Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Proposed Rules 15523

decisions regarding the Board’s former

advertising and promotion program.

Specifically, the Ninth Circuit Court

of Appeals ruled in December 1993, that

aspects of the Board’s former advertising

and promotion program in the 1980’s

were unconstitutional. On remand, the

district court subsequently awarded

plaintiff handlers refunds of

assessments and other money spent

under the program. This decision was

issued on September 6, 1994, which led

to the Board’s actions to postpone

advertising activities at its September

14, 1994, meeting. The district court’s

remand decision is currently being

appealed. In addition, several handlers

filed legal challenges to the Board’s

current credit-back advertising and

promotion program, pursuant to Section

608(c)(15)(A) of the Act.

The Board again met on November 30,

1994, and recommended, by a seven to

three vote, reducing the assessment rate

by eliminating the portion applicable to

credit-back to handlers for their own

promotional activities (one cent), and by

eliminating the portion of the remaining

assessment applicable to generic

promotion activities. The resulting

assessment rate the Board recommended

handlers pay was .47 cents per pound.

Concurrently, the Board again

postponed assessment billings pending

further evaluation of the Board’s

financial status. These actions were

taken because of the apparent lack of

support by some handlers at the present

time for generic promotion and creditback programs, demonstrated by legal

challenges filed by such handlers

representing a significant portion of the

industry volume. One Board member

commented that since the handlers who

have filed legal challenges are not likely

to pay the advertising assessment, it is

not equitable for the remainder of the

industry to shoulder the expense of an

advertising program.

The Board met again on February 1,

1995, and recommended, by a six to

four vote, to further reduce the

assessment rate. The Board

recommended an assessment rate of .25

cents per pound. This action was taken

after the Board further evaluated its

financial position and current and

future program activities.

If implemented and collected, an

assessment rate of .25 cents per pound

will generate income of $1,675,000

based on an estimated assessable crop of

670 million pounds. When combined

with cash and cash equivalents held by

the Board, this would provide the Board

with sufficient income to meet its

administrative expenses and those

promotional expenses to which it is

contractually obligated for the

remainder of the current fiscal year.

To reduce the budget of expenses

previously approved ($9,435,262), the

Board deleted the funds budgeted for

reserve replenishment ($300,000) and at

its November 30, 1994, meeting,

postponed a major portion ($3.9

million) of the $4.7 million funds

budgeted for promotional activities.

These revisions would reduce the

budget to $5,235,262. The reduced

budget would provide the Board with

sufficient capital to carry into the next

fiscal year to finance operations prior to

collection of future assessments.

Concerns were raised that the

reduction of the assessment rate midway through the crop year may generate

complaints from those handlers who

relied on the final rule of September 8,

1994, which established an assessment

rate of 2.25 cents per pound, of which

handlers could receive credit-back up to

one cent per pound for their own

promotional expenditures. Some

handlers have incurred expenses that

would be eligible for credit-back under

the provisions of that rule.

If the assessment rate is reduced with

no portion being creditable, there will

be no assessment for these handlers to

claim credit-back against. However, an

assessment rate of .25 cents per pound

is significantly lower than the current

rate of 2.25 cents. Under the current

established assessment of 2.25 cents, if

handlers claimed credit-back for the

entire one cent, they would still be

required to pay 1.25 cents per pound to

the Board. Handlers would pay

significantly less even if they conducted

advertising for which they believed

credit-back would be obtained. In

addition, benefits are derived from

advertising undertaken by these

handlers.

This action would reduce the

assessment obligation imposed on

handlers. The assessments would be

uniform for all handlers. The

assessment cost would be offset by the

benefits derived by the operation of the

marketing order. Therefore, the

Administrator of the AMS has

determined that this action would not

have a significant economic impact on

a substantial number of small entities.

Interested persons are invited to

submit their views and comments on

this proposal. Comments received

within 30 days of publication of this

proposed rule in the Federal Register

will be considered prior to any final

action being taken.

List of Subjects in 7 CFR Part 981

Almonds, Marketing agreements,

Nuts, Reporting and recordkeeping

requirements.

For the reasons set forth in the

preamble, 7 CFR part 981 is proposed to

be amended as follows:

PART 981—ALMONDS GROWN IN

CALIFORNIA

1. The authority citation for 7 CFR

part 981 continues to read as follows:

Authority: 7 U.S.C. 601–674.

2. Section 981.341 is revised to read

as follows:

§ 981.341 Expenses and assessment rate.

Expenses of $5,235,262 by the

Almond Board of California are

authorized for the crop year ending June

30, 1995. An assessment rate for the

crop year payable by each handler in

accordance with § 981.81 is fixed at .25

cents per kernel pound of almonds. Of

the .25 cents assessment rate, none is

available for handler credit-back

pursuant to § 981.441.

Dated: March 21, 1995.

Sharon Bomer Lauritsen,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 95–7336 Filed 3–23–95; 8:45 am]

BILLING CODE 3410–02–W

7 CFR Part 1036

[Docket No. DA–95–13]

Milk in the Eastern Ohio-Western

Pennsylvania Marketing Area;

Proposed Termination of Certain

Provisions of the Order

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Proposed termination of rule.

SUMMARY: This document invites written

comments on a proposal to terminate

the advertising and promotion

provisions of the Eastern Ohio-Western

Pennsylvania order. Termination of the

provisions was requested by several

associations of dairy farmers whose

milk is pooled under the order.

Termination would eliminate redundant

expenses in administering regional

advertising and promotion programs

without affecting producers’

participation.

DATES: Comments are due on or before

April 7, 1995.

