL-7,
Rules Docket No. 96-AGL-3, 2300 East Devon Avenue, Des Plaines,
Illinois 60018.
The official docket may be examined in the Office of the Assistant
Chief Counsel, Federal Aviation Administration, 2300 East Devon Avenue,
Des Plaines, Illinois. An informal docket may also be examined during
normal business hours at the Air Traffic Division, Operations Branch,
Federal Aviation Administration, 2300 East Devon Avenue, Des Plaines,
Illinois.
FOR FURTHER INFORMATION CONTACT:
John A. Clayborn, Air Traffic Division, Operations Branch, AGL-530,
Federal Aviation Administration, 2300 East Devon Avenue, Des Plaines,
Illinois 60018, telephone (847) 294-7568.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify the airspace docket number and be
submitted in triplicate to the address listed above. Commenters wishing
the FAA to acknowledge receipt of their comments on this notice must
submit with those comments a self-addressed, stamped postcard on which
the following statement is made: ``Comments to Airspace Docket No. 96-
AGL-3.'' The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the specified
closing date for comments will be considered before taking action on
the proposed rule. The proposal contained in this notice may be changed
in light of comments received. All comments submitted will be available
for examination in the Rules Docket, FAA, Great Lakes Region, Office of
the Assistant Chief Counsel, 2300 Devon Avenue, Des Plaines, Illinois,
both before and after the closing date for comments. A report
summarizing each substantive public contact with FAA personnel
concerned with this rulemaking will be filed in the docket.
Availability of NPRM's
Any person may obtain a copy of the Notice of Proposed Rulemaking
(NPRM) by submitting a request to the Federal Aviation Administration,
Office of Public Affairs, Attention: Public Inquiry Center, APA-230,
800 Independence Avenue, S.W., Washington, DC 20591, or by calling
(202) 267-3484. Communications must identify the notice number of this
NPRM. Persons interested in being placed on a mailing list for future
NPRM's should also request a copy of Advisory Circular No. 11-2A, which
describes the application procedure.
The Proposal
The FAA is considering an amendment to part 71 of the Federal
Aviation Regulations (14 CFR part 71) to revise the Class E2 airspace
to accommodate the addition of an Automatic Weather Observation System
(AWOS-3) at Delta County Airport, Escanaba, MI, to operate turbo-jet
charter service on a 24 hour basis. The area would be depicted on
appropriate aeronautical charts thereby enabling pilots to
circumnavigate the area or otherwise comply with IFR procedures. Class
E2 airspace designations for surface areas are published in paragraph
6002 of FAA Order 7400.9C dated August 17, 1995, and effective
September 16, 1995, which is incorporated by reference in 14 CFR 71.1.
The Class E2 airspace designation listed in this document would be
published subsequently in the Order.
The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore this, proposed regulation--(1) is not a ``significant
regulatory action'' under Executive Order 12866; (2) is not a
``significant rule'' under DOT Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3) does not warrant preparation of a
Regulatory Evaluation as the anticipated impact is so minimal. Since
this is a routine matter that will only affect air traffic procedures
and air navigation, it is certified that this proposed rule will not
have a significant economic impact on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me, the Federal
Aviation Administration proposes to amend part 71 of the Federal
Aviation Regulations (14 CFR part 71) as follows:
PART 71--[AMENDED]
1. The authority citation for part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6002 The Class E airspace areas designated as a surface
area for an airport.
* * * * *
AGL MI E2 Escanaba, MI [Revised]
Escanaba, Delta County Airport, MI
(lat. 45 deg.43'18''N., long. 87 deg.05'40''W.)
Escanaba VORTAC
(lat. 45 deg.43'21''N., long. 87 deg.05'23''W.)
Within a 4.2-mile radius of the Escanaba VORTAC, and within 2.6
miles each side of the Escanaba VORTAC 007 radial, extending from
the 4.2-mile radius to 7.4 miles northeast, and within 2.6 miles
each side of
[[Page 26857]]
the Escanaba VORTAC 101 radial, extending from the 4.2-mile radius
to 7.4 miles east, and within 2.6 miles each side of the Escanaba
VORTAC 266 radial extending from the 4.2-mile radius to 7 miles west
of the VORTAC.
* * * * *
Issued in Des Plaines, Illinois on May 6, 1996.
Maureen Woods,
Acting Manager, Air Traffic Division.
[FR Doc. 96-13421 Filed 5-28-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-13419 Testing of Obstruction Lights and Fog Signals on Offshore Facilities
[Federal Register Volume 61, Number 104 (Wednesday, May 29, 1996)]
[Proposed Rules]
[Page 26857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13419]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 67
[CGD 95-052]
RIN 2115-AF15
Testing of Obstruction Lights and Fog Signals on Offshore
Facilities
AGENCY: Coast Guard, DOT.
ACTION: Notice of termination and withdrawal.
-----------------------------------------------------------------------
SUMMARY: This rulemaking project was initiated as part of the
President's Regulatory Reinvention Initiative (PRRI). It was intended
to improve the quality of tests performed on obstruction lights and fog
signals, while reducing the administrative burden on the public, and
minimizing costs borne by the Coast Guard. Comments to the rulemaking
raised several substantial issues which require further study.
Therefore, the Coast Guard is terminating further rulemaking under
docket number 95-052.
FOR FURTHER INFORMATION CONTACT:
LTJG Chad Asplund, Project Manager, Short Range Aids to navigation
Division, U.S. Coast Guard Headquarters, (202) 267-1386.
SUPPLEMENTARY INFORMATION: On January 10, 1996, the Coast Guard
published a notice requesting comments in the Federal Register (61 FR
708). The notice asked (1) whether the flash characteristics of
obstruction lights should be changed from a quick-flashing rhythm to a
Morse ``U''; (2) whether the candlepower requirements on obstruction
lighting should be adapted to the new transmissivity tables developed
by the Coast Guard; and (3) whether lights and fog signals should be
tested independent laboratories rather than by the Coast Guard.
On March 27, 1996, the Coast Guard published a notice of proposed
rulemaking (NPRM) in the Federal Register (61 FR 13472). The Coast
Guard proposed a new rule on only one of the three issues investigated
in the notice, specifically, that lights and fog signals would be
tested by independent laboratories rather than by the Coast Guard.
The NPRM's approach was in keeping with the goals of the PRRI to
make government work better and cost less by finding ways to reduce
financial and regulatory burdens on industry while improving
governmental efficiency. It proposed to achieve this by (1)
consolidating permit applications in headquarters rather than requiring
an application to each Coast Guard district; and (2) having independent
laboratories test all devices and submit the results to the Coast Guard
rather than requiring Coast Guard involvement in the testing of lights
or fog signals. In spite of the Coast Guard's intent to reduce burdens,
comments indicated that the NPRM, as proposed, was too general to
accomplish either the project's goals or the goals of PRRI.
Specifically, comments questioned how independent laboratories
would be designated or certified by the Coast Guard, and what standards
would be used by the independent laboratories in evaluating lights and
fog signals. Comments also expressed concern over the timetable for
implementation, with several pointing out that retrofitting all
existing structures would impose a high cost on the regulated community
without providing any proven reduction in risk.
The Coast Guard has determined that the concerns raised by the
comments to this docket require further examination of this area before
any rulemaking is undertaken. The Coast Guard seeks to promulgate rules
that will improve maritime safety while accomplishing PRRI goals.
Because the current rulemaking may do neither, the Coast Guard is
terminating further rulemaking under docket number 95-052 but will
continue to investigate the feasibility of implementing these concepts
in the future.
Dated: May 17, 1996.
Rudy K. Peschel,
Rear Admiral, U.S. Coast Guard, Chief, Office of Navigation Safety and
Waterway Services.
[FR Doc. 96-13419 Filed 5-28-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-13407 Importation of Animals and Animal Products; Public Hearings
[Federal Register Volume 61, Number 104 (Wednesday, May 29, 1996)]
[Proposed Rules]
[Pages 26849-26850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13407]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 /
Proposed Rules
[[Page 26849]]
DEPARTMENT OF AGRICULTURE
9 CFR Parts 92, 93, 94, 95, 96, and 98
[Docket No. 94-106-3]
RIN O579-AA71
Importation of Animals and Animal Products; Public Hearings
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Notice of public hearings.
-----------------------------------------------------------------------
SUMMARY: We are advising the public that the Animal and Plant Health
Inspection Service is hosting three additional public hearings on the
proposed rule on the importation of animals and animal products that
was published in the Federal Register on April 18, 1996. One hearing
has already been held in Riverdale, MD. The hearings will provide an
additional opportunity for the public to comment on the proposal, which
would establish criteria for foreign ``regions'' based on risk class
levels. The criteria would be used to establish importation
requirements for particular animals and animal products from different
regions outside the United States.
DATES: The public hearings will be held in Atlanta, GA, on June 17 and,
if there are more registered speakers than can be heard in one day, on
June 18; in Kansas City, MO, on June 26 and, if there are more
registered speakers than can be heard in one day, on June 27; and in
Denver, CO, on July 1, and, if there are more registered speakers than
can be heard in one day, on July 2. Each public hearing will begin at 9
a.m. and is scheduled to end at 5 p.m each day.
ADDRESSES: The public hearings will be held at the following locations:
1. Atlanta, GA: Peachtree Summit Federal Center, Conference Rooms A and
B, 401 W. Peachtree Street, N.E., Atlanta, GA. Picture identification
is required. A pay parking garage is adjacent to the building.
2. Kansas City, MO: Richard Boling Federal Building, Room 111, 601 East
12th Street, Kansas City, MO. Enter from 12th or 13th Street. Picture
identification is required. Pay parking is available across the street
from the building.
3. Denver, CO: Denver Federal Center, Building 25, Lecture Halls A and
B, 6th and Kipling, Denver, CO. Enter through door E2. Picture
identification is required. Pay parking is available on the east side
of the building.
FOR FURTHER INFORMATION CONTACT: Dr. Gary Colgrove, Chief Staff
Veterinarian, National Center for Import and Export, VS, APHIS, 4700
River Road Unit 38, Riverdale, MD 20737-1231, (301) 734-8590.
SUPPLEMENTARY INFORMATION:
Background
Three additional public hearings will be held on the proposed rule
on the importation of animals and animal products, published by the
Animal and Plant Health Inspection Service (APHIS) in the Federal
Register on April 18, 1996 (61 FR 16977-17105, Docket No. 94-106-1).
One hearing has already been held in Riverdale, MD. The additional
public hearings will be held in Atlanta, GA, on June 17 and, if there
are more registered speakers than can be heard in one day, on June 18;
in Kansas City, MO on June 26 and, if there are more registered
speakers than can be heard in one day, on June 27; and in Denver, CO on
July 1, and, if there are more registered speakers than can be heard in
one day, on July 2.
A representative of APHIS will preside at the public hearings. Any
interested party may appear and be heard in person, or through an
attorney or other representative. We are interested in obtaining the
views of the public on all aspects of the proposed rule. Each hearing
will begin with a brief informational presentation explaining the
background, content and organization of the proposed rule.
Persons who wish to speak at the hearings will be asked to provide
their names and affiliations. Parties wishing to make oral
presentations may register in advance by either: (1) Calling the
Regulatory Analysis and Development voice mail at (301) 734-4346 and
leaving a message stating their name, telephone number, and
organization, the location of the hearing at which they wish to speak,
and the approximate time necessary for their presentation; or (2)
providing the above information by electronic mail to
[email protected]. Parties responding by e-mail may wish to
use the electronic response registration form available at the APHIS
Regionalization Proposal Web Page. A list of persons registered to
speak at each hearing will also be posted to the Web page shortly
before the hearing. The Web page URL is http://www.aphis.usda.gov/PPD/
region. Registration will also be held for each hearing at that hearing
site between 8 a.m. and 8:45 a.m on the day of the hearing. Speakers
will be scheduled in the order their registration is received. Advance
registrations for the hearings must be transmitted to APHIS no later
than the following:
1. Atlanta, GA: 5 p.m., d.s.t., June 12, 1996;
2. Kansas City, MO: 5 p.m., d.s.t., June 21, 1996; and
3. Denver, CO: 5 p.m., d.s.t., June 29, 1996.
The hearings will begin at 9 a.m. of the first day of each hearing.
The session on the second day of each hearing will be held only if
speakers who have registered for the first day have not yet had a
chance to speak. The hearings are scheduled to end at 5 p.m. each day
that they are held, but may conclude at any time if all persons
desiring to speak have been heard. The hearing officer may limit the
time for each presentation so that all interested persons have an
opportunity to participate. Attendees who wish to speak but who did not
register will be provided time to speak only after all registered
speakers have been heard.
We ask that anyone who reads a written statement provide two copies
to the presiding officer at the hearing. A transcript will be made of
the public hearings and the transcript will be placed in the rulemaking
record and will be available for public inspection.
The purpose of the public hearings is to give all interested
parties an opportunity to present data, views, and information to the
Department concerning this proposed rule. Questions about the content
of the proposal may be part of a commenter's oral presentation.
However, neither the presiding officer nor any other representative of
the Department will respond to the comments at the
[[Page 26850]]
hearings, except to clarify or explain the proposed rule.
Done in Washington, DC, this 22nd day of May 1996.
Donald Husnik,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-13407 Filed 5-28-96; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 96-13406 Change in Disease Status of Spain Because of African Swine Fever
[Federal Register Volume 61, Number 104 (Wednesday, May 29, 1996)]
[Proposed Rules]
[Pages 26850-26852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13406]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 94
[Docket No. 96-025-1]
Change in Disease Status of Spain Because of African Swine Fever
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We are proposing to declare Spain free of African swine fever.
Declaring Spain free of African swine fever appears to be appropriate
because there have been no confirmed outbreaks of African swine fever
in Spain since September 1994. This proposed rule would relieve
restrictions on the importation of pork and pork products into the
United States from Spain. However, because Spain shares common land
borders with countries affected by certain swine diseases and because
Spain, as a member state of the European Union, has certain trade
practices that are less restrictive than are acceptable to the United
States, the importation into the United States of pork and pork
products from Spain would continue to be subject to certain
restrictions.
DATES: Consideration will be given only to comments received on or
before July 29, 1996.
ADDRESSES: Please send an original and three copies of your comments to
Docket No. 96-025-1, Regulatory Analysis and Development, PPD, APHIS,
suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please
state that your comments refer to Docket No. 96-025-1. Comments
received may be inspected at USDA, room 1141, South Building, 14th
Street and Independence Avenue SW., Washington, DC, between 8 a.m. and
4:30 p.m., Monday through Friday, except holidays. Persons wishing to
inspect comments are requested to call ahead on (202) 690-2817 to
facilitate entry into the comment reading room.
FOR FURTHER INFORMATION CONTACT: Dr. John Cougill, Staff Veterinarian,
Products Program, National Center for Import and Export, VS, APHIS,
4700 River Road Unit 40, Riverdale, MD 20737-1231, (301) 734-8688; or
e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
Background
The regulations in 9 CFR part 94 (referred to below as the
regulations) govern the importation into the United States of specified
animals and animal products in order to prevent the introduction into
the United States of various animal diseases, including rinderpest,
foot-and-mouth disease, bovine spongiform encephalopathy, swine
vesicular disease, hog cholera, and African swine fever (ASF). These
are dangerous and destructive communicable diseases of ruminants and
swine.
Section 94.8 of the regulations provides that ASF exists or is
reasonably believed to exist in all the countries of Africa, Brazil,
Cuba, Haiti, Italy, Malta, Portugal, and Spain. We will consider
declaring a country to be free of ASF if there have been no reported
cases of the disease in that country for at least the previous 1-year
period. The last case of ASF in Spain occurred in September 1994. The
Government of Spain has requested that the U.S. Department of
Agriculture (USDA) recognize Spain to be free of ASF.
The Animal and Plant Health Inspection Service (APHIS) has reviewed
the documentation submitted by the Government of Spain in support of
its request. A team of APHIS officials traveled to Spain in July 1994
to conduct an on-site evaluation of Spain's animal health program with
regard to African horse sickness. The evaluation consisted of a review
of Spain's veterinary services, laboratory and diagnostic procedures,
vaccination practices, and administration of laws and regulations
intended to prevent the introduction of communicable animal diseases
into Spain. We believe that the July 1994 on site evaluation was
sufficient to provide APHIS with a complete picture of Spain's animal
health program with regard to ASF, as well. Therefore, we have used the
findings of the July 1994 on-site evaluation as part of the basis for
this proposed rule. (Details concerning the July 1994 on-site
evaluation are available upon written request from the person listed
under FOR FURTHER INFORMATION CONTACT.)
Based on the information discussed above, we are proposing to amend
Sec. 94.8 of the regulations by removing Spain from the list of
countries where ASF exists or is reasonably believed to exist. This
action would relieve certain restrictions on the importation of pork
and pork products into the United States from Spain, including
restrictions on the importation of live swine and fresh pork and pork
products. This action would also eliminate requirements on the curing
time for Spanish hams and other pork products offered for importation
into the United States from Spain.
However, the importation of pork and pork products into the United
States from Spain would continue to be subject to certain restrictions
because Spain appears in the list of countries in Sec. 94.11 that have
been declared free of rinderpest and foot-and-mouth disease (FMD), but
from which the importation of pork and pork products is restricted, and
Spain appears in the list of countries in Sec. 94.13 that have been
declared free of swine vesicular disease (SVD), but from which the
importation of pork and pork products is restricted. The countries
listed in Secs. 94.11 and 94.13 are subject to these restrictions
because they: (1) Supplement their national pork supply by importing
fresh, chilled, or frozen pork from countries where rinderpest, FMD, or
SVD, respectively, is considered to exist; (2) have a common border
with countries where rinderpest, FMD, or SVD, respectively, is
considered to exist; or (3) have certain trade practices that are less
restrictive than are acceptable to the United States. Spain shares
common land borders with France, a country affected by SVD, and
Portugal, a country affected by rinderpest, FMD, and SVD. Additionally,
as a member state of the European Union (EU), Spain trades without
restrictions with other member states of the EU that are affected by
rinderpest, FMD, and/or SVD. These trade practices could allow live
swine, pork, or pork products produced in Spain to be commingled with
live swine, pork, or pork products from a country affected by
rinderpest, FMD, and/or SVD, resulting in an undue risk of the
introduction of these diseases into the United States. As such, pork
and pork products, as well as any ship's stores, airplane meals, and
baggage containing such pork, offered for importation into the United
States from Spain would be subject to the restrictions specified in
Secs. 94.11 and 94.13 of the regulations and to the applicable
requirements contained in the regulations of the USDA's Food Safety and
Inspection Service (FSIS) at 9 CFR chapter III. Sections 94.11 and
94.13 generally require that pork and pork products be: (1) Prepared in
an
[[Page 26851]]
inspected establishment that is eligible to have its products imported
into the United States under the Federal Meat Inspection Act; and (2)
accompanied by an additional certification from a full-time salaried
veterinary official of the national government of the exporting
country, stating that the pork or pork product has not been commingled
with or exposed to meat or other animal products originating in,
imported from, or transported through a country in which rinderpest,
FMD, or SVD, respectively, is considered to exist.
Executive Order 12866 and Regulatory Flexibility Act
This proposed rule has been reviewed under Executive Order 12866.
For this action, the Office of Management and Budget has waived its
review process required by Executive Order 12866.
In accordance with 5 U.S.C. 603, we have performed an Initial
Regulatory Flexibility Analysis, which is set out below, regarding the
impact of this proposed rule on small entities. However, we do not
currently have all the data necessary for a comprehensive analysis of
the effects of this proposed rule on small entities. Therefore, we are
inviting comments on potential effects. In particular, we are
interested in determining the number and kind of small entities that
may incur benefits or costs from the implementation of this proposed
rule.
In accordance with 21 U.S.C. 111-113, 114a, 115, 117, 120, 123, and
134a, the Secretary of Agriculture has the authority to promulgate
regulations and take measures to prevent the introduction into the
United States, and the interstate dissemination within the United
States, of communicable diseases of livestock and poultry.
This proposed rule would amend the regulations in part 94 by
removing Spain from the list of countries where ASF exists or is
reasonably believed to exist. This action would relieve certain
restrictions on the importation of live swine, pork, and pork products
into the United States from Spain. However, because of Spain's
proximity to France and Portugal (countries affected by serious swine
diseases) and Spain's trading practices as a member state of the
European Union, other requirements would continue to restrict the
importation of pork and pork products from Spain.
In 1992, the majority (approximately 96.3 percent) of all hog and
pig farmers in the United States qualified as small entities. However,
the impact of relieving restrictions on live swine imports from Spain
on these producers is expected to be minimal because the swine industry
of Spain is relatively small compared to the market in the United
States. In 1994, swine production in Spain was estimated to be 26.7
million head, compared to swine production in the United States of over
100 million head. Also, in 1994, Spain exported a little more than 0.5
million live swine, or less than 2 percent of its total swine
production, and all of those animals were directed to countries in
Europe.
Total imports of live swine into the United States are very small
relative to domestic production. In 1993, only 1.75 million head were
imported into the United States. Due to transportation costs and other
factors, nearly all of the live swine imported into the United States
(more than 99.8 percent in 1993) are from Canada. Most of the live
swine that are imported from Western Europe into the United States are
imported in very small numbers, to be used for genetic improvements of
domestic stock. We expect that the importation of swine embryos and
semen will not increase as a result of the proposed change. Movement of
swine embryos and semen is limited because the technology is not as
advanced as it is for other species.
Like domestic swine producers, the majority of pork producers (97
percent of 1367 meat packing establishments and 98 percent of 1264
other processing plants, according to 1992 data) qualify as small
entities. We expect the effect of the proposed amendment on these
entities would be minimal because, while Spain produces a considerable
amount of pork (2.107 million metric tons in 1994), its total pork
production amounts to only about 26 percent of the total pork
production of the United States. Additionally, most of Spain's pork
production is consumed within Spain, as its population consumes pork at
a rate greater than 1.6 times that of the U.S. population.
In 1994, Spain exported approximately 83,000 metric tons of pork,
but more than 97 percent of these exports were to European countries.
While Spanish exports of pork are growing and its imports of pork are
declining, Spain has historically been a net importer of pork. From
1991 to 1993, Spain imported well over twice as much pork as it
exported. Even if Spain were able to redirect all of its exports of
pork to the United States, it would constitute a small portion of the
domestic market, as U.S. pork production was 8 million metric tons in
1994.
Since 1985, the United States has expanded its pork exports by more
than four times to reach 240,858 metric tons in 1994. Simultaneously,
the United States has decreased its pork imports, as exemplified by a
decrease of approximately 34 percent in 1994, and the trend is
continuing. In an average year, up to 90 percent of pork imported into
the United States comes from Canada and Denmark.
Domestic pork producers most likely to be affected by the
amendments in this proposal are a small number of domestic producers of
specific specialty pork products. If the proposed rule is adopted, we
anticipate increased imports into the United States from Spain of dry-
cured, ready-to-eat ham; dry-cured, salted, boneless loin; and dry-
cured sausages, particularly Serrano ham. Most of these products are
similar to Parma and prosciutto hams and other cured pork products
being produced domestically and produced in other countries for
importation into the United States, but Serrano ham is a specialty
product with unique water content, color, aroma, and flavor.
Spain currently produces approximately 350,000 metric tons of all
types of cured ham per year. It is estimated that in 1994 more than
975,000 metric tons of all types of cured ham were produced in the
United States. While Spanish production of all types of cured ham
represents approximately 27.9 percent of U.S. cured ham production,
Spain's domestic consumption of cured pork is considerably higher than
consumption in the United States. About 40 percent of Spain's total
pork consumption consists of cured pork. In 1994, Spain exported only
4,135 metric tons of cured ham, which amounts to significantly less
than 1 percent of total U.S. production of cured pork. These exports
were directed primarily to France, Argentina, Portugal, and Germany.
From all indications, only a few of the largest 18 cured pork
producers in Spain, which account for 50 percent of Spanish production
of cured pork, have an interest in or a capability for penetrating the
U.S. market over the foreseeable future. Further, we estimate that the
maximum amount of cured pork products that Spain could expect to export
to the United States would not likely exceed 500 metric tons annually,
and this ceiling would not likely be reached for a period of about five
years because the imports arriving in the United States from Spain
would still be required to meet Food Safety and Inspection Service
standards before entering the country.
We estimate that there are approximately 15 companies in the United
States producing significant amounts of specialty processed pork
[[Page 26852]]
products that would compete with the potential imports from Spain. A
small portion of these producers are very large, and these specialty
products constitute only a small fraction of their overall business.
Therefore, we expect the impact of the proposed change on these large
companies would be minimal. However, the small producers may be
impacted by additional imports. Yet, without specific information on
(1) the quantity of additional imports generated by the rule change,
(2) the quantity of domestic production, and (3) the degree to which
Spanish imports will displace other imports rather than domestic
production, the impact on small domestic producers cannot be predicted.
An alternative to this proposed rule is to make no changes in the
regulations. We rejected this alternative because Spain has had no
reported cases of ASF since September 1994, and, therefore, we have no
scientific reason to continue considering Spain to be a country where
ASF exists.
This proposed rule contains no information collection or
recordkeeping requirements.
Executive Order 12778
This proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. If this proposed rule is adopted: (1) All State
and local laws and regulations that are inconsistent with this rule
will be preempted; (2) no retroactive effect will be given to this
rule; and (3) administrative proceedings will not be required before
parties may file suit in court challenging this rule.
Paperwork Reduction Act
This proposed 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 9 CFR Part 94
Animal diseases, Imports, Livestock, Meat and meat products, Milk,
Poultry and poultry products, Reporting and recordkeeping requirements.
Accordingly, 9 CFR part 94 would be amended as follows:
PART 94--RINDERPEST, FOOT-AND-MOUTH DISEASE, FOWL PEST (FOWL
PLAGUE), VELOGENIC VISCEROTROPIC NEWCASTLE DISEASE, AFRICAN SWINE
FEVER, HOG CHOLERA, AND BOVINE SPONGIFORM ENCEPHALOPATHY:
PROHIBITED AND RESTRICTED IMPORTATIONS
1. The authority citation for part 94 would continue to read as
follows:
Authority: 7 U.S.C. 147a, 150ee, 161, 162, and 450; 19 U.S.C.
1306; 21 U.S.C. 111, 114a, 134a, 134b, 134c, 134f, 136, and 136a; 31
U.S.C. 9701; 42 U.S.C. 4331, and 4332; 7 CFR 2.22, 2.80, and
371.2(d).
Sec. 94.8 [Amended]
2. In Sec. 94.8, the introductory text would be amended by removing
the words ``, and Spain'' and by adding the word ``and'' immediately
preceding the word ``Portugal''.
Done in Washington, DC, this 22nd day of May 1996.
Donald Husnik,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-13406 Filed 5-28-96; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 96-13394 Broadcast Services; Television Stations
[Federal Register Volume 61, Number 104 (Wednesday, May 29, 1996)]
[Proposed Rules]
[Pages 26863-26872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13394]
=======================================================================
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[[Page 26864]]
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Chapter I
[MM Docket No. 87-268; FCC: 96-207]
Broadcast Services; Television Stations
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Commission proposes to require digital broadcast
television licensees to use the digital television (``DTV'') system
described by the ATSC (``Advanced Television Systems Committee'') DTV
Standard and recommended to the Commission by the Advisory Committee on
Advanced Television Service. The Commission also proposes to adopt one
or more method of assuring that at some future time the Standard does
not inhibit innovation and competition. The intended effect is to
ensure that all affected partieis have sufficient confidence and
certainty in order to promote the smooth introduction of a free and
universally available digital broadcast television service while
encouraging technological innovation and competition.
DATES: Comments are due by July 11, 1996, and reply comments are due by
August 12, 1996.
ADDRESSES: Federal Communications Commission, 1919 M Street, N.W.,
Washington, D.C. 20554
FOR FURTHER INFORMATION CONTACT: Roger Holberg, Mass Media Bureau,
Policy and Rules Division (202) 418-2134 or Saul Shapiro, Mass Media
Bureau, (202) 418-2600.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Fifth
Further Notice of Proposed Rule Making in MM Docket No. 87-268 , FCC
96-207, adopted May 9, 1996, and released May 20, 1996. The complete
text of this FNPRM is available for inspection and copying during
normal business hours in the FCC Reference Center (Room 239), 1919 M
Street, N.W., Washington, D.C., and also may be purchased from the
Commission's copy contractor, International Transcription Service,
(202) 857-3800, 2100 M Street, N.W., Suite 140, Washington, DC 20037.
