Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations 1035

7 CFR Part 982

[Docket No. FV96–982–2 IFR]

Hazelnuts Grown in Oregon and

Washington; Establishment of Interim

and Final Free and Restricted

Percentages for the 1996–97 Marketing

Year

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Interim final rule with request

for comments.

SUMMARY: This interim final rule

establishes interim and final free and

restricted percentages for domestic

inshell hazelnuts for the 1996–97

marketing year under the Federal

marketing order for hazelnuts grown in

Oregon and Washington. The

percentages allocate the quantity of

domestically produced hazelnuts which

may be marketed in the domestic inshell

market. The percentages are intended to

stabilize the supply of domestic inshell

hazelnuts to meet the limited domestic

demand for such hazelnuts and provide

reasonable returns to producers. This

rule was recommended unanimously by

the Hazelnut Marketing Board (Board),

which is the agency responsible for

local administration of the order.

DATES: Effective January 9, 1997 through

June 30, 1997; comments which are

received by February 7, 1997, will be

considered prior to any finalization of

the interim final rule.

ADDRESSES: Interested persons are

invited to submit written comments

concerning this rule to: Docket Clerk,

Fruit and Vegetable Division, AMS,

USDA, Room 2525–S, P.O. Box 96456,

Washington, DC 20090–6456. Three

copies of all written material shall be

submitted, and they will be made

available for public inspection at the

office of the Docket Clerk during regular

business hours. All comments should

reference the docket number, date, and

page number of this issue of the Federal

Register.

FOR FURTHER INFORMATION CONTACT:

Teresa L. Hutchinson, Marketing

Specialist, Northwest Marketing Field

Office, Fruit and Vegetable Division,

Agricultural Marketing Service, USDA,

1220 SW Third Ave., Room 369,

Portland, OR 97204; telephone (503)

326–2055 or Mark A. Slupek, Marketing

Specialist, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, Room

2525–S, P.O. Box 96456, Washington,

DC 20090–6456; telephone (202) 205–

2830. Small businesses may request

information on compliance with this

regulation by contacting: Jay Guerber,

Marketing Order Administration

Branch, Fruit and Vegetable Division,

AMS, USDA, P.O. Box 96456, Room

2525–S, Washington, DC 20090–6456;

telephone (202) 720–2491; FAX (202)

720–5698.

SUPPLEMENTARY INFORMATION: This rule

is issued under Marketing Agreement

No. 115 and Order No. 982 (7 CFR Part

982), hereinafter referred to as the

‘‘order,’’ both as amended, regulating

the handling of hazelnuts grown in

Oregon and Washington. The marketing

agreement and order are effective under

the Agricultural Marketing Agreement

Act of 1937, as amended (7 U.S.C. 601–

674), hereinafter referred to as the

‘‘Act.’’

The Department of Agriculture

(Department) is issuing this rule in

conformance with Executive Order

12866.

This rule has been reviewed under

Executive Order 12778, Civil Justice

Reform. It is intended that this action

apply to all merchantable hazelnuts

handled during the 1996–97 marketing

year (July 1, 1996–June 30, 1997). This

rule will not preempt any State or local

laws, regulations, or policies, unless

they present an irreconcilable conflict

with this rule.

The Act provides that administrative

proceedings must be exhausted before

parties may file suit in court. Under

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

handler subject to an order may file

with 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 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, 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.

This rule establishes marketing

percentages which allocate the quantity

of inshell hazelnuts that may be

marketed in domestic markets. The

Board is required to meet prior to

September 20 of each marketing year to

compute its marketing policy for that

year and compute and announce an

inshell trade demand if it determines

that volume regulations would tend to

effectuate the declared policy of the Act.

The Board also computes and

announces preliminary free and

restricted percentages for that year.

The inshell trade demand is the

amount of inshell hazelnuts the

handlers may ship to the domestic

market throughout the marketing

season. The order specifies that the

inshell trade demand be computed by

averaging the preceding three ‘‘normal’’

years’ trade acquisitions of inshell

hazelnuts, rounded to the nearest whole

number. The Board may increase the

three-year average by up to 25 percent,

if market conditions warrant an

increase. The Board’s authority to

recommend volume regulations and the

computations used to determine

released percentages are specified in

section 982.40 of the order.

The National Agricultural Statistics

Service (NASS) estimated hazelnut

production at 20,000 tons for the Oregon

and Washington area. After discussion,

the consensus of the Board was to use

the NASS estimate as the basis for the

preliminary, interim final and final free

and restricted percentage computations.

The majority of domestic inshell

hazelnuts are marketed in October,

November, and December. By

November, the marketing season is well

under way.

