[Federal Register: August 16, 2006 (Volume 71, Number 158)]
[Proposed Rules]
[Page 47152-47154]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16au06-28]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 47152]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 981
[Docket No. FV06-981-2 PR]
Almonds Grown in California; Changes to Incoming Quality Control
Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This rule invites comments on changing the incoming quality
control requirements under the administrative rules and regulations of
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). These changes would help
minimize the risk of aflatoxin in almonds by removing inedible kernels
from human consumption. Inedible almonds are poor quality kernels or
pieces of defective kernels that may be contaminated with aflatoxin.
This action is intended to improve the overall quality of almonds
placed into consumer channels.
DATES: Comments must be received by August 23, 2006.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent to the 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. 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: Maureen T. Pello, Assistant Regional
Manager, or Kurt Kimmel, Regional Manager, California Marketing Field
Office, Marketing Order Administration Branch, Fruit and Vegetable
Programs, AMS, USDA, telephone: (559) 487-5901, Fax: (559) 487-5906, or
E-mail: Maureen.Pello@usda.gov, or Kurt.Kimmel@usda.gov.
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 proposed 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 proposed rule invites comments on changing the incoming
quality control requirements under the administrative rules and
regulations of the order. These changes would help minimize the risk of
aflatoxin in almonds by removing inedible almonds from human
consumption. Inedible almonds are poor quality kernels or pieces of
defective kernels that may be contaminated with aflatoxin. These
changes are intended to improve the overall quality of almonds placed
into consumer channels, and were recommended by the Board at a meeting
on May 18, 2006.
Section 981.42 of the order provides authority for a quality
control program. Paragraph (a) of that section requires handlers to
obtain incoming inspections on almonds received from growers to
determine the percent of inedible kernels in each lot of any variety.
Based on these inspections, handlers incur an inedible disposition
obligation. They must satisfy their obligation by disposing of inedible
almonds in outlets such as oil and animal feed.
Section 981.442(a)(4) of the order's administrative rules and
regulations specifies that the weight of inedible kernels in excess of
1 percent of kernel weight shall constitute that handler's disposition
obligation. Handlers must satisfy the disposition obligation by
delivering packer pickouts, kernels rejected in blanching, pieces of
kernels, meal accumulated in manufacturing, or other material, to
crushers, feed manufacturers, feeders, or dealers in nut wastes on
record with the Board as accepted users of such product. Accepted users
dispose of this material through non-human consumption outlets.
Paragraph (a)(5) of Sec. 981.442 specifies further that at least 25
percent of a handler's total annual disposition obligation be satisfied
with inedible kernels as defined under Sec. 981.408. Handlers with
total annual inedible obligations of less than 1,000 pounds are exempt
from the 25 percent requirement.
Board research has shown that aflatoxin in almonds is directly
related to insect damage in inedible kernels. In order to help minimize
the risk of aflatoxin in almonds, the Board recommended reducing the
tolerance for
[[Page 47153]]
inedible kernels from 1 to .50 percent, and increasing the percent of a
handler's total annual inedible obligation that must be true inedibles
from 25 to 50 percent. Such revisions are intended to improve the
overall quality of almonds placed into consumer channels.
All of the Board's members supported the change regarding true
inedibles, but three of the Board's 10 members opposed the change to
reduce the incoming tolerance for inedible kernels (the Board's
chairperson abstained). Those opposed pointed to the existing 2 percent
outgoing tolerance and expressed concern about additional costs that
handlers may incur to separate out inedible kernels. The majority of
Board members supported both changes. Paragraphs (a)(4) and (a)(5) of
Sec. 981.442 are proposed to be revised accordingly.
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 115 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 of less than $750,000, and small agricultural service
firms are defined as those whose annual receipts are less than
$6,500,000.
Data for the most recently completed crop year indicate that about
52 percent of the handlers shipped under $6,500,000 worth of almonds.
Dividing average almond crop value for 2003-2005 reported by the
National Agricultural Statistics Service ($2.171 billion) by the number
of producers (6,000) yields an average annual producer revenue estimate
of about $362,000. Based on the foregoing, about half of the handlers
and a majority of almond producers may be classified as small entities.
This rule would revise paragraphs (a)(4) and (a)(5) of Sec.
