69678 Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Proposed Rules 

due recognition to the differences in the 

production and marketing of tart 

cherries grown in the production area; 

and 

5. All handling of tart cherries grown 

in the production area as defined in the 

marketing order, is in the current of 

interstate or foreign commerce or 

directly burdens, obstructs, or affects 

such commerce. 

A 15-day comment period is provided 

to allow interested persons to respond 

to this proposal. Fifteen days is deemed 

appropriate because these proposed 

changes have been widely publicized 

and implementation of the changes, if 

adopted, would be desirable to benefit 

the industry prior to the next crop year 

which begins on July 1, 2012. All 

written exceptions timely received will 

be considered and a grower referendum 

will be conducted before any of these 

proposals are implemented. 

List of Subjects in 7 CFR Part 930 

Marketing agreements, Reporting and 

recordkeeping requirements, Tart 

cherries. 

For the reasons set forth in the 

preamble, 7 CFR part 930 is proposed to 

be amended as follows: 

PART 930—TART CHERRIES GROWN 

IN THE STATES OF MICHIGAN, NEW 

YORK, PENNSYLVANIA, OREGON, 

UTAH, WASHINGTON, AND 

WISCONSIN 

1. The authority citation for 7 CFR 

part 930 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

2. Revise the introductory paragraph 

in § 930.10 to read as follows: 

§ 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 § 930.59, or to 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: 

* * * * * 

3. Revise paragraphs (d) and (e) of 

§ 930.50 to read as follows: 

§ 930.50 Marketing Policy. 

* * * * * 

(d) Final percentages. No later than 

September 15 of each crop year, the 

Board shall review the most current 

information available including, but not 

limited to, processed production and 

grower diversions of cherries during the 

current crop year. The Board shall 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; 

(9) Any estimated release of primary 

or secondary inventory reserve cherries 

during the crop year; and 

(10) The quantity of grower-diverted 

cherries during the crop year. 

* * * * * 

4. Revise paragraph (a) of § 930.58 to 

read as follows: 

§ 930.58 Grower Diversion privilege. 

(a) In general. Any grower may 

voluntarily elect to 

divert, in accordance with the 

provisions of this section, all 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. 

Any grower diversions completed in 

accordance with this section, but which 

are undertaken in districts subsequently 

exempted by the Board from volume 

regulation under § 930.52(d), shall 

qualify for diversion credit. 

* * * * * 

Dated: November 3, 2011. 

David R. Shipman, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2011–29031 Filed 11–8–11; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 987 

[Doc. No. AMS–FV–10–0025; FV10–987–1 

PR] 

Domestic Dates Produced or Packed in 

Riverside County, CA; Proposed 

Amendments to Marketing Order 987 

and Referendum Order 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule and referendum 

order. 

SUMMARY: This rule proposes seven 

amendments to Marketing Agreement 

and Order No. 987 (order), which 

regulates the handling of domestic dates 

produced or packed in Riverside 

County, California, and provides 

growers with the opportunity to vote in 

a referendum to determine if they favor 

the changes. Five amendments were 

proposed by the California Date 

Administrative Committee (CDAC or 

committee), which is responsible for 

local administration of the order. These 

proposed amendments are intended to 

improve administration of and 

compliance with the order and reflect 

current industry practices. 

In addition to the committee’s 

proposals, the Agricultural Marketing 

Service (AMS) proposes two 

amendments that would provide for a 

continuance referendum every six years, 

and would establish term limits of up to 

six consecutive years for committee 

members. These proposals would allow 

producers to indicate continued support 

for the order and provide all interested 

industry members the opportunity to 

serve on the committee. 

DATES: The referendum will be 

conducted from January 16, 2012, 

through February 3, 2012. The 

representative period for the purpose of 

the referendum is October 1, 2010, 

through September 30, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Martin Engeler, Senior Marketing 

Specialist, Marketing Order and 

Agreement Division, Fruit and 


jlentini on DSK4TPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Proposed Rules 69679 

Vegetable Programs, AMS, USDA; 

Telephone: (559) 487–5110, Fax: (559) 

487–5906, or Kathleen M. Finn, 

Rulemaking Team Program Manager, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue SW., Stop 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, or Email: 

Martin.Engeler@ams.usda.gov or 

Kathy.Finn@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Laurel May, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue SW., STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, or Email: 

Laurel.May@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Agreement 

and Order No. 987, both as amended (7 

CFR part 987), regulating the handling 

of domestic dates produced or packed in 

Riverside County, California, hereinafter 

referred to as the ‘‘order.’’ The order is 

effective under the Agricultural 

Marketing Agreement Act of 1937, as 

amended (7 U.S.C. 601–674), hereinafter 

referred to as the ‘‘Act.’’ The applicable 

rules of practice and procedure 

governing the formulation of marketing 

agreements and orders (7 CFR part 900) 

authorize amendment of the order 

through this informal rulemaking 

action. 

The Department of Agriculture 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

This proposal has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This rule is not intended 

to have retroactive effect. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 608c(15)(A) of the Act, any 

handler subject to an order may file 

with USDA a petition stating that the 

order, any provision of the order, or any 

obligation imposed in connection with 

the order is not in accordance with law 

and request a modification of the order 

or to be exempted therefrom. A handler 

is afforded the opportunity for a hearing 

on the petition. After the hearing, USDA 

would rule on the petition. The Act 

provides that the district court of the 

United States in any district in which 

the handler is an inhabitant, or has his 

or her principal place of business, has 

jurisdiction to review USDA’s ruling on 

the petition, provided an action is filed 

not later than 20 days after the date of 

the entry of the ruling. 

