[Federal Register: July 6, 2004 (Volume 69, Number 128)]
[Rules and Regulations]
[Page 40534-40537]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06jy04-2]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 981
[Docket No. FV04-981-4 IFR]
Almonds Grown in California; Revision of Quality Control
Provisions
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This rule revises the quality control provisions under the
California almond marketing order (order). The order regulates the
handling of almonds grown in California and is administered locally by
the Almond Board of California (Board). Under the order, handlers
receiving almonds from growers must have them inspected to determine
the percentage of inedible almonds in each lot. Based on these
inspections, handlers incur an inedible disposition obligation. This
obligation is calculated by the Board for each variety of almonds, and
handlers must satisfy the obligation by disposing of inedible almonds
or almond material in outlets such as oil and animal feed. This rule
changes the varietal classifications of almonds for which inedible
obligations are calculated. This will allow the Board to determine
handlers' inedible disposition obligations by varietal classifications
consistent with handler reporting requirements and current industry
harvesting and marketing practices.
DATES: Effective August 1, 2004; comments received by September 7, 2004
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 sent to the Docket Clerk,
Marketing
[[Page 40535]]
Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA,
1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237;
Fax: (202) 720-8938, E-mail: moab.docketclerk@usda.gov, or Internet:
http://www.regulations.gov. All comments should reference the docket
number and the date and page number of this issue of the Federal
Register and will be available for public inspection in the Office of
the Docket Clerk during regular business hours, or can be viewed at:
http://www.ams.usda.gov/fv/moab.html.
FOR FURTHER INFORMATION CONTACT: Martin Engeler, Assistant Regional
Manager, California Marketing Field Office, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 2202
Monterey Street, Suite 102B, Fresno, California 93721; telephone: (559)
487-5901, Fax: (559) 487-5906; or George Kelhart, Technical Advisor,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC
20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence
Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-
2491, Fax: (202) 720-8938, or E-mail: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order
No. 981, as amended (7 CFR part 981), regulating the handling of
almonds grown in 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 of Agriculture (USDA) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to have retroactive effect.
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 USDA a petition
stating that the order, any provision of the order, or any obligation
imposed in connection with the order is not in accordance with law and
request a modification of the order or to be exempted therefrom. Such
handler is afforded the opportunity for a hearing on the petition.
After the hearing USDA would rule on the petition. The Act provides
that the district court of the United States in any district in which
the handler is an inhabitant, or has his or her principal place of
business, has jurisdiction to review USDA's ruling on the petition,
provided an action is filed not later than 20 days after the date of
the entry of the ruling.
This rule revises the quality control provisions under the order.
Under the order, handlers receiving almonds from growers must have them
inspected to determine the percentage of inedible almonds in each lot.
Based on these inspections, handlers incur an inedible disposition
obligation. This obligation is calculated by the Board for each variety
of almonds, and handlers must satisfy the obligation by disposing of
inedible almonds or almond material in outlets such as oil and animal
feed. This rule changes the varietal classifications of almonds for
which inedible obligations are calculated. This will allow the Board to
determine handlers' inedible disposition obligations by varietal
classifications consistent with handler reporting requirements and
current industry harvesting and marketing practices. This action was
unanimously recommended by the Board at a meeting on May 20, 2004.
Section 981.42 of the almond marketing order provides authority for
quality control regulations, including a requirement that almonds must
be inspected prior to processing (incoming inspection) to determine, by
variety, the percentage of inedible kernels in each lot received. The
percentage of inedible kernels are reported to individual handlers and
the Board, by variety, as determined by the incoming inspection. The
Board then calculates each handler's inedible disposition obligation by
variety, and handlers are required to dispose of a quantity of almonds
equal to their inedible weight obligation.
Section 981.442(a)(2) of the order's rules and regulations defines
``variety'' for the purpose of calculating handlers' inedible
disposition obligations. Currently, ``variety'' is defined as that
variety of almonds which constitutes at least 90 percent of the almonds
in a lot. Further, if no variety constitutes at least 90 percent of the
almonds in a lot, the lot is classified as ``mixed''. One such mixture
is the combination of the Butte and Padre varieties of almonds, which
have very similar characteristics. It has become common practice within
the industry to harvest the two varieties together and sell them under
the marketing classification known as ``California''. In addition to
harvesting and marketing these varieties together, handlers also
present them for inspection and report them as ``Butte-Padre'', rather
than ``mixed'', regardless of the percentages of each variety that
comprise the lot. Mixtures of the Butte and Padre varieties are
classified by the Board as ``mixed'' for purposes of calculating
inedible disposition obligations if neither variety constitutes at
least 90 percent of the lot.
To be consistent with the harvesting, reporting, and marketing of
the Butte and Padre varieties, mixtures of these varieties should be
classified as ``Butte-Padre'' for the purpose of determining handlers''
inedible disposition obligations.
Currently, Sec. 981.442(a)(2) also specifies that in cases where
it is not known which variety constitutes at least 90 percent of a
mixed lot, the lot should be classified as ``unknown''. In the past,
very small ``door lot'' deliveries were accumulated by gathering
almonds from isolated trees of unknown varieties. This practice is no
longer common in the industry, and virtually all almond deliveries
consist of known varieties of almonds. Thus, the use of ``unknown'' is
no longer necessary or appropriate.
Harvesting, marketing, and reporting mixtures of Butte and Padre
varieties of almonds together as one varietal type and reporting lots
of unknown varieties of almonds as ``mixed'' are now common practices
in the industry. In order for the Board to calculate handlers' inedible
disposition obligations by variety and to be consistent with current
industry practices, it is necessary to implement changes to the
administrative rules and regulations. Thus, the Board recommended that
the rules and regulations be revised.
