issue-1996-08-21•Federal Register final rules — 1996-08-21
Federal Register final rules — 1996-08-21
issue-1996-08-21Federal Register final rules — 1996-08-21Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-21347 Pathogen Reduction/HACCP National Implementation Conference
[Federal Register Volume 61, Number 163 (Wednesday, August 21, 1996)]
[Rules and Regulations]
[Page 43149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21347]
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DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
9 CFR Parts 304, 308, 310, 320, 327, 381, 416, and 417
[Docket No. 93-016-3N]
Pathogen Reduction/HACCP National Implementation Conference
AGENCY: Food Safety and Inspection Service, USDA.
ACTION: Notice of meeting.
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SUMMARY: The Food Safety and Inspection Service (FSIS) is holding a
conference, ``Pathogen Reduction/HACCP National Implementation
Conference,'' from September 30 through October 3, 1996. The purpose of
the conference is to brief the public on the content of the final rule,
``Pathogen Reduction; Hazard Analysis and Critical Control Point
(HACCP) Systems,'' published on July 25, 1996, and discuss
implementation.
DATES: The conference will be held from 1:00 p.m. until 5:00 p.m. on
September 30, 1996; 8:30 a.m. until 5:00 p.m., on October 1-2, 1996;
and 8:30 a.m. until Noon on October 3, 1996.
ADDRESSES: The conference will be held at the U.S. Department of
Agriculture, 1400 Independence Avenue, SW., Back of the South Building
Cafeteria (between the 2nd and 3rd Wings). Send suggestions for
additional topics related to implementation to: FSIS Docket Clerk,
DOCKET #93-016-3N, U.S. Department of Agriculture, Food Safety and
Inspection Service, Room 4352, 1400 Independence Avenue, S.W.,
Washington, DC 20250-3700.
FOR FURTHER INFORMATION CONTACT: To register for the conference, call
(800) 485-4429, FAX (202) 501-7642, or E-mail usdafsis/
[email protected].
SUPPLEMENTARY INFORMATION: On July 25, 1996, FSIS published a final
rule, ``Pathogen Reduction; Hazard Analysis and Critical Control Point
(HACCP) Systems'' (61 FR 38805). This rule introduced sweeping changes
to the meat and poultry inspection system. In the preamble to the final
rule, FSIS announced that an implementation conference would be held in
Washington, DC, about 60 days after publication of this final rule (61
FR 38813). That meeting, ``Pathogen Reduction/HACCP National
Implementation Conference,'' will be held from September 30 through
October 3, 1996.
At the implementation conference the following topics will be
discussed: (1) Status of FSIS efforts to develop generic model HACCP
plans and conduct small establishment HACCP demonstration projects; (2)
the draft guidance materials published as Appendices; (3) the HACCP
implementation schedule and certain technical aspects of the
regulations promulgated in the final rule; (4) other implementation
issues identified by the public; (5) methods to achieve the goal of
consistent training for FSIS and industry employees; and (6) due
process and enforcement issues.
FSIS welcomes suggestions of additional implementation topics. Send
suggestions to the FSIS Docket Clerk (See ADDRESSES). Also, transcripts
of the conference will be available in the FSIS Docket Room.
Done at Washington, DC, on: August 16, 1996.
Michael R. Taylor,
Acting Under Secretary for Food Safety.
[FR Doc. 96-21347 Filed 8-16-96; 2:52 pm]
BILLING CODE 3410-DM-P
Complete official Federal Register PDF
FR Doc. 96-21346 Technical Conference Regarding E. coli Verification Testing
[Federal Register Volume 61, Number 163 (Wednesday, August 21, 1996)]
[Rules and Regulations]
[Page 43150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21346]
[[Page 43150]]
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DEPARTMENT OF AGRICULTURE
9 CFR Parts 304, 308, 310, 320, 327, 381, 416, and 417
[Docket No. 93-016-2N]
Technical Conference Regarding E. coli Verification Testing
AGENCY: Food Safety and Inspection Service, USDA.
ACTION: Notice of meeting.
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SUMMARY: The Food Safety and Inspection Service (FSIS) is holding a
conference, ``Technical Conference Regarding E. coli Verification
Testing,'' on September 12-13, 1996. The conference will address
scientific and technical issues related to the E. coli verification
testing required by FSIS's final rule, ``Pathogen Reduction; Hazard
Analysis and Critical Control Point (HACCP) Systems,'' published on
July 25, 1996.
DATES: The conference will be held from 8:30 a.m. to 5:00 p.m. on
September 12 and from 8:30 a.m. until Noon on September 13, 1996.
ADDRESSES: The two-day conference will be held at the U.S. Department
of Agriculture, 1400 Independence Avenue, SW, Back of the South
Building Cafeteria (between the 2nd and 3rd Wings). Submit one original
and two copies of written comments to: FSIS Docket Clerk, DOCKET #93-
016F, U.S. Department of Agriculture, Food Safety and Inspection
Service, Room 4352, 1400 Independence Avenue, S.W., Washington, DC
20250-3700. All comments submitted on this rule will be available for
public inspection in the Docket Clerk's Office between 8:30 a.m. and
1:00 p.m., and 2:00 p.m. and 4:30 p.m., Monday through Friday.
FOR FURTHER INFORMATION CONTACT: To register for the conference, or to
arrange to present technical data, contact Betsy Kogan, at (800) 485-
4429 or E-mail usdafsis/[email protected].
SUPPLEMENTARY INFORMATION: On July 25, 1996, FSIS published a final
rule, ``Pathogen Reduction; Hazard Analysis and Critical Control Point
(HACCP) Systems'' (61 FR 38805). This rule introduced sweeping changes
to the meat and poultry inspection system. Among other things, the rule
requires all slaughter establishments to test for E. coli at a
frequency based on production volume to verify that they are meeting
the established performance criteria.
In the preamble to the final rule (pp. 38844-38846), FSIS solicited
comments and information on a number of technical issues concerning the
protocols for E. coli testing. FSIS also announced that a public
conference would be held to discuss such issues. The first conference,
``Technical Conference Regarding E. coli Verification Testing'' has
been scheduled for September 12-13, 1996. This conference, led by a
panel of Government scientists, will provide interested parties the
opportunity to present technical data, information, and views related
to the E. coli testing requirements.
At the conference, FSIS officials will present a brief overview of
the E. coli testing program. FSIS invites interested parties to make
presentations addressing the following:
Are there alternative, equally or more effective risk-based
microbial sampling protocols that could be used for process control
verification by establishments that slaughter cattle or swine?
Are there more appropriate anatomical sites for microbial
testing than those adopted?
Are there alternative sampling frequencies that would elicit
results more indicative of process control performance?
How could the proposed testing protocol be revised to better
account for differing establishment characteristics and how can FSIS
minimize the cost to establishments of E. coli testing without
sacrificing testing effectiveness?
Are there worker safety concerns regarding sampling from
difficult to reach carcass sites and, if so, how might they be
mitigated?
Given that testing is based on production volume, are there
effective approaches other than requiring very small establishments
to conduct a minimal amount of testing during certain months of the
year?
Persons wishing to make presentations should contact Betsy Kogan
(see FOR FURTHER INFORMATION CONTACT), to advise her of the nature of
the presentation. Transcripts of the conference will be available in
the FSIS Docket Room (See ADDRESSES).
Also, interested parties are reminded that written comments will be
received on or before September 23, 1996, on the scientific and
technical issues associated with E. coli testing. Comments should be
sent to the FSIS Docket Room (See ADDRESSES).
Done at Washington, DC, on: August 16, 1996.
Michael R. Taylor,
Acting Under Secretary for Food Safety.
[FR Doc. 96-21346 Filed 8-16-96; 2:52 pm]
BILLING CODE 3410-DM-P
Complete official Federal Register PDF
FR Doc. 96-21345 Schedule of FSIS Public Meetings Regarding the Pathogen Reduction; Hazard Analysis and Critical Control Point (HACCP) Systems Final Rule
[Federal Register Volume 61, Number 163 (Wednesday, August 21, 1996)]
[Rules and Regulations]
[Pages 43150-43151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21345]
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DEPARTMENT OF AGRICULTURE
9 CFR Parts 304, 308, 310, 320, 327, 381, 416, and 417
[Docket No. 93-016-1N]
Schedule of FSIS Public Meetings Regarding the Pathogen
Reduction; Hazard Analysis and Critical Control Point (HACCP) Systems
Final Rule
AGENCY: Food Safety and Inspection Service, USDA.
ACTION: Announcement of public meetings.
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SUMMARY: The Food Safety and Inspection Service (FSIS) announces a
series of public meetings to discuss specific aspects of the final
rule, ``Pathogen Reduction; Hazard Analysis and Critical Control Point
(HACCP) Systems,'' published on July 25, 1996. These meetings are
intended to assist in the understanding and implementation of the final
rule. The public is invited to comment on the schedule, including
conflicts. Some dates may be changed to ensure the meetings will
accomplish their intended purposes.
DATES: See SUPPLEMENTARY INFORMATION for dates of the meetings.
ADDRESSES: Submit one original and two copies of written comments to:
FSIS Docket Clerk, DOCKET #93-016F, U.S. Department of Agriculture,
Food Safety and Inspection Service, Room 4352, 1400 Independence
Avenue, SW., Washington, DC 20250-3700. All comments submitted on this
rule will be available for public inspection in the Docket Clerk's
Office between 8:30 a.m. and 1:00 p.m., and 2:00 p.m. and 4:30 p.m.,
Monday through Friday. See SUPPLEMENTARY INFORMATION for location of
the meetings.
FOR FURTHER INFORMATION CONTACT: Charles Danner, Director, Planning
Staff, (202) 501-7138, with any questions about the meeting schedule.
To register for the meetings, call (800) 485-4429, FAX (202) 501-7642,
or E-mail usdafsis/[email protected].
SUPPLEMENTARY INFORMATION: On July 25, 1996, FSIS published a final
rule, ``Pathogen Reduction; Hazard Analysis and Critical Control Point
(HACCP) Systems'' (61 FR 38805). This rule introduced sweeping changes
to the meat and poultry inspection system.
As announced in the final rule, FSIS is holding meetings to address
the implementation of the rule and to discuss specific scientific and
technical aspects of the rule.
FSIS also will hold additional meetings on issues related to the
final rule. The Agency will hold a ``Public Hearing on Criteria for
Equivalence of Foreign Inspection Systems.'' This
[[Page 43151]]
meeting will provide interested parties the opportunity to present
viewpoints that will inform FSIS' decisionmaking for determining the
equivalence of foreign meat and poultry inspection systems to the U.S.
inspection system.
FSIS will hold a conference, ``Federal/State Conference on Food
Safety.'' This conference will focus on how FSIS and State agencies can
effectively allocate resources at the Federal, State, and local levels
of governments to improve food safety.
Also, the Agency is in the initial planning phases to develop a
national food safety symposium to continue the dialogue on animal
production food safety issues, research needs, and farm-to-slaughter
strategies.
The list of meetings follows:
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Meeting Location Date
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E. coli Verification Testing Conference...... Washington, DC........... Sept. 12-13, 1996.
National Implementation Conference........... Washington, DC........... Sept. 30 through Oct. 3, 1996.
International Meeting on Implementation...... Washington, DC........... Oct. 8, 1996.
Public Hearing on Criteria for Equivalence of Washington, DC........... Oct. 9-10, 1996.
Foreign Inspection Systems.
Public Meeting on HACCP-based Inspection Washington, DC........... To Be Announced.
Models (Pilots).
Meeting with State Directors of Meat and Washington, DC........... Oct. 29, 1996.
Poultry Inspection Programs.
Federal/State Conference on Food Safety...... Washington, DC........... Oct. 30, 1996.
Demonstration Projects for Small Plants...... Washington, DC........... Oct. 31, 1996.
Regional Implementation Conferences.......... Chicago.................. Oct. 15, 1996.
Kansas City.............. Oct. 17, 1996.
Dallas................... Oct. 22, 1996.
Oakland.................. Oct. 24, 1996.
Boston................... Nov. 7, 1996.
Atlanta.................. Nov. 13, 1996.
Joint FSIS/FDA Conference Time and Washington, DC........... Nov. 18-20, 1996.
Temperature.
Second E. coli Conference.................... Washington, DC........... Apr. 1997.
Salmonella Conference........................ Washington, DC........... To Be Announced.
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Information on each conference will be included in separate notices
in the Federal Register. FSIS will try to adhere to the above schedule;
any changes will be indicated in the Federal Register notice pertaining
to that meeting.
Done at Washington, DC, on: August 16, 1996.
Michael R. Taylor,
Acting Under Secretary for Food Safety.
[FR Doc. 96-21345 Filed 8-16-96; 2:52 pm]
BILLING CODE 3410-DM-P
Complete official Federal Register PDF
FR Doc. 96-21334 Endangered and Threatened Wildlife and Plants; Endangered Status for Three Plants From the Island of Nihoa, Hawaii
[Federal Register Volume 61, Number 163 (Wednesday, August 21, 1996)]
[Rules and Regulations]
[Pages 43178-43184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21334]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AB88
Endangered and Threatened Wildlife and Plants; Endangered Status
for Three Plants From the Island of Nihoa, Hawaii
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) determines
endangered status pursuant to the Endangered Species Act of 1973, as
amended (Act), for three plants: Amaranthus brownii (no common name
(NCN)), Pritchardia remota (loulu), and Schiedea verticillata (NCN).
These three species are endemic to the island of Nihoa, Hawaiian
Islands. Two of the species are threatened by competition with the one
widespread alien plant that has established on the island. Two of the
species grow in steep, rocky habitats which are easily disturbed.
Because of the small numbers of existing individuals and populations
and their narrow distributions, which are limited to the 0.25 square
mile (sq mi) (0.65 sq kilometer (km)) island, these species are subject
to a danger of extinction and/or reduced reproductive vigor. This final
rule implements the Federal protection provisions provided by the Act.
EFFECTIVE DATE: September 20, 1996.
ADDRESSES: The complete file for this rule is available for public
inspection, by appointment, during normal business hours at the U.S.
Fish and Wildlife Service, Pacific Islands Ecoregion, 300 Ala Moana
Boulevard, Room 3108, P.O. Box 50088, Honolulu, Hawaii 96850.
FOR FURTHER INFORMATION CONTACT: Robert P. Smith, Pacific Islands
Ecoregion Manager, at the above address (808/541-2749).
SUPPLEMENTARY INFORMATION:
Background
Amaranthus brownii, Pritchardia remota, and Schiedea verticillata
are endemic to the island of Nihoa, Hawaii. Nihoa is the largest and
highest of the uninhabited islands of Hawaii. The Hawaiian Archipelago
is made up of 132 islands, reefs, and shoals forming an arch 1,600
statute mi (2,580 km) long in the middle of the Pacific Ocean. The
eight major Hawaiian Islands occur in the southeast 400 mi (650 km) of
the arch. Northwest of Niihau, small islands and atolls are widely
scattered over the remaining 1,200 mi (1,930 km) of the arch and make
up the Northwestern Hawaiian Islands (NWHI) (formerly called the
Leeward Islands) (Department of Geography 1983, Macdonald et al. 1983,
Walker 1990). Nihoa, the largest of the lava islands west of Niihau, is
the closest to the main islands, situated 170 mi (275 km) northwest of
Kauai. Over many years, waves driven by prevailing trade winds eroded
the island into its current shape, which is the remnant southwest
quadrant of the original huge volcanic cone. The east, west, and north
sides of Nihoa are sheer cliffs, and the south coast comprises low
cliffs with rock benches and one small beach (Cleghorn 1987, Gagne and
Conant 1983, Macdonald et al. 1983). The island, formed about 7.5
million years ago by a single shield volcano, now measures only 0.85 mi
(1.4 km) long, an average of 0.3 mi (0.5 km) wide, and 156 acres (ac)
(63.1 hectares (ha)) in area (Macdonald et al. 1983, Walker 1990). The
highest point, 896 feet (ft) (273 meters (m)) in elevation (Conant
1985), is located at one of the two peaks on Nihoa, which are separated
by a depression dissected by six valleys (Macdonald et al. 1983). The
elevation of the island is not sufficient to increase precipitation
from that which would fall on a flat island, and the yearly rainfall of
20 to 30 inches (in) (508 to 762 millimeters (mm)) per year, usually
concentrated in the winter months, is the result of unpredictable rain
squalls passing over the island (Carlquist 1980, Cleghorn 1987).
Valleys are deep and have little sediment, indicating that their
streams were once powerful, but the only water on the island now is
found in three freshwater seeps (Cleghorn 1987).
Nihoa, with the most diverse flora and fauna of any of the NWHI,
presents a relatively intact low-elevation dryland ecosystem with a
complement of native plants, arthropods, and birds (Gagne 1982). Such
areas were probably common in the main Hawaiian Islands prior to their
disturbance by Polynesian agricultural practices (Cuddihy and Stone
1990). Nihoa was first inhabited in the thirteenth century by a small
group of Polynesian settlers who
[[Page 43179]]
terraced and cultivated most of the gently sloping area of the island,
a total of 12 to 31 ac (4.9 to 12.5 ha) or 7.7 to 20 percent of the
area of the island. Most of the island was unsuitable for cultivation,
and habitation did not persist for a long period of time; therefore,
much of the natural ecosystem remained intact (Cleghorn 1987, Emory
1928, Harrison 1990). Animals now found on or near Nihoa include--a
small, resident population of Hawaiian monk seal (Monachus
schauinslandi), a listed endangered species; green sea turtle (Chelonia
mydas), a listed threatened species; 17 species of breeding seabirds;
several migratory seabirds; 2 endemic land birds (Nihoa millerbird
(Acrocephalus familiaris) and Nihoa finch (Telespiza ultima)), both
listed endangered species; 6 species of endemic land snails; and 35
endemic and 26 indigenous arthropods, many only recently discovered.
A total of 26 vascular plant taxa have been found on Nihoa: Three
species endemic to Nihoa--Amaranthus brownii, Pritchardia remota
(loulu), and Schiedea verticillata; nine taxa endemic to the Hawaiian
Islands--Chamaesyce celastroides var. celastroides ('akoko),
Chenopodium oahuense ('aheahea), Eragrostis variabilis (kawelu),
Panicum torridum (kakonakona), Portulaca villosa ('ihi), Rumex
albescens (hu'ahu'ako), Sesbania tomentosa ('ohai), Sicyos pachycarpus
(kupala), and Solanum nelsonii (popolo); eight taxa indigenous to
Hawaii--Boerhavia diffusa (alena), Heliotropium currassavicum (seaside
heliotrope), Ipomoea indica (koali 'awa), Ipomoea pes-caprae ssp.
brasiliensis (pohuehue), Portulaca lutea ('ihi), Sida fallax ('ilima),
Solanum americanum (glossy nightshade), and Tribulus cistoides (nohu);
and six alien species which have naturalized in Hawaii--Cenchrus
echinatus (common sandbur), Nephrolepis multiflora (sword fern),
Paspalum sp., Portulaca oleracea (pigweed), Setaria verticillata
(bristly foxtail), and Tetragonia tetragonioides (New Zealand spinach)
(Conant 1985, Conant and Herbst 1983, Gagne and Conant 1983, Harrison
1990, Herbst 1977).
Bare rock and unvegetated soil make up about one-third of the
surface of Nihoa. All vegetation is classified as being part of Coastal
Communities, including Coastal Dry Communities and a Coastal Mesic
Community. Coastal Dry Shrublands include two forms of 'Ilima (Sida)
Shrubland--prostrate plants near the shore and erect plants in more
sheltered sites. The 'Aweoweo (Chenopodium or 'aheahea) Coastal
Shrubland includes 'aheahea and popolo as codominants, as well as
'ilima and several other less frequent species. The Loulu (Pritchardia)
Coastal Forest, a type of Coastal Mesic Forest, contains Pritchardia
remota as the only dominant (Gagne and Cuddihy 1990).
Nihoa is owned by the Federal government and is included within the
boundaries of the City and County of Honolulu. Nihoa is part of the
Hawaiian Islands National Wildlife Refuge, which is managed by the
Service, and has been designated a Research Natural Area (Clapp et al.
1977; Conant 1985; Department of the Interior 1986a, 1986b; Harrison
1990; Honolulu 1988; Miller 1983).
Discussion of the Three Plant Species
Amaranthus brownii was first collected by Edward L. Caum during the
Tanager Expedition in 1923. Erling Christophersen and Caum named it in
honor of Dr. F.B.H. Brown in 1931.
Amaranthus brownii, a member of the amaranth family
(Amaranthaceae), is an annual herb with leafy upright or ascending
stems, 1 to 3 ft (30 to 90 centimeters (cm)) long. The slightly hairy,
alternate leaves are long and narrow, 1.6 to 2.8 in (4 to 7 cm) long,
0.06 to 0.16 in (1.5 to 4 mm) wide, and more or less folded in half
lengthwise. Flowers are either male or female, and both sexes are found
on the same plant. The green flowers are subtended by two oval,
bristle-tipped bracts about 0.04 in (1 mm) long and 0.03 in (0.7 mm)
wide. Each flower has three bristle-tipped sepals which are lance-
shaped and 0.05 in (1.3 mm) long by 0.03 in (0.8 mm) wide in male
flowers and spatula-shaped and 0.03 to 0.04 in (0.8 to 1 mm) long by
0.01 to 0.02 in (0.2 to 0.5 mm) wide in female flowers. Male flowers
have three stamens; female flowers have two stigmas. The flattened,
oval fruit, which does not split open at maturity, is 0.03 to 0.04 in
(0.8 to 1 mm) long and 0.02 to 0.03 in (0.6 to 0.8 mm) wide and
contains one shiny, lens-shaped, reddish black seed. This species can
be distinguished from other Hawaiian members of the genus by its
spineless leaf axils, its linear leaves, and its fruit which does not
split open when mature (Wagner et al. 1990).
When Amaranthus brownii was first collected in 1923, it was ``most
common on the ridge leading to Millers Peak, but abundant also on the
ridges to the east'' (Herbst 1977). The two known populations are
separated by a distance of 0.25 mi (0.4 km) and contained approximately
35 plants--about 23 plants near Millers Peak and about a dozen plants
in Middle Valley. Although the species was last reported in 1983,
annual surveys by Service refuge staff have of necessity taken place
well after this annual plant's normal growing season. During the dry
summer months when surveys are conducted, individuals of A. brownii are
difficult to distinguish from other desiccated herbaceous or seedling
plants. The unusually dry conditions of the past several years are
another probable factor in the lack of A. brownii reported. During this
species' normal growing season of December through March, the seas are
too rough to permit landing on Nihoa by survey personnel. The Service
continues to attempt winter surveys of Nihoa with veteran field
botanist Steve Perlman of the Hawaii Plant Conservation Center, who
believes that the species is likely present during the wetter winter
months. Amaranthus brownii typically grows on rocky outcrops in fully
exposed locations at elevations between 390 and 700 ft (120 and 213 m).
Associated species include 'aheahea, kakonakona, and kupala. Pigweed,
an invasive alien species, is widespread on Nihoa and grows in habitat
similar to A. brownii. Because it grows on rocky outcrops, A. brownii
is more likely to be affected by substrate changes. Due to the small
numbers of populations and individuals and its limited distribution,
this species is threatened by extinction from naturally occurring
events and/or reduced reproductive vigor. This species may have
experienced a reduction in total numbers due to disturbances resulting
from Polynesian settlement of Nihoa (Hawaii Heritage Program (HHP)
1990a1, 1990a2; Wagner et al. 1985, 1986, 1990; Kenneth McDermond and
Elizabeth Flint, U.S. Fish and Wildlife Service (USFWS), in litt.,
1993; Steve Perlman, Hawaii Plant Conservation Center, pers. comm.,
1996).
In 1858, Dr. Rooke brought seed of a palm from Nihoa and planted it
on the palace grounds in Honolulu (Hillebrand 1888). A Hillebrand
specimen, probably collected from this cultivated tree, was used by
Odoardo Beccari (1890) to describe Pritchardia remota. Otto Kuntze
transferred the species to other genera, resulting in Washingtonia
remota (Kuntze 1891) and later Eupritchardia remota (Beccari and Rock
1921). In their 1921 monograph of the genus, Beccari and Joseph Rock
included the species in Pritchardia, as do the authors of the current
treatment (Read and Hodel 1990).
Pritchardia remota, a member of the palm family (Arecaceae), is a
tree 13 to 16 ft (4 to 5 m) tall with a ringed, wavy trunk about 5.9 in
(15 cm) in diameter. The rather ruffled, fan-shaped leaves are about 31
in (80 cm) in diameter and are somewhat waxy to pale green with a few
[[Page 43180]]
tiny scales on the lower surface. The flowering stalks, up to 12 in (30
cm) long, are branched and have flowers arranged spirally along the
hairless stalks. Below each flower is a bract 0.08 to 0.1 in (2 to 3
mm) long. The flower consists of a cup-shaped, three-lobed calyx (fused
sepals); three petals, each about 0.2 in (6 mm) long; six stamens; and
a three-lobed stigma. The pale greenish brown fruit is almost globose,
0.7 to 0.8 in (1.9 to 2 cm) long and about 0.7 in (1.9 cm) in diameter.
This is the only species of Pritchardia on Nihoa and can be
distinguished from other species of the genus in Hawaii by its wavy
leaves; its short, hairless inflorescences; and its small, globose
fruits (Beccari and Rock 1921, Read and Hodel 1990).
Pritchardia remota is known from two extant populations along 0.1
mi (0.2 km) of the length of each of two valleys which are about 0.4 mi
(0.6 km) apart on opposite sides of Nihoa. Including seedlings, 680
plants are found in scattered groups: 387 plants in West Palm Valley
and 293 in East Palm Valley (Herbst 1977). Earlier totals were somewhat
smaller, probably because younger seedlings were not counted (Herbst
1977). An uncollected palm, no longer extant, was observed growing on
Laysan Island and may have been this species (Ely and Clapp 1973, Rock
1913). Most of the populations of P. remota are crowded into scattered,
small groves on abandoned agricultural terraces lower in the valleys. A
few trees also grow at the bases of basaltic cliffs on the steep outer
slopes of each of the two valleys. Plants grow from 660 to 896 ft (200
to 273 m) in elevation (Wagner et al. 1990). Pritchardia remota is
unusual among Hawaiian members of the genus in that it occurs in a dry
area. Fossil loulu stems have been found near sea level on Oahu, which
may indicate that the genus was more widespread before so much lowland
habitat was altered for human use (Carlquist 1980, Cuddihy and Stone
1990). Within the Loulu Coastal Forest Community, P. remota assumes
complete dominance with a closed canopy and thick layers of fallen
fronds in the understory (Gagne and Cuddihy 1990). Plants growing near
the groves and in association with the single individuals include
'aheahea, 'ilima, popolo, and some 'ohai. Lichens grow on the trunks of
the trees (Sheila Conant, University of Hawaii, pers. comm., 1991;
Derral Herbst, USFWS, pers. comm., 1991). Pritchardia remota provides
nesting and other habitat for red-footed boobies (Sula sula rubipes) as
well as occasional perching space for brown noddies (Anous stolidus
pileatus), two of the resident seabirds on Nihoa (Conant 1985).
Pritchardia remota is in cultivation in several botanical gardens. The
species is threatened by extinction from naturally occurring events due
to the small number of populations and the plant's narrow range (Conant
1985; Karen Shigematsu, Lyon Arboretum, pers. comm., 1991).
The first specimens of Schiedea verticillata were collected near
Derbys Landing in 1923. Brown (in Christophersen and Caum 1931) chose
the specific epithet to refer to the verticillate (whorled) arrangement
of the leaves. Although Sherff (1944) transferred the species to the
genus Alsinidendron, current workers (Wagner et al. 1990) consider it
to be a species of Schiedea.
Schiedea verticillata, a member of the pink family
(Caryophyllaceae), is a perennial herb which dies back to an enlarged
root during dry seasons. The stems, which can reach 1.3 to 2 ft (0.4 to
0.6 m) in length, are upright or sometimes pendent. The stalkless
leaves are fleshy, broad, and pale green, are usually arranged in
threes, and measure 3.5 to 5.9 in (9 to 15 cm) long and 2.8 to 3.5 in
(7 to 9 cm) wide. Flowers are arranged in open, branched clusters,
usually 6.7 to 9.8 in (17 to 25 cm) long. Opposite or whorled pale
green bracts, located at inflorescence branches and underneath the
flowers, measure 0.2 to 1.6 in (6 to 40 mm) long at the central branch
and 0.1 to 0.2 in (3.5 to 6 mm) long on the side branches and
underneath the flowers. Each petalless flower is positioned on a stalk
0.2 to 0.8 in (5 to 20 mm) long and has five lance-shaped sepals 0.3 to
0.4 in (8 to 10 mm) long, five nectaries, 10 stamens, and four or five
styles. The ovoid capsule measures 0.3 to 0.4 in (7 to 9 mm) long and
releases reddish to grayish brown seeds, about 0.03 in (0.7 to 0.8 mm)
long. This species, the only member of its genus to grow in the NWHI,
is distinguished from other species of the genus by its exceptionally
large sepals and, usually, three leaves per node (Wagner et al. 1990).
All historically known populations of Schiedea verticillata are
known to be extant. Five populations are scattered in the western 10
percent of the island in an area about 0.06 mi (0.1 km) by 0.4 mi (0.6
km), and a sixth population is found on the far eastern end of the
island 0.7 mi (1.2 km) away. The six populations contained a total of
385 to 414 individuals prior to 1992--at Dogs Head, at least 95 plants
have been observed; a population at Devils Slide consisted of 96 to 100
plants; in West Palm Valley, 2 or 3 plants have been seen in the upper
portion and 30 to 38 plants have been counted in the lower portion; the
Pinnacle Peak population contained 12 to 25 individuals; at Millers
Peak, 2 to 5 plants have been observed; and another population on the
east spur of the island contains 148 plants (HHP 1990b1 to 1990b6). In
1992, the Service's refuge staff counted only 170 to 190 plants in all
6 populations (K. McDermond and E. Flint, in litt., 1993). Schiedea
verticillata typically grows in soil pockets and cracks on coastal
cliff faces at elevations between 100 and 890 ft (30 and 270 m) (Wagner
et al. 1990, Weller et al. 1990). Associated species include 'aheahea,
pohuehue, koali 'awa, kupala, kawelu, and lichens on surrounding rock.
Schiedea verticillata is threatened by competition with pigweed, which
is widespread on Nihoa and grows in habitats similar to this species.
Catastrophic events are especially threatening to the survival of
these three plant species. Natural events occurring on the island of
Nihoa could further restrict the plants' ranges, and because of the
limited number of individuals, extinction from catastrophic natural
events is of major concern. Specifically, erosion, landslides, rock
slides, and flooding could result in severe habitat destruction and
death of individual plants. Evidence of heavy flash floods has been
noted in the lower part of East Palm Valley, where Pritchardia remota
specimens are located (Kramer 1962). Continued existence of these
species, which have limited numbers and narrow ranges, is imperiled by
naturally occurring events because of the vulnerability of these plants
to disturbance events in their steep, rocky habitat (Conant 1985; S.
Conant, pers. comm., 1991).
Previous Federal Action
Federal action on these plants began as a result of section 12 of
the Act, which directed the Secretary of the Smithsonian Institution to
prepare a report on plants considered to be endangered, threatened, or
extinct in the United States. This report, designated as House Document
No. 94-51, was presented to Congress on January 9, 1975. In that
document, Pritchardia remota was considered to be endangered. On July
1, 1975, the Service published a notice in the Federal Register (40 FR
27823) of its acceptance of the Smithsonian report as a petition within
the context of section 4(c)(2) (now section 4(b)(3)) of the Act, and
giving notice of its intention to review the status of the plant taxa
named therein. As a result of that review, on June 16, 1976, the
Service published a
[[Page 43181]]
proposed rule in the Federal Register (41 FR 24523) to determine
endangered status pursuant to section 4 of the Act for approximately
1,700 vascular plant taxa. Amaranthus brownii and Schiedea verticillata
were considered to be endangered in the proposed rule, but P. remota
was not included. The list of 1,700 plant taxa was assembled on the
basis of comments and data received by the Smithsonian Institution and
the Service in response to House Document No. 94-51 and the July 1,
1975, Federal Register publication.
