This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

68500 

Vol. 88, No. 191 

Wednesday, October 4, 2023 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 981 

[Doc. No.: AMS–SC–21–0089] 

Almonds Grown in California; 

Amendments to the Marketing Order 

AGENCY: Agricultural Marketing Service, 

Department of Agriculture (USDA). 

ACTION: Proposed rule and referendum 

order. 

SUMMARY: This rulemaking proposes 

amendments to Marketing Order No. 

981, which regulates the handling of 

almonds grown in California. The 

proposed amendments would modify 

certain marketing order provisions to 

facilitate orderly administration of the 

program. Additionally, the proposed 

amendments would modernize, 

simplify, or align language with current 

industry practices and definitions, and 

would establish authority to borrow 

funds. The proposal would also 

establish authority for the Almond 

Board of California (Board) to accept 

advanced assessments. 

DATES: The referendum will be 

conducted from October 30 through 

November 20, 2023. The representative 

period for the referendum is August 1, 

2022, through July 31, 2023. 

ADDRESSES: Interested persons with 

questions and comments are invited to 

submit written questions and comments 

to the Docket Clerk, Market 

Development Division, Specialty Crops 

Program, AMS, USDA, 1400 

Independence Avenue SW, STOP 0237, 

Washington, DC 20250–0237; or 

Telephone: (202) 720–8085. 

FOR FURTHER INFORMATION CONTACT: 

Thomas Nalepa, Marketing Specialist, or 

Matthew Pavone, Chief, Rulemaking 

Services Branch, Market Development 

Division, Specialty Crops Program, 

AMS, USDA, 1400 Independence 

Avenue SW, STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

8085, Fax: (202) 720–8938, or Email: 

Thomas.Nalepa@usda.gov or 

Matthew.Pavone@usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Richard Lower, 

Market Development Division, Specialty 

Crops Program, AMS, USDA, 1400 

Independence Avenue SW, STOP 0237, 

Washington, DC 20250–0237; 

Telephone: (202) 720–8085, or Email: 

Richard.Lower@usda.gov. 

SUPPLEMENTARY INFORMATION: This 

action, pursuant to 5 U.S.C. 553, 

proposes to amend regulations issued to 

carry out a marketing order as defined 

in 7 CFR 900.2(j). This proposal is 

issued under Marketing Order No. 981, 

as amended (7 CFR part 981), regulating 

the handling of almonds grown in 

California. Part 981 (referred to as 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 

Board locally administers the Order and 

comprises growers and handlers of 

almonds operating within the area of 

production. 

The USDA is issuing this proposed 

rule in conformance with Executive 

Orders 12866, 13563, and 14094. 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts and equity). 

Executive Order 13563 emphasizes the 

importance of quantifying both costs 

and benefits, reducing costs, 

harmonizing rules, and promoting 

flexibility. Executive Order 14094 

reaffirms, supplements, and updates 

Executive Order 12866 and further 

directs agencies to solicit and consider 

input from a wide range of affected and 

interested parties through a variety of 

means. This action falls within a 

category of regulatory actions that the 

Office of Management and Budget 

(OMB) exempted from Executive Order 

12866 review. 

This proposed rule has been reviewed 

under Executive Order 13175— 

Consultation and Coordination with 

Indian Tribal Governments, which 

requires agencies to consider whether 

their rulemaking actions would have 

Tribal implications. AMS has 

determined this proposed rule is 

unlikely to have substantial direct 

effects on one or more Indian Tribes, on 

the relationship between the Federal 

Government and Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. 

This proposal has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This rule shall not be 

deemed to preclude, preempt, or 

supersede any State program covering 

almonds grown in California. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 8c(15)(A) of the Act (7 U.S.C. 

608c(15)(A)), 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 

no later than 20 days after the date of 

entry of the ruling. 

Section 1504 of the Food, 

Conservation, and Energy Act of 2008 

(2008 Farm Bill) (Pub. L. 110–246) 

amended section 8c(17) of the Act, 

which in turn required the addition of 

supplemental rules of practice to 7 CFR 

part 900 (73 FR 49307; August 21, 

2008). The amendment of section 8c(17) 

of the Act and the supplemental rules of 

practice authorize the use of informal 

rulemaking (5 U.S.C. 553) to amend 

Federal fruit, vegetable, and nut 

marketing agreements and orders. USDA 

may use informal rulemaking to amend 

marketing orders depending upon the 

nature and complexity of the proposed 

amendments, the potential regulatory 

and economic impacts on affected 

entities, and any other relevant matters. 

AMS has considered these factors and 

has determined that the amendments 

proposed herein are not unduly 

complex and the nature of the proposed 

amendments is appropriate for utilizing 

the informal rulemaking process to 


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amend the Order. This proposed rule 

encompasses a number of changes that 

are primarily administrative or 

modernizing in nature. These changes 

would simplify, clarify, or align Order 

language with current industry practices 

and definitions. A discussion of the 

potential regulatory and economic 

impacts on affected entities is discussed 

later in the ‘‘Initial Regulatory 

Flexibility Analysis’’ section of this 

proposed rule. The amendments would 

apply equally to all producers and 

handlers, regardless of size. The 

proposed amendments also have no 

additional impact on the reporting, 

record-keeping, or compliance costs of 

small businesses. 

The Board unanimously 

recommended seven proposed Order 

amendments following deliberations at 

a public meeting held on August 11, 

2020. The Board submitted its formal 

recommendation to amend the Order 

through the informal rulemaking 

process on August 9, 2021. 

