[Federal Register Volume 59, Number 148 (Wednesday, August 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18877]
[[Page Unknown]]
[Federal Register: August 3, 1994]
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DEPARTMENT OF AGRICULTURE
7 CFR Part 981
[Docket No. FV94-981-2IFR]
Almonds Grown in California; Revision of the Definition of
Inedible Kernel
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This interim final rule revises the definition of inedible
kernel established under the administrative rules and regulations of
the Federal marketing order for California almonds. This revised
definition of inedible kernel will better reflect handler processing
capabilities and will be more equitable to growers and handlers. This
rule is based on a unanimous recommendation of the Almond Board of
California (Board), which is responsible for local administration of
the order.
DATES: Effective on August 3, 1994. Comments which are received by
September 2, 1994 will be considered prior to issuance of any final
rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this interim final rule. Comments must be sent in triplicate
to the Docket Clerk, Marketing Order Administration Branch, F&V, AMS,
USDA, Room 2523-S, P.O. Box 96456, Washington, DC 20090-6456, FAX
Number (202) 720-5698. Comments should reference 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, Fruit and Vegetable
Division, AMS, USDA, Room 2523-S., P.O. Box 96456, Washington, DC
20090-6456; telephone: (202) 720-1509, or fax (202) 720-5698, or Martin
Engeler, Assistant Officer-in-Charge, California Marketing Field
Office, Fruit and Vegetable Division, AMS, USDA, 2202 Monterey Street,
Suite 102-B, Fresno, California 93721; (209) 487-5901, or fax (209)
487-5906.
SUPPLEMENTARY INFORMATION: This interim final rule is issued under
Marketing Agreement and Order No. 981 (7 CFR Part 981), both as
amended, regulating the handling of almonds grown in California. The
marketing agreement and order are authorized by 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
accordance with Executive Order 12866.
This interim final rule has been reviewed under Executive Order
12778, Civil Justice Reform. This interim final rule is not intended to
have retroactive effect. This interim final 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 requesting a modification of the order or to be exempted
therefrom. A handler is afforded the opportunity for a hearing on the
petition. After a 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 in equity to review the
Secretary's ruling on the petition, provided a bill in equity is filed
not later than 20 days after date of entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Administrator of the Agricultural Marketing Service
(AMS) has considered the economic impact of this interim final rule 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 that are subject to
regulation under the marketing order and approximately 7,000 producers
in the regulated area. Small agricultural service firms have been
defined by the Small Business Administration (13 CFR 121.601) as those
whose annual receipts are less than $5,000,000 and small agricultural
producers are defined as those having annual receipts of less than
$500,000. The majority of the almond producers and handlers may be
classified as small entities.
This rule revises the definition of inedible kernel in
Sec. 981.408--Subpart--Administrative Rules and Regulations by
excluding almond kernels, pieces, or particles of almond kernels with
web and frass from being considered inedible almonds.
The processing of almonds involves various steps taken by growers
and handlers prior to shipment to market. In most situations, growers
initially take their almonds to a huller/sheller operation where the
hulls and shells are mechanically removed. The almonds are then
delivered to a handler, who has the almonds inspected by the Federal-
State Inspection Service. The inspector determines the percentage of
inedible almond kernels in a sample, as defined in section 981.408.
Based upon the inspection, growers are paid by the handlers for the
marketable almonds in the lot.
The quality control provisions of the marketing order are designed
to provide procedures to remove inedible almonds from human consumption
channels. Under this program, handlers incur a disposition obligation
of inedible almonds, based on the inspection results. Section 981.442
specifies that the weight of inedible kernels in excess of 1 percent of
the inedible kernel weight in the lot determined by USDA constitutes
the inedible disposition obligation. In order to meet this disposition
obligation, handlers normally deliver packer pickouts, kernels rejected
in blanching, pieces of kernel, 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.
In order to ensure that the inedible kernels are diverted to non-
human consumption channels, the Board maintains a list of approved
accepted users, which includes feedlots and oil mills. Handlers notify
the Board at least 72 hours prior to making delivery to an accepted
user so the Board, at its option, can witness the disposition.