Synopsis of Further Notice of Proposed Rule Making
I. Introduction
1. In this proceeding we consider adoption of a digital television
(``DTV'') broadcast standard. This action has been recommended to the
Commission by its Advisory Committee on Advanced Television Service
(``Advisory Committee'' or ``ACATS'').1 We have the following
objectives with regard to the authorization and implementation of a DTV
standard.2 We seek to ensure that all affected parties have
sufficient confidence and certainty in order to promote the smooth
introduction of a free and universally available digital broadcast
television service. We seek to increase the availability of new
products and services to consumers through the introduction of digital
broadcasting. We seek to ensure that our rules encourage technological
innovation and competition. And we seek to minimize regulation and
assure that any regulations we do adopt remain in effect no longer than
necessary.
---------------------------------------------------------------------------
\1\ ACATS Report at 19. The Advisory Committee was formed by the
Commission on October 16, 1987, pursuant to the Federal Advisory
Committee Act (86 Stat. 770, as amended, 5 U.S.C. App. 2 Sec. 1 et
seq. (1982 ed. and Supp. V)). It was established ``to assist the
Commission in considering the issues surrounding the introduction of
advanced television service in the United States.'' (Notice, 52 Fed.
Reg. 38523 (October 16, 1987).) The Advisory Committee consisted of
a twenty-five member parent committee and three subcommittees--
Planning, Systems and Implementation. Its membership on the date
that the ATSC DTV Standard was recommended to the Commission is at
Appendix B.
\2\ In issuing this Notice, we are requesting comment, inter
alia, on whether to accept the conclusions of the Final Report and
Recommendation of the Advisory Committee, adopted November 28, 1995
(``ACATS Report''), which recommends the Advanced Television Systems
Committee Standard A/53 (1995) ATSC Digital Television Standard
(``ATSC DTV Standard'') as the standard for DTV broadcasting in the
United States. This standard is based on the Advisory Committee
design specifications and the Digital HDTV Grand Alliance (``Grand
Alliance'') System. The ACATS Report is hereby incorporated into the
record of this proceeding. Copies of the ACATS Report are available
through the Commission's copy contractor, International
Transcription Services. Additionally, the ACATS Report, ACATS Final
Technical Report and ATSC DTV Standard are available on the Internet
at the ATSC site (http://www.atsc.org).
---------------------------------------------------------------------------
II. Background
2. On February 13, 1987, 58 broadcast organizations
(``Petitioners'') filed a joint ``Petition for Notice of Inquiry''
asking the Commission to initiate a proceeding to explore issues
arising from the advent of new and advanced television (``ATV'')
technologies and their possible impact, in either broadcast or non-
broadcast uses, on existing television broadcast service. On July 16,
1987, as a result of the comments it received in response to the
petition, the Commission inaugurated the instant proceeding, ``to
consider the technical and public policy issues surrounding the use of
advanced television technologies by television broadcast licensees.''
3
---------------------------------------------------------------------------
\3\ Notice of Inquiry in MM Docket No. 87-268, (``First
Inquiry''), 2 FCC Rcd 5125 (1987).
---------------------------------------------------------------------------
3. The Commission empaneled the Advisory Committee on Advanced
Television Service (ACATS) shortly after having opened the inquiry
phase of this proceeding. Among other activities, ACATS designed the
detailed testing plans for the system and conducted substantial related
studies.
4. On May 24, 1993 the three groups that had developed the four
final DTV systems examined by ACATS agreed to produce a single, best-
of-the-best system to propose as the standard. The three ventures that
joined to become the ``Grand Alliance'' consisted of AT&T and Zenith
Electronics Corporation; General Instrument Corporation and
Massachusetts Institute of Technology; and Philips Electronics North
America Corporation, Thomson Consumer Electronics, and the David
Sarnoff Research Center. The standard recommended by ACATS and now
before us is based on the system developed, built, and proposed by the
Digital HDTV Grand Alliance proposal to ACATS. The system described by
the ATSC 4 DTV Standard having been successfully designed, built
and tested, in November 1995, the Advisory Committee voted to recommend
the Commission's adoption of the ATSC DTV Standard.
---------------------------------------------------------------------------
\4\ ``ATSC'' is the Advanced Television Systems Committee. ATSC
currently has 54 members including television networks, motion
picture and television program producers, trade associations,
television and other electronic equipment manufacturers and segments
of the academic community. It was formed by the member organizations
of the Joint Committee on InterSociety Coordination (``JCIC'') for
the purpose of exploring the need for and, where appropriate, to
coordinate development of the documentation of ATV systems. The JCIC
is composed of the Electronic Industries Association, the Institute
of Electrical and Electronics Engineers, the National Association of
Broadcasters, the National Cable Television Association, and the
Society of Motion Picture and Television Engineers. The membership
of the ATSC when it adopted the ATSC DTV Standard is at Appendix C.
---------------------------------------------------------------------------
5. We believe that the ATSC DTV Standard embodies the world's best
digital television technology and promises to permit striking
improvements to today's television pictures and sound; to permit the
provision of additional services and programs; to permit integration of
future substantial improvements while maintaining compatibility with
initial receivers; and to permit interoperability with computers and
other digital equipment associated with the national information
initiative.
[[Page 26865]]
III. The ATSC DTV Standard
6. The five components described in the annexes to the ATSC DTV
Standard are video coding, audio coding, transport, RF/transmission and
receiver. These five basic components, plus a video format selection
function, are sometimes referred to as comprising ``layers'' of the
system. Compliance with the ATSC DTV Standard requires some of its
provisions be followed, but many of these provisions include numerous
acceptable options that the system's users may select. In addition to
the required provisions, some additional provisions of the ATSC DTV
Standard are recommended but not required, and others are optional.
Finally, although it describes the coding and transmission of
television video and audio, it also allows transmission of a variety of
other services as ``ancillary data.'' This structure makes the system
described by the ATSC DTV Standard extremely flexible and gives it room
to incorporate a wide range of future improvements.
7. Format selection: The ATSC DTV Standard supports a variety of
scanning formats. Table I shows the number of scanning lines and
horizontal picture elements (or pixels) per line, which affect
resolution. The 720-line and 1080-line formats below represent high
resolution video. The lower-resolution 480-line formats accommodate
existing NTSC 5 programming and equipment as well as material
designed for viewing on VGA computer monitors.
---------------------------------------------------------------------------
\5\ NTSC refers to the current analog television system. It is
named for the National Television System Committee, an industry
group that developed the monochrome (black and white) television
standard in 1940-41 and the color television standard in 1950-53.
Table I
----------------------------------------------------------------------------------------------------------------
Vertical lines Horizontal pixels Aspect ratio Picture rate
----------------------------------------------------------------------------------------------------------------
1080.............................. 1920................. 16:9 60I 30P 24P
720.............................. 1280................. 16:9 60P 30P 24P
480.............................. 704................. 16:9 4:3 60I 60P 30P 24P
480.............................. 640................. 4:3 60I 60P 30P 24P
----------------------------------------------------------------------------------------------------------------
8. Table I also indicates that the high-resolution formats both use
a picture aspect ratio of 16 units horizontally by 9 units vertically
(that is, a picture 16 inches wide would be 9 inches tall or one 32
inches wide would be 18 inches tall). The choices of 1280 pixels per
line for the 720-line format and 1920 pixels per line for the 1080-line
format result in square pixels (that is, pixels which are displayed at
equal distances, both horizontally and vertically) for both formats,
based on the 16:9 aspect ratio. Material in the 480-line by 704-pixel
format could use either a 16:9 or a 4:3 aspect ratio.
9. The picture rates specified in Table I identify the number of
images that are sent each second, with an ``I'' designating interlaced
scanning and a ``P'' designating progressive scanning. Progressive
scanning lines are presented in succession from the top of the picture
to the bottom, with a complete image sent in each frame as is commonly
found in computer displays today. For interlaced scanning, which also
is used in NTSC television, odd and even numbered lines of the picture
are sent consecutively, as two separate fields. These two fields are
superimposed to create one frame, or complete picture, at the receiver.
The picture rates can be 24, 30 or 60 fields per second.
10. Video coding: For compression of video signals, the ATSC DTV
Standard requires conformance with the main profile syntax of the MPEG-
2 video standard.6 Employing this standard, the amount of data
needed to represent television pictures is reduced using a variety of
tools, including a motion compensated discrete cosine transform (DCT)
algorithm and bidirectional-frame (B-frame) prediction. Each of these
tools serves to improve compression efficiency by reducing the total
amount of digital information that needs to be transmitted.
---------------------------------------------------------------------------
\6\ MPEG-2 is a video compression and transport standard created
by the Moving Picture Experts Group of the International
Organization for Standardization (ISO).
---------------------------------------------------------------------------
11. Audio coding: For compression of audio signals, the ATSC DTV
Standard requires conformance with ATSC Doc. A/52, the Digital Audio
Compression (AC-3) Standard. The AC-3 perceptual coding system, which
was developed by Dolby Labs, can encode a complete main audio service
which includes left, center, right, left surround, right surround, and
low frequency enhancement channels into a bit stream at a rate of 384
kilobits per second (kbps). Audio service can also include fewer
channels (down to single channel, monophonic service) using a lower bit
rate.
12. Transport: The service multiplex and transport layer of the
ATSC DTV Standard is a compatible subset of the MPEG-2 systems standard
that describes a means of delivering a digital data stream in fixed-
length ``packets'' of information. Each packet contains only one type
of data: video, audio or ancillary. There is no fixed mix of packet
types, which further helps provide flexibility. Channel capacity can be
dynamically allocated in the transport layer, under the direct control
of the broadcaster. Within the transport layer, the packets of video,
audio, closed captioning and any other data associated with a single
digital television program are combined using a mechanism to ensure
that the sound, pictures and closed captioning information can be
synchronized at the receiver. Data describing multiple television
programs, or unrelated data for other purposes, are also combined in
the transport layer.
13. RF/Transmission: The transmission layer of the ATSC DTV
Standard uses a vestigial sideband (VSB) technique with a small pilot
carrier added at the suppressed carrier frequency. The relationship of
the pilot carrier frequency to interference to lower adjacent channel
NTSC service is discussed in the ``interference'' section below.
14. Terrestrial broadcasts of DTV will be exposed to situations
that include strong interfering signals, electromagnetic noise from
numerous sources, and configurations of buildings or terrain features
that cause multipath interference. For successful reception under these
difficult conditions, an 8-level VSB signal is specified and extensive
error correction is provided. Taking into account the transport
requirements and error correction, the 8-VSB signal carries an
effective useful payload of approximately 19.28 megabits per second
(Mbps). For more benign environments, like that provided in a cable
system, the ATSC DTV
[[Page 26866]]
Standard includes a 16-level VSB high data rate mode that provides
double the capacity of the 8-level VSB terrestrial broadcast mode.
15. Receiver: The ATSC DTV Standard does not specify requirements
for a compliant receiver. In essence, the DTV receiver designs are to
be based on the specifications of the signal contained in the other
portions of the Standard. The receiver reverses the functions of the
RF/transmission and transport layers, and, after decompression,
generates video and audio suitable for its display.
16. Flexibility. The ATSC DTV Standard provides a method of
accommodating a broad range of uses. The packetized transport structure
is a critical component in achieving this broad level of flexibility.
Scrambled packets can be sent, which allows conditional access
subscription or pay-per-view services to be delivered.
17. Extensibility. In the future, new services may be uniquely
identified through the use of new packet identifiers that would be
ignored by previously deployed digital receivers. Such data could be
used to augment DTV programs or could permit new services that have not
yet been envisioned. Either extension of the DTV service would require
new DTV receivers or new decoder devices to be developed and used in
order to obtain the benefits of the new service or functionality, but
would not disrupt provision of DTV service to consumers using existing
sets. The marketplace would determine the extent to which sets with new
functionalities are available.
IV. Adopting the ATSC DTV Standard
18. There is near universal agreement that transmission standards,
either de facto or de jure, confer many benefits.7 We believe that
the proposals discussed herein would enable consumers, licensees and
equipment manufacturers to realize the benefits of standards without
unduly restricting innovation and competition.
---------------------------------------------------------------------------
\7\ For a discussion of the benefits of standards, see Stanley
M. Besen and Leland L. Johnson, Compatibility Standards,
Competition, and Innovation in the Broadcast Industry (Santa Monica,
CA: The RAND Corporation, 1986) at 7-9.
---------------------------------------------------------------------------
19. Previous Statements. Previously, we have asked whether
mandatory transmission standards serve the public interest. In our
initial 1987 Notice of Inquiry in this proceeding, we noted that NTSC
standards were established during the television industry's infancy
when universal compatibility standards were arguably necessary in order
to develop a national television broadcasting system in a timely
manner.8 However, we also stated that the continuation of
mandatory standards may no longer be necessary and may even be
counterproductive.9
---------------------------------------------------------------------------
\8\ First Inquiry, supra at 5135.
\9\ 1Id.
---------------------------------------------------------------------------
20. In the 1988 Second Inquiry, we continued our examination of
whether the NTSC standard should be relaxed or repealed, how standards
should be established for advanced television, and whether it would be
desirable to require compatibility between advanced television
broadcast transmissions and other ATV distribution media.10 In
this regard, we asserted that establishing a standard has certain
advantages such as pointing the various interested parties in the same
direction, reducing the risk to both audiences and broadcasters of
investments in systems that might become obsolete if a different system
is introduced in the market, and overcoming reluctance to invest in new
equipment.11 We also stated that, ``detailed, inflexible standards
that have the force of law may reduce consumer choice and prevent the
timely introduction of new technology.'' 12
---------------------------------------------------------------------------
\10\ Tentative Decision and Further Notice of Inquiry in MM
Docket No. 87-268 (``Second Inquiry''), 3 FCC Rcd 6520, 6534 (1988).
\11\ Id. at 6534-35.
\12\ Id. at 6535.
---------------------------------------------------------------------------
21. Subsequent to our statements concerning standards in the 1987
and 1988 decisions, as described above, we concluded in 1990 that
``[c]onsistent with our goal of ensuring excellence in ATV service, we
intend to select a simulcast high definition television system.''
13 We also stated that, ``parties filing comments in response to
the Further Notice generally assume that the Commission will ultimately
authorize a system using new technology that will provide HDTV
service.'' (Footnote omitted.) 14 The Commission's November 14,
1990 Memorandum of Understanding with the Advisory Committee, the
Advanced Television Test Center, Inc., Cable Television Laboratories,
Inc., and the Canadian Communications Research Centre, said, ``[t]he
FCC's stated intention is to select an ATV standard by the second
quarter of 1993.''
---------------------------------------------------------------------------
\13\ First Report and Order, 5 FCC Rcd 5626, 5628 (1990).
\14\ Id.
---------------------------------------------------------------------------
22. Recent Developments. Two recent developments are relevant to
whether and, if so, what form of a required standard is desirable.
First, the presence of multiple competing systems strengthened the
argument for selecting a standard. Today, only one system has been
recommended by our Advisory Committee and no other competing technology
appears to demonstrate superiority over the ATSC DTV Standard.15
Thus, concerns with the possibility of multiple competing systems may
be less relevant today.
---------------------------------------------------------------------------
\15\ ACATS Report at 17.
---------------------------------------------------------------------------
23. Second, prior to the development of the ATSC DTV Standard, it
was widely believed that the service offered by a licensee would change
from one NTSC program stream to one HDTV program stream. Today's
digital technologies and improved compression techniques create the
opportunity for delivering one, and under special circumstances perhaps
two, HDTV program streams, or multiple program streams at lower
resolution. Furthermore, digital technologies give each licensee the
technical capacity to explore new business opportunities and provide
new services. If the ATSC DTV Standard is as dynamic as believed, a
required standard will not thwart technical advance.
24. Analysis of Required Standards. The traditional rationale for
requiring a standard arises when two conditions are met.16 First,
that there is a substantial public benefit from a standard. Second,
private industry either will not, or cannot, produce a standard because
the private costs of getting involved in standard setting outweigh the
private benefits, or a number of different standards have been
developed and private industry cannot agree which should become the
standard. The second condition may not be applicable in view of the
strong industry coalescence around the ATSC DTV Standard. However, we
believe that the first condition applies to DTV. Television today is a
ubiquitous service that is available to almost every American household
and is relied on by a majority of Americans as their primary news and
information source.17
---------------------------------------------------------------------------
\16\ Stanley M. Besen and Garth Saloner, ``The Economics of
Telecommunications Standards,'' in Changing the Rules: Technological
Change, International Competition, and Regulation in Communications,
Robert W. Crandall and Kenneth Flamm, editors (The Brookings
Institute, 1989).
\17\ Seventy-two percent of Americans rely on television as
their primary source of news. NTVA, Roper-Starch, NAB, America's
Watching--Public Attitudes Toward Television-1995, at 17.
---------------------------------------------------------------------------
25. A required standard may provide additional certainty to
consumers, licensees, and equipment manufacturers, especially during
the launch of this new technology. A required standard may protect
consumers against losses by assuring them that their investments in DTV
equipment will not be made obsolete by a different technology. In
addition, requiring use of a single standard
[[Page 26867]]
guarantees compatibility. This assures consumers that the DTV equipment
they purchase to view one television station can be used to view every
other television station. The compatibility guaranteed by a single
required standard may also reduce consumer costs by eliminating the
need to purchase duplicative equipment or special devices to convert
from one standard to another. Finally, a required standard may lead to
a more rapid development and acceptance of DTV equipment. Absent a
required standard, some consumers and licensees may be reluctant to
purchase DTV equipment if they believe that different DTV technologies
may become available in the near future. A required standard may reduce
such ``wait and see'' behavior.
26. Although there are benefits to required standards, there also
may be certain costs. One may be deterrence of technical
innovations.18 Over time, we expect that normal technological
progress will lead to improvements. If subsequent technological
improvements cannot be readily incorporated into the ATSC DTV Standard,
the Standard could lock the broadcast market into less than optimal
technology. Required standards also may reduce some forms of
competition while enhancing others. With required standards, equipment
manufacturers cannot compete by offering differentiated products using
different technologies. As such, a primary cost of required standards
is loss of variety.19 On the other hand, required standards, which
are licensed to everyone on a non-discriminatory basis, may intensify
the more conventional forms of competition, such as price, service, and
product features.20
---------------------------------------------------------------------------
\18\ For an overview of the characteristics of the television
broadcast market that contribute to the inertia of established
standards see Bruce M. Owen and Steven S. Wildman, Video Economics,
(Harvard University Press, 1992): 260-313. For a more general
discussion of the characteristics of one-way and two-way
communications systems that affect the adoption of technology see
Michael L. Katz and Carl Shapiro, ``Systems Competition and Network
Effects,'' Journal of Economic Perspectives (Spring 1994): 93-115.
\19\ Katz and Shapiro, supra at 110.
\20\ Stanley M. Besen and Joseph Farrell, ``Choosing How to
Compete: Strategies and Tactics in Standardization, Journal of
Economic Perspectives (Spring 1994): 117-131.
---------------------------------------------------------------------------
27. As we weigh the benefits and costs of required standards, we
note that for MMDS and new services like PCS, DBS, and DARS, we have
decided to allow the marketplace to determine transmission standards.
We recognize that these decisions were made in a context different from
that of terrestrial broadcast television, an established industry upon
which the American people rely for both information and entertainment.
Additionally, unlike these other services, free over-the-air broadcast
television is a mass market media serving nearly all of the American
public nationwide rather than a subscription service in which the
service provider may supply the reception equipment.21 In this
context, the goals of certainty and reliability take on a different
significance than may have been present with respect to other
communications services and strengthens the case for our adoption of a
DTV standard.
---------------------------------------------------------------------------
\21\ America's Watching--Public Attitudes Toward Television--
1995, supra, at p. 3. Even nearly 60% of viewing in cable television
households is of the programming of broadcast television stations.
NCTA, Cable Television Developments, Fall 1995, at 5.
---------------------------------------------------------------------------
28. Proposal. We propose to adopt the ATSC DTV Standard. We
tentatively conclude that requiring the use of the ATSC DTV Standard is
appropriate because it would provide a measure of certainty and
confidence to manufacturers, broadcasters and consumers, thus helping
assure a smooth implementation of digital broadcast television and the
preservation of a free and universally available broadcast television
service.
29. The digital television system that has been recommended by the
Advisory Committee appears to be dynamic, flexible and high quality. It
provides a variety of picture formats that will allow broadcasters to
select the one most appropriate for their program material, ranging
from very high resolution providing the best possible picture quality
to multiple programs of lower resolution, which could result in
increased choices for viewers. Even at the lower resolutions, the
recommended system represents a clear improvement over the current NTSC
standard.
30. Use of the ATSC DTV Standard also represents a rare opportunity
to increase significantly the efficient use of broadcast spectrum. The
ATSC DTV Standard will allow channels unusable in the NTSC analog
environment to be assigned for digital broadcasting between existing
NTSC channels. It was designed to be flexible enough to incorporate
future improvements, including those resulting in ever higher
resolution, that the Advisory Committee believes will be made possible
by future advances in compression and display technology.
31. We believe that the ``headroom'' for innovation incorporated in
the ATSC DTV Standard, along with the desirability of providing
certainty and confidence, argue in favor of a required standard. In
addition, the flexibility of the ATSC DTV Standard significantly
reduces some of the potential detriments associated with a required
standard as the new technology is being launched. The packetized
structure of the data transport, as described above, ensures a
flexibility that will permit the DTV licensee to provide, for instance,
several standard definition programs, or one high-definition program,
or some standard definition programming together with data transfer or
electronic publishing on the remaining bit streams, and to switch
instantaneously between such applications. Other applications are
limited primarily by the imagination of the DTV licensee. This means
that a wide array of innovations can be introduced without Commission
action.
32. We seek comment on the tentative conclusion that we will
require use of the ATSC DTV Standard. Assuming that we do require the
use of the ATSC DTV Standard by digital television licensees, we
request comment on whether we should place the Standard into our rules
in its entirety or whether we should incorporate it by
reference.22
---------------------------------------------------------------------------
\22\ See Letter dated April 2, 1996, submitted for the record by
Joseph P. Markoski of the law firm of Squire, Sanders & Dempsey on
behalf of the EIA and the EIA Advanced Television Committee. The
letter cites as precedent for incorporating the standard into our
Rules by reference Sections 73.682(a)(14), 73.682(a)(21)(iv) and
15.31(a)(6) of the Commission's Rules. A similar, but alternative,
proposal would be to publish the Standard not in our Rules but,
rather, as an OET technical bulletin.
---------------------------------------------------------------------------
33.While we propose to require digital television licensees to use
the ATSC DTV Standard, we recognize that the benefits of a required
standard may become attenuated over time, as the costs of a requirement
may increase. At some point, when the new digital broadcasting
technology has become firmly established, requirements designed to
promote certainty and to foster a smooth implementation of digital
television may no longer be necessary. Meanwhile, over time, the
likelihood increases that there will be technological innovation that
even the flexible ATSC DTV Standard may not be able to accommodate. In
addition, given the pace of technological change, it is likely that
there will be unforeseeable innovations that are incompatible with the
ATSC DTV Standard. As long as there is a requirement in our rules that
DTV licensees use only the ATSC DTV Standard, such innovations could
not be introduced to consumers without a potentially costly and time-
consuming Commission proceeding. That, in turn, could reduce the
incentive to conduct the research and development that leads to
innovation.
34.In addition to ensuring that the Commission's rules promote the
rapid
[[Page 26868]]
introduction of digital television broadcasting, we seek in this
proceeding to adopt rules that encourage further innovation by those
who have devised the ATSC DTV Standard as well as new entrants. We also
seek to minimize our regulations and to have the regulations that we do
adopt remain in effect no longer than necessary. We are mindful,
finally, of the spirit of the recently adopted Telecommunications Act
of 1996, which seeks, ``[t]o promote competition and reduce regulation
in order to secure lower prices and higher quality services for
American telecommunications consumers and encourage the rapid
deployment of new telecommunications technologies.'' 23
---------------------------------------------------------------------------
\23\ Preamble to Pub. L. 104-104, 110 Stat. 56 (1996).
---------------------------------------------------------------------------
35. There are several options that arguably could accomplish these
goals and we propose to adopt one, or more than one in
combination.24 The Commission could proceed under its current
processes for regulatory evolution and change, which include
consideration, as appropriate, of requests from parties to amend its
rules and reviews initiated by the agency.
---------------------------------------------------------------------------
\24\ These options are not necessarily incompatible. For
example, we could adopt a sunset provision but also provide for
Commission review of the Standard prior to the sunset.
---------------------------------------------------------------------------
36. Alternatively, the Commission could commit itself to conduct a
proceeding to review the Standard at some future time. If the
Commission chooses this option, should a review be structured to place
the burden of persuasion on those seeking to continue requiring a
standard or on those seeking to eliminate the requirement? When should
such a review take place? Should we select a specific date or should we
link the review to an objective event?
37. Finally, the Commission could establish a period of time after
which the ATSC DTV Standard no longer would be required or exclusive.
At the conclusion of some meaningful period of time, digital licensees
would be free to use any technology that does not interfere with users
of the ATSC DTV Standard. If such a sunset provision were to be
adopted, how should we determine when the mandatory aspects of our
rules would expire?
38. Commenters are encouraged to comment on the foregoing and to
propose other options. In so doing, they should provide a thorough
explanation of the benefits and detriments of their options and an
explanation of how their options serve the goals that we have outlined
above.
39.Finally, we seek comment on alternative approaches to requiring
a standard, including those the Commission has previously identified:
(1) authorizing use of a standard and prohibiting interference to it,
but not requiring the use of that standard; 25 and (2) adopting a
standard for allocation and assignment purposes only.26 We also
seek comment on requiring use of some layers of the ATSC DTV Standard
(described more fully above) but making others optional. For example,
would it be desirable to require digital licensees to use the RF/
transmission layer of the ATSC DTV Standard, while leaving them free to
choose coding and compression technologies different from those
described in the ATSC DTV Standard?
---------------------------------------------------------------------------
\25\ Second Inquiry, supra at 6535.
\26\ Id.
---------------------------------------------------------------------------
40. Acceptability of the ATSC DTV Standard. Although the ATSC DTV
Standard has many supporters, it also has its critics. Some in the
computer industry argue that the presence of interlaced scanning
formats, the 60 Hz transmission rate, aspect ratios, colorimetry and
non-square pixel spacing in the ATSC DTV Standard all merit further
consideration.27 Proponents of the ATSC DTV Standard respond that
the Standard was developed for terrestrial broadcasting but has
incorporated significant elements to enhance compatibility with
computers.28 With respect to the issue of the presence of
interlaced scanning in the proposed Standard, the Grand Alliance argues
that, ``* * * the Grand Alliance HDTV system emphasizes progressive
scan--five of the six HDTV formats are progressive scan, and the
Advisory Committee believes that the lone interlaced format should be
`migrated' to progressive as soon as improvements in digital
compression and transmission technology make an over-1000 line, 60 Hz
progressively scanned format achievable within a 6 MHz terrestrial
channel.'' 29
---------------------------------------------------------------------------
\27\ See Comments of Apple Computer, Inc., and Microsoft
Corporation, in response to the Fourth Further Notice of Proposed
Rule Making and Third Notice of Inquiry in MM Docket No. 87-268
(``Fourth Further Notice''), 10 FCC Rcd 10540 (1995).
\28\ Letter of Stanley Baron, President, Society of Motion
Picture and Television Engineers (``SMPTE''), 28 August 1995, at 2,
Memo of Paul Misener, ACATS, to Fiona Branton, ITI (``Misener
Memo''), August 18, 1995, at 1-2. Reply Comments of the Digital HDTV
Grand Alliance, in response to the Fourth Further Notice, at 38 and
40.
\29\ Reply Comments of the HDTV Grand Alliance, supra at 40.
---------------------------------------------------------------------------
41. There also has been objection from cinematographers to the 16:9
aspect ratio contained in the ATSC DTV Standard. They are concerned
that the proposed Standard may limit broadcasters' ability to display
the full artistic quality of their work. They suggest, instead, that
HDTV be displayed in a 2:1 aspect ratio. In reply, the Society of
Motion Picture and Television Engineers (SMPTE) states that the 16:9
aspect ratio was established by the SMPTE Working Group on High
Definition Electronic Production in 1985 on the basis of studies of the
requirement for both motion picture and television production.
Moreover, it states that the value of 16:9 for aspect ratio was decided
upon only after long debate and that ``due consideration was given to
the then current practices both in North America and around the
world.'' 30 SMPTE states that it has been demonstrated that there
is no difficulty in accommodating program material or motion picture
films of any reasonable aspect ratio within the 16:9 format and that
material originally composed for a 2:1 aspect ratio could be
accommodated by leaving 11% of the vertical space unused.31
---------------------------------------------------------------------------
\30\ Letter of Stanley Baron, President, Society of Motion
Picture and Television Engineers, 18 August 1995, at 2.