ADDRESSES: Comments (two copies)

should be filed with the USDA/AMS/

Dairy Division, Order Formulation

Branch, Room 2971, South Building,

P.O. Box 96456, Washington, DC 20090–

6456.
15524 Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Proposed Rules

FOR FURTHER INFORMATION CONTACT:

Constance M. Brenner, Marketing

Specialist, USDA/AMS/Dairy Division,

Order Formulation Branch, Room 2971,

South Building, P.O. Box 96456,

Washington, DC 20090–6456 (202) 720–

2357.

SUPPLEMENTARY INFORMATION: The

Regulatory Flexibility Act (5 U.S.C.

601–612) requires the Agency to

examine the impact of a proposed rule

on small entities. Pursuant to 5 U.S.C.

605(b), the Administrator of the

Agricultural Marketing Service has

certified that this proposed rule would

not have a significant economic impact

on a substantial number of small

entities. This rule would lessen the

regulatory impact of the order on dairy

farmers and would not affect milk

handlers.

The Department is issuing this

proposed rule in conformance with

Executive Order 12866.

This proposed rule has been reviewed

under Executive Order 12778, Civil

Justice Reform. This rule is not intended

to have a retroactive effect. If adopted,

this proposed rule will not preempt any

state or local laws, regulations, or

policies, unless they present an

irreconcilable conflict with the rule.

The Agricultural Marketing

Agreement Act of 1937, as amended (7

U.S.C. 601–674), 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 provisions of the

order, or any obligation imposed in

connection with the order is not in

accordance with law and request a

modification of an order or to be

exempted from the order. A handler is

afforded the opportunity for a hearing

on the petition. After a 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 its principal place of business, has

jurisdiction in equity to review the

Secretary’s ruling on the petition,

provided a bill in equity is filed not

later than 20 days after the date of the

entry of the ruling.

Notice is hereby given that, pursuant

to the provisions of the Agricultural

Marketing Agreement Act, the

termination of the following provisions

of the order regulating the handling of

milk in the Eastern Ohio-Western

Pennsylvania marketing area is being

considered:

Sections 1036.105 through 1036.122,

the undesignated center heading

preceding them, and the reference to

these provisions in § 1036.73.

All persons who want to send written

data, views, or arguments about the

proposed termination should send two

copies of them to the USDA/AMS/Dairy

Division, Order Formulation Branch,

Room 2971, South Building, P.O. Box

96456, Washington, DC 20090–6456, by

the 14th day after the publication of this

notice in the Federal Register. The

period for filing comments is limited to

14 days because a longer period would

not provide the time needed to complete

the required procedures before the

process to appoint a new Board is

initiated in April.

The comments that are received will

be made available for public inspection

in the Dairy Division during normal

business hours (7 CFR 1.27(b)).

Statement of Consideration

The proposed termination, requested

by Milk Marketing Inc. (MMI), Dairylea

Cooperative Inc., and Tri-County

Producers Cooperative, all associations

of dairy farmers whose milk is pooled

on the Eastern Ohio-Western

Pennsylvania Federal milk order, would

eliminate the advertising and promotion

provisions of that order.

The cooperatives stated that the

primary purpose of these provisions, at

the time of their implementation, was to

increase producer participation in the

advertising and promotion of milk and

dairy products. However, the Dairy and

Tobacco Adjustment Act of 1985

mandated that all dairy farmers

contribute to such activities through a

national program spanning all Federal

order marketing areas (7 CFR part 1150).

The cooperatives asserted that the

advertising and promotion provisions of

the order are redundant and create

unnecessary expenses in view of the

existence of qualified regional programs

that are funded under the national

advertising and promotion program. The

efficiency and effectiveness of producer

funds would be enhanced with

termination of the Federal order

advertising and promotion provisions.

Thus, the cooperatives requested

removal of the advertising and

promotion provisions to eliminate

administrative costs without affecting

the integrity of the Federal order

program.

Section 608c(16)(A) of the Act

authorizing Federal milk orders

provides that any order provisions may

be terminated separately whenever the

Secretary makes a determination that

such provisions obstruct or do not tend

to effectuate the declared policy of the

Act.

Therefore, comments are sought to

determine whether the aforementioned

provisions should be terminated.

List of Subjects in 7 CFR Part 1036

Milk marketing orders.

The authority citation for 7 CFR part

1036 continues to read as follows:

Authority: Secs. 1–19, 48 Stat. 31, as

amended; 7 U.S.C. 601–674.

Dated: March 21, 1995.

Lon Hatamiya,

Administrator.

[FR Doc. 95–7335 Filed 3–23–95; 8:45 am]

BILLING CODE 3410–02–P

Animal and Plant Health Inspection

Service

9 CFR Parts 1 and 3

[Docket No. 93–076–6]

RIN 0579–AA59

Animal Welfare; Marine Mammals

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Notice of reopening and

extension of comment period.

SUMMARY: We are reopening and

extending the comment period for our

proposed rule regarding the

establishment of standards for ‘‘swimwith-the-dolphin’’ interactive programs.

This extension will provide interested

persons with additional time to prepare

comments on the proposed rule.

DATES: Consideration will be given only

to written comments on Docket No. 93–

076–2 that are received on or before

March 24, 1995.

ADDRESSES: Please send an original and

three copies of your comments to

Docket No. 93–076–2, Regulatory

Analysis and Development, PPD,

APHIS, Suite 3C03, 4700 River Road

Unit 118, Riverdale, MD 20737–1238.

Comments received may be inspected at

USDA, room 1141, South Building, 14th

Street and Independence Ave. 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.

Barbara Kohn, Senior Staff Veterinarian,

Animal Care Staff, REAC, APHIS, 4700

River Road Unit 84, Riverdale, MD

20737–1228, (301) 734–8699.

SUPPLEMENTARY INFORMATION: On

January 23, 1995, we published in the

Federal Register (60 FR 4383–4389,

Docket No. 93–076–2) a proposal to