A proposed rule soliciting public 

comments on the proposed amendments 

published in the Federal Register on 

April 27, 2023 (88 FR 25559). AMS 

received one comment in support of the 

proposed rule. Based on all the 

information available to AMS at this 

time, including the comment received 

in response to the proposed rule, no 

substantive changes will be made to the 

proposed amendments. 

AMS will conduct a producer 

referendum to determine support for the 

proposed amendments. If appropriate, a 

final rule will then be issued to 

effectuate the amendments, if they are 

favored by producers in the referendum. 

The proposal would: 

• amend the Order to modify the 

definitions of ‘‘Almonds’’ and ‘‘Shelled 

almonds’’, and add a definition for 

‘‘Almond biomass’’ (Proposal 1), 

• change the date utilized to 

determine the applicable handler 

volume for the purpose of tabulating 

handler votes in the nomination process 

for handler positions on the Board 

(Proposal 2), 

• replace obsolete references to 

‘‘Control Board’’ with ‘‘Board’’ in two 

sections (Proposal 3), 

• simplify language pertaining to 

incoming quality control (Proposal 4), 

• change the date that the Board is 

required to submit volume regulation 

estimates and recommendations to the 

Secretary (Proposal 5), 

• remove language that distinguishes 

certain funds in the accounting of the 

Board’s operating reserve fund and sets 

the reserve fund limit at approximately 

six-months’ expenses instead of sixmonths’ budget (Proposal 6), and 

• add authority to accept advanced 

assessments and to borrow funds from 

commercial lenders (Proposal 7). 

Proposal 1—Modification or Inclusion 

of Definitions for Almonds, Almond 

Biomass, and Shelled Almonds 

Sections 981.4 and 981.6 define 

Almonds and Shelled Almonds, 

respectively, for the purposes of the 

Order. Specifically, as defined in the 

Order, ‘‘almonds means (unless 

otherwise specified) all varieties of 

almonds (except bitter almonds), either 

shelled or unshelled, grown in the State 

of California, and for the purposes of 

research includes almond shells and 

hulls.’’ ‘‘Shelled almonds mean raw or 

roasted almonds after the shells are 

removed and includes blanched, diced, 

sliced, slivered, cut, halved, or broken 

almonds, or any combination thereof. 

Additional almond products may be 

included by the Secretary from time to 

time upon consideration of a 

recommendation from the Board or 

other pertinent information.’’ This 

proposal would amend § 981.4 to 

broaden the definition of Almonds to 

include almond biomass for research 

purposes. This proposal would add a 

new section, § 981.4(a), to specifically 

define almond biomass. § 981.6, which 

defines Shelled almonds, would also be 

amended to include any form that 

almonds without shells might take. 

As the almond industry has 

significantly evolved since 

promulgation of the Order, the 

versatility of almond usage has also 

expanded. 

In the mid-1970s, the Board sought to 

redefine almonds to include shells and 

hulls. A formal rulemaking hearing 

covering that and other proposals took 

place. The initial proposal sought to 

redefine almonds to include hulls and 

shells for the purpose of § 981.41. See 

40 FR 50289. 

Section 981.41 authorizes projects 

involving production and marketing 

research designed to assist, improve, or 

promote the marketing, distribution, 

consumption, or efficient production of 

almonds. Testimony at the hearing 

explained that research to find new and 

more profitable uses for, or better 

methods of, handling shells and hulls 

should be permitted under the Order. 

Testimony further indicated that shells 

and hulls together weigh approximately 

three times the kernelweight of 

almonds. Accordingly, a sizable 

quantity of shells and hulls is produced 

annually and represents a significant 

economic factor. Testimony indicated 

that grower returns could be improved 

if more profitable outlets or better 

methods of handling can be found for 

shells and hulls. See 41 FR 15341. 

Testimony at the hearing further 

indicated that the Board should not 

undertake any marketing promotion 

including advertising activity for shells 

and hulls. Ultimately, the definition of 

almonds was revised to include hulls 

and shells for the purposes of research. 

See 41 FR 26852. 

This proposal would amend § 981.4 to 

broaden the definition of Almonds to 

include almond biomass for research 

purposes. This proposal would add a 

new section, § 981.4(a), to specifically 

define almond biomass. 

In the past, biomass (hulls, shells, 

skins, prunings, etc.) offered limited 

additional value to the growers. Huller/ 

shellers would primarily sell their hulls 

for feed, use the shells for bedding or 

power cogeneration, and burn woody 

biomass, such as whole trees or 

prunings. Now, with expanding 

production levels, the industry 

estimates that it generates over 5.6 

billion pounds of hulls and shells alone 

each year. In addition, stricter 

environmental regulations have made it 

more difficult to dispose of organic 

material through burning. Consequently, 

the industry has devoted significant 

effort to identify new solutions to utilize 

waste material in the orchard or in other 

non-edible product streams. 

With an increased focus on full 

utilization of what comes out of the 

almond orchard, innovative 

technologies and research have revealed 

more value-added applications for what 

were previously by-products with 

limited to no value. For example, 

almond skins, which are the result of 

blanching brownskin almonds, are being 

used for fiber addition, shells are 

incorporated into plastics using 

torrefaction, sugar can be extracted from 

hulls, and ‘‘whole orchard recycling’’ 

techniques incorporate chipped 

prunings and woody biomass into the 

soil. These new uses bring additional 

profitability to the grower. 