Section 1504 of the Food, 

Conservation, and Energy Act of 2008 

(2008 Farm Bill) (Pub. L. 110–246) made 

changes to section 18c(17) of the Act, 

which in turn required the addition of 

supplemental rules of practice to 7 CFR 

part 900 (73 FR 49307; August, 21, 

2008). The additional supplemental 

rules of practice authorize the use of 

informal rulemaking (5 U.S.C. 553) to 

amend federal fruit, vegetable, and nut 

marketing agreements and orders if 

certain criteria are met. 

AMS has considered the nature and 

complexity of the proposed 

amendments, the potential regulatory 

and economic impacts on affected 

entities, and other relevant matters, and 

has determined that amending the order 

as proposed by the committee could 

appropriately be accomplished through 

informal rulemaking. 

The committee’s proposed 

amendments were recommended 

following deliberations at public 

meetings on October 30, 2008; October 

29, 2009; and February 25, 2010. The 

proposed amendments were first 

submitted to AMS on May 29, 2009. 

After further discussions with AMS, the 

committee submitted revised proposals 

to AMS on March 2, 2010. 

A proposed rule soliciting comments 

on the proposed amendments was 

issued on June 6, 2011, and published 

in the Federal Register on June 14, 2011 

(76 FR 34618). No comments were 

received. AMS will conduct a producer 

referendum to determine support for the 

proposed amendments. If appropriate, a 

final rule will then be issued to 

effectuate the amendments favored by 

producers in the referendum. 

The committee’s proposed 

amendments would: (1) Authorize the 

committee to recommend regulatory 

exemptions for certain date varieties if 

market conditions warrant such 

exemption. Currently the order only 

provides for exemptions for handlers 

who sell dates directly to consumers in 

limited market outlets; (2) Increase the 

terms of office for committee members 

and alternates from two to three years; 

(3) Authorize the committee to conduct 

business by means of telephone or video 

conference technologies. Currently all 

committee meetings must be assembled; 

(4) Authorize the committee to collect 

interest charges and late fees on 

delinquent assessment payments. 

Currently, the order does not provide 

authority for the collection of interest 

and late fees; and (5) Authorize the 

committee to build and maintain an 

operating monetary reserve not to 

exceed one year’s average expenses. 

Currently, the committee is authorized 

to maintain an operating reserve not to 

exceed 50 percent of an average year’s 

expenses. 

AMS further proposes to amend the 

order by: (1) Requiring that a producer 

referendum be conducted every six 

years to determine continued support 

for the order; and (2) establishing term 

limits of no longer than two consecutive 

terms of office or six consecutive years 

for committee members and alternates. 

Finally, AMS proposes to make 

conforming changes to the order as may 

be necessary to conform to any 

amendment to the order that may result 

from this rulemaking action. 

Proposal Number 1—Regulatory 

Exemptions 

Section 987.5 of the order defines the 

date varieties that are regulated under 

the order. Regulated varieties are subject 

to the minimum grade, size, inspection, 

certification, volume control, 

interhandler transfer, container, 

reporting, and assessment requirements 

authorized under §§ 987.39 through 

987.51, §§ 987.61 through 987.68, and 

§ 987.72 of the order. 

Currently, § 987.5 lists four date 

varieties for regulation under the order, 

including the Deglet Noor, Zahidi, 

Halawy, and Khadrawy varieties. At the 

time the order was established, these 

four varieties were produced or handled 

in Riverside County in sufficient 

quantities to warrant regulation. At 

times, production of some varieties may 

decline to the point that the committee 

believes that the cost to handlers of 

inspecting and reporting those varieties 

outweighs the benefits of doing so. For 

instance, the committee reports that the 

cost of regulating two date varieties 

currently outweighs the benefit of doing 

so as very little assessment revenue is 

generated by the handling of those two 

varieties. In such cases, the committee 

believes it should have the authority to 

recommend regulatory exemption of 

those varieties until such time as it is 

again appropriate to regulate them. 

To address this issue, the committee 

proposed amending the order by 

temporarily suspending the varieties 

currently produced in minimal 

quantities from inclusion in § 987.5— 

Dates. However, AMS believes that the 

committee would have greater flexibility 

if it were authorized to recommend 

regulatory exemptions for varieties 

produced, with the approval of the 

Secretary, through the informal 

rulemaking process. In this way, any 

future changes in production levels or 

other market considerations for any 

variety could be addressed through 

informal rulemaking. 


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Section 987.52 authorizes the 

committee to exempt handlers of dates 

for sale in certain market outlets from 

regulation if those sales are unlikely to 

interfere with the objectives of the 

order. However, the section does not 

authorize the exemption of dates sold 

into regular markets by variety. Such 

authority would allow the committee to 

recommend, subject to approval of the 

Secretary, that certain varieties be 

exempted from the order’s regulations 

through informal rulemaking. Such 

authority should be broad enough to 

include exemptions for a variety of 

reasons, including periods of minimal 

production. This flexibility would allow 

the committee to respond to changes in 

the production and marketing 

environment in a timely manner. As 

production and market conditions 

change, the committee could 

recommend lifting the regulatory 

exemptions, as appropriate. 

For example, two varieties regulated 

under the order are currently being 

produced in very small quantities. New 

date garden plantings of those varieties 

are still immature, and have not reached 

full production. Under the proposed 

amendment, the committee could 

recommend, through the informal 

rulemaking process, that those two 

varieties be exempted from the order’s 

regulations. When the trees of each 

variety mature and are producing in 

sufficient quantities to warrant 

regulation, the committee could 

recommend that the variety-specific 

exemptions be removed. 

For the reasons stated above, it is 

proposed that § 987.52, Exemption, be 

amended by designating the current text 

of that section as paragraph (a) and 

adding a new paragraph (b) providing 

authority for the committee to 

recommend that any variety may be 

exempt from regulations established 

pursuant to §§ 987.39 through 987.51, 

§§ 987.61 through 987.68, and § 987.72. 

