This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents.

Rules and Regulations Federal Register

67621 

Vol. 88, No. 189 

Monday, October 2, 2023 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 981 

[Doc. No. AMS–SC–22–0069] 

Marketing Order Regulations for 

Almonds Grown in California 

AGENCY: Agricultural Marketing Service, 

Department of Agriculture (USDA). 

ACTION: Final rule. 

SUMMARY: This rule implements a 

recommendation from the Almond 

Board of California (Board) to change 

multiple provisions in the 

administrative requirements prescribed 

under the Federal marketing order 

regulating the handling of almonds 

grown in California (Order). This action 

amends administrative requirements 

regulating quality control, exempt 

dispositions, and interest and late 

charges provisions. In addition, the rule 

stays two sections of the administrative 

requirements that define almond butter 

and stipulate disposition in reserve 

outlets by handlers to facilitate the 

efficient administration of the Order. 

DATES: Effective November 1, 2023. 

FOR FURTHER INFORMATION CONTACT: 

Peter Sommers, Marketing Specialist, or 

Gary Olson, Chief, West Region Branch, 

Market Development Division, Specialty 

Crops Program, AMS, USDA; 

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

487–5906, or Email: PeterR.Sommers@

usda.gov or GaryD.Olson@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, 

amends regulations issued to carry out 

a marketing order as defined in 7 CFR 

900.2(j). This final rule 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 production area. 

The Agricultural Marketing Service 

(AMS) is issuing this rule in 

conformance with Executive Orders 

12866, 14094 and 13563. 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 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 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 final rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This rule is not intended 

to have retroactive effect. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 608c(15)(A) of the Act, any 

handler subject to an order may file 

with USDA a petition stating that the 

order, any provision of the order, or any 

obligation imposed in connection with 

the order is not in accordance with law 

and request a modification of the order 

or to be exempted therefrom. A handler 

is afforded the opportunity for a hearing 

on the petition. After the hearing, USDA 

would rule on the petition. The Act 

provides that the district court of the 

United States in any district in which 

the handler is an inhabitant, or has his 

or her principal place of business, has 

jurisdiction to review USDA’s ruling on 

the petition, provided an action is filed 

no later than 20 days after the date of 

the entry of the ruling. 

This final rule amends administrative 

requirements in the Order regulating 

quality control, exempt dispositions, 

and interest and late charges provisions. 

In addition, the rule stays two sections 

of the administrative requirements that 

define almond butter and stipulate 

disposition in reserve outlets by 

handlers. This action modifies the 

Order’s requirements to reflect updates 

in industry practices and is expected to 

help facilitate the orderly 

administration of the Order. 

The Board initially recommended the 

changes effectuated herein, along with 

proposed changes to the Order’s 

roadside stand exemption and creditback provisions, at meetings held on 

December 7, 2020, and June 17, 2021. 

AMS subsequently published a 

proposed rule in the Federal Register 

addressing the aggregate of those 

proposed changes on February 22, 2022 

(87 FR 9455), with a 60-day comment 

period ending April 25, 2022. Four 

comments were received during the 

comment period. Two comments 

favored the proposed rule, one comment 

was neutral, and one was opposed. The 

comment opposed to the action was 

submitted by a large cooperative 

marketing association and contained 

embedded comments from four 

individual growers. These comments 

opposed changes to the credit-back 

provision and further questioned the 

Board’s administrative process in 

recommending the proposed changes to 

AMS. 

After consideration of the comments 

received during the proposed rule’s 

initial comment period, AMS reopened 

the comment period for 15 additional 

days from June 22, 2022, to July 7, 2022 


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67622 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Rules and Regulations 

(87 FR 37240). During the reopened 

comment period, 1,155 comments were 

received. Approximately 98 percent of 

the comments were opposed to the 

proposed changes to the roadside stand 

exemption. Notably, aside from the 

objections to the credit-back provision 

and the roadside stand exemption, 

commenters did not oppose any other 

portions of the proposed rule. 

Given the opposition to proposed 

changes to the credit-back and roadside 

stand exemption provisions in the 

Order, AMS published a withdrawal of 

the proposed rule in the Federal 

Register on August 22, 2022 (87 FR 

51270). 

The Board met on September 30, 

2022, and unanimously recommended 

the resubmission of the proposed 

changes to the Order’s regulations, 

minus the previously proposed changes 

to the credit-back and roadside stand 

exemption provisions. Excepting the 

previously discussed provisions that 

were removed, the modifications to the 

Order’s regulations, as effectuated 

herein, are identical to the changes 

proposed in the initial proposed rule 

published February 22, 2022 (87 FR 

9455). A proposed rule concerning this 

action was published in the Federal 

Register on April 27, 2023 (88 FR 

25565), and it received one comment. 