\31\ Id. at 3. In this regard it notes that there is a broad
range of aspect ratios that has been employed in modern times and
that there is no single aspect ratio that is usable universally.
---------------------------------------------------------------------------
42. Additionally, we note that low power television station
(``LPTV'') operators generally want to be included in the
implementation of digital technology, and have suggested that, if LPTV
is excluded, its continued viability would be jeopardized. LPTV
commenters are concerned that any standards that could adversely affect
their operations be thoroughly documented in this proceeding.32
---------------------------------------------------------------------------
\32\ See, e.g., Comments of Abacus Television in response to the
Fourth Further Notice, at 24-25.
---------------------------------------------------------------------------
43. We seek comment on these issues. We believe that those opposing
our mandate of the ATSC DTV Standard should have the burden of
persuasion as to why that standard should not be adopted.
V. Protection From Interference
44. Protection from interference is a fundamental Commission
function that must be considered when introducing new technologies into
spectrum allocations currently in use. In addition to criteria we will
propose in the near future, when we propose an initial Table of DTV
Allotments and associated technical criteria, there are some
interference-related aspects of the ATSC DTV Standard that we shall
explore now. In the following paragraphs, we solicit comment on
limitations on stations using the ATSC DTV Standard that might be
needed to avoid
[[Page 26869]]
objectionable interference to reception of either existing NTSC service
or the reception of other stations that use the ATSC DTV Standard.
45. First, we propose to adopt an emission mask, limiting the out-
of-channel emissions from a DTV station transmitter, measured after any
external filter that may be used and based on a measurement bandwidth
of 500 kHz. We seek comment on the following emission mask: (A) at the
channel edge, emissions attenuated no less than 35 dB below the average
transmitted power; (B) more than 6 MHz from the channel edge, emissions
attenuated no less than 60 dB below the average transmitted power; and
(C) at any frequency between 0 and 6 MHz from the channel edge,
emissions attenuated no less than the value determined using the
following formula:
Attenuation in dB=35+[(f)2/1.44]
Where: f=frequency difference in MHz from the edge of the
channel
This proposal is derived from analysis of the ACATS test results
for protection of adjacent channel stations. The attenuation level is
based on an assumption that the average DTV power in a 6 MHz channel is
12 dB less than the NTSC station effective radiated power (ERP). This
power difference provides approximately equal noise limited coverage
for DTV and NTSC stations in the UHF frequency band. If DTV stations
are permitted to operate in a co-located adjacent channel arrangement
with average DTV power exceeding that assumed value, greater
attenuation of the out-of-band emissions may be required.
46. Second, ACATS has reported interference from an upper-adjacent
channel DTV signal to reception of an NTSC station that is related to
the precise location of the DTV signal pilot carrier frequency.33
To prevent interference to NTSC receivers from this source, we are
proposing to require an ATSC DTV Standard station pilot frequency to be
located 5.082138 MHz above the visual carrier of the lower adjacent
channel NTSC station. The above stated frequency difference between the
NTSC visual carrier and the DTV VSB pilot would need to be maintained
within a tolerance of 3 Hz.34
---------------------------------------------------------------------------
\33\ ACATS Final Technical Report at 5.2.8.
\34\ See Annex to ACATS Report, Record of Test Results for
Digital HDTV Grand Alliance System (October 1995), at I-14-67.
---------------------------------------------------------------------------
47. Third, we propose to specify the maximum power for each DTV
station as an average power across the occupied bandwidth, so an
appropriate method or methods of determining operating power will be
different from the established NTSC procedures, which determine the
power transmitted during each synchronizing pulse (peak power). We
propose that stations using the ATSC DTV Standard would be allowed to
determine their average power using conventional RMS averaging power
meters.
48. We seek comment on all of the foregoing including whether the
proposed limits on out-of-channel emissions, pilot carrier frequency
tolerance and average power determination are appropriate and represent
the minimum necessary requirements for controlling the interference
potential of stations operating in conformance with the ATSC DTV
Standard. We also seek comment on whether the proposed limits are
sufficient for this purpose, or if other parameters also need to be
constrained.
49. In addition to rules restricting broadcast stations that relate
to interference concerns, there are many rules that establish
procedures or have been applied broadly to all broadcast stations. We
propose to modify many of them to include DTV, or to adapt them and
create new DTV rules, as appropriate so that eligible licensees might
move quickly to introduce this new technology to consumers. A
preliminary list of these technical and procedural rules is attached as
Appendix A. We seek comment on whether they should be modified to
include DTV, be changed to treat DTV differently than NTSC or other
broadcast services are treated, or if they need not be applied to DTV.
Commenters addressing this issue should provide specific
recommendations, rule-by-rule, as to the modifications they advocate.
VI. Interoperability
50. Cross-Industry Interoperability. Compatibility with other
transmission forms and media applications has been an important issue
throughout this proceeding. Since its inception, ACATS emphasized the
need for DTV broadcasting technology to be interoperable with
alternative media.35 In addition, ACATS has recognized that
interoperability takes on critical importance given the future needs
for high resolution digital imagery and the development of a National
Information Infrastructure. ACATS believes that the ATSC DTV Standard
is suitably interoperable with other video delivery media and imaging
systems, including cable television, direct broadcast satellite, and
computer systems.
---------------------------------------------------------------------------
\35\ This description of the ACATS position on interoperability
is largely derived from the ACATS Report at 15-16.
---------------------------------------------------------------------------
51. The working party and an ``interoperability review panel'' also
adopted a list of eleven characteristics critical to interoperability
based on the needs and desires exhibited by alternative media
advocates.36 ACATS believes the Grand Alliance video system
adequately addresses all eleven factors and strikes the best balance
between various technical considerations and needs of different
industries. It is a balance that has been endorsed by, among others, a
subgroup of the Federal Government's Information Infrastructure Task
Force, the 1994 NIST/ARPA Workshop on Advanced Digital Video, and the
Information Technology Industry Council (``ITI'').37 We request
comment on the level of interoperability between the ATSC DTV Standard
and alternative media and on the ACATS Report's conclusion that it is
adequate. Are there any critical interoperability problems that remain?
What additional actions, if any, might the Commission take to
facilitate interoperability? We ask that in commenting on this issue,
commenters provide specific technical or economic analyses upon which
we can make our decision.
---------------------------------------------------------------------------
\36\ ACATS Report, Appendix I.
\37\ ACATS Report at 16. See also Information Technology
Industry Council, ``Position Statement on Standards for Advanced
Television,'' October 31, 1995, at 1-2. We note that subsequently
ITI stated that the ATSC DTV Standard ``will be an important part of
a diverse and flexible NII'' and ``urges the Commission to promptly
adopt and implement'' it, but without the interlace options, stating
that it believes ``a truly interoperable ATV system will require the
exclusive use of progressive scan.'' See Comments of the Industry
Information Technology Industry Council filed in response to the
Fourth Further Notice, at 2-3.
---------------------------------------------------------------------------
52. With digital technologies, differences in transmission methods
could develop between broadcast and alternative media if an appropriate
variant of the ATSC DTV Standard is not required for alternative media.
There is no guarantee that alternative media will choose the ATSC DTV
Standard. In our Second Inquiry, we expressed ``our tentative view that
ATV compatibility among alternative media also may develop in an
appropriate manner without government involvement.'' 38 While we
recognized that there may be benefits to compatibility, we added that
``we do not intend to retard the introduction of ATV on non-broadcast
media, nor do we intend at this point to require compatibility among
the various media or set specific signal or equipment
[[Page 26870]]
standards for this purpose.'' 39 We seek comment on whether this
view remains correct.
---------------------------------------------------------------------------
\38\ Second Inquiry, supra at 6537.
\39\ Id.
---------------------------------------------------------------------------
53. In the Cable Television Consumer Protection and Competition Act
of 1992 (1992 Cable Act), Congress expressed concern about
compatibility between consumer electronics equipment and cable
systems.40 We are aware of concern within the broadcast industry
that, for example, cable systems may voluntarily adopt QAM modulation
in lieu of VSB modulation specified in the ATSC DTV Standard. Some
cable system operators suggest deploying a DTV system that does not use
B-frames. While we understand that technical distinctions between
broadcast and cable may at some extreme cause consumer harm, we also
recognize that it is in the economic interests of the providers to
ensure consumers have access to the most desirable programming. Today,
nearly 60 percent of cable viewing hours are spent watching broadcast
programming, much of which is provided under retransmission consent
agreements. In light of these concerns, we seek comment on whether the
public interest would be served by Commission involvement to assure
compatibility between digital broadcast standards and digital cable
standards. Similarly, there would appear to be advantages and
disadvantages to Commission involvement to assure compatibility between
other existing and potential competing video delivery methods,
including DBS, MMDS, Instructional Television Fixed Service (``ITFS'')
and open video systems. We seek comment on the considerations that
apply in these different environments.
---------------------------------------------------------------------------
\40\ See Cable Television Consumer Protection and Competition
Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460, (1992). Section 17
of the 1992 Cable Act added a new Section 624A to the Communications
Act of 1934, which has been implemented by First Report and Order in
ET Docket No. 93-7, 9 FCC Rcd 1981 (1994). Section 301 of the
Telecom Act, in turn, has modified Section 624A.
---------------------------------------------------------------------------
VII. Other Issues
54. Receiver Standards and Related Features. In the Fourth Further
Notice, we solicited comment on whether DTV receivers should be
required to have the ability to receive both SDTV and HDTV
transmissions, whether we should regulate how such signals should be
displayed and whether permitting the manufacture only of ``all format''
receivers capable of displaying NTSC, SDTV and HDTV signals would be
consistent with the All-Channel Receiver Act or otherwise in the public
interest.41
---------------------------------------------------------------------------
\41\ Id. at 10552.
---------------------------------------------------------------------------
55. Now, however, we have the ATSC DTV Standard before us. In Annex
E, it indicates that our current TV rules should be appropriate for the
digital TV service with respect to tuner performance, direct pickup and
closed captioning.42 It notes that a 10 dB ``noise figure'' was
used for spectrum planning purposes and it expects that value to be
appropriate. Additionally, the ATSC DTV Standard indicates that any
decoder interface standards we adopt for NTSC ``cable-ready'' receivers
in ET Docket No. 93-7 will almost certainly provide a basis for rules
concerning this aspect of digital TV receivers.43 In its Final
Report, the Technical Subgroup of ACATS recommended that the Commission
require that receivers (and set-top boxes designed to receive ATV
broadcasts for display on NTSC sets) be able to receive adequately all
DTV formats.44 In response to the Fourth Further Notice, some
commenters expressed concerned that such a requirement might have a
large effect on either reception quality or receiver costs.45 We
request comment on the importance of this requirement for compatibility
between receivers and broadcast signals. What level of reception
performance should be considered adequate? Given our proposal that
licensees must use the ATSC DTV Standard, is such a requirement
necessary? We seek comment on necessary adjustments to the existing TV
receiver rules so that they cover digital TV receivers.
---------------------------------------------------------------------------
\42\ ATSC DTV Standard at 61-64. Note that it describes
``appropriate'' as meaning that the existing rules for NTSC which
are referenced contain most elements of future rules for digital
television and, further, the rules may be expanded to cover digital
television.
\43\ First Report and Order in ET Docket No. 93-7, supra.
Although the Commission adopted requirements for television
receivers to be marketed as ``cable-ready,'' an open issue in that
proceeding is a standard for a decoder interface.
\44\ ACATS Report at 20.
\45\ See, e.g., Comments of the Electronic Industries
Association and the Advanced Television Committee at 16. See also
Comments of Zenith Electronics Corporation at 4.
---------------------------------------------------------------------------
56. Licensing Technology. We have previously stated that in order
for DTV implementation to be fully realized, the patents on a DTV
standard would have to be licensed to other manufacturing companies on
reasonable and nondiscriminatory terms.46 In response, the
Advisory Committee's testing procedures have required proponents of any
DTV system to follow American National Standards Institute patent
policies which require assurance that: (1) a license will be made
available without compensation to applicants desiring to utilize the
license for the purpose of implementing the standard; or (2) a license
will be made available to applicants under reasonable terms and
conditions that are demonstrably free of any unfair
discrimination.47 We seek comment on whether we should require
more detailed information on the specific terms, if any, for patenting
and licensing the ATSC DTV Standard.
---------------------------------------------------------------------------
\46\ Notice of Proposed Rule Making in MM Docket No. 87-268, 6
FCC Rcd 7024, 7035 (1991); Second Report and Order/Further Notice of
Proposed Rule Making in MM Docket No. 87-268, 7 FCC Rcd 3340, 3358
(1992); Memorandum Opinion and Order/Third Report and Order/Third
Further Notice of Proposed Rule Making in MM Docket 87-268, 7 FCC
Rcd 6924, 6982 (1992).
\47\ Advisory Committee ATV Test Procedures Test Management Plan
at Sec. 2.1.
---------------------------------------------------------------------------
57. International Trade. We recognize that other countries may
choose other digital television systems that they feel more
appropriately meet their needs, expectations or national priorities.
Their systems may well be incompatible with the ATSC DTV Standard.
Would our proposal here serve to enhance competitiveness of a U.S.
system worldwide and what are the benefits associated with such a
result? Will a requirement to use the ATSC DTV Standard as the sole
authorized system exacerbate or enhance the opportunities of U.S. based
content providers, equipment manufacturers or other parties?
Additionally, to increase international compatibility, the Grand
Alliance adopted the MPEG-2 video stream syntax for encoding of video
and the MPEG-2 transport stream syntax for the packetization and
multiplexing of video, audio and data signals. Should we pursue
additional measures to facilitate international compatibility?
58. Captioning. Section 305 of the Telecommunications Act of 1996
48 requires the Commission, within 18 months after the date of
enactment of the Telecom Act, to prescribe regulations to assure that
video programming is fully accessible through the provision of closed
captions. The ATSC DTV Standard reserves a fixed 9600 bits-per-second
data rate for closed captioning.49 We understand that EIA's R4.3
Subcommittee on TV Data Systems is considering a standard to define the
syntax for the data, as well as the issue of how to include closed
captioning information for multichannel SDTV transmissions. Any
comments parties may have concerning the ability of DTV to include
captioning and how the Commission should implement
[[Page 26871]]
captioning requirements for DTV may be filed in response to this
Further Notice.
---------------------------------------------------------------------------
\48\ Pub. L. No. 104-104, 110 Stat. 56 (1996).
\49\ ATSC DTV Standard at 26.
---------------------------------------------------------------------------
Administrative Matters
59. Pursuant to applicable procedures set forth in Sections 1.415
and 1.419 of the Commission's Rules, 47 C.F.R. Sections 1.415 and
1.419, interested parties may file comments on or before 45 days after
publication in the Federal Register, and reply comments on or before 30
days after comments are due. To file formally in this proceeding, you
must file an original plus six copies of all comments, reply comments,
and supporting comments. If you want each Commissioner to receive a
personal copy of your comments, you must file an original plus eleven
copies. You should send comments and reply comments to Office of the
Secretary, Federal Communications Commission, 1919 M Street, N.W.,
Washington, D.C. 20554. Comments and reply comments will be available
for public inspection during regular business hours in the FCC
Reference Center (Room 239), 1919 M Street, N.W., Washington, D.C.
20554.
60. This is a non-restricted notice and comment rulemaking
proceeding. Ex parte presentations are permitted, except during the
Sunshine Agenda period, provided they are disclosed as provided in the
Commission Rules. See generally 47 C.F.R. Sections 1.1202, 1.1203, and
1.1206(a).
Initial Regulatory Flexibility Act Statement
I. Reason for Action
The Commission seeks comment on a variety of issues concerning
whether to adopt a technical standard for digital television and, if
so, whether that standard should be the one reported to the Commission
by the Advisory Committee on Advanced Television Systems.
II. Objectives of the Action
The Fifth Further Notice of Proposed Rule Making solicits comment
on a variety of issues, in order to establish an accurate,
comprehensive, reliable record on which to base the Commission's
ultimate decisions in this proceeding. The record established from
comments filed in response to this decision, as well as other
Commission decisions, and the combined efforts of the Commission, the
affected industries, the Advisory Committee on Advanced Television
Service, and the DTV testing process, will lead to implementation of
DTV in the most harmonious fashion and to selection of the most
desirable DTV system.
III. Legal Basis
Authority for this action may be found at 47 U.S.C. Secs. 154 and
303.
IV. Reporting, Recordkeeping and Other Compliance Requirements
Such requirements are not proposed in this phase of the proceeding,
but may be raised and comment sought in future decisions in this
proceeding.
V. Federal Rules Which Overlap, Duplicate or Conflict With These Rules
There are no rules which would overlap, duplicate, or conflict with
these rules.
VI. Description, Potential Impact and Number of Small Entities Involved
There are approximately 1,546 UHF and VHF, commercial and
educational television stations, 2,587 UHF translator stations, 2,275
VHF translator stations, and 1,825 UHF and VHF low power television
stations which would be affected by decisions reached in this
proceeding. The impact of actions taken in this proceeding on small
entities would ultimately depend on the final decisions taken by the
Commission. However, the Commission, in taking future action will
continue to balance the need to provide the public with affordable,
flexible, accessible digital broadcast television service with the
economic and administrative interests of the affected industries.
VII. Any Significant Alternatives Minimizing the Impact on Small
Entities Consistent with Stated Objectives.
This Fifth Further Notice of Proposed Rule Making is intended to
examine the issue of what, if any, transmission standard for digital
television should be adopted by the Commission. In so doing, we are
soliciting comments and suggestions that hopefully will represent the
views of all of the industries concerned, and thus the Commission will
be better able to minimize whatever negative impact might face small
entities as a result of our decisions.
Ordering Clause
61. Accordingly, it is ordered That pursuant to the authority
contained in Sections 4 and 303 of the Communications Act of 1934, as
amended, 47 U.S.C. Sections 154 and 303, this Fifth Further Notice of
Proposed Rule Making IS ADOPTED.
62. Additional Information: For additional information regarding
this proceeding, contact Saul Shapiro (202-418-2600) or Roger Holberg
(202-418-2134), Mass Media Bureau.
63. As required by Section 603 of the Regulatory Flexibility Act,
the Commission has prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the expected impact on small entities of the proposals
suggested in this document. The IRFA is set forth above. Written public
comments are requested on the IRFA. These comments must be filed in
accordance with the same filing deadlines as comments on the rest of
the Notice, but they must have a separate and distinct heading
designating them as responses to the Initial Regulatory Flexibility
Analysis. The Secretary shall send a copy of this Fifth Further Notice
of Proposed Rule Making, including the Initial Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration in accordance with paragraph 603(a) of the Regulatory
Flexibility Act. Public Law 96-354, 94 Stat. 1164, 5 U.S.C. Section 601
et seq. (1981).
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Appendix A
Additional procedural or general broadcast rules that may be
modified or adapted for DTV.
Sec.
73.607 Availability of channels.
73.611 Reference points and distance computations.
73.612 Protection from interference.
73.615 Administrative changes in authorizations.
73.621 Noncommercial educational TV stations.
73.635 Use of common antenna site.
73.684 Prediction of coverage.
73.685 Transmitter location and antenna system.
73.686 Field strength measurements.
73.688 Indicating instruments.
73.1010 Cross reference to rules in other parts.
73.1015 Truthful written statements and responses to Commission
inquiries and correspondence.
73.1030 Notifications concerning interference to radio astronomy,
research and receiving installations.
73.1120 Station location.
73.1125 Station main studio location.
73.1201 Station identification.
73.1202 Retention of letters received from the public.
73.1206 Broadcast of telephone conversations.
73.1207 Rebroadcasts.
73.1208 Broadcast of taped, filmed, or recorded material.
73.1209 References to time.
73.1211 Broadcast of lottery information.
73.1212 Sponsorship identification; list retention; related
requirements.
73.1213 Antenna structure, marking and lighting.
73.1216 Licensee-conducted contests.
[[Page 26872]]
73.1217 Broadcast hoaxes.
73.1225 Station inspections by FCC.
73.1226 Availability to FCC of station logs and records.
73.1230 Posting of station and operator licenses.
73.1250 Broadcasting emergency information.
73.1510 Experimental authorizations.
73.1515 Special field test authorizations.
73.1520 Operation for tests and maintenance.
73.1580 Transmission system inspections.
73.1590 Equipment performance measurements.
73.1610 Equipment tests.
73.1615 Operation during modification of facilities.
73.1620 Program tests.
73.1635 Special temporary authorizations (STA).
73.1660 Acceptability of broadcast transmitters.
73.1665 Main transmitters.
73.1670 Auxiliary transmitters.
73.1675 Auxiliary antennas.
[FR Doc. 96-13394 Filed 5-28-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-13390 Airworthiness Directives; The Don Luscombe Aviation History Foundation Model 8 Series Airplanes.
[Federal Register Volume 61, Number 104 (Wednesday, May 29, 1996)]
[Proposed Rules]
[Pages 26853-26854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13390]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 95-CE-99-AD]
RIN 2120-AA64
Airworthiness Directives; The Don Luscombe Aviation History
Foundation Model 8 Series Airplanes.
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes to adopt a new airworthiness directive
(AD) that would apply to The Don Luscombe Aviation History Foundation
(referred to as Luscombe from hereon) Model 8 series airplanes. The
proposed action would require installing new inspection holes,
modifying the wing tip fairings, and inspecting the wing spars for
intergranular corrosion. Reports of intergranular corrosion occurring
in the wings prompted the proposed action. The actions specified by the
proposed AD are intended to prevent wing spar failure resulting from
intergranular corrosion, which, if not detected and corrected, could
result in structural failure of the wings and loss of control of the
airplane.
DATES: Comments must be received on or before July 31, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Central Region, Office of the Assistant Chief
Counsel, Attention: Rules Docket No. 95-CE-99-AD, Room 1558, 601 E.
12th Street, Kansas City, Missouri 64106. Comments may be inspected at
this location between 8 a.m. and 4 p.m., Monday through Friday,
holidays excepted.
Service information that applies to the proposed AD may be obtained
from The Don Luscombe Aviation History Foundation, P.O. Box 63581,
Phoenix, Arizona 85082; telephone (602) 917-0969 and facsimile (602)
917-4719. This information also may be examined at the Rules Docket at
the address above.
FOR FURTHER INFORMATION CONTACT: Ms. Lirio L. Liu, Aerospace Engineer,
FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Blvd.,
Lakewood, California, 90712; telephone (310) 627-5229; facsimile (310)
627-5210.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications should identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report that summarizes each FAA-public contact concerned
with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket No. 95-CE-99-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Central Region, Office of the Assistant Chief Counsel,
Attention: Rules Docket No. 95-CE-99-AD, Room 1558, 601 E. 12th Street,
Kansas City, Missouri 64106.
Discussion
The FAA has received reports of corrosion occurring on both the
metal covered wing spars and the fabric-covered wing spars of the
Luscombe Model 8 series airplanes. The service history of these
airplanes indicates there is a problem of limited access holes to the
interior of the metal covered wings to look for any corrosion, which
inhibits inspecting the area around the wing spar extrusions. The
fabric covered wings on the Luscomb Model 8 airplanes have adequate
access holes for inspecting purposes. Routine maintenance inspections
have reported intergranular corrosion in the front and rear spar
extrusion in the wings of these airplanes.
The Don Luscombe Aviation History Foundation has issued Service
Recommendation No. 2, dated December 15, 1993, Revised November 21,
1995, which specifies installing new inspection holes, modifying the
wing tip fairings, and inspecting the wing spars for intergranular
corrosion.
After examining the circumstances and reviewing all available
information related to the incidents described above, the FAA has
determined that AD action should be taken to detect intergranular
corrosion in the wing spars, which, if not detected and corrected,
could result in structural failure of the wings and loss of control of
the airplane.
Since an unsafe condition has been identified that is likely to
exist or develop in other Luscombe Model 8 series airplanes of the same
type design, the proposed AD would require installing a total of four
additional wing inspection holes in the metal covered wings to assist
in conducting a more thorough examination of the wing spars, modifying
the wing tip fairing so that it is removable, and providing easier
access to the interior of the wings. A one
[[Page 26854]]
time inspection for intergranular corrosion is proposed for both metal
covered and fabric covered wings on the Luscomb Model 8 airplanes in
the areas of the front and rear spar extrusions of the wing
installations.
The FAA estimates that 2,029 airplanes in the U.S. registry would
be affected by the proposed AD, that it would take approximately 7
hours per airplane to accomplish the proposed action, and that the
average labor rate is approximately $60 an hour. The Luscombe
Installation kit #8007 cost approximately $125 per airplane. Based on
these figures, the total cost impact of the proposed AD on U.S.
operators is estimated to be $1,105,805. This figure includes the cost
of the installation, modification, and inspection. This figure applies
to Model 8 airplanes that have metal covered wings. For airplanes that
have fabric covered wings, the cost will only be for the one-time
inspection, which is estimated to take approximately 1 hour per
airplane.
Luscombe has informed the FAA that these Installation Kits have
been distributed to equip approximately 150 airplanes. Assuming that
these distributed kits are incorporated on the affected airplanes, the
cost of the proposed AD would be reduced by $18,750 from $1,105,805 to
$1,087,055.
The compliance time of this AD is presented in calendar time
instead of hours time-in-service (TIS). The FAA has determined that a
calendar time compliance is the most desirable method because the
unsafe condition described by this AD is caused by corrosion. Corrosion
initiates as a result of airplane operation, but can continue to
develop regardless of whether the airplane is in service or in storage.
Therefore, to ensure that the above-referenced condition is detected
and corrected on all airplanes within a reasonable period of time
without inadvertently grounding any airplanes, a compliance schedule
based upon calendar time instead of hours TIS is required.
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated,
will not have a significant economic impact, positive or negative, on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act. A copy of the draft regulatory evaluation
prepared for this action has been placed in the Rules Docket. A copy of
it may be obtained by contacting the Rules Docket at the location
provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding a new airworthiness directive
(AD) to read as follows:
The Don Luscombe Aviation History Foundation (formerly The Luscombe
Aircraft Company): Docket No. 95-CE-99-AD.
Applicability: Model 8 series airplanes (all serial numbers),
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (d) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it. Compliance: Required within the next 12 calendar months
after the effective date of this AD, unless already accomplished.
To prevent wing spar failure resulting from intergranular
corrosion, which, if not detected and corrected, could result in
structural failure of the wings and loss of control of the airplane,
accomplish the following:
(a) For Luscombe Model 8 series airplanes with metal covered
wings,
(1) Install two additional wing inspection holes (left wing and
right wing) using the Don Luscombe Aviation History Foundation
(DLAHF) Kit #8007, Wing Access and Inspection Kit, in accordance
with the Compliance Procedures section, paragraphs ``1B Metal
Covered Wings.'', (a), (a1.) through (a9.), and (b.) of the Luscombe
Service Bulletin (SB) #2, dated December 15, 1993, REVISED November
21, 1995, and
(2) Modify the wing tip fairing using the DLAHF Kit #8007, Wing
Access and Inspection Kit, in accordance with the Compliance
Procedures section, paragraphs ``1B Metal Covered Wings.'', (c), and
(c1.) through (c5.) of the Luscombe SB #2, dated December 15, 1993,
REVISED November 21, 1995.
(b) For all affected Luscombe Model 8 series airplanes, inspect
one time for intergranular corrosion in the areas of the front and
rear spar extrusions of the wing installations in accordance with
the Compliance Procedures: section, paragraph ``1A. Fabric Covered
Wings.'' or paragraph ``2. Inspect'' of the Luscombe SB #2, dated
December 15, 1993, REVISED November 21, 1995, whichever paragraph is
applicable to the wing construction of the airplane.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) An alternative method of compliance or adjustment of the
initial compliance time that provides an equivalent level of safety
may be approved by the Manager, Los Angeles Aircraft Certification
Office, 3960 Paramount Blvd., Lakewood, California, 90712. The
request shall be forwarded through an appropriate FAA Maintenance
Inspector, who may add comments and then send it to the Manager, Los
Angeles Aircraft Certification Office.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Los Angeles Aircraft Certification Office.
(e) All persons affected by this directive may obtain copies of
the document referred to herein upon request to The Don Luscombe
Aviation History Foundation, P. O. Box 63581, Phoenix, Arizona
85082; telephone (602) 917-0969 and fax (602) 917-4719; or may
examine this document at the FAA, Central Region, Office of the
Assistant Chief Counsel, Room 1558, 601 E. 12th Street, Kansas City,
Missouri 64106.
Issued in Kansas City, Missouri, on May 21, 1996.
