57820 Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 

List of Subjects in 7 CFR Part 930 

Marketing agreements, Reporting and 

recordkeeping requirements, Tart 

cherries.

PART 930—TART CHERRIES GROWN 

IN THE STATES OF MICHIGAN, NEW 

YORK, PENNSYLVANIA, OREGON, 

UTAH, WASHINGTON, AND 

WISCONSIN

■ Accordingly, the interim final rule 

amending 7 CFR part 930 which was 

published at 69 FR 34549 on June 22, 

2004, is adopted as a final rule without 

change.

Dated: September 22, 2004. 

A. J. Yates, 

Administrator, Agricultural Marketing 

Service.

[FR Doc. 04–21631 Filed 9–27–04; 8:45 am] 

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service 

7 CFR Part 981 

[Docket No. FV04–981–4 FIR] 

Almonds Grown in California; Revision 

of Quality Control Provisions

AGENCY: Agricultural Marketing Service, 

USDA.

ACTION: Final rule.

SUMMARY: The Department of 

Agriculture is adopting, as a final rule, 

without change, an interim final rule 

that revised the quality control 

provisions under 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). Under the order, 

handlers receiving almonds from 

growers must have them inspected to 

determine the percentage of inedible 

almonds in each lot. Based on these 

inspections, handlers incur an inedible 

disposition obligation. This obligation is 

calculated by the Board for each variety 

of almonds, and handlers must satisfy 

the obligation by disposing of inedible 

almonds or almond material in outlets 

such as oil and animal feed. This rule 

continues in effect changes in the 

varietal classifications of almonds for 

which inedible obligations are 

calculated. This will allow the Board to 

determine handlers’ inedible 

disposition obligations by varietal 

classifications consistent with handler 

reporting requirements and current 

industry harvesting and marketing 

practices.

DATES: Effective October 28, 2004.

FOR FURTHER INFORMATION CONTACT:

Martin Engeler, Assistant Regional 

Manager, California Marketing Field 

Office, Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 2202 Monterey Street, 

suite 102B, Fresno, California 93721; 

telephone: (559) 487–5901, Fax: (559) 

487–5906; or George Kelhart, Technical 

Advisor, 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. 

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 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 rule continues in effect revisions 

to the quality control provisions under 

the order. Under the order, handlers 

receiving almonds from growers must 

have them inspected to determine the 

percentage of inedible almonds in each 

lot. Based on these inspections, 

handlers incur an inedible disposition 

obligation. This obligation is calculated 

by the Board for each variety of 

almonds, and handlers must satisfy the 

obligation by disposing of inedible 

almonds or almond material in outlets 

such as oil and animal feed. This rule 

continues to change the varietal 

classifications of almonds for which 

inedible obligations are calculated. This 

will allow the Board to determine 

handlers’ inedible disposition 

obligations by varietal classifications 

consistent with handler reporting 

requirements and current industry 

harvesting and marketing practices. This 

action was unanimously recommended 

by the Board at a meeting on May 20, 

2004. 

Section 981.42 of the almond 

marketing order provides authority for 

quality control regulations, including a 

requirement that almonds must be 

inspected prior to processing (incoming 

inspection) to determine, by variety, the 

percentage of inedible kernels in each 

lot received. The percentage of inedible 

kernels are reported to individual 

handlers and the Board, by variety, as 

determined by the incoming inspection. 

The Board then calculates each 

handler’s inedible disposition obligation 

by variety, and handlers are required to 

dispose of a quantity of almonds equal 

to their inedible weight obligation. 

Section 981.442(a)(2) of the order’s 

rules and regulations defines ‘‘variety’’

for the purpose of calculating handlers’

inedible disposition obligations. Prior to 

implementation of the interim final rule 

(69 FR 40534; July 6, 2004), ‘‘variety’’

was defined as that variety of almonds 

which constituted at least 90 percent of 

the almonds in a lot. Further, if no 

variety constituted at least 90 percent of 

the almonds in a lot, the lot was 

classified as ‘‘mixed.’’

One such mixture is the combination 

of the Butte and Padre varieties of 

almonds, which have very similar 

characteristics. It has become common 

practice within the industry to harvest 

the two varieties together and sell them 

under the marketing classification 

known as ‘‘California’’. In addition to 

harvesting and marketing these varieties 

together, handlers also present them for 

inspection and report them as ‘‘ButtePadre’’, rather than ‘‘mixed’’, regardless

Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 57821

of the percentages of each variety that 

comprise the lot. Previously, mixtures of 

the Butte and Padre varieties were 

classified by the Board as ‘‘mixed’’ for 

purposes of calculating inedible 

disposition obligations if neither variety 

constituted at least 90 percent of the lot. 