General comments received in response to the 1976 proposal are
summarized in an April 26, 1978, Federal Register publication (43 FR
17909). In 1978, amendments to the Act required that all proposals over
2 years old be withdrawn. A 1-year grace period was given to proposals
already over 2 years old. On December 10, 1979, the Service published a
notice in the Federal Register (44 FR 70796) withdrawing the portion of
the June 16, 1976, proposal that had not been made final, along with
four other proposals that had expired. The Service published updated
notices of review for plants on December 15, 1980 (45 FR 82479),
September 27, 1985 (50 FR 39525), and February 21, 1990 (55 FR 6183).
In these notices, Amaranthus brownii and Schiedea verticillata, which
were in the proposed rule, were treated as candidates for Federal
listing. The two species that were proposed as endangered in the June
16, 1976, proposed rule were considered candidates on all three of
these notices. Pritchardia remota was included as a candidate in the
1980 notice and remained so on the 1985 and 1990 notices.
Section 4(b)(3)(B) of the Act requires the Secretary to make
findings on petitions that present substantial information indicating
the petitioned action may be warranted within 12 months of their
receipt. Section 2(b)(1) of the 1982 amendments further requires all
petitions pending on October 13, 1982, be treated as having been newly
submitted on that date. On October 13, 1983, the Service found that the
petitioned listing of these taxa was warranted but precluded by other
pending listing actions, in accordance with section 4(b)(3)(B)(iii) of
the Act; notification of this finding was published on January 20, 1984
(49 FR 2485). Such a finding requires the Service to consider the
petition as having been resubmitted, pursuant to section 4(b)(3)(C)(i)
of the Act. The finding was reviewed in October of 1984, 1985, 1986,
1987, 1988, 1989, 1990, and 1991. Publication of the proposed rule
constituted the final one-year finding for these species.
On March 24, 1993, the Service published in the Federal Register
(58 FR 15828) a proposal to list these three plants from the island of
Nihoa, Hawaii, as endangered. This proposal was based primarily on
information supplied by the Hawaii Heritage Program and observations by
botanists and naturalists. The Service now determines these three
species from the island of Nihoa to be endangered with the publication
of this final rule.
The processing of this final rule follows the Service's listing
priority guidance published in the Federal Register on May 16, 1996 (61
FR 24722). The guidance clarifies the order in which the Service will
process rulemakings following two related events: 1) the lifting, on
April 26, 1996, of the moratorium on final listings imposed on April
10, 1995 (Public Law 104-6), and 2) the restoration of significant
funding for listing through passage of the omnibus budget
reconciliation law on April 26, 1996, following severe funding
constraints imposed by a number of continuing resolutions between
November 1995 and April 1996. The guidance calls for prompt processing
of final rules containing species facing threats of high magnitude.
Both Pritchardia remota and Schiedea verticillata face high magnitude
threats. The Service's Pacific Regional Office confirmed on June 6,
1996, that the status of the three species in this rule did not change
during the moratorium on final listings.
Summary of Comments and Recommendations
In the March 24, 1993, proposed rule and associated notifications,
all interested parties were requested to submit factual reports or
information that might contribute to the development of a final listing
decision. The public comment period ended on May 24, 1993. Appropriate
State agencies, county governments, Federal agencies, scientific
organizations, and other interested parties were contacted and
requested to comment. One letter of comment was received from a Federal
agency, supporting the listings of these three plant species due to
their low numbers and the recent decline in population sizes of two of
the species. Additional information included in the letter has been
incorporated into this final rule.
Summary of Factors Affecting the Species
After a thorough review and consideration of all information
available, the Service has determined that Amaranthus brownii
Christoph. & Caum (NCN), Pritchardia remota Becc. (loulu), and Schiedea
verticillata F. Brown (NCN) should be classified as endangered species.
Procedures found at section 4(a)(1) of the Act and regulations
implementing the listing provisions of the Act (50 CFR part 424) were
followed. A species may be determined to be an endangered or threatened
species due to one or more of the five factors described in section
4(a)(1). These factors and their application to Amaranthus brownii
Christoph. & Caum (NCN), Pritchardia remota Becc. (loulu), and Schiedea
verticillata F. Brown (NCN) are as follows:
A. The Present or Threatened Destruction, Modification, or Curtailment
of its Habitat or Range
Amaranthus brownii and Schiedea verticillata grow on rocky outcrops
and cliff faces, making these plants vulnerable to substrate changes.
Because of the steep slope and rocky nature of Nihoa, the habitat is
very easily disturbed. Currently, the only legal visitors are those
with Service approval, usually refuge personnel or scientific
researchers who are very aware of the fragile nature of the island's
environment (Conant 1985). Access to this island for Hawaiian religious
ceremonies would be a permitted action, but visitors would be
accompanied by refuge personnel (Jerry Leinecke, USFWS, pers. comm.,
1991). With increased commercial fishing in the NWHI, there is a
greater possibility of mishaps and unauthorized landings on Nihoa
(Gagne and Conant 1983).
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Illegal collecting for scientific or horticultural purposes or
visits by individuals interested in seeing rare plants could result
from increased publicity, and would threaten these three species,
especially Amaranthus brownii and Schiedea verticillata. The limited
legal access to Nihoa and the island's distance from the inhabited main
Hawaiian Islands reduces the effect of this impact. However, the
island's isolation also decreases the amount of monitoring which can be
provided by Federal and State authorities.
C. Disease or Predation
Rats (Rattus spp.) and house mice (Mus musculus), which have made
their way to several small islands and islets in the Hawaiian chain
(Tomich 1986),
[[Page 43182]]
could be introduced to Nihoa from a nearby ship. Rodent predation could
prove disastrous for Pritchardia remota; predation of seeds by rodents
has reduced the reproductive capacity of other Hawaiian Pritchardia
species (Center for Plant Conservation (CPC) 1990b, Cuddihy and Stone
1990). Rodents might also find the fleshy roots of Schiedea
verticillata palatable (CPC 1990a). The former presence of house cats
(Felis catus) and the current presence of geckos (Lepidodactylus
lugubris) and at least 70 species of alien insects are proof that
introductions to the island occur (Beardsley 1966; Bryan 1978; Conant
et al. 1984; John Strazanac, Bishop Museum, pers. comm., 1991). Carmine
spider mites (Tetranychus cinnabarinus) have been collected several
times on Nihoa and could threaten Schiedea verticillata (CPC 1990a; J.
Strazanac, pers. comm., 1991).
D. The Inadequacy of Existing Regulatory Mechanisms
All populations of the three plant species are located on Federal
land within a national wildlife refuge managed by the Service. The
National Wildlife Refuge System Administration Act prohibits
unauthorized entry, use, or occupancy of refuge areas, as well as
disturbance, injury, cutting, burning, removal, destruction or
possession of ``natural growth'' (16 U.S.C. 668dd(c). However, the
remoteness of this uninhabited island makes enforcement of these
restrictions and monitoring of threats difficult.
E. Other Natural or Manmade Factors Affecting its Continued Existence
Nihoa's plant populations, as well as its many birds, are
vulnerable to the intentional or inadvertent introduction of alien
animals. The difficulty in landing on the island provides a degree of
protection from animal introductions, but a wrecked fishing boat could
accidentally introduce rats, which could cause a severe and rapid
degradation of both the flora and fauna of Nihoa.
Alien plant species naturalizing on Nihoa would compete with native
plant taxa for space, water, nutrients, and light. Six alien plant
species, which are naturalized in other parts of the Hawaiian Islands,
have been found on Nihoa.
Three of the alien plant species were first recorded in the area of
Millers Peak, where a military installation was located during the
1960s. Cenchrus echinatus (common sandbur) was first noticed between
1961 and 1969. In 1962, a soldier's towel at the military camp was
found with six sandbur fruits stuck to it. This was burned, but it
illustrates how easily alien propagules can be brought to Nihoa by
human visitors. Service policy has been to destroy all sandbur plants,
and none were seen after 1969 until 1981, when one plant with fewer
than 10 fruits was discovered and destroyed. An unidentified species of
the grass genus Paspalum was observed in 1962 near the military camp,
but it has not been found since so has evidently not established. Three
small colonies of Portulaca oleracea (pigweed) were found in 1977 near
the military installation. It has now spread over the entire island,
having become the only widespread exotic plant present. Pigweed grows
in shallow soil pockets, especially near ridge tops, the type of
habitat in which Amaranthus brownii and Schiedea verticillata grow. It
may be replacing individuals of two native species of Portulaca and
potentially could threaten Amaranthus brownii and Schiedea
verticillata.
Two introduced species have been found near the southern coast.
Setaria verticillata (bristly foxtail) was found in 1969 but has not
been collected since, so it has probably not become established.
Tetragonia tetragonioides (New Zealand spinach) was collected in 1977
and again in 1991. In 1981 one colony of Nephrolepis multiflora (sword
fern), an alien species established in the main Hawaiian Islands, was
found in the southern part of Nihoa some distance from the usual
landing site. Two other colonies were found in 1983 in the northwestern
part of the island. This is the first fern naturalized in the main
Hawaiian Islands to have reached the NWHI and is thought to have
arrived by wind dispersal. Caution on the part of personnel working on
the island and frequent monitoring of the vegetation and removal of
alien plants have helped keep established exotic plant species to a
minimum on Nihoa (Conant 1983a, 1983b, 1985; Herbst 1980; Marshall
1964).
With its low amount of rainfall, Nihoa often has much dry
vegetation, which is very susceptible to fire. An 1885 trip to Nihoa by
a group led by Queen Liliuokalani illustrates this vulnerability. The
group had to leave the island abruptly after they started a fire which
quickly swept across the island (Culliney 1988). Fires caused by
smoking or cooking remain potential threats.
Erosion, landslides, rock slides, and flooding due to natural
causes potentially could result in the death of individual plants as
well as habitat destruction. This especially affects the continued
existence of species or populations with limited numbers and/or narrow
ranges, including all three plant species in this rule. Evidence of
heavy flash floods has been noted in the lower part of East Palm
Valley, where there are specimens of Pritchardia remota (Kramer 1962).
The very limited range of all three of the plant species, the small
number of populations of two of the species, and the small number of
individuals of one of the species increases the potential for
extinction from naturally occurring events. The limited gene pool may
depress reproductive vigor, or a single human-caused or natural
environmental disturbance could destroy a significant percentage of the
individuals or an entire population. All three of the plant species are
restricted in their natural range to small portions of an island with
an area of only 0.25 sq mi (0.65 sq km). Two of the species, Amaranthus
brownii and Pritchardia remota, have only two populations each, and
fewer than 40 individuals of A. brownii have ever been counted.
The threats facing these three species are summarized in Table 1.
Table 1.--Summary of Threats
--------------------------------------------------------------------------------------------------------------------------------------------------------
Limited numbers
Species Rats Alien plants Fire Substrate loss **
-------------------------------------------------------------------------------------------------------------------------------*------------------------
Amaranthus brownii................................................. X P X X1,2
Pritchardia remota................................................. P P P P X1
Schiedea verticillata.............................................. P X P X
--------------------------------------------------------------------------------------------------------------------------------------------------------
X=Immediate and significant threat.
P=Potential threat.
*=Substrate loss includes erosion, rock slides, and landslides.
**=No more than 100 individuals and/or no more than 5 populations.
1=No more than 5 populations.
[[Page 43183]]
2=No more than 50 individuals.
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by these species in issuing this final rule. Based
on this evaluation, this rulemaking will list these three plant species
as endangered. One of the species is known from only 2 populations and
fewer than 40 individuals; another species is known from only 2
populations. Each of the three species is threatened by one or more of
the following--competition with the alien plant pigweed, substrate
loss, and increased likelihood of extinction and/or reduced
reproductive vigor due to small numbers of individuals and populations
and their extremely limited range. Because these three species are in
danger of extinction throughout all or a significant portion of their
ranges, they fit the definition of endangered as defined in the Act.
Critical habitat is not being designated for these species for
reasons discussed in the ``Critical Habitat'' section of this final
rule.
Critical Habitat
Critical habitat is defined by section 3 of the Act as: (1) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection and; (2) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. ``Conservation'' means the use of all methods and
procedures needed to bring the species to the point at which listing
under the Act is no longer necessary.
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary designate critical habitat at the time
a species is determined to be endangered or threatened. The Service
finds that designation of critical habitat is not prudent for
Amaranthus brownii, Pritchardia remota, and Schiedea verticillata at
this time. Service regulations (50 CFR 424.12(a)(1)) state that
designation of critical habitat is not prudent when one or both of the
following situations exist--(1) The species is threatened by taking or
other human activity, and identification of critical habitat can be
expected to increase the degree of threat to the species, or (2) such
designation of critical habitat would not be beneficial to the species.
The publication of precise maps and descriptions of critical
habitat in the Federal Register and local newspapers as required in a
proposal for critical habitat would increase the degree of threat to
these plants by making them more vulnerable to take or vandalism and
their fragile habitat more susceptible to damage. The listing of these
species as endangered also publicizes their rarity and, thus, can make
these plants attractive to researchers, collectors, and those wishing
to see rare plants. This could contribute to their decline and/or
increase enforcement problems. The only known populations of the three
species occur on land owned and managed by the Federal government,
which is aware of the location and importance of protecting the plants
and their habitat. Protection of the species' habitat will be addressed
through the recovery process and through the section 7 consultation
process. All the plants are located on a national wildlife refuge, one
of the policies of which is to conserve native vegetation, so it is
unlikely that Federal activities would negatively affect the continued
existence of these plants. Therefore, the Service finds that
designation of critical habitat for these species is not prudent at
this time, because such designation would increase the degree of threat
from vandalism, collecting, or other human activities and because it is
unlikely to aid in the conservation of these species.
Available Conservation Measures
Conservation measures provided to species listed as endangered
under the Act include recognition, recovery actions, requirements for
Federal protection, and prohibitions against certain activities.
Recognition through listing results in public awareness and
conservation actions by Federal, State, and local agencies, private
organizations, and individuals. The Act provides for possible land
acquisition and cooperation with the State and requires that recovery
actions be carried out for all listed species. The protection required
of Federal agencies and the prohibitions against certain activities
involving listed plants are discussed, in part, below.
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2)
requires Federal agencies to ensure that activities they authorize,
fund, or carry out are not likely to jeopardize the continued existence
of a listed species or to destroy or adversely modify its critical
habitat. If a Federal action may affect a listed species or its
critical habitat, the responsible Federal agency must enter into formal
consultation with the Service. All populations of the three species
occur on land managed by the Service as a National Wildlife Refuge.
There are no other known Federal activities that occur within the
present known habitat of these species.
The Act and implementing regulations at 50 CFR 17.61, 17.62, and
17.63 for endangered species set forth a series of general prohibitions
and exceptions that apply to all endangered plant species. With respect
to the three plant species from the island of Nihoa, all prohibitions
of section 9(a)(2) of the Act, implemented by 50 CFR 17.61, apply.
These prohibitions, in part, make it illegal with respect to any
endangered plant, for any person subject to the jurisdiction of the
United States to import or export; transport in interstate or foreign
commerce in the course of a commercial activity; sell or offer for sale
these species in interstate or foreign commerce; or to remove and
reduce to possession any such species from areas under Federal
jurisdiction; maliciously damage or destroy any such species on any
area under Federal jurisdiction; or remove, cut, dig up, damage or
destroy any such species on any other area in knowing violation of any
State law or regulation or in the course of any violation of a State
criminal trespass law. Certain exceptions apply to agents of the
Service and State conservation agencies. The Act and 50 CFR 17.62 and
17.63 also provide for the issuance of permits to carry out otherwise
prohibited activities involving endangered plant species under certain
circumstances.
It is the policy of the Service (59 FR 34272, July 1, 1994) to
identify to the maximum extent practicable at the time a species is
listed those activities that would or would not be likely to constitute
a violation of section 9 of the Act. Such information is intended to
clarify the potential impacts of a species' listing on proposed and
ongoing activities within the species'
[[Page 43184]]
range. All three of these species occur solely on Federal refuge lands.
Collecting and damaging these species are prohibited without a Federal
permit. The Service is not otherwise aware of any legal activities
currently being conducted by the public that will be affected by this
listing and result in a violation of section 9. Illegal boat landing or
entry to the island have already been discussed as potentially
threatening these three species. Requests for copies of the regulations
concerning listed plants and inquiries regarding prohibitions and
permits may be addressed to the U.S. Fish and Wildlife Service,
Ecological Services, Endangered Species Permits, 911 N.E. 11th Avenue,
Portland, Oregon 97232-4181 (telephone 503-231-6241; FAX 503-231-6243).
Questions regarding whether specific activities will constitute a
violation of section 9 should be directed to the Ecoregion Manager of
the Service's Pacific Islands Office (see ADDRESSES section).
National Environmental Policy Act
The Service has determined that an Environmental Assessment or
Environmental Impact Statement, as defined under the authority of the
National Environmental Policy Act of 1969, need not be prepared in
connection with regulations adopted pursuant to Section 4(a) of the
Endangered Species Act of 1973, as amended. A notice outlining the
Service's reasons for this determination was published in the Federal
Register on October 25, 1983 (48 FR 49244).
References Cited
A complete list of all references cited herein is available upon
request from the Pacific Islands Ecoregion (see ADDRESSES section).
Authors
The primary authors of this final rule are Marie M. Bruegmann and
Zella E. Ellshoff, Pacific Islands Ecoregion (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Regulation Promulgation
Accordingly, part 17, subchapter B of chapter I, title 50 of the
Code of Federal Regulations, is amended as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Section 17.12(h) is amended by adding the following, in
alphabetical order under FLOWERING PLANTS, to the List of Endangered
and Threatened Plants, to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
---------------------------------------------------- Historic range Family name Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering plants
* * * * * * *
Amaranthus brownii............. None.............. U.S.A. (HI)....... Amaranthacae........... E 587 NA NA
* * * * * * *
Pritchardia remota............. Loulu............. U.S.A. (HI)....... Arecaceae.............. E 587 NA NA
* * * * * * *
Schiedea verticillata.......... None.............. U.S.A. (HI)....... Caryophyllaceae........ E 587 NA NA
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: August 12, 1996.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 96-21334 Filed 8-20-96; 8:45 am]
BILLING CODE 4310-55-P
Complete official Federal Register PDF
FR Doc. 96-21331 Oranges and Grapefruit Grown in the Lower Rio Grande Valley in Texas; Interim Final Rule To Revise Pack and Size Requirements
[Federal Register Volume 61, Number 163 (Wednesday, August 21, 1996)]
[Rules and Regulations]
[Pages 43139-43141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21331]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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========================================================================
Federal Register / Vol. 61, No. 163 / Wednesday, August 21, 1996 /
Rules and Regulations
[[Page 43139]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 906
[Docket No. FV96-906-3IFR]
Oranges and Grapefruit Grown in the Lower Rio Grande Valley in
Texas; Interim Final Rule To Revise Pack and Size Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule.
-----------------------------------------------------------------------
SUMMARY: This interim final rule revises pack requirements for
grapefruit and certain types of oranges under the marketing order
covering oranges and grapefruit grown in the Lower Rio Grande Valley in
Texas to allow larger sizes of fruit to be marketed in fresh channels.
This rule also reduces current minimum size requirements for Texas
grapefruit. These actions were recommended by the Texas Valley Citrus
Committee (TVCC), the agency responsible for local administration of
the marketing order. These changes will enable the industry to market a
wider range of sizes of citrus fruit in fresh market channels, thereby
meeting consumer demand, increasing sales, and improving returns to
growers.
DATES: Effective on August 22, 1996; comments received by September 20,
1996 will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be submitted in triplicate to the
Docket Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456,
Room 2523-S, Washington, DC 20090-6456, or by facsimile at (202) 720-
5698. Comments should reference this docket number and the date and
page number of this issue of the Federal Register and will be made
available for public inspection in the Office of the Docket Clerk
during regular business hours.
FOR FURTHER INFORMATION CONTACT: Charles L. Rush, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.
Box 96456, room 2526-S, Washington, DC 20090-6456, telephone (202) 690-
3670; or Belinda G. Garza, McAllen Marketing Field Office, Marketing
Order Administration Branch, Fruit and Vegetable Division, AMS, USDA,
1331 E. Hackberry Street, McAllen, Texas 78501; telephone (210) 682-
2833. 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
2523-S, Washington, DC 20090-6456; telephone (202) 720-2491, Fax #
(202) 720-5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement and Order No. 906 [7 CFR Part 906], as amended, regulating
the handling of oranges and grapefruit grown in the Lower Rio Grande
Valley in Texas, 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 Department of Agriculture (Department) is issuing this interim
final rule in conformance with Executive Order 12866.
This interim final rule has been reviewed under Executive Order
12988, Civil Justice Reform. This interim final rule is not intended to
have retroactive effect. This interim final 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 date of the entry of the ruling.
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.
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 20 handlers of oranges and grapefruit
subject to regulation under the order and approximately 2,000 orange
and grapefruit producers in the production area. Small agricultural
service firms are defined by the Small Business Administration (13 CFR
121.601) as those whose annual receipts are less than $5,000,000, and
small agricultural producers have been defined as those having annual
receipts of less than $500,000. A majority of Texas citrus handlers and
producers may be classified as small entities.
This interim final rule revises pack requirements for grapefruit
and certain varieties of oranges to allow larger sizes to be marketed
in fresh channels. It also reduces the minimum size requirements in
effect for grapefruit. This rule will enable handlers to market a
broader range of sizes of citrus fruit in fresh market outlets, thereby
meeting consumer demand, increasing fresh fruit sales, and enhancing
returns to handlers and producers.
Therefore, the AMS has determined that this action will not have a
significant economic impact on a substantial number of small entities.
Interested persons are invited to submit information on the regulatory
and informational impacts of this action on small businesses.
This action is in accordance with Sec. 906.40(a) of the order. This
section authorizes the Secretary to limit the
[[Page 43140]]
handling of particular grades, sizes, qualities, maturities, or packs
of any or all varieties of fruit during a specified period or periods.
Currently, minimum grade and size requirements, as well as pack and
container requirements, are in effect for both grapefruit and oranges
throughout the season. Shipments for certain purposes, including
processing, are exempt from these requirements.
The TVCC met on May 29, 1996, and unanimously recommended changes
in current pack and minimum size requirements. The TVCC meets prior to
and during each season to review the handling regulations effective on
a continuous basis for each citrus fruit regulated under the order.
TVCC meetings are open to the public, and interested persons may
express their views at these meetings. The Department reviews TVCC
recommendations and information, as well as information from other
sources, and determines whether modification, suspension, or
termination of the handling regulations would tend to effectuate the
declared policy of the Act.
Revision of Pack Requirements
Pack requirements for oranges and grapefruit are in effect under
Sec. 906.340 of the order's rules and regulations. These requirements
provide, among other things, that oranges and grapefruit be packed in
accordance with certain size designations. These size designations are
defined in terms of minimum and maximum diameters.
Oranges are divided into two categories for the purpose of pack
regulations: (1) Navel, Valencia and similar late-type oranges, and (2)
all other oranges. Navel, Valencia and similar late-type oranges must
be packed in accordance with 13 size designations. The smallest of
these is Size 324, which ranges from 2\1/16\ to 2\8/16\ inches in
diameter. The largest size defined is Size 46, which ranges from 4\3/
16\ to 5 inches in diameter. Oranges other than navel, Valencia and
similar late-type oranges are required to be packed in accordance with
the various pack sizes in section 51.691(c) of the United States
Standards for Grades of Oranges (Texas and States other than Florida,
California, and Arizona), hereinafter referred to as the ``orange
standards.''
The orange standards define seven pack sizes, from Size 324 (2\3/
16\ to 2\8/16\ inches in diameter) to Size 100 (3\7/16\ to 3\13/16\
inches in diameter). To allow for variations incident to proper
packing, a tolerance for undersized and oversized fruit is provided.
The tolerance is in terms of the number of fruit in a sample that may
be off-size--with the actual number increasing as the sample size
increases. Otherwise oversized oranges other than navel, Valencia and
similar late-type oranges would be diverted to exempt outlets, such as
processing.
The TVCC recommended revising the orange pack regulations to allow
all types of oranges to be packed in the full range of sizes--from Size
324 to Size 46. Thus, this rule revises Section 906.340(a)(2)(i)(a),
which specifies pack requirements for oranges other than navel,
Valencia and similar late-type oranges, to define the 13 size
designations authorized for such oranges. The seven smallest sizes are
defined in the same way they are in the orange standards. (The minimum
diameters are \2/16\ inch larger than those specified for navels,
Valencias and similar late-type oranges, while the maximum diameters
are the same.) The six sizes added for these oranges are defined
similarly (that is, the minimum diameters differ, but the maximum
diameters are the same). The differences in the minimum diameters take
into account varietal differences between these two categories of
oranges and current industry practice.
Grapefruit are required to be packed within the diameter limits
specified for the various pack sizes defined in Sec. 51.630(c) of the
United States Standards for Grades of Grapefruit (Texas and States
other than Florida, California, and Arizona), hereinafter referred to
as the grapefruit standards. Exceptions are that the minimum diameter
for pack size 96 grapefruit is 3\9/16\ inches, and for pack size 112
grapefruit, the minimum diameter is 3\5/16\ inches.
The grapefruit standards define eight pack sizes. The smallest is
Size 125/126, which ranges from a minimum of 3 inches to a maximum of
3\8/16\ inches in diameter. The largest is Size 46 which ranges from
4\5/16\ to 5 inches in diameter. This rule adds a new, larger Size 36
grapefruit, which ranges in size from 4\15/16\ to 5\9/16\ inches in
diameter.
Improved irrigation methods, technological advances, and improved
cultural practices have resulted in the Texas citrus industry growing
larger, good quality fruit. Current pack regulations preclude this
fruit from being marketed in fresh channels (with the exception of
small amounts allowed to exceed the maximum specified diameters), and
it is generally diverted to the processing market. The processing
market is currently in an oversupply situation and yields low returns
to growers. Providing for additional supplies (an estimated 5 to 10
percent) to be marketed fresh should, therefore, enhance grower
returns.
Additionally, the TVCC indicates that there has been increased
demand from consumers in recent years for a broader range of sizes of
oranges and grapefruit. Providing that these larger sizes may be
shipped will provide greater supplies and more choices to consumers. It
should also make the Texas citrus industry more competitive with other
citrus-growing areas, which have adapted their marketing efforts to
meet consumer demands.
Finally, varying growing conditions in Texas result in diverse size
distributions of oranges and grapefruit from season to season. Severe
drought conditions may cause a season's crop to be 5 to 10 percent
small sizes. Conversely, a rainy season may result in 5 to 10 percent
large sizes. These changes in pack requirements, to approve the
shipment of all commercial sizes of oranges and grapefruit, will
provide handlers with the flexibility to market available supplies in
light of existing market conditions.
Revision of Minimum Size Requirements for Grapefruit
Minimum size requirements for grapefruit are in effect under
Sec. 906.365 of the order's rules and regulations. Currently, during
the period November 16 through January 31 each season, grapefruit must
be at least pack size 96, with a minimum diameter of 3\9/16\ inches. At
other times, grapefruit that is pack size 112 (with a minimum diameter
of 3\5/16\ inches), may be shipped if it grades at least U.S. No. 1.
Otherwise, the minimum grade requirement for grapefruit is Texas
Choice. The smaller fruit is subject to a higher grade requirement
because experience indicates that a market exists for this smaller
fruit only if it meets a higher quality standard.
This interim final rule provides that pack size 112 grapefruit (if
it grades at least U.S. No. 1) may be shipped throughout the entire
season. This has been done in recent seasons. The Texas citrus industry
has found that there is a market for this smaller grapefruit,
particularly in juice bars, health food stores, and other types of
retail outlets that use smaller fruit for juicing. In addition, some
markets, such as Canada, prefer smaller fruit.
Also, as previously indicated, drought conditions can lead to an
abundance of smaller sizes. Such conditions currently exist in the
Lower Rio Grande Valley in Texas. The expected small sized grapefruit,
which cannot be marketed profitably in processing outlets, will be made
available to meet fresh market needs through this rule. This action is
[[Page 43141]]
expected to result in improved grower returns.
Permitting shipments of pack size 112 grapefruit grading at least
U.S. No. 1 will enable Texas grapefruit handlers to meet market needs
and compete with similar size grapefruit expected to be shipped from
Florida.
These changes in pack and size requirements for Texas oranges and
grapefruit are intended to broaden the range of sizes and increase the
amount of fruit available to consumers and increase grower returns. An
alternative to this rule is to leave the current regulations in place.
However, that would result in more of the larger oranges and grapefruit
and the smaller grapefruit going to processors, and less fruit going to
the more lucrative fresh market, which yields higher returns to
growers.
After consideration of all relevant material presented, including
the TVCC's recommendation, and other available 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 rule until 30 days after publication in the
Federal Register because: (1) To be of maximum benefit, this action
should be effective by September 1, the beginning of the 1996-97
season; (2) Texas citrus handlers are aware of this relaxation which
was recommended by the TVCC at a public meeting, and they will need no
additional time to comply with its requirements; and (3) this rule
provides a 30-day comment period and any comments received will be
considered prior to finalization of this rule.
List of Subjects in 7 CFR Part 906
Oranges, Marketing agreements, Grapefruit, Reporting and
recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 906 is
amended as follows:
PART 906--ORANGES AND GRAPEFRUIT GROWN IN THE LOWER RIO GRANDE
VALLEY IN TEXAS
1. The authority citation for 7 CFR part 906 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Paragraph (a)(2)(i)(a) of Sec. 906.340 is revised to read as
follows:
Sec. 906.340 Container, pack, and container marking regulations.
(a) * * *
(2) * * *
(i) * * *
(a) Oranges, except Navel oranges and Valencia and similar late-
type oranges, when packed in any box, bag, or carton shall be sized in
accordance with the sizes set forth in the following Table I, except as
otherwise provided by regulations issued pursuant to this part, and
otherwise meet the requirements of standard pack; and when in
containers not packed according to a definite pattern shall be sized in
accordance with the sizes set forth in the following Table I and
otherwise meet the requirements of standard sizing: Provided, That the
packing tolerances, which are set forth in the U.S. Standards for
Oranges (Texas and States other than Florida, California, and Arizona),
shall be applicable to fruit so packed.
Table I.--1\2/5\ Bushel Box
[Diameter in inches]
------------------------------------------------------------------------
Pack size Minimum Maximum
------------------------------------------------------------------------
46's............................. 4\5/16\ 5
54's or 56's..................... 4\2/16\ 4\12/16\
64's............................. 3\15/16\ 4\8/16\
70's or 72's..................... 3\13/16\ 4\5/16\
80's............................. 3\10/16\ 4\2/16\
100's............................ 3\7/16\ 3\13/16\
112's............................ 3\5/16\ 3\11/16\
125's............................ 3\3/16\ 3\9/16\
163's............................ 2\15/16\ 3\5/16\
200's............................ 2\11/16\ 3\1/16\
252's............................ 2\7/16\ 2\12/16\
288's............................ 2\4/16\ 2\9/16\
324's............................ 2\3/16\ 2\8/16\
------------------------------------------------------------------------
3. Paragraph (a)(2)(i)(c) of Sec. 906.340 is amended by
redesignating ``Table I'' as ``Table II''.
4. Paragraph (a)(2)(ii) of Sec. 906.340 is revised to read as
follows:
Sec. 906.340 Container, pack, and container marking regulations.
(a) * * *
(2) * * *
(ii) Grapefruit. Grapefruit, when packed in any box, bag or carton,
shall be within the diameter limits specified for the various pack
sizes in 7 CFR 51.630(c) of the United States Standards for Grades of
Grapefruit (Texas and States other than Florida, California, and
Arizona): Provided, That the minimum diameter limit for pack size 36
grapefruit shall be 4\15/16\ inches and the maximum diameter limit
shall be 5\9/16\ inches; Provided, That the minimum diameter limit for
pack size 96 grapefruit shall be 3\9/16\ inches and for pack size 112
grapefruit shall be 3\5/16\ inches; and Provided further, That any
grapefruit in boxes or cartons shall be packed in accordance with the
requirements of standard pack.
* * * * *
5. Section 906.365 is amended by revising paragraph (a)(4) to read
as follows:
Sec. 906.365 Texas Orange and Grapefruit Regulation 34.
(a) * * *
(4) Such grapefruit are at least pack size 96, except that the
minimum diameter limit for pack size 96 grapefruit in any lot shall be
3\9/16\ inches: Provided, that any handler may handle grapefruit, which
are smaller than pack size 96, if such grapefruit grade at least U.S.
No. 1 and they are at least pack size 112, except that the minimum
diameter limit for pack size 112 grapefruit in any lot shall be 3\5/16\
inches.
