[Federal Register: December 2, 2005 (Volume 70, Number 231)]
[Rules and Regulations]
[Page 72195-72196]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02de05-1]
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Rules and Regulations
Federal Register
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[[Page 72195]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 984
[Docket No. FV05-984-1 FIR]
Walnuts Grown in California; Suspension of Provision Regarding
Eligibility of Walnut Marketing Board Members
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final
rule, without change, an interim final rule suspending the 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 that addresses a change in industry structure affecting
cooperative marketing association related positions. This allows 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.
EFFECTIVE DATE: January 3, 2006.
FOR FURTHER INFORMATION CONTACT: Martin Engeler, Senior Marketing
Specialist, Marketing Order Administration Branch, Fruit and Vegetable
Programs, AMS, USDA, 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.''
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. 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 continues in effect an action that suspended a provision
of the order pertaining to the eligibility of members to serve on the
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 that addresses a change in the
industry structure affecting cooperative marketing association related
positions. This allows 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).
Prior to implementation of the interim final rule, Sec. 984.38 of
the order provided, 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.
[[Page 72196]]
In order to address this change, Sec. 984.38 of the order needed
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 reviewed the
recommendation and determined that suspending Sec. 984.38 of the order
regarding eligibility requirements of Board members would accomplish
that objective. As previously discussed, Sec. 984.38 provided 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 were not suspended, four of the
Board members that represented the cooperative would be 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 enables 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 continues to suspend 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.
Final 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 rule on small entities.
Accordingly, AMS has prepared this final 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 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).
Current industry information from the Board indicates that 35 of
the 50 walnut handlers, or 70 percent, shipped less than $6,000,000
worth of walnuts and could be considered small businesses by the Small
Business Administration. In addition, is it estimated that less than 1
percent of walnut producers 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 continues in effect an action that suspended provisions
of the order pertaining to eligibility of members to serve on the
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 were 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 enables 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 continues to suspend order language pertaining to
membership eligibility on the 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.
An interim final rule concerning this action was published in the
Federal Register on August 26, 2005 (70 FR 50151). Copies of the rule
were also mailed or sent via facsimile to all Walnut handlers. In
addition, the rule was made available through the Internet by USDA and
the Office of the Federal Register. That rule provided for a 60-day
comment period which ended October 25, 2005. No comments were received.
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.
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.
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
Accordingly, the interim final rule amending 7 CFR part 984 which was
published at 70 FR 50151 on August 26, 2005, is adopted as a final rule
without change.
Dated: November 22, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-23552 Filed 12-1-05; 8:45 am]
BILLING CODE 3410-02-P