Proposal Number 2—Terms of Office 

Section 987.23 of the order specifies 

that the terms of office for committee 

members and alternates are two years, 

beginning on August 1. Section 987.24 

of the order specifies that nominations 

for committee positions are held by June 

15, every other year. The committee 

proposed amending the order to extend 

member and alternate terms of office 

from two to three years. 

The terms of office for another 

California date industry program, the 

California Date Commission 

(commission), are three years. Some 

committee members may also serve on 

the commission. Nominations for the 

two programs occasionally, but not 

always, take place within a few weeks 

of each other. Because nominations 

coincide in some years and don’t 

coincide in others, the committee 

believes that voters can become 

confused about whether or not they 

have submitted ballots, and thus are less 

likely to participate in the committee’s 

nomination process. The committee 

believes that extending terms of office to 

three years and synchronizing 

nominations with those of the 

commission would improve the 

nomination process and encourage 

greater participation in committee 

nominations. 

Additionally, the number of date 

producers and handlers in the 

production area has declined over time, 

making it increasingly difficult to find 

new candidates to serve as members and 

alternates on the nine-member 

committee every other year. The 

committee believes that extending the 

terms of office for one year would give 

the industry more time to identify and 

recruit potential new committee 

members between nomination periods. 

The current committee was 

nominated in 2010 and is expected to 

serve until 2012. If this amendment is 

adopted, terms of office of the current 

committee members and alternates 

would be extended until 2014, or 

whenever a new committee is selected 

by the Secretary. Thereafter, the threeyear terms of office would commence 

with the new committee selected in 

2014. This would coincide with the 

commission’s nomination cycle. 

For the reasons stated above, it is 

proposed that § 987.23 of the order be 

amended to change committee member 

and alternate terms of office from two to 

three years. The section should also 

specify that the terms of office of 

members and alternates serving at the 

time the amendment is effectuated 

would end on July 31, 2014. Further, 

Section 987.24 should be amended to 

specify that nominations for committee 

positions are held by June 15 of every 

third year rather than every other year. 

Proposal Number 3—Committee 

Meetings 

Section 987.31 of the order specifies 

procedures for conducting committee 

business. Quorum requirements are 

defined, and the minimum voting 

requirements for various matters are 

specified. The section specifies that 

votes cast at assembled meetings shall 

be cast in person. The section also 

authorizes the committee to vote on any 

proposition by mail, telephone, or 

telegram after all members and 

alternates acting as members have 

received identical explanations about 

the proposition. Telephone votes must 

be confirmed in writing within two 

weeks. Actions approved by mail, 

telephone, or telegram voting must be 

unanimous to be valid. 

Currently, the order does not 

authorize the committee to conduct 

business meetings by telephone or other 

means of modern communication 

technology, such as video conference. 

The committee proposed amending the 

order to authorize the use of such 

technology in certain situations. 

The use of telephone conference and 

video conference capability has become 

standard in the date industry, as well as 

in other marketing order programs. Use 

of such technology allows producers 

and handlers to address urgent 

committee business with minimal 

disruption to their individual business 

responsibilities. Telephone and video 

conferences also bolster participation by 

other interested parties who would 

otherwise be unable to participate in 

industry meetings due to the constraints 

of time and distance. 

The committee believes that the use of 

telephone and video conference 

technology would be appropriate in 

certain situations, such as when the 

matters to be discussed are minor, or 

when emergencies demand immediate 

decisions by the committee. The 

committee also believes that some 

business matters should be addressed at 

assembled meetings, and that alternate 

meeting formats would not be 

appropriate for all situations. The 

committee proposed that the 

chairperson should have the discretion 

to determine the appropriate format for 

any committee meeting. 

There could be some situations in 

which the chairperson determines that 

members may participate in assembled 

meetings by telephone or other means of 

communication. Although the member’s 

alternate may be present at the same 

assembled meeting, the committee 

believes that the member should retain 

the right to vote on any issue that comes 

before the committee in that meeting, 

even if he or she is participating via 

telephone or videoconference. 

Therefore, the requirement that votes at 

assembled meetings shall be cast in 

person should be removed. 

Nevertheless, the committee believes 

that votes cast by telephone should 

continue to be confirmed in writing 

within two weeks of the meeting. 

Finally, because telegrams are no longer 

in standard use, authority to vote by 

telegram should be removed. 

For the reasons stated above, it is 

proposed that § 987.31, Procedure, be 

amended by: Revising paragraph (d) to 

provide for participation in assembled 


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Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Proposed Rules 69681 

committee meetings as well as 

telephone, video conference, or other 

types of meetings; providing the 

committee chairperson with discretion 

to determine the appropriate meeting 

format and whether members may 

participate in assembled meetings by 

telephone or other means; clarifying that 

members attending assembled meetings 

by alternate means of communication 

retain the same voting privileges they 

would otherwise have; and removing 

the requirement that votes at assembled 

meetings shall be cast in person. 

Paragraph (e) of § 987.31 would be 

amended by removing the words ‘‘or 

telegram.’’ 

Proposal Number 4—Interest and Late 

Payment Charges 

Section 987.72 requires date handlers 

to pay the committee assessments upon 

merchantable and utility dates they 

have certified as such. Funds to 

administer the order are derived from 

such assessments. The committee, with 

USDA approval, formulates annual 

budgets of expenses and recommends 

appropriate assessment rates. The 

committee’s budgeted expenditures 

include those for general administration 

of the program, as well as the cost of 

promotional programs and marketing 

and media consultants. 

