[Federal Register: January 12, 2010 (Volume 75, Number 7)]
[Rules and Regulations]
[Page 1525-1527]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ja10-1]
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Rules and Regulations
Federal Register
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 984
[Doc. No. AMS-FV-09-0050; FV09-984-5 FR]
Walnuts Grown in California; Changes to Regulations Governing
Voting Procedures
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule revises the administrative regulations governing
voting procedures 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 specifies the voting
procedures to be used for expanded types of non-assembled meetings and
removes voting by telegraph. This will enable the Board to conduct
business using current communication methods, which will result in time
and cost savings to the Board and its members.
DATES: Effective Date: January 13, 2010.
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 final 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.''
The Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Order 12866.
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule is not intended to have retroactive
effect.
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 final rule revises the administrative regulations governing
the Board's voting procedures to implement authority from a recent
amendment to the order. It expands the current procedures for voting by
allowing voting by e-mail, facsimile, telephone, and videoconference,
or by other means of communication. This rule was unanimously
recommended by the Board at a meeting on May 18, 2009.
Section 984.45(b) of the California walnut marketing order
specifies the percentage requirements for quorum and voting procedures
of the Board. Section 984.45(c) of the order provides authority for the
Board to vote by mail or telegram, or by any other means of
communication, and to prescribe, with the approval of USDA, the minimum
number of votes that must be cast, as well as any other procedures that
are necessary when the voting is by any of these communication methods.
Section 984.45(d) of the order provides authority for the Board to meet
by telephone or other means of communication.
Currently, Section 984.445 of the order's administrative
regulations prescribes procedures for voting by mail or telegram but
does not include procedures for voting by other means of communication,
such as e-mail, facsimile, telephone, or videoconference.
At its meeting on May 18, 2009, the Board discussed the need to
change the order's administrative regulations to include the use of
current communication technologies to conduct business at non-assembled
meetings, as authorized by a recent amendment to the order (73 FR
11328, March 3, 2008). Prior to the amendment, the Board had the
authority to vote by mail or telegram upon due notice to all members
but not to hold non-assembled meetings. As amended, the order provides
for non-assembled meetings, but voting requirements and procedures for
all such communication methods needed to be recommended by the Board
and established through informal rulemaking. The Board unanimously
recommended these changes at its meeting on May 18, 2009.
Using current communication methods and technology to vote at non-
assembled meetings on matters deemed to be non-controversial,
administrative, or of an emergency nature will result in cost savings
by reducing time and travel expenses of Board members, many of whom are
walnut producers and handlers who must travel long distances within
California to attend meetings. Other Board expenses associated with
holding assembled meetings, such as reserving meeting spaces, may also
be reduced.
This final rule expands the procedures currently prescribed for
voting by mail or telegram to include voting by e-mail and facsimile.
In addition, reference to voting by telegram will be removed from the
regulations since this communication method generally has been replaced
by newer technology. Finally, voting by roll call will be prescribed
for meetings conducted by telephone,
[[Page 1526]]
videoconference, or any other method of communication that enables
interaction of Board members to ensure each member's vote by such
method is accurately recorded.
Final Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS)
has considered the economic impact of this action 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.
There are currently 58 handlers of California walnuts subject to
regulation under the marketing order, and there are approximately 4,500
growers in the production area. Small agricultural service firms are
defined by the Small Business Administration (SBA) (13 CFR 121.201) as
those having annual receipts of less than $7,000,000, and small
agricultural growers are defined as those having annual receipts of
less than $750,000.
USDA's National Agricultural Statistics Service (NASS) reports that
California walnuts were harvested from a total of 223,000 bearing acres
during 2008-09. The average yield for the 2008-09 crop was 1.96 tons
per acre, which is higher than the 1.56 tons per acre average for the
previous five years. NASS reported the value of the 2008-09 crop at
$1,210 per ton, which is lower than the previous five-year average of
$1,598 per ton.
At the time of the 2007 Census of Agriculture, which is the most
recent information available, approximately 89 percent of California's
walnut farms were smaller than 100 acres. Fifty-four percent were
between 1 and 15 acres. A 100-acre farm with an average yield of 1.96
tons per acre would have been expected to produce about 196 tons of
walnuts during 2008-09. At $1,210 per ton, that farm's production would
have had an approximate value of $237,000. 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
$237,000 in 2008-09. 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
one-half of California's walnut handlers shipped merchantable walnuts
valued under $7,000,000 during the 2008-09 marketing year and would
therefore be considered small handlers according to the SBA definition.
This final rule revises procedures currently prescribed under Sec.
984.445 of the order for voting by mail and telegram to include other
means of communication, including e-mail, facsimile, telephone, and
videoconference. This revision to the regulations incorporates
authority from a recent amendment to the order concerning voting
procedures and allows the Board to conduct business at non-assembled
meetings using current methods of communication. Authority for this
action is provided in Sec. 984.45 of the order.
The majority of the Board's members are walnut producers and
handlers who are located at various locations throughout California,
and it can be difficult to assemble these members in one location for a
meeting, especially during harvest season. By prescribing procedures
for voting by the communication methods authorized by the order, the
Board will be able to vote on non-controversial, administrative, or
emergency matters at non-assembled meetings, which will reduce travel
time and expenses for producer and handler Board members. Board
expenses associated with holding assembled meetings, such as the cost
of reserving a meeting room, may also be reduced.
The Board unanimously recommended these changes, which are
necessary to implement authority provided by a recent amendment to the
order. Therefore, no alternatives to these changes were considered
practicable.
This action will not impose any additional reporting or
recordkeeping requirements 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.
AMS is committed to complying with the E-Government Act, to promote
the use of the Internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes.
USDA has not identified any relevant Federal rules that duplicate,
overlap or conflict with this rule.
The Board's meeting was widely publicized throughout the 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 May 18, 2009, meeting was a public meeting, and all
entities, both large and small, were able to express views on this
issue.
A proposed rule concerning this action was published in the Federal
Register on October 9, 2009 (74 FR 52154). Copies of the proposed rule
were also mailed or sent via facsimile to Board members and walnut
handlers. Finally, the rule was made available through the Internet by
USDA and the Office of the Federal Register. A 60-day comment period
ending December 8, 2009, was provided to allow interested persons to
respond to the proposal. No comments were received.
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, 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.
It is further found that good cause exists for not postponing the
effective date of this rule until 30 days after publication in the
Federal Register (5 U.S.C. 553) because the regulations governing
voting procedures should reflect the authority that was implemented by
a recent amendment to the order. Also, this action was recommended at a
public meeting. Finally, a 60-day comment period was provided for in
the proposed rule, and no comments were received.
List of Subjects in 7 CFR Part 984
Marketing agreements, Nuts, Reporting and recordkeeping
requirements, Walnuts.
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:
[[Page 1527]]
Authority: 7 U.S.C. 601-674.
0
2. Section 984.445 is revised to read as follows:
Sec. 984.445 Procedures for voting by mail, e-mail, telephone,
videoconference, facsimile, or any other means of communication.
(a) Whenever the Board votes upon any proposition by mail, e-mail,
or facsimile, at least six members or alternates acting as members must
vote and one dissenting vote shall prevent its adoption. Each
proposition to be voted upon by mail, e-mail, or facsimile shall
specify a time limit for members to vote, after which the alternates
shall be given the opportunity to vote.
(b) Whenever the Board conducts meetings by telephone,
videoconference, or any technology that enables member interaction, the
vote shall be conducted by roll call.
Dated: January 6, 2010.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2010-316 Filed 1-11-10; 8:45 am]
BILLING CODE 3410-02-P