[Federal Register Volume 61, Number 162 (Tuesday, August 20, 1996)]
[Rules and Regulations]
[Pages 42990-42991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21120]
[[Page 42990]]
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DEPARTMENT OF AGRICULTURE
7 CFR Part 981
[Docket No. FV96-981-3IFR]
Almonds Grown in California; Change in Quality Control
Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This interim final rule changes the quality control
requirements currently prescribed under the California almond marketing
order. The marketing order regulates the handling of almonds grown in
California and is administered locally by the Almond Board of
California (Board). This rule removes the exemption from inspection for
the Peerless variety of almonds sold inshell. This change is needed to
bring the administrative rules and regulations into conformance with
amendments to the marketing order recently approved by a majority vote
of producers. In addition, this change will better reflect current
industry practices because most almonds are already inspected,
including the Peerless variety.
DATES: Effective August 21, 1996; comments received by September 19,
1996 will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent in triplicate to the Docket
Clerk, Fruit and Vegetable Division, AMS, USDA, room 2525-S, P.O. Box
96456, Washington, DC 20090-6456, Fax # (202) 720-5698. All comments
should reference the docket number and the date and page number of this
issue of the Federal Register and will be made available for public
inspection in the Office of the Docket Clerk during regular business
hours.
FOR FURTHER INFORMATION CONTACT: Kathleen M. Finn, Marketing
Specialist, Marketing Order Administration Branch, F&V, AMS, USDA, room
2522-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202)
720-1509, Fax # (202) 720-5698; or Martin Engeler, California Marketing
Field Office, Marketing Order Administration Branch, F&V, AMS, USDA,
2202 Monterey Street, suite 102B, Fresno, California 93721; telephone:
(209) 487-5901, Fax # (209) 487-5906.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order
No. 981 (7 CFR Part 981), as amended, regulating the handling of
almonds grown in California, hereinafter referred to as the ``order.''
This 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 (Department) 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 the Secretary 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 the Secretary 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 the Secretary's
ruling on the petition, provided an action is filed not later than 20
days after date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this action on small entities.
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 115 handlers of almonds who are subject to
regulation under the order and approximately 7,000 producers of almonds
in the regulated area. Small agricultural service firms, which includes
handlers, have been defined by the Small Business Administration (13
CFR 121.601) as those having annual receipts of less than $5,000,000,
and small agricultural producers are defined as those having annual
receipts of less than $500,000. The majority of handlers and producers
of California almonds may be classified as small entities. Interested
persons are invited to submit information on the regulatory and
informational impacts of this action on small businesses.
This rule modifies language in the order's administrative rules and
regulations to remove an exemption from inspection for the Peerless
variety of almonds sold inshell as bleaching stock. It also modifies
the definition of adjusted kernel weight so that adjusted kernel weight
for the Peerless variety is based on actual weight, consistent with
other almonds, rather than calculated with a predetermined conversion
factor known as a shelling ratio. The majority of handlers already have
all almonds inspected, including the Peerless variety. Therefore, this
rule will better reflect current industry practice. In addition, this
rule is needed to bring the administrative rules and regulations into
conformance with amendments to the marketing order recently approved by
a majority vote of producers. Since virtually all of the Peerless
almonds sold inshell are currently inspected, there is little or no
impact expected on small businesses.
Therefore, the AMS has determined that this action will not have a
significant economic impact on a substantial number of small entities.
The almond marketing order authorizes quality control provisions
which include a requirement that almonds must be inspected prior to
processing to determine the percentage of inedible kernels in each lot,
and to determine the adjusted kernel weight of almonds in each lot.
Inedible kernels are reported to individual handlers and the Board, and
handlers are required to dispose of a quantity of almonds equal to
their inedible obligation as determined by the inspection. Inedible
kernels are disposed of to non-human consumption outlets for such uses
as animal feed or crushing into oil. Adjusted kernel weight is reported
to handlers by the Federal-State Inspection Service (FSIS). Handlers
are then required to report adjusted kernel weight to the Board, who
uses the information to report industry statistics.