Currently, the order does not 

authorize the committee to charge 

interest or late payment charges for 

delinquent assessment payments. The 

committee believes that adding such 

authority would provide greater 

incentive for handlers to make 

assessment payments on time. This in 

turn would help ensure that the 

committee is able to meet its financial 

obligations and continue to fund its 

programs on a continuing basis. 

Charging interest and late payment 

charges on unpaid financial obligations 

is commonplace in the business world, 

and implementation of such charges 

would bring the committee’s financial 

operations in line with standard 

business practices. Such charges would 

remove any financial advantage for 

those who do not pay on time while 

they benefit from committee programs, 

creating a more level playing field for 

the industry. 

The committee recommended 

amending the order to authorize the 

collection of interest and late payment 

charges for delinquent payments. Such 

authority would allow the committee to 

establish, through informal rulemaking, 

parameters for implementation, 

including timeframes and appropriate 

interest and late payment charges that 

would be imposed if necessary. This 

authority is intended to strengthen 

compliance with the order’s assessment 

requirements. 

For the reasons stated above, it is 

proposed that paragraphs (b) through (d) 

of § 987.72 be redesignated paragraphs 

(c) through (e), respectively, and that a 

new paragraph (b) be added to the order 

to specify that any assessment not paid 

by a handler within a period of time 

specified by the committee may be 

subject to an interest or late payment 

charge, or both. The new paragraph 

would further specify that the period of 

time, interest rate, and late payment 

charge shall be as recommended by the 

committee and approved by the 

Secretary. 

Proposal Number 5—Operating Reserve 

Paragraph (c) of § 987.72 currently 

authorizes the committee to establish 

and maintain a monetary operating 

reserve in an amount not to exceed 50 

percent of an average year’s expenses. 

The average year’s expenses are 

calculated using the actual expenses of 

the five most recent crop years. Should 

the existing reserve ever exceed the 

recalculated average, there is no 

requirement to lower the reserve to meet 

that average. Funds in the reserve are 

available for use by the committee to 

meet its financial obligations in 

connection with administration of the 

order and its programs. Annual budgets 

and assessment rates are revised as 

appropriate in an effort to maintain the 

authorized operating reserve balance. 

The committee occasionally uses 

reserve funds when the assessment 

revenues they have collected are not 

sufficient to meet their budgeted 

expenses. This may happen when the 

date crop is smaller than expected, 

which reduces the total amount of 

assessments paid by handlers. In other 

instances, the committee may desire 

later in the year to take advantage of a 

promotional opportunity for which it 

had not budgeted at the beginning of the 

year. With the approval of the Secretary, 

the committee could revise their budget 

to include the promotional program and 

use reserve funds to cover its costs 

without increasing the current 

assessment rate. 

In crop years with unexpectedly high 

production, the approved assessment 

rate may generate excess funds. Under 

the order’s current provisions, the 

committee is only authorized to retain 

an amount not to exceed 50 percent of 

an average year’s expenses. Any excess 

funds must be returned to handlers or 

applied as a credit against their 

accounts for the upcoming year. 

The committee proposed raising the 

operating reserve limit from 50 percent 

of an average year’s expenses to an 

amount not to exceed one year’s average 

expenses. This would allow the 

committee to retain more surplus 

assessment revenues they may collect. A 

larger operating reserve would 

strengthen the committee’s continuity 

and confidence in managing committee 

business. A larger reserve would 

provide sufficient funds to meet the 

committee’s budgeted financial 

obligations, including the maintenance 

of strategic marketing programs, in short 

crop years as well as provide the 

flexibility to respond to unexpected 

opportunities. The committee could 

recommend annual assessment rates. 

Over a number of years, the reserve 

could gradually increase until the 

balance approximates one year’s average 

expenses, as calculated using the five 

most recent years’ actual expenses. 

For the reasons stated above, it is 

proposed that paragraph (c) of § 987.72, 

which would be redesignated paragraph 

(d) as described under amendment 

Proposal Number 4 above, be further 

amended to authorize the committee to 

build and maintain an operating 

monetary reserve not to exceed one 

year’s average expenses, based upon the 

actual expenses of the five most recent 

crop years. 

Proposal Number 6—Continuance 

Referenda 

AMS proposes to amend the order by 

adding a provision for continuance 

referenda every six years. Provision for 

periodic continuance referenda would 

offer producers the opportunity to 

indicate ongoing support for the order 

and its programs. Experience has shown 

that marketing order programs need 

significant industry support to operate 

effectively. Continuance of the date 

order would require the favorable vote 

of at least two-thirds of those voting, or 

of those representing at least two-thirds 

of the production volume represented in 

the referendum. This is the same 

support that is typically required for 

issuance or amendment of an order. 

The order was last amended on 

February 1, 1978 (43 FR 4253). Since 

that time, USDA has recommended that 

producers of commodities regulated 

under federal marketing orders be 

offered the opportunity to participate in 

periodic continuance referenda. The 

California date marketing order does not 

currently provide for continuance 

referenda. Therefore, it is recommended 

that § 987.82—Effective time, 

suspension, or termination, be amended 

by redesignating paragraph (b)(3) as 

paragraph (b)(4) and adding a new 

paragraph (b)(3) to provide that a 

continuance referendum shall be 

conducted six years after the 


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amendment becomes effective and every 

six years thereafter. 

In paragraph (b)(2) of § 987.82, the 

word ‘‘growers,’’ which appears in the 

heading and in the text of that 

paragraph, should be replaced with the 

word ‘‘producers’’ to conform with the 

definition provided in § 987.7 of the 

order; and the word ‘‘he,’’ in reference 

to the Secretary, should be replaced by 

the words ‘‘he or she’’ to modernize the 

section. 

Proposal Number 7—Term Limits 

AMS proposes to amend the order by 

establishing term limits on the number 

of consecutive terms a person may serve 

on the committee. 