* * * * *
Dated: August 16, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-21331 Filed 8-20-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-21262 Open Video Systems
[Federal Register Volume 61, Number 163 (Wednesday, August 21, 1996)]
[Rules and Regulations]
[Pages 43160-43178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21262]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[CS Docket No. 96-46; FCC 96-334]
Open Video Systems
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Third Report and Order and Second Order on Reconsideration
adopts and modifies rules and policies concerning open video systems.
The Third Report and Order amends our regulations to reflect the
provisions regarding open video systems of the Telecommunications Act
of 1996 (the ``1996 Act'') with respect to the definition of
``affiliate.'' The Second Order on Reconsideration amends or adopts
regulations with respect to open video systems in response to petitions
for reconsideration regarding the Second Report and Order in this
proceeding. This item further fulfills Congress' mandate in adopting
the 1996 Act and will provide guidance to open video system operators,
video programming providers, and consumers concerning open video
systems.
DATES: Effective Date: The requirements and regulations established in
this decision shall become effective upon approval by OMB of the new
information requirements adopted herein, but no sooner than September
20, 1996. The Commission will publish a document at a later date
notifying the public as to the effective date.
Comments: Written comments by the public on the proposed and/or
modified information collections are due on or before September 20,
1996. Written comments must be submitted by the Office of Management
and Budget (OMB) on the proposed and/or modified information
collections on or before October 21, 1996.
ADDRESSES: A copy of any comments on the information collections
contained herein should be submitted to Dorothy Conway, Federal
Communications Commission, Room 234, 1919 M Street, NW., Washington, DC
20554, or via the Internet to [email protected], and to Timothy Fain, OMB
Desk Officer, 10236 NEOB, 725-17th Street, NW., Washington, DC 20503 or
via the Internet to [email protected].
FOR FURTHER INFORMATION CONTACT: Rick Chessen, Cable Services Bureau,
(202) 418-7200. For additional information concerning the information
collections contained herein, contact Dorothy Conway at 202-418-0217,
or via the Internet at [email protected].
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Third
Report and Order and Second Order on Reconsideration in CS Docket No.
96-46, FCC No. 96-334, adopted August 7, 1996 and released August 8,
1996. The full text of this decision is available for inspection and
copying during normal business hours in the FCC Reference Center (room
239), 1919 M Street, NW., Washington, DC 20554, and may be purchased
from the Commission's copy contractor, International Transcription
Service, (202) 857-3800, 1919 M Street, NW., Washington, DC 20554.
The Second Order on Reconsideration contains proposed and/or
modified information collections. It has been submitted to the OMB for
review, as required by the Paperwork Reduction Act of 1995. The
Commission, as part of its continuing effort to reduce paperwork
burdens, invites the general public and OMB to comment on the
information collections contained in the Second Order on
Reconsideration. Comments should address: (a) Whether the proposed
collections of information are necessary to the proper performance of
the functions of the Commission, including whether the information
shall have practical utility; (b) the accuracy of the Commission's
burden estimates; (c) ways to enhance the quality, utility, and clarity
of the information collected; and (d) ways to minimize the burden of
the collection of information on the respondents, including the use of
automated collection techniques or other forms of information
technology.
OMB Approval Number: 3060-0700.
Title: Implementation of Section 302 of the Telecommunications Act
of 1996; Open Video Systems.
Form Number: FCC Form 1275.
Type of Review: Revision of a currently approved collection.
Respondents: 740. (10 OVS operators, 250 video programming
providers that may request additional Notice of Intent information,
file rate complaints, or initiate dispute cases, 60 broadcast stations
that may elect type of carriage or make network non-duplication
notifications, 100 programming providers that may make notification of
invalid rights claimed, 300 must-carry list requesters, 20 oppositions
to OVS operator certifications.)
Number of Responses: 3754. (10 Notices of Intent, 14 certifications
of compliance filings and refilings, 250 requests for additional Notice
of Intent information, 250 responses to requests for additional Notice
of Intent information, 50 rate complaints, 50 rate justifications, 60
carriage elections, 10 must-carry recordkeepers, 300 must-carry list
requests, 300 provisions of must-carry lists, 1200 notifications of
network non-duplication rights to OVS operators, 100 programming
provider notifications of invalid rights claimed, 1100 OVS operator
notifications of network non-duplication rights to programming
providers, 20 oppositions to certifications of compliance, 20 dispute
case complainants, and 20 dispute case defendants.)
Estimated Burden to Respondents: Notice of Intent requirements: 10
prospective OVS operators are estimated to be in existence within the
next year. Average number of entities that prospective OVS operators
must notify with each Notice of Intent: 45. Average burden to each OVS
operator to complete a Notice of Intent and to provide copies to all
applicable entities: 8 hours apiece; therefore 10 x 8=80 hours.
Estimated number of written requests for additional information that
will be received subsequent to Notices of Intent: 25 per Notice of
Intent x 10 Notices=250. Average burden to prospective video
programming providers to make each written request: 2 hours apiece;
therefore 10 x 25 x 2=500 hours. Average burden to each OVS operator to
provide the additional information to all prospective video programming
providers: 8 hours apiece; therefore 10 x 8=80 hours. Total burden for
all respondents=80+500+80=660 hours. Form 1275 Certification Process
[[Page 43161]]
requirements: We estimate that 14 certification filings and refilings
will result in 10 certified OVS operators. Annual burden to OVS
operators to complete certifications and serve on applicable local
communities and opposition filers: 2 hours apiece; therefore 14 x 2=28
hours. Number of oppositions estimated to be filed with the Commission:
2 per certification; therefore 2 x 14=28. Average burden for completing
oppositions: 4 hours per opposition; therefore 28 x 4=112 hours. Total
burden for all respondents: 28+112=140 hours.
Rate Justification requirements: Estimated number of rate
complaints that video programming providers will file: 5 per OVS
operator; therefore 10 x 5=50. Estimated number of rate justifications
filed by OVS operators in response to rate complaints: 50. Burden to
video programming providers for filing complaints: 1 hour per
complaint; therefore 50 x 1=50 hours. Burden to OVS operators for
filing rate justifications: 20 hours per justification; therefore
10 x 5 x 20=1000 hours. Total burden for all respondents: 50+1,000=1050
hours.
Must-Carry and Retransmission Consent requirements: Number of OVS
operators: 10. Average number of broadcast stations in each OVS
operator's area of carriage: 6. Average burden to broadcast stations
for each election for must-carry or retransmission consent: 2 hours per
election; therefore 10 x 6 x 2 hours=120 hours. Annual recordkeeping
burden for OVS operators to maintain list of its broadcast stations
carried in fulfillment of must-carry requirements: 4 hours per OVS
operator; therefore 10 x 4=40 hours. Estimated annual number of written
requests received by OVS operators: 30 per OVS operator; therefore
10 x 30=300. Burden for completing written requests: .25 hours per
request; therefore 10 x 30 x .25=75 hours. Burden to OVS operators to
respond to requests: .25 hours per request; therefore 10 x 30 x .25=75
hours. Total burden for all respondents: 120+40+75+75=310 hours.
Sports Exclusivity, Network Non-Duplication and Syndicated
Exclusivity requirements: Estimated number of notifications filed by
television broadcast stations to notify OVS operators of exclusive or
non-duplication rights being exercised: 6 stations in each OVS
operator's area of carriage x 20 annual notifications x 10 OVS
operators=1200. Burden to television stations to make notifications: .5
hours per notification; therefore 1200 x .5=600 hours. Estimated number
of notifications filed by programming providers to notify OVS operators
of invalid exclusivity rights claimed: 100. Burden to programming
providers to make notifications: .5 hours per notification; therefore
100 x .5 hours=50 hours. Burden for OVS operator to make notifications
to delete signals available to all programming providers on their
systems: 1 hour per notification x 1100 occurrences=1100 hours. Total
burden for all respondents: 600+150+100=1750 hours.
Dispute Resolution requirements: Estimated number of notices filed
by complainant: 20. Estimated number of defendants' responses to
notices filed: 20. Average burden for each notice and response to
notice: 4 hours apiece; therefore 40 x 4=160 hours. We estimate that
the 20 notices will result in the initiation of 10 dispute cases. The
average burden for complainants and defendants for undergoing all
aspects of the dispute case: 25 hours per case; therefore 20 (10
complainants+10 defendants) x 25=500 hours. Total burden to all
respondents: 160+500=660 hours.
Total Annual Burden to Respondents: 4570 hours. (660+140+1050+
310+1750+660).
Estimated Cost to Respondents: Notices of Intent costs of
stationery and postage at $2 apiece for (10 Notices of Intent x 45
entities)+250 requests for additional information+250 responses to
requests for additional information=$1900.
Form 1275 Certification Process costs of stationery, diskettes, and
postage at $10 for 14 filings and refilings sent to the Commission and
all applicable local communities=$140. Costs of stationery and postage
at $2 apiece for 28 opposition filings=$48. $140+$48=$188.
Rate Justifications costs of stationery and postage at $2 apiece
for 50 rate complaints+50 rate justifications=$200.
Must-Carry and Retransmission Consent costs of stationery and
postage at $2 apiece for 60 carriage elections+300 requests for
lists+300 provisions of lists=$1320.
Sports Exclusivity, Network Non-Duplication and Syndicated
Exclusivity costs of stationery and postage at $2 apiece for 1200
notifications to OVS operators+100 notifications of invalid rights
claimed+1100 OVS operator notifications to programming providers=$4800.
Dispute Resolutions costs of stationery and postage at $2 apiece
for 20 notices+20 responses to notices=$80. Costs of stationery and
postage at $10 apiece for 10 complainants in dispute cases+10
defendants in dispute cases=$200. $80+$200=$280.
Total Estimated Costs to Respondents: $8688. ($1900+
$188+$200+$1320+ $4800+ $280).
Needs and Uses: The information collections contained herein are
necessary to implement the statutory provisions for Open Video Systems
contained in the Telecommunications Act of 1996.
I. Introduction
1. The Telecommunications Act of 1996 added Section 653 to the
Communications Act, establishing open video systems as a new framework
for entry into the video programming marketplace. Section 653 required
that the Commission, within six months after the date of enactment of
the 1996 Act, ``complete all actions necessary (including any
reconsideration) to prescribe regulations'' to govern the operation of
open video systems. Accordingly, on March 11, 1996, the Commission
issued a Notice of Proposed Rulemaking regarding open video systems.
Report and Order and Notice of Proposed Rulemaking in CS Docket No. 96-
46 and CC Docket No. 87-266 (terminated), 61 FR 10496 (March 14, 1996),
FCC 96-99, released March 11, 1996 (``NPRM''). Based on the record
submitted in response to the NPRM, on May 31, 1996, the Commission
adopted a Second Report and Order in which we prescribed rules and
policies for governing the establishment and operation of open video
systems. Second Report and Order in CS Docket No. 96-46, 61 FR 28698
(June 5, 1996), FCC 96-249, released June 3, 1996 (``Second Report and
Order'').
2. In this Second Order on Reconsideration, we address issues
raised in these filings, and modify or clarify our regulations
accordingly. In addition, in the Order and Notice of Proposed
Rulemaking in CS Docket No. 96-85 (``Cable Reform Proceeding''), we
sought comment on the definition of ``affiliate'' in the context of
open video systems. Order and Notice of Proposed Rulemaking in CS
Docket No. 96-85 (Implementation of the Cable Act Reform Provisions of
the Telecommunications Act of 1996) (``Cable Reform Proceeding''), 61
FR 19013 (April 30, 1996) 11 FCC Rcd 5937 (1996). In light of the six-
month deadline set by Congress for the Commission to establish final
open video system regulations, we address the affiliate issue in this
Third Report and Order.
[[Page 43162]]
II. Third Report and Order--Definition of ``Affiliate''
3. Background. In the Cable Reform Proceeding, we specifically
sought comment regarding the definition of ``affiliate'' in the context
of the new statutory provisions governing open video systems. We
subsequently received comments in the Cable Reform Proceeding
addressing this issue. For purposes of our decision in this Third
Report and Order, we incorporate those comments to the extent they
specifically address the definition of affiliation in the context of
the statutory provisions for open video systems. We noted that Congress
added a new definition of ``affiliate'' in Section 3 of Title I of the
Communications Act. This new provision defined ``affiliate'' for
purposes of the Act, unless the context otherwise requires, as: a
person that (directly or indirectly) owns or controls, is owned or
controlled by, or is under common ownership or control with, another
person. For purposes of this paragraph, the term ``own'' means to ``own
an equity interest (or the equivalent thereof) of more than 10 percent.
We noted also, however, that Congress did not alter the separate
definition of ``affiliate'' set forth under Title VI. Under Title VI,
the term ``affiliate'' is defined, when used in relation to any person,
to mean ``another person who owns or controls, is owned or controlled
by, or is under common ownership or control with, such person.'' We
sought comment regarding the definition of the term ``affiliate'' in
the context of the new statutory provisions for open video systems. We
will address the affiliation definition for these provisions in the
Cable Reform Proceeding.
4. Discussion. We agree with those commenters that argue that the
new definition of ``affiliate'' in Title I does not apply to matters
under Title VI since Title VI contains a separate definition of that
term that does not set a percentage threshold as to what constitutes
ownership. For our purposes, therefore, we must determine the point at
which an open video system operator's ownership or control of another
entity, or another entity's ownership or control of the open video
system operator, makes that entity an affiliate for purposes of Section
653. In defining ``affiliate'' for purposes of Section 653, we will
adopt the attribution standard that we use in the program access
context. Thus, as we do in the program access context, we will apply
the definitions contained in the notes to 47 CFR Sec. 76.501 (which
reflect the broadcast attribution rules contained in the notes to 47
CFR Sec. 73.3555), with certain modifications. For instance, in
contrast to the broadcast attribution rules: (a) We will consider an
entity to be an open video system operator's ``affiliate'' if the open
video system operator holds 5% or more of the entity's stock, whether
voting or non-voting; (b) we will not adopt a single majority
shareholder exception; and (c) all limited partnership interests of 5%
or greater will qualify, regardless of insulation. Under the single
majority shareholder exception, where there is a single holder of more
than 50% of a corporation's outstanding voting stock, minority voting
stock interests in the corporation are not attributable to shareholders
irrespective of whether they exceed the 5% benchmark. See 47 CFR
Sec. 73.3555 note 2. In addition, as with both the program access
standard and the broadcast attribution rules, actual working control,
in whatever manner exercised, will also be deemed a cognizable
interest.
III. Second Order on Reconsideration
A. Qualifications to be an Open Video System Operator
5. We decline to modify our decision in the Second Report and Order
to allow non-LECs to operate open video systems, and to allow cable
operators that are subject to effective competition in their cable
franchise areas to convert their cable systems to open video systems.
We disagree with Michigan Cities, et al. that our decision allowing
non-LECs to operate open video systems is inconsistent with the plain
language of the 1996 Act or the Act's legislative history. Permitting
non-LECs to become open video system operators is not only a
permissible reading of the statute, but is most consistent with
Congress' goal of opening all telecommunications markets to
competition. In addition, we disagree with the argument of the National
League of Cities, et al. that our decision to permit cable operators to
convert to open video may defeat the purposes of other Title VI
requirements that apply to cable operators. Congress established cable
and open video systems as two distinct video delivery models, each
offering a particular combination of regulatory benefits and burdens.
That an entity, by assuming the regulatory responsibilities of an open
video system, may be relieved of regulatory responsibilities relating
to cable is neither novel nor improper.
6. While we believe that cable operators should be allowed to
operate open video systems, we also decline to alter our decision that
cable operators may do so in their existing cable franchise areas only
if they are subject to ``effective competition.'' The underlying
premise of Section 653 is that open video system operators would be new
entrants in established markets, competing directly with an incumbent
cable operator. We believe that Congress exempted open video system
operators from much of Title VI regulation because, in the vast
majority of cases, they will be competing with incumbent cable
operators for subscribers. Our effective competition restriction
implements Congress' intent by ensuring that, where it is the incumbent
cable operator itself that seeks to enter the marketplace as an open
video system operator, there is at least one other multichannel video
programming provider competing in the market.
7. We are not convinced, as NCTA argues, that the potential
presence of multiple video programming providers on open video systems
obviates the need for an effective competition requirement. There is no
assurance that any particular system will generate sufficient
competition between providers of ``comparable'' video programming
services to qualify as a meaningful stand-in for effective facilities-
based competition. While we agree with U S West that the expiration of
a franchise agreement may remove a contractual impediment to a cable
operator's conversion to an open video system, the public interest
rationale that gave rise to the effective competition restriction
remains. So long as a cable operator has the ability to exercise market
power--i.e., is not subject to effective competition--it has not met
the necessary pre-condition for operating an open video system.
8. We also continue to disagree with Cox's argument that the
Commission has no authority to determine whether cable operators that
are also LECs may operate open video systems. The second sentence of
Section 653(a)(1) authorizes the Commission to determine whether any
cable operator may convert to open video, regardless of other services
it may also provide, including local exchange service. The Commission
retains its authority over cable operators that also become LECs
because, as Sprint notes, a cable operator does not lose its identity
as a cable operator simply by offering additional types of services.
B. Certification Process
9. The Second Report and Order fully explains our reasons for not
imposing pre-certification requirements regarding public rights-of-way,
PEG obligations, revisions to cost allocation manuals, or separate
subsidiaries. Petitioners have presented no new evidence or
[[Page 43163]]
arguments that would cause us to change our earlier conclusion.
10. In addition, we will maintain our rule that certification
filings will be deemed approved unless disapproved by the Commission
within ten days. Petitioners have not demonstrated that affirmative
approval is necessary to provide notice to outside parties or to assure
adequate Commission review. Also, because certification precedes the
operator's actual implementation of the Commission's rules, we disagree
with NCTA that the Commission is required, at this stage of the
process, to do more than obtain adequate representations that the
applicant will comply with the Commission's requirements. Further, we
believe that any conflicts that arise regarding the operator's conduct
can be addressed more fully in the 180-day dispute resolution process
than in the ten-day certification process. Finally, we will not modify
our rule that, if new physical plant is required, open video system
operators must obtain Commission approval of their certification prior
to the commencement of construction.
11. We do believe, however, that it is appropriate for a local
government to have a reasonable opportunity to respond to a
certification filing that implicates its community. We therefore will
revise FCC Form 1275, our proposed certification form, to require
applicants to list the names of the local communities in which they
intend to operate, rather than describe them generally. Because some
local communities may not have ready access to the Internet or to the
Commission's public notices, we will also require applicants for
certification to serve a copy of their FCC Form 1275 filing on the
clerk or other designated official of all affected local communities on
or before the date on which it is filed with the Commission. Service by
mail is complete upon mailing, but if mailed, the served documents must
be postmarked at least three days prior to the filing of the FCC Form
1275 with the Commission. Applicants also must inform the local
communities that any oppositions and comments must be filed with the
Commission within five days of an applicant's filing and must be served
on the applicant.
C. Carriage of Video Programming Providers
12. Notification and Enrollment of Video Programming Providers. We
fully considered the costs and benefits of requiring an open video
system operator to provide local notice of its intent to establish an
open video system. The Alliance for Community Media, et al. do not
provide additional evidence concerning these costs or benefits. We
reiterate our finding that dissemination of the Notice of Intent as
required under the Second Report and Order will be a sufficient means
for an entity to notify the public of its intention to establish an
open video system.
13. Open Video System Operator Discretion Regarding Video
Programming Providers. We find that the Second Report and Order fully
considered most of the arguments and evidence raised on reconsideration
by NCTA and Cox, as described above. We explained in the Second Report
and Order that Section 653(a)(1) specifically permits the Commission,
``consistent with the public interest, convenience and necessity'' to
determine when a cable operator may provide programming through an open
video system. We also fully explained our construction of Section
653(b)(1)(A), which gives the Commission the discretion to determine
when it is in the public interest, convenience and necessity for a
cable operator either to become an open video system operator or to
provide video programming over another entity's open video system. We
therefore deny the petitions of NCTA and Cox to the extent they raise
these particular contentions.
14. We also reject the cable operators' argument concerning access
to open video systems by DBS and wireless service providers. The 1996
Act expressed a clear preference for facilities-based competition
between cable operators and telephone companies, and allowing an open
video system operator generally to limit the ability of a competing,
in-region cable operator to obtain capacity on its system would
encourage cable operators to develop and upgrade their own wireline
systems. Cable operators possess substantial market power, and because
these markets have been protected by high entry barriers, cable
operators have been able to maintain prices above the level that would
prevail if the market were competitive. Because of this market power,
cable operators may have different incentives for seeking open video
system capacity than would MVPDs that do not have such market power,
such as DBS and wireless cable providers. Enabling a cable operator to
obtain open video system capacity means that less capacity will be
available for use by the system operator and for other entities. The
open video system therefore could become a less attractive alternative
for consumers, which would help preserve the cable operator's market
power. We believe that these rationales currently do not apply to DBS
or wireless cable providers because these MVPDs do not enjoy
substantial market power. We therefore reaffirm our conclusion in the
Second Report and Order. However, at such time that DBS or wireless
cable providers possess sufficient market power to raise concerns
similar to those associated with existing in-region, competing cable
operators, we will reexamine this conclusion.
15. We also disagree with NCTA's argument that the Commission
impermissibly delegated to open video system operators the discretion
to preclude cable operators from obtaining capacity on the system. In
determining that Section 653(a)(1) allows the Commission to determine
when a cable operator may access an open video system, we merely
interpreted the statute to allow the Commission to prescribe
regulations to govern this situation. We adopted regulations that set
forth the parameters for where a competing, in-region cable operator's
access to an open video system may be limited, and for where access may
not be limited. In any case, we will modify our regulations to
emphasize our decision that, pursuant to the second sentence of Section
653(a)(1), the public interest, convenience and necessity is served by
generally prohibiting a competing, in-region cable operator from
obtaining capacity on an open video system.
16. There are two exceptions to this general rule. First, a
competing, in-region cable operator may access an open video system
when the open video system operator determines that it is in its
interests to grant access. Second, a competing, in-region cable
operator will be granted access to an open video system when such
access will not significantly impede facilities-based competition. As
previously determined, one situation in which facilities-based
competition will be deemed not to be significantly impeded is where:
(a) the competing, in-region cable operator and affiliated systems
offer service to less than 20% of the households passed by the open
video system; and (b) the competing, in-region cable operator and
affiliated systems provide cable service to a total of less than 17,000
subscribers within the open video system's service area.
17. Allocation of Open Video System Channel Capacity. In the Second
Report and Order, we permitted an open video system operator to
implement its own method for allocating channel capacity to
unaffiliated video programming providers, so long as capacity is
allocated in an open, fair, non-discriminatory manner. We stated that
[[Page 43164]]
the process must be verifiable and insulated from any bias by the
system operator. NCTA's arguments were fully considered and addressed
in the Second Report and Order. NCTA offers no additional facts or
arguments to support their position. Accordingly, we decline to
reconsider our previous conclusion.
18. Reallocation of Channel Capacity. In the Second Report and
Order, we required open video system operators to allocate open
capacity, if any is available, at least once every three years, stating
that requiring reallocation every three years will permit an open video
system operator to sufficiently accommodate subsequent requests for
carriage by video programming providers, while not causing unreasonable
disruption to the system. The Telephone Joint Petitioners do not
provide evidence that would compel the Commission to reconsider that
conclusion. We note in this regard that no new programming service,
which the Telephone Joint Petitioners assert would favor a longer
reallocation period, have filed for reconsideration in this proceeding.
19. Channel Positioning. In the Second Report and Order, we
permitted an open video system operator to assign channel positions,
subject to Section 653's non-discrimination requirements. In the Second
Report and Order we determined that the statute and our implementing
regulations will prevent discrimination against unaffiliated video
programming providers, notwithstanding an open video system operator's
participation in the channel allocation process. The Alliance for
Community Media, et al. do not present new facts or arguments to
support the mandatory involvement of an independent entity.
Accordingly, we decline the Alliance for Community Media's request for
reconsideration.
20. Channel Sharing. In response to the Alliance for Community
Media, et al.'s petition, we clarify that there is no requirement that
a system operator charge a video programming provider a pro-rata fee
because a programming service carried by that provider is placed on a
shared channel. Thus, even if a video programming provider's
programming service is placed on a shared channel, the video
programming provider may be required to pay the same rate as if the
programming service was placed on a non-shared channel. We think this
clarification addresses the Alliance for Community Media, et al.'s
concern that an open video system operator will engage in rate
discrimination by placing favored video programming providers'
programming services on shared channels. Second, ESPN argued that
channel sharing should be conditioned on the approval of programming
services in its reply comments to the NPRM. We fully considered those
views in the Second Report and Order, where we stated that so long as
each video programming provider has the contractual right to offer a
particular program service to subscribers, it is unnecessary for the
open video system operator to obtain the consent of the programming
service in order to place that service on a shared channel. Third, we
agree with NCTA that ad avails associated with a programming service
carried by both the open video system operator or its affiliated video
programming provider and an unaffiliated provider must be shared in an
equitable manner. Examples of acceptable methods of sharing ad avails
include apportioning the revenues from such ad avails on a per
subscriber basis or apportioning the rights to sell the avails
themselves. We will clarify that arrangements with regard to ad avails
will be considered a term or condition of carriage, and an open video
system operator must comply with Section 653(b)(1)(A) in negotiating
their apportionment.
21. Open Video System Operator Co-Packaging of Video Programming
Selected by Unaffiliated Video Programming Providers. We decline to
adopt ESPN's proposal to require the consent of any programming
services involved before a video programming provider may enter into a
co-packaging agreement. We recognize ESPN's legitimate concerns that
its program license agreements frequently contain negotiated terms
related to the marketing of a programming service, including packaging
parameters and trademark use guidelines. However, these are contractual
matters that we believe are best left to the individual negotiations
between the parties involved. If a video programming provider enters
into a co-packaging arrangement that breaches its contractual
obligations, we believe that ESPN and other such programming services
already possess adequate remedies at law. Nothing in our rules should
be construed to infringe upon the rights of programming services with
respect to their program license obligations.
D. Rates, Terms, and Conditions of Service
22. Just and Reasonable Carriage Rates. In its petition, MCI has
provided no new facts or arguments to justify reconsideration of these
concerns in the instant proceeding. We also decline to impose the other
pre-certification and reporting requirements MCI seeks. We believe that
these requirements are inconsistent with our flexible regulatory
approach to the provision of open video system, and are not necessary
to protect either unaffiliated programmers or the public in general. In
addition, we decline to require open video system operators to base
their carriage rates on detailed studies of incremental and stand alone
cost and estimates of actual opportunity cost, as suggested by MCI,
because of the 1996 Act's direction that Title II requirements not be
applied to open video systems, and the limited time allowed for the
review of certifications and complaints. Instead, we reaffirm our
imputed rate approach for determining whether carriage rates are just
and reasonable where the presumption conditions are not present. We
also decline to adopt MCI's proposal to allow parties other than
potential video programming providers seeking carriage on the open
video system to file complaints with the Commission regarding the
carriage rates offered by the system operator. This decision does not
leave other parties who claim to be adversely affected by an open video
system operator's carriage rate without remedies. For example, a party
seeking to challenge a rate it pays for common carrier services
provided by that operator on the ground of improper cost-shifting from
an open video system, retains its rights under section 208 of the
Communications Act to file a complaint.
23. We disagree with the general assertion by the National League
of Cities, et al. that our presumption conditions will not provide
adequate protection to unaffiliated video programming providers. The
National League of Cities et al. have presented no new arguments or
data to refute this conclusion. Moreover, we disagree with National
League of Cities et al.'s contention that the presumption approach
places an undue financial and regulatory burden on the unaffiliated
programmer to determine whether the operators' rates are fair. Our
presumption approach strikes an appropriate balance between the
interests of the open video system operator in establishing service to
end users quickly, without undue regulatory intervention by
competitors, and the interests of unaffiliated programmers in obtaining
just and reasonable carriage rates. The National League of Cities, et
al. also expressed the specific concern that the presumption conditions
will allow the average rate paid by the unaffiliated programming
providers receiving carriage to be ``weighted'' or
[[Page 43165]]
adjusted, but that only the open video system operator will possess the
information necessary to calculate the average or to ``weight'' the
average. We clarify that, as part of its burden of showing that the
presumption conditions are met, an open video system operator will be
required to make available to a complainant all information needed to
calculate the average rate paid by the unaffiliated programming
providers receiving carriage on its system, including the information
needed for any weighting of the individual carriage rates that the
operator has included in the average rate. The complainant may
challenge the weighting methodology used by the open video system
operator as part of its case.
24. In response to the Telephone Joint Petitioners' request, we
clarify that in the Second Report and Order, the phrase ``unaffiliated
programmers as a group'' does not impose a requirement that the
programmers market their programming in competition with the operator.
Rather, the phrase is used to give open video system operators greater
flexibility in meeting the presumption conditions. It allows operators
to meet the requirement by providing carriage to several unaffiliated
programmers that in total occupy the threshold capacity requirement.
25. We reaffirm our basic imputed rate approach for ensuring just
and reasonable open video system carriage rates where the presumption
conditions are not met, but clarify our use of certain terminology. We
structured the imputed rate in the Second Report and Order to reflect
what the open video system operator, or its affiliate, effectively
``pays'' for its own carriage of programming over the system by
starting with the revenues received from the end user subscriber, and
subtracting the costs avoided by the open video system operator by
permitting another programming provider to serve that subscriber. No
petitioner has convinced us that an imputed rate approach is not
suitable to the circumstances of open video system carriage, where a
new market entrant (the open video system operator) will, in the
majority of areas, face competition from an established incumbent (the
cable operator).
26. As we noted in the Second Report and Order, open video systems
are essentially a combination of: (a) the creative development and
production of programming, (b) the packaging of various programs for
the open video system operator's offering, and (c) the creation and
maintenance of infrastructure for the carriage of both the operator's
affiliated programming and unaffiliated programming. Our rules are
intended to ensure that unaffiliated programming providers pay a rate
for carriage that is no more than the carriage price that can be fairly
imputed for the carriage of the operator's affiliated programming
packages. In so doing we seek to attain an important result of the
ECPR, which is that the price the operator charges unaffiliated
programming providers for carriage must be no higher than the sum of
its incremental cost of carriage and the contribution to fixed
infrastructure costs in its retail price of programming.
27. We disagree with the assertion by the Telephone Joint
Petitioners that the Commission errs by using an ECPR methodology to
establish carriage pricing on open video systems, where it is not
appropriate, while declining to use ECPR to establish LEC
interconnection pricing in situations where they assert it is
appropriate. Like ECPR, our imputed rate approach will provide the open
video system operator the same return when it carries unaffiliated
programming as when it carries its own programming. We believe that in
the case of open video systems, application of an ECPR methodology
provides full economic incentives for LEC entry into video in
competition with incumbent cable providers.
28. We disagree also with the assertion by the Telephone Joint
Petitioners that the imputed price omits the incremental cost of
carriage. Under normal market conditions, the imputed price of carriage
will exceed the open video system operator's incremental cost of
carriage (which is greater than zero) and make a contribution to the
fixed infrastructure cost of the open video system. For this reason, we
reject the Telephone Joint Petitioners' assertion that the imputed rate
approach will produce a carriage rate of zero or less. The imputed rate
is based in part on the price charged by the open video system operator
or its affiliate to end-user subscribers. The price charged the
subscriber will generally be greater than the incremental cost of
carriage. In addition, the imputed rate subtracts out the costs of
developing the programming and creating the package, which removes the
costs avoided when unaffiliated programming is carried. After
subtracting these costs, the imputed rate will correspond to the
carriage rate that the open video system operator ``pays'' to carry its
own programming. The imputed rate approach is designed to give the open
video system operator the same economic return when it sells carriage
to unaffiliated programming providers as when it ``sells'' carriage to
its own programming. Consequently, we would expect the use of the ECPR
approach to minimize any disincentives the open video system operator
may have to carry unaffiliated programming.
29. We believe that this result of the imputed rate approach should
be achieved even under the competitive conditions assumed by the
Telephone Joint Petitioners in their petition. Even assuming that, at
the outset of open video system operations, competition lowered the
retail price of video programming to subscribers to the point that the
open video system operator incurred losses, this would not justify the
operator's shifting the burden of such losses to unaffiliated video
programming providers by charging them a higher carriage rate than the
rate that it effectively ``charges'' itself. The unaffiliated
programming providers would also face lower retail prices for their
programming under the competitive conditions assumed by the Telephone
Joint Petitioners. We disagree with the Telephone Joint Petitioners'
assertion that unaffiliated programmers would be largely unaffected by
retail price competition.