Bobby Sextion,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-13390 Filed 5-28-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-13384 Reasserting NRC's Authority for Approving Onsite Low-Level Waste Disposal in Agreement States; Withdrawal
[Federal Register Volume 61, Number 104 (Wednesday, May 29, 1996)]
[Proposed Rules]
[Pages 26852-26853]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13384]
=======================================================================
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
10 CFR Part 150
RIN 3150-AC57
Reasserting NRC's Authority for Approving Onsite Low-Level Waste
Disposal in Agreement States; Withdrawal
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule: Withdrawal.
-----------------------------------------------------------------------
SUMMARY: The Nuclear Regulatory Commission (NRC) is withdrawing a
notice of proposed rulemaking that would have reasserted the NRC's
jurisdiction in Agreement States over the disposal of licensed material
generated and disposed of at nuclear reactor sites. The proposed rule
would also have clarified the jurisdiction over disposal of noncritical
waste quantities of special nuclear material at reactors and fuel cycle
facilities.
FOR FURTHER INFORMATION CONTACT: Joseph J. Mate, Office of Nuclear
Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, telephone (301) 415-6202.
SUPPLEMENTARY INFORMATION:
Background
On August 22, 1988 (53 FR 31880), the Commission published a notice
of proposed rulemaking in the Federal Register entitled ``Reasserting
NRC's Authority for Approving Onsite Low-Level Waste Disposal in
Agreement States.'' This rule would have reasserted the NRC's
jurisdiction in the Agreement States over the disposal of low-level
radioactive waste generated and disposed of at reactor sites. The
proposed rule would also have clarified the jurisdiction over the
disposal of noncritical waste quantities of special nuclear material at
fuel cycle facilities. The NRC would have authorized this disposal
under 10 CFR 20.302, but 10 CFR part 20, ``Standards for Protection
Against Radiation,'' was revised in May 1991 (56 FR 23360). The
applicable regulation is now 10 CFR 20.2002.
The purpose of the proposed rule was to provide for a more
centralized and consistent regulatory review of all onsite waste
management activities and to avoid duplication of regulatory effort by
the NRC and the Agreement States. The uniform review process that would
result from the proposed rule was intended to provide greater assurance
that onsite disposal of radioactive material will not present a health
hazard and that the disposal of this waste in this manner will not
unnecessarily complicate or delay decommissioning.
As a result of publishing the proposed rule in the Federal
Register, the NRC received 49 comment letters. Twelve commenters (24
percent) favored the proposal, 37 commenters (76 percent) opposed the
proposal. Comments were submitted by private citizens, Agreement and
Non-Agreement States, nuclear utilities, nuclear utilities'
representatives, and various conservation and public interest groups.
The vast majority of the comments favoring the proposal were from
nuclear utilities and their representatives. Comments opposed to the
proposal came from private citizens, Agreement and Non-Agreement
States, and conservation and public interest groups. Nineteen of the
commenters questioned the need for the proposed rule, six commenters
wanted the States' participation in the approval process to be
specified, and a few States questioned the NRC's authority to
promulgate the rule. The remaining commenters were concerned with
better definitions of the protected and exclusion areas, the type of
waste to be covered by the rule, existing onsite disposal, and the
impact on regional low-level waste disposal facilities. Some States
commented that the Agreement States were more familiar with local
conditions and that their requirements were more strict than the NRC's.
Of the 10 Agreement States that commented, 9 States were opposed to the
amendments. The remaining Agreement State that commented supported the
rule but reserved the right to participate in the approval process with
full review privileges and expected their concerns to be addressed.
As a result of the public comments received and the relatively low
hazards
[[Page 26853]]
associated with onsite disposal of low-level waste radioactive
material, the NRC reevaluated the merits of the proposed rule. In the 7
years since this rulemaking was originally proposed, there have been a
number of approvals granted by Agreement States for onsite disposal of
low-level waste material under the equivalent of 10 CFR 20.2002
(successor to 20.302). The NRC staff is not aware of any problems with
the Agreement States' approvals of any onsite burials of low-level
waste material.
Based on the comments received, the relatively low hazards
associated with onsite disposal of this type of radioactive material,
and current experience with disposals, the NRC has reevaluated the
issues and concluded that it is not necessary to reassert its
regulatory jurisdiction over onsite disposal at reactor sites in the
Agreement States.
Therefore, the proposed rule is not required and is being
withdrawn. Withdrawal of the proposed rule does not affect the current
NRC jurisdiction over disposal of special nuclear material by reactor
or fuel cycle licensees. With the withdrawal of the proposed rule, the
Agreement States will maintain jurisdiction over the disposal of low-
level radioactive waste on nuclear reactor sites.
Dated at Rockville, Md, this 22nd day of May, 1996.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 96-13384 Filed 5-28-96; 8:45 am]
BILLING CODE 7590-01-P
Complete official Federal Register PDF
FR Doc. 96-13383 Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin; Secretary's Decision and Referendum Order on the Proposed Marketing Agreement and Order
[Federal Register Volume 61, Number 104 (Wednesday, May 29, 1996)]
[Proposed Rules]
[Pages 26956-26979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13383]
[[Page 26955]]
_______________________________________________________________________
Part II
Department of Agriculture
_______________________________________________________________________
Agricultural Marketing Service
_______________________________________________________________________
7 CFR Part 930
Tart Cherries Grown in the States of Michigan, New York, Pennsylvania,
Oregon, Utah, Washington, and Wisconsin; Secretary's Decision and
Referendum Order on the Proposed Marketing Agreement and Order;
Proposed Rule
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 /
Proposed Rules
[[Page 26956]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 930
[Docket No. AO-370-A5; FV93-930-2]
Tart Cherries Grown in the States of Michigan, New York,
Pennsylvania, Oregon, Utah, Washington, and Wisconsin; Secretary's
Decision and Referendum Order on the Proposed Marketing Agreement and
Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule and referendum order.
-----------------------------------------------------------------------
SUMMARY: This decision proposes the issuance of a marketing agreement
and order for tart cherries grown in certain designated States and
provides growers and processors the opportunity to vote in a referendum
to determine if they favor the proposed order. For the purposes of this
document, the term ``Cherries'' refers to all tart/sour cherry
varieties grown in the proposed production area, which consists of the
States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington,
and Wisconsin. The proposed order would authorize volume regulation,
grade, size, and maturity regulations, and mandatory inspection. It
would also authorize production, processing, and marketing research and
promotion projects, including paid advertising. The order would be
administered by an 18 member administrative board consisting of 17
growers and handlers and one public member, and would be financed by
assessments on handlers of tart cherries grown in the production area.
A primary objective of this program would be to improve producer
returns by strengthening consumer demand through volume control and
quality assurance mechanisms. Tart cherry producers and processors
would vote in a referendum to determine if they favor issuance of the
proposed marketing order.
DATES: The referendum shall be conducted from June 12, 1996, through
July 10, 1996. The representative period for the purpose of the
referendum herein ordered is July 1, 1995, through May 31, 1996.
FOR FURTHER INFORMATION CONTACT:
(1) R. Charles Martin or Kenneth G. Johnson, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.
Box 96456, room 2523-S, Washington, D.C. 20090-6456; telephone: 202-
720-5053, FAX: 202-720-5698.
(2) Robert Curry, Northwest Marketing Field Office, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, 1220
S.W. Third Avenue, room 369, Portland, Oregon 97204; telephone: 503-
326-2725, FAX: 503-326-7440.
SUPPLEMENTARY INFORMATION:
Prior Documents in This Proceeding
Notice of Hearing, issued on November 30, 1993, and published in
the Federal Register on November 30, December 23, 1993, and January 31,
1994 [58 FR 63108, 58 FR 68065, and 59 FR 4259, respectively]. The
notice reopening the hearing was issued on December 5, 1994, and
published in the Federal Register on December 8, 1994 [59 FR 63273];
Recommended Decision and Opportunity to File Written Exceptions to the
Proposed Marketing Agreement and Order, issued November 20, 1995, and
published in the Federal Register on November 29, 1995 (60 FR 61292).
The reopening of the comment period to file written exceptions to the
proposed marketing agreement and order was issued on December 27, 1995,
and published in the Federal Register on January 2, 1996 (61 FR 21).
This administrative 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.
The marketing agreement and order proposed herein have been
reviewed under Executive Order 12778, Civil Justice Reform. They are
not intended to have retroactive effect. If adopted, the proposed
agreement and order would not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with the 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 the Secretary 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 requesting 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, the Secretary 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 the Secretary's
ruling on the petition, provided an action is filed not later than 20
days after the date of the entry of the ruling.
Preliminary Statement
This proposed marketing agreement and order was formulated on the
record of a public hearing held December 15-17, 1993, in Grand Rapids,
Michigan; January 13, 1994, in Provo, Utah; February 15-17, 1994, in
Portland, Oregon; January 12-13, 1995, in Portland, Oregon; and January
18-19, 1995, in Grand Rapids, Michigan. These multiple hearing sessions
were held to consider a proposed marketing agreement and order
regulating the handling of tart cherries grown in the proposed
production area. 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). Approximately 40
witnesses, including tart cherry growers, handlers, and economists,
testified in support of the order. Growers and handlers mainly from the
States of Oregon and Washington testified in opposition to the proposed
order and asked to have Oregon and Washington excluded from the
proposed production area.
At the conclusion of the February 1994 hearing in Oregon, the
deadline for filing post-hearing briefs was set at April 29, 1994. The
deadline for filing post-hearing briefs was subsequently extended to
May 31, 1994. However, based on a review of the hearing evidence and
post-hearing briefs, USDA determined that the hearing should be
reopened to clarify some provisions. USDA wanted to obtain additional
information and clarification concerning: (1) The States that should be
regulated under the order; (2) the economic impact of the proposed
order on small and large businesses; (3) whether the expected program
benefits would exceed costs, especially for growers, handlers and
consumers; and (4) how certain provisions would be implemented under
the proposed marketing order. The hearing was reopened and held January
12-13, 1995, in Portland, Oregon, and January 18-19, 1995 in Grand
Rapids, Michigan. At the conclusion of the Michigan hearing, the
deadline for filing post-hearing briefs was set at March 17, 1995. Ten
briefs were filed following the first briefing period and seven briefs
were filed following the second briefing period.
The proponents testified that severely fluctuating tart cherry
prices are
[[Page 26957]]
inherently harmful to growers and consumers. It was contended that the
proposed marketing order would improve grower returns by strengthening
consumer demand through volume control and quality assurance
mechanisms.
Upon the basis of evidence introduced at the hearing and the record
thereof, the Administrator of the Agricultural Marketing Service (AMS)
on November 29, 1995, filed with the Hearing Clerk, U. S. Department of
Agriculture, a recommended decision with the opportunity for written
exceptions by December 29, 1995. Subsequently, the USDA received three
requests to provide more time to analyze the recommended decision and
prepare and file written comments. Based on these requests the USDA
reopened the comment period until January 16, 1996.
There were 29 exceptions received on the proposed order. Seven
exceptions support the order as proposed, 4 support the order with
minor modifications, 2 support the order with substantial
modifications, 15 oppose the order, and 1 recommends only a minor
technical clarification. Exceptions were received from: Richard
DeRuiter, Michigan tart cherry processor; Senator Mark Hatfield,
Congressional Representatives Peter DeFazio, Jim Bunn, Ron Wyden,
Elizabeth Furse, and Wes Cooley, all from the State of Oregon; Mark L.
Schrepel, Oregon tart cherry grower and processor; William R. Sherman,
Burnette Foods, Inc., Michigan grower/processor; Randy Hageman, General
Manager, Milne Fruit Products; Rick Jacobson, NORPAC Foods; Christian
Schlect, President, Northwest Horticultural Council; Mark Riley,
Michigan tart cherry grower; Terry Dorsing, President, Washington Tart
Cherry Products, Inc.; Ray, Jim, Mildred and Mary Schultz, Michigan
tart cherry growers; Philip Walker, Oregon tart cherry grower; Thomas
A. Facer, Vice-President Agricultural Services, Comstock Michigan Fruit
Division; Lee W. Schrepel, Chair, Oregon Tart Cherry Association; Bruce
Andrews, Director, Oregon Department of Agriculture; the Department of
Justice, Anti-Trust Division; Claude A. Rowley, Manager, Payson Fruit
Growers; David Frank, Fruit Belt Canning, Co. Inc.; Norman R.
Veliquette, President, Great Lakes Packing Company; Dean Kleckner,
President, American Farm Bureau Federation; Forest P. Johnson, Michigan
tart cherry grower; Ken Guise, Executive Vice-President, Chief
Operating Officer, Knouse Foods Cooperative, Inc.; Kenneth T. Morrison,
President, Cherry Growers, Inc.; David White, President, Chain O'Lakes
Fruit Growers Association; Randy G. Harmson, General Manager, Michigan
Agricultural Cooperative Marketing Association, Inc.; Jack Laurie,
President, Michigan Farm Bureau; Teryl R. Roper, Associate Professor
and Extension Fruit Specialist, University of Wisconsin; Gene A.
Veliquette, Michigan tart cherry grower, President, Shoreline Fruit,
Inc.; Ian A. MacKay, CPA, American Institute of Certified Public
Accountants; and the Cherry Marketing Institute (CMI), the proponent
group.
The issues raised in the exceptions are discussed in the Findings
and Conclusions.
Small Business Consideration and Paperwork Reduction Act: In
accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.),
AMS has considered the economic impact of this action on small
entities. The record indicates that there are approximately 1,600
growers of tart cherries and 75 handlers who process cherries in the
production area proposed to be regulated. Small agricultural service
firms have been defined by the Small Business Administration (SBA) (13
CFR 121.601) as those whose annual receipts are less than $5,000,000,
and small agricultural producers as those having annual receipts of
less than $500,000. The majority of the tart cherry handlers and
producers may be classified as small entities.
For practical purposes, there is no fresh market for tart cherries.
Processors dry, freeze, can, juice, or puree pitted tart cherries.
Market use averages are: 56 percent of the product becomes industrial
grade frozen cherries; 16 percent goes into consumer-size cans of pie
filling; 8 percent is used for commercial pie filling; 10 percent
becomes juice concentrate; 2 percent is dried; and, 8 percent goes into
water packs.
Since 1971, there has been a marked transformation in the
processing industry's structure. Currently, 75 percent of the crop is
processed by farmer-owned cooperatives or grower-owned processing
facilities; whereas in 1971, a substantial volume was processed by
independent handlers. Processors, through their sales agents, market in
all U.S. markets and export to Europe and Asia. There are no discrete
regional markets where cherries from a particular district could have a
particular advantage, beyond nominal differences in transportation
costs, which can often be overcome by price discounting.
The record evidence shows that economic adversity has caused more
than 21 percent of Michigan's growers to withdraw from tart cherry
farming. There were 1,183 Michigan commercial growers in 1986, compared
to 933 in 1992. In 1992, Michigan growers had an average production of
238,000 pounds with 19 percent of those growers averaging 800,000
pounds, accounting for 66 percent of the total Michigan production. In
States other than Michigan, there has also been a general decline in
the number of commercial growers since 1986. There are fewer growers in
other States besides Michigan, but the number of bearing acres has
increased from 45,000 acres in 1986, to more than 50,000 acres in 1990.
Record evidence also indicates that the demand for red tart
cherries is inelastic at high and low levels of production, and
relatively elastic in the middle range. At the extremes, during times
of very low and very high production, different factors become
operational. In very short crop years, such as 1991, there is limited
but sufficient exclusive demand for cherries that can cause processor
prices to double and grower prices to triple. In the event of large
crops, there seems to be no price low enough to expand sales beyond
about 275 million pounds of raw fruit in a single year.
Since 1982, annual sales have averaged 230 million pounds. Under
the proposed order, total returns to growers could be increased by
restricting supplies of red tart cherries available for sale by
handlers during large crop years. Also, production characteristics of
the tart cherry industry provide an opportunity to increase growers'
total earnings by converting the excess production of large crop years
into storable products that could constitute reserve pools. These pools
would be liquidated in a year when the available supplies are short.
One of the main concerns addressed in this proposed order is the
short term annual variation in supply which is attributable to climatic
factors that neither growers nor processors can control, and which
leads to chaotic marketing conditions. Such climatic factors can result
in highly unpredictable annual crop sizes, causing gluts and shortages
of tart cherries. When gluts occur, large carryin inventories can
decrease processor and grower prices, regardless of the anticipated
size of the oncoming year's crop. Many sales are consummated with large
buyers well before the current crop year's supply and demand situation
is clear (based on what can best be described as ``Anticipated
Supply'', i.e., the sum of the carryin inventory and USDA crop
forecast, available usually
[[Page 26958]]
late in June, weeks before the actual crop harvest.)
These large, unrestricted carryin inventories and crop estimates
can play a dominant role in setting the tone of the market in a given
year. The proposed order is intended to lessen the impact of these
inventories and estimates by establishing an ``optimum supply,''
thereby reducing price swings to growers and buyers, and ultimately
resulting in a stabilization and enhancement of the market.
The order would impose some reporting and record keeping
requirements on handlers. Handler testimony indicated that the expected
burden that would be imposed with respect to these requirements would
be negligible since most of the information that would be reported to
the Board is already compiled by handlers for other uses and is readily
available. Reporting and record keeping requirements issued under
comparable marketing order programs impose an average annual burden on
each regulated handler of about one hour. It is reasonable to expect
that a comparable burden would be imposed under this proposed marketing
order on the estimated 75 handlers of tart cherries. With respect to
growers, they testified at the hearing that information required to be
submitted to the Board for grower diversion is already collected and
available from growers.
The Act requires that, prior to the issuance of a marketing order
for tart cherries, a referendum be conducted among effected producers
and processors to determine if they favor issuance of the order. The
ballot material that would be used in conducting the referendum would
be submitted to and approved by OMB before it is used. It is estimated
that it would take an average of 20 minutes for each of the
approximately 1,600 tart cherry growers and 75 tart cherry processors
to complete the ballots. Additionally, it has been estimated that it
would take approximately ten minutes for each handler to read and sign
the marketing agreement.
In compliance with Office of Management and Budget (OMB)
regulations (5 CFR Part 1320), which implement the Paperwork Reduction
Act of 1995 (Pub. L. 104-13), the information collection and record
keeping requirements contained in the proposed rule specific to the
ballot material to be used in conducting the referendum have been
approved by OMB on a temporary basis and have been assigned OMB number
0581-0177. An expiration date of September 1996 has been established
for this temporary OMB approval. A complete package of information and
collection requirements contained in this proposed rule will be
submitted, for approval, to OMB at a later date. Those requirements
would not become effective prior to OMB review. Interested persons
would be provided 60 days to comment on : (1) whether the proposed
collection of information is necessary for the functioning of the
proposed tart cherry marketing order program and USDA'S oversight of
that program; (2) the accuracy of the collection burden estimate and
the validity of methodology and assumptions used in estimating the
burden on respondents; (3) ways to enhance the quality, utility, and
clarity of the information requested; and (4) ways to minimize the
burden, including use of automated or electronic technologies. Any
record keeping and reporting requirements imposed would be evaluated
against the potential benefits to be derived and it is expected that
any added burden resulting from increased reporting and record keeping
would not be significant when compared to those anticipated benefits
derived from administration of the order.
The purpose of the RFA is to fit regulatory and informational
requirements to the size and scale of the business entities in a manner
that is consistent with the objectives of the rule and applicable
statutes. The proposed marketing order provisions have been carefully
reviewed and every effort has been made to eliminate any unnecessary
costs or requirements. As discussed in the RFA, Congress' intent, among
other objectives, was to direct agencies to identify the need for any
``special accommodation'' (e.g., exemption or relaxation) on regulated
small entities (i.e., handlers) because, in the past, some Federal
regulatory and reporting requirements imposed unnecessary and
disproportionately burdensome demands on small businesses. After
reviewing the record AMS determined that direct or indirect costs
imposed under the marketing order regulation would not be
proportionately greater on small handlers than on large handlers, or
conversely, that any projected order benefits would not be
proportionately smaller for small handlers than for large handlers.
The record evidence indicates that the proposed order may impose
some additional costs and requirements on handlers, but those costs are
insignificant and are directly proportional to the size of the
regulated handlers. The evidence also indicates that, given the severe
economic conditions and unstable markets facing the majority of the
industry, the benefits to small (as well as large) handlers are likely
to be greater than would accrue under the alternatives to the order
proposed herein, namely no marketing order, or an order without the
proposed combination of volume controls and other order authorities.
The record evidence indicates that the proposed order would be
instrumental in providing expanding markets and sales, and raising and
stabilizing prices of tart cherries, primarily for the benefit of
producers. The evidence also indicates that handlers would benefit as
well. While the level of such benefits to handlers is difficult to
quantify, it is also clear the provisions of the proposed order are
designed to benefit small entities. Small handlers and producers are
more likely to be minimally capitalized than large entities, and are
less likely to survive without the stability the proposed order would
provide.
Accordingly, based on the information discussed above, AMS has
determined that the issuance of this proposed rule and referendum order
would not have a significant economic impact on a substantial number on
small entities.
The material issues presented on the record are:
1. Whether the handling of tart cherries grown in the proposed
production area is in the current of interstate or foreign commerce, or
directly burdens, obstructs, or affects such commerce;
2. Whether the economic and marketing conditions are such that they
justify a need for a Federal marketing agreement and order which will
tend to effectuate the declared policy of the Act;
3. What the definition of the production area and the commodity to
be covered by the marketing order should be;
4. What the identity of the persons and the marketing transactions
to be regulated should be; and
5. What the specific terms and provisions of the order should be
including:
(a) The definition of terms used therein which are necessary and
incidental to attain the declared policy and objectives of the order
and the Act;
(b) The establishment, composition, maintenance, procedures, powers
and duties of a committee that shall be the local administrative agency
for assisting the Secretary in the administration of the marketing
order;
(c) The authority to incur expenses and the procedure to levy
assessments on handlers to obtain revenue for paying such expenses;
[[Page 26959]]
(d) The authority to establish or provide for the establishment of
production, processing and marketing research and marketing development
projects, including paid advertising;
(e) The authority to establish regulations that would require
minimum quality and inspection requirements applicable to cherries to
be handled;
(f) The authority to establish regulations that would provide for a
volume control program;
(g) The establishment of requirements for handler reporting and
record keeping;
(h) The requirement of compliance with all provisions of the order
and with any regulations issued under it; and
(i) Additional terms and conditions as set forth in section 930.81
through section 930.91 of the Notice of Hearing published in the
Federal Register of November 30, 1993, which are common to all
marketing agreements and orders, and other terms and conditions
published at section 930.92 through section 930.94 that are common to
marketing agreements only.
Findings and Conclusions and Rulings on Exceptions
The material issues, findings and conclusions, rulings, and general
findings and determinations included in the Recommended Decision set
forth in the November 29, 1995, issue of the Federal Register [60 FR
61292] are hereby approved and adopted subject to the following
additions and modifications:
Based upon the exceptions filed by Department of Justice, Anti-
trust Division (DOJ), and Mr. Lee Schrepel, the findings and
conclusions in material issue number 2 of the Recommended Decision
concerning the question of whether economic and marketing conditions
are such that they justify a need for a Federal marketing agreement and
order which would tend to effectuate the declared policy of the Act are
amended by adding the following eight paragraphs after the last
paragraph (60 FR 61297) to read as follows:
In its exception to the Recommended Decision, DOJ urged USDA to
reject the proponents' request for a marketing order for tart cherries.
DOJ contended that the proposed marketing order is not by any means a
``national solution'' for any existing problems in the tart cherry
industry, and its implementation would harm the public. DOJ asserts
there is no reliable evidence to show that the proposed marketing order
would produce supply or price stability and it should not be issued. In
addition, DOJ cited two areas of disagreement with the Recommended
Decision. DOJ stated that: (1) The tart cherry industry does not
require regulation based on the evidence presented at the hearing; and
(2) the proposed marketing order would not stabilize tart cherry prices
or supplies.
In regard to its first concern, DOJ stated that growers and
handlers who prefer to protect against fluctuating prices may do so by
using any one of the numerous market mechanisms that already exist for
that purpose. DOJ stated that these mechanisms are far superior to
government regulation for reducing risk because they help producers
deal with fluctuating supplies without artificially inflating prices.
As previously stated, the market mechanisms suggested by DOJ are
currently available to the industry. The marketing order is another
tool for the industry to use in stabilizing supplies. Marketing orders
do not exist to the exclusion of other market mechanisms. However, as
the record shows, those mechanisms have not been effective in dealing
with the production variability problems faced by the industry.
In regard to its second concern, DOJ contended that the finding
that the proposed marketing order would contribute to orderly marketing
conditions and, therefore, effectuate the declared policy of the Act,
is without support in the record. The agency stated that USDA relied
heavily on the testimony of Dr. Forker, who testified on price
stability. It is DOJ's position that Dr. Forker's conclusions on price
stability are wrong and that he improperly manipulated the data to
reach a desired result. In addition, in his exception, Mr. Lee Schrepel
also objected to USDA relying on the evidence presented by Dr. Forker.
As previously stated, USDA believes that the proponents have
demonstrated a need for a tart cherry marketing order. The record
supports the argument that the industry has suffered since the
termination of the prior order. A proposed order was developed to
correct the situation with the goal of increasing grower returns and
bringing supplies in line with demand. Authority for volume control
regulation which would only be used when the market warrants it, is
included in the order. Record evidence supports the need for the
marketing order. Evidence presented at the hearing did not offer a
basis for discrediting Dr. Forker. Dr. Forker is a recognized expert in
his field and there was no persuasive evidence presented at the hearing
which would refute his testimony. In addition, USDA did not rely solely
on Dr. Forker. It considered all the testimony and analyzed the record
in its entirety in arriving at its findings and conclusions.
In Mr. Schrepel's exception, he stated that USDA has discounted any
and all arguments that reporting and record keeping requirements will
be significantly greater for Oregon producers and processors, and that
their subsequent costs and benefits of operating under the marketing
order are proportionately and significantly different than expected to
be experienced in larger producing districts. Mr. Schrepel also
contends that smaller producing States (i.e., Pennsylvania and Oregon)
have not been producing the reports that will be needed under the
marketing order, and therefore it will be an added burden on small
handlers to submit such reports to the Board under the marketing order.
Handlers from the smaller producing areas testified that reporting
to the Board would not be unduly burdensome. They normally keep such
records in conducting their business operations and therefore could
easily compile the information for use under the marketing order. In
addition, handlers in districts which are not volume regulated (e.g.,
the smaller producing states) would have fewer reporting and record
keeping requirements than those handlers in regulated districts since
they would not be maintaining reserve pools and reporting on storage
and disposition. Such requirements would stay reduced as long as that
district's production remains below the trigger amount for volume
regulation.
The record evidence also supports the premise that small growers
and handlers would have the most to benefit from implementation of the
marketing order because such growers and handlers have been going out
of business over most of the last 8 years due to low cherry prices.
Since the order would help increase grower returns, this should
increase the buffer between success and failure.
Based on the above discussion, the exceptions by DOJ and Mr.
Schrepel are denied.
Based upon the exceptions filed by Mr. Dorsing, Mr. Hageman, Mr.
Mark Schrepel, and Mr. Lee Schrepel, the findings and conclusions in
material issue number 3 of the Recommended Decision concerning the
definition of the production area and the commodity to be covered are
amended by adding the following six paragraphs after the last paragraph
(60 FR 61299) to read as follows:
The exception filed by Mr. Dorsing stated that the States of
Washington and Oregon should not be included in the proposed marketing
order. Mr. Dorsing
[[Page 26960]]
indicated that 1995 production figures for the State of Washington show
that over 90 percent of the tart cherry production went to juice
concentrate. He contended that the majority of producers in Washington
and Oregon produce their cherries for use in juice concentrate rather
than canned or frozen products. Mr. Dorsing also stated that the juice
characteristics of the Northwest tart cherry are unique in character
and juice companies are finding that the characteristics of Northwest
juice concentrate meet their required specifications. He also stated
that Northwest production is not adding to the ``glut'' in the packed
product industry, since the Northwest is primarily a juice concentrate
industry. Mr. Dorsing stated further that the Northwest tart cherry
industry pays for its own storage, develops its own markets and does
its own promotion and advertising. Thus, there is nothing to be gained
by the Northwest being included in the tart cherry marketing order. In
addition, Mr. Dorsing requested that each State be allowed to vote
separately for inclusion in the marketing order.
The exception filed by Mr. Hageman opposed the proposed marketing
order. He stated that the order would unnaturally inflate grower prices
to nearly double the current level. He also asked that Washington and
Oregon be excluded from coverage under the proposed marketing order.