Currently, the term of office for each 

member and alternate member of the 

committee is two years. Committee 

members and alternates continue to 

serve until their successors have been 

selected by the Secretary and have 

qualified. The order does not specify 

any term limits for members or 

alternates. Members and alternates may 

be selected to serve consecutive terms in 

those positions, as long as they continue 

to be eligible and willing to do so. 

As explained under Proposal number 

2 above, the committee has proposed to 

amend the order to provide for threeyear terms of office. AMS is proposing 

to further amend the order to specify 

that members may serve up to two 

consecutive three-year terms, not to 

exceed six consecutive years. This 

proposal for a limitation on tenure 

would not apply to alternates. Once a 

member has served on the committee for 

two consecutive terms, or six years, the 

member would be required to step down 

for at least one year before being eligible 

to serve as a member again. The member 

could serve as an alternate during that 

time. 

AMS’s experience with similar 

marketing programs is that establishing 

tenure limits is a means to increase 

industry participation on the committee 

and in its programs. By inviting 

potential new members to serve, small 

and large entities who have not been 

actively involved previously may be 

encouraged to take part in the order’s 

activities and gain committee 

experience. 

For the reasons stated above, it is 

proposed that § 987.23 be further 

amended by specifying that members 

may serve up to two consecutive threeyear terms, not to exceed six 

consecutive years as members. There 

would be no such limitation for 

alternates. After serving for six 

consecutive years, members would be 

required to step down for at least one 

year before being eligible to serve again. 

If the order is amended to allow threeyear terms of office, members who were 

appointed in 2010 and continued to 

serve until 2014 would be allowed to 

serve one additional three-year term of 

office before being required to step 

down. Any other service prior to the 

order amendment would not count 

toward the term limit. 

Conforming Changes to Administrative 

Rules and Regulations 

Adoption of two of the proposed 

amendments to the order would require 

that conforming changes be made to 

§ 987.124 of the order’s administrative 

rules and regulations. These changes 

would not be voted upon by producers 

in the referendum, but would be made 

as conforming changes if Proposal 

Number 2, to make terms of office three 

years long, and/or Proposal Number 7, 

to add term limits, are approved by 

voters participating in the referendum. 

Currently, paragraph (a) of § 987.124 

specifies that nominations materials are 

provided to producers and producerhandlers no later than June 15 of each 

even numbered year. If the order is 

amended to provide for three-year terms 

of office as explained in Proposal 

number 2 above, nominations would be 

conducted every three years, rather than 

every two years. Therefore, § 987.124(a) 

should be changed to specify that ballot 

materials are provided to producers and 

producer handlers no later than June 15 

of every third year. 

Paragraph (a)(1) of § 987.124 currently 

specifies that the ballots should contain 

the list of incumbents who are willing 

to continue serve on the committee. As 

explained above, some incumbents may 

no longer be eligible to serve in their 

positions if the proposal to add term 

limits is adopted. Therefore, 

§ 987.124(a)(1) should be revised to 

clarify that the names of incumbents 

who are both willing and eligible to 

continue serving should be listed on the 

ballots. 

Final Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) (5 

U.S.C. 601–612), the Agricultural 

Marketing Service (AMS) has 

considered the economic impact of this 

action on small entities. Accordingly, 

AMS has prepared this final regulatory 

flexibility analysis. 

The purpose of the RFA is to fit 

regulatory actions to the scale of 

business subject to such actions in order 

that small businesses will not be unduly 

or disproportionately burdened. 

Marketing orders issued pursuant to the 

Act, and rules issued thereunder, are 

unique in that they are brought about 

through group action of essentially 

small entities acting on their own 

behalf. 

There are approximately 85 producers 

of dates in the production area and 8 

handlers subject to regulation under the 

marketing order. The Small Business 

Administration (13 CFR 121.201) 

defines small agricultural producers as 

those having annual receipts of less than 

$750,000, and small agricultural service 

firms are defined as those having annual 

receipts of less than $7,000,000. 

According to the National 

Agricultural Statistics Service (NASS), 

the 2010 crop yield was approximately 

7,080 pounds, or 3.54 tons, of dates per 

acre. NASS estimates that the 2010 

grower price was approximately $0.585 

per pound, or $1,170 per ton. Thus, the 

value of date production in 2010 

averaged about $4,142 per acre (7,080 

pounds per acre times $0.585 per 

pound). At that average price, a 

producer would have to farm over 181 

acres to receive an annual income from 

dates of $750,000 ($750,000 divided by 

$4,142 per acre equals 181.1 acres). 

According to committee staff, the 

majority of California date producers 

farm fewer than 181 acres. Thus, it can 

be concluded that the majority of date 

producers could be considered small 

entities. According to data from the 

committee, the majority of handlers of 

California dates may also be considered 

small entities. 

The amendments proposed by the 

committee would authorize the 

committee to recommend regulatory 

exemptions for dates by variety, provide 

for three year terms of office for 

committee members, provide for 

committee meetings by telephone and 

other means of communication, 

authorize an operating monetary reserve 

not to exceed one year’s average 

expenses, and authorize the collection 

of interest and late payment charges on 

delinquent assessment payments. 

Amendments proposed by AMS 

would provide for continuance 

referenda every six years, and would 

specify term limits of not more than six 

consecutive years for committee 

positions. Conforming changes to the 

order’s administrative rules and 

regulations would be made as necessary 

to facilitate implementation of any 

amendments approved by voters in the 

referendum. Specifically, the 

committee’s nomination and polling 

procedures would be modified to 

require that balloting materials be 

provided to producers by June 15 of 

every third year. 