30. The imputed rate approach was chosen as a flexible regulatory
approach for determining what are just and reasonable carriage rates in
an imperfectly competitive carriage market. However, it may not be the
sole means of establishing just and reasonable carriage rates. There
may be alternative, market-based approaches to demonstrating that a
challenged rate is just and reasonable, that may also be useful in
particular cases. We would consider such an argument in response to a
complaint regarding a carriage rate. The open video system operator
would be required to demonstrate that its carriage service is subject
to sufficiently strong competitive forces to ensure that its carriage
rates are just and reasonable, or that it has computed its rate using a
methodology that aims to produce or replicate the working of a
competitive carriage market.
31. In addition, on reconsideration, we find that certain aspects
of our explanation and use of terminology should be clarified. As we
stated above, under our approach, the imputed price of carriage for an
affiliated programming package equals the price of the package
delivered to a subscriber minus the cost of creating the package. To
clarify the terms identified by the Telephone Joint Petitioners, in the
Second Report and Order we use the term ``earning'' to refer to the
difference between the price of the package delivered to a subscriber
and the cost of creating the package. We
[[Page 43166]]
use the term ``profit allowance'' to refer to one type of cost of
creating the programming package, namely the cost of capital used to
create the package. We also clarify Section 76.1504 of the rules to
indicate more clearly the types of avoided costs that must be
subtracted by an open video system operator in calculating the imputed
rate.
32. We also clarify in response to the National League of Cities,
et al. that the imputed rate formula will not allow open video system
operators to charge unaffiliated programming providers a price for
carriage equal to the price they charge subscribers for affiliated
programming. The imputed rate formula, as we have discussed, requires
open video system operators to subtract the cost of creating affiliated
programming from the price of the programming. The carriage rate that
unaffiliated programming providers pay will be less than the price
subscribers pay for affiliated programming.
33. Open Video System Carriage Rates Must Not be Unjustly or
Unreasonably Discriminatory. The petitioners' concerns about whether
open video system rates are nondiscriminatory ignores the wording of
the 1996 Act, which prohibits rate differences only when unjust or
unreasonable. As we noted in the Second Report and Order, we decided to
permit carriage rate differentiation because requiring open video
system operators to charge all programming providers the same carriage
rate would exclude providers whose programming has a low market value.
Neither NCTA nor MCI has offered new factual or legal arguments to
refute this reasoning.
34. We disagree with the Alliance for Community Media, et al., that
open video system operators should be required to charge reduced
carriage rates to non-profit programming providers. In the Second
Report and Order, we identified not-for-profit status as one of the
legitimate, objective factors on which open video system operators
could base reduced rates. Moreover, we are concerned about the impact
of mandatory reduced carriage rates on a new entrant in the markets for
video carriage and distribution. Our decision to allow preferred
carriage rates for non-profit programmers on a voluntary basis reflects
our goals of promoting open video system entry and competition with
incumbent cable systems, while providing access to carriage by
unaffiliated programming providers.
E. Gross Revenues Fee
35. We generally reaffirm our conclusions in the Second Report and
Order. We continue to believe that our interpretation represents the
best reading of Section 653(c)(2)(B). We will, however, clarify our
rule to make clear our intent that local governments have the authority
to charge and receive the gross revenue fee. In addition, consistent
with Congress' intent of ensuring ``parity among video providers,'' we
will clarify that any advertising revenues received by an open video
system operator or its affiliates in connection with the provision of
video programming should be included in the fee calculation, where such
revenues are included in the incumbent cable operator's franchise fee
calculation.
36. We agree with NYNEX and U S West that the application of the
gross revenues fee provision should not disadvantage any particular
video programming provider. Like the costs of PEG and must-carry, we
believe that the gross revenues fee is a cost of the platform--in this
case, the cost of using the rights-of-way--that should be shared
equitably among all users of the system. We therefore will permit open
video system operators to recover the gross revenues fee from all video
programming providers on a proportional basis as an element of the
carriage rate.
F. Applicability of Title VI Provisions
37. Public, Educational and Governmental Access Channels. We
continue to believe that open video system operators should in the
first instance be permitted to negotiate their PEG access obligations
with the relevant local franchising authority and, if the parties so
desire, the local cable operator. Furthermore, we continue to believe
that it is necessary to have a default mechanism in case the open video
system operator and the local franchising authority are unable to
agree. We disagree with Comcast that open video system operators should
be required to negotiate with local franchising authorities. Providing
a ``backstop'' is an appropriate balance between imposing Section 611's
requirements and not imposing franchise requirements on open video
systems. If the open video system operator matches the PEG access
obligations of the cable operator, the actual PEG access obligations
imposed on the open video system operator will be, as the statute
requires, to the extent possible no greater or lesser than those
imposed on the cable operator. This is true even if the open video
system operator's obligations are established through our default
mechanism and the cable operator's obligations are established through
negotiation and the franchise process.
38. After considering the arguments made by the various
petitioners, we believe, however, that some modification of our rule
regarding how to establish open video system PEG access obligations is
appropriate. We believe that imposing Section 611 obligations on open
video system operators so that to the extent possible the obligations
are ``no greater or lesser'' than those imposed on cable operators
means that, in the absence of an agreement with the local franchising
authority, an open video system operator must match, rather than share,
the annual PEG access financial contributions of the local cable
operator. Under our current rule, open video system operators are
required to match the PEG access channel capacity provided by the local
cable operator, but are required to share the contributions towards PEG
access services, facilities and equipment. Our modified rule will apply
the matching principle which we have applied to channel capacity also
to PEG contributions that cable operators make, and that are actually
used for PEG access services, facilities and equipment.
39. For in-kind contributions (e.g., cameras, production studios),
we believe that precise duplication would often be unnecessary,
wasteful and inappropriate. Instead, open video system operators may
work out mutually agreeable terms with cable operators over in-kind
equipment, studios and the like so that PEG service to the community is
improved or increased and the open video system operator fulfills its
statutory obligation. As a backstop, however, we will permit the open
video system operator to pay the local franchising authority the
monetary equivalent of the depreciated in-kind contribution, or in the
case of facilities, the annual amortization value. Any matching PEG
access contributions provided by an open video system operator are to
be used by the local franchising authority to fund activities arising
under Section 611.
40. We decline to modify our rule that requires the local cable
operator to permit the open video system operator to connect with the
cable operator's PEG access channel feed. We clarify, however, that any
costs associated with the open video system operator's connection to
the cable operator's PEG access channel feed shall be borne by the open
video system operator. These costs shall be counted towards the open
video system operator's matching obligation described above. We are not
requiring the local cable operator to
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permit others to interconnect with and use their cable system to reach
consumers. Rather, we are simply requiring the local cable operator to
provide its PEG access channel feed to a particular competitor that
shares a similar PEG access obligation in order to avoid an unnecessary
duplication of facilities and promote Congress' goal of competitive
entry.
41. In response to the request of Municipal Services, et al., we
clarify that the negotiated PEG access obligations of an open video
system operator may be enforced regardless of where and when the
agreement is made. Regarding City of Indianapolis's assertion that
channel alignment should not be at the discretion of the open video
system, we affirm our decision in the Second Report and Order that
there is insufficient evidence to support mandating that PEG access
channels be carried at the same channel location on the open video
system operator as on the cable system. City of Indianapolis has
presented no new evidence or argument not presented to the Commission
before.
42. Establishing Open Video System PEG Access Obligations Where No
Local Cable Operator Exists. Our discussion in the Second Report and
Order regarding the establishment of open video system PEG access
obligations where no local cable operator exists was not intended to
foreclose a local franchising authority from negotiating with the open
video system operator. The discussion was intended to explain how to
establish open video system PEG access obligations where no local cable
operator exists and the local franchising authority and the open video
system operator cannot agree. The parties are therefore free to
negotiate PEG access obligations as Alliance for Community, et al.
request. However, if the open video system operator and the local
franchising authority cannot agree, the operator must make a reasonable
amount of channel capacity available for PEG use. In the Second Report
and Order, we found that where a cable franchise previously existed,
such as where a cable system is able to convert to an open video
system, what constitutes a reasonable amount of channel capacity is to
be governed by the previously existing franchise agreement with respect
to PEG access obligations.
43. While we do not believe that Congress intended open video
system PEG access obligations to correct deficiencies in what the local
franchising authority negotiated for cable operator PEG access
obligations, we also recognize the concern that PEG access requirements
should not be frozen in time in perpetuity. We will therefore modify
our approach for a situation in which there was a previously existing
cable franchise, such as where a cable system converts to an open video
system, and provide that, when the open video system operator and the
local franchising authority cannot agree on PEG access obligations, the
local franchising authority may either keep the previously existing PEG
access obligations or may elect to have the open video system
operator's PEG access obligations determined by comparison to the
franchise agreement for the nearest operating cable system that has a
commitment to provide PEG access and that serves a franchise area with
a similar population size. The local franchising authority shall be
permitted to make a similar election every 15 years thereafter.
44. Open Video System PEG Obligations Where System Overlaps with
More than One Franchise Area. While we do not disagree with Telephone
Joint Petitioners that open video systems may be configured differently
from cable systems, as Alliance for Community Media, et al. point out,
Telephone Joint Petitioners provide insufficient support for why open
video systems will not be able to be configured to comply with the PEG
access obligations for each franchise area with which each system
overlaps. In fact, Michigan Cities, et al. demonstrate that, in at
least one situation, it is indeed possible. We therefore deny Telephone
Joint Petitioners' petition with respect to this matter.
45. Institutional Networks. We affirm our decision to preclude
local franchising authorities from requiring open video system
operators to build institutional networks because the cable operator is
required to do so under the terms of its franchise agreement. Because
there is confusion over our interpretation of Section 611 as it applies
to institutional networks, however, we make the following
clarifications. Contrary to the understanding of certain petitioners,
we agree that institutional networks may be required of a cable
operator, but we do not agree that this requirement is found in Section
611. Section 611 only provides that a local franchising authority may
require that channel capacity on institutional networks be designated
for educational or governmental use and does not authorize local
franchising authorities to require cable operators to build
institutional networks. The building of an institutional network is a
requirement negotiated in the franchise agreement. Section
621(b)(3)(D), as added by the 1996 Act, makes clear that a local
franchising authority may require a cable operator to provide
institutional networks as a condition of the initial grant, renewal or
transfer of a franchise. Pursuant to Section 653(c)(1)(C), open video
system operators are not subject to franchise requirements, so we
cannot apply an institutional network requirement to open video
systems.
46. While institutional networks may or may not function like PEG
access as National League of Cities, et al. assert, the statutory
definition is broader than merely PEG use. We do not agree that
precluding the local franchising authority from requiring an open video
system operator to build an institutional network, but permitting the
local franchising authority to require channel capacity on a network if
an open video system operator does build one, is inconsistent, as
Michigan Cities, et al. suggest. Rather, once an open video system
operator decides to build an institutional network, the 1996 Act's
mandate that an open video system operator's PEG access obligations be
no greater or lesser than those of the cable operator become operative.
47. Must-Carry and Retransmission Consent. In the Second Report and
Order, the Commission considered and rejected suggestions similar to
NCTA's that we specifically require the use of a basic tier-type
arrangement in order to provide all subscribers on a system with the
signals carried in fulfillment of the must-carry requirements. As we
noted in the Second Report and Order, the basic tier requirement is
contained in Section 623 of the Communications Act, which does not
apply to open video systems. NCTA has presented no new evidence in
support of a basic tier requirement. We therefore decline to adopt
NCTA's request. We agree with NCTA, however, that video programming
providers should not be required to duplicate must-carry programming
already provided to subscribers from another source.
48. The Commission recognizes ALTV's valid concern that stations
electing must-carry status will have to reimburse open video system
operators for extensive copyright fees that may result from carriage
beyond their local market areas. As ALTV notes, these dangers may be
avoided if open video system operators tailor the distribution of must-
carry signals to the parts of their system that are located within a
station's local market. We believe that our rules provide open video
system operators with an incentive to design
[[Page 43168]]
and construct their systems with this capability. Where an open video
system has such a capability, we will require open video system
operators to limit the distribution of must-carry signals to the
appropriate local markets, unless a local broadcast station consents
otherwise. If an open video system operator cannot limit its
distribution of must-carry signals in this manner, the open video
system operator will be responsible for any increase in copyright fees
and may not pass through such increases to the local station electing
must-carry treatment.
49. Finally, we agree with Tele-TV and U S West that we should
amend our current rule that allows broadcasters to make different
elections among open video systems and cable systems serving the same
geographic area. The ``common election'' requirement is contained in
Section 325(b)(3)(B): ``If there is more than one cable system which
services the same geographic area, a station's election shall apply to
all such cable systems.'' In Section 653(c), Congress provided that
Section 325 should apply to open video system operators, to the extent
possible, no greater or lesser than it applies to cable operators. By
directing equal treatment under Section 325, we believe that Congress
intended to remove Section 325 as a distinguishing factor between those
entering the video marketplace as a cable operator and those entering
as an open video operator. In the Second Report and Order, however, we
found that as a practical matter the potential size differences between
open video systems and cable systems could make common election on
overlapping cable and open video systems infeasible. We agree with
Tele-TV that our concern in the Second Report and Order may no longer
apply to the extent that an open video system can tailor the
distribution of local broadcast stations to the appropriate
communities. We will therefore amend our rules to require that
broadcasters make the same election for open video systems and cable
systems serving the same geographic area unless the overlapping open
video system is unable to deliver appropriate signals in conformance
with the broadcast station's elections for all cable systems serving
the same geographic area.
50. Program Access. We believe that our initial interpretation
applying the provisions of Section 628 to open video system programming
providers is reasonable and should stand. Rainbow and NCTA's argument
that Congress limited the applicability of the program access rules to
open video system operators was expressly considered and rejected in
the Second Report and Order.
51. As we stated in the Second Report and Order, an exclusive
contract between a cable-affiliated video programming provider on an
open video system and a cable-affiliated programmer presents many of
the same concerns as an exclusive contract between a cable operator and
a vertically integrated satellite programming vendor. A primary
objective of the program access requirements is the release of
programming to existing or potential competitors of traditional cable
systems so that the public may benefit from the development of
competitive distributors. Exclusive arrangements among cable-affiliated
open video system programming providers and cable-affiliated satellite
programmers may impede the development of open video systems as a
viable competitor to cable. NCTA and Rainbow fail to challenge or
address these concerns.
52. Second, we believe that the benefits of the program access
provisions apply to open video system providers. Contrary to Rainbow's
arguments, open video system programming providers fall within the
definition of MVPDs, which Section 628 identified as the intended
beneficiaries of the program access regime. We believe that Section
602(13)'s list of entities enumerated in that section is expressly a
non-exclusive list. Section 602(13) states that the term MVPD ``means a
person such as, but not limited to, a cable operator, a multichannel
multipoint distribution service, a direct broadcast satellite service.
* * * `` We also agree with those commenters that asserted that open
video system video programming providers fit the definition of MVPD
because they make ``available for purchase, by subscribers or
customers, multiple channels of video programming.
53. Third, we reject NCTA's argument that intra-system competition
would be harmed by applying the program access rules to cable-
affiliated video programming providers on an open video system. Our
concern is the same as in the cable context--that a cable operator
would use its control over programming to keep that programming from
other competing MVPDs. We are concerned that exclusive arrangements
among cable-affiliated open video system programming providers and
cable-affiliated satellite programmers may serve to impede development
of open video systems as a viable competitor to cable to the extent
that popular programming services are denied to open video system
operators or unaffiliated open video system programming providers that
seek to package such programming for distribution to subscribers.
54. We reiterate that the prohibition, absent a Commission public
interest finding, on exclusive contracts applies only to contracts
between cable-affiliated satellite programmers and cable-affiliated
open video system programming providers and contracts between satellite
programmers affiliated with an open video system operator and open
video system programming providers affiliated with an open video system
operator. We note that a vertically integrated satellite programmer is
not generally restricted from entering into an exclusive contract with
an MVPD that is not affiliated with a cable operator, although such a
contract is subject to challenge under Section 628(b) of the
Communications Act and Section 76.1001 of the Commission's rules.
55. Sports Exclusivity, Network Non-Duplication and Syndicated
Exclusivity. Upon reconsideration, we grant the petition filed by the
Joint Sports Petitioners regarding our current rule governing sports
exclusivity. We find merit in their position that, unlike network non-
duplication and syndicated exclusivity, sports exclusivity requires
infrequent deletions that cannot be recouped once missed. We believe
that our rule that extends the Commission's regulations concerning
sports exclusivity to open video systems must be amended in order to
preserve the same level of protection received by sports teams and
leagues in the cable context. While we hold open video system operators
responsible for compliance with our rules, we also recognize that they
are forced by the structure of an open video system to rely, to a
degree, on individual programming providers who may dispute a claim of
exclusivity or may attempt to substitute a signal for the signal that
is to be deleted. We amend our rule to provide that open video system
operators will be subject to sanctions for any violation of our sports
exclusivity rules. Operators generally may effect the deletion of
signals for which they receive deletion notices unless they receive
notice within a reasonable time from the appropriate programming
provider that the rights claimed are invalid. If a programmer
challenges the validity of claimed exclusive or non-duplication rights,
the open video system operator shall not delete the signal. However, an
open video system operator should be allowed to require indemnification
as a
[[Page 43169]]
condition of carriage for any sanctions it may incur in reliance on a
programmer's claim that certain exclusive or non-duplication rights are
invalid.
56. Contrary to the further concerns mentioned by the Joint Sports
Petitioners, our current rules do not require a sports team or league
to provide notifications to individual video programming providers in
addition to the open video system operator. The holder of exclusive or
non-duplication rights is, of course, free to notify individual
programming providers when it notifies the open video system operator
as required by our rules. In addition, our rules require an open video
system operator to make the notices it receives ``immediately
available'' to the appropriate programming providers on its system.
Given the different types of systems and different circumstances in
which notice will be provided, we do not believe at this time that a
specific time requirement is necessary or appropriate.
57. We also deny U S West's petition for reconsideration which
suggests that the Commission hold individual programming providers
responsible for compliance with our exclusivity and non-duplication
rules, and asks the Commission to further define the ``prompt steps''
that must be taken by an operator in order to avoid liability after a
violation of our rules has occurred. In the Second Report and Order,
the Commission responded to the issues raised in U S West's petition. U
S West does not present any further evidence to support the adoption of
different rules.
58. Local Franchising Requirements. We thoroughly explained the
bases of our findings in the Second Report and Order on these issues.
No parties on reconsideration raise any arguments that lead us to
revisit our conclusions therein. We continue to believe that the
general distinction we adopted reflects Congress' stated intent: state
and local authorities may manage the public rights-of-way in a non-
discriminatory and competitively neutral manner, but may not impose
Title VI franchise or Title VI ``franchise-like'' requirements on open
video system operators.
59. We do, however, clarify our decision in several respects.
First, we clarify that the preemption is limited to Title VI or Title
VI ``franchise-like'' requirements, and does not extend to all types of
potential franchises. If, for example, a state or local government
characterizes permission to use the public rights-of-way as a
``franchise,'' such franchises are not preempted so long as they are
issued in a non-discriminatory and competitively neutral manner. We
agree with U S West that the key in this regard is not how such
requirements are labeled, but their effect. If the local requirements
are Title VI-like requirements that would frustrate Congress' intent in
adopting the 1996 Act's open video provisions, we continue to believe
they are preempted.
60. Second, we clarify that ``non-discriminatory and competitively
neutral'' treatment does not necessarily mean ``equal'' treatment. For
instance, it could be a non-discriminatory and competitively neutral
regulation for a state or local authority to impose higher insurance
requirements based on the number of street cuts an entity planned to
make, even though such a regulation would not treat all entities
``equally.'' Third, we clarify that when the Second Report and Order
stated that local authorities may ensure the public safety in the use
of rights-of-way by ``gas, telephone, electric, cable and similar
companies,'' an open video system would qualify as a ``similar
company.''
61. We continue to disagree with the National League of Cities, et
al. that the narrow preemption in the Second Report and Order violates
the Fifth Amendment. First, although the National League of Cities, et
al. assert that the Second Report and Order ``grossly underestimates''
the compensation due to local authorities, they fail to address the
Commission's finding that the ``before and after'' test--in which the
measure of compensation is the difference in the value of the property
before a partial taking and the value of the property after the partial
taking--is the proper test to apply. Second, we do not agree with the
National League of Cities, et al. that the local community has not
received just compensation unless an open video system operator matches
the franchise and other obligations imposed upon the incumbent cable
operator. Such a requirement would obviously render meaningless
Congress' exemption of open video from Section 621 franchising
requirements, since an open video system operator would be forced to
comply with each of the incumbent cable operator's franchise terms or
be subject to a Fifth Amendment ``takings'' claim. Third, the Second
Report and Order specifically permits the recovery of normal fees
associated with the construction of an open video system: ``[A] state
or local government could impose normal fees associated with zoning and
construction of an open video system, so long as such fees [are]
applied in a non-discriminatory and competitively neutral manner.'' We
clarify, however, that these ``normal fees associated with zoning and
construction'' should not duplicate the compensation provided by the
gross revenues fee. As we stated in the Second Report and Order, it is
apparent that the gross revenue fee ``in lieu of'' a franchise fee was
intended as compensation by open video system operators for use of the
public rights-of-way. The National League of Cities, et al. have not
explained why the fees associated with the construction of open video
systems would be any different than the fees associated with any other
users of the rights-of-way, and why regulations applied in a non-
discriminatory, competitively neutral manner on all users of the
rights-of-way would be insufficient to deal with such matters.
62. Finally, we find that a determination of whether LECs that use
the rights-of-way for open video service remain subject to the same
conditions contained in the pre-existing telephone franchise agreements
can only be made on a case-by-case basis in light of the particular
agreement between the parties. Thus, we make no general conclusions
here.
G. Information Provided to Subscriber
63. On reconsideration, we agree that video programming providers,
including those affiliated with the open video system operator, should
be permitted to develop and use their own navigational devices. We
agree with Tele-TV and NYNEX that individualized navigational devices
could be a factor in subscribers' choice of programming providers,
thereby fostering innovation and competition among providers. While for
technical considerations we will not require open video system
operators to permit programming providers to use their own navigational
devices, we do not believe that the same limitation should be placed on
a provider's right to develop and use their own individualized guides
and menus. We believe that it would be an impermissible term or
condition of carriage under Section 653(b)(1) for an open video system
operator to restrict a video programming provider's ability to use part
of its channel capacity to provide an individualized guide or menu to
its subscribers.
64. We believe that several safeguards are necessary to effectuate
congressional intent and protect unaffiliated programming providers.
First, we reaffirm our conclusion in the Second Report and Order that
an open video system operator cannot evade its non-discrimination
obligations under Section 653(b)(1)(E) simply by having its
navigational devices, guides, or
[[Page 43170]]
menus nominally p
FR Doc. 96-21262 Open Video Systems
rovided by an affiliate. By this statement, we meant
that where an open video system operator provides no navigational
device, guide or menu of its own, its affiliate's navigational device,
guide or menu will be subject to the requirements of Section
653(b)(1)(E) even though such services are not formally provided by the
open video system operator. We therefore will continue to apply the
non-discrimination requirements of Section 653(b)(1)(E) to the open
video system operator's affiliate where the affiliate provides a
navigational device, guide or menu and the operator does not.
65. Second, if an open video system operator permits video
programming providers, including its affiliate, to develop and use
their own navigational devices, the operator must create an electronic
menu or guide that all video programming providers must carry
containing a non-discriminatory listing of programming providers or
programming services available on the system. These menus or guides
should also inform the viewer how to obtain additional information on
each of the services listed. If an operator provides a system-wide menu
or guide that meets these requirements, its programming affiliate may
create its own menu or guide without being subject to the requirements
of Section 653(b)(1)(E).
66. Third, an open video system operator may not require
programming providers to develop and/or use their own navigational
devices. Upon request, such programming providers must have access to
the navigational device used by the open video system operator or its
affiliate. Thus, for example, an open video system operator may not
require a subscriber of its affiliated programming package to purchase
a second set-top box in order to receive service from an unaffiliated
programming provider that does not wish to use its own set-top box. An
open video system operator need not physically integrate such
programming providers into its affiliated programming package, or list
such programming providers on its affiliate's guide or menu, so long as
it meets the requirement set forth in the Second Report and Order that
no programming service on its navigational device be more difficult to
select than any other programming service.
H. Dispute Resolution
67. We disagree with the Alliance for Community Media, et al. that
not mandating public disclosure and filing of carriage contracts will
result in economic inefficiency. Economic efficiency is promoted by
increased competition. Open video system operators generally will be
new entrants into markets that, although characterized by a degree of
competition, have relatively few sellers of channel capacity over which
video programming may be offered to subscribers. In such markets,
increased competition is promoted when sellers of capacity, such as
open video system operators, can negotiate contracts privately with
individual buyers (i.e., video programming providers), and rival
sellers cannot immediately match the contracts' terms and conditions.
Thus, our rules are designed to increase economic efficiency by
promoting competition in video programming carriage markets.
68. We believe that the National League of Cities, et al. raise
valid concerns that would-be complainants may lack sufficient
information to file a complaint under our pleading rules. We believe it
appropriate to give unaffiliated programming providers seeking carriage
on open video systems some access to other programmer's carriage rates
under certain circumstances. To ensure that the open video system
operator provides useful information to the would-be complainant, we
clarify that the preliminary rate estimates must include, upon request,
all information needed to calculate the average rate paid by the
unaffiliated programmers receiving carriage on the system, including
the information needed for any weighting of the individual carriage
rates that the operator has included in the average rate. This
information may be made available subject to a reasonable non-
disclosure agreement. In addition, we reiterate that the operator's
carriage contracts may be subject to discovery as part of the complaint
procedure.
I. Joint Marketing, Bundling and Structural Separation
69. Joint Marketing. We again decline to adopt NCTA's proposed
restriction on joint marketing. While we agree that Congress' silence
is not determinative, in light of Congress' silence on the issue, we
believe that the burden is on those proposing joint marketing
restrictions to demonstrate that such restrictions are necessary. NCTA
requests that open video system operators be required to inform
incoming callers that other video service providers exist in the area.
To justify such a requirement, NCTA, at a minimum, would have to make
some showing that consumers otherwise would likely be unaware of the
existence of other video service options, such as cable service. NCTA
made no such showing in its initial comments and has presented no new
evidence here. In the absence of record evidence, the Commission
declines to find that consumers would be unaware of the existence of
other video providers such as cable, especially since cable currently
accounts for 91% of multichannel video programming subscribers
nationally, and passes 96% of all television households. NCTA's
petition is denied.
70. Bundling. AT&T and NCTA's concerns were considered and
addressed in the Second Report and Order. They adduce no new evidence
here, nor have they explained why the safeguards adopted by the
Commission are inadequate to protect consumers' interests. The
petitions for reconsideration are denied. On our own motion, we will
correct a typographical error in our rule regarding the bundling of
video and local exchange services. The current text provides, in part,
that any local exchange carrier offering a bundled package must impute
the unbundled tariff rate for the ``unregulated service.'' The rule
will be corrected to be consistent with the text of the Second Report
and Order, which states that a bundled package must impute the
unbundled tariff rate for the ``regulated service.''
71. Structural Separation. We deny the motions of NCTA and the
Alliance for Community Media, et al. to reconsider our decision in the
Second Report and Order, and accordingly decline to impose a separate
affiliate requirement. First, while both NCTA and the Alliance for
Community Media, et al. point out that the Commission need not be
restricted by congressional silence, they both fail to address the
point raised in the Second Report and Order that Congress expressly
directed in Section 653 that Title II requirements not be applied to
``the establishment and operation of an open video system.'' In
addition, as we stated in the Second Report and Order, we believe that
the Commission's Part 64 cost allocation rules and any amendment
thereto will adequately protect regulated telephone ratepayers from a
misallocation of costs that could lead to excessive telephone rates.
Neither NCTA nor the Alliance for Community Media, et al. has advanced
any new evidence or substantive arguments that a separate affiliate
requirement is a necessary additional safeguard to protect against
cross-subsidization.
IV. Regulatory Flexibility Act Analysis
72. As required by Section 603 of the Regulatory Flexibility Act, 5
U.S.C. Sec. 603 (RFA), an Initial Regulatory
[[Page 43171]]
Flexibility Analysis (IRFA) was incorporated in the Report and Order
and Notice of Proposed Rulemaking (``NPRM'') in CS Docket No. 96-46 and
CC Docket No. 87-266 (terminated) (In the Matter of Implementation of
Section 302 of the Telecommunications Act of 1996--Open Video Systems),
FCC 96-99, 61 FR 10496 (March 14, 1996), released March 11, 1996. The
Commission sought written public comments on the proposals in the NPRM
including comments on the IRFA, and addressed these responses in the
Second Report and Order in CS Docket No. 96-46 (In the Matter of
Implementation of Section 302 of the Telecommunications Act of 1996--
Open Video Systems), FCC 96-249, 61 FR 28698 (June 5, 1996), released
June 3, 1996. No IRFA was attached to the Second Report and Order
because the Second Report and Order only adopted final regulations and
did not propose regulations. This Final Regulatory Flexibility Analysis
(FRFA) therefore addresses the impact of regulations on small entities
only as adopted or modified in this Third Report and Order and Second
Order on Reconsideration and not as adopted or modified in earlier
stages of this rulemaking proceeding. The FRFA conforms to the RFA, as
amended by the Contract with America Advancement Act of 1996 (CWAAA),
Public Law No. 104-121, 110 Stat. 847.
73. Need for Action and Objectives of the Rule. The rulemaking
implements Section 302 of the Telecommunications Act of 1996, Public
Law No. 104-104, 110 Stat. 56. Section 302 directs the Commission to
promulgate regulations governing the establishment and operation of
open video systems. The purposes of this action are to establish a
structure for open video systems that provides competitive benefits,
including market entry by new service providers, enhanced competition,
streamlined regulation, investment in infrastructure and technology,
diversity of video programming choices and increased consumer choice.
74. Summary and Assessment of Issues Raised by Petitioners in
Response to the IRFA. With respect to the Third Report and Order,
several parties filed comments in the Cable Reform Proceeding and also
filed petitions for reconsideration of the Second Report and Order
regarding the definition of the term ``affiliate'' in the context of
the new statutory provisions for open video systems. These comments and
the Commission's report are summarized in Section III, above. As
mentioned, no IRFA was attached to the Second Report and Order. In
petitions for reconsideration of the Second Report and Order, however,
some parties raised issues that generally could involve small entities.
For example, local cities urge the Commission to: (1) further ensure
that local governments receive notification of an operator's intent to
establish an open video system, by requiring an operator to serve a
copy of FCC Form 1275 on all affected local municipalities; and (3)
require an open video system operator to match, rather than share, the
local cable operator's PEG access obligations. We grant reconsideration
of these issues. Other parties, including potentially small business
video programming providers, urge the Commission to enhance programming
providers' ability to access information necessary to pursue a rate
complaint against an open video system operator. We also grant
reconsideration on this issue. Local television stations urge the
Commission to require that open video system operators tailor the
distribution of must-carry signals to the parts of their system that
are located within a station's local service area so that stations
electing must-carry status do not have to reimburse the operators for
extensive copyright fees that may result from carriage beyond their
local service areas. We grant reconsideration on this point.
75. Description and Estimate of the Number of Small Entities
Impacted. The RFA defines the term ``small entity'' as having the same
meaning as the terms ``small business,'' ``small organization,'' and
``small governmental jurisdiction,'' and the same meaning as the term
``small business concern'' under Section 3 of the Small Business Act. A
small concern is one which: (1) is independently owned and operated;
(2) is not dominant in its field of operation; and (3) satisfies any
additional criteria established by the Small Business Administration
(SBA). The rules we adopt today apply to municipalities, television
stations, and business video programming providers. The rules also
apply to entities that are likely to become open video system
operators, including local exchange carriers and cable systems.
76. Local Exchange Carriers. Neither the Commission nor SBA has
developed a definition of small providers of local exchange services
(LECs). The closest applicable definition under SBA rules is for
telephone communications companies other than radiotelephone (wireless)
companies. The most reliable source of information regarding the number
of LECs nationwide of which we are aware appears to be the data that we
collect annually in connection with the Telecommunications Relay
Service (TRS). According to our most recent data, 1,347 companies
reported that they were engaged in the provision of local exchange
services. Although it seems certain that some of these carriers are not
independently owned and operated, or have more than 1,500 employees, we
are unable at this time to estimate with greater precision the number
of LECs that would qualify as small business concerns under SBA's
definition. Consequently, we estimate that there are fewer than 1,347
small incumbent LECs that may be affected by this Order.