The commentor expressed opinions on 

the sustainability of almond production 

that did not address the merits of the 

proposed rule. The commenter did not 

support or oppose the proposal. 

Multiple sections in the Order 

provide the authority for this action. 

The authorities are cited with the 

descriptions of each of the changes in 

the following narrative. 

Section 981.42 of the Order provides 

the authority to establish quality control 

regulations for both incoming and 

outgoing product. Section 981.442 of the 

Order’s administrative requirements 

establishes quality control regulations 

under that authority. Section 981.442(a) 

establishes the quality requirements for 

incoming product received by handlers. 

Section 981.442(b) establishes the 

quality requirements for outgoing 

product prior to being shipped by 

handlers. 

This final rule modifies provisions in 

§ 981.442(a) to clarify ambiguous 

language, remove irrelevant dates, and 

more clearly define ‘‘accepted user’’ as 

it is referenced in the regulations. The 

rule also relaxes the requirements for 

handlers in meeting their disposition 

obligation under the regulations. The 

incoming quality requirements have 

been amended to allow inedible kernels, 

foreign material, and other defects 

sorted from off-site cleaning facilities to 

be credited to a handler’s disposition 

obligation. In addition, almond meal 

will be allowed to meet the non-inedible 

portion of the disposition obligation, 

with the meal content to be determined 

in a manner acceptable to the Board. 

In § 981.442(b), the rule amends the 

regulations to facilitate handlers 

utilizing off-site cleaning and treatment 

facilities in fulfillment of their quality 

control requirements. The action will 

allow the transfer of product for off-site 

cleaning without the transfer being 

considered a shipment, designates offsite treatment facilities as ‘‘custom 

processors,’’ and establishes application 

and approval procedures for Board 

authorization of such custom 

processors. This final rule also clarifies 

the roles of the Technical Expert Review 

Panel (TERP) and the Board in 

administering the program as detailed in 

several provisions in § 981.442(b). 

Lastly, the rule refines the duties of a 

Direct Verifiable (DV) program auditor 

to disallow individuals who conduct 

process validations from being named as 

the DV auditor for that same equipment 

used in the treatment process. 

Section 981.50 of the Order 

establishes handler reserve obligation 

requirements. Under those Order 

provisions, certain products are 

exempted from the reserve obligation, 

subject to the accountability of the 

Board. Section 981.450 establishes the 

provisions for exempt dispositions 

under the reserve obligation. This rule 

enhances the procedures currently in 

place for the Board to account for 

exempt dispositions. Moving forward, 

outlets for exempted product will need 

to be pre-approved by the Board in 

accordance with the requirements 

contained in § 981.442(a)(7). Finally, 

because ‘‘animal feed’’ encompasses 

‘‘poultry feed,’’ § 981.450 is simplified 

by removing any reference to the word 

‘‘poultry.’’ 

Section 981.66(b) of the Order 

establishes the conditions governing the 

disposition of reserve product. Within 

that paragraph, diversion of reserve 

almonds to be manufactured into 

almond butter is listed as an allowable 

outlet for such product. Section 981.466 

further defines ‘‘almond butter’’ as used 

in § 981.66. The expanded definition of 

almond butter is no longer relevant in 

the administration of the program. 

Therefore, this rule stays § 981.466 

indefinitely. 

Section 981.467 establishes the 

requirements regarding the disposition 

in reserve outlets by handlers. The 

section details the establishment of 

agents of the Board, delineates reserve 

credit in satisfaction of a reserve 

obligation, sets minimum prices, and 

establishes certain dates pertaining to 

the reserve disposition obligations. As 

the Order is not currently regulating 

volume, and a significant portion of the 

requirements are outdated, the 

provisions in § 981.467 are not currently 

relevant to the administration of the 

Order. As such, this rule stays the entire 

section indefinitely. 

Lastly, § 981.481 stipulates the 

requirements for submission of handler 

assessment payments, which include 

documentary requirements for proof of 

timely submission of assessment 

payments. Other than actual receipt of 

payment in the Board’s office within 30 

days of the invoice date on the handler’s 

statement, the current provisions only 

identify the U.S. Postal Service 

postmark as proof of timely submission. 

This rule adds ‘‘or by some other 

verifiable delivery tracking system’’ to 

the section to allow handlers alternative 

delivery methods. 