The committee’s proposed 

amendments were unanimously 

recommended at public meetings held 


jlentini on DSK4TPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Proposed Rules 69683 

on October 30, 2008; October 29, 2009; 

and February 25, 2010. The committee 

believes that each of their proposed 

amendments would benefit producers 

and handlers of all sizes. 

If granted authority to temporarily 

exempt certain date varieties from 

regulation, the committee could 

determine whether the costs of 

collecting assessments and reports on 

individual varieties are warranted. 

Handler burden related to those 

functions would be reduced for 

exempted varieties. Decreases in 

handler assessment obligation and 

reporting costs could be passed on to 

producers. Administrative costs related 

to enforcing regulatory compliance for 

those varieties would also be reduced. 

Producer and handler participation in 

committee nominations is expected to 

improve if member terms of office are 

extended from two to three years. 

Extending the terms of office would 

afford the committee more time to 

identify and develop potential new 

members between committee selections. 

Coordinating committee nomination 

periods with those of other industry 

programs is expected to reduce voter 

confusion and increase the number of 

ballots returned, thus improving 

producer and handler representation on 

the committee. 

Adding authority for alternative 

meeting formats is expected to improve 

participation in committee deliberations 

by industry members of all sizes. Such 

authority would minimize the time that 

committee members would be required 

to be away from their individual 

businesses. Authorizing the chairperson 

to determine the format for each 

meeting would ensure that critical 

committee business is addressed 

appropriately. By providing greater 

flexibility for meeting attendance and 

participation, the committee hopes to 

benefit from the input of a greater 

number of interested persons whose 

perspectives and ideas could improve 

the marketing of California dates, which 

would in turn benefit both producers 

and handlers. 

Authorizing the committee to impose 

interest and late payment charges on 

delinquent assessments is intended to 

encourage handlers to make payments 

on a timely basis. There would be no 

additional cost to handlers who comply 

with the order’s assessment 

requirements. Timely assessment 

payments allow the committee to make 

and keep financial obligations with 

regard to operation of its programs, 

including marketing and promotion, 

which are intended to benefit all 

producers and handlers. 

If authority to build and maintain an 

operating reserve equal to one year’s 

average expenses is added to the order, 

the committee could recommend 

increases to their assessment rate in 

order to gradually build the reserve. 

During high production years, excess 

assessments could be added to the 

reserve until the fund’s limit is reached. 

The larger operating reserve would help 

ensure that the committee has sufficient 

funds to meet its financial obligations 

and maintain critical marketing 

programs, even during short crop years. 

Such stability is expected to allow the 

committee to conduct programs that 

will benefit all entities, regardless of 

size. 

AMS’s proposal to add provision for 

continuance referenda is expected to 

afford producers the opportunity to 

indicate ongoing support for the order 

and its programs. The proposal to add 

term limits is expected to encourage 

participation on the committee by all 

interested industry members. Support 

for the program, and active participation 

on the committee by a diverse group of 

industry members, are expected to 

benefit all producers and handlers by 

ensuring that the program continues to 

meet the industry’s evolving needs. 

Proposed changes to the order’s 

nomination and polling regulations are 

administrative in nature and are 

intended to facilitate implementation of 

the proposed amendments, if adopted. 

Where measurable, the costs outlined 

in this analysis are expected to be 

proportional to the size of business, so 

smaller businesses should not be 

unduly burdened. Benefits associated 

with improved efficiencies and greater 

representation on the committee should 

accrue to all entities, regardless of size. 

Alternatives to these proposals 

include making no changes at this time. 

However, the proposed changes are 

necessary to update administration of 

the order to reflect current industry 

practices, provide consistent funding 

that will enable the committee to 

maintain valuable marketing programs, 

and provide greater opportunity for 

committee participation. 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

Chapter 35), the order’s information 

collection requirements have been 

previously approved by the Office of 

Management and Budget (OMB) and 

assigned OMB No. 0581–0178, 

Vegetable and Specialty Crops. No 

changes in those requirements as a 

result of this proceeding are anticipated. 

Should any changes become necessary, 

they would be submitted to OMB for 

approval. 

As with all Federal marketing order 

programs, reports and forms are 

periodically reviewed to reduce 

information requirements and 

duplication by industry and public 

sector agencies. 

In addition, USDA has not identified 

any relevant Federal rules that 

duplicate, overlap, or conflict with this 

rule. 

AMS is committed to complying with 

the E-Government Act, to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

The committee’s meetings, at which 

these proposals were discussed, were 

widely publicized throughout the date 

industry. All interested persons were 

invited to attend the meetings and 

encouraged to participate in committee 

deliberations on all issues. Like all 

committee meetings, the meetings were 

public, and all entities, both large and 

small, were encouraged to express their 

views on these proposals. 

A proposed rule concerning this 

action was published in the Federal 

Register on June 14, 2011 (76 FR 34618). 

Copies of the rule were mailed or sent 

via facsimile to all committee members 

and date handlers. Finally, the rule was 

made available through the Internet by 

USDA and the Office of the Federal 

Register. A 30-day comment period 

ending July 14, 2011, was provided to 

allow interested persons to respond to 

the proposal. No comments were 

received in response to the proposal. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: http://www.ams.usda.gov/ 

MarketingOrdersSmallBusinessGuide. 

Any questions about the compliance 

guide should be sent to Laurel May at 

the previously mentioned address in the 

FOR FURTHER INFORMATION CONTACT

section. 

Findings and Conclusions 

The findings and conclusions and 

general findings and determinations 

included in the proposed rule set forth 

in the June 14, 2011, issue of the 

Federal Register are hereby approved 

and adopted. 