77. Cable Systems: SBA has developed a definition of small entities
for cable and other pay television services, which includes all such
companies generating less than $11 million in revenue annually. This
definition includes cable systems operators, closed circuit television
services, direct broadcast satellite services, multipoint distribution
systems, satellite master antenna systems and subscription television
services. According to the Census Bureau, there were 1,323 such cable
and other pay television services generating less than $11 million in
revenue that were in operation for at least one year at the end of
1992.
78. The Commission has developed its own definition of a small
cable system operator for the purposes of rate regulation. Under the
Commission's rules, a ``small cable company,'' is one serving fewer
than 400,000 subscribers nationwide. Based on our most recent
information, we estimate that there were 1,439 cable operators that
qualified as small cable system operators at the end of 1995. Since
then, some of those companies may have grown to serve over 400,000
subscribers; thus, we estimate that there are fewer than 1,439 small
entity cable system operators that may be affected by this Order.
79. The Communications Act also contains a definition of a small
cable system operator, which is ``a cable operator that, directly or
through an affiliate, serves in the aggregate fewer than 1 percent of
all subscribers in the United States and is not affiliated with any
entity or entities whose gross annual revenues in the aggregate exceed
$250,000,000.'' The Commission has found that an operator serving fewer
than 617,000 subscribers shall be deemed a small operator. Based on
available data, we find that the number of cable operators serving
617,000 subscribers or less totals 1,450. Although it seems certain
that some of these cable system operators are affiliated with entities
whose gross annual revenues exceed $250,000,000,
[[Page 43172]]
we cannot estimate with greater precision the number of cable system
operators that would qualify as small cable operators under the
definition in the Communications Act.
80. Municipalities: The term ``small governmental jurisdiction'' is
defined as ``governments of * * * districts, with a population of less
than fifty thousand.'' There are 85,006 governmental entities in the
United States. This number includes such entities as states, counties,
cities, utility districts and school districts. We note that any
official actions with respect to open video systems will typically be
undertaken by LFAs, which primarily consist of counties, cities and
towns. Of the 85,006 governmental entities, 38,978 are counties, cities
and towns. The remainder are primarily utility districts, school
districts, and states, which typically are not LFAs. Of the 38,978
counties, cities and towns, 37,566 or 96%, have populations of fewer
than 50,000. Thus, approximately 37,500 ``small governmental
jurisdictions'' may be affected by the rules adopted in this Third
Report and Order and Second Order on Reconsideration.
81. Television Stations: The SBA defines small television
broadcasting stations as television broadcasting stations with $10.5
million or less in annual receipts. 13 CFR Sec. 121.201. According to
the Census Bureau, in 1992, there were 1,155 out of 1,478 operating
television stations reported revenues of less than $10 million for
1992. This represents 78% of all television stations, including non-
commercial stations. The Census Bureau does not separate the revenue
data by commercial and non-commercial stations in this report. Neither
does it allow us to determine the number of stations with a maximum of
10.5 million dollars in annual receipts. Census data also indicates
that 81 percent of operating firms (that owned at least one television
station) had revenues of less than 10 million dollars.
82. Based on the foregoing worst case analysis using census data,
we estimate that our rules will apply to as many as 1,150 commercial
and non-commercial television stations (78 percent of all stations)
that could be classified as small entities. Using a worst case analysis
based on the data in the BIA data base, we estimate that as many as
approximately 771 commercial television stations (about 68 percent of
all commercial televisions stations) could be classified as small
entities. As we noted above, these estimates are based on a definition
that we tentatively believe greatly overstates the number of television
broadcasters that are small businesses. Further, it should be noted
that under the SBA's definitions, revenues of affiliates that are not
television stations should be aggregated with the television station
revenues in determining whether a concern is small. The estimates
overstate the number of small entities since the revenue figures on
which they are based do not include or aggregate such revenues from
non-television affiliated companies.
83. Video Programming Providers: Open video systems are an entirely
new framework for delivering video programming to consumers. No open
video systems have yet been certified to operate. Therefore, it is not
possible at this time to estimate the size or number of video
programming providers that may seek capacity on open video systems. We
anticipate that two types of video programming providers may arise: (1)
video programming providers seeking to utilize an open video system to
offer a package of individual programming services via open video
systems to subscribers; and (2) providers seeking to offer only one
programming service. It is not possible to estimate the impact on or
the number of video programming providers in the first category because
no such entities exist. With respect to the second category, however,
we believe that small cable programming services may provide a
reasonable substitute. The Census Bureau category most similar to cable
programming services is ``motion picture and video tape production.''
SIC Code 7812. Under this category, entities with less than $21.5
million in annual receipts are defined as small motion picture and
video tape production entities. There are a total of 7,265 motion
picture and video tape production entities; of those, 7,002 have annual
receipts of less than $24.5 million. The figures are not broken down
further. We estimate that approximately 7,000 small cable programming
services, or video programming providers, may be affected by the rules
adopted in this Order. The Census Bureau data does not reflect a likely
significant number of small, independent motion picture and video tape
production companies. It is not possible at this time to estimate this
number because no publicly available data is available that is specific
to such entities. We therefore estimate that a minimum of 7,000 small
cable programming services, or video programming providers, may be
affected by this rule.
84. Reporting, Recordkeeping and Other Compliance Requirements. The
following addresses the requirements of regulations adopted, amended,
modified or clarified on reconsideration in the Third Report and Order
and Second Order on Reconsideration. We adopt a definition of
``affiliate'' that will impact open video system operators and their
affiliates, including open video system operators that are small
entities. A primary effect of this rule concerns situations where
demand for carriage exceeds the open video system's channel capacity,
where the open video system operator and its affiliates are prohibited
from selecting the video programming services for carriage on more than
one-third of the activated channel capacity on its system. We revise
FCC Form 1275 to require that applicants to become open video system
operators, including applicants that are small businesses, list the
names of the local communities in which they intend to operate. Listing
the names of the communities will neither require any specialized
skills nor impose significant new burdens.
85. We modify our regulations to require that an open video system
applicant, including those that are small entities, serve a copy of its
FCC Form 1275 on all affected local communities on or before the date
it is filed with the Commission. Merely serving the form on all
affected local communities will not require any specialized skills. We
modify our regulations to require that advertising availabilities (``ad
avails'') associated with a programming service carried by both the
open video system operator or its affiliated video programming provider
and an unaffiliated provider must be shared in an equitable manner.
This may impose burdens on open video system operators, including those
that are small entities, because an operator must now share the
revenues or other benefits of such ad avails with unaffiliated
entities, rather than keeping all such revenues. We find that
implementing this approach requires no specialized skills.
86. We modify our regulations to permit an open video system
operator to recover the gross revenues fee from all video programming
providers using the platform on a proportional basis as an element of
the carriage rate. This approach may impose additional burdens on video
programming providers, including those that are small entities, because
the carriage rate may be increased to reflect the open video system
operator's gross revenues fees. We find that implementing this approach
requires no specialized skills. We modify our regulations to require
open video system operators, in the absence of a negotiated agreement,
to match, rather than share, all public, educational and governmental
(``PEG'')
[[Page 43173]]
access financial contributions of the local cable operator. This
matching requirement could result in additional financial burdens on
open video system operators, including those that are small entities,
because matching the cable operator's PEG access financial
contributions will be more costly in many situations than merely
sharing the cable operator's contributions towards PEG access services,
facilities and equipment, as permitted under the previous approach. We
find that implementing this approach requires no specialized skills.
87. We modify our regulations so that, in areas where a cable
franchise previously existed, the local franchise authority will be
permitted, absent a negotiated agreement, to elect either: (1) to
maintain the previously existing PEG access requirements; or (2) to
have the open video system operator's PEG access obligations determined
by comparison to the nearest operating cable system that has a
commitment to provide PEG access and that serves a franchise area with
a similar population size. Every 15 years thereafter, the LFA is
permitted to make a similar election. This requirement could impose new
burdens on open video system operators, including those that are small
entities, because an operator's PEG access obligations may be increased
when compared to the nearest operating cable system that has a
commitment to provide PEG access and that serves a franchise area with
a similar population size. The order requires a broadcast station to
make the same election for open video systems and cable systems in the
same geographic area, unless the overlapping open video system is
unable to deliver appropriate signals in conformance with the broadcast
station's elections for all cable systems serving the same geographic
area. We estimate that this requirement will have an impact on some
broadcast stations. We anticipate that this requirement will not
require any more professional skills than are required to make such
elections and notify operators in the context of cable systems.
88. The order requires an open video system operator to pay for any
additional copyright fees incurred as a result of carrying a local
signal outside of its local service area. We estimate that this
requirement may affect a limited number of large open video system
operators. We anticipate that distribution of signals outside of a
local market will most likely occur on large systems that overlap
several markets. If additional copyright fees are incurred by an open
video system operator, we do not anticipate that the operator will have
to use any professional skills beyond those already used to comply with
the copyright rules. The order holds an open video system operator
responsible for any violation of our sports exclusivity rules. We
estimate that this requirement will have an impact on open video system
operators and programmers, but will not require the use of any
additional professional skills.
89. We allow open video system operators to permit programming
providers, including those affiliated with the open video system, to
use their own navigational devices, subject to certain conditions. If
the open video system operator permits programming providers to use
their own navigational devices, the open video system operator must
provide a nondiscriminatory guide or menu that all programming
providers must carry, showing all programming available on the systems.
We estimate that the requirement could result in additional burdens on
open video system operators including small open video system
operators. We find that implementing this approach requires no
specialized skills. We clarify our regulations to require that the
preliminary rate estimate provided by an open video system operator to
video programming providers must include, upon request, all information
needed to calculate the average rate paid by unaffiliated programming
providers receiving carriage on the system, including the information
needed for any weighting of the individual carriage rates that the
operator has included in the average rate. This clarification may
impose new burdens on open video system operators, including those that
are small entities, because an open video system operator may have to
prepare this information earlier than under the previous approach.
90. Steps Taken to Minimize the Significant Economic Impact on
Small Entities and Significant Alternatives Rejected. This section
analyzes the impact on small entities in the contexts of regulations
adopted, amended, modified or clarified in this Third Report and Order
and Second Order on Reconsideration. With respect to the definition of
affiliate, we adopt the attribution standard that applies in the cable
program access context. The factual, legal and policy reasons are set
forth in Section II, above. The definition of affiliate we adopt will
create opportunities for unaffiliated programmers, many of which may be
small entities, by promoting diversity of video programming sources. We
rejected several alternatives to this definition of affiliate, as
described in Section II, above. Requiring applicants to list the names
of all local communities in which they intend to operate will not
impose significant new burdens on applicants for the reasons stated
above and will reduce burdens on the affected local communities,
including those that are small entities. This approach will also reduce
the burdens on open video system operators by reducing the potential
for confusion over which local communities will be served by the open
video system.
91. Requiring service of FCC Form 1275 on local communities, as
described above, will impose only minimal new burdens on open video
system operators, including those that are small entities. These
burdens are outweighed by the benefits to local communities, such as
ensuring that a local community without ready access to the Internet or
the Commission's Public Notices will be made aware of the applicant's
filing. The factual, legal and policy reasons are described in Section
III.B. This approach will reduce the burdens on open video system
operators by reducing the potential for confusion over which local
communities will be served by the open video system. The primary
significant alternative is not requiring such service, but as stated,
we find that the benefits to local communities outweigh any minimal
burdens of complying with this rule. Requiring that ad avails
associated with a programming service carried by both the open video
system operator or its affiliated video programming provider and an
unaffiliated provider be shared in an equitable manner may impose
burdens on open video system operators, including those that are small
entities. Such burdens are described in the preceeding section of this
FRFA. However, we find these burdens are outweighed by the benefits of
this requirement, which include providing unaffiliated video
programming providers with an equitable share of income from ad avails
and preventing the open video system operator or its affiliate from
having a significant financial advantage over unaffiliated video
programming providers. The factual, legal and policy reasons are
described in Section III.C. We reduce the burdens on open video system
operators by specifying examples of acceptable methods of sharing ad
avails, including apportioning the relevant revenues or apportioning
the rights to sell the avails themselves. The primary significant
alternative is maintaining our current rules which do not require such
sharing; however, as stated, we find that the benefits to unaffiliated
[[Page 43174]]
video programming providers outweigh the burdens of complying with this
rule.
92. Modifying our rules to permit an open video system operator to
recover the gross revenues fee from all video programming providers
using the platform on a proportional basis as an element of the
carriage rate may impose additional burdens on video programming
providers, including those that are small entities. However, we find
that these burdens, as described above, are outweighed by the benefits
to open video system operators and are in the interests of competition.
Permitting this recoupment of the gross revenues fee should promote
competition on the platform among video programming providers by not
disadvantaging any particular video programming provider with respect
to the payment of the gross revenues fee. The factual, legal and policy
reasons for this approach are described above in Section III.E. This
approach will reduce burdens on open video system operators by
permitting them to recoup a proportion of these costs from video
programming providers. The primary significant alternative we rejected
is maintaining our current regulations which may have permitted
unaffiliated video programming providers to avoid paying any share of
the gross revenues fee; however, as stated, we find that the benefits
to open video system operators outweigh the burdens of this approach on
video programming providers. Requiring open video system operators to
match, rather than share, all PEG access financial contributions of the
local cable operator may impose burdens on open video system operators,
including those that are small entities. These burdens are described in
the preceeding section of this FRFA. We find that these burdens are
outweighed by the benefits of this revised approach. The factual,
policy and legal reasons for this approach are described in Section
III.F. We believe that this approach may reduce burdens on open video
system operators by providing further certainty as to their PEG access
financial obligations. Significant alternatives we rejected include:
(1) maintaining our current rules which permit an open video system
operator to share the PEG access contributions. Generally, we rejected
this alternative because we find that the matching principle more
accurately fulfills the 1996 Act's mandate to impose PEG access
obligations on open video system operators that are ``no greater or
lesser'' than those imposed on cable operators.
93. Modifying a local franchise authority's ability to make an
election concerning the PEG access obligations of an open video system
operator, as described in the preceeding section of this FRFA, may
impose additional burdens on open video system operators, including
those that are small entities. These burdens are described above.
However, we find that these burdens are outweighed by the benefits of
this approach, which include preventing PEG access obligations from
being frozen in perpetuity, thereby providing significant benefits to
local franchise areas and communities. The factual, policy and legal
reasons for this approach are described above in Section III.F. This
approach may reduce burdens on local communities by permitting them to
negotiate with open video system operators with respect to PEG access
obligations, and on open video system operators by providing them
certainty as to their PEG access obligations for a period of up to 15
years. The primary significant alternative we rejected is maintaining
our current regulations which do not permit local franchise areas to
make this election; however, as stated, we find that the benefits to
local communities outweigh the burdens of this approach on open video
system operators. The rule which requires a broadcast station to make
the same election for open video systems and cable systems in the same
geographic area, unless the overlapping open video system is unable to
deliver appropriate signals in conformance with the broadcast station's
elections for all cable systems serving the same geographic area, may
impose a burden on broadcast stations. The policy, factual and legal
reasons for adopting this final rule are set forth in Section
III.F.2.b. of this Order. The rule adopted in this order may reduce
burdens on both open video system operators and television stations by
providing further certainty with respect to the must-carry status of
television stations.
94. The rule which requires an open video system operator to pay
for any additional copyright fees incurred as a result of carrying a
local station beyond its local market area may impose a burden on open
video system operators. It has not been necessary to take significant
steps to minimize the burden on small open video system operators
because we do not believe that this rule is likely to affect many open
video systems and especially not smaller open video systems, because it
will only apply to open video systems capable of carrying broadcast
signals beyond their local service areas. The factual policies and
legal reasons for adopting this final rule are set forth in Section
III.F.2.b. Any burden on open video system operators is outweighed by
the benefit to broadcast stations, especially small stations that might
not be able to elect must-carry status if they were subject to
copyright fees in distant markets. The rule which holds an open video
system operator responsible for any violation of our sports exclusivity
rules may impose a burden on open video system operators. This burden
is justified by the interest in protecting exclusive rights to sports
programming. The factual policies and legal reasons for adopting this
final rule are set forth in Section III.F.4.b. The rule adopted in this
order applies our sports exclusivity rules to open video systems more
fairly than the Commission's previous rule for the reasons cited in
Section III.F.4.b.
95. Allowing open video system operators to permit programming
providers, including those affiliated with the open video system
operator, to use their own navigational devices subject to certain
conditions may impact open video system operators and their affiliates,
including those that are small entities. If an operator permits
programming providers, including its affiliate, to develop their own
navigational devices, the operator must create an electronic menu or
guide containing a non-discriminatory listing of programming providers
or programming services available on the system that every programming
provider must carry. The factual and policy reasons for adopting the
final rule are found in Section III.G., above. We believe that this
rule minimizes burdens on open video system operators and their
programming affiliates, by allowing the affiliated programmers the
flexibility to develop and use their own navigational devices, guides
and menus. However, under the rule adopted, programming providers
cannot be required to use their own navigational devices. Such
providers must, upon request, have access to the navigational device
used by the open video system operator or its affiliate. This
requirement can help minimize burdens on small programming providers by
allowing them access to the navigational device used by the open video
system operator or its affiliate. Requiring that the preliminary rate
estimate provided by an open video system operator to video programming
providers include, upon request, all information needed to calculate
the average rate paid by unaffiliated programming providers receiving
carriage on the system, including the information needed for any
weighting of the individual carriage rates that the operator has
included in
[[Page 43175]]
the average rate, may impose burdens on open video system operator,
including those that are small entities. These burdens are described in
the preceeding section of this FRFA. However, we find that these
burdens are outweighed by the benefits of this clarification, which
include providing an unaffiliated video programming provider with
relevant information regarding whether to pursue a rate complaint
against an open video system operator. The factual, policy and legal
reasons are described above in Section III.H. The primary significant
alternative rejected by the Commission is to maintain our current rules
which do not require a system operator's provision of such information
upon request but only in formal discovery; however, as stated, we find
that the benefits to unaffiliated video programming providers outweigh
the burdens of complying with this rule.
96. Report to Congress. The Commission shall send a copy of this
FRFA, along with this Third Report and Order and Second Order on
Reconsideration, in a report to Congress pursuant to the SBREFA, 5
U.S.C. Sec. 801(a)910(A). A copy of this FRFA will also be published in
the Federal Register.
V. Paperwork Reduction Act of 1995 Analysis
97. The requirements adopted in the Third Report and Order and
Second Order on Reconsideration have been analyzed with respect to the
Paperwork Reduction Act of 1995 (the ``1995 Act'') and found to impose
new or modified information collection requirements on the public.
Implementation of any new or modified requirement will be subject to
approval by the Office of Management and Budget (``OMB'') as prescribed
by the 1995 Act. The Commission, as part of its continuing effort to
reduce paperwork burdens, invites the general public and OMB to comment
on the information collections contained in this Third Report and Order
and Second Order on Reconsideration as required by the 1995 Act. OMB
comments are due October 21, 1996. Comments should address: (1) Whether
the proposed collection of information is necessary for the proper
performance of the functions of the Commission, including whether the
information shall have practical utility; (2) the accuracy of the
Commission's burden estimates; (3) ways to enhance the quality,
utility, and clarity of the information collected; and (4) ways to
minimize the burden of the collection of information on the
respondents, including the use of automated collection techniques or
other forms of information technology.
98. Written comments by the public on the proposed and/or modified
information collections are due on or before September 20, 1996.
Written comments must be submitted by the Office of Management and
Budget (OMB) on the proposed and/or modified information collections on
or before October 21, 1996. A copy of any comments on the information
collections contained herein should be submitted to Dorothy Conway,
Federal Communications Commission, Room 234, 1919 M Street, N.W.,
Washington, DC 20554, or via the Internet to [email protected] and to
Timothy Fain, OMB Desk Officer, 10236, NEOB, 725--17th Street, N.W.,
Washington, DC 20503 or via the Internet to [email protected]. For
additional information concerning the information collections contained
herein contact Dorothy Conway at 202-418-0217, or via the Internet at
[email protected].
VI. Ordering Clauses
99. Accordingly, it is ordered that, pursuant to Sections 4(i),
4(j), 303(r), and 653 of the Communications Act of 1934, as amended, 47
U.S.C. Secs. 154(i), 154(j), 303(r), and 573 the rules, requirements
and policies discussed in this Third Report and Order and Second Order
on Reconsideration ARE ADOPTED and Sections 76.1000 and 76.1500 through
76.1515 of the Commission's rules, 47 CFR Secs. 76.1000 and 76.1500
through 1515, ARE AMENDED as set forth below.
100. It is further ordered that, pursuant to Sections 4(i), 4(j),
303(r), and 653 of the Communications Act of 1934, as amended, 47
U.S.C. Secs. 154(i), 154(j), 303(r), and 573 the rules, the Petitions
for Reconsideration set forth in Appendix A are granted in part and
denied in part, as provided herein.
101. It is further ordered that the requirements and regulations
established in this decision shall become effective upon approval by
OMB of the new information collection requirements adopted herein, but
no sooner than October 21, 1996. The Commission will issue a document
at such time to notify parties that the regulations established in this
decision are effective.
102. It is further ordered that the Motion to Accept Late-Filed
Opposition filed by the Telephone Joint Petitioners is hereby granted.
103. It is further ordered that the Secretary shall send a copy of
this Third Report and Order and Second Order on Reconsideration
including the Final Regulatory Flexibility Analysis, to the Chief
Counsel for Advocacy of the Small Business Administration in accordance
with paragraph 603(a) of the Regulatory Flexibility Act, Public Law No.
96-354, 94 Stat. 1164, 5 U.S.C. Secs. 601 et seq. (1981).
List of Subjects 47 CFR Part 76
Cable television.
Federal Communications Commission
William F. Caton,
Acting Secretary.
Rule Changes
Part 76 of Title 47 of the Code of Federal Regulations is amended
as follows:
PART 76--CABLE TELEVISION SERVICE
1. The authority citation for Part 76 continues to read as follows:
Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a,
307, 308, 309, 312, 315, 317, 325, 503, 521, 522, 531, 532, 533,
534, 535, 536, 537, 543, 544, 544a, 545, 548, 552, 554, 556, 558,
560, 561, 571, 572, 573.
2. Section 76.1500 is amended by redesignating paragraph (g) as
paragraph (h) and adding new paragraph (g) to read as follows:
Sec. 76.1500 Definitions.
* * * * *
(g) Affiliate. For purposes of determining whether a party is an
``affiliate'' as used in this subpart, the definitions contained in the
notes to Sec. 76.501 shall be used, provided, however that:
(1) The single majority shareholder provisions of Note 2(b) to
Sec. 76.501 and the limited partner insulation provisions of Note 2(g)
to Sec. 76.501 shall not apply; and
(2) The provisions of Note 2(a) to Sec. 76.501 regarding five (5)
percent interests shall include all voting or nonvoting stock or
limited partnership equity interests of five (5) percent or more.
* * * * *
3. Section 76.1502 is amended by revising paragraphs (c)(6) and (d)
and by adding paragraph (e) to read as follows:
Sec. 76.1502 Certification.
* * * * *
(c) * * *
(6) A list of the names of the anticipated local communities to be
served upon completion of the system;
* * * * *
(d) On or before the date an FCC Form 1275 is filed with the
Commission, the applicant must serve a copy of its filing
[[Page 43176]]
on all local communities identified pursuant to paragraph (c)(6) of
this section and must include a statement informing the local
communities of the Commission's requirements in paragraph (e) of this
section for filing oppositions and comments. Service by mail is
complete upon mailing, but if mailed, the served documents must be
postmarked at least three days prior to the filing of the FCC Form 1275
with the Commission.
(e) Comments or oppositions to a certification must be filed within
five days of the Commission's receipt of the certification and must be
served on the party that filed the certification. If the Commission
does not disapprove certification within ten days after receipt of an
applicant's request, the certification will be deemed approved. If
disapproved, the applicant may file a revised certification or refile
its original submission with a statement addressing the issues in
dispute. Such refilings must be served on any objecting party or
parties and on all local communities in which the applicant intends to
operate.
4. Section 76.1503 is amended by removing paragraph (c)(2)(iv)(C)
and adding new paragraph (c)(2)(v) to read as follows:
Sec. 76.1503 Carriage of video programming providers on open video
systems.
* * * * *
(c) * * *
(2) * * *
(v) Notwithstanding the general prohibition on an open video system
operator's discrimination among video programming providers contained
in paragraph (a) of this section, a competing, in-region cable operator
or its affiliate(s) that offers cable service to subscribers located in
the service area of an open video system shall not be entitled to
obtain capacity on such an open video system, except:
(A) Where the operator of an open video system determines that
granting access to the competing, in-region cable operator is in its
interests; or
(B) Where a showing is made that facilities-based competition will
not be significantly impeded.
Note to paragraph (c)(2)(v)(B): The Commission finds that
facilities-based competition will not be significantly impeded, for
example, where:
(1) The competing, in-region cable operator and affiliated
systems offer service to less than 20% of the households passed by
the open video system; and
(2) The competing, in-region cable operator and affiliated
systems provide cable service to a total of less than 17,000
subscribers within the open video system's service area.
* * * * *
5. Section 76.1504 is amended by revising paragraph (e) to read as
follows:
Sec. 76.1504 Rates, terms and conditions for carriage on open video
systems.
* * * * *
(e) Determining just and reasonable rates subject to complaints
pursuant to the imputed rate approach or other market based approach.
Carriage rates subject to complaint shall be found just and reasonable
if one of the two following tests are met:
(1) The imputed rate will reflect what the open video system
operator, or its affiliate, ``pays'' for carriage of its own
programming. Use of this approach is appropriate in circumstances where
the pricing is applicable to a new market entrant (the open video
system operator) that will face competition from an existing incumbent
provider (the incumbent cable operator), as opposed to circumstances
where the pricing is used to establish a rate for an essential input
service that is charged to a competing new entrant by an incumbent
provider. With respect to new market entrants, an efficient component
pricing model will produce rates that encourage market entry. If the
carriage rate to an unaffiliated program provider surpasses what an
operator earns from carrying its own programming, the rate can be
presumed to exceed a just and reasonable level. An open video system
operator's price to its subscribers will be determined by several
separate costs components. One general category are those costs related
to the creative development and production of programming. A second
category are costs associated with packaging various programs for the
open video system operator's offering. A third category related to the
infrastructure or engineering costs identified with building and
maintaining the open video system. Contained in each is a profit
allowance attributed to the economic value of each component. When an
open video system operator provides only carriage through its
infrastructure, however, the programming and packaging flows from the
independent program provider, who bears the cost. The open video system
operator avoids programming and packaging costs, including profits.
These avoided costs should not be reflected in the price charged an
independent program provider for carriage. The imputed rate also seeks
to recognize the loss of subscribers to the open video system
operator's programming package resulting from carrying competing
programming.
Note to paragraph (e)(1): Examples of specific ``avoided costs''
include:
(1) All amounts paid to studios, syndicators, networks or
others, including but not limited to payments for programming and
all related rights;
(2) Packaging, including marketing and other fees;
(3) Talent fees; and
(4) A reasonable overhead allowance for affiliated video service
support.
(2) An open video system operator can demonstrate that its carriage
service rates are just and reasonable through other market based
approaches.
6. Section 76.1505 is amended by revising paragraphs (d)(1),
(d)(4), (d)(6), the note to paragraph (d)(6), and (d)(8) to read as
follows:
Sec. 76.1505 Public, educational and governmental access.
* * * * *
(d) * * *
(1) The open video system operator must satisfy the same public,
educational and governmental access obligations as the local cable
operator by providing the same amount of channel capacity for public,
educational and governmental access and by matching the local cable
operator's annual financial contributions towards public, educational
and governmental access services, facilities and equipment that are
actually used for public, educational and governmental access services,
facilities and equipment. For in-kind contributions (e.g., cameras,
production studios), the open video system operator may satisfy its
statutory obligation by negotiating mutually agreeable terms with the
local cable operator, so that public, educational and governmental
access services to the community is improved or increased. If such
terms cannot be agreed upon, the open video system operator must pay
the local franchising authority the monetary equivalent of the local
cable operator's depreciated in-kind contribution, or, in the case of
facilities, the annual amortization value. Any matching contributions
provided by the open video system operator must be used to fund
activities arising under Section 611 of the Communications Act.
* * * * *
(4) The costs of connection to the cable operator's public,
educational and governmental access channel feed shall be borne by the
open video system operator. Such costs shall be counted towards the
open video system operator's matching financial contributions set forth
in paragraph (d)(4) of this section.
* * * * *
(6) Where there is no existing local cable operator, the open video
system operator must make a reasonable
[[Page 43177]]
amount of channel capacity available for public, educational and
governmental use, as well as provide reasonable support for services,
facilities and equipment relating to such public, educational and
governmental use. If a franchise agreement previously existed in that
franchise area, the local franchising authority may elect either to
impose the previously existing public, educational and governmental
access obligations or determine the open video system operator's
public, educational and governmental access obligations by comparison
to the franchise agreement for the nearest operating cable system that
has a commitment to provide public, educational and governmental access
and that serves a franchise area with a similar population size. The
local franchising authority shall be permitted to make a similar
election every 15 years thereafter. Absent a previous franchise
agreement, the open video system operator shall be required to provide
channel capacity, services, facilities and equipment relating to
public, educational and governmental access equivalent to that
prescribed in the franchise agreement(s) for the nearest operating
cable system with a commitment to provide public, educational and
governmental access and that serves a franchise area with a similar
population size.
Note to paragraph (d)(6): This paragraph shall apply, for
example, if a cable operator converts its cable system to an open
video system under Sec. 76.1501.
* * * * *
(8) The open video system operator and/or the local franchising
authority may file a complaint with the Commission, pursuant to our
dispute resolution procedures set forth in Sec. 76.1514, if the open
video system operator and the local franchising authority cannot agree
as to the application of the Commission's rules regarding the open
video system operator's public, educational and governmental access
obligations under paragraph (d) of this section.
* * * * *
7. Section 76.1506 is amended by revising paragraphs (d), (l)(3)
and (m)(2) to read as follows:
Sec. 76.1506 Carriage of television broadcast signals.
* * * * *
(d) Definitions applicable to the must-carry rules. Section 76.55
shall apply to all open video systems in accordance with the provisions
contained in this section. Any provision of Sec. 76.55 that refers to a
``cable system'' shall apply to an open video system. Any provision of
Sec. 76.55 that refers to a ``cable operator'' shall apply to an open
video system operator. Any provision of Sec. 76.55 that refers to the
``principal headend'' of a cable system as defined in Sec. 76.5(pp)
shall apply to the equivalent of the principal headend of an open video
system. Any provision of Sec. 76.55 that refers to a ``franchise area''
shall apply to the service area of an open video system. The provisions
of Sec. 76.55 that permit cable operators to refuse carriage of signals
considered distant signals for copyright purposes shall not apply to
open video system operators. If an open video system operator cannot
limit its distribution of must-carry signals to the local service area
of broadcast stations as used in 17 U.S.C. 111(d), it will be liable
for any increase in copyright fees assessed for distant signal carriage
under 17 U.S.C. 111.
* * * * *
(l) * * *
(3) Television broadcast stations are required to make the same
election for open video systems and cable systems serving the same
geographic area, unless the overlapping open video system is unable to
deliver appropriate signals in conformance with the broadcast station's
elections for all cable systems serving the same geographic area.
* * * * *
(m) * * *
(2) Notification of programming to be deleted pursuant to this
section shall be served on the open video system operator. The open
video system operator shall make all notifications immediately
available to the appropriate video programming providers on its open
video system. Operators may effect the deletion of signals for which
they have received deletion notices unless they receive notice within a
reasonable time from the appropriate programming provider that the
rights claimed are invalid. The open video system operator shall not
delete signals for which it has received notice from the programming
provider that the rights claimed are invalid. An open video system
operator shall be subject to sanctions for any violation of this
subpart. An open video system operator may require indemnification as a
condition of carriage for any sanctions it may incur in reliance on a
programmer's claim that certain exclusive or non-duplication rights are
invalid.
* * * * *
8. Section 76.1511 is revised to read as follows:
Sec. 76.1511 Fees.