The Board believes that the changes 

effectuated herein are necessary to 

update the Order’s administrative 

requirements to adapt to changes in the 

industry and to reflect current industry 

practices. Many of the revisions are 

conforming changes, but this final rule 

also makes changes to the quality 

control regulations that the Board views 

as essential to the continued efficient 

administration of the Order. The 

changes contained herein are expected 

to facilitate the orderly marketing of 

California almonds and benefit growers 

and handlers in the industry. 

Final 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 final rule 

on small entities. Accordingly, AMS 

prepared this final 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, and the rules issued thereunder, are 

unique in that they are brought about 

through group action of essentially 

small entities acting on their own 

behalf. 

There are approximately 7,600 

almond growers in the production area 

and approximately 100 handlers subject 

to regulation under the Order. At the 

time this analysis was prepared, small 

agricultural almond producers were 

defined by the Small Business 

Administration (SBA) as those having 

annual receipts equal to or less than 

$3,750,000 (North American Industry 


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Classification System code 111335, Tree 

Nut Farming), and small agricultural 

service firms were defined as those 

having annual receipts equal to or less 

than $34,000,000 (North American 

Industry Classification System code 

115114, Postharvest Crop Activities) (13 

CFR 121.201). The SBA thresholds for 

producers and handlers changed after 

the publication of the proposed rule. 

Thus, AMS changed the thresholds to 

reflect the currently applicable SBA 

thresholds in this final rule. The 

changes do not impact AMS’s ultimate 

determination regarding the impact of 

the rule on small entities. 

National Agricultural Statistics 

Service (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 its annual Noncitrus Fruits and 

Nuts Publication, NASS reported a 2021 

crop year average yield of 2,210 pounds 

per acre and a season average grower 

price of $1.86 per pound. Therefore, a 

100-acre farm with an average yield of 

2,220 pounds per acre would produce 

about 222,000 pounds of almonds (2,220 

pounds times 100 acres equals 221,000 

pounds). At $1.86 per pound, that 

farm’s production would be valued at 

$412,920 (222,000 pounds times $1.86 

per pound equals $412,920). Since the 

Census indicates that 66 percent of 

California’s almond farms are less than 

100 acres, it may be concluded that the 

majority of California almond growers 

had annual receipts from the sale of 

almonds of less than $412,920 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 may 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 2010–21 crop year. Therefore, the 

majority of handlers may be classified as 

large businesses. 

This final rule revises multiple 

provisions in the Order’s administrative 

requirements. This action amends 

regulations covering the Order’s quality 

control, exempt dispositions, and 

interest and late charges provisions. In 

addition, it stays regulations contained 

in §§ 981.466 and 981.467. One of the 

sections that is stayed defines almond 

butter and the other regulates almond 

disposition in reserve outlets by 

handlers. Both sections are stayed 

indefinitely. 

More specifically, in § 981.442(a), the 

rule clarifies ambiguous language, 

removes irrelevant dates, and more 

clearly defines the term ‘‘accepted user’’ 

as it is referenced in the regulations. It 

also relaxes the requirements for 

handlers in meeting their disposition 

obligation under the Order. 

Additionally, in § 981.442(b), the rule 

change will allow the transfer of 

product for off-site cleaning without the 

transfer being considered a shipment, 

designate off-site treatment facilities as 

‘‘custom processors,’’ and establish 

application and approval procedures for 

Board authorization of custom 

processors. This action also clarifies the 

roles of the TERP and the Board in 

administering the program in several 

subparagraphs in the section. Further, 

this rule refines the definition of a DV 

program auditor to disallow individuals 

who conduct process validations from 

being named as the DV auditor for that 

same equipment used in the treatment 

process. 

This rule also amends § 981.450 to 

require outlets for exempted product be 

Board-approved, in accordance with 

§ 981.442(a)(7). 

Further, § 981.466, which defines 

‘‘almond butter’’ as it is used in 

§ 981.66(b), is no longer relevant in the 

administration of the program and is 

stayed indefinitely. In addition, as the 

Order is not currently regulating 

volume, § 981.467 is not necessary for 

the administration of the Order and is 

also stayed indefinitely. 

Lastly, this action revises § 981.481 by 

adding ‘‘or by some other verifiable 

delivery tracking system’’ to the 

requirements to allow handlers 

alternative trackable delivery methods 

for demonstration of timely submission 

of assessment payments. 

The authorities for the changes 

detailed above are contained in 

§§ 981.42, 981.50, 981.66, 981.67, and 

981.81 of the Order. 

The Board believes that the 

administrative requirement revisions 

effectuated herein are necessary to 

reflect changes in the industry and to 

update the regulations to reflect current 

practices. Many of the modifications are 

conforming changes, but this action also 

makes substantive changes to quality 

control requirements that the Board 

views as essential to the efficient 

administration of the Order. The 

changes contained herein are expected 

to facilitate the orderly marketing of 

California almonds and benefit growers 

and handlers in the industry. 