Section 981.8 of the marketing order defines inedible kernel as
meaning ``a kernel, piece, or particle of almond kernel with any defect
scored as serious damage, or damage due to mold, gum, shrivel, or brown
spot, as defined in the United States Standards for Shelled Almonds or
which has embedded dirt not easily removed by washing.'' This section
authorizes modification of the definition by the Board with the
approval of the Secretary. Currently, the definition under Sec. 981.408
of the regulations defines an inedible kernel as ``a kernel, piece, or
particle of almond kernel with any defect scored as serious damage, or
damage due to mold, gum, shrivel, or brown spot, as defined in the
United States Standards for Shelled Almonds or which has embedded dirt
or other foreign material not easily removed by washing.'' Kernels or
kernel pieces with any defect scored as serious damage are considered
inedible kernels.
Section 51.2130 of the U.S. Standards for Grades of Shelled Almonds
defines serious damage as ``any defect which makes a kernel or piece of
kernel unsuitable for human consumption, and includes decay, rancidity,
insect injury and damage by mold.'' Section 51.2123 of the Standards
defines ``insect injury'' to mean that ``the insect, web, or frass is
present or there is definite evidence of insect feeding.''
The way the definition is currently applied, web or frass is
considered serious damage by insect injury and when present and noted
on the incoming inspection, causes the almonds so affected to be
classified as inedible. As stated previously, handlers pay their
growers based on the percentage of marketable almonds in the lot.
Handlers do not pay growers for almonds classified as inedible. Web and
frass can be removed from the kernels or kernel pieces during normal
processing, thus making them suitable for human consumption. Because
handlers pay growers based on the marketable almonds in each lot prior
to processing, growers are not compensated for any additional
marketable almonds made available due to web or frass removal after
processing.
Handlers disposition obligations are based on the inedible kernel
content found in the lot prior to processing. When the web and frass
are removed during processing, those kernels become marketable, thus
making it difficult to generate enough inedible almonds to meet the
disposition obligation with inedible almonds. Handlers then often
purchase a mixture of inedible almonds and foreign material such as
hulls, shells, etc., mixed with almond meats from a hulling and/or
shelling operation to satisfy their disposition obligation. It has been
determined that the revision of the definition of inedible kernel will
make it easier for handlers to meet their inedible obligations because
the disposition obligations will more accurately reflect the inedible
percentage determined by the incoming inspection. This rule will better
address the intent of the quality control program.
For these reasons, the Board and its Quality Control Committee
developed plans to further revise the definition. As a result, the
Board unanimously recommended on May 16, 1994, to revise the definition
of inedible kernel to eliminate kernels with attached frass and webbing
from being classified as insect injury and therefore, inedible. This
rule will not affect the U.S. Standards for Grades of Shelled Almonds.
This revision is expected to improve the quality control program by
making the definition of inedible kernel better reflect handler
processing capabilities and providing more equity for handlers and
growers. It may also result in growers being paid for marketable
almonds which are currently being scored as inedible on incoming
inspections and may result in higher returns to growers.
Based on the above, the Administrator of the AMS has determined
that this interim final rule will not have a significant economic
impact on a substantial number of small entities.
After consideration of all relevant material presented, including
the Board's recommendation, it is found that this interim final rule,
as hereinafter set forth, will tend to effectuate the declared policy
of the Act.
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) This rule relaxes requirements currently in
effect; (2) this rule should be made effective as close to the
beginning of the 1994-95 crop year as possible to be equitable and
beneficial to growers and handlers; (3) this rule was unanimously
recommended at a public meeting and all interested persons had an
opportunity to provide input; (4) this rule is not controversial; and
(5) this rule provides a 30-day comment period, and any comments
received will be considered prior to finalization.
List of Subjects in 7 CFR Part 981
Almonds, Marketing agreements, Nuts, Reporting and recording
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.
2. Section 981.408 is revised to read as follows:
Sec. 981.408 Inedible kernel.
Pursuant to Sec. 981.8, the definition of inedible kernel is
modified to mean a kernel, piece, or particle of almond kernel with any
defect scored as serious damage, or damage due to mold, gum, shrivel,
or brown spot, as defined in the United States Standards for Shelled
Almonds, or which has embedded dirt or other foreign material not
easily removed by washing: Provided, That the presence of web or frass
shall not be considered serious damage for the purposes of determining
inedible kernels, pieces, or particles of almond kernels.
Dated: July 28, 1994.
Eric M. Forman,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 94-18877 Filed 8-2-94; 8:45 am]
BILLING CODE 3410-02-P