An open video system operator may be subject to the payment of fees
on the gross revenues of the operator for the provision of cable
service imposed by a local franchising authority or other governmental
entity, in lieu of the franchise fees permitted under Section 622 of
the Communications Act. Local governments shall have the authority to
assess and receive the gross revenue fee. Gross revenues under this
paragraph means all gross revenues received by an open video system
operator or its affiliates, including all revenues received from
subscribers and all carriage revenues received from unaffiliated video
programming providers. In addition gross revenues under this paragraph
includes any advertising revenues received by an open video system
operator or its affiliates in connection with the provision of video
programming, where such revenues are included in the calculation of the
incumbent cable operator's cable franchise fee. Gross revenues does not
include revenues collected by unaffiliated video programming providers,
such as subscriber or advertising revenues. Any gross revenues fee that
the open video system operator or its affiliate collects from
subscribers or video programming providers shall be excluded from gross
revenues. An operator of an open video system or any programming
provider may designate that portion of a subscriber's bill attributable
to the fee as a separate item on the bill. An operator of an open video
system may recover the gross revenue fee from programming providers on
a proportional basis as an element of the carriage rate.
9. Section 76.1512 is amended by revising paragraphs (b), (c) and
(d) to read as follows:
Sec. 76.1512 Programming information.
* * * * *
(b) In accordance with paragraph (a) of this section:
(1) An open video system operator shall not discriminate in favor
of itself or its affiliate on any navigational device, guide or menu;
(2) An open video system operator shall not omit television
broadcast stations or other unaffiliated video programming services
carried on the open video system from any navigational device, guide
(electronic or paper) or menu;
(3) An open video system operator shall not restrict a video
programming provider's ability to use part of the provider's channel
capacity to provide an individualized guide or menu to the provider's
subscribers;
(4) Where an open video system operator provides no navigational
device, guide or menu, its affiliate's
[[Page 43178]]
navigational device, guide or menu shall be subject to the requirements
of Section 653(b)(1)(E) of the Communications Act;
(5) An open video system operator may permit video programming
providers, including its affiliate, to develop and use their own
navigational devices. If an open video system operator permits video
programming providers, including its affiliate, to develop and use
their own navigational devices, the operator must create an electronic
menu or guide that all video programming providers must carry
containing a non-discriminatory listing of programming providers or
programming services available on the system and informing the viewer
how to obtain additional information on each of the services listed;
(6) An open video system operator must grant access, for
programming providers that do not wish to use their own navigational
device, to the navigational device used by the open video system
operator or its affiliate; and
(7) If an operator provides an electronic guide or menu that
complies with paragraph (b)(5) of this section, its programming
affiliate may create its own menu or guide without being subject to the
requirements of Section 653(b)(1)(E) of the Communications Act.
(c) An open video system operator shall ensure that video
programming providers or copyright holders (or both) are able to
suitably and uniquely identify their programming services to
subscribers.
(d) An open video system operator shall transmit programming
identification without change or alteration if such identification is
transmitted as part of the programming signal.
10. Section 76.1513 is amended by adding a note following paragraph
(e)(1)(viii) to read as follows:
Sec. 76.1513 Dispute resolution.
* * * * *
(e) * * *
(1) * * *
(viii) * * *
Note to paragraph (e)(1)(viii): Upon request by a complainant,
the preliminary carriage rate estimate shall include a calculation
of the average of the carriage rates paid by the unaffiliated video
programming providers receiving carriage from the open video system
operator, including the information needed for any weighting of the
individual carriage rates that the operator has included in the
average rate.
* * * * *
11. Section 76.1514 is amended by revising paragraph (b) to read as
follows:
Sec. 76.1514 Bundling of video and local exchange services.
* * * * *
(b) Any local exchange carrier offering such a package must impute
the unbundled tariff rate for the regulated service.
[FR Doc. 96-21262 Filed 8-20-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-21242 Atlantic Tuna Fisheries; Fishery Closure
[Federal Register Volume 61, Number 163 (Wednesday, August 21, 1996)]
[Rules and Regulations]
[Pages 43184-43185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21242]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 285
[I.D. 081596C]
Atlantic Tuna Fisheries; Fishery Closure
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
-----------------------------------------------------------------------
SUMMARY: NMFS has determined that the Atlantic bluefin tuna (ABT)
General category quota for the August period will be attained by August
17, 1996. Therefore, the General category fishery for the August period
will be closed effective at 11:30 p.m. on August 17, 1996. This action
is being taken to prevent overharvest of the adjusted 193 metric tons
(mt) subquota for the August period.
EFFECTIVE DATE: The General category closure for the August period is
effective 11:30 p.m. local time on August 17, 1996, through August 31,
1996.
FOR FURTHER INFORMATION CONTACT: John Kelly, 301-713-2347, or Mark
Murray-Brown, 508-281-9260.
SUPPLEMENTARY INFORMATION: Regulations implemented under the authority
of the Atlantic Tunas Convention Act (16 U.S.C. 971 et seq.) governing
the harvest of ABT by persons and vessels subject to U.S. jurisdiction
are found at 50 CFR part 285. Section 285.22 subdivides the U.S. quota
recommended by the International Commission for the Conservation of
Atlantic Tunas among the various domestic fishing categories.
General Category Closure
NMFS is required, under 285.20(b)(1), to monitor the catch and
landing statistics and, on the basis of these statistics, to project a
date when the catch of ABT will equal the quota and publish a Federal
Register announcement to close the applicable fishery.
Implementing regulations for the Atlantic tuna fisheries at 50 CFR
285.22 provide for a quota of 186 mt of large
[[Page 43185]]
medium and giant ABT to be harvested from the regulatory area by
vessels fishing under the General category quota during the period
beginning August 1 and ending August 31. Due to an underage of 7 mt in
the June/July subquota, the August subquota was adjusted to 193 mt.
Based on reported catch and effort, NMFS projects that this revised
quota will be reached by August 17, 1996. Therefore, fishing for,
retaining, possessing, or landing large medium or giant ABT under the
General category quota must cease at 11:30 p.m. local time August 17,
1996. The General category will reopen September 1, 1996 with a quota
of 159 mt for the September period, plus any underage from the August
period.
Classification
This action is taken under 50 CFR 285.20(b) and 50 CFR 285.22 and
is exempt from review under E.O. 12866.
Authority: 16 U.S.C. 971 et seq.
Dated: August 15, 1996.
Richard H. Schaefer,
Director, Office of Fisheries Conservation and Management, National
Marine Fisheries Service.
[FR Doc. 96-21242 Filed 8-15-96; 5:01 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-21238 Atlantic Shark Fisheries; Large Coastal Sharks Closure
[Federal Register Volume 61, Number 163 (Wednesday, August 21, 1996)]
[Rules and Regulations]
[Page 43185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21238]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
50 CFR Part 678
[I.D. 072396A]
Atlantic Shark Fisheries; Large Coastal Sharks Closure
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
-----------------------------------------------------------------------
SUMMARY: NMFS is closing the commercial fishery for large coastal
sharks conducted by vessels with a Federal Atlantic Shark permit in the
Western North Atlantic Ocean, including the Gulf of Mexico and
Caribbean Sea. This action is necessary to prevent exceeding the
semiannual quota for the period July 1 through December 31, 1996.
EFFECTIVE DATE: 2330 hours local time August 31, 1996, through December
31, 1996.
FOR FURTHER INFORMATION CONTACT: C. Michael Bailey, 301-713-2347; Mark
Murray-Brown, 508-281-9260; or John M. Ward, 813-570-5335.
SUPPLEMENTARY INFORMATION: The Atlantic shark fishery is managed by
NMFS according to the fishery management plan (FMP) for Atlantic Sharks
under authority of the Magnuson Fishery Conservation and Management Act
(16 U.S.C. 1801 et seq.). Fishing by U.S. vessels is governed by
regulations implementing the FMP at 50 CFR part 678.
Section 678.24(b) of the regulations provides for two semiannual
quotas of large coastal sharks to be harvested from Atlantic,
Caribbean, and Gulf of Mexico waters by commercial fishermen. The
second semiannual quota is available for harvest from July 1 through
December 31, 1996.
The Assistant Administrator for Fisheries, NOAA (AA), is required
under Sec. 678.25 to monitor the catch and landing statistics and, on
the basis of these statistics, to determine when the catch of Atlantic,
Caribbean, and Gulf of Mexico sharks will equal any quota under
Sec. 678.24(b). When shark harvests reach, or are projected to reach, a
quota established under Sec. 678.24(b), the AA is further required
under Sec. 678.25 to close the fishery.
The AA has determined, based on the reported catch and other
relevant factors, that the semiannual quota for the period July 1
through December 31, 1996, for large coastal sharks, in or from the
Western North Atlantic Ocean, including the Gulf of Mexico and
Caribbean Sea, will be attained by August 31, 1996. During this
closure, for vessels issued a permit under Sec. 678.4, retention of
large coastal sharks from the management unit is prohibited, unless the
vessel is operating as a charter vessel or headboat, in which case the
vessel limit per trip is four large coastal sharks. In addition, the
sale, purchase, trade, or barter or attempted sale, purchase, trade, or
barter of carcasses and/or fins of large coastal sharks harvested by a
person aboard any vessel that has been issued a permit under
Sec. 678.4, is prohibited, except for those that were harvested, off-
loaded, and sold, traded, or bartered prior to August 31, 1996, and
were held in storage by a dealer or processor.
Vessels that have been issued a Federal permit under Sec. 678.4 are
reminded that as a condition of permit issuance, the vessel may not
retain a large coastal shark during the closure, except as provided by
Sec. 678.24(a)(2). Fishing for pelagic and small coastal sharks may
continue. The recreational fishery is not affected by this closure.
Classification
This action is taken under 50 CFR part 678 and is exempt from
review under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: August 15, 1996.
Richard H. Schaefer
Director, Office of Fisheries Conservation and Mangement, National
Marine Fisheries Service.
[FR Doc. 96-21238 Filed 8-15-96; 5:01 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-21236 Future Recovery of Losses Paid on Liquidated Guaranteed Loans
[Federal Register Volume 61, Number 163 (Wednesday, August 21, 1996)]
[Rules and Regulations]
[Pages 43147-43149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21236]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Rural Housing Service
Rural Business-Cooperative Service
Rural Utilities Service
Farm Service Agency
7 CFR Part 1980
RIN 0575-AB29
Future Recovery of Losses Paid on Liquidated Guaranteed Loans
AGENCY: Farm Service Agency, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Agency is amending its guaranteed farm credit program
regulations to establish new policies and procedures on the release of
guaranteed loan borrowers and cosigners from liability. This action
will define guaranteed lenders' release authorities and standardize
procedures for reporting post loss claim collection results to the
Agency. The intended effect is to maximize collections from unsatisfied
guaranteed accounts and to minimize the financial loss to the
Government.
EFFECTIVE DATE: September 20, 1996.
FOR FURTHER INFORMATION CONTACT: Phillip Elder, Senior Loan Officer,
Farm Service Agency (FSA), Farm Credit Programs Loan Servicing
Division, U.S. Department of Agriculture, P.O. Box 2415, Ag Box Code
0523, Washington, D.C. 20013-2415, or at (202) 720-9053.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This rule has been reviewed under E.O. 12866 and has been
determined to be a significant regulatory action.
Executive Order 12372
1. For the reasons set forth in the final rule related to Notice 7
CFR Part 3015, Subpart V (48 FR 29115, June 24, 1983) and FmHA
Instruction 1940-J, Farm Ownership Loans, Farm Operating Loans, and
Emergency Loans are excluded from the scope of E.O. 12372, which
requires intergovernmental consultation with state and local officials.
2. The Soil and Water Loan Program is subject to and has met the
provisions of E.O. 12372 and FmHA Instruction 1940-J.
Federal Assistance Program
These changes affect the following FSA programs as listed in the
Catalog of Federal Domestic Assistance:
10.406--Farm Operating Loans
10.407--Farm Ownership Loans
10.416--Soil and Water Loans
Environmental Impact Statement
This document has been reviewed in accordance with 7 CFR Part 1940,
Subpart G, ``Environmental Program.'' It is the determination of the
issuing agencies that this action does not constitute a major Federal
action significantly affecting the quality of the human environment,
and in accordance with the National Environmental Policy Act of 1969,
Pub.L. 91-190, an Environmental Impact Statement is not required.
Executive Order 12778
This final rule has been reviewed in accordance with E.O. 12778,
Civil
[[Page 43148]]
Justice Reform. In accordance with this rule: (1) All State and local
laws and regulations that are in conflict with this rule will be
preempted; (2) no retroactive effect will be given to this rule; and
(3) administrative proceedings in accordance with 7 CFR parts 11 and
780 must be exhausted before bringing suit in court challenging action
taken under this rule unless those regulations specifically allow
bringing suit at an earlier time.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (Pub. L.
104-13), a notice and request for comments (61 FR 11183, March 19,
1996) was published announcing the Agency's request for an addendum to
an approved information collection for the farm credit programs
guaranteed loan regulations required by the amendments to 7 CFR part
1980 set forth in this rule. No comments were received. The existing
information collection requirements were previously approved by OMB
under the provisions of 44 U.S.C. 35 and assigned OMB control number
0575-0079, which was later renumbered 0560-0155. A revised information
collection submission will be submitted to OMB for their approval.
Unfunded Mandates
This rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, and tribal
governments or the private sector. Thus today's rule is not subject to
the requirements of sections 202 and 205 of the UMRA.
Discussion of Final Rule
This final rule establishes standardized procedures for following
up with lenders for future collections on loans that resulted in a loss
to the Government. These policy changes will strengthen Agency
regulations on monitoring loan accounts and will maximize recoveries on
liquidated accounts. The proposed rule was published on May 5, 1994,
(59 FR 23173-74) with a comment period ending July 5, 1994.
This change is being made in response to recommendations from the
USDA, Office of Inspector General (OIG). OIG found that the Farmers
Home Administration (FmHA) had no procedures to monitor subsequent
recoveries by lenders from defaulted guaranteed loan borrowers (OIG
Audit Number 04099-118-Te, June 11, 1987). The audit recommendations
involved guaranteed farmer programs loans of FmHA. The FmHA Farmer
Programs loans are now administered as Farm Credit Programs by FSA. The
other guaranteed loan programs of FmHA are now administered by various
agencies. Water and Waste disposal facility loans are administered by
the Rural Utilities Service (RUS), Housing and Community Programs loans
are administered by the Rural Housing Service (RHS) and Business and
Industrial loans and Nonprofit National Corporations loans are
administered by the Rural Business-Cooperative Service (RBS). This
reorganization was authorized by the Federal Crop Insurance Reform and
Department of Agriculture Reorganization Act of 1994 (Pub. L. 103-354).
The proposed rule contained changes to 7 CFR part 1980 subpart A, in
addition to subpart B. Since USDA has been reorganized, the rule has
been revised to delete the proposed changes to subpart A. FSA, RUS,
RHS, and RBS are jointly issuing this rule due to joint ownership of
chapter XVIII, title 7, Code of Federal Regulations, although FSA will
be affected only. RUS, RHS, and RBS are in the process of revising the
regulations for their respective agencies.
Five comment letters were received by the close of business on July
5, 1994. Comments were received from several groups representing the
farming and lending community, including a State Commissioner of
Agriculture, FSA employees, the American Bankers Association and the
Farm Credit Council.
One commenter suggested that the reporting requirements would place
additional burdens upon the County Office and that the FSA St. Louis
KCMO Finance Office (formerly FmHA National Finance Office) has the
capability to generate these reports. However, the County Office is
currently required to follow up with lenders for a 5-year period. This
regulation simply provides a specific method of reporting. Requiring
the County Supervisor to perform the follow-up contact assures that a
response will be provided and direct contact is assured. This commenter
also stated that the regulation should address what happens after the
3-year period of follow-up with the lender is completed. Consequently,
the Agency has clarified the rule. Also, the Agency plans to use
internal Administrative directives and instructions to address
additional issues concerning actions after the 3-year follow-up is
complete.
One commenter was concerned about the additional reporting burden
that this rule will place on lenders. However, the regulation simply
provides for a standardized method of reporting; information lenders
are already responsible for gathering. Lenders are currently required
to monitor liquidated guaranteed loan accounts for a 5-year period.
This regulation simply provides a format for reporting their findings,
where none existed previously. The internal use forms are not
published, but are available for public viewing by contacting the FSA
Management Services Division, Information Management Branch, PO Box
2415, Washington, D.C. 20013-2415.
A commenter suggested that ``Adequate Compensation/Consideration''
in the proposed rule be removed and replaced with a reference to FmHA
Instruction 1956-B, ``Debt Settlement--Farmer Programs and Housing.''
This same commenter stated that the Agency would save a considerable
amount of cost and time if the borrower was encouraged to apply for
debt settlement at the time the loss claim is submitted. FmHA
Instruction 1956-B applies to debts owed the Federal Government for
certain USDA loan programs. However, under a Loan Note Guarantee or
Contract of Guarantee, the debt is owed to the lender and guaranteed
debts are settled by the lender. FSA as guarantor only reviews
information provided by the lender to determine whether or not a
release request will be concurred with. FSA, in its role as loan
guarantor, does not work directly with the borrower. After a loss claim
is paid, the Government does not become a creditor of the farmer or
rancher. If the debt is not released, the lender has the responsibility
to follow up with the borrower after a loss claim is paid and remit the
correct percentage back to the Government in accordance with their
guarantee. Success with recoveries after liquidation and findings of
OIG audits discourage a simultaneous loss claim payment, settlement and
release. Therefore, this suggestion was not adopted.
Another commenter noted that the proposed rule stated in part ``A
lender may, with FmHA's concurrence, release a borrower and/or cosigner
from liability only when adequate compensation/consideration is
received.'' This commenter recommended that this statement be changed
to the following: ``A lender may, with FSA's concurrence, release a
borrower or cosigner from liability only when adequate compensation is
received or it is mutually agreed that there is very little probability
of recovery from the borrower or cosigner.'' We have adopted this
comment in the final rule. This same commenter stated that the intended
effect of the proposed rule is a positive move to minimize losses
incurred by
[[Page 43149]]
FSA and ensure lenders continue collection efforts on those loans in
which the borrower has not been released from liability.
Another interested party commented that the annual audit rules are
an expense and a burden to them. This respondent indicated a desire for
removal of all loss claim follow-up requirements from guaranteed loan
regulations. The Agency has determined that current requirements will
be reduced by this rule and the requirements of this rule are justified
by the benefits of program participation.
As discussed above, administrative procedures in the proposed rule
will be included in internal Agency instructions. Also, as part of this
final rule, the agencies are removing some administrative provisions
from the Federal Register and are changing references from ``FmHA or
its successor agency under Public Law 103-354'' to ``the Agency.''
Other minor wording changes are also being made.
List of Subjects in 7 CFR Part 1980
Administrative practice and procedures, Agriculture, Business and
Industry, Community Facilities, credit, Loan programs--Agriculture,
Loan Programs--Business and industry, Loan programs--Housing and
community development, low and moderate income housing, reporting and
recordkeeping requirements, rural areas.
Therefore, chapter XVIII, title 7, Code of Federal Regulations is
amended as follows:
PART 1980--GENERAL
1. The authority citation for part 1980 is revised to read as
follows:
Authority: 5 U.S.C. 301; 7 U.S.C. 1989; 42 U.S.C. 1480; 7 CFR
2.23 and 2.70.
Subpart B--Farmer Programs Loans
2. Section 1980.146 is amended by:
a. removing the words ``FmHA or its successor agency under Public
Law 103-354'' wherever it appears in paragraphs (e)(2)(iv)(B) and
(e)(4) and adding the words ``the Agency'' in its place;
b. removing the words ``FmHA or its successor agency under Public
Law 103-354'' in the title, second sentence, and the last place it
appears in the last sentence of paragraph (e)(5) and adding the words
``the Agency'' in its place;
c. removing the words ``Form FmHA or its successor agency under
Public Law 103-354'' in the first place it appears in the last sentence
of paragraph (e)(5) and adding the words ``Form FmHA'' in its place;
d. removing the words ``FmHA or its successor agency under Public
Law 103-354'' wherever it appears in paragraphs (e)(7) and (e)(8) and
adding the words ``the Agency'' in its place; and
e. revising paragraphs (e)(2)(iv)(A) and (e)(3) to read as follows:
Sec. 1980.146 Liquidation.
* * * * *
(e) * * *
(2) * * *
(iv) * * *
(A) If the loss is greater than the estimated loss, the Agency will
pay the additional amount owed to the lender.
(B) * * *
(3) Future Recovery. The lender will remit any future recoveries to
the Agency in proportion to the percentage of guarantee in accordance
with the Lender's Agreement until the account is paid in full or
otherwise satisfied. A lender may, with Agency concurrence, release a
borrower or cosigner from liability when adequate compensation is
received or it is mutually agreed that there is very little probability
of future recovery from the borrower or cosigner.
* * * * *
Sec. 1980.174 [Removed and Reserved.]
3. In part 1980 Sec. 1980.147 is removed and reserved.
Signed in Washington, DC, on August 12, 1996.
Eugene Moos,
Under Secretary for Farm and Foreign Agricultural Services.
[FR Doc. 96-21236 Filed 8-20-96; 8:45 am]
BILLING CODE 3410-05-P
Complete official Federal Register PDF
FR Doc. 96-21232 Airworthiness Directives; Boeing Model 767 Series Airplanes
[Federal Register Volume 61, Number 163 (Wednesday, August 21, 1996)]
[Rules and Regulations]
[Pages 43155-43156]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21232]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 95-NM-124-AD; Amendment 39-9687; AD 96-14-05]
RIN 2120-AA64
Airworthiness Directives; Boeing Model 767 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; correction.
-----------------------------------------------------------------------
SUMMARY: This document corrects information that appeared in
airworthiness directive (AD) 96-14-05, amendment 39-9687, which was
published in the Federal Register on July 9, 1996 (61 FR 35938). This
AD is applicable to certain Boeing Model 767 series airplanes. Among
other things, it supersedes a previously issued AD, requires
inspections of the control rods of the outboard leading edge slat, and
requires the installation of a modification that terminates the
requirement for repetitive inspections. This action corrects the listed
line numbers of airplanes subject to certain parts of the rule.
DATES: Effective August 13, 1996.
The incorporation by reference of certain publications listed in
the regulations was previously approved by the Director of the Federal
Register as of August 13, 1996 (61 FR 35938, July 9, 1996).
FOR FURTHER INFORMATION CONTACT: Kristin Larson, Aerospace Engineer,
Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft
Certification Office, 1601 Lind Avenue, SW., Renton, Washington;
telephone (206) 227-1760; fax (206) 227-1181.
SUPPLEMENTARY INFORMATION: On June 27, 1996, the FAA issued AD 96-14-
05, amendment 39-9687; (61 FR 35938, July 9, 1996), which is applicable
to certain Boeing Model 767 series airplanes and supersedes AD 90-20-
16, amendment 39-6726 (55 FR 37858, September 14, 1990). That AD
requires a one-time visual inspection to determine the date of
manufacture of the control rods of the outboard leading edge slat, and
follow-on actions (i.e., repetitive ultrasonic inspection), if
necessary. It also requires replacement of the control rod ends and
attach bolts, for certain airplanes. For operators accomplishing the
(follow-on) repetitive ultrasonic inspections, the AD requires the
replacement of the control rod with a new control rod manufactured
after June 1983; this replacement constitutes terminating action for
the repetitive inspections.
As published, paragraph (b) of AD 96-14-05 indicated that only
certain airplanes were subject to its requirements. Those airplanes
were specified as ones having line numbers ``1 through 264 inclusive,
and 266 through 273 inclusive.'' However, due to a typographical error,
the final number in this sequence of line numbers was incorrect: what
was published as line number ``273,'' should have been line number
``272.'' The airplane having line number 273 is not subject to the
requirements of paragraph (b) of this AD.
Action is taken herein to correct this typographical error in
paragraph (b).
Since no other part of the regulatory information has been changed,
the final rule is not being republished.
The effective date of the AD remains August 13, 1996.
Accordingly, the final rule document (FR DOC. 96-16950), which was
published on July 9, 1996, at 61 FR 35938, is corrected as follows:
Sec. 39.13 [Corrected]
On page 35940, in the second column, the text of paragraph (b) of
AD 96-14-05, amendment 39-9687, is corrected to read as follows:
* * * * *
(b) For airplanes having line number 1 through 264 inclusive, and
266 through 272 inclusive: Within the next 2,500 landings or 18 months
after October 23, 1990 (the effective date of AD 90-20-16, amendment
39-6726, whichever occurs first, replace the control rod end and attach
bolt with a new configuration control rod end and attach bolt on each
wing, in accordance
[[Page 43156]]
with Boeing Service Bulletin 767-57-0021, Revision 1, dated September
14, 1989; Revision 2, dated July 26, 1990; or Revision 5, dated June
15, 1995.
* * * * *
Issued in Renton, Washington, on August 14, 1996.
Neil D. Schalekamp,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-21232 Filed 8-20-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-21229 Indirect Food Additives: Adjuvants, Production Aids, and Sanitizers
[Federal Register Volume 61, Number 163 (Wednesday, August 21, 1996)]
[Rules and Regulations]
[Pages 43156-43158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21229]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 178
[Docket No. 92F-0475]
Indirect Food Additives: Adjuvants, Production Aids, and
Sanitizers
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is amending the food
additive regulations to provide for the safe use of phosphorylated tall
oil fatty acids as pigment dispersants in polymeric films intended for
use in contact with food. This action is in response to a petition
filed by SCM Chemicals.
DATES: Effective August 21, 1996; written objections and requests for a
hearing September 20, 1996.
ADDRESSES: Submit written objections to the Dockets Management Branch
(HFA-305), Food and Drug Administration, 12420 Parklawn Dr., rm. 1-23,
Rockville, MD 20857.
FOR FURTHER INFORMATION CONTACT: Vir D. Anand, Center for Food Safety
and Applied Nutrition (HFS-216), Food and Drug Administration, 200 C
St. SW., Washington, DC 20204, 202-418-3081.
SUPPLEMENTARY INFORMATION: In a notice published in the Federal
Register of February 9, 1993 (58 FR 7789), FDA announced that a food
additive petition (FAP 3B4350) had been filed by SCM Chemicals, c/o
1001 G St. NW., suite 500 West, Washington, DC 20001 (formerly, 1100 G
St. NW., Washington, DC 20001). The petition proposed to amend the food
additive regulations to add a new Sec. 178.3725 Pigment dispersants (21
CFR 178.3725) to provide for the safe use of phosphorylated tall oil
fatty acids as pigment dispersants in polymeric films intended for use
in contact with food.
In the FDA evaluation of the safety of this food additive, the
agency has reviewed the safety of the additive itself and the chemical
impurities that may be present in the additive resulting from its
manufacturing process. Although the additive itself has not been shown
to cause cancer, it has been found to contain minute amounts of
dimethyl hydrogen phosphite, which is a carcinogenic impurity resulting
from the manufacture of the additive. Residual amounts of reactants and
manufacturing aids, such as dimethyl hydrogen phosphite, are commonly
found as contaminants in chemical products, including food additives.
I. Determination of Safety
Under the so-called ``general safety clause'' section 409(c)(A) of
the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C.
348(c)(A)), a food additive cannot be approved for a particular use
unless a fair evaluation of the data available to FDA establishes that
the additive is safe for that use. FDA's food additive regulations (21
CFR 170.3(i)) define safe as ``a reasonable certainty in the minds of
competent scientists that the substance is not harmful under the
intended conditions of use.''
The food additive anticancer, or Delaney, clause of the act section
409(c)(3)(A) provides that no food additive shall be deemed safe if it
is found to induce cancer when ingested by man or animal. Importantly,
however, the Delaney clause applies to the additive itself and not to
the impurities in the additive. That is, where an additive itself has
not been shown to cause cancer, but contains a carcinogenic impurity,
the additive is properly evaluated under the general safety clause
using risk assessment procedures to determine whether there is a
reasonable certainty that no harm will result from the proposed use of
the additive, Scott v. FDA, 728 F.2d 322 (6th Cir. 1984).
II. Safety of Petitioned Use of the Additive
FDA estimates that the petitioned use of the additive,
phosphorylated tall oil fatty acids, will result in exposure to no
greater than 2.3 parts per billion (ppb) of the additive in the daily
diet (3 kilogram (kg)) or an estimated daily intake (EDI) of 7
microgram per person per day (g/person/day) (Ref. 1).
FDA does not ordinarily consider chronic toxicological studies to
be necessary to determine the safety of an additive whose use will
result in such low exposure levels (Ref. 2), and the agency has not
required such testing here. However, the agency has reviewed the
available toxicological data on the additive and concludes that the
estimated small dietary exposure to this additive is safe.
FDA has evaluated the safety of this additive under the general
safety clause, considering all available data and using risk assessment
procedures to estimate the upper-bound limit of risk presented by
dimethyl hydrogen phosphite, the carcinogenic chemical that may be
present as an impurity in the additive. The risk evaluation of dimethyl
hydrogen phosphite has two aspects: (1) Assessment of the worst-case
exposure to the impurity from the proposed use of the additive; and (2)
extrapolation of the risk observed in the animal bioassay to the
conditions of probable exposure to humans.
A. Dimethyl Hydrogen Phosphite
FDA has estimated the hypothetical worst-case exposure to dimethyl
hydrogen phosphite from the petitioned use of the additive as a pigment
dispersant in polymeric films to be 0.009 ppb in the daily diet (3 kg),
or 27 nanograms/person/day (Ref. 1). The Cancer Assessment Committee
(CAC) of the Center for Food Safety and Applied Nutrition (CFSAN)
reviewed data from a 103- week carcinogenic bioassay on dimethyl
hydrogen phosphite in F344/N rats and B6C3F1 mice conducted by the
National Toxicology Program (NTP). The results of the bioassay on
dimethyl hydrogen phosphite demonstrated that the material induced lung
and forestomach neoplasms in male rats when administered by gavage in
corn oil. The agency used the data reviewed by the CAC to estimate the
upper-bound limit of lifetime human risk from exposure to this chemical
resulting from the proposed use of the additive.
Based on the estimated worst-case exposure to dimethyl hydrogen
phosphite of 7 g/person/day, FDA's CFSAN estimates that a
worst-case upper-bound limit of lifetime human risk from the use of the
subject additive is 1.4 x 10-9, or 1.4 in one billion (Refs. 4 and
5). Because of the numerous conservative assumptions used in
calculating the exposure estimate, the actual lifetime-averaged
individual exposure to dimethyl hydrogen phosphite is likely to be
substantially less than the worst-case exposure, and therefore, the
upper-bound lifetime human risk would be less. Thus, the agency
concludes that there is reasonable certainty that no harm from exposure
to dimethyl hydrogen phosphite would result from the proposed use of
the additive.
[[Page 43157]]
B. -Need for Specifications
The agency has also considered whether specifications are necessary
to control the amount of dimethyl hydrogen phosphite present as an
impurity in the additive. The agency finds that specifications are not
necessary for the following reasons: (1) Because of the low level at
which dimethyl hydrogen phosphite may be expected to remain as an
impurity following production of the additive, the agency would not
expect the impurity to become a component of food at other than
extremely low levels; and (2) the upper-bound limit of lifetime human
risk from exposure to the impurity, even under worst-case assumptions,
is very low, less than 1.4 in a billion.
III. Conclusion
FDA has evaluated the data in the petition and other relevant
material and concludes that the proposed use of the additive as a
pigment dispersant in polymeric films intended for use in contact with
food is safe. Based on this information, the agency has also concluded
that the additive will achieve its intended technical effect.
Therefore, the agency concludes that a new Sec. 178.3725 should be
added to part 178 (21 CFR part 178) as set forth below. -
In accordance with Sec. 171.1(h) (21 CFR 171.1(h)), the petition
and the documents that FDA considered and relied upon in reaching its
decision to approve the petition are available for inspection at the
Center for Food Safety and Applied Nutrition by appointment with the
information contact person listed above. As provided in Sec. 171.1(h),
the agency will delete from the documents any materials that are not
available for public disclosure before making the documents available
for inspection.
IV. Environmental Impact
The agency has carefully considered the potential environmental
effects of this action. FDA has concluded that the action will not have
a significant impact on the human environment, and that an
environmental impact statement is not required. The agency's finding of
no significant impact and the evidence supporting that finding,
contained in an environmental assessment, may be seen in the Dockets
Management Branch (address above) between 9 a.m. and 4 p.m., Monday
through Friday.