Initially, the Board unanimously 

recommended the changes contained 

herein, along with other recommended 

changes that were subsequently 

removed from consideration. The Board 

unanimously recommended the changes 

contained herein at a meeting on 

September 30, 2022. 

AMS anticipates this final rule will 

impose minimal, if any, additional costs 

on handlers or growers, regardless of 

size. The changes to the administrative 

requirements are intended to clarify 

certain provisions, remove ambiguous 

and obsolete language, and adapt the 

requirements to facilitate the orderly 

marketing of almonds. The benefits 

derived from this rule are not expected 

to be disproportionately more or less for 

small handlers or growers than for larger 

entities. 

The Board considered alternatives to 

this action, including making no 

changes to the current requirements and 

only making changes to some of the 

requirements. After consideration of all 

the alternatives, and in consultation 

with AMS, the Board determined that 

making the recommended changes is the 

best option to facilitate the Order’s 

administration, contribute to the orderly 

marketing of almonds, and provide the 

greatest benefit to growers and handlers 

while maintaining the integrity of the 

Order. 

Further, the Board’s meeting was 

widely publicized throughout the 

California almond industry, and all 

interested persons were invited to 


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attend the meeting and participate in 

Board deliberations. Like all Board 

meetings, the September 30, 2022, 

meeting was a public meeting, and all 

entities, both large and small, were able 

to express their views on this issue. 

Finally, interested persons were invited 

to submit comments on the proposed 

rule, including the regulatory and 

information collection impacts of the 

proposed action on small businesses. 

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 the Office of 

Management and Budget (OMB) and 

assigned OMB Nos. 0581–0178 

(Vegetable and Specialty Crops) and 

0581–0242 (Almond Salmonella). This 

rule announces AMS’s intent to request 

approval from OMB for amendments 

made to existing information collections 

under OMB Nos. 0581–0178 and 0581– 

0242, and for a new information 

collection under OMB No. 0581–NEW. 

Upon publication of this final rule, 

AMS will submit a Justification for 

Change to OMB for the ABC Form 52— 

Direct Verifiable (DV) Program for 

Further Processing of Untreated 

Almonds Application Form (OMB No. 

0581–0242). The form is necessary to 

administer the DV Program established 

by § 981.442(b)(6)(i) in the Order’s 

quality control requirements. The rule 

changes the body that approves DV 

Program applications from the TERP to 

the Board. The instructions that 

accompany ABC Form 52 need to be 

revised accordingly. 

Lastly, this final rule creates a new 

form for California almond handlers, 

titled ABC Form 55, ‘‘Custom Processor 

Application.’’ 

Title: Custom Processor Application 

(7 CFR part 981). 

OMB Number: 0581–NEW. 

Type of Request: New Collection. 

Abstract: The information 

requirements in this request are 

essential to carry out the intent of the 

Act and to administer the Order. The 

Order is effective under the Act, and 

AMS is responsible for the oversight of 

the Order’s administration. 

The Order’s quality control 

requirements for outgoing product 

require handlers to subject their 

almonds to a treatment process or 

processes prior to shipment to reduce 

potential Salmonella bacteria 

contamination. The Order’s quality 

control requirements allow handlers to 

utilize off-site treatment facilities to 

fulfill that requirement. The Board 

unanimously recommended that the 

Order’s quality control requirements be 

amended to define off-site treatment 

facilities located within the production 

area as ‘‘custom processors’’ and to 

require such custom processors to 

annually apply to the Board for 

approval. 

An individual desiring approval as a 

custom processor must demonstrate that 

their facility meets the Order’s treatment 

process requirements and must submit 

an application to the Board. ABC Form 

55, ‘‘Custom Processor Application,’’ 

must be submitted directly to the Board 

once each year no later than July 31. 

The application provides the Board with 

the name of the applicant, the location 

of each treatment facility covered by the 

application, applicant contact 

information, and certification that the 

applicant’s technology and equipment 

provide a treatment process that has 

been validated by a Board-approved 

process authority. 

The Order authorizes the Board to 

collect certain information necessary for 

the administration of the Order. The 

information collected will only be used 

by authorized representatives of the 

AMS, including the AMS Specialty 

Crops Program regional and 

headquarters staff, and authorized 

employees of the Board. All proprietary 

information will be kept confidential in 

accordance with the Act and the Order. 

The request for new information 

collection under the Order is as follows: 

Custom Processor Application 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to be an average of 0.5 

hours per response. 

Respondents: Nut processors located 

within the Order’s area of production. 

