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]

=======================================================================
-----------------------------------------------------------------------

[[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]

-----------------------------------------------------------------------

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

Complete official Federal Register PDF

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