[Federal Register: March 2, 2009 (Volume 74, Number 39)]
[Rules and Regulations]
[Page 9045-9047]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02mr09-1]
========================================================================
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
week.
========================================================================
[[Page 9045]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 984
[Doc. No. AMS-FV-08-0091; FV09-984-1 FIR]
Walnuts Grown in California; Changes to Regulations Governing
Board Nominations
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Agriculture (USDA) is adopting, as a final
rule, with a change, an interim final rule revising the administrative
rules and regulations governing nominations for the California Walnut
Board (Board). The Board locally administers the marketing order that
regulates the handling of walnuts grown in California (order). This
rule continues in effect an action that removes references to
independent handlers, revises specifications under which groups of
growers may submit nominations for certain grower positions on the
Board, and corrects numerical references to other sections of the
order. These changes are needed to bring the administrative rules and
regulations into conformance with recently enacted amendments to the
order concerning Board structure and nomination procedures.
DATES: Effective Date: April 1, 2009.
FOR FURTHER INFORMATION CONTACT: Debbie Wray, Marketing Specialist, or
Kurt J. 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:
Debbie.Wray@ams.usda.gov, or Kurt.Kimmel@ams.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@ams.usda.gov.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order
No. 984, as amended (7 CFR part 984), regulating the handling of
walnuts 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.''
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 continues in effect the action that revises the
administrative rules and regulations governing Board nominations by
removing references to ``independent'' handlers, adding language
specifying that groups of growers who marketed an aggregate of at least
500 tons of walnuts through handlers that handled less than 35% of the
prior year's crop may submit nominations for grower positions on the
ballots, and correcting references to order sections that were
renumbered as a result of recent order amendments.
Section 984.35 of the California walnut marketing order provides
for the allocation of grower and handler positions on the Board.
Historically, some members represented the interests of a major
industry cooperative, and some members represented independent
interests. Some members represented the interests of certain production
area districts, and some served the industry ``at large.'' Recently,
the structure of the industry changed when the major cooperative
handler became a publicly-traded corporation. Subsequently, the
industry approved amendments to the order that restructured the Board
to reflect the changes to the industry's composition. Language
specifying membership allocation between cooperative and independent
interests was removed from the order because all production area walnut
handlers are now considered independent. Alternative membership
allocation provisions were added to the order. Board membership
positions are now allocated between growers and handlers, the specific
Districts within the production area, and grower positions with no
District affiliation (``at large'' positions). In the event that one
industry handler handles 35 percent or more of the crop, such handler--
and growers affiliated with such handler--are entitled to a given
number of Board positions. As a result of the amendments, some sections
of the order were renumbered.
Section 984.37 of the order provides authority for the Board, with
the approval of USDA, to make changes to the Board nomination
procedures specified in the order. The procedures are contained in the
order's administrative rules and regulations. Prior to this action,
Sec. 984.437 of the regulations specified that if the ``at large''
grower position on the Board was assigned to represent independent
growers, groups of ten or more growers who marketed a combined volume
of 500 or more tons of walnuts through independent handlers in the
prior year could propose a nominee for the ballot. The previous
regulations also specified that groups of ten or more growers from
[[Page 9046]]
each district who marketed an aggregate of 500 or more tons of walnuts
through independent handlers in the prior year could propose nominees
for the independent grower positions in their districts.
The amended order no longer differentiates between cooperative and
independent entities, and Board positions are no longer apportioned to
represent either cooperative or independent entities. References in the
order to independent handlers have been removed from the provisions
specifying Board nominations. This rule continues in effect the action
that changes Sec. 984.437(a) and (b) of the administrative rules and
regulations by removing references to independent handlers. Changes
made to those paragraphs also specify that groups of ten or more
growers who marketed an aggregate of at least 500 tons of walnuts
through handlers that handled less than 35 percent of the prior year's
crop may nominate growers to serve in the ``at large'' grower
positions. Further revisions to the regulations specify that groups of
ten or more growers from each district who marketed an aggregate of at
least 500 tons of walnuts through handlers that handled less than 35
percent of the prior year's crop may nominate growers to represent each
district. Finally, this rule also continues in effect the revision of
certain references to renumbered order provisions in the regulations
that are no longer correct.
This rule was unanimously recommended by the Board at its meeting
on September 12, 2008.
Final 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 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 the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. The Small Business Administration
(SBA) defines small agricultural service firms as those whose annual
receipts are less than $7,000,000, and defines small agricultural
producers as those whose annual receipts are less than $750,000 (13 CFR
121.201).