Estimated Number of Respondents: 

25. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Responses: 

25. 

Estimated Total Annual Burden on 

Respondents: 12.5 hours. 

A 60-day comment period regarding 

the information collection related to this 

rule was imbedded in the proposed rule 

that was published on April 27, 2023 

(88 FR 25565). The comment period 

closed June 26, 2023. One comment was 

received. The commentor expressed 

opinions on the sustainability of almond 

production but did not address the 

merits of the proposed information 

collection. Therefore, AMS made no 

changes to the information collection 

requirements as proposed. 

Upon approval by OMB, this 

information collection will be merged 

with the information collection 

currently approved under OMB No. 

0581–0242 (Almond Salmonella). 

As with all Federal marketing order 

programs, reports and forms are 

periodically reviewed to reduce 

information requirements and 

duplication by industry and public 

sector agencies. AMS has not identified 

any relevant Federal rules that 

duplicate, overlap, or conflict with this 

rule. 

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. 

Further, the Board’s meetings are 

widely publicized throughout the 

California almond industry, and all 

interested persons are invited to attend 

the meetings and participate in Board 

deliberations on all issues. Like all 

Board meetings, the December 7, 2020, 

June 17, 2021, and September 30, 2022, 

meetings were open to the public, and 

all entities, both large and small, were 

able to express their views on the 

proposed changes. Also, the Board has 

several appointed committees to review 

certain issues and make 

recommendations to the Board. The 

Board’s Almond Quality, Food Safety, 

and Services Committee met several 

times in 2019 and discussed these 

changes in detail. Those meetings were 

also public meetings, and both large and 

small entities were able to participate 

and express their views. Finally, 

interested persons were invited to 

submit comments on the proposed rule, 

including the regulatory and 

information collection impacts of this 

action on small businesses. 

A proposed rule concerning this 

action was published in the Federal 

Register on April 27, 2023 (88 FR 

25565). Copies of the proposed rule 

were also mailed or sent via email to all 

California almond handlers. The 

proposal was made available through 

the internet by USDA and the Office of 

the Federal Register. A 60-day comment 

period ending June 26, 2023, was 

provided for interested persons to 

respond to the proposal. One comment 

was received. The commentor expressed 

opinions on the sustainability of almond 

production that did not address the 

merits of the proposed rule. The 

commenter did not support or oppose 

the proposal. Therefore, AMS made no 

changes to the information collection 

requirements as proposed. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: https:// 


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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. 

After consideration of all relevant 

material presented, including the 

information and recommendations 

submitted by the Board, feedback from 

commenters, and other available 

information, AMS has determined that 

this final rule tends to effectuate the 

declared policy of the Act. 

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 amends 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. Amend § 981.442 by: 

■ a. Revising paragraphs (a)(1), (a)(4)(i), 

and (a)(5); 

■ b. Revising the introductory text of 

paragraph (b); 

■ c. Revising paragraphs (b)(2), (b)(3)(i) 

and (v), and (b)(4)(i) and (v); 

■ d. Revising the introductory text of 

paragraph (b)(6)(i); and 

■ e. Revising paragraphs (b)(6)(i)(A), (C), 

and (D). 

The revisions read as follows: 

§ 981.442 Quality control. 

(a) * * * 

(1) Sampling. Each handler shall 

cause a representative sample of 

almonds to be drawn from each lot of 

any variety received from any incoming 

source. The sample shall be drawn 

before inedible kernels are removed 

from the lot after hulling/shelling, or 

before the lot is processed or stored by 

the handler. For receipts at premises 

with mechanical sampling equipment 

and under contracts providing for 

payment by the handler to the grower 

for sound meat content, samples shall 

be drawn by the handler in a manner 

acceptable to the Board and the 

inspection agency. The inspection 

agency shall make periodic checks of 

the mechanical sampling procedures. 

For all other receipts, including but not 

limited to field examination and 

purchase receipts, accumulations 

purchased for cash at the handler’s door 

or from an accumulator, or almonds of 

the handler’s own production, sampling 

shall be conducted or monitored by the 

inspection agency in a manner 

acceptable to the Board. All samples 

shall be bagged and identified in a 

manner acceptable to the Board and the 

inspection agency. 

* * * * * 

(4) * * * 

(i) The weight of inedible kernels in 

excess of 2 percent of kernel weight 

reported to the Board of any variety 

received by a handler shall constitute 

that handler’s disposition obligation. 

For any almonds sold inshell, the 

weight may be reported to the Board 

and the disposition obligation for that 

variety reduced proportionately. 

* * * * * 

(5) Meeting the disposition obligation. 