Marketing Order 

Annexed hereto and made a part 

hereof is the document entitled ‘‘Order 

Amending the Order Regulating the 

Handling of Dates Produced or Packed 

in Riverside County, California.’’ This 

document has been decided upon as the 

detailed and appropriate means of 

effectuating the foregoing findings and 


jlentini on DSK4TPTVN1PROD with PROPOSALS
69684 Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Proposed Rules 

1This order shall not become effective unless and 

until the requirements of § 900.14 of the rules of 

practice and procedure governing proceedings to 

formulate marketing agreements and marketing 

orders have been met. 

conclusions. It is hereby ordered, That 

this entire rule 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 part 900.400–407) to determine 

whether the annexed order amending 

the order regulating the handling of 

dates produced or packed in Riverside 

County, California is approved by 

growers, as defined under the terms of 

the order, who during a representative 

period were engaged in the production 

of dates in the production area. The 

representative period for the conduct of 

such referendum is hereby determined 

to be October 1, 2010, through 

September 30, 2011. 

The agents of the Secretary to conduct 

such referendum are designated to be 

Terry Vawter and Jeff Smutny, 

California Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (559) 487– 

5901, or Email: 

Terry.Vawter@ams.usda.gov or 

Jeffrey.Smutny@ams.usda.gov, 

respectively. 

List of Subjects in 7 CFR Part 987 

Dates, Marketing agreements, 

Reporting and recordkeeping 

requirements. 

Dated: November 3, 2011. 

David R. Shipman, 

Acting Administrator, Agricultural Marketing 

Service. 

Order Amending the Order Regulating 

the Handling of Dates Produced or 

Packed in Riverside County, 

California 1

Findings and Determinations 

The findingshereinafter set forth are 

supplementary to the findings and 

determinations which were previously 

made in connection with the issuance of 

the marketing agreement and order; and 

all said previous findings and 

determinations are hereby ratified and 

affirmed, except insofar as such findings 

and determinations may be in conflict 

with the findings and determinations set 

forth herein. 

1. The marketing agreement and 

order, as amended, and as hereby 

proposed to be further amended, and all 

of the terms and conditions thereof, 

would tend to effectuate the declared 

policy of the Act; 

2. The marketing agreement and 

order, as amended, and as hereby 

proposed to be further amended, 

regulate the handling of dates produced 

or packed in the production area 

(Riverside County, California) 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; 

3. The marketing agreement and 

order, as amended, and as hereby 

proposed to be further amended, are 

limited in application to the smallest 

regional production area which is 

practicable, consistent with carrying out 

the declared policy of the Act, and the 

issuance of several orders applicable to 

subdivisions of the production area 

would not effectively carry out the 

declared policy of the Act; 

4. The marketing agreement and 

order, as amended, and as hereby 

proposed to be further amended, 

prescribe, insofar as practicable, such 

different terms applicable to different 

parts of the production area as are 

necessary to give due recognition to the 

differences in the production and 

marketing of dates produced or packed 

in the production area; and 

5. All handling of dates produced or 

packed in the production area as 

defined in the marketing agreement and 

order 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 dates grown or packed in 

Riverside County, California shall be in 

conformity to, and in compliance with, 

the terms and conditions of the said 

order as hereby proposed to be amended 

as follows: 

The provisions of the proposed 

marketing order amending the order 

contained in the proposed rule issued 

by the Administrator on June 6, 2011, 

and published in the Federal Register 

(76 FR 34618) on June 14, 2011, will be 

and are the terms and provisions of this 

order amending the order and are set 

forth in full herein. 

PART 987—DOMESTIC DATES 

PRODUCED OR PACKED IN 

RIVERSIDE COUNTY, CALIFORNIA 

1. The authority citation for 7 CFR 

part 987 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

2. Revise § 987.23 to read as follows: 

§ 987.23 Term of office. 

The term of office for members and 

alternate members shall be three years 

beginning August 1, except that such 

term may be shorter if the Committee 

composition is changed in the interim 

pursuant to § 987.21. Provided, That the 

terms of office of all members and 

alternates currently serving at the time 

of the amendment will end on July 31, 

2014. Commencing with the term of 

office that begins on August 1, 2014, 

members may serve up to two 

consecutive three-year terms, not to 

exceed six consecutive years as 

members: Provided, That members who 

were serving at the time of the 

amendment and who continued to serve 

until 2014 may serve only one 

additional three-year term of office. 

Members who have served two 

consecutive terms or six years may not 

serve as members for at least one year 

before becoming eligible to serve again. 

Except as provided above, the limitation 

on consecutive terms of office and years 

of service does not apply to service on 

the committee prior to enactment of the 

amendment, and does not apply to 

alternates. Each member and alternate 

member shall, unless otherwise ordered 

by the Secretary, continue to serve until 

his or her successor has been selected 

and has qualified. 

3. Revise paragraph (a) of § 987.24 to 

read as follows: 

§ 987.24 Nomination and selection. 

(a) Nomination for members and 

alternate members of the Committee 

shall be made not later than June 15 of 

every third year. 

* * * * * 

4. Amend § 987.31 by revising 

paragraphs (d) and (e) to read as follows: 

§ 987.31 [Amended] 

* * * * * 

(d) At the discretion of the 

chairperson, Committee meetings may 

be assembled or conducted by means of 

teleconference, video conference, or 

other means of communication that may 

be developed. Assembled meetings may 

also allow for participation by means of 

teleconference or video conference or 

other communication methods, at the 

discretion of the chair. Members 

participating in meetings via any of 

these alternative means retain the same 

voting privileges that they would 

otherwise have. 

(e) The Committee may vote upon any 

proposition by mail, or by telephone 

when confirmed in writing within two 

weeks, upon due notice and full and 

identical explanation to all members, 

including alternates acting as members, 

but any such action shall not be 


jlentini on DSK4TPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Proposed Rules 69685 

considered valid unless unanimously 

approved. 