981.442 of the order's administrative rules and regulations regarding
inedible almonds. These changes would help minimize the risk of
aflatoxin in almonds by removing inedible kernels from human
consumption. Inedible almonds are poor quality kernels or pieces of
defective kernels that may be contaminated with aflatoxin.
Specifically, this action would reduce the tolerance for inedible
kernels in each variety of almonds received by a handler from 1 to .50
percent, and increase the percent of a handler's annual inedible
obligation that must be satisfied with dispositions containing inedible
almonds from 25 to 50 percent. Authority for these changes is provided
in Sec. 981.42(a) of the order.
Regarding the impact of the proposed action on affected entities,
this action is intended to improve the overall quality of almonds
placed into consumer channels and therefore would be beneficial to the
industry. In addition, this rule is not expected to change handler
inspection costs. Handlers must currently have an incoming inspection
done on each lot of almonds received to determine the percent of
inedible kernels. Additionally, inedible almond dispositions must be
inspected to determine the percent of inedible kernels in such
dispositions. Such inspections are performed by the inspection agency,
which means the Federal-State Inspection Service. The inspection agency
charges a fee of $40 per hour, plus $0.75 per ton, with a minimum total
fee of $55, to perform an inedible disposition inspection.
The Board considered various alternatives and options before making
its recommendation on inedible almonds. It was decided that a 0.5
percent tolerance was appropriate rather than 0 percent. As previously
stated, opposition Board members pointed to the existing 2 percent
outgoing tolerance and expressed concern about additional costs that
handlers may incur to separate out inedible kernels. Ultimately, the
majority of Board members supported both changes. The Board's Food
Quality and Safety (FQS) Committee met again via teleconference on June
13, 2006, and concurred with the Board's recommendation.
This action would impose no additional reporting and recordkeeping
burden on California almonds handlers. In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. Chapter 35), the information
collection requirements in this rule have been approved by the Office
of Management and Budget (OMB) under OMB Control No. 0581-0178. 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.
AMS is committed to compliance with the Government Paperwork
Elimination Act, which requires Government agencies in general to
provide the public the option of submitting information or transacting
business electronically to the maximum extent possible.
USDA has not identified any relevant Federal rules that duplicate,
overlap, or conflict with this rule. There are U.S. Standards for
Grades of Shelled Almonds (7 CFR 51.2105 through 51.2131) and U.S.
Standards for Grades of Almonds in the Shell (7 CFR 51.2075 through
51.2091) issued under the Agricultural Marketing Act of 1946 (7 U.S.C.
1621 through 1627). However, these standards are voluntary for the
almond industry.
Additionally, the meetings were 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 Board meetings, the task force meetings on March 23 and April
26, 2006, the FQS Committee meetings on April 11, May 8, and June 13,
2006, and the Board meeting on May 18, 2006, 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.
A 7-day comment period is provided to allow interested persons to
respond to this proposal. Seven days is deemed appropriate because the
2006-07 crop year begins on August 1, 2006, and therefore, this rule,
if adopted, should be in effect as soon as possible.
List of Subjects in 7 CFR Part 981
Almonds, Marketing agreements, Nuts, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 981 is
proposed to be amended as follows:
[[Page 47154]]
PART 981--ALMONDS GROWN IN CALIFORNIA
1. The authority citation for 7 CFR part 981 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 981.442 is amended by revising the first sentence of
paragraph (a)(4)(i) and the eleventh sentence in paragraph (a)(5) to
read as follows:
Sec. 981.442 Quality control.
(a) * * *
(4) Disposition obligation. (i) The weight of inedible kernels in
excess of .50 percent of kernel weight reported to the Board of any
variety received by a handler shall constitute that handler's
disposition obligation. * * *
* * * * *
(5) Meeting the disposition obligation.
* * * At least 50 percent of a handler's total crop year inedible
disposition obligation shall be satisfied with dispositions consisting
of inedible kernels as defined in Sec. 981.408: Provided, That this 50
percent requirement shall not apply to handlers with total annual
obligations of less than 1,000 pounds. * * *
* * * * *
Dated: August 9, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 06-6941 Filed 8-11-06; 2:16 pm]
BILLING CODE 3410-02-P