V. Objections
Any person who will be adversely affected by this regulation may at
any time on or before September 20, 1996, file with the Dockets
Management Branch (address above) written objection thereto. Each
objection shall be separately numbered, and each numbered objection
shall specify with particularity the provisions of the regulation to
which objection is made and the grounds for the objection. Each
numbered objection on which a hearing is requested shall specifically
so state. Failure to request a hearing for any particular objection
shall constitute a waiver of the right to a hearing on that objection.
Each numbered objection for which a hearing is requested shall include
a detailed description and analysis of the specific factual information
intended to be presented in support of the objection in the event that
a hearing is held. Failure to include such a description and analysis
for any particular objection shall constitute a waiver of the right to
a hearing on the objection. Three copies of all documents shall be
submitted and shall be identified with the docket number found in
brackets in the heading of this document. Any objection received in
response to the regulation may be seen in the Dockets Management Branch
between 9 a.m. and 4 p.m., Monday through Friday.
VI. References
The following references have been placed on display in the Dockets
Management Branch (address above) and may be seen by interested persons
between 9 a.m. and 4 p.m., Monday through Friday.
1. Memorandum from the Chemistry Review Branch (HFS-247) to the
Indirect Additives Branch (HFS-216) concerning FAP 3B4350: Dietary
Concentrations of the Additive and the Impurity (dimethyl hydrogen
phosphite), April 28, 1994.
2. Kokoski, C. J., ``Regulatory Food Additive Toxicology,'' in
Chemical Safety Regulation and Compliance, edited by F. Homburger
and J. K. Marquis, S. Karger, New York, NY, pp. 24-33, 1985.
3. ``Toxicology and Carcinogenesis Studies of Dimethyl Hydrogen
Phosphite,'' National Toxicology Program, Technical Report, #287,
November 1985.
4. Memorandum from Executive Secretary, Cancer Assessment
Committee (HFS-227) to Chairman, Cancer Assessment Committee, and
Chairman, Quantitative Risk Assessment Committee: ``Tentative,
Worst-case Risk Assessment for Dimethyl Hydrogen Phosphite,''
January 4, 1996.
5. Memorandum from Executive Secretary, Cancer Assessment
Committee (HFS-227) to Chairman, Cancer Assessment Committee, and
Chairmen, Quantitative Risk Assessment Committee: ``Risk Assessment
for Dimethyl Hydrogen Phosphite (DMHP),'' June 26, 1996.
List of Subjects in 21 CFR Part 178
Food additives, Food packaging.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, 21 CFR part
178 is amended as follows:
PART 178--INDIRECT FOOD ADDITIVES: ADJUVANTS, PRODUCTION AIDS, AND
SANITIZERS
1. The authority citation for 21 CFR part 178 continues to read as
follows:
Authority: Secs. 201, 402, 409, 721 of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 321, 342, 348, 379e).
2. New Sec. 178.3725 is added to subpart D to read as follows:
Sec. 178.3725 Pigment dispersants.
Subject to the provisions of this regulation, the substances listed
in this section may be safely used as pigment dispersants in food-
contact materials.
------------------------------------------------------------------------
Substances Limitations
------------------------------------------------------------------------
Phosphorylated tall oil fatty acids For use only at levels not to
(CAS Reg. No. 68604-99-9), prepared exceed 1.0 percent by weight of
by the reaction of dimethyl hydrogen the pigment. The pigmented
phosphite with tall oil fatty acids. polymeric films may contact all
food under conditions of use D,
E, F, and G described in Table 2
of Sec. 176.170(c) of this
chapter.
------------------------------------------------------------------------
[[Page 43158]]
Dated: August 13, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-21229 Filed 8-20-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-21227 Expanded Interconnection With Local Telephone Company Facilities; Correction
[Federal Register Volume 61, Number 163 (Wednesday, August 21, 1996)]
[Rules and Regulations]
[Pages 43159-43160]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21227]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CC Docket No. 91-141]
Expanded Interconnection With Local Telephone Company Facilities;
Correction
AGENCY: Federal Communications Commission.
ACTION: Correcting amendments.
-----------------------------------------------------------------------
SUMMARY: This document contains corrections to the final regulations
which were published Friday, September 17, 1993 (58 FR 48756). The
regulations related to rights and responsibilities of interconnectors.
EFFECTIVE DATE: August 21, 1996.
FOR FURTHER INFORMATION CONTACT: David Sieradzki (202) 418-1530.
SUPPLEMENTARY INFORMATION:
Background
The final regulations that are the subject of these corrections
affect parties who are taking expanded interconnection offerings from
Class A local exchange carriers.
Need for Correction
As published, the final regulations contain errors which may prove
to be misleading and are in need of clarification.
[[Page 43160]]
List of Subjects in 47 CFR Part 64
Communications common carriers, Reporting and recordkeeping
requirements, Telephone.
Accordingly, 47 CFR part 64 is corrected by making the following
correcting amendments:
PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS
1. The authority citation for part 64 continues to read as follows:
Authority: Sec. 4, 48 Stat. 1066, as amended; 47 U.S.C. 154,
unless otherwise noted. Interpret or apply secs. 201, 218, 226, 228,
48 Stat. 1070, as amended, 1077; 47 U.S.C. 201, 218, 226, 228,
unless otherwise noted.
Sec. 64.1402 [Amended]
2. In Sec. 64.1402(c), the phrase ``until that local exchange
carrier's tariffs implementing expanded interconnection for switched
transport have become effective'' is added to the end of the sentence.
Federal Communications Commission
William F. Caton,
Acting Secretary.
[FR Doc. 96-21227 Filed 8-20-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-21210 Limes Grown in Florida and Imported Limes; Change in Regulatory Period
[Federal Register Volume 61, Number 163 (Wednesday, August 21, 1996)]
[Rules and Regulations]
[Pages 43141-43144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21210]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
7 CFR Parts 911 and 944
[Docket No. FV96-911-2FR]
Limes Grown in Florida and Imported Limes; Change in Regulatory
Period
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule; suspension.
-----------------------------------------------------------------------
SUMMARY: This rule suspends the regulatory period currently prescribed
under the lime marketing order and the lime import regulations. The
marketing order regulates the handling of limes grown in Florida and is
administered locally by the Florida Lime Administrative Committee
(committee). By temporarily reducing the regulatory period and its
associated costs, this rule should decrease industry expenses and allow
the committee to evaluate its impact. The changes in import
requirements are necessary under section 8e of the Agricultural
Marketing Agreement Act of 1937.
EFFECTIVE DATES: June 1, 1997, through December 31, 1997.
FOR FURTHER INFORMATION CONTACT: Aleck Jonas, Southeast Marketing Field
Office, Marketing Order Administration Branch, F&V, AMS, USDA, P.O. Box
2276, Winter Haven, Florida 33883; telephone: (941) 299-4770, Fax:
(941) 299-5169; or Caroline Thorpe, Marketing Order Administration
Branch, F&V, AMS, USDA, room
[[Page 43142]]
2522-S, P.O. Box 96456, Washington, DC 20090-6456: telephone: (202)
720-8139, Fax: (202) 720-5698. 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 2523-S, Washington, DC 20090-6456;
telephone (202) 720-2491; Fax: (202) 720-5698.
SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing
Agreement and Marketing Order No. 911 (7 CFR Part 911), as amended,
regulating the handling of limes, hereinafter referred to as the
``order.'' This 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.''
This final rule is also issued under section 8e of the Act, which
provides that whenever certain specified commodities, including limes,
are regulated under a Federal marketing order, imports of these
commodities into the United States are prohibited unless they meet the
same or comparable grade, size, quality, or maturity requirements as
those in effect for the domestically produced commodities.
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule is not intended to have retroactive
effect. This final 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 date of the entry of the ruling.
There are no administrative procedures which must be exhausted
prior to any judicial challenge to the provisions of import regulations
issued under section 8e of the Act.
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has
considered the economic impact of this final rule on small entities.
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. Import regulations issued under
the Act are based on those established under Federal marketing orders.
There are approximately 10 handlers subject to regulation under the
order and about 115 producers of Florida limes. There are approximately
35 importers of limes. Small agricultural service firms, which include
lime handlers and importers, have been defined by the Small Business
Administration (13 CFR 121.601) as those whose annual receipts are less
than $5,000,000, and small agricultural producers are defined as those
whose annual receipts are less than $500,000. A majority of these
handlers, producers, and importers may be classified as small entities.
This rule changes the regulatory period by suspending both the
domestic and import regulations from June 1, 1997 through December 31,
1997. By temporarily reducing the regulatory period and its associated
costs, this rule should provide a decrease in industry expenses. Both
large and small growers, handlers and importers should benefit from the
reduced costs of no regulations, such as no inspection fees during the
deregulated period.
In addition, small handlers usually use block inspection. Under
block inspection, the fruit is packed and palletized, and then
inspection is requested. The handler must wait for an available
Federal-State inspector to inspect and certify the limes prior to
shipment. Larger facilities use continuous inspection because their
volume of fruit justifies the constant presence of an inspector. By
relaxing regulations for this seven month period, small handlers will
benefit by being able to ship fruit without the delay of waiting for an
inspector. Small and large handlers should both benefit from the
reduction in inspection costs and committee expenses from fewer
meetings and less compliance monitoring. Therefore, the AMS has
determined that this action will not have a significant economic impact
on a substantial number of small entities.
Section 911.48 of the lime marketing order provides authority to
issue regulations establishing specific pack, container, grade and size
requirements. These requirements are specified under Sections 911.311,
911.329 and 911.344. Section 911.51 requires inspection and
certification that these requirements are met. Currently, there is no
regulatory period stated in the order, and these regulations are
applied on a continuous year-round basis.
This rule changes the regulatory period by suspending both the
domestic and import regulations from June 1, 1997 through December 31,
1997. The committee met on December 13, 1995, and in a vote of six in
favor and four opposed, recommended a change in the regulatory period.
There is general agreement in the industry for the need to reduce
costs and increase grower returns under current market conditions. The
committee made this recommendation to decrease industry expenses by
reducing the regulatory period and its associated costs. Prior to
Hurricane Andrew, there were approximately 6,500 producing acres of
limes in the production area. Currently, there are approximately 1,500
acres of producing lime trees in the production area. Growers are
expending approximately $2,500 per acre to plant new groves and replant
lost ones. They are also spending approximately $1,500 per acre per
year to maintaining new groves of young trees which will not produce
fruit in commercially significant volumes for several years, thus,
giving no return for their investments.
During the 1991-1992 season, prior to Hurricane Andrew, assessments
were collected on 1,682,677 bushels. In the 1993-1994 and the 1994-1995
seasons, after the storm, assessments were collected on 228,455 bushels
and 283,977 bushels respectively. Lost income from reduced volume and
the costs of replanting and maintaining groves, with no immediate
monetary return, has caused the industry to seek cost saving measures.
Historically, the June 1 through December 31 period is a time when
fruit is plentiful, prices are low, and the overall quality of the crop
is good for both domestic and imported supplies. The committee
maintains that under these abundant and good quality fruit
[[Page 43143]]
conditions, competition and market demand will keep quality standards
high.
Conversely, during the time period January 1 through May 31, past
seasons have shown that for both domestic and imported fruit, skins are
thicker, the juice content is lower and supplies of fruit are limited.
Because the temptation to ship poor quality is greater under these high
demand and low supply conditions, the committee believes regulations
are necessary to prevent poor quality fruit from entering and damaging
the lime market. Therefore, the committee believes that for the period
June 1, 1997 through December 31, 1997, pack, container, grade and size
regulations can be suspended. Competition under good quality and high
supply conditions should protect the consumer from poor quality fruit
entering market during the deregulated period. The application of
regulations from January 1 through May 31 will insure uniform quality
throughout the year. The committee will evaluate the impact of this
action on the market at the end of the suspension.
Growers, handlers and importers should benefit from the reduced
costs of no regulations, such as no inspection fees during the
deregulated period. Committee expenses should also be reduced by
requiring fewer meetings and less compliance monitoring. Reporting
requirements are not affected by this change, and handler reports will
continue to be collected during the period of suspension.
Several alternatives to this action were discussed by the
committee. One alternative was to leave the regulations in place year-
round. This alternative was rejected by the committee because the need
to take some action was considered necessary under current market
conditions. It was argued that when these regulations were put in
place, the quality of both the domestic and imported lime supply varied
greatly. Over the years, improved agricultural practices have produced
a more consistent, high quality lime supply. This is particularly true
during the June through December time period.
Another alternative raised was to terminate the marketing order.
Although seriously considered, committee members rejected the idea
under arguments that during the January through May time period when
supplies are reduced and juice content of all limes is lower, poor
quality fruit could enter the market. Consumer dissatisfaction with
poor quality limes could lead to product rejection and substitution
with lemons, causing lost market share.
This rule represents a compromise of the alternatives considered.
The committee believes that this change will provide the consumer with
quality fruit throughout the year, while reducing industry costs.
Section 8e of the Act provides that when certain domestically
produced commodities, including limes, are regulated under a Federal
marketing order, imports of that commodity must meet the same or
comparable grade, size, quality, and maturity requirements. Since this
rule changes the regulatory period under the domestic handling
regulations, a corresponding change to the import regulations must also
be implemented.
Minimum grade and size requirements for limes imported into the
United States are currently in effect under Section 944.209 [7 CFR
944.209]. This rule will result in relaxed import requirements because
the lime import regulations will not be in effect during the period
June 1, 1997, through December 31, 1997. This should reduce costs to
importers.
Mexico is the largest exporter of limes to the United States.
During the 1994-95 season, Mexico exported 6,075,685 bushels to the
United States, while all other sources shipped a combined total of
201,053 bushels during the same time period. The majority of Mexican
imports enter the United States between June 1 and December 31, the
deregulated period covered in this rule.
A proposed rule concerning this action was published in the May 8,
1996, Federal Register (61 FR 20754), with a 30-day comment period
ending June 7, 1996. The comment period was extended to July 8, 1996,
through a notice published in the June 26, 1996, Federal Register (61
FR 33047). Eight comments were received. Three comments recommended
modifications to the proposed rule, and five comments opposed the
proposed rule.
The three comments requesting modification to the proposed rule
were submitted by the committee administrator, Gail Knodel, on behalf
of the committee. The first comment requested that the proposed rule be
modified from a permanent change to a one year trial basis. On April
17, 1996, this recommendation was passed by the committee on a majority
vote of seven in support, none against and one abstention. The
committee modified its original position because it believes that it is
important that this change be thoroughly evaluated before making the
suspension on a permanent basis. At the end of the trial year, the
committee will evaluate the impact of this action on the industry and
determine if continuation is justified.
The second committee comment requested an extension of the comment
period. This request was made due to the complexity of the proposed
rule and the potential impact of the proposed changes to the industry.
A reopening of the comment period was granted by the Department and
published in the June 26, 1996, Federal Register (61 FR 33047).
The third committee comment was a request to make the effective
date of the rule June 1, 1997. Because the extension of the comment
period would delay the effective date of a final rule, making it
impossible to begin the period of deregulation effective June 1, 1996,
the committee voted to postpone the effective date to allow for a
continuous period of deregulation from June 1 to December 31. The
committee believes that this will be beneficial for handlers. The
committee also believes that this will allow for a more accurate
analysis of the impact of the suspension. The recommendation to change
the effective date to June 1, 1997, was made by unanimous vote of the
committee. This rule has been modified to reflect the committee's
recommendations.
The five opposing comments were submitted by Steve Biondo, grower;
Gregory P. Nelson, president of Bernard Egan & Company, grower/
importer; Barney W. Rutzke, president of Barney W. Rutzke, Inc.,
grower/handler; Tina Marie Rutzke, operations manager of Florida Brands
Inc., grower/handler; and the fifth was jointly submitted by Herbert
Yamamura, president of LIMECO, Inc., grower/handler; Joe Guggino,
registered agent for Primo Groves, Inc., grower; Richard Takeshita,
grower; Edna Batho, grower; Elizabeth Harrill, grower; Robert Yamamura,
grower; Donald Strock, grower; and April Yamamura, grower.
All of the opposing comments expressed concerns that loss of
regulation and the associated quality standards will result in poor
quality limes on the market and consumer dissatisfaction. Ms. Rutzke
states that the loss of regulations will lead to consumer rejection of
limes and the substitution of lemons, causing a loss of overall market
share. Both the comment of Mr. Rutzke and the jointly signed comment
expressed concerns that low quality imported limes will be dumped on
the domestic market.
The committee, upon further discussion, shared these concerns, and
therefore recommended that the proposed rule be modified from a
permanent change to a one year trial basis. The committee believes that
there
[[Page 43144]]
is an adequate supply of high quality limes to meet consumer demands
during the requested deregulation period. However, the committee also
believes that a test of the deregulation period will determine if
consumer demand will keep quality high or result in substitution of
lemons and loss of market share.
Four of the opposing comments allege that the proposed rule was
passed by a committee with unqualified members seated, and therefore
the proposal should not have been acted on by the Department.
Commenters claim that, when the original recommendation was made on
December 13, 1995, some members were serving in positions that they
were not qualified to hold. However, since that time, a new committee
has been seated. At its organizational meeting on April 17, 1996, the
newly elected members of the committee took up the discussion of the
suspension. The new committee voted to recommend that the proposed rule
be modified from a permanent change to a one year trial basis.
Consequently, the changes provided for in this rule were affirmed by
the current committee with a majority vote of seven in support, none
opposed, and one abstention.
The jointly signed comment disagreed with the proposed rule's
contention that, historically, the June 1 through December 31 period is
a time when fruit prices are low, and the overall quality of the crop
is good. They argued that prices in June, September, October, November
and December often have differed from year to year, between low to
moderately high, and that lime prices in 1993 and 1994 remained
moderate during the months of July and August.
In terms of quality, they state that during the June through
December time period, quality is not considered high quality. For
example, they state there is a relatively large amount of stylar-end
breakdown, which is a weakening of the rind at the fruit's blossom end
which deteriorates over time. In its deliberations of this rule, the
committee considered the availability of quality fruit during the
proposed period of suspension. The proposed rule noted that
historically prices are low, and the overall quality of the crop is
good, indicating a trend and general view of the time period. This does
not mean to imply that fluctuations do not occur during various months
within the period or from year to year. However, during the period from
June to December, juice content improves, fruit matures, and the
overall quality of limes is better. The committee plans to review the
effects of the suspension on the market, and base further action on its
analysis.
After thoroughly analyzing the comments received and other
available information, the Department has concluded that this final
rule is appropriate.
In accordance with section 8e of the Act, the United States Trade
Representative has concurred with the issuance of this final rule.
After consideration of all relevant matter presented, including the
information and recommendations submitted by the committee and other
available information, it is hereby found that the provisions of the
regulations to be suspended, as hereinafter set forth, no longer tend
to effectuate the declared policy of the Act.
List of Subjects
7 CFR Part 911
Limes, Marketing agreements, Reporting and recordkeeping
requirements.
7 CFR Part 944
Avocados, Food grades and standards, Grapefruit, Grapes, Imports,
Kiwifruit, Limes, Olives, Oranges.
For the reasons set forth in the preamble, 7 CFR parts 911 and 944
are amended as follows:
1. The authority citation for 7 CFR parts 911 and 944 continues to
read as follows:
Authority: 7 U.S.C. 601-674.
PART 911--LIMES GROWN IN FLORIDA
Secs. 911.311, 911.329, 911.344 [Amended]
2. Effective June 1, 1997, through December 31, 1997,
Secs. 911.311, 911.329, and 911.344 are suspended.
PART 944--FRUITS; IMPORT REGULATIONS
Sec. 944.209 [Amended]
3. Effective June 1, 1997, through December 31, 1997, Sec. 944.209
is suspended.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-21210 Filed 8-20-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-21187 Federal Home Loan Bank Directors' Compensation and Expenses
[Federal Register Volume 61, Number 163 (Wednesday, August 21, 1996)]
[Rules and Regulations]
[Pages 43151-43155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21187]
=======================================================================
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FEDERAL HOUSING FINANCE BOARD
12 CFR Parts 932 and 941
[No. 96-56]
Federal Home Loan Bank Directors' Compensation and Expenses
AGENCY: Federal Housing Finance Board.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Housing Finance Board (Finance Board) is amending
its regulation on the compensation of Federal Home Loan Bank (Bank)
directors. The existing Finance Board regulation on the compensation of
Bank directors subjects the payment of fees and expenses to limits set
by the Finance Board. Those limits and other criteria are contained in
the Finance Board's Directors' Fees and Allowances Policy (Policy),
which essentially imposes a uniform directors' compensation structure
on all Banks. The final rule, in conjunction with the repeal of the
Policy, permits each Bank, within certain standards of reasonableness
set forth in the regulation, to implement its own policy on director
compensation beginning in 1997 and allows each Bank to pay its
directors for such expenses as are payable by the Bank to its senior
officers, effective immediately.
The amended regulation also codifies an important provision of the
Finance Board's Policy, which will be rescinded in its entirety as of
the end of 1996, requiring that meetings of a Bank's board of directors
be held within the United States.
Finally, the final rule amends a provision of the Finance Board's
regulation governing the compensation and expenses of the private
citizen member of the board of directors of the Office of Finance (OF)
to cross-reference the amended regulation on the compensation of Bank
directors, instead of the Policy.
EFFECTIVE DATE: September 20, 1996.
FOR FURTHER INFORMATION CONTACT: Patricia L. Sweeney, Program Analyst,
District Banks Secretariat, (202) 408-2872; or Eric M. Raudenbush,
Attorney-Advisor, Office of General Counsel, (202) 408-2932; Federal
Housing Finance Board, 1777 F Street, NW., Washington, DC 20006.
SUPPLEMENTARY INFORMATION:
I. Statutory and Regulatory Background
Subsection 7(i) of the Federal Home Loan Bank Act (Bank Act)
permits each Bank, with the approval of the Finance Board, to pay its
directors reasonable compensation and necessary expenses for the time
required of them in the performance of their Bank-related duties, in
accordance with resolutions adopted by such directors. 12 U.S.C.
1427(i) (1994). A general provision on Bank directors' compensation,
which appears at Sec. 932.27 of the Finance Board's regulations,
provides merely that directors' fees shall be established by each Bank
within limits set by the Finance Board. See 12 CFR 932.27 (1995).
The Finance Board has exercised its statutory responsibility to
approve Bank director compensation and expenses largely through the
Policy, adopted by resolution of its Board of Directors on February 23,
1993. See Finance Board Resolution No. 93-12 (Feb. 23, 1993). The
Policy establishes a maximum fee of $1,200 per day payable to the Chair
of a Bank's board of directors when presiding over meetings of the
board or its executive committee, and a maximum fee of $650 per day
payable to all other directors for attendance at board, committee, or
other meetings for which a fee is authorized. Under the Policy, daily
meeting fees are the only authorized source of compensation for Bank
directors; the Policy does not provide for payment of either a
retainer, or non-cash benefits to directors. The Policy also sets forth
generally the categories of expenses that are payable to Bank directors
and identifies several specific expense items the payment of
[[Page 43152]]
which is either authorized or prohibited.
The Banks first became subject to a formal policy on directors fees
and expenses in 1974, when the former Federal Home Loan Bank Board
(FHLBB) (the Finance Board's predecessor agency) adopted a policy that
revised, clarified and incorporated the various resolutions, minute
entries and interpretations on director compensation and expenses that
had been issued by the FHLBB since its creation in 1932. The FHLBB
policy was amended several times, lastly in 1986, when the current dual
$1200/$650 per day meeting fee caps were incorporated. When the Finance
Board succeeded the FHLBB as regulator of the Bank system in 1989, the
FHLBB's policy on Bank directors' fees and expenses remained in effect,
as provided by the Financial Institutions Reform Recovery and
Enforcement Act's (FIRREA) provision on the continuation of orders,
resolutions, determinations and regulations of the FHLBB. See Pub. L.
No. 101-73, section 401(h), 103 Stat. 183 (1989) (codified at 12 U.S.C.
1437 note). The Policy is essentially identical to the FHLBB's 1986
policy.
The Bank Act currently vests in the Finance Board the
responsibility to supervise the Bank System, to regulate it for
financial safety and soundness, and to pass upon most matters of
corporate governance of the Banks. A series of studies and reports
mandated by the Housing and Community Development Act of 1992, Pub. L.
No. 102-550, section 1393, 106 Stat. 3672 (1992), including a report
prepared by the Finance Board in April 1993, concluded that the Finance
Board's authority over Bank corporate governance is in conflict with
the agency's primary role as Bank system regulator. Since the
completion of these studies, the Finance Board has been working closely
with the Banks to implement regulatory and policy changes designed to
devolve to the Banks the authority to set policy on matters of
corporate governance, to the extent permissible under the Bank Act. In
conjunction with these efforts, two separate task forces composed of
senior officials of the Banks have recommended that the Finance Board
rescind the Policy and establish broad guidelines within which the
Banks' boards of directors can set the structure and limits for the
compensation of their directors.
In conformity with these recommendations and as part of its policy
to devolve matters of corporate governance to the Banks, the Finance
Board published in the Federal Register on April 22, 1996 a proposal to
replace its existing regulation on Bank directors' compensation and the
Policy adopted thereunder with a comprehensive regulation on
Compensation and Expenses of Bank Directors, intended to allow the
Banks greater freedom to develop and implement their own directors'
compensation plans, while establishing clear and enforceable regulatory
limitations. See 61 FR 17603 (1996). The Finance Board received six
comment letters, all of which were from FHLBanks. While some commenters
objected to particular provisions of the proposed rule, all believed
that it was an improvement over the existing regulatory/policy scheme.
II. Analysis of the Final Rule and Public Comments on the Proposed
Rule
The final rule provides for the addition of a new section 932.26 to
the Finance Board's regulations and for the revision of sections 932.27
and 941.7(f)(2) thereof to contain entirely new text.
Section 932.26 is adopted as proposed. This section codifies a
provision of the Policy requiring that meetings of a Bank's board of
directors and its committees usually should be held within the district
served by that Bank and prohibiting Banks from holding any such
meetings outside the borders of the United States. -
Amended section 932.27, entitled ``Compensation and Expenses of
Bank Directors,'' is intended to limit the total dollar pool available
to each Bank to compensate its directors to an appropriate level, while
providing the Banks with maximum flexibility to devise their own
directors' compensation schemes within the dollar limit. The regulation
is not designed to answer specific compensation issues; rather, it is
intended to empower each Bank to exercise its reasonable discretion to
decide how to compensate its directors, and thereby to allow many
practices that are not explicitly authorized under the Policy,
including, without limitation: the payment of retainer fees, the
provision of non-cash benefits and the payment of meeting fees for
participation in telephonic meetings.
Paragraph (a) of new section 932.27 defines three terms--
``compensation,'' ``average compensation per director'' and ``maximum
compensation.'' The latter definition did not appear in the proposed
rule and was added for the reasons discussed below.
Paragraph (b) of new section 932.27 is the operative provision with
respect to the compensation of directors. It requires each Bank to
adopt annually, by resolution of its board of directors, a written
policy to provide for the payment of ``reasonable compensation'' to its
directors for their work on Bank-related matters. In conjunction with
the definition of ``Compensation'' contained in paragraph (a),
paragraph (b) is intended to permit the Banks to remunerate their
directors in a wide variety of fashions, including through the use of
daily meeting fees, retainer fees, cash or non-cash fringe benefits,
deferred payments, incentive payments, or combinations thereof. Because
the timetable for transition from the Policy to the new regulatory
scheme was unclear under the proposed rule, the final rule specifically
provides that the Banks' policies on director compensation shall take
effect beginning in 1997. Bank directors will continue to be
compensated in the manner prescribed in the Policy until December 31,
1996, at which time the Finance Board intends to rescind the Policy in
its entirety.
Under paragraph (b), which is otherwise identical to that set forth
in the proposed rule, the text of each Bank's policy must detail the
types of Bank-related meetings or other activities in which its
directors are required or expected to participate and for which they
may be compensated. In addition, the policy must explain fully the
methodology for determining the amounts and the circumstances under
which the Bank's directors may be paid, including, if applicable:
setting forth rates of compensation for participation in Bank-related
activities; setting forth any retainer fees payable to directors and
the circumstances under which they may be paid; explaining the
rationale for any graduated meeting or retainer fee scales; and
detailing any non-cash fringe benefits to be provided to directors,
including the approximate cash value thereof.
Paragraph (c) of new section 932.27 sets forth the substantive
limits on Bank directors' compensation that must be reflected in each
Bank's policy on director compensation. The introductory text to
paragraph (c)(1) provides for a $28,000 cap on each Bank's annual
``average compensation per director'' (ACPD). ACPD is defined in
paragraph (a) as the sum of the maximum compensation for all directors
serving on a Bank's board of directors, divided by the total number of
directors serving on that Bank's board. In turn, the term ``maximum
compensation'' is defined in paragraph (a) as the maximum total
compensation that would be paid to a director in a given year under the
Bank's policy on director compensation if that director
[[Page 43153]]
attended all meetings and fulfilled all duties assigned to or otherwise
expected of him or her for that year. The definition of ``maximum
compensation'' has been added to the final rule and the term has been
incorporated into the definition of ACPD, in part, to make clear that
ACPD refers to the maximum amount of compensation that directors have
the potential to earn if they fulfill all duties for which they may be
compensated, including without limitation, attendance at meetings and
service as board or committee chairs or vice-chairs.
By capping the ACPD, new section 932.27 effectively limits the
total pool of money available to each Bank to compensate its directors
(to $28,000 times the total number of directors), but, because each
Bank has a different number of directors, this has been expressed in
terms of ``compensation per director'' instead of as a lump sum.
Because the regulation caps only the average amount that may be paid to
a Bank's directors, a Bank policy may be structured so that one or more
directors could earn more than $28,000 in a year, as long as the
average maximum compensation of all of the Bank's directors do not
exceed that amount.
Two of the commenters specifically opposed the inclusion in the
regulation of any dollar cap on director compensation. One expressed a
belief that placing an ``artificial limit'' on compensation will cause
all Banks' compensation of directors to rise to the maximum level
regardless of other relevant factors and both opined that each board
should be free to set its own compensation levels based upon the
services performed by each director and compensation practices at
comparable institutions (taking into account the FHLBanks' status as
government-sponsored enterprises), subject to regulatory parameters
based on safety and soundness considerations.
After considering the agency's statutory responsibility to
``approve'' Bank directors' compensation, see 12 U.S.C. 1427(i), the
Bank Act's requirement that such compensation be ``reasonable,'' see
id., and the preference for providing a clear regulatory standard, the
Finance Board has concluded that a dollar cap on compensation is
necessary and appropriate. Specifically, the Finance Board has
concluded that an ACPD cap of $28,000 is sufficient to allow the Banks
to attract high quality individuals to serve on their boards of
directors, yet is moderate enough, considering market rates, the Banks'
GSE status and the general duties of Bank directors, to qualify as
``reasonable compensation'' under the Bank Act.
As provided in paragraph (c)(2) of new section 932.27, the cap on
ACPD will increase automatically, beginning in 1998, to reflect the
previous year's change in the Consumer Price Index (CPI). The proposed
rule provided for the adjustment to occur beginning in 1997, but
because the regulation was changed in the final rule to provide that
the Banks' policies will take effect beginning in 1997 instead of 1996,
the timetable for CPI adjustment was also moved back by one year.
Paragraph (c)(1)(i) of new section 932.27 requires that, keeping
within the stated cap on ACPD, each Bank's policy on director
compensation should be designed such that, the actual compensation paid
to each director in a given year reflects both the amount of time that
the director has spent on Bank-related business and the level of
responsibility the director has assumed with respect to his or her role
on the Bank's board of directors during that year. This paragraph has
been expanded in the final rule to make clear that each Bank's policy
must in some way ensure that a director's failure to attend meetings or
to fulfill other assigned duties has a tangible negative effect on the
actual compensation paid to that director. Specifically, the
requirement that a directors' annual compensation must reflect the
amount of time spent on official Bank business is intended to ensure
that Bank directors are being paid for meetings they actually attend
and duties they actually perform for each Bank.