Therefore, the Board recommended 

that the current almond definition in 

§ 981.4 be broadened to accommodate 

all almond biomass, not just shells and 

hulls. It also recommended that the 

definition of almonds be further 

expanded to include § 981.4(a) to 

specifically define almond biomass as 

almond hulls, shells, skins, and woody 

biomass (i.e. trees and prunings). 

During discussions regarding the 

definition of ‘‘almonds,’’ Board 

members noted that their research and 

development projects should address 

the entire almond category. Such efforts 

should encompass all aspects of almond 

production, going beyond almond 


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kernels, inshell almonds, and the byproduct shells and hulls. The interest in 

innovative applications for almond byproducts and biomass utility has 

expanded over the years. Specifically, 

the Board has prioritized research of 

water conservation, zero orchard waste 

production practices, environmentally 

friendly pest management tools, and 

additional ways to reduce carbon 

dioxide emissions. 

The Board does not intend to engage 

in marketing promotion or advertising 

of almond biomass, nor does it intend 

to permit any credit-back 

reimbursements to be applied to 

biomass (just as such reimbursements 

were never applied to shells and hulls). 

In its marketing promotion and 

advertising activity for consumable 

almonds, the Board would likely refer to 

its research efforts associated with 

almond biomass and its focus on 

sustainability and improving grower 

returns. 

During subsequent discussions, the 

Board emphasized that none of the 

changes in definitions would impact or 

materially expand the Board’s 

authorities, nor would they expand the 

type of research or activities which are 

conducted by the Board. Rather, these 

changes would update the regulatory 

text to reflect current industry 

terminology and more accurately 

describe almond by-products that now 

represent additional value to the grower, 

which were previously viewed as waste. 

Finally, to accommodate for new 

innovations in the almond industry, the 

Board recommended modifying the 

definition of shelled almonds in § 981.6 

to include any form an almond without 

a shell might take, rather than 

specifying the exact almond form. This 

modification would simplify the 

language to provide flexibility in the 

event there are different forms or 

descriptors of almonds used in the 

future. The modifications to § 981.6 

would strike ‘‘raw or roasted’’ and 

remove the overly prescriptive language 

‘‘blanched, diced, sliced, slivered, cut, 

halved, or broken almonds, or any 

combination thereof.’’ 

Proposal 2—Almond Board of 

California Voting Date Change 

Section 981.32(b)(2) of the Order 

establishes the criteria for how handlers 

may vote for Board nominees. This 

proposal would amend § 981.32(b)(2) by 

changing the handling period date for 

determining a handler’s nomination 

weighting from December 31 to March 

31 of the crop year in which the 

nominations are made (crop year being 

August 1 to the following July 31). 

Moving the date forward (further into 

the crop year) would allow for a more 

accurate determination of handler 

volume to be utilized when calculating 

each handler’s weighting for Board 

nominations. 

The volume of almonds handled, as 

reported by the handlers, determines 

each handler’s weighted vote for 

membership on the Board. The Board 

issues assessment invoices to handlers 

four times per year on a set schedule. 

The Board currently uses the volume 

handled per the December 31 

assessment invoice to establish a 

handler’s weighted vote. When the 

nominations and term of office dates 

were changed in the last amendment to 

the Order in October 2019 (84 FR 

50713), it shifted the period for voting 

to later in the year. With the 

reestablishment of election dates, the 

Board can now utilize each handler’s 

March 31 assessment volume as the 

basis for computing handler volume for 

voting purposes. Moreover, as crop 

yields increase and deliveries of 

almonds from growers to handlers 

extend later into the crop year, using the 

March 31 assessment date to determine 

handling quantity would ensure that a 

larger proportion of the crop will be 

delivered and reported to the Board, and 

a more accurate estimate of handler 

volume may be utilized in the voting 

process. 

This proposed date change would not 

impact how handler volume is 

calculated, nor would it have any 

impact on the voting process. The 

proposed date change would also take 

into consideration timing of Board 

meetings and election dates. 

Proposal 3—Update Language 

Regarding the Board 

Section 981.41(b) provides 

authorization for the Board to 

recommend research, development, and 

marketing promotion projects. However, 

the existing language in § 981.41(b) 

refers to the Board by its former name 

‘‘Control Board.’’ This proposal would 

update this section to correctly refer to 

the Board by its current name. 

Similarly, § 981.59(a), which provides 

authorization for the Board to determine 

the reserve obligation for handlers, 

refers to the Board by its old name 

‘‘Control Board.’’ The proposed action 

would update this section to correctly 

refer to the Board by its current name. 

Each of the proposed changes to 

§ 981.41(b) and § 981.59(a) are 

administrative in nature and would 

have no impact on the Board’s activities. 

Proposal 4—Revise Language 

Addressing Outlets for Inedible Kernels 

Section 981.42(a) requires handlers to 

determine, through quality control 

inspections performed by the inspection 

agency, the percentage of inedible 

kernels received and report the 

determination to the Board. Such 

inedible kernels shall be delivered to 

the Board or a Board-approved alternate 

outlet. The current language specifies 

such outlets as ‘‘crushers, feed 

manufacturers, or feeders’’ and limits 

the delivery of inedible kernels to the 

same. This proposal would change 

§ 981.42(a) to refer to all delivery outlets 

approved by the Board for inedible 

kernels as ‘‘accepted users’’ and would 

authorize alternative outlets for such 

product, so long as they meet 

established criteria determined by the 

Board. 