Each handler shall meet its disposition 

obligation by delivering packer 

pickouts, kernels rejected in blanching, 

pieces of kernels, meal accumulated in 

manufacturing, or other material, to 

Board-approved accepted users, which 

can include, but are not limited to, 

crushers, feed manufacturers, feeders, or 

dealers in nut wastes, located within the 

production area. Inedible kernels, 

foreign material, and other defects 

sorted from edible kernels by off-site 

cleaning facilities may be used towards 

that handler’s disposition obligation or 

destroyed. Handlers shall notify the 

Board at least 72 hours prior to delivery 

of product to an off-site cleaning facility 

or accepted user location: Provided, 

That the Board or its employees may 

lessen this notification time whenever it 

determines that the 72-hour requirement 

is impracticable. The Board may 

supervise deliveries at its option. In the 

case of a handler having an annual total 

obligation of less than 1,000 pounds, 

delivery may be to the Board in lieu of 

an accepted user, in which case the 

Board would certify the disposition lot 

and report the results to the USDA. For 

dispositions by handlers with 

mechanical sampling equipment, 

samples may be drawn by the handler 

in a manner acceptable to the Board and 

the inspection agency. For all other 

dispositions, samples shall be drawn by 

or under supervision of the inspection 

agency. Upon approval by the Board 

and the inspection agency, sampling 

may be accomplished at the accepted 

user’s destination. The edible and 

inedible almond meat content of each 

delivery shall be determined by the 

inspection agency and reported by the 

inspection agency to the Board and the 

handler. The handler’s disposition 

obligation will be credited upon 

satisfactory completion of ABC Form 8. 

ABC Form 8, Part A, is filled out by the 

handler, and Part B by the accepted 

user. At least 50 percent of a handler’s 

total crop year inedible disposition 

obligation shall be satisfied with 

dispositions consisting of inedible 

kernels as defined in § 981.408: 

Provided, That this 50 percent 

requirement shall not apply to handlers 

with total annual obligations of less 

than 1,000 pounds. Each handler’s 

disposition obligation shall be satisfied 

when the almond meat content of the 

material delivered to accepted users 

equals the disposition obligation, but no 

later than September 30 succeeding the 

crop year in which the obligation was 

incurred. Almond meal can be used for 

meeting the non-inedible portion of the 

obligation. Meal content shall be 

determined in a manner acceptable to 

the Board. 

* * * * * 

(b) Outgoing. Pursuant to § 981.42(b), 

and except as provided in § 981.13 and 

in paragraph (b)(6) of this section, 

handlers shall subject their almonds to 

a treatment process or processes prior to 

shipment to reduce potential 

Salmonella bacteria contamination in 

accordance with the provisions of this 

section. Temporary transfer by a handler 

to an off-site cleaning facility is not 

considered a shipment under this 

section. Handlers may utilize off-site 

cleaning facilities within the production 

area, on record with the Board, to 

provide sorting services to separate 

inedible kernels, foreign material, and 

other defects from edible kernels. 

Product sent by a handler to an off-site 

cleaning facility is considered a 

temporary transfer, with ownership 

maintained by the handler, and 

accountability required for all product 

fractions and handler obligations 

pursuant to § 981.42. 

* * * * * 

(2) On-site versus off-site treatment. 

Handlers shall subject almonds to a 

treatment process or processes prior to 

shipment either at their handling 

facility (on-site) or a custom processor 

(defined as a Board-approved off-site 

treatment facility located within the 

production area subject to the 

provisions of paragraph (b)(4)(v) of this 

section). Transportation of almonds by a 

handler to a custom processor shall not 

be deemed a shipment. A handler with 

an on-site treatment process or 

processes may use such facility to act as 

a custom processor for other handlers. 

(3) * * * 

(i) Validation means that the 

treatment technology and equipment 

have been demonstrated to achieve in 

total a minimum 4-log reduction of 

Salmonella bacteria in almonds. 


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Validation data prepared by a Boardapproved process authority must be 

submitted to the Board, and accepted by 

the TERP, for each piece of equipment 

used to treat almonds prior to its use 

under the program. 

* * * * * 

(v) The TERP, in coordination with 

the Board, may revoke any approval for 

cause. The Board shall notify the 

process authority in writing of the 

reasons for revoking the approval. 

Should the process authority disagree 

with the decision, they may appeal the 

decision in writing to the Board, and 

ultimately to USDA. A process authority 

whose approval has been revoked must 

submit a new application to the TERP 

and await approval. 