The quantity marketed is broken

down into free and restricted

percentages to make available hazelnuts

which may be marketed in domestic

inshell markets (free) and hazelnuts

which are exported, shelled or

otherwise disposed of (restricted). The

preliminary free percentage releases 80

percent of the adjusted inshell trade

demand. The preliminary free

percentage is expressed as a percentage

of the total supply subject to regulation

(supply) and is based on the preliminary

crop estimate. The Board used the

NASS crop estimate of 20,000 tons.

At its August 29, 1996, meeting, the

Board computed and announced

preliminary free and restricted

percentages of 16 percent and 84

percent, respectively. The purpose of

releasing only 80 percent of the inshell

trade demand under the preliminary

percentage was to guard against

underestimates of crop size. The

preliminary free percentage released

3,238 tons of hazelnuts from the 1996

supply for domestic inshell use. The

preliminary restricted percentage of the

1996 supply for export and kernel

markets totaled 13,007 tons.

Under the order, the Board must meet

a second time, on or before November

15, to recommend interim final and

final percentages. The Board uses then

current crop estimates to calculate the

interim final and final percentages. The

interim final percentages are calculated

in the same way as the preliminary

percentages and release the remaining
1036 Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations

20 percent (to total 100 percent of the

inshell trade demand) previously

computed by the Board. Final free and

restricted percentages may release up to

an additional 15 percent of the average

of the preceding three years’ trade

acquisitions to provide an adequate

carryover into the following season. The

final free and restricted percentages

must be effective by June 1, at least 30

days prior to the end of the marketing

year, June 30. The final free and

restricted percentages can be made

effective earlier, if recommended by the

Board and approved by the Secretary.

Revisions in this marketing policy can

be made until February 15 of each

marketing year, but the inshell trade

demand can only be revised upward,

consistent with section 982.40(e).

The Board met on November 12, 1996,

and reviewed and approved an

amended marketing policy. The Board

recommended that the three-year

average trade acquisition figure of 4,513

tons be increased by 100 tons to provide

product for an experimental marketing

program using roasted inshell hazelnuts.

The Board also recommended the

establishment of interim final and final

free and restricted percentages. Interim

final percentages were recommended at

20 percent free and 80 percent

restricted. The interim final percentage

makes an additional 809 tons of inshell

hazelnuts available for the domestic

inshell market including roasted

product. The interim final marketing

percentages are based on the industry’s

final production estimates (20,000 tons)

and release 4,047 tons to the domestic

inshell market from the 1996 supply

subject to regulation. The interim final

restricted percentage resulted in a

restricted obligation of 13,007 tons.

The final free and restricted

percentages were recommended at 23

percent and 77 percent, respectively.

The Board also recommended that the

final percentages be effective on June 1,

1997. The established final marketing

percentages release for domestic inshell

use an additional 677 tons from the

supply subject to regulation. Thus, a

total of 4,724 tons of inshell hazelnuts

will be released from the 1996 supply

for domestic inshell use.

The marketing percentages are based

on the Board’s production estimates and

the following supply and demand

information for the 1996–97 marketing

year:

Tons

Inshell Supply:

(1) Total production (NASS estimate) ..................................................................................................................................................... 20,000

(2) Less substandard, farm use (disappearance) ................................................................................................................................... 1,362

(3) Merchantable production (the Board’s adjusted crop estimate) ........................................................................................................ 18,638

(4) Plus undeclared carryin as of July 1, 1996, subject to regulation ..................................................................................................... 1,668

(5) Supply subject to regulation (Item 3 plus Item 4) .............................................................................................................................. 20,306

Inshell Trade Demand:

(6) Average trade acquisitions of inshell hazelnuts for three prior years ............................................................................................... 4,513

(7) Increase to encourage increased sales (2.2 percent of Item 6) ........................................................................................................ 100

(8) Less declared carryin as of July 1, 1996, not subject to regulation .................................................................................................. 566

(9) Adjusted Inshell Trade Demand ......................................................................................................................................................... 4,047

(10) 15 percent of the average trade acquisitions of inshell hazelnuts for three prior years (Item 6) ................................................... 677

(11) Adjusted Inshell Trade Demand plus 15 percent for carryout (Item 9 plus Item 10) ...................................................................... 4,724

Percentages Free Restricted

(12) Interim final percentages .......................................................................................................................................................... 20 80

(Item 9 divided by Item 5) × 100

(13) Final percentages ..................................................................................................................................................................... 23 77

(Item 11 divided by Item 5) × 100

In addition to complying with the

provisions of the marketing order, the

Board also considered the Department’s

1982 ‘‘Guidelines for Fruit, Vegetable,

and Specialty Crop Marketing Orders’’

(Guidelines) when making its

computations in the marketing policy.