This change would broaden language 

related to approved outlets for inedible 

kernels in the incoming quality control 

regulations. Specifically, it would adopt 

the more common industry term— 

accepted users—to refer to the types of 

outlets for inedible kernels currently 

delineated in the Order (crushers, feed 

manufacturers, and feeders). The term is 

recognized by industry to encompass 

other disposition outlets not specifically 

prescribed, but commonly used, such as 

a landfill. Using the term ‘‘accepted 

users’’ would also not limit other 

disposition outlets that may be utilized 

in the future. 

Further, the term ‘‘accepted user’’ is 

utilized later in the Administrative 

Requirements section of the Order, so 

the term is understood and utilized by 

the Board and the industry in the 

administration of the Order. Section 

981.442(a)(5) stipulates the 

requirements for handlers to meet their 

disposition obligation. In that section, 

handlers must deliver inedible product 

to entities ‘‘on record with the Board as 

accepted users.’’ The Board utilizes 

Form ABC–34, Application to be 

Approved as an Accepted User of 

Inedible Almonds and Almond Waste, 

in the approval process for accepted 

users. This action would harmonize 

§ 981.41(a) with other sections of the 

Order and the existing administrative 

oversight mechanisms of the Board. 

Proposal 5—Volume Regulation 

Submission Date Change 

Section 981.49 requires that the Board 

furnish to the Secretary estimates of the 

supply and demand for almonds, and 

the corresponding salable and reserve 

percentages to be established, by August 

1 of each year that volume regulation is 

being considered. The estimates aid the 


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Secretary in determining if volume 

regulation would tend to effectuate the 

policy of the Act and in fixing the 

appropriate salable and reserve 

percentages. 

This proposal would change the date 

that such information must be furnished 

to the Secretary from August 1 to 

September 1 of each crop year. Revising 

the reporting date would allow for more 

data to be considered when making 

recommendations for volume 

regulation. 

Currently, the Order specifies August 

1 as the date when industry estimates 

and volume recommendation must be 

furnished to the Secretary. However, 

this date immediately follows the end of 

the crop year, and it provides little time 

for the Board to compile industry data 

and formulate recommendations for 

salable and reserve percentages. In 

addition, data pertinent to the subject 

are not available until after the August 

1 date. As an example, the final position 

report of crop year shipments and 

commitments is not published until the 

first week of August. 

The current submission date also 

limits the time available for discussion 

by the Board when considering volume 

control recommendations. The Board 

normally meets in early August, after 

the publication of National Agricultural 

Statistics Service’s (NASS) Objective 

Forecast in July and year-end crop 

information are available. By moving 

the date of notification to the Secretary 

to September 1, the Board would avoid 

having to schedule a special meeting in 

July to meet the Order’s requirement. 

The September 1 date would also allow 

the Board’s staff to complete a full 

analysis utilizing final crop numbers 

and the NASS data. As such, the 

proposed date change would increase 

the time available for Board discussions 

and allow for more thorough data 

analysis, providing greater accuracy in 

the calculations that might be made for 

the reserve recommendation. This 

change would have no impact on crop 

estimates or other Board activities. 

Proposal 6—Modification of the 

Accounting of Funds Held in Reserve 

Section 981.81(b) stipulates 

authorized use and refund requirements 

for assessments collected but not 

utilized within the applicable crop year. 

Under the provisions in that paragraph, 

certain excess funds, if not expended, 

must be held as qualified reserve funds 

that may only be expended on 

marketing promotion expenses. Further, 

the paragraph refers to accounting for 

funds held in reserve as being 

segregated into separate ‘‘portions’’ of 

the reserve. 

Section 981.81(c) prescribes 

requirements for the Board’s financial 

reserve. Currently, the Board maintains 

its operating reserve in two ‘‘portions,’’ 

one consisting of funds to be used for 

administrative-research functions and 

another consisting of funds to be used 

for marketing promotion activities. The 

amount in each portion is not to exceed 

approximately six-months’ budget for 

the respective activity area. 

The Board has found it impractical to 

maintain separate accounting of excess 

and reserve funds for administrativeresearch purposes and marketing 

promotion purposes. The Board has 

authority to recommend an operating 

budget and assessment rate each year, 

and it can also draw from its operating 

reserve to fund operations at any time 

during the year. Maintaining separate 

accounting to designate reserve funds 

for certain distinct purposes, however, 

adds administrative burden with no 

recognizable benefit. While the 

accounting scheme may have served a 

purpose in the past, the Board believes 

that it is redundant and obsolete moving 

forward. 

This proposal would revise the 

Order’s regulatory language in 

§§ 981.81(b) and 981.81(c) regarding 

assessment accounting procedures and 

processes for funds held in reserve. Both 

sections refer to keeping separate the 

funds used for administrative-research 

activities and funds used for marketing 

promotion activities. To facilitate the 

efficient accounting of reserve funds 

moving forward, this proposal would 

remove language in § 981.81(b) that 

refers to the proportional segregation of 

reserve funds according to their 

administrative-research or marketing 

promotion use. Similarly, this proposal 

would strike language in § 981.81(c) 

which currently specifies that the 

reserve fund consists of an 

administrative-research portion and a 

marketing promotion portion. It would 

also modify the language that limits the 

amount held in reserve to not exceed 

‘‘approximately six-months’ budget’’ for 

each activity to read ‘‘six-months’ 

expenses’’, without any reference to 

‘‘each activity.’’ 

