[Federal Register: August 26, 2005 (Volume 70, Number 165)]
[Rules and Regulations]
[Page 50151-50153]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26au05-3]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 984
[Docket No. FV05-984-1 IFR]
Walnuts Grown in California; Suspension of Provision Regarding
Eligibility of Walnut Marketing Board Members
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This rule suspends a provision of the walnut marketing order
(order) pertaining to eligibility of members to serve on the Walnut
Marketing Board (Board). The order regulates the handling of walnuts
grown in California, and the Board is responsible for local
administration of the order. This action is an interim measure to
address a change in industry structure affecting cooperative marketing
association related positions. This will allow the Board to continue to
represent the industry's interests while the order is amended to
reflect the change in industry structure. The Board unanimously
recommended a suspension action by mail balloting in early July, 2005.
DATES: Effective August 29, 2005; comments received by October 25, 2005
will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning the proposal to: Docket Clerk, Marketing 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.
Comments should reference the docket number and
the date and page number of this issue of Federal Register and will be
made available for public inspection in the Office of the Docket Clerk
during
[[Page 50152]]
regular business hours, or can be viewed at: http://www.ams.usda.gov/fv/moab.html
.
FOR FURTHER INFORMATION CONTACT: Martin Engeler, Senior Marketing
Specialist, Marketing Order Administration Branch, Fruit and Vegetable
Programs, AMS, USDA, 2202 Monterey Street, Suite 102-B, Fresno,
California 93721; Telephone: (559) 487-5901, Fax: (559) 487-5906; or
Kathleen M. Finn, Formal Rulemaking Team Leader, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400
Independence Avenue SW., STOP 0237, Washington, DC 20250-0237;
telephone: (202) 720-2491, or 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
Agreement and Order No. 984, both as amended (7 CFR part 984),
hereinafter referred to as the ``order'', regulating the handling of
walnuts grown in the State of California. The marketing agreement and
order are effective pursuant to 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 proposal has been reviewed under Executive Order 12988, Civil
Justice Reform. This proposal is not intended to have retroactive
effect. This proposed rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this proposed 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. A
handler is afforded the opportunity for a hearing on the petition.
After the hearing USDA would rule on the petition. The Act provides
that the district court of the United States in any district in which
the handler is an inhabitant, or has his or her principal place of
business, has jurisdiction to review USDA's ruling on the petition,
provided an action is filed not later than 20 days after the date of
the entry of the ruling.
This rule suspends a provision of the walnut marketing order
(order) pertaining to eligibility of members to serve on the Walnut
Marketing Board (Board). The order regulates the handling of walnuts
grown in California, and the Board is responsible for local
administration of the order. This action is an interim measure to
address a change in industry structure affecting cooperative marketing
association related positions. This will allow the Board to continue to
represent the industry's interests while the order is amended to
reflect the change in industry structure. The Board unanimously
recommended a suspension action by mail balloting in early July, 2005.
Section 984.35 of the order establishes the Board as the
administrative body appointed by USDA to administer the order. That
section also specifies composition of the Board, and allocates seats to
cooperative and independent growers and handlers. The Board is
comprised of ten members and ten alternate members. Two members
represent handlers that are cooperative marketing associations of
growers (cooperative handlers), and two members represent growers who
market their walnuts through cooperative handlers. Two members
represent handlers that are not cooperative marketing associations of
growers (independent handlers), and two members represent growers that
market their walnuts through independent handlers. One member
represents growers that market their walnuts through either cooperative
or independent handlers, whichever category handled over fifty percent
of the walnuts handled by all handlers in the industry in the
immediately preceding two marketing years. In recent years, this Board
position has been allocated to the independent category. One member
represents neither growers nor handlers (public member).
Section 984.38 of the order provides, in part, that no person shall
be selected or continue to serve as a member or alternate member of the
Board unless that person is engaged in the business of the group he or
she was nominated to represent.
A change recently occurred in the walnut industry that impacts
composition of the Board. A large cooperative marketing association
recently converted to a publicly held corporation. The former
cooperative association held two grower and two handler positions on
the Board.
In order to address this change, section 984.38 of the order needs
to be suspended to allow a representative Board to continue in place
while the order is amended to reflect the new industry structure.