* * * * * 

5. Amend § 987.52 by designating the 

existing text as paragraph (a) and by 

adding a new paragraph (b) to read as 

follows: 

§ 987.52 [Amended] 

(a) * * * 

(b) The Committee may, with the 

approval of the Secretary, recommend 

that the handling of any date variety be 

exempted from regulations established 

pursuant to §§ 987.39 through 987.51 

and §§ 987.61 through 987.72. 

6. Amend § 987.72 by redesignating 

paragraphs (b) through (d) as paragraphs 

(c) through (e), respectively; by adding 

a new paragraph (b); and by revising 

redesignated paragraph (d) to read as 

follows: 

§ 987.72 [Amended] 

* * * * * 

(b) Delinquent payments. Any 

assessment not paid by a handler within 

a period of time prescribed by the 

Committee may be subject to an interest 

or late payment charge, or both. The 

period of time, rate of interest, and late 

payment charge shall be as 

recommended by the Committee and 

approved by the Secretary. 

(c) * * * 

(d) Operating reserve. The Committee, 

with the approval of the Secretary, may 

establish and maintain during one or 

more crop years an operating monetary 

reserve in an amount not to exceed the 

average of one year’s expenses incurred 

during the most recent five preceding 

crop years, except that an established 

reserve need not be reduced to conform 

to any recomputed average. Funds in 

reserve shall be available for use by the 

Committee for expenses authorized 

pursuant to § 987.71. 

* * * * * 

7. Amend § 987.82 by revising 

paragraph (b)(2), redesignating 

paragraph (b)(3) as paragraph (b)(4), and 

adding a new paragraph (b)(3) to read as 

follows: 

§ 987.82 [Amended] 

* * * * * 

(b) * * * 

(2) When favored by producers. The 

Secretary shall terminate the provisions 

of this part at the end of any crop year 

whenever he or she finds that such 

termination is favored by a majority of 

the producers of dates who, during that 

crop year, have been engaged in the 

production for market of dates in the 

area of production: Provided, That such 

majority have, during such period, 

produced for market more than 50 

percent of the volume of such dates 

produced for market within said area; 

but such termination shall be effective 

only if announced on or before August 

1 of the then current crop year. 

(3) Continuance referendum. The 

Secretary shall conduct a referendum 

six years after the effective date of this 

section and every sixth year thereafter to 

ascertain whether continuance of this 

part is favored by producers. The 

Secretary may terminate the provisions 

of this part at the end of any crop year 

in which he or she has found that 

continuance of this part is not favored 

by producers who, during a 

representative period determined by the 

Secretary, have been engaged in the 

production for market of dates in the 

production area. 

* * * * * 

8. Revise § 987.124(a) to read as 

follows: 

§ 987.124 Nomination and polling. 

(a) Date producers and producerhandlers shall be provided an 

opportunity to nominate and vote for 

individuals to serve on the Committee. 

For this purpose, the Committee shall, 

no later than June 15 of every third year, 

provide date producers and producerhandlers nomination and balloting 

material by mail or equivalent electronic 

means, upon which producers and 

producer-handlers may nominate 

candidates and cast their votes for 

members and alternate members of the 

Committee in accordance with the 

requirements in paragraphs (b)(1) and 

(b)(2) of this section, respectively. All 

ballots are subject to verification. 

Balloting material should be provided to 

voters at least two weeks before the due 

date and should contain, at least, the 

following information: 

(1) The names of incumbents who are 

willing and eligible to continue to serve 

on the Committee; 

(2) The names of other persons 

willing and eligible to serve; 

(3) Instructions on how voters may 

add write-in candidates; 

(4) The date on which the ballot is 

due to the Committee or its agent; and 

(5) How and where to return ballots. 

[FR Doc. 2011–29032 Filed 11–8–11; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2011–1168; Directorate 

Identifier 2010–NM–239–AD] 

RIN 2120–AA64 

Airworthiness Directives; The Boeing 

Company Model 767–200 and –300 

Series Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: We propose to adopt a new 

airworthiness directive (AD) for all The 

Boeing Company Model 767–200 and 

–300 series airplanes. This proposed AD 

was prompted by reports of cracks in 

the inner chords at both left-side and 

right-side stations 859.5, 883.5, and 

903.5. This proposed AD would require 

repetitive inspections of the frame inner 

chord transition radius for cracks, and 

related investigative and corrective 

actions if necessary. We are proposing 

this AD to prevent large cracks in the 

frames and adjacent structure that can 

adversely affect the structural integrity 

of the airplane. 

DATES: We must receive comments on 

this proposed AD by December 27, 

2011. 

ADDRESSES: You may send comments, 

using the procedures found in 14 CFR 

11.43 and 11.45, by any of the following 

methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: (202) 493–2251. 

• Mail: U.S. Department of 

Transportation, Docket Operations, 

M–30, West Building Ground Floor, 

Room W12–140, 1200 New Jersey 

Avenue SE., Washington, DC 20590. 

• Hand Delivery: Deliver to Mail 

address above between 9 a.m. and 

5 p.m., Monday through Friday, except 

Federal holidays. 

For service information identified in 

this proposed AD, contact Boeing 

Commercial Airplanes, Attention: Data 

& Services Management, P.O. Box 3707, 

MC 2H–65, Seattle, Washington 98124– 

2207; telephone (206) 544–5000, 

extension 1; fax (206) 766–5680; email 

me.boecom@boeing.com; Internet 

https://www.myboeingfleet.com. You 

may review copies of the referenced 

service information at the FAA, 

Transport Airplane Directorate, 1601 

Lind Avenue SW., Renton, Washington. 

For information on the availability of 


jlentini on DSK4TPTVN1PROD with PROPOSALS