The reason given was that Washington and Oregon account for 6.5 percent
of the 1990-1994 total U.S. production and that, during the same time
period, less than 20 percent of the Washington and Oregon production
entered the five plus one canned and frozen product line. This would
indicate that less than 1.5 percent of the nation's supply of five plus
one stock was produced in the Northwest. It was argued by Mr. Hageman
that the Northwest industry is dependent on the juice concentrate and
puree market which does not compete with the five plus one market. Mr.
Hageman also requested a State-by-State referendum.
The exception filed by Mr. Mark Schrepel stated that any proposed
order should not include the State of Oregon, and that the Act appears
not to include cherries for canning or freezing if they originated in
Oregon or Washington. Mr. Schrepel believes that no Oregon grower or
processor supports the order. He also requested a State-by-State
referendum.
The exception filed by Mr. Lee Schrepel indicated that one of the
reasons the proposed order should exclude Washington and Oregon is
because the Northwest has distinctive production and marketing
characteristics. Further, it is Mr. Schrepel's contention that
successful marketing orders depend on the support of affected producers
and handlers. According to him, the unanimous opposition of Oregon
producers and handlers and near unanimous opposition by Washington
producers and handlers demonstrate the lack of this essential element.
Mr. Schrepel also requested voting by a State-by-State referendum.
As previously stated, to exclude any portion of the proposed
production area would tend to defeat the purpose of the proposed order
and could depress prices of the regulated cherries. Contrary to Mr.
Schrepel's suggestion, Oregon and Washington cherries for freezing or
canning are not excluded from coverage under the Act. Record evidence
supports the position that the oversupply situation in the U.S. is a
national problem. In addition, the juice concentrate market in areas
such as Oregon and Washington can be impacted by production in other
areas. Therefore, the entire industry needs to work together to
alleviate the problem. Also, the record evidence supports the argument
that the Northwest has the greatest potential to expand tart cherry
producing acreage, thereby further benefiting from the proposed order
in the event of increased production. Therefore, the Northwest should
be included in the production area under the proposed order and the
requests to exclude Oregon and Washington from the proposed production
area are denied.
In regard to the requests to conduct a State-by-State referendum to
determine who should be covered under the proposed tart cherry order,
such requests are denied. The Act requires that all producers and
processors in the proposed production area should vote in a referendum
on the promulgation of an order. There is no authority for State by
State voting.
Based upon the exception filed by CMI, the findings and conclusions
in material issue number 5(a) of the Recommended Decision concerning
the commodity to be covered are amended by adding the following
paragraph after the sixth paragraph (60 FR 61300) to read as follows:
CMI stated that the definition of cherries should be modified to
correct the misspelling of a species name and to include the words ``or
hybrids of'' to the cherry definition. Adding these words would correct
and clarify the definition. Therefore, CMI's exception is adopted
herein.
Based upon the exceptions filed by CMI, Mr. Morrison, and Mr.
Facer, the findings and conclusions in material issue number 5(b) of
the Recommended Decision concerning the establishment, composition,
maintenance, procedures, powers and duties of the Board are amended by
adding the following eight paragraphs after the 73rd paragraph in
material issue number 5(b) (60 FR 61307) to read as follows:
In its exception, it was CMI's contention that the order should be
modified to require that, in order for the Board to adopt preliminary
or final free and restricted percentages for any crop year, at least 11
Board members from districts that would be subject to volume regulation
vote in the affirmative on any such action. CMI also wanted this
requirement to apply if there are modifications to the marketing policy
under section 930.50(f). In addition, CMI argued that since the
Recommended Decision contains a Board voting requirement of two-thirds
of the entire Board rather than a majority of the Board, as originally
proposed, this modification is necessary because it is important that a
clear majority of those who are going to be regulated agree with the
determination before volume regulation can go into effect. It was also
CMI's concern that the unregulated districts could somehow influence
the decision to impose volume regulation when such regulation is a
possibility under the optimum supply formula. Eleven votes out of 13 is
approximately 85 percent of the votes from the volume regulated
districts. CMI suggested that this voting requirement apply to
recommendations made under sections 930.50(b), 930.50(d) and 930.50(f).
In his exception, Mr. Morrison argued that Board members from
nonregulated districts should not be allowed to vote on matters
concerning regulation of the crop or the timing on the release of the
primary pool.
Throughout this formal rulemaking process, it has been expressed
that the oversupply situation in the U.S. is a national problem, and
that the entire industry should work together to alleviate the problem
by participating in the proposed marketing order. Although USDA
understands CMI's concerns, they are overstated, since the proposed
order provisions concerning the marketing policy and issuance of volume
regulations contain a number of procedural steps which, in many
respects, make them self-executing. Also, it is the Secretary, and not
the Board, who issues the volume regulations and sets the final free
and restricted percentages. Therefore, as
[[Page 26961]]
previously discussed in the Recommended Decision, all actions by the
Board, including volume regulation issues, should continue to require a
two-thirds affirmative vote of the entire Board to pass. Therefore,
CMI's and Mr. Morrison's exceptions are denied.
Mr. Facer requested that only regulated districts be allowed to
vote on the release of the primary reserve. This is not necessary nor
is it supported by the record. As previously stated the situation that
exists in the industry is a national problem, therefore, all members
that represent the tart cherry industry in the Board should vote in all
matters. The reserve would be released by the Board when certain
conditions exist. For example, proposed section 930.50(g) would
release, to all handlers, up to an additional 10 percent (above the
optimum supply level) of the average of the prior three years sales, if
such inventory is available in the primary inventory reserve.
Therefore, Mr. Facer's exception is denied.
Based upon the exception filed by CMI and Mr. Lee Schrepel, the
findings and conclusions in material issue number 5(b) of the
Recommended Decision concerning the establishment, composition,
maintenance, procedures, powers and duties of the Board are amended by
adding the following three paragraphs after the fourth paragraph (60 FR
61301) to read as follows:
Questions and recommendations regarding order language concerning
the Board membership limitation on sales constituencies in proposed
Sec. 930.20(f) were raised by both Mr. Lee Schrepel and CMI. It was Mr.
Schrepel's concern that a single sales constituency could potentially
gain control of the Board and he asked that not more than 30 percent of
the Board be allowed to be affiliated (even remotely) in any manner
with a single sales constituency. However, a 30 percent limitation is
not adequately supported by the record. CMI's concern was that if a
grower who sells cherries through a number of different processors is
nominated for membership to the Board in a district, all of those
processors but one would then be prevented from having grower
representation on the Board. According to CMI, this would be true even
if the grower sold a very small amount of cherries to a particular
handler on a one-time basis. As proposed by CMI, this concern can be
addressed by considering the sales constituency to which the grower
delivers the majority of his or her cherries to be the grower's sales
constituency for nomination and representation purposes.
Concerns regarding sales constituencies and Board representation
have been raised from the beginning of this rulemaking process. That is
one of the reasons that USDA decided to impose a two-thirds voting
requirement instead of a simple majority, and added a provision
requiring the consensus of at least two-thirds of the entire Board to
pass any action by the Board (see page 61306 of the Recommended
Decision). The record is clear that the major reason Sec. 930.20(f)
generated so much discussion was the perception among some of the
participants at the hearing sessions that the Board could become
controlled by a single constituency, and the interests of those growers
and handlers not associated with such constituency would not receive
proper attention or could be ignored altogether. Additions and changes
to Sec. 930.20(f) were suggested by Mr. Lee Schrepel and CMI, and
although these have merit, they are not dispositive of the main issue,
i.e., control of the Board by a single interest group.
When the question of adding further restrictions to Sec. 930.20(f)
arose early in the rulemaking proceeding, CMI indicated that it was
unlikely that any single sales constituency could gain control of the
Board, and that theoretical projections of such possibilities are not
realistic. Furthermore, it was pointed out by CMI that the Secretary
could effectively enforce the limitations contemplated by
Sec. 930.20(f) without modifying its language because the ultimate
decision of whom to appoint to the Board lies with the Secretary.
Therefore, in light of such requirements, and clear record evidence
that the purpose of Sec. 930.20(f) is to achieve a fair and balanced
Board representation, USDA will not add additional limitations to
Sec. 930.20(f), but, instead, will add language to more clearly express
the purpose of that section. In addition, the Secretary could issue
regulations to implement the section, if necessary.
Based upon the exception filed by Mr. Lee Schrepel, the findings
and conclusions in material issue number 5(b) of the Recommended
Decision concerning the establishment, composition, maintenance,
procedures, powers and duties of the Board are amended by adding the
following two paragraphs after the 30th paragraph (60 FR 61303) to read
as follows:
In Mr. Lee Schrepel's exception, he stated that the testimony by
the proponent made it clear that its intent is to maintain control of
the Board's public member. It was Mr. Schrepel's view that the proposed
marketing order still has no provisions to prevent the Board from
appointing Board members. Mr. Schrepel argued that the public member
should be appointed at the sole discretion of the Secretary, without
the advice or consent of the Board.
The Secretary has discretion in appointing members and alternate
members to the Board, including the public member. The appointments can
be made from Board nominees or other qualified individuals. In the case
of the public member and such member's alternate, the Secretary is
relying on the Board to nominate and elect eligible individuals. As was
previously stated in the Recommended Decision, such individuals would
then be subject to appointment by the Secretary. This procedure is
similar to the selection of public members and alternates on other
marketing order committees. Therefore, Sec. 930.24 is modified to
clarify the selection and appointment procedure.
Based upon the exceptions filed by Mr. Facer, Mr. Guise, Mr. Lee
Schrepel and CMI, the findings and conclusions in material issue number
5(b) of the Recommended Decision concerning the establishment,
composition, maintenance, procedures, powers and duties of the Board
are amended by adding the following six paragraphs after the 27th
paragraph (60 FR 61303) to read as follows:
The exception filed by Mr. Facer stated that the responsibilities
and authority of the Board relating to its ability to assess the
industry for research, development, promotion and advertising are too
broadly described. Also, the Board composition includes too much
representation from the nonregulated districts.
USDA relies on the marketing order committees and boards to
recommend rules and regulations concerning their particular industries.
Marketing order committees and boards are comprised of industry grower
and handler members and are experienced in the industry's operations
and should be capable of evaluating the industry's needs. It is for the
Secretary to determine whether rules recommended by committees or
boards should be issued. Board composition was recommended by the
proponent group to provide fair and equitable representation to the
entire industry based on the relative levels of production of cherries
in the various producing districts. It was the proponents' position
that all States covered under the order should be represented on the
Board in order to keep them informed of the Board's activities. In
addition, all States covered under the marketing order have the
potential to become regulated States in the future. Mr. Facer's
exception is therefore denied.
[[Page 26962]]
The exceptions filed by Mr. Ken Guise, Mr. Lee Schrepel and CMI
requested that the proposed order be modified to correct the handler
nomination petition process for District 6. Currently, only one handler
exists in District 6, which covers the State of Pennsylvania (Knouse
Foods Cooperative, Inc.). The Recommended Decision provided that for a
handler to be nominated for election to the Board, the handler would
have to obtain the signature of at least one handler, other than the
nominee, from the nominee's district who is eligible to vote in the
referendum. Under this procedure, Mr. Guise and CMI point out that
since there is no other handler in District 6 except Knouse Foods, such
handler would be denied the opportunity to be nominated for election to
the Board and District 6 would never be represented by a handler
representative unless another handler were to start operating in that
District.
CMI stated that this result is wholly unintended by the proponent
and requests that the USDA modify section 930.23(b)(2) to require that
when nominating handler members to the Board, the petition form be
signed by a handler other than the nominee shall not apply in any
District where less than two handlers are eligible to vote.
Mr. Schrepel requested that the same procedures developed for
Pennsylvania also apply to Washington and Oregon, since they have very
few handlers. The modification proposed by the proponents would also
address Mr. Lee Schrepel's concerns since the modification would apply
to any District that has less than two handlers.
Mr. Guise's, Mr. Lee Schrepel's and CMI's exception on this issue
is therefore adopted in this Secretary's Decision and appropriate
changes are made in section 930.23(b)(2).
Based upon the exception filed by Mr. Lee Schrepel, the findings
and conclusions in material issue number 5(b) of the Recommended
Decision concerning the establishment, composition, maintenance,
procedures, powers and duties of the Board are amended by adding the
following paragraph after the 33rd paragraph (60 FR 61304) to read as
follows:
Mr. Lee Schrepel requested that the procedures for electing
alternate members to the Board be more clearly detailed in the order.
The proposed order provides under section 930.23 that each member and
alternate member would be nominated and elected separately. The Board
has the authority to recommend rules and regulations to effectuate such
authority and specify more detailed procedures in regard to the
nomination process. Therefore, Mr. Schrepel's exception is denied.
Based upon the exception filed by Mr. Lee Schrepel, the findings
and conclusions in material issue number 5(b) of the Recommended
Decision concerning the establishment, composition, maintenance,
procedures, powers and duties of the Board are amended by adding the
following paragraph after the 35th paragraph (60 FR 61304) to read as
follows:
In his exception, Mr. Schrepel stated that USDA has submitted
contradictatory language regarding the nomination process. He claimed
that USDA appears to be advancing it's own interests of fast tracking
the proposal, if promulgated, by conducting nomination meetings in the
districts and allowing growers and handlers to vote for members and
alternate members at these meetings. USDA is not fast tracking such a
proposal. If the Secretary determines that conducting nomination
meetings and voting at these meetings would be the best method of
completing the process in a timely manner, then such method should be
used. Should the proposed order receive the required level of grower
and processor support in the referendum, USDA intends to conduct
meetings to nominate and elect the initial Board members and alternate
members using petition forms and election ballots as provided by
Sec. 930.23. Therefore, Mr. Schrepel's exception is denied.
In Mr. Lee Schrepel's exception, he indicated that there was an
error in proposed section 930.22 regarding Board members' terms of
office. The current proposed order specifies that one-third of such
initial members and alternates shall serve only one fiscal year, one-
third of such members and alternates shall serve only two fiscal years
and one-third of such members and alternate members shall serve two
fiscal years. The latter reference to two fiscal years should be
changed to three fiscal years to be consistent with the record
evidence. Mr. Schrepel is correct and his exception is adopted herein
by revising the order language.
Based upon the exceptions filed by Mr. MacKay and Mr. Lee Schrepel,
the findings and conclusions in material issue number 5(b) of the
Recommended Decision concerning the establishment, composition,
maintenance, procedures, powers and duties of the Board are amended by
adding the following three paragraphs after the 51st paragraph (60 FR
61305) to read as follows:
In Mr. Lee Schrepel's exception, he stated that in section
930.31(h), the reference to disbursement of all funds, including the
payment of storage to handlers, should not be included in that
particular section. USDA does not intend for the Board to utilize
assessments to pay for the storage of any cherries or cherry products.
The proponent's proposal to collect assessments from handlers for
storage of primary inventory reserve cherries was removed by the USDA
in the Recommended Decision. Therefore, such language referencing
storage assessments should not be contained in the proposed order. This
has been an oversight and such language shall be removed. Therefore,
Mr. Schrepel's exception is adopted.
The exception filed by Mr. MacKay requested that the proposed
marketing order be modified under the area of duties of the Board to
include that the Board's financial statements be prepared in accordance
with generally accepted accounting principles and to be audited by a
certified public accountant. Currently, the proposed order provides
that the Board cause its books to be audited by a certified public
accountant. Mr. MacKay requested USDA to clarify in the final order
whether the term ``books'' refers to the Board's financial statements
and clarify the basis for the financial statement presentation
(generally accepted accounting principles).
The term ``books'' does refer to the Board's financial statements.
The modification to change the term ``books'' to ``financial
statements'' is incorporated in this document. However, the
modification to clarify the basis for the financial statement
presentation (generally accepted accounting principles) is denied. The
Fruit and Vegetable Division's Marketing Agreement and Order Operation
Manual specifies the types of financial statement presentations to be
used in committee audits. This manual is used by all marketing order
committees and is a policy document issued by USDA. It is not feasible
to place such language in the order, since in the future, USDA could
change the basis for financial statement presentation for all marketing
order committees to use. If such a change occurred, the marketing order
would have to be amended, which can be a costly process. Therefore,
such a modification is denied. Thus, Mr. MacKay's exception is
partially denied.
Based upon the exception filed by Mr. Lee Schrepel, the findings
and conclusions in material issue number 5(c) of the Recommended
Decision concerning the authority to incur expenses and the procedure
to levy assessments on handlers to obtain revenue for paying such
expenses are
[[Page 26963]]
amended by adding the following paragraph after the seventh paragraph
(60 FR 61308) to read as follows:
In his exception, Mr. Lee Schrepel contended that a built-in limit
on the authority to level assessments should be established. Mr.
Schrepel proposed that this authority be capped at no more than 5
percent of the average field price for the season. He suggested that
this limit could be adjustable through modification at continuance
referendum time or more frequently. Under the order, the tart cherry
industry assessment rate would be dependent on meeting administrative
and other expenses and would be necessarily influenced by the volume of
the crop. The assessment rate would be established through informal
rulemaking which would require a Board recommendation and an
opportunity for public comment. Mr. Schrepel did not specify why 5
percent of the average field price for the season would be a reasonable
limit, and record evidence does not contain support for such a cap.
However, if the marketing order is implemented, the Board could adopt
such a cap as a guideline when recommending the assessment rate.
Therefore, Mr. Schrepel's exception is denied.
Based upon the exception filed by Mr. Lee Schrepel, the findings
and conclusions in material issue number 5(c) of the Recommended
Decision concerning the authority to incur expenses and the procedure
to levy assessments on handlers to obtain revenue for paying such
expenses are amended by adding the following two paragraphs after the
eighth paragraph (60 FR 61308) to read as follows:
In Mr. Lee Schrepel's exception, he stated that it is not equitable
to exempt from assessment those cherries which are diverted in
accordance with proposed sections 930.58 and 930.59.
Pursuant to section 930.62, cherries would be exempt from
assessments if they are diverted according to section 930.59. Product
diverted by handlers would not be entering normal market channels,
therefore assessments should not be levied. Mr. Schrepel does not point
to any evidence in the record to support his exception concerning
assessment of diverted cherries. Conversely, record testimony amply
supported exempting diverted cherries, since they are not entering
normal market channels. Therefore, Mr. Schrepel's exception is denied.
Based upon the exceptions filed by Mr. Mark Schrepel and Mr.
Morrison, the findings and conclusions in material issue number 5(c) of
the Recommended Decision concerning the authority to incur expenses and
the procedure to levy assessments on handlers to obtain revenue for
paying such expenses are amended by adding the following three
paragraphs after the eighth paragraph (60 FR 61308) to read as follows:
In Mr. Mark Schrepel's exception, he stated that he is concerned
about provisions within the proposal that would add expense and
hardship to growers. Mr. Schrepel contended that handlers should not be
assessed under this marketing order program if handlers are not in a
regulated district. He further stated that handlers in unregulated
districts should not be assessed for any expenses accrued by the Board
since handlers who divert are not assessed on diverted product.
As supported by record evidence, all growers and handlers in the
States proposed to be covered under the marketing order, including
those not subject to volume regulation, would enjoy the benefits
provided by the marketing order (i.e., improved grower returns and
increased consumption of tart cherries). Therefore, all handlers should
be assessed for the administrative costs of the order. Also, handlers
who enter cherries into normal market channels who choose to divert
some of their cherries would still be assessed for the cherries that
enter normal market channels. Therefore, Mr. Schrepel's exception is
denied.
In Mr. Morrison's exception, he stated that further effort needs to
be made to make sure that growers understand that the cost of holding
and processing the reserve can be passed on to growers by their
handlers. It is true that some handlers may pass such costs on to their
growers, either directly or indirectly. Under the former order, which
was based on a grower pool, growers were directly assessed storage and
processing costs for reserve pool cherries. However, this proposed
order is based on a handler pool. Therefore, it does not contain
authority to assess growers for such costs. Because of this difference,
Mr. Morrison's recommendation to somehow emphasize that storing and
processing costs can be passed on to growers is denied.
Based upon the exception filed by Mr. Lee Schrepel, the findings
and conclusions in material issue number 5(d) of the Recommended
Decision concerning the authority to provide for the establishment of
production, processing and marketing research and market development
projects, including paid advertising, are amended by adding the
following paragraph after the sixth paragraph (60 FR 61309) to read as
follows:
Mr. Lee Schrepel questioned whether the handlers in States that
have State marketing order programs should be exempted from paying
assessments on research and marketing development to the Federal
marketing order. Mr. Schrepel stated that there should only be one
assessment, a Federal or state assessment, not both. There is no
current proposal to exempt handlers from paying these assessments if
they are in a State that has a State marketing order program. The
record evidence did indicate that it would be highly unlikely that the
Board would initiate recommendations for research, development, or
promotion related assessments while a high percentage of tart cherry
growers are financing such activities through other organizations. The
record evidence does not contain support for Mr. Schrepel's proposal,
therefore, his exception is denied.
Based upon the exceptions filed by Mr. Frank, Mr. Morrison, Mr.
Facer, and Mr. Lee Schrepel, the findings and conclusions in material
issue number 5(e) of the Recommended Decision concerning the authority
to establish regulations that would require minimum quality and
inspection requirements are amended by adding the following six
paragraphs after the seventh paragraph (60 FR 61310) to read as
follows:
In Mr. Frank's exception, he stated that sections 930.44 (a) and
(b) are ambiguous and do not spell out what form of inspection would be
required (raw product or finished product). He also stated that any
inspection of free tonnage cherries should be a decision by a handler
and growers that deliver cherries to such handler. This should not be a
decision by an administrative body such as the Board. Local weather
conditions could affect a small geographic area, thereby causing damage
in a localized area rather than the entire production area under the
proposed order. This also interferes with a handler's decision on what
quality such handler feels could be marketed. Mr. Frank suggested that
the above mentioned sections be deleted from the proposed marketing
order.
Mr. Morrison also filed an exception that stated that only the
quality of cherries placed in the reserve should be regulated. This
would be the same as the prior order. Also, Mr. Morrison stated that
the Board should not regulate the raw product grade.
In Mr. Facer's exception, he stated that although the order
requires inspection of primary reserve tart cherries, there is no
official quality standards for some products. Therefore,
[[Page 26964]]
such inspection will be impractical, irrelevant and of no economic
benefit.
In Mr. Lee Schrepel's exception, he stated that the Board should
not be empowered to require the inspection of all cherries entering the
stream of commerce.
As previously stated, the proponents testified that as technology
increases, the Board should have the authority to adopt quality
standards for cherries, especially those concerning pit count. If
quality standards are recommended by the Board and implemented by the
Secretary, no handler would be allowed to process cherries into
manufactured products or sell manufactured products in the current of
commerce unless the cherries used in such products meet the applicable
requirements. Before recommending quality regulation, the record
evidence shows that it was the intent of the proponents that the Board
would obtain an industry consensus before making a recommendation to
USDA on this issue. Any such regulation would be issued by the
Secretary through informal rulemaking which would allow an opportunity
for comment.
Without additional Board action, only inventory reserve cherries
would be inspected, prior to placing them in the reserve. It is
imperative to maintain the quality of the reserve so that only good
quality cherries are released to handlers to be sold in the
marketplace. Therefore, based on the above discussion on the record
evidence, Mr. Frank's, Mr. Morrison's, Mr. Facer's, and Mr. Lee
Schrepel's exceptions are denied.
Based upon the exception filed by Mr. Lee Schrepel, the findings
and conclusions in material issue number 5(e) of the Recommended
Decision concerning the authority to establish regulations that would
require minimum quality and inspection requirements are amended by
adding the following two paragraphs after the 4th paragraph (60 FR
61310) to read as follows:
In Mr. Schrepel's exception, he stated that the cost of inspecting
new cherries to be rotated into the reserve and removing older cherries
out of the reserve should be at the expense of the handler. Such action
as this, undertaken by or at the convenience of the affected handler
for the benefit of the handler or some other party, should not be the
expense of the industry.
As previously stated, rotating cherries in the reserve is not a
requirement. However, it would benefit the industry if it were done.
This would insure that good quality cherries are being released when
inventory reserve cherries are sold. The Board will have the authority
to limit the number of inspections of cherries to be rotated into
inventory for which the Board would be financially liable. In order to
establish such limits, the Board would make a recommendation to the
Secretary and informal rulemaking would be conducted. Based on the fact
that the record evidence supports including this authority it will
remain in the order. Therefore, Mr. Lee Schrepel's exception is denied.
Based upon the exception filed by Mr. Lee Schrepel, the findings
and conclusions in material issue number 5(e) of the Recommended
Decision concerning the authority to establish regulations that would
require minimum quality and inspection requirements are amended by
adding the following two paragraphs after the third paragraph (60 FR
61310) to read as follows:
The exception filed by Mr. Lee Schrepel stated that there should be
no reimbursement of inspection costs for quality inspections for any
reserve or free market cherries. Also, requirements for reinspection
are inappropriate unless such cherries are part of the primary reserve.
The record evidence indicates that quality control inspections
would be paid for by handlers. However, inspections of primary reserve
cherries should be paid for by the Board. As previously stated, this
would insure that only good quality cherries would be available for
release from the reserve into the marketplace. This benefits all in the
industry. In regard to reinspection, cherries would only be reinspected
if they were regraded, resorted, repackaged or any other way further
prepared for market. This would be done if a handler had to repackage a
product that was already packaged for a client. This provision is a
safety valve to prevent poor quality product entering the marketplace.
New crop cherries would be inspected prior to being placed in the
primary reserve. The record evidence supports the above provisions,
therefore, Mr. Lee Schrepel's exception is denied.
Based upon the exceptions filed by CMI, the findings and
conclusions in material issue number 5(e) of the Recommended Decision
concerning the authority to establish regulations that would require
minimum quality and inspection requirements are amended by adding the
following paragraph after the seventh paragraph (60 FR 61310) to read
as follows:
CMI's exception stated that the proponent wishes to make it clear
that the Board would exercise its powers with regard to the
establishment of quality standards and inspection requirements in a
manner consistent with the establishment of quality standards under the
prior order. Producers and handlers were comfortable with the way that
the Board under the prior order instituted inspection requirements. The
proponents expect the new Board would operate in the same manner,
although they recognize that there are obvious significant differences
between the two orders. In addition, such quality regulations would be
implemented through the informal rulemaking process which would require
a Board vote and opportunity for the public to comment.
Based upon the exception filed by Mr. Harmson, the findings and
conclusions in material issue number 5(f) of the Recommended Decision
concerning the authority to establish volume regulation provisions
under the proposed order are amended by adding the following two
paragraphs after the 15th paragraph (60 FR 61311) to read as follows:
In an exception filed by Mr. Harmson, he stated that the provision
that would allow the Board to acknowledge a national bargaining agency
on behalf of growers should not be deleted from the proposed order.
Bargaining associations are a form of group action in agriculture that
contributes greatly to the economic well being of growers and adds an
important dimension to representation of their interests in the
marketplace.
As previously stated, the record evidence did not adequately
explain how such a provision would work or what the benefits would be
to growers. Also, the record evidence did not define the functions of a
national bargaining association as related to the proposed marketing
order. Therefore, Mr. Harmson's exception is denied.
Based upon the exception filed by Mr. Lee Schrepel, the findings
and conclusions in material issue number 5(f) of the Recommended
Decision concerning the authority to establish volume regulation
provisions under the proposed order are amended by adding the following
two paragraphs after the 23rd paragraph (60 FR 61312) to read as
follows:
The exception filed by Mr. Lee Schrepel stated that ownership of
the primary or secondary reserve should not be allowed to be
transferred, but remain with the handler who had the initial reserve
obligation.
Record evidence supported authorizing the transfer of a handler's
equity in the primary reserve to another person. As previously stated,
a handler may need to do this if, for example, such handler does not
have the storage
[[Page 26965]]
area to store the primary reserve. Therefore, Mr. Schrepel's exception
is denied.
Based upon the exception filed by CMI, the findings and conclusions
in material issue number 5(f) of the Recommended Decision concerning
the authority to establish volume regulation provisions under the
proposed order are amended by adding the following paragraph after the
seventh paragraph (60 FR 61311) to read as follows:
In CMI's exception, it stated that section 930.50(b) governing the
application of the optimum supply formula in calculating preliminary
free and restricted percentages was altered from the proponents'
proposal. The proponents' proposal provided that tonnage requirements
for the current crop year should be subtracted from the current year
USDA crop forecast. The Recommended Decision provided that these
numbers should be divided. This calculation would not work properly and
is an inadvertent error by USDA. Therefore, it will be corrected in the
amendatory language and CMI's exception is adopted.