To be consistent with the harvesting, 

reporting, and marketing of the Butte 

and Padre varieties, mixtures of these 

varieties are now classified as ‘‘ButtePadre’’ for the purpose of determining 

handlers’ inedible disposition 

obligations. 

Prior to implementation of the interim 

final rule, § 981.442(a)(2) also specified 

that in cases where it was not known 

which variety constituted at least 90 

percent of a mixed lot, the lot should be 

classified as ‘‘unknown.’’ In the past, 

very small ‘‘door lot’’ deliveries were 

accumulated by gathering almonds from 

isolated trees of unknown varieties. This 

practice is no longer common in the 

industry, and virtually all almond 

deliveries consist of known varieties of 

almonds. Thus, the use of ‘‘unknown’’

is no longer necessary or appropriate. 

Harvesting, marketing, and reporting 

mixtures of Butte and Padre varieties of 

almonds together as one varietal type 

and reporting lots of unknown varieties 

of almonds as ‘‘mixed’’ are now 

common practices in the industry. In 

order for the Board to calculate 

handlers’ inedible disposition 

obligations by variety and to be 

consistent with current industry 

practices, it was necessary to implement 

changes to the administrative rules and 

regulations. Thus, the Board 

recommended that the rules and 

regulations be revised.

Section 981.442(a)(2) of the quality 

control regulations regarding the 

classification of varietal types for the 

purpose of determining handlers’

inedible disposition obligations was 

therefore revised to add ‘‘Butte-Padre’’

as the varietal classification for mixed 

lots of the Butte and Padre varieties of 

almonds, regardless of the percentage of 

each variety in the lot. Other mixed 

variety lots that do not contain at least 

90 percent of one variety will continue 

to be classified as ‘‘mixed.’’ Lots of 

almonds for which the variety or 

varieties are not specified will also be 

classified as ‘‘mixed.’’ Accordingly, the 

‘‘unknown’’ varietal classification was 

eliminated. 

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. Thus, both statutes have small 

entity orientation and compatibility. 

There are approximately 6,000 

producers of almonds in the production 

area and approximately 119 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 

less than $750,000, and small 

agricultural service firms are defined as 

those whose annual receipts are less 

than $5,000,000. 

Data for the most recently completed 

crop year indicate that about 38 percent 

of the handlers shipped over $5,000,000 

worth of almonds and about 62 percent 

of the handlers shipped under 

$5,000,000 worth of almonds. In 

addition, based on production and 

grower price data reported by the 

California Agricultural Statistics 

Service, and the total number of almond 

growers, the average annual grower 

revenue is estimated to be 

approximately $199,000. Based on the 

foregoing, the majority of handlers and 

producers of almonds may be classified 

as small entities. 

This rule continues to revise the 

quality control provisions under the 

order. Under the order, handlers 

receiving almonds from growers must 

have them inspected to determine the 

percentage of inedible almonds in each 

lot. Based on these inspections, 

handlers incur an inedible disposition 

obligation. This obligation is calculated 

by the Board for each variety of 

almonds, and handlers must satisfy the 

obligation by disposing of inedible 

almonds or almond material in outlets 

such as oil and animal feed. This rule 

continues to change the varietal types of 

almonds for which inedible obligations 

are calculated. 

Specifically, this rule continues to 

revise § 981.442(a)(2) of the regulations 

by adding ‘‘Butte-Padre’’ as the varietal 

classification for mixed lots of Butte and 

Padre almonds, regardless of the 

percentage of each variety in the lot. 

This rule also continues to designate 

‘‘mixed’’ as the varietal classification for 

lots of unidentified varieties of almonds. 

Finally, the ‘‘unknown’’ classification 

continues to be removed. These 

revisions will permit the Board to 

calculate handlers’ inedible disposition 

obligations consistent with current 

industry harvesting and marketing 

practices, and handler reporting 

requirements. This action was reviewed 

and unanimously recommended by the 

Food Quality and Safety Committee 

(FQSC) at its April 27, 2004, meeting, 

and by the Board at its meeting held on 

May 20, 2004.

These revisions are not expected to 

have a financial impact on handlers, 

including small businesses. The 

regulations are applied uniformly on all 

handlers, regardless of size. This action 

imposes no additional reporting or 

recordkeeping requirements on either 

small or large California almond 

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. In addition, as noted in 

the initial regulatory flexibility analysis, 

USDA has not identified any relevant 

Federal rules that duplicate, overlap, or 

conflict with this rule. 

The meetings of the FQSC and the 

Board were both 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 committee and Board meetings, 

those held on April 27 and May 20, 

2004, were public meetings and all 

entities, both large and small, were able 

to express views on this issue. 

An interim final rule concerning this 

action was published in the Federal 

Register on July 6, 2004. Copies of the 

rule were mailed by the Board’s staff to 

all Board members and almond 

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 

September 7, 2004. One comment was 

received during that period, but that 

comment concerned forest fires and was 

not relevant to this rulemaking action. 