This volume control regulation provides

a method to collectively limit the

supply of inshell hazelnuts available for

sale in domestic markets. The

Guidelines provide that the domestic

inshell market has available a quantity

equal to 110 percent of prior years’

shipments before secondary market

allocations are approved. This provides

for plentiful supplies for consumers and

for market expansion, while retaining

the mechanism for dealing with

oversupply situation. At its November

12, 1996, meeting, the Board

recommended that an increase of 2.2

percent (100 tons) for market expansion

be included in the inshell trade demand

which was used to compute the interim

percentages. The established final

percentages are based on the final

inshell trade demand, and will make

available an additional 677 tons for

desirable carryout. The total free supply

for the 1996–97 marketing year is 5,290

tons of hazelnuts, which is the final

trade demand of 4,724 tons plus the

declared carryin of 566 tons. This

amount is 117 percent of prior years’

sales and exceeds the goal of the

Guidelines.

Pursuant to requirements set forth in

the Regulatory Flexibility Act (RFA), the

Agricultural Marketing Service (AMS)

has considered the economic impact of

this rule on small entities. Accordingly,

AMS has prepared this initial regulatory

flexibility analysis.

The purpose of the RFA is to fit

regulatory actions to the scale of

business subject to such actions in order

that small businesses 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. Thus, both statutes have small

entity orientation and compatibility.

There are approximately 1,000

producers of hazelnuts in the

production area and approximately 23

handlers subject to regulation under the

marketing order. Small agricultural

producers have been defined by the

Small Business Administration (13 CFR

121.601) as those having annual receipts

of less than $500,000, and small

agricultural service firms are defined as

those whose annual receipts are less

than $5,000,000. Using this criteria,

virtually all of the producers are small
Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations 1037

agricultural producers and an estimated

20 of the 23 handlers are small

agricultural service firms. Thus, the

great majority of hazelnut producers and

handlers may be classified as small

entities.

Board meetings are widely publicized

in advance of the meetings and are held

in a location central to the production

area. The meetings are open to all

industry members and other interested

persons—who are encouraged to

participate in the deliberations and

voice their opinions on topics under

discussion. Thus, Board

recommendations can be considered to

represent the interests of small business

entities in the industry.

Many years of marketing experience

led to the development of the current

volume control procedures. These

procedures have helped the industry

solve its marketing problems by keeping

inshell supplies in balance with

domestic needs. The current volume

control procedures fully supply the

domestic inshell market, provide for

market expansion, and help prevent

oversupplies in that market.

Inshell hazelnuts sold to the domestic

market provide higher returns to the

industry than are obtained from

shelling. The inshell market is inelastic

and is characterized as having limited

demand and being prone to oversupply.

Industry statistics show that total

hazelnut production has varied widely

over the last ten years, from a low of

13,000 tons in 1989 to a high of 41,000

tons in 1993. Average production has

been around 24,000 tons. While crop

size has fluctuated, the volume

regulations contribute toward orderly

marketing and market stability, and help

moderate the variation in returns for all

growers and handlers, both large and

small. For instance, production in the

shortest crop year (1989) was 54 percent

of the ten-year average (1985–1995).

Production in the biggest crop year

(1993) was 170 percent of the ten-year

average. The percentage releases

provide all handlers with the

opportunity to benefit from the most

profitable domestic inshell market. That

market is available to all handlers,

regardless of handler size.

NASS statistics show that the grower

price per pound has increased steadily

over the last four years from $.28 in

1992 to $.46 in 1995.

While the level of benefits of this

rulemaking are difficult to quantify, the

stabilizing effects of the volume

regulations impact both small and large

handlers positively by helping them

maintain and expand markets even

though hazelnut supplies fluctuate

widely from season to season.

Hazelnuts produced under the order

comprise virtually all of the hazelnuts

produced in the U.S. This production

represents approximately 3 percent of

total U.S. tree nut production and

approximately 3 percent of the world’s

hazelnut production.

This volume control regulation

provides a method for the U.S. hazelnut

industry to limit the supply of domestic

inshell hazelnuts available for sale in

the U.S. Section 982.40 or the order

establishes a procedure and

computations for the Board to follow in

recommending to the Secretary release

of preliminary, interim final, and final

quantities of hazelnuts to be released to

the free and restricted markets each

marketing year. The program results in

plentiful supplies for consumers and for

market expansion while retaining the

mechanism for dealing with oversupply

situations.