Based upon the exception filed by CMI, the findings and conclusions
in material issue number 5(f) of the Recommended Decision concerning
the authority to establish volume regulation provisions under the
proposed order are amended by adding the following paragraph after the
67th paragraph (60 FR 61316) to read as follows:
The exception filed by CMI indicated that section 930.52(d) should
be corrected and clarified by removing the word ``maximum'' in the
phrase ``maximum average annual processed production'' since this
phrase is ambiguous and lacks clear meaning. One can either have a
maximum annual production or an average annual production over the last
five years, but not both. Therefore, section 930.52(d) should be
modified by removing the word ``maximum'' and simply permit a district
to drop out of volume regulation when its current crop is 50 percent
less than the average crop processed over the prior five years. CMI's
exception is adopted herein.
Based upon the exceptions filed by Mr. Rowley, Mr. Morrison, CMI,
Mr. Mark Schrepel, and Mr. Lee Schrepel, the findings and conclusions
in material issue number 5(f) of the Recommended Decision concerning
the authority to establish volume regulation provisions under the
proposed order are amended by adding the following eight paragraphs
after the 59th paragraph (60 FR 61315) to read as follows:
The exception filed by Mr. Rowley stated that he was very concerned
that the Recommended Decision did not authorize cherries used for
drying as a diversion outlet. Mr. Rowley stated that his company had
spent over $1,500,000 to develop dried cherries and dried cherry
products. He believes that it would be grossly unfair that unregulated
States could sell all their dried cherry products and he could not
since dried cherries is not a diversion outlet.
Mr. Mark Schrepel's exception expressed concern that export would
be prohibited as an exempt use or diversion outlet.
Mr. Morrison's exception requested that diversion credit be allowed
for juice, exports and dried cherries. Mr. Morrison stated that
companies have invested substantial sums to develop new markets and
expand current markets dealing with juice, export and dried cherries.
In CMI's exception, it requested that the USDA modify section 930.62 to
include dried cherries that are exported, and cherries that are
converted to juice.
Under section 930.59 of the proposed order, handler diversion can
take place by several methods, including uses exempt under section
930.62. Section 930.62 provides that diverted cherries used for
specific purposes may be exempt from certain provisions of the
marketing order. These include exemption from assessment and volume
control provisions.
Dried cherries or cherries designated for export can be exempted
under Sec. 930.62 from certain order provisions or can be allowed to
qualify as diversion outlets under Sec. 930.59. As specified under
section 930.62, the Board can also designate other exempt uses. If the
Board choose to designate export or dried cherries as an exempted use
under Sec. 930.62, export and dried cherries could also be specified as
an eligible diversion outlet. Thus, such uses requested by the
exceptions for diversion credit are not prohibited under the marketing
order, except for cherries converted to juice or juice concentrate.
As previously discussed, record evidence supports the proposition
that cherries converted to juice or juice concentrate cannot be used as
an eligible diversion outlet. The arguments raised in the exceptions
did not overcome the evidence in the record indicating that cherries
converted to juice or juice concentrate cannot be used as an eligible
diversion. This is mainly because of the possibility of oversupplies
damaging the juice market already established by cherry producers and
handlers in Oregon and Washington.
In addition, CMI's exception requested USDA to modify section
930.59(d) to clarify that the prohibition of juice or juice concentrate
as an eligible handler diversion only prohibits the conversion of
diverted cherries to juice or concentrate. CMI requested that the use
of juice or juice concentrate for sales in export markets be eligible
for diversion credit. As previously discussed, the prohibition of juice
or juice concentrate for diversion credit, discussed in the Recommended
Decision (60 FR 61316), would also apply to sales of juice or juice
concentrate in export markets. This prohibition on diversion credit,
however, does not preclude the export of free tonnage cherries that
have been converted to juice or juice concentrate. Therefore, CMI's
exception is denied.
Finally, Mr. Lee Schrepel's exception stated that there was an
error in section 930.58(b) which referenced section 930.63 as exempted
uses. Section 930.62 is the section in the marketing order that
specifies the exempt uses. Therefore, section 930.58(b) should be
corrected.
Based upon the exceptions filed by Mr. Frank and Mr. Facer, the
findings and conclusions in material issue number 5(f) of the
Recommended Decision concerning the authority to establish volume
regulation provisions under the proposed order are amended by adding
the following paragraph after the 68th paragraph (60 FR 61317) to read
as fol
FR Doc. 96-13383 Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin; Secretary's Decision and Referendum Order on the Proposed Marketing Agreement and Order
lows:
In Mr. Frank's exception, he stated that tart cherries is a
national crop and the oversupply is a national problem. Therefore,
Washington, Oregon, Wisconsin and Pennsylvania should not be exempt
from participating in the marketing order. These States comprise 17
percent of the total bearing acreage. Mr. Frank states that this is not
an insignificant amount and to exempt these States from participating
in the marketing order is not fair or right. In Mr. Facer's exception,
he stated that he opposed the 15 million pound requirement tart cherry
producing areas would have to meet to become regulated under the order.
All tart cherry producing areas should be included or there should not
be a marketing order. The above-mentioned States are not exempt from
the marketing order. If the proposed order becomes effective, they
would not be regulated under the order's proposed volume regulation
because they do not meet the 15 million pound criteria. Should they
meet the criteria in the future, they would become regulated. Handlers
in all States would pay assessments for the administration of the
order. The record evidence does not warrant volume
[[Page 26966]]
regulation in the States discussed by Mr. Frank or Mr. Facer, at this
time. Therefore, Messrs. Frank's and Facer's exceptions are denied.
Based upon the exception filed by Mr. Facer, the findings and
conclusions in material issue number 5(f) of the Recommended Decision
concerning the authority to establish volume regulation provisions
under the proposed order are amended by adding the following two
paragraphs after the 23rd paragraph (60 FR 61312) to read as follows:
Mr. Facer expressed a concern that the proposed order would not
protect individual producers' investments in processing/marketing
cooperatives. He stated that many producers have made substantial
investments in cooperatives to market their production while other
producers have no such investments. It is his contention that the order
will make all producers equal, allowing each to market the same portion
of his/her crop.
The proposed order does not regulate producers. The order regulates
only handlers of tart cherries. If a volume regulation is implemented,
handlers would have to decide how to market their product, whether to
withhold the required reserve or divert product, or both. Independent
handlers and cooperatives would be making similar decisions concerning
tart cherries to those they have made in the past when faced with
overproduction. Such decisions would include identifying which
producers' cherries to purchase, and which of those to utilize in
various products and markets. The proposed marketing order is intended
to bring supplies in line with current demand, thereby increasing
returns to growers. Therefore, Mr. Facer's exception is denied.
Based upon the exception filed by Mr. Lee Schrepel, the findings
and conclusions in material issue number 5(f) of the Recommended
Decision concerning the authority to establish volume regulation
provisions under the proposed order are amended by adding the following
two paragraphs after the 20th paragraph (60 FR 61312) to read as
follows:
Mr. Lee Schrepel's exception stated that the Board, even with the
concurrence of the Secretary, should never have authority to modify the
50 million pound primary reserve limit. If a modification occurs, it
should involve a proposal of modification to the Secretary followed by
a comment period and State-by-State voting.
The record evidence supports the 50 million pound level specified
in section 930.50(i). If the Board recommended a change to the 50
million pound level, it would have to be implemented through the formal
rulemaking process which would require a public hearing and eventually
a favorable vote by growers and processors to implement such change.
State-by-State voting is not authorized under the Act nor is it
supported by the record.
Based upon the exception filed by CMI, the findings and conclusions
in material issue number 5(f) of the Recommended Decision concerning
the authority to establish volume regulation provisions under the
proposed order are amended by adding the following paragraph after the
16th paragraph (60 FR 61311) to read as follows:
The exception filed by CMI stated that there was an inconsistency
in section 930.55(b) of the proposed order. The record evidence
supported the concept that handlers could place cherries in any form in
the inventory reserve. Handlers would have the option of choosing what
form of inventory they wish to store. However, proposed section
930.55(b) states that the form to be used would be prescribed by the
Board. This statement is inconsistent with the record evidence.
Therefore, CMI's exception is adopted and appropriate modifications are
made in section 930.55(b).
Based upon the exception filed by CMI, the findings and conclusions
in material issue number 5(f) of the Recommended Decision concerning
the authority to establish volume regulation provisions under the
proposed order are amended by adding the following paragraph after the
15th paragraph (60 FR 61311) to read as follows:
The exception filed by CMI stated that section 930.53 should also
apply to the modification, suspension, or termination of quality
regulations along with volume regulations. This change would clarify
the Board's responsibility to monitor crop and market conditions and
recommend changes to existing regulations as necessary. Therefore,
CMI's exception is adopted and appropriate modifications to section
930.53 have been made.
Based upon the exception filed by Mr. Lee Schrepel, the findings
and conclusions in material issue number 5(f) of the Recommended
Decision concerning the authority to establish volume regulation
provisions under the proposed order are amended by adding the following
paragraph after the 12th paragraph (60 FR 61311) to read as follows:
In Mr. Lee Schrepel's exception, he stated that the reference to
the harvest season beginning in August (used as part of an
illustration) was incorrect. Mr. Schrepel stated that the harvest
season actually begins in mid-June and runs through mid-August. Mr.
Schrepel's exception is correct.
Based upon the exception filed by Mr. Lee Schrepel, the findings
and conclusions in material issue number 5(f) of the Recommended
Decision concerning the authority to establish volume regulation
provisions under the proposed order are amended by adding the following
paragraph after the 52nd paragraph (60 FR 61314) to read as follows:
The exception filed by Mr. Lee Schrepel stated that grower
diversion credit should not be given for fruit that is storm damaged. A
diversion credit may be a marketable commodity, an item of value, and
no such value should be accrued for unmarketable cherries. USDA did not
include the proponents' proposal to authorize diversion credit for
unharvestable or unmarketable fruit. The record evidence supported the
proposition that growers should be allowed to receive diversion credit
for marketable, harvestable fruit, even if some portion of such fruit
was damaged by storm winds or floods. USDA has determined that the
grower diversion program contained in the Recommended Decision could
benefit the industry and believes that this finding is consistent with
Mr. Schrepel's exception.
Based upon the exceptions filed by CMI and Mr. Lee Schrepel, the
findings and conclusions in material issue number 5(f) of the
Recommended Decision concerning the authority to establish volume
regulation provisions under the proposed order are amended by adding
the following 10 paragraphs after the 68th paragraph (60 FR 61317) to
read as follows:
The exception filed by CMI stated that since USDA modified the
provisions under section 930.52, the section may not now provide
authority to subject additional districts to volume regulation once the
initial group of volume regulated districts is established at the time
of promulgation. CMI also proposes a new section 930.52 to replace
section 930.52 that was published in the Recommended Decision. CMI
objected to USDA removing a 150 percent trigger provision which would
make districts that had a surge in production subject to volume
control. USDA determined that such an additional criteria would be
complicated for the Board to administer and possibly inequitable to
growers and handlers.
CMI stated that, since the 150 percent trigger was removed from the
proposal, the potential now exists for having up to 25 million pounds
of unregulated
[[Page 26967]]
production. In a market of 250 million pounds, this amounts to 10
percent of unregulated production annually and an additional 10 percent
could have a substantial impact upon markets and prices. CMI states
that this emphasizes the need to have realistic production triggers.
Also, CMI disagrees with USDA's conclusion that the dual triggers (150
percent and 15 million pounds) would somehow cause confusion and
concern that a district could meet one criteria and not the other and
still be regulated. CMI contends that the rules pertaining to the 15
million pound criteria and the 150 percent trigger are clear on the
record, and therefore are not confusing.
CMI has proposed modifications to section 930.52 which would
provide that: (1) Upon promulgation, those districts potentially
subject to any imposed volume regulation would be those in which the
average annual production of cherries over the prior three years,
measured on a total production basis, has exceeded 15 million pounds of
cherries and that handlers in districts not meeting this 15 million
pound requirement at the time of order promulgation shall become
subject to any volume regulation implemented in accordance with this
part in the crop year that follows any three-year period in which the
15 million pound average production requirement is exceeded in that
district; (2) If total production data is unavailable for a district,
the Board would adjust the 15 million pound trigger upward or downward
by a factor accounting for the historical difference between the total
production and total utilization; and (3) When a district hits the 15
million pound trigger, it would be subject to regulation in the next
crop year and remain regulated until the crop year following that in
which its production drops below 15 million pounds over any three-year
period subsequent to the year in which it hit the original 15 million
pound threshold.
Regarding modification number one, USDA is adopting CMI's
exception. This would clarify the intent and meaning of section 930.52
which should provide that after the initial regulation of districts
that meet the 15 million pound test, additional districts may become
regulated in the future.
Regarding modification number two, USDA is not adopting this
exception. Such factors as proposed by CMI would be confusing and
difficult to administer. If the order is promulgated, information
needed to calculate each State's production would be collected under
the marketing order. The marketing order provides for information
collection from handlers that can be used for this purpose.
Finally, the third modification is also denied. This modification
would lock a State in to being regulated for three years once it
reaches the 15 million pound threshold. This was not the intent of
USDA's modification to the Recommended Decision to delete the 150
percent trigger mechanism. USDA intended that States would become
regulated in the year subsequent to when they reach 15 million pounds
(computed as a rolling average of a three year period). Also, States
would become unregulated in the year subsequent to when they fell below
the 15 million pounds. The production of each State or district would
be reviewed annually to determine if they would be regulated or not
regulated in the upcoming crop year. Therefore, CMI's exception is
denied on this issue.
In Mr. Lee Schrepel's exception, he stated that the Board should
not have the authority to modify the 15 million pound requirement for
volume regulation. If the Board decided to recommend modification of
the 15 million pound level, such modification would have to be
implemented through formal rulemaking procedures. This would require a
public hearing and a favorable vote by growers and processors to
implement such change.
Mr. Schrepel further stated that the proposal should be modified to
facilitate that this trigger (15 million pound requirement) for
imposition of volume regulations increase whenever it falls below 8
percent of the optimum supply. There is no support in the record for
such proposition. Also, Mr. Schrepel did not specify why 8 percent was
chosen and how this provision would work, therefore, his exception is
denied.
Mr. Schrepel also requested clarification of when districts would
become permanently regulated; would it be contingent upon the average
of the previous three seasons? As previously discussed, no district
would be regulated unless that district continued to have production
above the 15 million pound requirement. Each year, the production of
each district (based on a rolling 3-year average) would be evaluated to
determine if such district would be regulated in the upcoming crop
year.
Mr. Schrepel also requested that USDA specify the source of data
for application of the trigger. USDA believes that the proponents
intended that the Board use post-harvest production figures from each
district. The Board can also obtain this information from USDA data and
handler reports.
Based upon the exception filed by Mr. Lee Schrepel, the findings
and conclusions in material issue number 5(f) of the Recommended
Decision concerning the authority to establish volume regulation
provisions under the proposed order are amended by adding the following
paragraph after the 19th paragraph (60 FR 61312) to read as follows:
Mr. Lee Schrepel's exception stated under section 930.63(a) that
referenced ``60 days prior to the end of the crop year'' appears to be
open to interpretation by the reader. USDA disagrees with this
statement. Crop year is defined under the marketing to mean the 12-
month period beginning on July 1 of any year and ending on June 30 of
the following year. Therefore, 60 days prior to the end of the crop
year would mean April 30. Mr. Schrepel's exception is denied.
Based upon the exception filed by Mr. Lee Schrepel, the findings
and conclusions in material issue number 5(h) of the Recommended
Decision concerning the additional terms and conditions which are
common to all marketing orders are amended by adding the following five
paragraphs after the sixth paragraph (60 FR 61318) to read as follows:
Mr. Lee Schrepel's exception stated that a continuance referendum
every sixth year is not frequent enough. The industry should be able to
petition the Secretary to hold a continuance referendum more
frequently.
The record evidence supported the conduct of a continuance
referendum at least every six years among growers and processors in the
industry to determine if they favor continuance of the order. This is
also consist with Departmental guidelines that endorse a continuance
referendum every six years. The Secretary is not prevented from holding
a continuance referendum at an earlier date if such referendum is
deemed necessary. Therefore, Mr. Schrepel's exception is denied.
Mr. Schrepel also stated that the standards or criteria should be
as stringent for continuance of the order as it is for the initial
promulgation. As was indicated in the Recommended Decision, it was
contemplated that the criteria for continuance of the order would be
based on a two-thirds affirmative vote by number or volume represented
in the referendum. This standard would be similar to the promulgation
standard. In any event, the Secretary would still have discretionary
authority in deciding whether to continue the order. Therefore, Mr.
Schrepel's exception is denied.
[[Page 26968]]
Mr. Schrepel also stated that section 930.91 should include
provisions for the initiation of an amendment from a source within the
industry other than the Board. Mr. Schrepel stated that incidents may
occur and the Board may not choose to act on a matter that may be of
considerable importance to an industry segment. The language in section
930.91 is standard language which is found in other orders and does not
preclude anyone from recommending amendments.
The Secretary relies on the Board to make recommendations that are
important to the welfare of the industry. If one segment of the
industry is concerned about an issue, it should be brought to the Board
to be addressed. Any person can submit recommendations to the Secretary
for consideration. If the Secretary does conclude that formal
rulemaking is necessary based on a Board recommendation or other
recommendations, other persons will also have the opportunity to submit
proposals. In addition, the Secretary may propose amendments, even in
the absence of outside recommendations. Therefore, Mr. Schrepel's
exception is denied.
In addition, to the exceptions filed and discussed above, CMI filed
an exception that included some typographical errors in the amendatory
language of the proposed order. Those changes are adopted in the
amendatory language below. They are:
(1) Section 930.11--Add the words ``for his or her own account'' at
the end of the definition.
(2) Section 930.15--cross sectional references are incorrect that
refer to the primary and secondary reserve.
(3) Section 930.17--cross sectional reference is incorrect that
refers to the primary and secondary reserve.
(4) Section 930.25--the phrase ``reapportionment or'' should be
added to make this section consistent with other changes that were
made.
(5) Section 930.51--A comma and the word ``this'' were left out of
the proposal.
(6) Section 930.55(a)--cross sectional reference is incorrect that
refers to equity holders.
(7) Section 930.57(a)--cross sectional reference is incorrect that
refers to equity holders.
(8) Section 930.58(b)--cross sectional reference is incorrect that
refers to exemptions.
(9) Section 930.58(b)(i)--add an ``and'' at the end of the
paragraph.
(10) Section 930.60--Change ``sole property'' to sole
responsibility.''
Also, in his exception, Mr. Lee Schrepel pointed out some
typographical errors and omissions of words in the Recommended
Decision. They are: (1) the dates of the Grand Rapids, Michigan hearing
session were incorrectly listed (60 FR 61292) and should be changed
from January 9 and 10, 1995, to January 18 and 19, 1995, respectively;
(2) in the description of small agricultural producers as those
entities having annual receipts of less than $500,000 (60 FR 61293),
the words ``less than'' were inadvertently omitted and should be added;
and, (3) the listings of U.S. bearing acreage of tart cherries (60 FR
61293) in 1986 and 1990 were incorrectly stated and should be changed
from 4.5 million and 5 million, respectively, to 45,000 and 50,000,
respectively.
USDA has modified sections 70(c) to make that provision consistent
with authorities provided under this proposed order and other Federal
marketing orders. In addition, where necessary, USDA has made minor
conforming changes to ensure that all sections of this part accurately
reflect the modifications adopted in this decision.
Rulings on Exceptions
In arriving at the findings and conclusions and the regulatory
provisions of this decision, the exceptions to the Recommended Decision
were carefully considered in conjunction with the record evidence. To
the extent that the findings and conclusions and the regulatory
provisions of this decision are at variance with the exceptions, such
exceptions are denied.
Marketing Agreement and Order
Annexed hereto and made a part hereof is the document entitled
``Order Regulating the Handling of Tart Cherries Grown in the States of
Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and
Wisconsin.'' This document has been decided upon as the detailed and
appropriate means of effectuating the foregoing findings and
conclusions.
It is hereby ordered, That this entire decision be published in the
Federal Register.
Referendum Order
It is hereby directed that a referendum be conducted in accordance
with the procedure for the conduct of referenda (7 CFR 900.400) to
determine whether the issuance of the annexed order regulating the
handling of tart cherries grown in the States of Michigan, New York,
Pennsylvania, Oregon, Utah, Washington, and Wisconsin is approved or
favored by growers and processors, as defined under the terms of the
order, who, during the representative period were engaged in the
production or processing of tart cherries in the proposed production
area.
The representative period for the conduct of such referendum is
hereby determined to be July 1, 1995, through May 31, 1996.
The agents of the Secretary to conduct such referendum are hereby
designated to be Gary D. Olson and Robert J. Curry, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, 1220
S.W. Third Avenue, room 369, Portland, Oregon 97204; telephone 503-326-
2724, FAX 503-326-7440.
List of Subjects in 7 CFR Part 930
Marketing agreements, Tart cherries, Reporting and recordkeeping
requirements.
Dated: May 22, 1996.
Shirley R. Watkins,
Deputy Assistant Secretary, Marketing and Regulatory Programs.
Order Regulating the Handling of Tart Cherries Grown in the States of
Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and
Wisconsin 1
---------------------------------------------------------------------------
\1\ This order shall not become effective unless and until the
requirements of section 900.14 of the rules of practice and
procedure governing proceedings to formulate marketing agreements
and marketing orders have been met.
---------------------------------------------------------------------------
Findings and determinations upon the basis of the record. Pursuant
to the provisions of the Agricultural Marketing Agreement Act of 1937,
as amended (7 U.S.C. 601 et seq.), and the applicable rules of practice
and procedure effective thereunder (7 CFR part 900), a public hearing
was held upon a proposed marketing agreement and order regulating the
handling of tart cherries grown in the States of Michigan, New York,
Pennsylvania, Oregon, Utah, Washington, and Wisconsin.
Upon the basis of the evidence introduced at such hearing and the
record thereof, it is found that:
(1) The marketing agreement and order, and all of the terms and
conditions thereof, will tend to effectuate the declared policy of the
Act;
(2) The marketing agreement and order regulate the handling of tart
cherries grown in the production area in the same manner as, and are
applicable only to persons in the respective classes of commercial and
industrial activity specified in the marketing agreement and order upon
which hearings have been held;
[[Page 26969]]
(3) The marketing agreement and order are limited in their
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 subdivisions of
the production area would not effectively carry out the declared policy
of the Act;
(4) There are no differences in the production and marketing of
tart cherries produced in the production area which make necessary
different terms and provisions applicable to different parts of such
area; and
(5) All handling of tart cherries grown in the production area is
in the current of interstate or foreign commerce or directly burdens,
obstructs, or affects such commerce.
Order Relative to Handling
It is therefore ordered, That on and after the effective date
hereof, all handling of tart cherries grown in the States of Michigan,
New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin, shall
be in conformity to, and in compliance with, the terms and conditions
of the said order, as follows:
The provisions of the proposed marketing agreement and order
contained in the Recommended Decision issued by the Administrator on
November 20, 1995, and published in the Federal Register on November
29, 1995 [60 FR 61292], as revised herein, shall be and are the terms
and provisions of this agreement and order. Sections 930.92 through
930.94 apply only to the proposed marketing agreement and not the
proposed order.
Title 7, Chapter IX is proposed to be amended by adding part 930 to
read as follows:
PART 930--TART CHERRIES GROWN IN THE STATES OF MICHIGAN, NEW YORK,
PENNSYLVANIA, OREGON, UTAH, WASHINGTON, AND WISCONSIN
Subpart A--Order Regulating Handling
Definitions
Sec.
930.1 Act.
930.2 Board.
930.3 Cherries.
930.4 Crop year.
930.5 Department or USDA.
930.6 District.
930.7 Fiscal period.
930.8 Free market tonnage percentage cherries.
930.9 Grower.
930.10 Handle.
930.11 Handler.
930.12 Person.
930.13 Primary inventory reserve.
930.14 Production area.
930.15 Restricted percentage cherries.
930.16 Sales constituency.
930.17 Secondary inventory reserve.
930.18 Secretary.
Administrative Body
930.20 Establishment and membership.
930.21 Reestablishment
930.22 Term of office.
930.23 Nomination and election.
930.24 Appointment.
930.25 Failure to nominate.
930.26 Acceptance.
930.27 Vacancies.
930.28 Alternate members
930.29 Eligibility for membership on Cherry Industry Administrative
Board.
930.30 Powers.
930.31 Duties.
930.32 Procedure.
930.33 Expenses and compensation.
Expenses and Assessments
930.40 Expenses.
930.41 Assessments.
930.42 Accounting.
Quality Control
930.44 Quality Control.
Research, Market Development and Promotion
930.48 Research, Market Development and Promotion.
Regulations
930.50 Marketing policy.
930.51 Issuance of volume regulations.
930.52 Establishment of districts subject to volume regulations.
930.53 Modification, suspension, or termination of regulations.
930.54 Prohibition on the use or disposition of inventory reserve
cherries.
930.55 Primary inventory reserves.
930.56 Off-premise inventory reserve.
930.57 Secondary inventory reserve.
930.58 Grower diversion privilege.
930.59 Handler diversion privilege.
930.60 Equity holders.
930.61 Handler compensation.
930.62 Exemptions.
930.63 Deferment of restricted obligation.
Reports and Records
930.70 Reports.
930.71 Records.
930.72 Verification of reports and records.
930.73 Confidential information.
Miscellaneous Provisions
930.80 Compliance.
930.81 Right of the Secretary.
930.82 Effective time.
930.83 Termination.
930.84 Proceedings after termination.
930.85 Effect of termination or amendment.
930.86 Duration of immunities.
930.87 Agents.
930.88 Derogation.
930.89 Personal liability.
930.90 Separability.
930.91 Amendments.
930.92 Counterparts.
930.93 Additional parties.
930.94 Order with marketing agreement.
Subpart B--[Reserved]
Authority: 7 U.S.C. 601-674.
Subpart A--Order Regulating Handling
Definitions
Sec. 930.1 Act.
Act means Public Act No. 10, 73d Congress (May 12, 1933), as
amended, and as reenacted and amended by the Agriculture Marketing
Agreement Act of 1937, as amended (48 Stat. 31, as amended, 68 Stat.
906, 1047; 7 U.S.C. 601 et seq.).
Sec. 930.2 Board.
Board means the Cherry Industry Administrative Board established
pursuant to Sec. 930.20.
Sec. 930.3 Cherries.
Cherries means all tart/sour cherry varieties grown in the
production area classified botanically as Prunus cerasas, or hybrids of
Prunus cerasas by Prunus avium, or Prunus cerasas by Prunus fruticosa.
Sec. 930.4 Crop year.
Crop year means the 12-month period beginning on July 1 of any year
and ending on June 30 of the following year, or such other period as
the Board, with the approval of the Secretary, may establish.
Sec. 930.5 Department or USDA.
Department or USDA means the United States Department of
Agriculture.
Sec. 930.6 District.
District means one of the subdivisions of the production area
described in Sec. 930.20(c), or such other subdivisions as may be
established pursuant to Sec. 930.21, or any subdivision added pursuant
to Sec. 930.63.
Sec. 930.7 Fiscal period.
Fiscal period is synonymous with fiscal year and means the 12-month
period beginning on July 1 of any year and ending on June 30 of the
following year, or such other period as the Board, with the approval of
the Secretary, may establish: Provided, That the initial fiscal period
shall begin on the effective date of this part.
Sec. 930.8 Free market tonnage percentage cherries.
Free market tonnage percentage cherries means that proportion of
cherries handled in a crop year which are free to be marketed in normal
commercial outlets in that crop year under any volume regulation
established pursuant to Sec. 930.50 or Sec. 930.51 and, in the absence
of a
[[Page 26970]]
restricted percentage being established for a crop year pursuant to
Sec. 930.50 or Sec. 930.51, means all cherries received by handlers in
that crop year.
Sec. 930.9 Grower.
Grower is synonymous with producer and means any person who
produces cherries to be marketed in canned, frozen, or other processed
form and who has a proprietary interest therein: Provided, That the
term grower shall not include a person who produces cherries to be
marketed exclusively for the fresh market in an unpitted condition.
Sec. 930.10 Handle.
Handle means the process to brine, can, concentrate, freeze,
dehydrate, pit, press or puree cherries, or in any other way convert
cherries commercially into a processed product, or divert cherries
pursuant to Sec. 930.59 or obtain grower diversion certificates issued
pursuant to Sec. 930.58, or otherwise place cherries into the current
of commerce within the production area or from the area to points
outside thereof: Provided, That the term handle shall not include:
(a) The brining, canning, concentrating, freezing, dehydration,
pitting, pressing or the converting, in any other way, of cherries into
a processed product for home use and not for resale.