(4) * * * 

(i) By May 31, each handler shall 

submit to the Board a Handler 

Treatment Plan (Treatment Plan) for the 

upcoming crop year. A Treatment Plan 

shall describe how a handler plans to 

treat his or her almonds and must 

address specific parameters as outlined 

by the Board for the handler to ship 

almonds. Such plan shall be reviewed 

by the Board, in conjunction with the 

inspection agency, to ensure it is 

complete and can be verified, and be 

approved by the Board. Almonds sent 

by a handler for treatment at a custom 

processing facility affiliated with 

another handler shall be subject to the 

approved Treatment Plan utilized at that 

facility. Handlers shall follow their own 

approved Treatment Plans for almonds 

sent to custom processors that are not 

affiliated with another handler. 

* * * * * 

(v) Custom processors shall provide 

access to the inspection agency and 

Board staff for verification of treatment 

and review of treatment records. Custom 

processors shall utilize technologies that 

have been determined to achieve, in 

total, a minimum 4-log reduction of 

Salmonella bacteria in almonds, 

pursuant to a letter of determination 

issued by FDA or accepted by the TERP. 

Custom processors must submit a 

Custom Processor Application, ABC 

Form 55, to the Board annually by July 

31. A custom processor who submits a 

timely application, and utilizes a 

treatment process or processes that has 

been validated by a Board-approved 

process authority and approved by the 

Board in conjunction with the TERP, 

shall be approved by the Board for 

handler use. The Board may revoke any 

such approval for cause. The Board 

shall notify the custom processor of the 

reasons for revoking the approval. 

Should the custom processor disagree 

with the Board’s decision, it may appeal 

the decision in writing to USDA. 

Handlers may treat their almonds only 

at custom processor treatment facilities 

that have been approved by the Board. 

* * * * * 

(6) * * * 

(i) Handlers may ship untreated 

almonds for further processing directly 

to manufacturers located within the 

U.S., Canada, or Mexico. This program 

shall be termed the Direct Verifiable 

(DV) program. Handlers may only ship 

untreated almonds to manufacturers 

who have submitted ABC Form No. 52, 

‘‘Application for Direct Verifiable (DV) 

Program for Further Processing of 

Untreated Almonds,’’ and have been 

approved by the Board. Such almonds 

must be shipped directly to approved 

manufacturing locations, as specified on 

Form No. 52. Such manufacturers (DV 

Users) must submit an initial Form No. 

52 to the Board for review and approval 

in conjunction with the TERP. Should 

the applicant disagree with the Board’s 

decision concerning approval, it may 

appeal the decision in writing to the 

Board, and ultimately to USDA. For 

subsequent crop years, approved DV 

Users with no changes to their initial 

application must send the Board a letter, 

signed and dated, indicating that there 

are no changes to the application the 

Board has on file. Approved DV Users 

desiring to make changes to their 

approved application must resubmit 

Form No. 52 to the Board for approval. 

The TERP, in coordination with the 

Board, may revoke any approval for 

cause. The Board shall notify the DV 

User in writing of the reasons for 

revoking the approval. Should the DV 

User disagree with the decision, it may 

appeal the decision in writing to the 

Board, and ultimately to USDA. A DV 

User whose approval has been revoked 

must submit a new application to the 

Board and await approval. The Board 

shall issue a DV User code to an 

approved DV User. Handlers must 

reference such code in all 

documentation accompanying the lot 

and identify each container of such 

almonds with the term ‘‘unpasteurized.’’ 

Such lettering shall be on one outside 

principal display panel, at least 1⁄2 inch 

in height, clear and legible. If a third 

party is involved in the transaction, the 

handler must provide sufficient 

documentation to the Board to track the 

shipment from the handler’s facility to 

the approved DV User. While a third 

party may be involved in such 

transactions, shipments to a third party 

and then to a manufacturing location are 

not permitted under the DV program. 

Approved DV Users shall: 

(A) Subject such almonds to a 

treatment process or processes using 

technologies that achieve in total a 

minimum 4-log reduction of Salmonella 

bacteria as determined by the FDA or 

established by a process authority 

accepted by the TERP, in accordance 

with and subject to the provisions and 

procedures of paragraph (b)(3) of this 

section. Establish means that the 

treatment process and protocol have 

been evaluated to ensure the 

technology’s ability to deliver a lethal 

treatment for Salmonella bacteria in 

almonds to achieve a minimum 4-log 

reduction; 

* * * * * 

(C) Have their treatment technology 

and equipment validated by a Board 

approved process authority and 

accepted by the TERP. Documentation 

must be provided with their DV 

application to verify that their treatment 

technology and equipment have been 

validated by a Board-approved process 

authority. Such documentation shall be 

sufficient to demonstrate that the 

treatment processes and equipment 

achieve a 4-log reduction in Salmonella 

bacteria. Treatment technology and 

equipment that have been modified to a 

point where operating parameters such 

as time, temperature, or volume change, 

shall be revalidated; 