Accordingly, no changes were made 

to the rule, based on the comment 

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/

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. 

After consideration of all relevant 

material presented, including the 

57822 Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 

information and recommendation 

submitted by the Board and other 

available information, it is hereby found 

that finalizing the interim final rule, 

without change, as published in the 

Federal Register, will tend to effectuate 

the declared policy of the Act.

List of Subjects in 7 CFR Part 981 

Almonds, Marketing agreements, 

Nuts, Reporting and recordkeeping 

requirements.

PART 981—ALMONDS GROWN IN 

CALIFORNIA

■ Accordingly, the interim final rule 

amending 7 CFR part 981, which was 

published at 69 FR 40534 on July 6, 2004, 

is adopted as a final rule without change.

Dated: September 22, 2004. 

Kenneth C. Clayton, 

Associate Administrator, Agricultural 

Marketing Service.

[FR Doc. 04–21628 Filed 9–27–04; 8:45 am] 

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service 

7 CFR Part 989 

[Docket No. FV04–989–3 FIR] 

Raisins Produced From Grapes Grown 

in California; Change to Reporting 

Requirements Regarding Other 

Seedless Raisins

AGENCY: Agricultural Marketing Service, 

USDA.

ACTION: Final rule.

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

final rule changing the reporting 

requirements regarding Other Seedless 

(OS) raisins under the Federal 

marketing order for California raisins 

(order). The order regulates the handling 

of raisins produced from grapes grown 

in California and is administered locally 

by the Raisin Administrative Committee 

(RAC). The order provides authority for 

volume and quality regulations and 

reporting requirements by varietal type 

of raisin. The OS varietal type includes 

raisins produced from Flame Seedless 

(Flames) and other red grapes. This rule 

requires handlers to report to the RAC 

information on acquisitions, shipments, 

inventories, and inter-handler transfers 

of the different types of OS raisins, 

including Flames. The RAC will 

evaluate this data to determine whether 

segregating Flames into a separate 

varietal type is warranted.

DATES: Effective October 28, 2004.

FOR FURTHER INFORMATION CONTACT:

Maureen T. Pello, Senior Marketing 

Specialist, California Marketing Field 

Office, Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 2202 Monterey Street, 

suite 102B, Fresno, California 93721; 

telephone: (559) 487–5901, Fax: (559) 

487–5906; or George Kelhart, Technical 

Advisor, 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. 

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 rule 

is issued under Marketing Agreement 

and Order No. 989 (7 CFR part 989), 

both as amended, regulating the 

handling of raisins produced from 

grapes grown in California, hereinafter 

referred to as the ‘‘order.’’ The 

marketing agreement and order are 

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 rule continues in effect revisions 

to the reporting requirements regarding 

OS raisins under the order. The order 

provides authority for volume and 

quality regulations and reporting 

requirements by varietal type of raisin. 

The OS varietal type includes raisins 

produced from Flames and other red 

grapes. This rule continues to require 

handlers to report to the RAC 

information on acquisitions, shipments, 

inventories, and inter-handler transfers 

of the different types of OS raisins, 

including Flames. The RAC will 

evaluate this data to determine whether 

segregating Flames into a separate 

varietal type is warranted. This action 

was unanimously recommended by the 

RAC at a meeting on April 13, 2004. 

Section 989.73 of the order provides 

authority for the RAC to collect reports 

from handlers. Paragraph (d) of that 

section provides that, upon request of 

the RAC, with approval by the 

Secretary, handlers shall furnish to the 

RAC other information as may be 

necessary to enable it to exercise its 

powers and perform its duties. The RAC 

meets routinely to make decisions on 

various programs authorized under the 

order such as volume regulation and 

quality control. The RAC utilizes 

information collected under the order in 

its decisionmaking. Section 989.173 of 

the order’s administrative rules and 

regulations specifies certain reports that 

handlers are currently required to 

submit to the RAC. 

Many of the reports submitted by 

handlers under the order require 

information to be segregated by varietal 

type of raisin. Section 989.10 defines 

varietal type to mean raisins generally 

recognized as possessing characteristics 

differing from other raisins in a degree 

sufficient enough to warrant separate 

identification and classification. Section 

989.110 of the order’s administrative 

rules and regulations contains a list and 

description of the nine varietal types 

currently segregated under the order. 

One of these varietal types, OS 

raisins, includes raisins produced from 

Flames and other similar seedless red 

grapes. There has been some discussion 

in recent years regarding whether 

Flames should be segregated into a 

separate varietal type. Between the 

1995–96 and 2000–01 crop years, 

volume regulation had not been 

implemented for OS raisins, and 

handlers were able to market all of the 

OS raisins they acquired. During this