Therefore, the Board recommended through a mail ballot vote in early
July, 2005, to suspend the order provision. USDA has reviewed the
recommendation and has determined that suspending Sec. 984.38 of the
order regarding eligibility requirements of Board members will
accomplish that objective. As previously discussed, Sec. 984.38
provides that no person shall be selected or continue to serve as a
member or alternate member of the Board unless that person is engaged
in the business of the group he or she was nominated to represent.
If the eligibility requirements are not suspended, four of the
Board members that represented the cooperative become ineligible to
serve on the Board. However, these members continue to represent a
significant portion of the industry. Suspending the order provision
regarding eligibility of Board members allows a complete Board to
remain in place. This action will enable a Board that is representative
of the walnut industry to continue to administer the order without
disruption while the order is being amended to reflect changes in the
industry structure.
This action suspends Sec. 984.38 of the order entitled
``Eligibility''. This action is in the best interest of handlers and
growers in the California walnut industry as the industry transitions
through a structural change.
Initial Regulatory Flexibility 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 proposal on small entities.
Accordingly, AMS has prepared this initial regulatory flexibility
analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 5,000 producers of walnuts in the
production
[[Page 50153]]
area and 50 walnut handlers subject to regulation under the marketing
order. Small agricultural service firms are defined as those whose
annual receipts are less than $6,000,000 and small agricultural
producers have been defined by the Small Business Administration as
those having annual receipts less than $750,000 (13 CFR 121.201).
Industry information from the Walnut Marketing Board indicates that
36 of the 50 walnut handlers, or 72%, shipped less than $6,000,000
worth of walnuts and could be considered small businesses by the Small
Business Administration. In addition, only an estimated 60 producers,
or 1.2%, have annual receipts in excess of $750,000. Based on the
foregoing, the majority of walnut producers and handlers regulated
under the marketing order may be classified as small entities.
This rule suspends provisions of the walnut marketing order (order)
pertaining to eligibility of members to serve on the Walnut Marketing
Board (Board). The order regulates the handling of walnuts grown in
California, and the Board is responsible for local administration of
the order. Specifically, this action suspends Sec. 984.38 of the order
entitled ``Eligibility''.
Due to structural changes in the industry, the order provisions
regarding Board composition no longer accurately reflect the industry
composition. If the eligibility requirements are not suspended, four of
the Board members that represented the cooperative become ineligible to
serve on the Board. However, these members continue to represent a
significant portion of the industry. Suspending the order provision
regarding eligibility of Board members allows a complete Board to
remain in place. This action will enable a Board that still represents
the walnut industry to continue to administer the order without
disruption while the order is being amended to reflect changes in the
industry structure. The Board unanimously recommended suspending order
language by mail balloting in early July, 2005.
Alternatives to this action were considered. One alternative was to
remove the former cooperative members from the Board, which would
result in a 6-member Board. This was not considered a preferred option
because it would limit the size of the Board.
This rule suspends order language pertaining to membership
eligibility on the Walnut Marketing Board. Accordingly, this action
does not impose any additional reporting or recordkeeping requirements,
or any other costs, on either small or large walnut 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. In addition, USDA
has not identified any relevant Federal rules that duplicate, overlap,
or conflict with this rule. 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 the
following Web site: 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 suspending order provisions regarding
eligibility of Board members under the California walnut marketing
order. Any comments received will be considered prior to finalization
of this rule.
After consideration of all relevant material presented, including
the Board's recommendation, and other information, it is found that the
order language being suspended, as hereinafter set forth, no longer
tends 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 Board unanimously recommended these changes; (2) these
changes are needed to allow a representative Board to remain in place
to administer the order; and (3) this rule provides a 60-day comment
period and any comments timely received will be considered prior to
finalization of this rule.
List of Subjects in 7 CFR Part 984
Walnuts, Marketing agreements, Nuts, Reporting and recordkeeping
requirements.
0
For the reasons set forth in the preamble, 7 CFR part 984 is amended as
follows:
PART 984--WALNUTS GROWN IN CALIFORNIA
0
1. The authority citation for 7 CFR part 984 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. In part 984, Sec. 984.38 is suspended indefinitely.
Dated: August 23, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-17055 Filed 8-23-05; 4:46 pm]
BILLING CODE 3410-02-P