As proposed, paragraph (c)(1)(ii) would have required each Bank to
pay its Chair: (1) More than any other director and (2) at least 125
percent of the Bank's ACPD. In the final rule, this provision has been
modified slightly to require only that the ``maximum compensation''
that can be paid to the chair in a given year if he or she fulfills all
of his or her duties--as opposed to the actual amount paid to the
chair--conform to the requirements set forth in the paragraph. This
change was made because, as noted by one commenter, under the proposed
rule, compliance with the requirement that the chair earn at least 125
percent of the ACPD for that Bank could have created an apparent
conflict with paragraph (c)(1)(i) if a Bank's chair has unexpectedly
low meeting attendance during a given year. The change is intended to
clarify that each Bank's policy should be structured so that, assuming
the chair fulfills all of his or her duties, he or she will be paid
more than any other director and will earn at least 125 percent of the
ACPD. If, in fact, the chair does not fulfill all of his or her duties
in a given year and this causes him or her to receive less than another
director or less than 125 percent of the ACPD, this would not result in
a violation of the regulation.
In the proposed rule, the Finance Board specifically requested
comment on whether to include as part of the final regulation a
provision under which a portion of each Bank's directors' annual
compensation would be contingent upon that Bank's achievement of
performance-related goals such as meeting particular earnings targets,
achieving a satisfactory regulatory examination, or fulfilling the
Bank's housing finance mission. Four of the commenters were opposed to
including a requirement that a portion of a FHLBank's directors'
compensation be incentive-based. Several commenters noted that
incentive payments to board directors are traditionally made in the
form of corporate stock and cited the prohibition against individual
ownership of Bank stock, as well as the stock's non-equity nature, as
reasons not to include an incentive component. In addition, concern
that such a requirement would cause undue focus on short-term
performance and the limited role in corporate governance played by the
Bank boards were given as reasons not to include an incentive
requirement in the regulation. One commenter supported the inclusion of
a performance-based compensation requirement in the regulation only if
it were designed to allow directors to receive compensation in addition
to that provided for in the proposed regulation if performance goals
are reached.
After reviewing the comment letters and considering various methods
by which an incentive component could be included in the regulation,
the Finance Board has concluded that, given the agency's long-term
policy to devolve management authority to the Banks, as well as the
ambiguous connection between the actions of individual directors and
the achievement of annual performance targets by the Bank, a mandatory
incentive requirement would be of dubious value and would undermine the
intended devolutionary effect of the regulation. Therefore, such a
requirement has not been included in the final rule. The regulation
would allow a Bank to include an incentive component of its own
creation in its compensation policy, if it so chooses, so long as the
policy conforms to the requirements set forth in paragraph (c) of the
regulation.
Paragraph (d) of new section 932.27 allows each Bank to pay its
directors such Bank-related travel, subsistence
[[Page 43154]]
and other related expenses as are payable to senior officers of the
Bank under the Bank's travel policy, except for gift or entertainment
expenses. This provision, which is adopted as proposed, is intended to
tie payment of directors' expenses to existing Bank policies which are
subject to regulatory examination and which may be amended at the
discretion of the Bank. Unlike the compensation provisions, which will
not take effect until January 1, 1997, because the Banks already have
established executive travel policies in place, the expenses provision
may be implemented by the Banks as of the effective date of the rule,
at which time the Finance Board intends to rescind the portion of the
Policy governing director expenses.
Subsection (e) of new section 932.27, which did not appear in the
proposed rule, requires each Bank to publish as separate items in its
annual report: the total compensation paid to all of its directors,
collectively, in the previous year; the total expenses paid to all its
directors, collectively, in the previous year; and a summary of its
policy on director compensation. In the proposed rule, the Finance
Board requested comment on whether the new regulation should include a
requirement that the Banks' policies on director compensation be made
available to the public through either the Finance Board or the
FHLBanks and, if so, should the policies be disseminated as a matter of
course, or merely made available upon request. Three commenters
specifically objected to the publication or distribution of director
compensation polices as a matter of course, while the remaining three
suggested that the regulation require that disclosures be made to the
shareholders through Bank annual reports or other similar documents.
However, two of the commenters made the latter suggestion in connection
with their respective suggestions that the final regulation not include
any kind of dollar limit on directors' compensation. -
After considering the comment letters received, the greater
autonomy that the Banks will have to set compensation levels under the
new regulation and the public purpose that these government-sponsored
enterprises were created by statute to carry out, the Finance Board has
determined that it is appropriate to require the Banks to disclose the
above-described summary information to their member institutions and
the public. Accordingly, paragraph (e) is included in the final rule. -
Finally, a new provision has been added to the final rule that
amends section 941.7(f)(2) of the Finance Board's regulations. The
existing regulatory provision requires that the OF pay its private
citizen board member compensation and expenses in accordance with the
Policy. However, because the Policy will be rescinded in its entirety
at the end of 1996, this provision is being amended to require that the
OF pay its private citizen board member compensation and expenses under
a policy conforming to the guidelines of new section 932.27. New
section 941.7(f)(2) provides for some minor modifications to section
932.27 for purposes of the cross-reference to account for the fact that
the provision applies to only one OF director, as opposed to an entire
board. The Finance Board considered including in the final rule an
entirely separate compensation provision for the OF, but decided simply
to cross-reference new section 932.27 pending a more comprehensive
review of the structure of the OF board of directors.
III. Regulatory Flexibility Act -
The final rule applies only to the Banks, which do not come within
the meaning of ``small entities,'' as defined in the Regulatory
Flexibility Act. See 5 U.S.C. 601(6). Therefore, in accordance with 5
U.S.C. 605(b), the Finance Board hereby certifies that this final rule
will not have a significant economic impact on a substantial number of
small entities.
List of Subjects
12 CFR Part 932
Conflict of interests, Federal home loan banks, Reporting and
recordkeeping requirements.
12 CFR Part 941
Organization and functions (Government agencies).
-Accordingly, chapter IX, title 12, Code of Federal Regulations, is
hereby amended as follows:
PART 932--ORGANIZATION OF THE BANKS -
1. The authority citation for part 932 continues to read as
follows:
-Authority: 12 U.S.C. 1442a, 1422b, 1426, 1427, 1464; 18 U.S.C.
207; 42 U.S.C. 8101 et seq.
-2. Section 932.26 is added to read as follows:
Sec. 932.26 Site of board of directors and committee meetings.
Meetings of a Bank's board of directors and committees thereof
usually should be held within the district served by the Bank. No
meetings of a Bank's board of directors and committees thereof may be
held in any location that is not within the United States, including
its possessions and territories. -
3. Section 932.27 is revised to read as follows:
Sec. 932.27 Compensation and expenses of bank directors.
(a) Definitions. As used in this section:
(1) Compensation means any payment of money or provision of any
other thing of value (or the accrual of a right to receive money or a
thing of value in a subsequent year) in consideration of a director's
performance of official duties for the Bank, including, without
limitation, retainer fees, daily meeting fees, incentive payments and
fringe benefits.
(2) Maximum compensation means the maximum total compensation that
would be paid to a director in a given year under the Bank's policy on
director compensation if that director attended all meetings and
fulfilled all duties assigned to or otherwise expected of him or her
for that year.
(3) Average compensation per director (ACPD) means the sum of the
maximum compensation for all directors serving on a Bank's board of
directors, divided by the total number of directors designated by the
Federal Housing Finance Board to serve on the Bank's board for that
year.
(b) Annual compensation. For 1997 and each subsequent year, each
Bank's board of directors shall adopt annually by resolution a written
policy to provide for the payment to Bank directors of reasonable
compensation for the performance of their duties as members of the
Bank's board, subject to the requirements set forth in paragraph (c) of
this section. At a minimum, such policy shall address the activities or
functions for which attendance is necessary and appropriate and may be
compensated, and shall explain and justify the methodology for
determining the amount of compensation to be paid to directors.
(c) Policy requirements. Payment to directors under each Bank's
policy on director compensation may be based upon factors that the Bank
determines to be appropriate, but each Bank's policy shall conform to
the following requirements:
(1) The annual ACPD for each Bank shall not exceed the amount
calculated in accordance with paragraph (c)(2) of this section. Within
this limit:
(i) The total actual compensation received by each director in a
year shall reflect both the amount of time spent on official Bank
business and the level of
[[Page 43155]]
responsibility assumed by that director, such that greater or lesser
attendance at board and committee meetings and greater or lesser
responsibility assumed by a director during a given year will be
reflected in the actual compensation received by the director for that
year; and
(ii) The maximum compensation for the chair of each Bank's board of
directors in a given year shall not be equaled or exceeded by the
maximum compensation of any other director for that year and shall not
be less than 125 percent of the Bank's ACPD for that year.
(2) The limit on ACPD for each Bank shall be $28,000 for 1997. For
1998 and subsequent years, the limit on ACPD shall be adjusted annually
to reflect the preceding year's change in the Consumer Price Index
(CPI) for all urban consumers, as published by the Bureau of Labor
Statistics. Each year, as soon as practicable after the publication of
the previous year's CPI, the Board shall publish notice, by Federal
Register, distribution of a memorandum, or otherwise, of the CPI-
adjusted limit on ACPD.
(d) Expenses. Each Bank may pay its directors for such necessary
and reasonable travel, subsistence and other related expenses incurred
in connection with the performance of their official duties as are
payable to senior officers of the Bank under the Bank's travel policy,
except that directors may not be paid for gift or entertainment
expenses.
(e) Disclosure. Each Bank shall, in its annual report:
(1) State the sum of the total actual compensation paid to its
directors in that year;
(2) State the sum of the total actual expenses paid to its
directors in that year; and
(3) Summarize its policy on director compensation.
PART 941--OPERATIONS OF THE OFFICE OF FINANCE -
1. The authority for part 941 is revised to read as follows:
-Authority: 12 U.S.C. 1422b, 1431.
-2. Section 941.7(f)(2) is revised to read as follows:
Sec. 941.7 Office of Finance Board of Directors.
* * * * *
(f) * * *
(2) Private Citizen member. The Office of Finance shall pay
compensation and expenses to the Private Citizen member of the OF board
of directors in accordance with the requirements for payment of
compensation and expenses to Bank directors set forth in section 932.27
of this chapter, except that, for these purposes:
(i) The Office of Finance policy on director compensation must be
approved by the board of directors of the Finance Board;
(ii) Section 932.27(a)(3) and (c)(1)(ii) of this chapter shall not
apply; and
(iii) The terms ``average compensation per director'' and ``ACPD,''
as used in Sec. 932.27 of this chapter, shall mean ``maximum
compensation of the Private Citizen member''.
By the Board of Directors of the Federal Housing Finance Board.
Dated: July 25, 1996.
Bruce A. Morrison,
Chairman.
[FR Doc. 96-21187 Filed 8-20-96; 8:45 am]
BILLING CODE 6725-01-U
Complete official Federal Register PDF
FR Doc. 96-21088 Drawbridge Operation Regulations; Snohomish River, Everett, WA
[Federal Register Volume 61, Number 163 (Wednesday, August 21, 1996)]
[Rules and Regulations]
[Pages 43158-43159]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21088]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
33 CFR Part 117
[CGD13-96-001]
RIN 2115-AE47
Drawbridge Operation Regulations; Snohomish River, Everett, WA
AGENCY: Coast Guard, DOT.
ACTION; Temporary final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is temporarily amending the regulations
governing the operation of the twin State Route 529 drawbridges across
the
[[Page 43159]]
Snohomish River, mile 3.6, at Everett, Washington. The temporary
regulations will permit the drawspans to remain closed for several
months so that the mechanical and electrical systems of the twin
bridges can be overhauled. The closed period is October 1996, to
January 31, 1997.
EFFECTIVE DATES: This rule is effective from October 1, 1996, to
January 31, 1997.
ADDRESSES: Unless otherwise noted, documents referred to in this
preamble are available for inspection and copying at 915 Second Avenue,
Room 3410, Seattle, Washington. Normal office hours are between 7:45
a.m. and 4:15 p.m., Monday through Friday, except federal holidays.
FOR FURTHER INFORMATION CONTACT: John E. Mikesell, Chief, Plans and
Programs Section, Aids to Navigation and Waterways Management Branch,
(Telephone: (206) 220-7270).
SUPPLEMENTARY INFORMATION:
Regulatory History
On February 21, 1996, the Coast Guard published a notice of
proposed rulemaking entitled Drawbridge Operation Regulations;
Snohomish River, Everett, WA, in the Federal Register (61 FR 6588). No
comments were received in response to this notice.
Background and Purpose
At the request of the Washington State Department of
Transportation, the Coast Guard is temporarily amending the regulations
governing the operation of the twin State Route 529 drawbridge across
the Snohomish River at Everett, Washington. Currently, these bridges
are required to open for the passage of vessels if one hour notice is
provided. The temporary regulations will permit the drawspans to remain
closed for several months so that the mechanical and electrical systems
of the twin bridges can be overhauled. The existing drawbridge
operation regulations currently in effect will automatically be
restored as soon as the temporary regulations expire on January 31,
1997.
Discussion of Comments and Changes
The Coast Guard did not receive any comments to the notice of
proposed rulemaking and the rule is being adopted as proposed.
Regulatory Evaluation
This temporary rule is not a significant regulatory action under
3(f) of Executive Order 12866 and does not require an assessment of
potential cost and benefits under section 6(a)(3) of that order. It has
been exempted from review by the Office of Management and Budget under
that order. It is not significant under the regulatory policies and
procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
rule to be so minimal that a full regulatory evaluation under paragraph
10e of the regulatory policies and procedures of DOT is unnecessary.
This expectation is based on the fact that the commercial users of the
waterway can pass under the bridges without an opening during low tide
conditions.
Small Entities
For the reasons stated in Regulatory Evaluation above, the Coast
Guard finds that the impact on small entities, if any, is not
substantial. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b)
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) that this
action will not have a significant impact on a substantial number of
small entities. The impact on small entities is expected to be minimal
because commercial users of the waterway can pass under the bridges
without an opening during low tide conditions.
Collection of Information
This action contains no collection of information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that the action does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
Environment
The Coast Guard has considered the environmental impact of this
action and concluded that, under section 2.B.2. of Commandant
Instruction M16475.B, this proposal is categorically excluded from
further environmental documentation. A ``Categorical Exclusion
Determination'' is available in the docket for inspection or copying
where indicated under ADDRESSES.
List of Subjects in 33 CFR Part 117
Bridges.
Regulations
For the reasons set out in the preamble, the Coast Guard amends
part 117 of title 33, Code of Federal Regulations, as follows:
PART 117--DRAWBRIDGE OPERATION REGULATIONS
1. The authority citation for Part 117 continues to read as
follows:
Authority: 33 U.S.C. 499; 49 CFR 1.46; 33 CFR 1.05-1(g); section
117.255 also issued under the authority of Pub. L. 102-587, 106
Stat. 5039.
2. Effective October 1, 1996, to January 31, 1997, paragraph (c) of
Sec. 117.1059 is temporarily suspended and a new paragraph (i) is added
to read as follows:
Sec. 117.1059 Snohomish River, Steamboat Slough, and Ebey Slough.
* * * * *
(i) The draws of the twin, SR 529, highway bridges across the
Snohomish River, mile 3.6, at Everett need not open for the passage of
vessels from October 1, 1996, until January 31, 1997.
Dated: June 26, 1996.
J. David Spade,
Rear Admiral, U.S. Coast Guard Commander, 13th Coast Guard District.
[FR Doc. 96-21088 Filed 8-20-96; 8:45 a.m.]
BILLING CODE 4910-14-M 4
Complete official Federal Register PDF
FR Doc. 96-21087 Drawbridge Operation Regulations; Ebey Slough, Marysville WA
[Federal Register Volume 61, Number 163 (Wednesday, August 21, 1996)]
[Rules and Regulations]
[Page 43158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21087]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 117
[CGD13-96-002]
RIN 2115-AE47
Drawbridge Operation Regulations; Ebey Slough, Marysville WA
AGENCY: Coast Guard, DOT.
ACTION: Temporary final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is temporarily amending the regulations
governing the operation of the twin State Route 529 drawbridges across
Ebey Slough, mile 1.6, at Marysville, Washington. The temporary
regulations will permit the swingspan to remain closed for several
months so that the mechanical and electrical systems of the bridge can
be overhauled. The closed period is February 1, 1997 to June 1, 1997.
EFFECTIVE DATES: This rule is effective from February 1, 1997, to June
1, 1997.
ADDRESSES: Unless otherwise noted, documents referred to in this
preamble are available for inspection and copying at 915 Second Avenue,
Room 3410, Seattle, Washington. Normal office hours are between 7:45
a.m. and 4:15 p.m., Monday through Friday, except federal holidays.
FOR FURTHER INFORMATION CONTACT:
John E. Mikesell, Chief, Plans and Programs Section, Aids to Navigation
and Waterways Management Branch, (Telephone: (206) 220-7270).
SUPPLEMENTARY INFORMATION:
Regulatory History
On February 21, 1996, the Coast Guard published a notice of
proposed rulemaking entitled Drawbridge Operation Regulations; Ebey
Slough, Marysville, WA, in the Federal Register (61 FR 6589). No
comments were received in response to this notice.
Background and Purpose
At the request of the Washington State Department of
Transportation, the Coast Guard is temporarily amending the regulations
governing the operation of the State Route 529 drawbridge across Ebey
Slough, Washington. Currently, this bridge is required to open for the
passage of vessels if one hour notice is provided. The temporary
regulations will permit the drawspan to remain closed for several
months so that the mechanical and electrical systems of the bridge can
be overhauled. The existing drawbridge operation regulations currently
in effect will automatically be restored as soon as the temporary
regulations expire on June 1, 1997.
Discussion of Comments and Changes
The Coast Guard did not receive any comments to the notice of
proposed rulemaking and the rule is being adopted as proposed.
Regulatory Evaluation
This temporary rule is not a significant regulatory action under
3(f) of Executive Order 12866 and does not require an assessment of
potential cost and benefits under section 6(a)(3) of that order. It has
been exempted from review by the Office of Management and Budget under
that order. It is not significant under the regulatory policies and
procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
rule to be so minimal that a full regulatory evaluation under paragraph
10e of the regulatory policies and procedures of DOT is unnecessary.
This expectation is based on the fact that there is very little
commercial use of the waterway and the fact that the upper reaches of
Ebey Slough beyond the State Route 529 drawbridge can be reached by an
alternate route using Steamboat Slough.
Small Entities
For the reasons stated in Regulatory Evaluation above, the Coast
Guard finds that the impact on small entities, if any, is not
substantial. Therefore, the Coast Guard certifies under 5 U.S.C. 605
(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) that this
action will not have a significant impact on a substantial number of
small entities. The impact on small entities is expected to be minimal
because of the minimal use of the waterway and the alternate route
through Steamboat Slough.
Collection of Information
This action contains no collection of information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that the action does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
Environment
The Coast Guard has considered the environmental impact of this
action and concluded that, under section 2.B.2. of Commandant
Instruction M16475.B, this proposal is categorically excluded from
further environmental documentation. A ``Categorical Exclusion
Determination'' is available in the docket for inspection or copying
where indicated under ADDRESSES.
List of Subjects in 33 CFR Part 117
Bridges.
Regulations
For the reasons set out in the preamble, the Coast Guard amends
part 117 of title 33, Code of Federal Regulations, as follows:
PART 117--DRAWBRIDGE OPERATION REGULATIONS
1. The authority citation for Part 117 continues to read as
follows:
Authority: 33 U.S.C. 499; 49 CFR 1.46; 33 CFR 1.05-1(g); section
117.255 also issued under the authority of Pub. L. 102-587, 106
Stat. 5039.
2. Effective February 1, 1997, to June 1, 1997, paragraph (h) of
Sec. 117.1059 is temporarily suspended and a new paragraph (j) is added
to read as follows:
Sec. 117.1059 Snohomish River, Steamboat Slough, and Ebey Slough.
* * * * *
(j) The draws of the SR 529 highway bridge across Ebey Slough, mile
1.6, at Marysville, need not open for the passage of vessels from
February 1, 1997, until June 1, 1997.
Dated: June 26, 1996.
J. David Spade,
Rear Admiral, U.S. Coast Guard Commander, 13th Coast Guard District.
[FR Doc. 96-21087 Filed 8-20-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-20662 Oregon-California Potatoes; Assessment Rate
[Federal Register Volume 61, Number 163 (Wednesday, August 21, 1996)]
[Rules and Regulations]
[Pages 43144-43146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20662]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
7 CFR Part 947
[Docket No. FV96-947-1 FIR]
Oregon-California Potatoes; Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Agriculture (Department) is adopting as a
final rule, with an addition, the provisions of an interim final rule
that established an assessment rate for the Oregon-California Potato
Committee (Committee) under Marketing Order No. 947 for the 1967-97 and
subsequent fiscal periods. The Committee is responsible for local
administration of the marketing order which regulates the handling of
Irish potatoes grown in Oregon-California. Authorization to assess
potato handlers enables the Committee to incur expenses that are
reasonable and necessary to administer the program.
EFFECTIVE DATE: Effective on July 1, 1996.
FOR FURTHER INFORMATION CONTACT:
Martha Sue Clark, Program Assistant, Marketing Order Administration
Branch, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room
2523-S, Washington, DC 20090-6456, telephone 202-720-9918, FAX 202-720-
5698, or Teresa L. Hutchinson, Marketing Specialist, Northwest
Marketing Field Office, Fruit and Vegetable Division, AMS, USDA, Green-
Wyatt Federal Building, room 369, 1220 Southwest Third Avenue,
Portland, OR 97204, telephone 503-326-2724, FAX 503-326-7440. 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 2523-S,
Washington, DC 20090-6456, telephone 202-720-2491, FAX 202-720-5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 114 and Order No. 947, both as amended (7 CFR part 947),
regulating the handling of Irish potatoes grown in Oregon-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 Department is issuing this rule in conformance with Executive
Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. Under the marketing order now in effect, Oregon-
California potato handlers are subject to assessments. Funds to
administer the order are derived from such assessments. It is intended
that the assessment rate as issued herein will be applicable to all
assessable potatoes beginning July 1,
[[Page 43145]]
1996, and continuing until amended, suspended, or terminated. 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 to be exempted
therefrom. Such 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.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (FRA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this rule on small entities.
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 the 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 550 producers of Oregon-California potatoes
in the production area and approximately 40 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. The majority of Oregon-California potato
producers and handlers may be classified as small entities.
The Oregon-California potato marketing order provides authority for
the Committee, with the approval of the Department, to formulate an
annual budget of expenses and collect assessments from handlers to
administer the program. The members of the Committee are producers and
handlers of Oregon-California potatoes. They are familiar with the
Committee's needs and with the costs for goods and services in their
local area and are thus in a position to formulate an appropriate
budget and assessment rate. The assessment rate is formulated and
discussed in a public meeting. Thus, all directly affected persons have
an opportunity to participate and provide input.
The Committee met on March 28, 1996, and unanimously recommended
1996-97 expenditures of $61,200 and an assessment rate of $0.005 per
hundredweight of potatoes. In comparison, last year's budgeted
expenditures were $46,200. The assessment rate of $0.005 is $0.001 less
than last year's established rate. Major expenditures recommended by
the Committee for the 1996-97 year include $30,000 for an agreement
with the Oregon Potato Commission to provide services to the Committee
and $8,100 for a contingency fund. Budgeted expenses for these items in
1995-96 were $24,000 and $100, respectively. The contingency fund was
increased as the Committee is considering a possible marketing research
and development project in conjunction with the Oregon Potato
Commission.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses by expected shipments of Oregon-
California potatoes. Potato shipments for the year are estimated at
7,400,000 hundredweight which should provide $37,000 in assessment
income. Income derived from handler assessments, along with funds from
the Committee's authorized reserve, will be adequate to cover budgeted
expenses. Funds in the reserve will be kept within the maximum
permitted by the order.
An interim final rule regarding this action was published in the
May 31, 1996, issue of the Federal Register (61 FR 27247). That interim
final rule added a new subpart heading--Assessment Rates and
Sec. 947.247 to establish an assessment rate for the Committee. That
rule provided that interested persons could file comments through July
1, 1996. No comments were received.
This action will reduce the assessment obligation imposed on
handlers. While this rule will impose some additional costs on
handlers, the costs are in the form of uniform assessments on all
handlers. Some of the additional costs may be passed on to producers.
However, these costs will be offset by the benefits derived from the
operation of the marketing order. Therefore, the AMS has determined
that this rule will not have a significant economic impact on a
substantial number of small entities.
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by the
Secretary upon recommendation and information submitted by the
Committee or other available information.
Although this assessment rate is effective for an indefinite
period, the Committee will continue to meet prior to or during each
fiscal period to recommend a budget of expenses and consider
recommendations for modification of the assessment rate. The dates and
times of Committee meetings are available from the Committee or the
Department. Committee meetings are open to the public and interested
persons may express their views at thee meetings. The Department will
evaluate Committee recommendations and other available information to
determine whether modification of the assessment rate is needed.
Further rulemaking will be undertaken as necessary. The Committee's
1996-97 budget and those for subsequent fiscal periods will be reviewed
and, as appropriate, approved by the Department.
After consideration of all relevant material presented, including
the information and recommendation submitted by the Committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
This final rule also adds a new subpart heading--Handling
Regulations to the Code of Federal Regulations immediately preceding
Sec. 947.340 Handling regulation.
Pursuant to 5 U.S.C. 553, it is also found and determined that good
cause exists for not postponing the effective date of this rule until
30 days after publication in the Federal Register because: (1) The
Committee needs to have sufficient funds to pay its expenses which are
incurred on a continuous basis; (2) the 1996-97 fiscal period began on
July 1, 1996, and the marketing order requires that the rate of
assessment for each fiscal period apply to all assessable potatoes
handled during such fiscal period; (3) handlers are aware of this
action which was unanimously recommended by the Committee at a public
meeting and is similar to other assessment rate actions issued in past
years; and (4) an interim final rule was published on this action and
provided for a 30-day comment period, and no comments were received.
[[Page 43146]]
List of Subjects in 7 CFR Part 947
Marketing agreements, Potatoes, Reporting and recordkeeping
requirements.
Accordingly, the interim final rule amending 7 CFR part 947 which
was published at 61 FR 27247 on May 31, 1996, is adopted as a final
rule with the following change:
PART 947--IRISH POTATOES GROWN IN MODOC AND SISKIYOU COUNTIES,
CALIFORNIA, AND IN ALL COUNTIES IN OREGON EXCEPT MALHEUR COUNTY
1. The authority citation for 7 CFR part 947 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
PART 947--[AMENDED]
2. Part 947 is amended by adding a new subpart heading immediately
preceding Sec. 947.340 to read as follows:
Note: This subpart heading will appear in the Code of Federal
Regulations.
Subpart--Handling Regulations
Dated: August 8, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-20662 Filed 8-20-96; 8:45 am]
BILLING CODE 3410-02-M
Complete official Federal Register PDF
FR Doc. 96-20661 Southeastern Potatoes; Assessment Rate
[Federal Register Volume 61, Number 163 (Wednesday, August 21, 1996)]
[Rules and Regulations]
[Pages 43146-43147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20661]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
7 CFR Part 953
[Docket No. FV96-953-1 FIR]
Southeastern Potatoes; Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Agriculture (Department) is adopting as a
final rule, with an addition, the provisions of an interim final rule
that established an assessment rate for the Southeastern Potato
Committee (Committee) under Marketing Order No. 953 for the 1996-97 and
subsequent fiscal periods. The Committee is responsible for local
administration of the marketing order which regulates the handling of
Irish potatoes grown in two southeastern States (Virginia and North
Carolina). Authorization to assess potato handlers enables the
Committee to incur expenses that are reasonable and necessary to
administer the program.
DATES: Effective on June 1, 1996.
FOR FURTHER INFORMATION CONTACT:
Martha Sue Clark, Program Assistant, Marketing Order Administration
Branch, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room
2523-S, Washington, DC 20090-6456, telephone 202-720-9918, FAX 202-720-
5698. 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
2523-S, Washington, DC 20090-6456, telephone 202-720-2491, FAX 202-720-
5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 104 and Order No. 953, both as amended (7 CFR part 953,
regulating the handling of Irish potatoes grown in two southeastern
States (Virginia and North Carolina), 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 Department is issuing this rule in conformance with Executive
Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. Under the marketing order now in effect, Virginia-North
Carolina potato handlers are subject to assessments. Funds to
administer the order are derived from such assessments. It is intended
that the assessment rate as issued herein will be applicable to all
assessable potatoes beginning June 1, 1996, and continuing until
amended, suspended, or terminated. 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 of modification of the order or to be exempted
therefrom. Such 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.
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.
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 the 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 150 producers of Southeastern potatoes in
the production area and approximately 60 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. The majority of Southeastern potato producers and handlers
may be classified as small entities.
The Southeastern potato marketing order provides authority for the
Committee, with the approval of the Department, to formulate an annual
budget of expenses and collect assessments from handlers to administer
the program. The members of the Committee are producers and handlers of
Southeastern potatoes. They are familiar with the Committee's needs and
with the costs for goods and services in their local area and are thus
in a position to formulate an appropriate budget and assessment rate.
The assessment rate is formulated and discussed in a public meeting.
Thus, all directly affected persons have an opportunity to participate
and provide input.
The Committee met on April 18, 1996, and unanimously recommended
1996-97 expenditures of $12,000, the same as last year, and an
assessment rate of $0.0075 per hundredweight. The assessment rate of
$0.0075 is $0.0025 higher than last year's established rate. The major
expenditures include $7,800 for the manager's and secretarial salaries
and $900 for travel expenses.
The assessment rate recommended by the Committee was based on last
year's shipments of 1,549,268 hundredweight of Southeastern potatoes,
which should provide $11,619,51 in assessment income. Income derived
from handler assessments, along with funds from the Committee's
authorized reserve, will be adequate to cover budgeted expenses. Funds
in the reserve will be kept within the maximum permitted by the order.
[[Page 43147]]
An interim final rule regarding this action was published in the
May 31, 1996, issue of the Federal Register (61 FR 27248). That interim
final rule added a new subpart heading--Assessment Rates and
Sec. 953.253 to establish an assessment rate for the Committee. That
rule provided that interested persons could file comments through July
1, 1996. No comments were received.
While this rule will impose some additional costs on handlers, the
costs are in the form of uniform assessments on all handlers. Some of
the additional costs may be passed on to producers. However, these
costs will be offset by the benefits derived by the operation of the
marketing order. Therefore, the AMS has determined that this rule will
not have a significant economic impact on a substantial number of small
entities.
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by the
Secretary upon recommendation and information submitted by the
Committee or other available information.
Although this assessment rate is effective for an indefinite
period, the Committee will continue to meet prior to or during each
fiscal period to recommend a budget of expenses and consider
recommendations for modification of the assessment rate. The dates and
times of Committee meetings are available from the Committee or the
Department. Committee meetings are open to the public and interested
persons may express their views at these meetings. The Department will
evaluate Committee recommendations and other available information to
determine whether modification of the assessment rate is needed.
Further rulemaking will be undertaken as necessary. The Committee's
1996-97 budget and those for subsequent fiscal periods will be reviewed
and, as appropriate, approved by the Department.
After consideration of all relevant material presented, including
the information and recommendation submitted by the Committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
This final rule also adds a new subpart heading--Handling
Regulations to the Code of Federal Regulations immediately preceding
Sec. 953.322 Handling regulation.
Pursuant to 5 U.S.C. 553, it is also found and determined that good
cause exists for not postponing the effective date of this rule until
30 days after publication in the Federal Register because: (1) The
Committee needs to have sufficient funds to pay its expenses which are
incurred on a continuous basis; (2) the 1996-97 fiscal period began on
June 1, 1996, and the marketing order requires that the rate of
assessment for each fiscal period apply to all assessable potatoes
handled during such fiscal period; (3) handlers are aware of this
action which was unanimously recommended by the Committee at a public
meeting and is similar to other assessment rate actions issued in past
years; and (4) an interim final rule was published on this action and
provided for a 30-day comment period, and no comments were received.
List of Subjects in 7 CFR Part 953
Marketing agreements, Potatoes, Reporting and recordkeeping
requirements.
Accordingly, the interim final rule amending 7 CFR part 953 which
was published at 61 FR 27248 on May 31, 1996, is adopted as a final
rule with the following change:
PART 953--IRISH POTATOES GROWN IN SOUTHEASTERN STATES
1. The authority citation for 7 CFR part 953 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
PART 953--[ADDED]
2. Part 953 is amended by adding a new subpart heading immediately
preceding Sec. 953.322 to read as follows:
Note: This subpart heading will appear in the Code of Federal
Regulations.
Subpart--Handling Regulations
Dated: August 8, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-20661 Filed 8-20-96; 8:45 am]
BILLING CODE 3410-02-P-M
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