The recommended changes would not 

impact the percentage of the assessment 

available for credit-back, nor would it 

materially impact reserves. In addition, 

although there would not be separate 

reserve accounts for different activities, 

the Board and USDA would continue to 

know how all monies are spent and to 

which activities they are allocated 

through the Board’s marketing policy, 

budget, and other approval and 

oversight mechanisms and records. This 

is an administrative change, clarifying 

in the Order language that each portion 

would not technically be maintained in 

separate accounts. 

Proposal 7—Acceptance of Advanced 

Assessments and Borrowing Authority 

Section 981.81 authorizes the 

collection of assessments from almond 

handlers to provide funds to meet 

authorized Board expenses and the 

operating reserve requirements. This 

proposal would create a new § 981.81(f) 

to authorize the Board to accept advance 

payments of assessments and to borrow 

funds from commercial lending 

institutions to better ensure continuity 

in operations during periods when 

neither operating assessments nor 

reserve funds are sufficient to fund 

Board functions. 

As almond tonnage and assessment 

revenue have increased since the 

Order’s promulgation, the industry has 

approved increasingly larger budgets 

which have year-round financial 

commitments. However, growers do not 

necessarily deliver the entire assessable 

crop at one time, nor do handlers have 

the facilities to process the entire crop 

at one time, and handlers instead 

purchase and market almonds 

throughout the production cycle. As a 

result, only about 17 percent of 

assessment revenue is paid to the Board 

when the first crop year assessment 

invoice is sent to handlers in October. 

Consequently, the Board invoices for 

assessments in the second and third 

quarters of the crop year. Yet, many 

research activities and marketing 

programs are initiated early in the crop 

year, necessitating payment when 

services are performed, often well before 

the first assessments are received from 

October invoices. Although the Board 

currently maintains a reserve fund to 

help pay for early expenses, this fund is 

insufficient to advance some of the 

necessary payments. Authorizing the 

Board to accept advance assessment 

payments and to borrow from 

commercial lending institutions would 

help it manage and sustain program 

activities during times of cash flow 

deficiencies. 

Board members further noted that the 

ability to borrow against a line of credit 

is a common tool authorized in other 

Federal marketing orders, especially to 

accommodate expenses when the 

assessment revenue necessary to pay 

such expenses is not received until later 

in the year. While addressing general 

business concerns about the potential 

risks associated with debt financing, the 

Board agreed that its internal control 

policies would be revised to reflect the 

new borrowing authorities. Notably, the 

Board stressed that these policies would 


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include financing procedures that 

would require any borrowing by the 

Board to be reimbursed upon receipt of 

sufficient assessment revenue. 

Moreover, Board members stressed that 

any borrowing of funds would be shortterm in nature, limited, and would not 

extend beyond the end of the crop year. 

Initial Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) (5 

U.S.C. 601–612), AMS has considered 

the economic impact of this action on 

small entities. Accordingly, AMS has 

prepared this initial regulatory 

flexibility analysis. 

The purpose of the RFA is to fit 

regulatory actions to the scale of 

businesses subject to such actions in 

order that small businesses will not be 

unduly or disproportionately burdened. 

Marketing orders issued pursuant to the 

Act, are unique in that they are brought 

about through group action of 

essentially small entities acting on their 

own behalf. 

There are approximately 7,600 

almond growers in the production area 

and approximately 100 handlers subject 

to regulation under the Order. In the 

previous proposed rule, published in 

the Federal Register on April 27, 2023 

(88 FR 25559), the small agricultural 

almond producers are defined by the 

Small Business Administration (SBA) as 

those having annual receipts of less than 

$3,250,000, and small agricultural 

service firms are defined as those having 

annual receipts of less than $30,000,000 

(13 CFR 121.201). Since that 

publication, the SBA updated the 

definition of small businesses to those 

having annual receipts of less than 

$3,750,000 for producers and 

$34,000,000 for handlers (13 CFR 

121.201). Thus, AMS changed the 

thresholds to reflect the new SBA 

thresholds in this proposed rule and 

referendum order. The changes do not 

impact AMS’s ultimate determination 

regarding the impact of the rule on 

small entities. NASS reported in its 

2017 Census of Agriculture (Census) 

that there were 7,611 almond farms in 

the production area, of which 6,683 had 

bearing acres. Additionally, the Census 

indicates that out of the 6,683 California 

farms with bearing acres of almonds, 

4,425 (66 percent) have fewer than 100 

bearing acres. 

In another publication, NASS 

reported a 2021 crop year average yield 

of 2,210 pounds per acre and a season 

average grower price of $1.76 per 

pound. Therefore, a 100-acre farm with 

an average yield of 2,210 pounds per 

acre would produce about 221,000 

pounds of almonds (2,210 pounds times 

100 acres equals 221,000 pounds). At 

$1.76 per pound, that farm’s production 

would be valued at $388,960 (221,000 

pounds times $1.76 per pound equals 

$388,960). Since the Census indicated 

that 66 percent of California’s almond 

farms are less than 100 acres, it could 

be concluded that the majority of 

California almond growers had annual 

receipts from the sale of almonds of less 

than $388,960 for the 2020–21 crop 

year, which is below the SBA threshold 

of $3,750,000 for small producers. 