There are currently 55 handlers of California walnuts subject to
regulation under the marketing order, and there are approximately 4,000
growers in the production area. USDA's National Agricultural Statistics
Service (NASS) reports that California walnuts were harvested from a
total of 218,000 bearing acres during 2007-08. The average yield for
the 2007-08 crop was 1.49 tons per acre, which is slightly lower than
the 1.53 tons per acre average for the previous five years. NASS
reported the value of the 2007-08 crop at $2,320 per ton, which is
considerably higher than the previous five-year average of $1,384 per
ton.
At the time of the 2002 Census of Agriculture, which is the most
recent information available, approximately 83 percent of California's
walnut farms were smaller than 100 acres. Forty-seven percent were
between 1 and 15 acres. A 100-acre farm with an average yield of 1.49
tons per acre would have been expected to produce about 149 tons of
walnuts during 2007-08. At $2,320 per ton, that farm's production would
have had an approximate value of $345,000. Assuming that the majority
of California's walnut farms are still smaller than 100 acres, it could
be concluded that the majority of the growers had receipts of less than
$345,000 in 2007-08. This is well below the SBA threshold of $750,000,
thus, the majority of California's walnut growers would be considered
small growers according to SBA's definition.
According to information supplied by the industry, approximately
two-thirds of California's walnut handlers shipped merchantable walnuts
valued under $7,000,000 during the 2007-08 marketing year and would
therefore be considered small handlers according to the SBA definition.
This rule continues in effect the action that revises the
administrative rules and regulations governing the nomination of Board
members. References to independent handlers are being removed from the
regulations to conform to recent amendments to the order. Procedures
for the nomination of grower members by groups of growers who marketed
an aggregate of at least 500 tons of walnuts through handlers that
handled less than 35 percent of the prior year's crop are being added.
References to renumbered sections of the order are being corrected.
This action imposes no additional cost or burden on growers or handlers
of any size.
The Board unanimously recommended these changes, which were
necessary to bring the order's administrative rules and regulations
into conformance with the recently amended order. As such, no
alternatives were considered practicable.
The Board's meeting was widely publicized throughout the California
walnut industry and all interested persons were invited to attend the
meeting and participate in Board deliberations on all issues. Like all
Board meetings, the September 12, 2008, meeting was a public meeting
and all entities, both large and small, were able to express views on
this issue.
This rule imposes no additional reporting or recordkeeping
requirements on either small or large California 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.
AMS is committed to complying with the E-Government Act, to promote
the use of Internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes.
As noted in the initial regulatory flexibility analysis, 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 December 5, 2008. Copies of the rule were mailed or
sent by 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 February 3, 2009. No comments were received.
The interim final rule published in the Federal Register contained
an incorrect reference to an order provision. Section 984.437 has been
modified to include the correct reference.
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/AMSv1.0/
ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBus
inessGuide. 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 matters presented, the
information and recommendations submitted by the Board, and other
information, it is found that finalizing the interim final rule as
published in the Federal Register (73
[[Page 9047]]
FR 73995, December 5, 2008), with a change, will tend 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
Accordingly, the interim final rule amending 7 CFR part 984, which was
published at 73 FR 73995 on December 5, 2008, is adopted as a final
rule with the following change:
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 Sec. 984.437 paragraphs (a) and (b) are revised to read as
follows:
Sec. 984.347 Methods for proposing names of additional candidates to
be included on walnut growers' nomination ballots.
(a) With regard to Board grower member positions specified in Sec.
984.35(a)(5) and (b)(6), any ten or more such growers who marketed an
aggregate of 500 or more tons of walnuts through handlers who did not
handle 35% or more of the crop during the marketing year preceding the
year in which Board nominations are held, may petition the Board to
include on the nomination ballot the name of an eligible candidate for
this position, and the name of an eligible candidate to serve as his or
her alternate. The names of the eligible candidates proposed pursuant
to this paragraph shall be included on the ballot together with the
names of any incumbents who are willing to continue serving on the
Board.
(b) Any ten or more growers eligible to serve in the grower member
positions specified in Sec. 984.35(a)(3) and (4) or Sec. 984.35(b)(4)
and (5) and who marketed an aggregate of 500 or more tons of walnuts
through handlers who did not handle 35% or more of the crop during the
marketing year preceding the year in which Board nominations are held,
may petition the Board to include on the nomination ballot for a
district the name of an eligible candidate for the applicable position,
and the name of an eligible candidate to serve as his or her alternate.
The names of the eligible candidates proposed pursuant to this
paragraph shall be included on the ballot together with the names of
any incumbents who are willing to continue serving on the Board.
* * * * *
Dated: February 24, 2009.
Robert C. Keeney,
Acting Associate Administrator.
[FR Doc. E9-4291 Filed 2-27-09; 8:45 am]
BILLING CODE 3410-02-P