(b) The transportation within the production area of cherries from
the orchard where grown to a processing facility located within such
area for preparation for market.
(c) The delivery of such cherries to such processing facility for
such preparation.
(d) The sale or transportation of cherries by a grower to a handler
of record within the production area.
(e) The sale of cherries in the fresh market in an unpitted
condition.
Sec. 930.11 Handler.
Handler means any person who first handles cherries or causes
cherries to be handled for his or her own account.
Sec. 930.12 Person.
Person means an individual, partnership, corporation, association,
or any other business unit.
Sec. 930.13 Primary inventory reserve.
Primary inventory reserve means that portion of handled cherries
that are placed into handlers' inventories in accordance with any
restricted percentage established pursuant to Sec. 930.50 or
Sec. 930.51.
Sec. 930.14 Production area.
Production area means the States of Michigan, New York,
Pennsylvania, Oregon, Utah, Washington and Wisconsin.
Sec. 930.15 Restricted percentage cherries.
Restricted percentage cherries means that proportion of cherries
handled in a crop year which must be either placed into handlers'
inventories in accordance with Sec. 930.55 or Sec. 930.57 or otherwise
diverted in accordance with Sec. 930.60 and thereby withheld from
marketing in normal commercial outlets under any volume regulation
established pursuant to Sec. 930.50 or Sec. 930.51.
Sec. 930.16 Sales constituency.
Sales constituency means a common marketing organization or
brokerage firm or individual representing a group of handlers or
growers.
Sec. 930.17 Secondary inventory reserve.
Secondary inventory reserve means any portion of handled cherries
voluntarily placed into inventory by a handler under Sec. 930.57.
Sec. 930.18 Secretary.
Secretary means the Secretary of Agriculture of the United States,
or any officer or employee of the U.S. Department of Agriculture to
whom authority has heretofore been delegated, or to whom authority may
hereafter be delegated, to act in the Secretary's stead.
Administrative Body
Sec. 930.20 Establishment and membership.
(a) There is hereby established a Cherry Industry Administrative
Board (Board) consisting of 18 members. Seventeen of these members
shall be qualified growers and handlers selected pursuant to this part,
each of whom shall have an alternate having the same qualifications as
the member for whom the person is an alternate. The remaining member of
the Board shall be a public member who, along with his or her
alternate, shall be elected by the Board from the general public.
(b) District representation on the Board shall be as follows:
------------------------------------------------------------------------
Grower Handler
District members members
------------------------------------------------------------------------
1................................................. 2 2
2................................................. 1 2
3................................................. 1 1
4................................................. 1 1
5................................................. 1 or 1
6................................................. 1 or 1
7................................................. 1 1
8................................................. 1 or 1
9................................................. 1 or 1
------------------------------------------------------------------------
(c) Upon the adoption of this part, the production area shall be
divided into the following described subdivisions for purposes of this
section:
District 1--Northern Michigan: That portion of the State of
Michigan which is north of a line drawn along the northern boundary of
Mason County and extended east to Lake Huron.
District 2--Central Michigan: That portion of the State of Michigan
which is south of District 1 and north of a line drawn along the
southern boundary of Allegan County and extended east to Lake St.
Clair.
District 3--Southern Michigan: That portion of the State of
Michigan not included in Districts 1 and 2.
District 4--The State of New York.
District 5--The State of Oregon.
District 6--The State of Pennsylvania.
District 7--The State of Utah.
District 8--The State of Washington.
District 9--The State of Wisconsin.
(d) The ratio of grower to handler representation in District 2
shall alternate each time the term of a Board member from the
representative group having two seats expires. During the initial
period of the order, the ratio shall be as designated in paragraph (b)
of this section.
(e) Board members from Districts 5, 6, 8 and 9 may be either grower
or handler members and will be nominated and elected as outlined in
Sec. 930.23. If District 5, 6, 8, and/or 9 becomes subject to volume
regulation under Secs. 930.52(a), then the Board shall be reestablished
by the Secretary to provide such District(s) with at least one grower
and one handler seat on the Board and such seats shall be filled
according to the provisions of Sec. 930.23.
(f) In order to achieve a fair and balanced representation on the
Board, and to prevent any one sales constituency from gaining control
of the Board, not more than one Board member may be from, or affiliated
with, a single sales constituency in those districts having more than
one seat on the Board. There is, however, no prohibition on the number
of Board members from differing districts that may be elected from a
single sales constituency which may have operations in more than one
district. However, as provided in Sec. 930.23, a handler or grower may
only nominate Board members and vote in one district.
(g) Subject to the approval of the Secretary, the Board shall at
its first meeting and annually thereafter elect from among any of its
members a chairperson and a vice-chairperson and may elect other
appropriate officers.
Sec. 930.21 Reestablishment.
Districts, subdivisions of districts, and the distribution of
representation among growers and handlers within a respective district
or subdivision
[[Page 26971]]
thereof, or among the subdivision of districts, may be reestablished by
the Secretary, subject to the provisions of Sec. 930.23, based upon
recommendations by the Board. In recommending any such changes, the
Board shall consider:
(a) the relative importance of producing areas;
(b) relative production;
(c) the geographic locations of producing areas as they would
affect the efficiency of administration of this part;
(d) shifts in cherry production within the districts and the
production area;
(e) changes in the proportion and role of growers and handlers
within the districts; and
(f) other relevant factors.
Sec. 930.22 Term of office.
The term of office of each member and alternate member of the Board
shall be for three fiscal years: Provided that, of the nine initial
members and alternates from the combination of Districts 1, 2 and 3,
one-third of such initial members and alternates shall serve only one
fiscal year, one-third of such members and alternates shall serve only
two fiscal years, one-third of such members and alternates shall serve
three fiscal years; and one-half of the initial members and alternates
from Districts 4 and 7 shall serve only one fiscal year, and one-half
of such initial members and alternates shall serve two fiscal years
(determination of which of the initial members and their alternates
shall serve for 1 fiscal year, 2 fiscal years, or 3 fiscal years, in
both instances, shall be by lot). Members and alternate members shall
serve in such capacity for the portion of the term of office for which
they are selected and have qualified until their respective successors
are selected, have qualified and are appointed. The consecutive terms
of office of grower, handler and public members and alternate members
shall be limited to two 3-year terms, excluding any initial term
lasting less than 3 years. The term of office of a member and alternate
member for the same seat shall be the same. If this part becomes
effective on a date such that the initial fiscal period is less than 6
months in duration, then the tolling of time for purposes of this
subsection shall not begin until the beginning of the first 12-month
fiscal period.
Sec. 930.23 Nomination and election.
(a) Forms and ballots. Nomination and election of initial and
successor members and alternate members of the Board shall be conducted
through petition forms and election ballots distributed to all eligible
growers and handlers via the U.S. Postal Service or other means, as
determined by the Secretary. Similar petition forms and election
ballots shall be used for both members and alternate members and any
requirements for election of a member shall apply to the election of an
alternate.
(b) Nomination:
(1) In order for the name of a grower nominee to appear on an
election ballot, the nominee's name must be submitted with a petition
form, to be supplied by the Secretary or the Board, which, except in
District 8, contains at least five signatures of growers, other than
the nominee, from the nominee's district who are eligible to vote in
the referendum. Grower petition forms in District 8 must be signed by
only two growers, other than the nominee, from the nominee's district.
(2) In order for the name of a handler nominee to appear on an
election ballot, the nominee's name must be submitted with a petition
form, to be supplied by the Secretary or the Board, which contains the
signature of at least one handler, other than the nominee, from the
nominee's district who is eligible to vote in the referendum. The
requirement that the petition form be signed by a handler other than
the nominee shall not apply in any District where less than two
handlers are eligible to vote.
(3) Only growers, including duly authorized officers or employees
of growers, who are eligible to serve as grower members of the Board
shall participate in the nomination of grower members and alternate
grower members of the Board. No grower shall participate in the
submission of nominees in more than one district during any fiscal
period. If a grower produces cherries in more than one district, that
grower may select in which district he or she wishes to participate in
the nominations and election process and shall notify the Secretary or
the Board of such selection. A grower may not participate in the
nomination process in one district and the election process in a second
district in the same election cycle.
(4) Only handlers, including duly authorized officers or employees
of handlers, who are eligible to serve as handler members of the Board
shall participate in the nomination of handler members and alternate
handler members of the Board. No handler shall participate in the
selection of nominees in more than one district during any fiscal
period. If a handler handles cherries in more than one district, that
handler may select in which district he or she wishes to participate in
the nominations and election process and shall notify the Secretary or
the Board of such selection. A handler may not participate in the
nominations process in one district and the elections process in a
second district in the same election cycle. If a person is a grower and
a grower-handler only because some or all of his or her cherries were
custom packed, but he or she does not own or lease and operate a
processing facility, such person may vote only as a grower.
(5) In Districts 5, 6, 8 and 9, both growers and handlers may be
nominated for the district's Board seat. Grower and handler nominations
must follow the petition procedures outlined in paragraphs (b)(1) and
(b)(2) of this section.
(6) All eligible growers and handlers in all districts may submit
the names of the nominees for the public member and alternate public
member of the Board.
(7) After the appointment of the initial Board, the Secretary or
the Board shall announce at least 180 days in advance when a Board
member's term is expiring and shall solicit nominations for that
position in the manner described in this section. Nominations for such
position should be submitted to the Secretary or the Board not less
than 120 days prior to the expiration of such term.
(c) Election:
(1) After receiving nominations, the Secretary or the Board shall
distribute ballots via the U.S. Postal Service or other means, as
determined by the Secretary, to all eligible growers and handlers
containing the names of the nominees by district for the respective
seats on the Board, excluding the public voting member seat. The
ballots will clearly indicate that growers and handlers may only rank
or otherwise vote for nominees in their own district.
(2) Except as provided in paragraph (c)(4) of this section, only
growers, including duly authorized officers or employees of growers,
who are eligible to serve as grower members of the Board shall
participate in the election of grower members and alternate grower
members of the Board. No grower shall participate in the election of
Board members in more than one district during any fiscal period. If a
grower produces cherries in more than one district, the grower must
vote in the same district in which he or she chose to participate in
the nominations process under paragraph (b)(3) of this section.
However, if the grower did not participate in the nominations process,
he or she may select in which district he or she wishes to vote and
shall notify the Secretary or the Board of such selection.
(3) Except as provided in paragraph (c)(4) of this section, only
handlers, including duly authorized officers or
[[Page 26972]]
employees of handlers, who are eligible to serve as handler members of
the Board shall participate in the election of handler members and
alternate handler members of the Board. No handler shall participate in
the election of Board members in more than one district during any
fiscal period. If a handler does handle cherries in more than one
district, he or she must vote in the same district in which the handler
elected to participate in the nominations process under paragraph
(b)(4) of this section. However, if a handler did not participate in
the nominations process, that handler may select in which district he
or she chooses to vote and shall notify the Secretary or the Board of
such selection. If a person is a grower and a grower-handler only
because some or all of his or her cherries were custom packed, but he
or she does not own or lease and operate a processing facility, such
person may vote only as a grower.
(4) In Districts 5, 6, 8 and 9, growers and handlers may vote for
either the grower or handler nominee(s) for the single seat allocated
to those districts.
(d) The members of the Board appointed by the Secretary pursuant to
Sec. 930.24 shall, at the first meeting and whenever necessary
thereafter, by at least a two-thirds vote of the entire Board, select
individuals to serve as the public member and alternate public member
of the Board from the list of nominees received from growers and
handlers pursuant to paragraph (b) of this section or from other
persons nominated by the Board. The persons selected shall be subject
to appointment by the Secretary under Sec. 930.24.
(e) The Board, with the approval of the Secretary, may establish
rules and regulations necessary and incidental to the administration of
this section.
Sec. 930.24 Appointment.
The selection of nominees made pursuant to elections conducted
under Sec. 930.23(c) shall be submitted to the Secretary in a format
which indicates the nominees by district, with the nominee receiving
the highest number of votes at the top and the number of votes received
being clearly indicated. The Secretary shall appoint from those
nominees or from other qualified individuals, the grower and handler
members of the Board and an alternate for each such member on the basis
of the representation provided for in Sec. 930.20 or as provided for in
any reapportionment or reestablishment undertaken pursuant to
Sec. 930.21. The public member and alternate public member is nominated
by the Board pursuant to Sec. 930.23(d) and shall also be subject to
appointment by the Secretary. The Secretary shall appoint from nominees
by the Board or from other qualified individuals the public member and
the alternate public member.
Sec. 930.25 Failure to nominate.
If nominations are not made within the time and in the manner
prescribed in Sec. 930.23, the Secretary may, without regard to
nominations, select the members and alternate members of the Board on
the basis of the representation provided for in Sec. 930.20 or as
provided for in any reapportionment or reestablishment undertaken
pursuant to Sec. 930.21.
Sec. 930.26 Acceptance.
Each person to be appointed by the Secretary as a member or as an
alternate member of the Board shall, prior to such appointment, qualify
by advising the Secretary that he/she agrees to serve in the position
for which nominated for selection.
Sec. 930.27 Vacancies.
To fill any vacancy occasioned by the failure of any person
appointed as a member or as an alternate member of the Board to
qualify, or in the event of the death, removal, resignation, or
disqualification of any member or alternate member of the Board, a
successor for the unexpired term of such member or alternate member of
the Board shall be appointed by the Secretary from the most recent list
of nominations for the Board made by growers and handlers, from
nominations made by the Board, or from other qualified individuals. Any
nominations made by the Board to fill a vacancy must be received by the
Secretary within 90 days of the effective date of the vacancy. Board
members wishing to resign from the Board must do so in writing to the
Secretary.
Sec. 930.28 Alternate members.
An alternate member of the Board, during the absence of the member
for whom that member serves as an alternate, shall act in the place and
stead of such member and perform such other duties as assigned.
However, if a member is in attendance at a meeting of the Board, an
alternate member may not act in the place and stead of such member. In
the event of the death, removal, resignation, or disqualification of a
member, the alternate shall act for the member until a successor for
such member is appointed and has qualified.
Sec. 930.29 Eligibility for membership on Cherry Industry
Administrative Board.
(a) Each grower member and each grower alternate member of the
Board shall be a grower, or an officer or employee of a grower, in the
district for which nominated or appointed.
(b) Each handler member and each handler alternate member of the
Board shall be a handler, or an officer or employee of a handler, who
owns, or leases, and operates a cherry processing facility in the
district for which nominated or appointed.
(c) The public member and alternate public member of the Board
shall be prohibited from having any financial interest in the cherry
industry and shall possess such additional qualifications as may be
established by regulation.
Sec. 930.30 Powers.
The Board shall have the following powers:
(a) To administer this part in accordance with its terms and
provisions;
(b) To make rules and regulations to effectuate the terms and
provisions of this part;
(c) To receive, investigate, and report to the Secretary complaints
of violations of this part; and
(d) To recommend to the Secretary amendments to this part.
Sec. 930.31 Duties.
The Board shall have, among others, the following duties:
(a) To select such officers, including a chairperson and vice-
chairperson, as may be necessary, and to define the duties of such
officers and the duties of the chairperson and the vice- chairperson;
(b) To employ or contract with such persons or agents as the Board
deems necessary and to determine the duties and compensation of such
persons or agents;
(c) To select such committees and subcommittees as may be
necessary;
(d) To adopt bylaws and to adopt such rules for the conduct of its
business as it may deem advisable;
(e) To submit to the Secretary a budget for each fiscal period,
prior to the beginning of such period, including a report explaining
the items appearing therein and a recommendation as to the rates of
assessments for such period;
(f) To keep minutes, books, and records which will reflect all of
the acts and transactions of the Board and which shall be subject to
examination by the Secretary;
(g) To prepare periodic statements of the financial operations of
the Board and to make copies of each statement available to growers and
handlers for examination at the office of the Board;
(h) To cause its financial statements to be audited by a certified
public accountant at least once each fiscal year
[[Page 26973]]
and at such times as the Secretary may request. Such audit shall
include an examination of the receipt of assessments and the
disbursement of all funds. The Board shall provide the Secretary with a
copy of all audits and shall make copies of such audits, after the
removal of any confidential individual grower or handler information
that may be contained in them, available to growers and handlers for
examination at the offices of the Board;
(i) To act as intermediary between the Secretary and any grower or
handler with respect to the operations of this part;
(j) To investigate and assemble data on the growing, handling, and
marketing conditions with respect to cherries;
(k) To apprise the Secretary of all Board meetings in a timely
manner;
(l) To submit to the Secretary such available information as the
Secretary may request;
(m) To investigate compliance with the provisions of this part;
(n) To develop and submit an annual marketing policy for approval
by the Secretary containing the optimum supply of cherries for the crop
year established pursuant to Sec. 930.50 and recommending such
action(s) necessary to achieve such optimum supply;
(o) To implement volume regulations established under Sec. 930.50
and issued by the Secretary under Sec. 930.51, including the release of
any inventory reserves;
(p) To provide thorough communication to growers and handlers
regarding the activities of the Board and to respond to industry
inquiries about Board activities;
(q) To oversee the collection of assessments levied under this
part;
(r) To enter into contracts or agreements with such persons and
organizations as the Board may approve for the development and conduct
of activities, including research and promotion activities, authorized
under this part or for the provision of services required by this part
and for the payment of the cost thereof with funds collected through
assessments pursuant to Sec. 930.41 and income from such assessments.
Contracts or agreements for any plan or project shall provide that:
(1) The contractors shall develop and submit to the Board a plan or
project together with a budget(s) which shall show the estimated cost
to be incurred for such plan or project;
(2) Any contract or agreement for a plan or project and any plan or
project adopted by the Board shall only become effective upon approval
by the Secretary; and
(3) Every such contracting party shall keep accurate records of all
of its transactions and make periodic reports to the Board of
activities conducted and an accounting for funds received and expended,
and such other reports as the Secretary or the Board may require. The
Secretary or employees of the Board may audit periodically the records
of the contracting party;
(s) Pending disbursement consistent with its budget, to invest,
with the approval of the Secretary, and in accordance with applicable
Departmental policies, funds collected through assessments authorized
under Sec. 930.41 and income from such assessments;
(t) To establish standards or grade requirements for cherries for
frozen and canned cherry products, subject to the approval of the
Secretary;
(u) To borrow such funds, subject to the approval of the Secretary
and not to exceed the expected expenses of one fiscal year, as are
necessary for administering its responsibilities and obligations under
this part; and
(v) To establish, with the approval of the Secretary, such rules
and procedures relative to administration of this subpart as may be
consistent with the provisions contained in this subpart and as may be
necessary to accomplish the purposes of the Act and the efficient
administration of this subpart.
Sec. 930.32 Procedure.
(a) Twelve members of the Board, including alternates acting for
absent members, shall constitute a quorum. For any action of the Board
to pass, at least two-thirds of the entire Board must vote in support
of such action.
(b) The Board may provide through its own rules and regulations,
subject to approval by the Secretary, for simultaneous meetings of
groups of its members assembled at different locations and for votes to
be conducted by telephone or other means of communication. Votes so
cast shall be promptly confirmed in writing.
(c) All meetings of the Board are open to the public, although the
Board may hold portions of meetings in executive session for the
consideration of certain business. The Board will establish, with the
approval of the Secretary, a means of advanced notification of growers
and handlers of Board meetings.
Sec. 930.33 Expenses and compensation.
Except for the public member and alternate public member who shall
receive such compensation as the Board may establish and the Secretary
may approve, the members of the Board, and alternates when acting as
members, shall serve without compensation but shall be reimbursed for
necessary and reasonable expenses, as approved by the Board, incurred
by them in the performance of their duties under this part. The Board
at its discretion may request the attendance of one or more alternates
at any or all meetings, notwithstanding the expected or actual presence
of the respective member(s), and may pay the expenses of such
alternates.
Expenses and Assessments
Sec. 930.40 Expenses.
The Board is authorized to incur such expenses as the Secretary
finds are reasonable and likely to be incurred for its maintenance and
functioning and to enable it to exercise its powers and perform its
duties in accordance with the provisions of this part. The funds to
cover such expenses shall be acquired by the levying of assessments as
provided in Sec. 930.41.
Sec. 930.41 Assessments.
(a) An assessment may be levied upon handlers annually under this
part to cover the administrative costs of the Board, costs of
inspection, and any research, development and promotion activities
initiated by the Board under Sec. 930.48.
(b) Each part of an assessment intended to cover the costs of each
activity in paragraph (a) of this section, must be identified and
approved by the Board and the Secretary, and any notification or other
statement regarding assessments provided to handlers must contain such
information.
(c) As a pro rata share of the administrative, inspection,
research, development, and promotion expenses which the Secretary finds
reasonable and likely to be incurred by the Board during a fiscal
period, each handler shall pay to the Board assessments on all cherries
handled, as the handler thereof, during such period: Provided, a
handler shall be exempt from any assessment on the tonnage of handled
cherries that are diverted according to Sec. 930.59 which includes
cherries represented by grower diversion certificates issued pursuant
to Sec. 930.58(b)(2) and acquired by handlers and those cherries
devoted to exempt uses under Sec. 930.62.
(d) The Secretary, after consideration of the recommendation of the
Board, shall fix the rate of assessment to be paid by each handler
during the fiscal period in an amount designed to secure sufficient
funds to cover the expenses which may be approved and incurred
[[Page 26974]]
during such period or subsequent period as provided in paragraph (c) of
this section. At any time during or after the fiscal period, 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 expenses which may be incurred. Such increase shall be applied
to all cherries handled during the applicable fiscal period. In order
to provide funds for the administration of the provisions of this part
during the first part of a fiscal period before sufficient operating
income is available from assessments, the Board may accept the payment
of assessments in advance, and may borrow money for such purposes.
(e) Assessments not paid within a time prescribed by the Board may
be made subject to interest or late payment charges, or both. The
period of time, rate of interest, and late payment charge will be as
recommended by the Board and approved by the Secretary: Provided, That
when interest or late payment charges are in effect, they shall be
applied to all assessments not paid within the prescribed period of
time.
(f) Assessments will be calculated on the basis of pounds of
cherries handled: Provided, That the formula adopted by the Board and
approved by the Secretary for determining the rate of assessment will
compensate for differences in the number of pounds of cherries utilized
for various cherry products and the relative market values of such
cherry products.
(g) The Board, with the approval of the Secretary, may establish
rules and regulations necessary and incidental to the administration of
this section.
Sec. 930.42 Accounting.
(a) If, at the end of a fiscal period, the assessments collected
are in excess of expenses incurred, the Board, with the approval of the
Secretary, may carry over all or any portion of such excess into
subsequent fiscal periods as a reserve. Such reserve funds may be used
to cover any expenses authorized by this part, and to cover necessary
expenses of liquidation in the event of termination of this part. If
any such excess is not retained in a reserve, it shall be refunded
proportionately to the handlers from whom the excess was collected.
Without an additional reserve level approved by the Secretary, the
amount held in reserve may not exceed approximately one year's
operational expenses. Upon termination of this part, any funds not
required to defray the necessary expenses of liquidation shall be
disposed of in such a manner as the Secretary may determine to be
appropriate: Provided, That to the extent practicable, such funds shall
be returned pro rata to the persons from whom such funds were
collected.
(b) All funds received by the Board pursuant to the provisions of
this part shall be used solely for the purpose specified in this part
and shall be accounted for in the manner provided in this part. The
Secretary may at any time require the Board and its members to account
for all receipts and disbursements.
Quality Control
Sec. 930.44 Quality Control.
(a) Quality standards. The Board may establish, with the approval
of the Secretary, such minimum quality and inspection requirements
applicable to cherries as will contribute to orderly marketing or be in
the public interest. If such requirements are adopted, no handler shall
process cherries into manufactured products or sell manufactured
products in the current of commerce unless such cherries and/or such
cherries used in the manufacture of products meet the applicable
requirements as evidenced by certification acceptable to the Board. The
Board, with the approval of the Secretary, may establish rules and
regulations necessary and incidental to the administration of this
section.
(b) Inspection and certification. Whenever the handling of any
cherries requires inspection pursuant to this part, each handler who
handles cherries shall cause such cherries to be inspected by the
appropriate division of USDA, and certified by it as meeting the
applicable requirements of such regulation: Provided, That inspection
and certification shall be required for cherries which previously have
been so inspected and certified only if such cherries have been
regraded, resorted, repackaged, or in any other way further prepared
for market. Promptly after inspection and certification, each such
handler shall submit, or cause to be submitted, to the Board a copy of
the certificate of inspection issued with respect to such cherries.
Research, Market Development and Promotion
Sec. 930.48 Research, Market Development and Promotion.
The Board, with the approval of the Secretary, may establish or
provide for the establishment of production and processing research,
market research and development, and/or promotional activities,
including paid advertising, designed to assist, improve or promote the
efficient production and processing, marketing, distribution, and
consumption of cherries subject to this part. The expense of such
projects shall be paid from funds collected pursuant to this part and
the income from such funds.
Regulations
Sec. 930.50 Marketing policy.
(a) Optimum Supply. On or about July 1 of each crop year, the Board
shall hold a meeting to review sales data, inventory data, current crop
forecasts and market conditions in order to establish an optimum supply
level for the crop year. The optimum supply volume shall be calculated
as 100 percent of the average sales of the prior three years to which
shall be added a desirable carryout inventory not to exceed 20 million
pounds or such other amount as the Board, with the approval of the
Secretary may establish. This optimum supply volume shall be announced
by the Board in accordance with paragraph (h) of this section.
(b) Preliminary percentages. On or about July 1 of each crop year,
the Board shall establish a preliminary free market tonnage percentage
which shall be calculated as follows: from the optimum supply computed
in paragraph (a) of this section, the Board shall deduct the carryin
inventory to determine the tonnage requirements (adjusted to a raw
fruit equivalent) for the current crop year which will be subtracted by
the current year USDA crop forecast. If the resulting number is
positive, this would represent the estimated over-production which
would need to be the restricted percentage tonnage. This restricted
percentage tonnage would then be divided by the sum of the USDA crop
forecast for the regulated districts to obtain the percentages for the
regulated districts. The Board shall establish a preliminary restricted
percentage equal to the quotient, rounded to the nearest whole number,
with the compliment being the preliminary free tonnage percentage. If
subtracting the current crop year requirement, computed in the first
sentence from the current USDA crop forecast, results in a negative
number, the Board shall establish a preliminary free tonnage of 100
percent with a preliminary restricted percentage of zero. The Board
shall announce these preliminary percentages in accordance with
paragraph (h) of this section.
(c) Interim percentages. Between July 1 and September 15 of each
crop year, the Board may modify the preliminary free market tonnage and
restricted percentages to adjust to the actual pack occurring in the
industry. The Board shall announce any interim percentages
[[Page 26975]]
in accordance with paragraph (h) of this section.
(d) Final percentages. No later than September 15 of each crop
year, the Board shall review actual production during the current crop
year and make such adjustments as are necessary between free and
restricted tonnage to achieve the optimum supply and recommend such
final free market tonnage and restricted percentages to the Secretary
and announce them in accordance with paragraph (h) of this section. The
difference between any final free market tonnage percentage designated
by the Secretary and 100 percent shall be the final restricted
percentage. With its recommendation, the Board shall report on its
consideration of the factors in paragraph (e) of this section.
(e) Factors. When computing preliminary and interim percentages, or
determining final percentages for recommendation to the Secretary, the
Board shall give consideration to the following factors:
(1) The estimated total production of cherries;
(2) The estimated size of the crop to be handled;
(3) The expected general quality of such cherry production;
(4) The expected carryover as of July 1 of canned and frozen
cherries and other cherry products;
(5) The expected demand conditions for cherries in different market
segments;
(6) Supplies of competing commodities;
(7) An analysis of economic factors having a bearing on the
marketing of cherries;
(8) The estimated tonnage held by handlers in primary or secondary
inventory reserves; and
(9) Any estimated release of primary or secondary inventory reserve
cherries during the crop year.
(f) Modification. In the event the Board subsequently deems it
advisable to modify its marketing policy, because of national
emergency, crop failure, or other major change in economic conditions,
it shall hold a meeting for that purpose, and file a report thereof
with the Secretary within 5 days (exclusive of Saturdays, Sundays, and
holidays) after the holding of such meeting, which report shall show
the Board's recommended modification and the basis therefor.
(g) Reserve tonnage to sell as free tonnage. In addition, the Board
shall make available tonnage equivalent to an additional 10 percent, if
available, of the average sales of the prior 3 years for market
expansion. Handlers can determine if they need the additional tonnage
and inform the Board so that reserve cherries may be released to them.
Handlers not desiring the additional tonnage would not have it released
to them.