Therefore, the majority of growers may 

be classified as small businesses. 

To estimate the proportion of almond 

handlers that would be considered 

small businesses, it was assumed that 

the unit value per pound of almonds 

exported in a particular year could serve 

as a representative almond price at the 

handler level. A unit value for a 

commodity is the value of exports 

divided by the quantity exported. Data 

from the Global Agricultural Trade 

System (GATS) database of USDA’s 

Foreign Agricultural Service showed 

that the value of almond exports from 

August 2020 to July 2021 (combining 

shelled and inshell) was $4.647 billion. 

The quantity of almond exports over 

that time-period was 2.162 billion 

pounds. Dividing the export value by 

the quantity yields a unit value of $2.15 

per pound ($4.647 billion divided by 

2.162 billion pounds equals $2.15). 

NASS estimated that the California 

almond industry produced 2.915 billion 

pounds of almonds in 2021. Applying 

the $2.15 derived representative handler 

price per pound to total industry 

production results in an estimated total 

revenue at the handler level of $6.267 

billion (2.915 billion pounds × $2.15 per 

pound). With an estimated 100 handlers 

in the California almond industry, 

average revenue per handler would be 

approximately $62.67 million ($6.267 

billion divided by 100). Assuming a 

normal distribution of revenues, most 

almond handlers shipped almonds 

valued at more than $34,000,000 during 

the 2020–21 crop year. Therefore, the 

majority of handlers may be classified as 

large businesses. 

This proposed rule would revise 

multiple provisions in the Order’s 

subpart regulating handling of 

California almonds. Specifically, the 

proposed rule would: 

• amend the Order to modify the 

definitions of ‘‘Almonds’’ and ‘‘Shelled 

almonds’’, and add a definition for 

‘‘Almond biomass’’ (Proposal 1), 

• change the date utilized to 

determine the applicable handler 

volume for the purpose of tabulating 

handler votes in the nomination process 

for handler positions on the Board 

(Proposal 2), 

• replace obsolete references to 

‘‘Control Board’’ with ‘‘Board’’ in two 

sections (Proposal 3), 

• simplify language pertaining to 

incoming quality control (Proposal 4), 

• change the date that the Board is 

required to submit volume regulation 

estimates and recommendations to the 

Secretary (Proposal 5), 

• remove language that distinguishes 

certain funds in the accounting of the 

Board’s operating reserve fund and set 

the reserve fund limit at approximately 

six-months’ expenses instead of sixmonths’ budget (Proposal 6), and 

• add authority to accept advanced 

assessments and to borrow funds from 

commercial lenders (Proposal 7). 

Proposals 1, 3, and 4 are modernizing 

in nature and align Order provisions 

with current industry definitions and 

practices in §§ 981.4, 981.6, 981.41(b), 

and 981.59(a). It would also add 

§ 981.4(a) to define Almond Biomass 

and simplify language in § 981.42(a) to 

identify disposition outlets more 

broadly as Accepted Users. There are no 

substantial changes or additional 

requirements to industry practices 

effectuated as a result of these proposed 

amendments. 

Proposals 2 and 5 adjust or align dates 

to allow for the inclusion of more 

available data when determining 

weighting of handler votes for Board 

nominations (§ 981.32(b)(2)) and 

providing volume regulation 

recommendations to the Secretary 

(§ 981.49). These changes would not 

impact how volume is calculated for 

handler vote weighting, materially affect 

crop estimates, or adversely impact 

Board activities. 

Proposal 6 removes language that 

distinguishes between funds for 

administrative-research and funds for 

marketing promotion activities in the 

accounting of excess funds (§ 981.81(b) 

and (c)). In addition, it would set the 

reserve fund limit at approximately sixmonths’ expenses instead of the current 

six-months’ budget. This is an 

administrative adjustment that provides 

technical clarification on the accounting 

of assessments and reserves. It does not 

impact the percentage of assessments 

available for refund, nor does it 

materially impact reserves. 

Proposal 7 would add a new section, 

§ 981.81(f), to allow the Board to accept 

advance payment of assessments and 

borrow funds against the current 

season’s assessment receipts using a line 

of credit from a commercial financial 

institution to provide additional 

flexibility in managing its cashflows and 

expenses. 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 191 / Wednesday, October 4, 2023 / Proposed Rules 68505 

1This order shall not become effective unless and 

until the requirements of § 900.14 of the rules of 

practice and procedure governing proceedings to 

formulate marketing agreements and marketing 

orders have been met. 

This proposed rule would apply 

equally to producers and handlers, 

regardless of size. The proposed 

amendments have no additional impact 

on the reporting, record-keeping, or 

compliance costs of small businesses. 

The Board considered the benefits 

and costs of maintaining the status quo 

as an alternative to this proposed rule; 

however, the Board determined that 

each proposed amendatory change was 

beneficial in either clarifying or 

updating the language of the Order for 

industry or improving the Board’s 

continuity of operations at no additional 

costs to industry. 

Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

Chapter 35), the Order’s information 

collection requirements have been 

previously approved by OMB and 

assigned OMB No. 0581–0178, 

Vegetable and Specialty Crops. No 

changes in those requirements are 

necessary because of this action. Should 

any changes become necessary, they 

would be submitted to OMB for 

approval. 

This proposed rule would impose no 

additional reporting or recordkeeping 

requirements on either small or large 

almond handlers. As with all Federal 

marketing order programs, reports and 

forms are periodically reviewed to 

reduce information requirements and 

duplication by industry and publicsector 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 action. 