Currently, U.S. hazelnut production

can be successfully allocated between

the inshell domestic and secondary

markets. One of the best secondary

markets for hazelnuts is the export

market. Inshell hazelnuts produced

under the marketing order compete well

in export markets because of quality.

Europe, and Germany in particular, is

the primary world market for U.S.

produced inshell hazelnuts. A third

market is for shelled hazelnuts sold

domestically. Domestically produced

kernels generally command a higher

price in the domestic market than

imported kernels. The industry is

continuing its efforts to develop and

expand secondary markets, especially

the domestic kernel market. Small

business entities, both producers and

handlers, benefit from the expansion

efforts resulting from this program.

There are some reporting,

recordkeeping and other compliance

requirements under the marketing order.

The reporting and recordkeeping

burdens have been accepted by the

handlers as necessary for compliance

purposes and for developing statistical

data for maintenance of the program.

The forms require information which is

readily available from handler records

and which can be provided without data

processing equipment or trained

statistical staff. As with other, similar

marketing order programs, reports and

forms are periodically studied to reduce

or eliminate duplicate information

collection burdens by industry and

public sector agencies. This interim

final rule does not change those

requirements.

The Department has not identified

any relevant Federal rules that

duplicate, overlap or conflict with this

regulation.

Written comments as to the effect of

this action on small business entities,

timely received will be considered

before finalization of this rule.

After consideration of all relevant

material presented, including the

Board’s recommendation, and other

information, it is found that this interim

final rule, as hereinafter set forth, will

tend to effectuate the declared policy of

the Act.

Pursuant to 5 U.S.C. 553, it is also

found and determined, upon good

cause, that it is impracticable,

unnecessary, and contrary to the public

interest to give preliminary notice prior

to putting this rule into effect, and that

good cause exists for not postponing the

effective date of this action until 30 days

after publication in the Federal Register

because: (1) The 1996–97 marketing

year began July 1, 1996, and the

percentages established herein apply to

all merchantable hazelnuts handled

from the beginning of the crop year; (2)

handlers are aware of this rule, which

was recommended at an open Board

meeting, and need no additional time to

comply with this rule; and (3) interested

persons are provided a 30-day comment

period in which to respond. All

comments timely received will be

considered prior to finalization of this

action.

List of Subjects in 7 CFR Part 982

Filberts, Hazelnuts, Marketing

agreements, Nuts, Reporting and

recordkeeping requirements.

For the reasons set forth in the

preamble, 7 CFR Part 982 is amended as

follows:

PART 982—HAZELNUTS GROWN IN

OREGON AND WASHINGTON

1. The authority citation for 7 CFR

Part 982 continues to read as follows:

Authority: 7 U.S.C. 601–674.

2. Section 982.244 is added to read as

follows:

Note: This section will not be published in

the annual Code of Federal Regulations.

§ 982.244 Free and restricted

percentages—1996–97 marketing year.

(a) The interim final free and

restricted percentages for merchantable

hazelnuts for the 1996–97 marketing

year shall be 20 and 80 percent,

respectively.

(b) On June 1, 1997, the final free and

restricted percentages for merchantable

hazelnuts for the 1996–97 marketing

year shall be 23 and 77 percent,

respectively.
1038 Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations

Dated: December 31, 1996.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 97–277 Filed 1–7–97; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 96–NM–276–AD; Amendment

39–9876; AD 96–26–51]

RIN 2120–AA64

Airworthiness Directives; Boeing

Model 747 Series Airplanes Powered

By Rolls Royce Model RB211 Series

Engines

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Final rule; request for

comments.

SUMMARY: This document publishes in

the Federal Register an amendment

adopting Airworthiness Directive (AD)

T96–26–51 that was sent previously to

all known U.S. owners and operators of

certain Boeing Model 747 series

airplanes powered by Rolls Royce

Model RB211 series engines by

individual telegrams. This AD requires

a one-time inspection to detect cracks

and corrosion of various areas at all four

engine pylons, and repair of any cracked

or corroded engine pylon. This action is

prompted by reports of cracking of the

aft torque bulkhead at the number 1 and

number 2 engine pylons. The actions

specified by this AD are intended to

detect and correct such cracking, which

could result in failure of the pylon and

consequent separation of the engine

from the wing.

EFFECTIVE DATE: January 13, 1997, to all

persons except those persons to whom

it was made immediately effective by

telegraphic AD T96–26–51, issued on

December 13, 1996, which contained

the requirements of this amendment.

Comments for inclusion in the Rules

Docket must be received on or before

March 10, 1997.