(h) Publicity. The Board shall promptly give reasonable publicity
to growers and handlers of each meeting to consider a marketing policy
or any modification thereof, and each such meeting shall be open to
them and to the public. Similar publicity shall be given to growers and
handlers of each marketing policy report or modification thereof, filed
with the Secretary and of the Secretary's action thereon. Copies of all
marketing policy reports shall be maintained in the office of the
Board, where they shall be made available for examination. The Board
shall notify handlers, and give reasonable publicity to growers, of its
computation of the optimum supply, preliminary percentages, and interim
percentages and shall notify handlers of the Secretary's action on
final percentages by registered or certified mail.
(i) Restricted Percentages. Restricted percentage requirements
established under paragraph (b), (c) or (d) of this section may be
fulfilled by handlers by either establishing an inventory reserve in
accordance with Sec. 930.55 or Sec. 930.57 or by diversion of product
in accordance with Sec. 930.59. In years where required, the Board
shall establish a maximum percentage of the restricted quantity which
may be established as a primary inventory reserve such that the total
primary inventory reserve does not exceed 50 million pounds. Handlers
will be permitted to divert (at plant or with grower-diversion
certificates) as much of the restricted percentage requirement as they
deem appropriate, but may not establish a primary inventory reserve in
excess of the percentage established by the Board for restricted
cherries. In the event handlers wish to establish inventory reserve in
excess of this amount, they may do so, in which case it will be
classified as a secondary inventory reserve and will be regulated
accordingly.
(j) Inventory Reserve Release. In years when inventory reserve
cherries are available and when the expected availability of cherries
from the current crop plus expected carryin inventory does not fulfill
the optimum supply, the Board shall release not later than November 1st
of the current crop year such volume from the inventory reserve as will
satisfy the optimum supply.
(k) The Board, with the approval of the Secretary, may establish
rules and regulations necessary and incidental to the administration of
this section.
Sec. 930.51 Issuance of volume regulations.
(a) Whenever the Secretary finds, from the recommendation and
supporting information supplied by the Board, that to designate final
free market tonnage and restricted percentages for any cherries
acquired by handlers during the crop year will tend to effectuate the
declared policy of the Act, the Secretary shall designate such
percentages. Such regulation designating such percentage shall fix the
free market tonnage and restricted percentages, totaling 100 percent,
which shall be applied in accordance with this section, Sec. 930.55,
Sec. 930.57 and Sec. 930.59 to cherries grown in regulated districts,
as determined under Sec. 930.52, and handled during such fiscal period.
(b) The Board shall be informed immediately of any such regulation
issued by the Secretary, and the Board shall promptly give notice
thereof to handlers.
(c) That portion of a handler's cherries that are restricted
percentage cherries is the product of the restricted percentage imposed
under paragraph (a) of this section multiplied by the tonnage of
cherries, originating in a regulated district, handled, including those
diverted according to Sec. 930.59, by that handler in that fiscal year.
Therefore, while diverted cherries, including those represented by
grower diversion certificates, may be exempt from assessment under
Sec. 930.41, they must be counted when computing restricted percentage
requirements.
(d) The Board, with the approval of the Secretary, shall develop
rules and regulations which shall provide guidelines for handlers in
complying with any restricted tonnage requirements, including, but not
limited to, a grace period of at least 30 days to segregate and
appropriately document any tonnage they wish to place in the inventory
reserve and to assemble any applicable diversion certificates.
Sec. 930.52 Establishment of districts subject to volume regulations.
(a) Upon adoption of this part, the districts in which handlers
shall be subject to any volume regulations implemented in accordance
with this part shall be those districts in which the average annual
production of cherries over the prior three years has exceeded 15
million pounds. Handlers in districts not meeting the 15 million pound
requirement at the time of order promulgation shall become subject to
volume regulation implemented in accordance with this part in the crop
year that follows any three-year period in which the 15 million pound
average
[[Page 26976]]
production requirement is exceeded in that district.
(b) Handlers in districts which are not subject to volume
regulation would only be so regulated to the extent that they handled
cherries which were grown in a district subject to regulation as
specified in paragraph (a) of this section. In such a case, the han
FR Doc. 96-13383 Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin; Secretary's Decision and Referendum Order on the Proposed Marketing Agreement and Order
dler
must place in inventory reserve pursuant to Sec. 930.55 or Sec. 930.57
or divert pursuant to Sec. 930.59 the required restricted percentage of
the crop originating in the regulated district.
(c) Handlers in districts not meeting the production requirement
described in paragraph (a) of this section in a given year would not be
subject to volume regulation in the next crop year.
(d) Any district producing a crop which is less than 50 percent of
the average annual processed production in that district in the
previous five years would be exempt from any volume regulation if, in
that year, a restricted percentage is established.
(e) The Board, with the approval of the Secretary, may establish
rules and regulations necessary and incidental to the administration of
this section.
Sec. 930.53 Modification, suspension, or termination of regulations.
(a) In the event the Board at any time finds that, by reason of
changed conditions, any regulations issued pursuant to Secs. 930.44 or
930.51 should be modified, suspended, or terminated, it shall so
recommend to the Secretary.
(b) Whenever the Secretary finds, from the recommendations and
information submitted by the Board or from other available information,
that a regulation issued pursuant to Secs. 930.44 or 930.51 should be
modified, suspended or terminated with respect to any or all shipments
of cherries in order to effectuate the declared policy of the Act, the
Secretary shall modify, suspend, or terminate such regulation.
Sec. 930.54 Prohibition on the use or disposition of inventory reserve
cherries.
(a) Release of primary and secondary inventory reserve cherries.
Except as provided in Sec. 930.50 and paragraph (b) of this section,
cherries that are placed in inventory reserve pursuant to the
requirements of Sec. 930.50, Sec. 930.51, Sec. 930.55, or Sec. 930.57
shall not be used or disposed of by any handler or any other person:
Provided, That if the Board determines that the total available
supplies for use in normal commercial outlets do not at least equal the
amount, as estimated by the Board, needed to meet the demand in such
outlets, the Board shall recommend to the Secretary and provide such
justification that, during such period as may be recommended by the
Board and approved by the Secretary, a portion or all of the primary
and/or secondary inventory reserve cherries shall be released for such
use.
Sec. 930.55 Primary inventory reserves.
(a) Whenever the Secretary has fixed the free market tonnage and
restricted percentages for any fiscal period, as provided for in
Sec. 930.51(a), each handler in a regulated district shall place in his
or her primary inventory reserve for such period, at such time, and in
such manner, as the Board may prescribe, or otherwise divert, according
to Sec. 930.59, a portion of the cherries acquired during such period.
(b) The form of the cherries, frozen, canned in any form, dried, or
concentrated juice, placed in the primary inventory reserve is at the
option of the handler. Except as may be limited by Sec. 930.50 (i) or
as may be permitted pursuant to Sec. 930.59 and Sec. 930.62, such
inventory reserve portion shall be equal to the sum of the products
obtained by multiplying the weight or volume of the cherries in each
lot of cherries acquired during the fiscal period by the then effective
restricted percentage fixed by the Secretary: Provided, That in
converting cherries in each lot to the form chosen by the handler, the
inventory reserve obligations shall be adjusted in accordance with
uniform rules adopted by the Board in terms of raw fruit equivalent.
(c) Inventory reserve cherries shall meet such standards of grade,
quality, or condition as the Board, with the approval of the Secretary,
may establish. All such cherries shall be inspected by USDA. A
certificate of such inspection shall be issued which shall show, among
other things, the name and address of the handler, the number and type
of containers in the lot, the grade of the product, the location where
the lot is stored, identification marks (can codes or lot stamp), and a
certification that the cherries meet the prescribed standards. Promptly
after inspection and certification, each such handler shall submit, or
cause to be submitted, to the Board, at the place designated by the
Board, a copy of the certificate of inspection issued with respect to
such cherries.
(d) Handlers shall be compensated for inspection costs incurred on
cherries placed in the primary inventory reserve. All reporting of
cherries placed in, rotated in and out, or released from an inventory
reserve shall be in accordance with rules and procedures established by
the Board, with the approval of the Secretary. The Board could, with
the approval of the Secretary, also limit the number of inspections of
reserve cherries being rotated into inventory reserves for which the
Board would be financially liable.
(e) Except as provided in Sec. 930.54, handlers may not sell
inventory reserve cherries prior to their official release by the
Board. Handlers may rotate cherries in their inventory reserves with
prior notification to the Board. All cherries rotated into the
inventory reserve must meet the applicable inspection requirements.
Sec. 930.56 Off-premise inventory reserve.
Any handler may, upon notification to the Board, arrange to hold
inventory reserve, of his or her own production or which was purchased,
on the premises of another handler or in an approved commercial storage
facility in the same manner as though the inventory reserve were on the
handler's own premises.
Sec. 930.57 Secondary inventory reserve.
(a) In the event the inventory reserve established under
Sec. 930.55 of this part is at its maximum volume, and the Board has
announced, in accordance with Sec. 930.50, that volume regulation will
be necessary to maintain an orderly supply of quality cherries for the
market, handlers in a regulated district may elect to place in a
secondary inventory reserve all or a portion of the cherries the volume
regulation would otherwise require them to divert in accordance with
Sec. 930.59.
(b) Should any handler in a regulated district exercise his or her
right to establish a secondary inventory reserve under paragraph (a) of
this section, all costs of maintaining that reserve, as well as
inspection costs, will be the responsibility of the individual handler.
(c) The secondary inventory reserve shall be established in
accordance with Secs. 930.55(b) and (c) and such other rules and
regulations which the Board, with the approval of the Secretary, may
establish.
(d) The Board shall retain control over the release of any cherries
from the secondary inventory reserve. No cherries may be released from
the secondary reserve until all cherries in any primary inventory
reserve established under Sec. 930.55 have been released. Any release
of the secondary inventory reserve shall be in accordance with the
annual marketing policy and with Sec. 930.54.
Sec. 930.58 Grower diversion privilege.
(a) In general. Any grower may voluntarily elect to divert, in
accordance with the provisions of this section, all
[[Page 26977]]
or a portion of the cherries which otherwise, upon delivery to a
handler, would become restricted percentage cherries. Upon such
diversion and compliance with the provisions of this section, the Board
shall issue to the diverting grower a grower diversion certificate
which such grower may deliver to a handler, as though there were actual
harvested cherries.
(b) Eligible diversion. Grower diversion certificates shall be
issued to growers only if the cherries are diverted in accordance with
the following terms and conditions or such other terms and conditions
that the Board, with the approval of the Secretary, may establish.
Diversion may take such of the following forms which the Board, with
the approval of the Secretary, may designate: uses exempt under
Sec. 930.62; nonhuman food uses; or other uses, including diversion by
leaving such cherries unharvested.
(c) Application/mapping. The Board, with the approval of Secretary,
shall develop rules and regulations providing for the diversion of
cherries by growers. Such regulations may include, among other things:
(1) The form and content of applications and agreements relating to the
diversion, including provisions for supervision and compensation; and
(2) provisions for mapping areas in which cherries will be left
unharvested.
(d) Diversion certificate. If the Board approves the application it
shall so notify the applicant and conduct such supervision of the
applicant's diversion of cherries as may be necessary to assure that
the cherries have been diverted. After the diversion has been
accomplished, the Board shall issue to the diverting grower a diversion
certificate stating the weight of cherries diverted. Where diversion is
carried out by leaving the cherries unharvested, the Board shall
estimate the weight of cherries diverted on the basis of such uniform
rule prescribed in rules and regulations as the Board, with the
approval of the Secretary, may recommend to implement this section.
Sec. 930.59 Handler diversion privilege.
(a) In general. Handlers handling cherries harvested in a regulated
district may fulfill any restricted percentage requirement in full or
in part by voluntarily diverting cherries or cherry products in a
program approved by the Board, rather than placing cherries in an
inventory reserve. Upon such diversion and compliance with the
provisions of this section, the Board shall issue to the diverting
handler a handler diversion certificate which shall satisfy any
restricted percentage or diversion requirement to the extent of the
Board or Department inspected weight of the cherries diverted.
(b) Eligible diversion. Handler diversion certificates shall be
issued to handlers only if the cherries are diverted in accordance with
the following terms and conditions or such other terms and conditions
that the Board, with the approval of the Secretary, may establish. Such
diversion may take place in any of the following forms which the Board,
with the approval of the Secretary, may designate: uses exempt under
Sec. 930.62; contribution to a Board approved food bank or other
approved charitable organization; acquisition of grower diversion
certificates that have been issued in accordance with Sec. 930.58; or
other uses, including diversion by destruction of the cherries at the
handler's facilities: Provided, That diversion may not be accomplished
by converting cherries into juice or juice concentrate.
(c) Notification. The handler electing to divert cherries through
means specified in this section or other approved means (not including
uses exempt under Sec. 930.62), shall first notify the Board of such
election. Such notification shall describe in detail the manner in
which the handler proposes to divert cherries including, if the
diversion is to be by means of destruction of the cherries, a detailed
description of the means of destruction and ultimate disposition of the
cherries. It shall also contain an agreement that the proposed
diversion is to be carried out under the supervision of the Board and
that the cost of such supervision is to be paid by the handler. Uniform
fees for such supervision shall be established by the Board, pursuant
to rules and regulations approved by the Secretary.
(d) Application. The handler electing to divert cherries by
utilizing an exemption under Sec. 930.62 shall first apply to the Board
for approval of such diversion; no diversion should take place prior to
such approval. Such application shall describe in detail the uses to
which the diverted cherries will be put. It shall also contain an
agreement that the proposed diversion is to be carried out under the
supervision of the Board and that the cost of such supervision is to be
paid by the applicant. The Board shall notify the applicant of the
Board's approval or disapproval of the submitted application.
(e) Diversion certificate. The Board shall conduct such supervision
of the handler's diversion of cherries under paragraph (c) or under
paragraph (d) of this section as may be necessary to assure that the
cherries are diverted. After the diversion has been accomplished, the
Board shall issue to the diverting handler a handler diversion
certificate indicating the weight of cherries which may be used to
offset any restricted percentage requirement.
Sec. 930.60 Equity holders.
(a) Inventory reserve ownership. The inventory reserve shall be the
sole responsibility of the handlers who place products into the
inventory reserve. A handler's equity in the primary inventory reserve
may be transferred to another person upon notification to the Board.
(b) Agreements with growers. Individual handlers are encouraged to
have written agreements with growers who deliver their cherries to the
handler as to how any restricted percentage cherries delivered to the
handler will be handled and what share, if any, the grower will have in
the eventual sale of any inventory reserve cherries.
(c) Rulemaking authority. The Board, with the approval of the
Secretary, may adopt rules and regulations necessary and incidental to
the administration of this section.
Sec. 930.61 Handler compensation.
Each handler handling cherries from a regulated district that is
subject to volume regulations shall be compensated by the Board for
inspection relating to the primary inventory reserve as the Board may
deem to be appropriate. The Board, with the approval of the Secretary,
may establish such rules and regulations as are necessary and
incidental to the administration of this section.
Sec. 930.62 Exemptions.
The Board, with the approval of the Secretary, may exempt from the
provisions of Sec. 930.41, Sec. 940.44, Sec. 930.51, Sec. 930.53, and
Sec. 930.55 through Sec. 930.57 cherries: diverted in accordance with
Sec. 930.59; used for new product and new market development; used for
experimental purposes or for any other use designated by the Board,
including cherries processed into products for markets for which less
than 5 percent of the preceding 5-year average production of cherries
were utilized. The Board, with the approval of the Secretary, shall
prescribe such rules, regulations, and safeguards as it may deem
necessary to ensure that cherries handled under the provisions of this
section are handled only as authorized.
[[Page 26978]]
Sec. 930.63 Deferment of restricted obligation.
(a) Bonding. The Board, with the approval of the Secretary, may
require handlers to secure bonds on deferred inventory reserve tonnage.
Handlers may, in order to comply with the requirements of Secs. 930.50
and 930.51 and regulations issued thereunder, secure bonds on
restricted percentage cherries to temporarily defer the date that
inventory reserve cherries must be held to any date requested by the
handler. This date shall be not later than 60 days prior to the end of
that crop year. Such deferment shall be conditioned upon the voluntary
execution and delivery by the handler to the Board of a written
undertaking within thirty (30) days after the Secretary announces the
final restricted percentage under Sec. 930.51. Such written undertaking
shall be secured by a bond or bonds with a surety or sureties
acceptable to the Board that on or prior to the acceptable deferred
date the handler will have fully satisfied the restricted percentage
amount required by Sec. 930.51.
(b) Rulemaking authority. The Board, with the approval of the
Secretary, may adopt rules and regulations necessary and incidental to
the administration of this section.
Reports and Records
Sec. 930.70 Reports.
(a) Weekly production, monthly sales, and inventory data. Each
handler shall, upon request of the Board, file promptly with the Board,
reports showing weekly production data; monthly sales and inventory
data; and such other information, including the volume of any cherries
placed in or released from a primary or secondary inventory reserve or
diverted, as the Board shall specify with respect to any cherries
handled by the handler. Such information may be provided to the Board
members in summary or aggregated form only without any reference to the
individual sources of the information.
(b) Other reports. Upon the request of the Board, with the approval
of the Secretary, each handler shall furnish to the Board such other
information with respect to the cherries acquired, handled, stored and
disposed of by such handler as may be necessary to enable the Board to
exercise its powers and perform its duties under this part.
(c) Protection of proprietary information. Under no circumstances
shall any information or reports be made available to the Board
members, or to any person designated by the Board or by the Secretary,
which will reveal the proprietary information of an individual handler.
Sec. 930.71 Records.
Each handler shall maintain such records of all cherries acquired,
handled, stored or sold, or otherwise disposed of as will substantiate
the required reports and as may be prescribed by the Board. All such
records shall be maintained for not less than two years after the
termination of the fiscal year in which the transactions occurred or
for such lesser period as the Board may direct with the approval of the
Secretary.
Sec. 930.72 Verification of reports and records.
For the purpose of assuring compliance and checking and verifying
the reports filed by handlers, the Secretary and the Board, through its
duly authorized agents, shall have access to any premises where
applicable records are maintained, where cherries are received, stored,
or handled, and, at any time during reasonable business hours, shall be
permitted to inspect such handlers premises and any and all records of
such handlers with respect to matters within the purview of this part.
Sec. 930.73 Confidential information.
All reports and records furnished or submitted by handlers to the
Board and its authorized agents which include data or information
constituting a trade secret or disclosing trade position, financial
condition, or business operations of the particular handler from whom
received, shall be received by and at all times kept in the custody and
under the control of one or more employees of the Board or its agent,
who shall disclose such information to no person other than the
Secretary.
Miscellaneous Provisions
Sec. 930.80 Compliance.
Except as provided in this part, no person may handle cherries, the
handling of which has been prohibited by the Secretary under this part,
and no person shall handle cherries except in conformity with the
provisions of this part and the regulations issued hereunder. No person
may handle any cherries for which a diversion certificate has been
issued other than as provided in Sec. 930.58(b) and Sec. 930.59(b).
Sec. 930.81 Right of the Secretary.
Members of the Board (including successors and alternates), and any
agents, employees, or representatives thereof, shall be subject to
removal or suspension by the Secretary at any time. Each regulation,
decision, determination, or other act of the Board shall be subject to
the Secretary's disapproval at any time. Upon such disapproval, the
disapproved action of the Board shall be deemed null and void, except
as to acts done in reliance thereon or in accordance therewith prior to
such disapproval by the Secretary.
Sec. 930.82 Effective time.
The provisions of this part, and of any amendment thereto, shall
become effective at such time as the Secretary may declare, and shall
continue in force until terminated, or suspended.
Sec. 930.83 Termination.
(a) The Secretary may, at any time, terminate any or all of the
provisions of this part by giving at least 1 day's notice by means of a
press notice or in any other manner in which the Secretary may
determine.
(b) The Secretary shall terminate or suspend the operation of any
or all of the provisions of this part whenever the Secretary finds that
such provisions do not tend to effectuate the declared policy of the
Act.
(c) The Secretary shall terminate the provisions of this part
whenever the Secretary finds by referendum or otherwise that such
termination is favored by a majority of the growers and processors:
Provided, That such majority has, during the current fiscal year,
produced or canned and frozen more than 50 percent of the volume of the
cherries which were produced or processed within the production area.
Such termination shall become effective on the last day of June
subsequent to the announcement thereof by the Secretary.
(d) The Secretary shall conduct a referendum within the month of
March of every sixth year after the effective date of this part to
ascertain whether continuation of this part is favored by the growers
and processors. The Secretary may terminate the provisions of this part
at the end of any fiscal period in which the Secretary has found that
continuance is not favored by a majority of growers and processors who,
during a representative period determined by the Secretary, have been
engaged in the production or processing of tart cherries in the
production area. Such termination shall be announced on or before the
end of the fiscal period.
(e) The provisions of this part shall, in any event, terminate
whenever the provisions of the Act authorizing them cease to be in
effect.
Sec. 930.84 Proceedings after termination.
(a) Upon the termination of the provisions of this part, the then
[[Page 26979]]
functioning members of the Board shall, for the purpose of liquidating
the affairs of the Board, continue as trustees of all the funds and
property then in its possession, or under its control, including claims
for any funds unpaid or property not delivered at the time of such
termination.
(b) The said trustees shall:
(1) continue in such capacity until discharged by the Secretary;
(2) from time to time account for all receipts and disbursements
and deliver all property on hand, together with all books and records
of the Board and of the trustees, to such person as the Secretary may
direct; and
(3) upon the request of the Secretary, execute such assignments or
other instruments necessary or appropriate to vest in such person full
title and right to all of the funds, property, and claims vested in the
Board or in the trustees pursuant to this part.
(c) Any person to whom funds, property, and claims have been
transferred or delivered, pursuant to this section, shall be subject to
the same obligations imposed upon the Board and upon the trustees.
Sec. 930.85 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the
termination of this part or of any regulation issued pursuant to this
part, or the issuance of any amendment to either thereof, shall not:
(a) Affect or waive any right, duty, obligation, or liability which
shall have risen or which may thereafter arise in connection with any
provision of this part or any regulation issued thereunder;
(b) Release or extinguish any violation of this part or any
regulation issued thereunder;
(c) Affect or impair any rights or remedies of the Secretary or any
other person with respect to any such violation.
Sec. 930.86 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person
by virtue of this part shall cease upon its termination, except with
respect to acts done under and during the existence of this part.
Sec. 930.87 Agents.
The Secretary may, by designation in writing, name any officer or
employee of the United States, or name any agency or division in the
U.S. Department of Agriculture, to act as the Secretary's agent or
representative in connection with any provisions of this part.
Sec. 930.88 Derogation.
Nothing contained in this part is, or shall be construed to be, in
derogation or in modification of the rights of the Secretary or of the
United States to exercise any powers granted by the Act or otherwise,
or, in accordance with such powers, to act in the premises whenever
such action is deemed advisable.
Sec. 930.89 Personal liability.
No member or alternate member of the Board and no employee or agent
of the Board shall be held personally responsible, either individually
or jointly with others, in any way whatsoever, to any person for errors
in judgment, mistakes, or other acts, either of commission or omission,
as such member, alternate member, employee, or agent, except for acts
of dishonesty, willful misconduct, or gross negligence.
Sec. 930.90 Separability.
If any provision of this part is declared invalid or the
applicability thereof to any person, circumstance, or thing is held
invalid, the validity of the remainder of this part or the
applicability thereof to any other person, circumstance, or thing shall
not be affected thereby.
Sec. 930.91 Amendments.
Amendments to this subpart may be proposed, from time to time, by
the Board or by the Secretary.
Sec. 930.92 Counterparts.
This agreement may be executed in multiple counterparts and when
one counterpart is signed by the Secretary, all such counterparts shall
constitute, when taken together, one and the same instrument as if all
signatures were contained in one original.
Sec. 930.93 Additional parties.
After the effective date thereof, any handler may become a party to
this agreement if a counterpart is executed by such handler and
delivered to the Secretary. This agreement shall take effect as to such
new contracting part at the time such counterpart is delivered to the
Secretary, and the benefits, privileges, and immunities conferred by
this agreement shall then be effective as to such new contracting
party.
Sec. 930.94 Order with marketing agreement.
Each signatory hereby requests the Secretary to issue, pursuant to
the Act, an order providing for regulating the handling of tart
cherries in the same manner as is provided for in this agreement.
Subpart B--[Reserved]
Dated: May 22, 1996.
Shirley R. Watkins,
Deputy Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 96-13383 Filed 5-24-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-13284 Proposed Revocation of Tolerances; Extension of Comment Period
[Federal Register Volume 61, Number 104 (Wednesday, May 29, 1996)]
[Proposed Rules]
[Pages 26858-26859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13284]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[OPP-300415A; FRL-5370-1]
RIN 2070-AC18
Proposed Revocation of Tolerances; Extension of Comment Period
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; extension of comment period.
-----------------------------------------------------------------------
SUMMARY: EPA is extending until July 30, 1996, the comment period for a
proposed rule that was published in the Federal Register of March 1,
1996 that proposed the revocation of 41 section 408 tolerances
established under the Federal Food, Drug and Cosmetic Act (FFDCA) for
22 chemicals. The original comment period on the proposal ends on May
30, 1996, but because of the unavailability of certain documents in the
docket and the Dicofol Task Force's intentions to submit additional
data, the comment period is being extended.
DATES: Written comments, identified by the docket number [OPP-300415A],
must be received on or before July 30, 1996.
ADDRESSES: By mail, submit written comments to: Public Response
Section, Field Operations Division (7506C), Office of Pesticide
Programs, Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460. In person, bring comments to: Rm. 1132, CM #2, 1921 Jefferson
Davis Hwy., Arlington, VA 22202. Information submitted as a comment
concerning this document may be claimed confidential by marking any
part or all of that information as ``Confidential Business
Information'' (CBI). Information so marked will not be disclosed except
in accordance with procedures set forth in 40 CFR part 2. A copy of the
comment that does not contain CBI must be submitted for inclusion in
the public record. Information not marked confidential may be disclosed
publicly by EPA without prior notice. All written comments will be
available for public inspection in Rm. 1132 at the Virginia address
given above, from 8 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays.
Comments and data may also be submitted electronically by sending
electronic mail (e-mail) to: [email protected]. Electronic
comments must be submitted as an ASCII file avoiding the use of special
characters and any form of encryption. Comments and data will also be
accepted on disks in WordPerfect 5.1 file format or ASCII file format.
All comments and data in electronic form must be identified by the
docket number, [OPP-300415A]. No CBI should be submitted through e-
mail. Electronic comments on this proposed rule may be filed online at
many Federal Depository Libraries. Additional information on electronic
submissions can be found below in this document.
FOR FURTHER INFORMATION CONTACT: By mail: Niloufar Nazmi, Special
Review and Reregistration Division (7508W), Office of Pesticide
Programs, Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460. Office location and telephone number: Rm. WF32C5, Crystal
Station #1, 2800 Crystal Drive, Arlington, VA 22202, (703)-308-8028; e-
mail: [email protected].
SUPPLEMENTARY INFORMATION: In the Federal Register of March 1, 1996,
(61 FR 8173), EPA issued a proposed rule proposing the revocation of 9
tolerances, and announcing its decision whether 41 section 408
tolerances for 22 pesticides should be revoked under EPA's policy
concerning the coordination of its authorities under sections 408 and
409 of the FFDCA.
[[Page 26859]]
A record has been established for this rulemaking under docket
number [OPP-300360A] (including any comments and data submitted
electronically as described below). A public version of this record,
including printed, paper versions of electronic comments, which does
not include any information claimed as CBI, is available for inspection
from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays.
The public record is located in Rm. 1132 of the Public Response and
Program Resources Branch, Field Operations Division (7506C), Office of
Pesticide Programs, Environmental Protection Agency, Crystal Mall #2,
1921 Jefferson Davis Hwy., Arlington, VA.
Electronic comments can be sent directly to EPA at:
opp-D[email protected].
Electronic comments must be submitted as an ASCII file avoiding the
use of special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer all comments received electronically into printed,
paper form as they are received and will place the paper copies in the
official rulemaking record which will also include all comments
submitted directly in writing. The official rulemaking record is the
paper record maintained at the address in ``ADDRESSES'' at the
beginning of this document.
List of Subjects in 40 CFR Part 180
Administrative practice and procedure, Agricultural commodities,
Food additives, Pesticides and pests, Processed foods, Reporting and
recordkeeping requirements.
Dated: May 15, 1996.
Daniel M. Barolo,
Director, Office of Pesticide Programs.
[FR Doc. 96-13284 Filed 5-28-96; 8:45 am]
BILLING CODE 6560-50-F
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