The Board’s meetings are widely 

publicized throughout the California 

almond production area. All interested 

persons are invited to attend the 

meeting and encouraged to participate 

in Board deliberations on all issues. 

Like all Board meetings, the meetings 

held on December 9, 2019, August 11, 

2020, and December 7, 2020, were 

public, and all entities, both large and 

small, were encouraged to express their 

views on the proposals. 

A proposed rule concerning this 

action published in the Federal Register 

on April 27, 2023 (88 FR 25559). A copy 

of the rule was sent via email to the 

Board staff for distribution to all Board 

members and California almond growers 

and handlers. The proposed rule was 

also made available by USDA through 

the internet and the Office of the 

Federal Register. A 60-day comment 

period ending June 26, 2023, was 

provided to allow interested persons to 

respond to the proposals. AMS received 

one comment during the comment 

period. The comment supported the 

proposed amendments. Based on all the 

information available to AMS at this 

time, including the comments received 

in response to the proposed rule, no 

substantive changes will be made to the 

amendments as proposed. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: https://

www.ams.usda.gov/rules-regulations/ 

moa/small-businesses. Any questions 

about the compliance guide should be 

sent to Richard Lower at the previously 

mentioned address in the FOR FURTHER

INFORMATION CONTACT section. 

Findings and Conclusions 

AMS has determined that the findings 

and conclusions, and general findings 

and determinations included in the 

proposed rule set forth in the April 26, 

2023, issue of the Federal Register (88 

FR 25559) are appropriate and necessary 

and are hereby approved and adopted. 

Marketing Order 

Annexed hereto and made a part 

hereof is the document entitled ‘‘Order 

Amending the Order Regulating the 

Handling Almonds Grown in 

California.’’ This document has been 

decided upon as the detailed and 

appropriate means of effectuating the 

foregoing findings and conclusions. It is 

hereby ordered that this entire proposed 

rule be published in the Federal 

Register. 

Referendum Order 

It is hereby directed that a referendum 

be conducted in accordance with the 

procedure for the conduct of referenda 

(7 CFR part 900.400–407) to determine 

whether the annexed order amending 

the Order regulating the handling of 

almonds grown in California is 

approved by growers, as defined under 

the terms of the Order, who during the 

representative period were engaged in 

the production of almonds in the 

production area. The representative 

period for the conduct of such 

referendum is hereby determined to be 

August 1, 2022, through July 31, 2023. 

The agents designated by the 

Secretary to conduct the referendum are 

Bianca Bertrand, Barry Broadbent, Gary 

Olson, and Peter Sommers, West Region 

Branch, Market Development Division, 

Specialty Crops Program, AMS, USDA; 

Telephone: (863) 324–3375, Fax: (863) 

291–8614, or Email: BiancaM.Bertrand@

usda.gov, Barry.Broadbent@usda.gov, 

GaryD.Olson@usda.gov, and 

PeterR.Sommers@usda.gov, 

respectively. 

Order Amending the Order Regulating 

the Handling of Almonds Grown in 

California 1

Findings and Determinations 

The findings and determinations 

hereinafter set forth are supplementary 

to the findings and determinations 

which were previously made in 

connection with the issuance of 

Marketing Order 981; and all said 

previous findings and determinations 

are hereby ratified and affirmed, except 

insofar as such findings and 

determinations may be in conflict with 

the findings and determinations set 

forth herein. 

1. Marketing Order 981 as hereby 

proposed to be amended and all the 

terms and conditions thereof, would 

tend to effectuate the declared policy of 

the Act; 

2. Marketing Order 981 as hereby 

proposed to be amended regulates the 

handling of almonds grown in 

California and is applicable only to 

persons in the respective classes of 

commercial and industrial activity 

specified in the Order; 

3. Marketing Order 981 as hereby 

proposed to be amended is limited in 

application to the smallest regional 

production area which is practicable, 

consistent with carrying out the 

declared policy of the Act, and the 

issuance of several marketing orders 

applicable to subdivisions of the 

production area would not effectively 

carry out the declared policy of the Act; 

4. Marketing Order 981 as hereby 

proposed to be amended prescribes, 

insofar as practicable, such different 

terms applicable to different parts of the 

production area as are necessary to give 

due recognition to the differences in the 

production and marketing of almonds 

produced or packed in the production 

area; and 

5. All handling of almonds grown or 

handled in the production area, as 

defined in Marketing Order 981 is in the 

current of interstate or foreign 

commerce or directly burdens, 

obstructs, or affects such commerce. 

Order Relative to Handling 

It is therefore ordered, that on and 

after the effective date hereof, all 


lotter on DSK11XQN23PROD with PROPOSALS1
68506 Federal Register / Vol. 88, No. 191 / Wednesday, October 4, 2023 / Proposed Rules 

handling of almonds grown in 

California shall be in conformity to, and 

in compliance with, the terms and 

conditions of the said Order as hereby 

proposed to be amended as follows: 

The provisions of the proposed 

marketing order amending the Order 

contained in the proposed rule issued 

by the Administrator and published in 

the Federal Register (88 FR 25559) on 

April 27, 2023, will be and are the terms 

and provisions of this order amending 

the Order and are set forth in full 

herein. 

List of Subjects in 7 CFR Part 981 

Marketing agreements, Nuts, 

Reporting and recordkeeping 

requirements. 