ADDRESSES: Submit comments in

triplicate to the Federal Aviation

Administration (FAA), Transport

Airplane Directorate, ANM–103,

Attention: Rules Docket No. 96–NM–

276–AD, 1601 Lind Avenue, SW.,

Renton, Washington 98055–4056.

Information concerning this AD may

be obtained from or examined at the

FAA, Transport Airplane Directorate,

1601 Lind Avenue, SW., Renton,

Washington.

FOR FURTHER INFORMATION CONTACT:

Tamara Dow, Aerospace Engineer,

Airframe Branch, ANM–120S, FAA,

Transport Airplane Directorate, Seattle

Aircraft Certification Office, 1601 Lind

Avenue, SW., Renton, Washington

98055–4056; telephone (206) 227–2771;

fax (206) 227–1181.

SUPPLEMENTARY INFORMATION: On

December 13, 1996, the FAA issued

telegraphic AD T96–26–51, which is

applicable to certain Boeing Model 747

series airplanes powered by Rolls Royce

Model RB211 series engines.

That action was prompted by two

reports of cracking of the aft torque

bulkhead at the number 1 and number

2 engine pylons. This cracking occurred

on a Boeing Model 747–200F series

airplane powered by Rolls Royce Model

RB211 series engines. The airplane had

accumulated 69,506 total flight hours

and 17,499 total flight cycles.

Investigation revealed that the aft

torque bulkhead at the number 1 pylon

was cracked completely through just

above the lower spar fitting where the

fitting attaches to the diagonal brace.

The crack extended eight inches

forward on the outboard side skin of the

number 1 pylon. In addition, the lower

portion of the aft torque bulkhead at the

number 1 pylon had separated and had

dropped down approximately 0.5 inch.

Investigation also revealed that the aft

torque bulkhead at the number 2 pylon

was cracked (1.2 inch) in approximately

the same location as the cracking on the

number 1 pylon.

The cause of this cracking is unknown

at this time. Modification of the strut/

wing, which is currently required by AD

95–13–05, amendment 39–9285 (60 FR

33333, June 28, 1995), had not yet been

accomplished on the airplane at the

time of discovery of the cracking.

However, it also is not known if this

modification would have prevented this

condition.

Cracking of the aft torque bulkhead at

the engine pylons, if not detected and

corrected in a timely manner, could

result in failure of a pylon and

consequent separation of the engine

from the wing.

FAA’s Determination

The FAA has determined that a onetime inspection to detect cracks and

corrosion of the aft torque bulkhead at

all four engine pylons is necessary to

address the identified unsafe condition

in a timely manner.

Explanation of Requirements of the

Rule

Since the unsafe condition described

is likely to exist or develop on other

airplanes of the same type design, the

FAA issued telegraphic AD T96–26–51

to require a one-time detailed visual

inspection to detect cracks and

corrosion in the following areas: (1) The

external surface of the lower half of the

aft torque bulkhead at all four engine

pylons, and (2) the external surface of

the inboard and outboard side skins for

a distance of 36 inches forward of the

plane of the aft torque bulkhead at all

four engine pylons. The AD also

requires repair of any cracked or

corroded engine pylon. In addition, the

AD requires that operators submit a

report of all inspection findings to the

FAA.

Since it was found that immediate

corrective action was required, notice

and opportunity for prior public

comment thereon were impracticable

and contrary to the public interest, and

good cause existed to make the AD

effective immediately by individual

telegrams issued on December 13, 1996,

to all known U.S. owners and operators

of certain Boeing Model 747 series

airplanes powered by Rolls Royce

Model RB211 series engines. These

conditions still exist, and the AD is

hereby published in the Federal

Register as an amendment to section

39.13 of the Federal Aviation

Regulations (14 CFR 39.13) to make it

effective to all persons.

Interim Action

This is considered to be interim

action. The reports of inspection results

that are required by this AD will enable

the FAA to obtain better insight into the

nature, cause, and extent of cracking

found at the number 1 and number 2

engine pylons, and eventually to

develop final action to address the

subject unsafe condition. Once final

action has been identified, the FAA may

consider further rulemaking.

Comments Invited

Although this action is in the form of

a final rule that involves requirements

affecting flight safety and, thus, was not

preceded by notice and an opportunity

for public comment, comments are

invited on this rule. Interested persons

are invited to comment on this rule by

submitting such written data, views, or

arguments as they may desire.

Communications shall identify the

Rules Docket number and be submitted

in triplicate to the address specified

under the caption ADDRESSES. All

communications received on or before

the closing date for comments will be

considered, and this rule may be

amended in light of the comments

received. Factual information that

supports the commenter’s ideas and

suggestions is extremely helpful in