Section 981.442(a)(2) of the quality control regulations regarding
the classification of varietal types for the purpose of determining
handlers' inedible disposition obligations is therefore revised to add
``Butte-Padre'' as the varietal classification for mixed lots of the
Butte and Padre varieties of almonds, regardless of the percentage of
each variety in the lot. Other mixed variety lots that do not contain
at least 90 percent of one variety will continue to be classified as
``mixed''. Lots of almonds for which the variety or varieties are not
specified will also be classified as ``mixed''. Accordingly, the
[[Page 40536]]
``unknown'' varietal classification is eliminated.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this rule on small entities. Accordingly, AMS has
prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and 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 6,000 producers of almonds in the
production area and approximately 119 handlers subject to regulation
under the marketing order. Small agricultural producers are defined by
the Small Business Administration (13 CFR 121.201) as those having
annual receipts less than $750,000, and small agricultural service
firms are defined as those whose annual receipts are less than
$5,000,000.
Data for the most recently completed crop year indicate that about
38 percent of the handlers shipped over $5,000,000 worth of almonds and
about 62 percent of the handlers shipped under $5,000,000 worth of
almonds. In addition, based on production and grower price data
reported by the California Agricultural Statistics Service (CASS), and
the total number of almond growers, the average annual grower revenue
is estimated to be approximately $199,000. Based on the foregoing, the
majority of handlers and producers of almonds may be classified as
small entities.
This rule revises the quality control provisions under the order.
Under the order, handlers receiving almonds from growers must have them
inspected to determine the percentage of inedible almonds in each lot.
Based on these inspections, handlers incur an inedible disposition
obligation. This obligation is calculated by the Board for each variety
of almonds, and handlers must satisfy the obligation by disposing of
inedible almonds or almond material in outlets such as oil and animal
feed. This rule changes the varietal types of almonds for which
inedible obligations are calculated. This will allow the Board to
determine handlers' inedible disposition obligations by varietal types
that are consistent with current industry harvesting and marketing
practices, and handler reporting requirements.
Specifically, this rule revises Sec. 981.442(a)(2) of the
regulations by adding ``Butte-Padre'' as the varietal classification
for mixed lots of Butte and Padre almonds, regardless of the percentage
of each variety in the lot. This rule also designates ``mixed'' as the
varietal classification for lots of unidentified varieties of almonds.
Finally, the ``unknown'' classification is removed. These revisions
will permit the Board to calculate handlers' inedible disposition
obligations consistent with current industry harvesting and marketing
practices, and handler reporting requirements. This action was reviewed
and unanimously recommended by the Food Quality and Safety Committee
(FQSC) at its April 27, 2004, meeting, and by the Board at its meeting
held on May 20, 2004.
These revisions are not expected to have a financial impact on
handlers, including small businesses. The regulations are applied
uniformly on all handlers, regardless of size. This action imposes no
additional reporting or recordkeeping requirements on either small or
large California almond handlers. As with all Federal marketing order
programs, reports and forms are periodically reviewed to reduce
information requirements and duplication by industry and public sector
agencies.
USDA has not identified any relevant Federal rules that duplicate,
overlap, or conflict with this rule.
The meetings of the FQSC and the Board were both widely publicized
throughout the California almond industry and all interested persons
were invited to attend the meetings and participate in deliberations on
all issues. Like all committee and Board meetings, those held on April
27, and May 20, 2004, were public meetings and all entities, both large
and small, were able to express views on this issue. Finally,
interested persons are invited to submit information on the regulatory
and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html.
Any questions about the compliance
guide should be sent to Jay Guerber at the previously mentioned address
in the FOR FURTHER INFORMATION CONTACT section.
This rule invites comments on a change to the quality control
requirements under the California almond marketing order. Any comments
received will be considered prior to finalization of this rule.
After consideration of all relevant material presented, including
the information and recommendation submitted by the Board 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.
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) The 2004-05 crop year begins on August 1, 2004,
and quality control regulations apply to all almonds received during
the entire crop year; (2) handlers are aware of this action which was
unanimously recommended by the Board at a public meeting; and (3) this
interim final rule provides a 60-day comment period, and all comments
timely received will be considered prior to finalization of this rule.
List of Subjects in 7 CFR Part 981
Almonds, Marketing agreements, Nuts, Reporting and recordkeeping
requirements.
0
For the reasons set forth in the preamble, 7 CFR part 981 is amended as
follows:
PART 981--ALMONDS GROWN IN CALIFORNIA
0
1. The authority citation for 7 CFR part 981 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. Section 981.442 is amended by revising paragraph (a)(2) to read as
follows:
Sec. 981.442 Quality control.
(a) * * *
(1) * * *
(2) Variety. For the purpose of classifying receipts by variety to
determine a handler's disposition obligation, ``variety'' shall mean
that variety of almonds which constitutes at least 90 percent of the
lot: Provided, That lots containing a combination of Butte and Padre
varieties only, shall be classified as ``Butte-Padre'', regardless of
the percentage of each variety in the lot. If no variety constitutes at
least 90 percent of the almonds in a lot, the lot shall be classified
as ``mixed'': Provided further, That if the variety or varieties of
almonds in a lot are not identified, the lot shall be classified as
``mixed'',
[[Page 40537]]
regardless of the percentage of each variety in a lot.
* * * * *
Dated: June 30, 2004.
Kenneth C. Clayton,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 04-15278 Filed 7-2-04; 8:45 am]
BILLING CODE 3410-02-P