The rules and regulations under the marketing order currently
exempt from inspection the Peerless variety of almonds used as
bleaching stock and sold inshell. When the quality control regulations
were initially implemented, it was determined there was no need to
establish the percentage of inedible kernels of almonds sold inshell,
which at that time were predominately of the Peerless variety, because
inedible kernels could not be removed from
[[Page 42991]]
product sold inshell and thus could not be disposed of in non-human
consumption outlets. Therefore, inshell almonds, including Peerless,
are exempt from meeting the inedible disposition obligation. However,
in order to determine the kernel weight of Peerless almonds sold
inshell for reporting to the Board, a predetermined shelling ratio
contained in the marketing order has been used in the absence of
inspection. This shelling ratio converted the weight of inshell almonds
to a shelled weight, or kernel weight. Over time, the total quantity
and varieties of all almonds sold inshell have increased, while
Peerless bleaching stock sales have declined. There has also been an
increased desire and need to obtain an accurate product weight for
growers, handlers, and the Board. Thus, it has become common industry
practice to have inspections performed on Peerless almonds sold
inshell, as with other varieties sold inshell, regardless of the
inspection exemption.
Consistent with the Act, the almond marketing order was recently
amended by a majority vote of producers to require that the weight of
inshell almonds be determined by weighing a representative sample of
such almonds. Previously, predetermined shelling ratios were used to
determine the kernel weight. Thus, the shelling ratios were removed
from the order. The purpose of the quality control amendments was to
reflect current industry practices as referenced above, and to provide
more accurate information for reporting purposes.
The amendments to the order necessitate conforming changes to the
administrative rules and regulations. Section 981.442 of the quality
control regulations is revised to remove an inspection exemption for
Peerless inshell almonds. Thus, all almonds, regardless of form or
variety, will be inspected.
In addition, Sec. 981.401 is revised to remove the exemption for
Peerless almonds from the definition of adjusted kernel weight.
Currently, the adjusted kernel weight of Peerless inshell almonds is
based on a predetermined weight contained in the shelling ratio table
that was removed from the marketing order. Since Peerless inshell
almonds will be required to have inspection, the actual kernel weight
will be determined, thus providing an accurate weight.
After consideration of all relevant material presented, including
the Board's recommendation, and other information, it is found that
this interim final rule, as hereinafter set forth, will tend to
effectuate the declared policy of the Act.
This rule invites comments on a change to the quality control
requirements currently prescribed under the California almond marketing
order. Any comments received will be considered prior to finalization
of this rule.
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 marketing order amendments prompting these changes
were implemented on July 1, 1996; (2) related issues were discussed in
amendatory proceedings to the marketing order (including a public
hearing) and amendments to the order were subsequently approved by
producers; (3) the Board unanimously recommended these changes at a
public meeting and interested parties had an opportunity to provide
input; and (4) this rule provides a 30-day comment period and any
comments received will be considered prior to finalization of this
rule.
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
amended as follows:
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.
Sec. 981.401 [Amended]
2. In Sec. 981.401, the first sentence in paragraph (a) is amended
by removing the words ``Except for Peerless bleaching stock,'' and
capitalizing the first letter in the word ``adjusted'', and by removing
the last sentence; and by amending the first sentence in paragraph (b)
by removing the words ``Except for Peerless bleaching stock,'' and
capitalizing the first letter of the word ``the''.
3. In Sec. 981.442, paragraph (a)(1), the first sentence is amended
by removing the words ``, except lots of Peerless variety designated as
bleaching stock,'' and in paragraph (a)(4), the last sentence is
revised to read as follows:
Sec. 981.442 Quality Control.
(a) * * *
(4) * * * For any almonds sold inshell, the weight may be reported
to the Board and the disposition obligation for that variety reduced
proportionately.
* * * * *
Dated: August 14, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-21120 Filed 8-19-96; 8:45 am]
BILLING CODE 3410-02-P