For the reasons set forth in the 

preamble, the Agricultural Marketing 

Service proposes to amend 7 CFR part 

981 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. Revise § 981.4 to read as follows: 

§ 981.4 Almonds. 

Almonds means (unless otherwise 

specified) all varieties of almonds 

(except bitter almonds), either shelled or 

unshelled, grown in the State of 

California, and, for the purposes of 

research includes almond biomass. 

■ 3. Add § 981.4a to read as follows: 

§ 981.4a Almond Biomass. 

Almond Biomass means the hulls, 

shells, and skins of harvested almonds 

and woody biomass derived from 

almond trees (e.g. tree limbs, bark, 

prunings). 

■ 4. Revise the first sentence of § 981.6 

to read as follows: 

§ 981.6 Shelled almonds. 

Shelled almonds mean almonds after 

the shells are removed and includes any 

form those almonds might take. * * * 

■ 5. Revise § 981.32(b)(2) to read as 

follows: 

§ 981.32 Nominations. 

* * * * * 

(b) * * * 

(2) Each handler may vote for a 

nominee for each position representing 

the group to which the handler belongs. 

Each handler vote shall be weighted by 

the quantity of almonds (kernel weight 

basis computed to the nearest whole 

ton) handled for the handler’s own 

account through March 31 of the crop 

year in which nominations are made. 

The nominee for each position shall be 

the person receiving the highest 

weighted vote for the position. 

* * * * * 

§ 981.41 [Amended] 

■ 6. Amend § 981.41(b) by removing the 

word ‘‘Control’’. 

§ 981.42 [Amended] 

■ 7. Amend the second sentence of 

§ 981.42(a) by removing the words 

‘‘accepted crushers, feed manufacturers, 

or feeders’’ and adding, in their place, 

‘‘approved accepted users.’’ 

§ 981.49 [Amended] 

■ 8. Amend § 981.49 by replacing the 

word ‘‘August’’ with ‘‘September’’. 

■ 9. Amend § 981.59 (a) by removing the 

word ‘‘Control’’. 

■ 10. Amend § 981.81 by: 

■ a. Revising the third and fourth 

sentences in paragraph (b); 

■ b. Revising the first sentence in 

paragraph (c); and 

■ c. Adding paragraph (f). 

The revisions and addition read as 

follows: 

§ 981.81 Assessment. 

* * * * * 

(b) * * * Any amounts not credited 

pursuant to § 981.41 for a crop year may 

be used by the Board for its marketing 

promotion expenses of the succeeding 

crop year, and any unexpended portion 

of those amounts at the end of that crop 

year shall be retained in the operating 

reserve fund. Any funds of the operating 

reserve fund in excess of the level 

authorized pursuant to paragraph (c) of 

this section shall be refunded to 

handlers or used to reduce the 

assessment rate of the subsequent crop 

year, as the Board may determine. 

* * * * * 

(c) Reserves. The Board may maintain 

an operating reserve fund which shall 

not exceed approximately six-months’ 

expenses or such lower amount as the 

Board may establish with the approval 

of the Secretary: Provided, That this 

limitation shall not restrict the 

temporary retention of excess funds for 

the purpose of stabilizing or reducing 

the assessment rate of a crop year. * * * 

* * * * * 

(f) Advanced Assessments and 

Commercial Loans. To provide funds for 

the administration of the programs 

during the part of a crop year when 

neither sufficient operating reserve 

funds nor sufficient revenue from 

assessment on the current season’s 

receipts are available, the Board may 

accept payment of handler assessments 

in advance of the date when due or may 

borrow funds from a commercial 

lending institution for such purposes. 

Erin Morris, 

Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2023–21701 Filed 10–3–23; 8:45 am] 

BILLING CODE P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Parts 20, 30, and 51 

[NRC–2023–0071] 

RIN 3150–AL00 

Regulatory Framework for Fusion 

Systems 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Availability of preliminary 

proposed rule language; public meeting. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC) is considering 

amending its byproduct material 

regulations to establish a regulatory 

framework for fusion systems. The NRC 

is making available preliminary 

proposed rule language for a limitedscope, technology-inclusive framework 

that will be added to NRC’s regulations 

in the Code of Federal Regulations. The 

NRC plans to hold public meetings in 

October and November 2023, to promote 

understanding of the preliminary 

proposed rule and facilitate 

transparency in its public rulemaking 

process. 

DATES: The NRC plans to hold a series 

of public meetings on October 11, 2023, 

November 1, 2023, and November 9, 

2023. See Section II, ‘‘Preliminary 

Proposed Rule Language and Public 

Meetings,’’ of this document for more 

information on the meetings. 

ADDRESSES: Please refer to Docket ID 

Docket ID NRC–2023–0071 when 

contacting the NRC about the 

availability of information for this 

action. You may obtain publicly 

available information related to this 

action by any of the following methods: 

• Federal Rulemaking Website: Go to 

https://www.regulations.gov and search 

for Docket ID NRC–2023–0071. Address 

questions about NRC Docket IDs to 

Dawn Forder; telephone: 301–415–3407; 

email: Dawn.Forder@nrc.gov. For 

technical questions, contact the 

individuals listed in the FOR FURTHER

INFORMATION CONTACT section of this 

document. 

• NRC’s Agencywide Documents 

Access and Management System 

(ADAMS): You may obtain publicly 


lotter on DSK11XQN23PROD with PROPOSALS1