(D) Have their technology and 

procedures verified by a Boardapproved DV auditor to ensure they are 

being applied appropriately. A DV 

auditor may not be an employee of the 

manufacturer that they are auditing. A 

DV auditor may not be the same 

individual who conducted the process 

validation accepted by the TERP for the 

equipment being audited. DV auditors 

must submit a report to the Board after 

conducting each audit. DV auditors 

must submit an initial application to the 

Board on ABC Form No. 53, 

‘‘Application for Direct Verifiable (DV) 

Program Auditors,’’ and be approved by 

the Board in coordination with the 

TERP. Should the applicant disagree 

with the decision concerning approval, 

they may appeal the decision in writing 

to the Board, and ultimately to USDA. 

For subsequent crop years, approved DV 

auditors with no changes to their initial 

application must send the Board a letter, 

signed and dated, indicating that there 

are no changes to the application the 

Board has on file. Approved DV 

auditors whose status has changed must 

submit a new application. The Board, in 

coordination with the TERP, may revoke 

any approval for cause. The Board shall 

notify the DV auditor in writing of the 

reasons for revoking the approval. 

Should the DV auditor disagree with the 


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Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Rules and Regulations 67627 

decision to revoke, it may appeal the 

decision in writing to the Board, and 

ultimately to USDA. A DV auditor 

whose approval has been revoked must 

submit a new application to the Board 

and await approval; 

* * * * * 

■ 3. Revise § 981.450 to read as follows: 

§ 981.450 Exempt dispositions. 

As provided in § 981.50, any handler 

disposing of almonds for crushing into 

oil, or for animal feed, may have the 

kernel weight of these almonds 

excluded from their program 

obligations, so long as: 

(a) The handler qualifies as, or 

delivers such almonds to, a Boardapproved accepted user; 

(b) Each delivery is made directly to 

the accepted user by June 30 of each 

crop year; and 

(c) Each delivery is certified to the 

Board by the handler on ABC Form 8. 

§§ 981.466 and 981.467 [Stayed] 

■ 4. Sections 981.466 and 981.467 are 

stayed indefinitely. 

■ 5. Revise § 981.481 to read as follows: 

§ 981.481 Interest and late payment 

charges. 

(a) Pursuant to § 981.81(e), the Board 

shall impose an interest charge on any 

handler whose assessment payment has 

not been received in the Board’s office 

within 30 days of the invoice date 

shown on the handler’s statement, 

unless an envelope containing the 

payment has been legibly postmarked 

by the U.S. Postal Service or some other 

verifiable delivery tracking system as 

having been remitted within 30 days of 

the invoice date. The interest charge 

shall be a rate of one and a half percent 

per month and shall be applied to the 

unpaid assessment balance for the 

number of days all or any part of the 

unpaid balance is delinquent beyond 

the 30-day payment period. 

(b) In addition to the interest charge 

specified in paragraph (a) of this 

section, the Board shall impose a late 

payment charge on any handler whose 

payment has not been received in the 

Board’s office within 60 days of the 

invoice date, unless an envelope 

containing the payment has been legibly 

postmarked by the U.S. Postal Service or 

some other verifiable delivery tracking 

system as having been remitted within 

60 days of the invoice date. The late 

payment charge shall be 10 percent of 

the unpaid balance. 

Erin Morris, 

Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2023–21702 Filed 9–29–23; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2023–1220; Project 

Identifier MCAI–2023–00478–T; Amendment 

39–22553; AD 2023–19–03] 

RIN 2120–AA64 

Airworthiness Directives; Airbus SAS 

Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: The FAA is adopting a new 

airworthiness directive (AD) for all 

Airbus SAS Model A330–200 series 

airplanes; Model A330–200 Freighter 

series airplanes; Model A330–300 series 

airplanes; Model A330–800 series 

airplanes; Model A330–900 series 

airplanes; Model A340–200 series 

airplanes; and Model A340–300 series 

airplanes. This AD was prompted by a 

report of cracks found in the fuel control 

unit housing assembly of a Honeywell 

GTCP331–350 auxiliary power unit 

(APU), which caused fuel leakage in the 

APU compartment. This AD requires 

replacing any affected APU fuel control 

unit or affected APU, as specified in a 

European Union Aviation Safety Agency 

(EASA) AD, which is incorporated by 

reference. This AD also prohibits the 

installation of affected parts under 

certain conditions. The FAA is issuing 

this AD to address the unsafe condition 

on these products. 

DATES: This AD is effective November 6, 

2023. 

The Director of the Federal Register 

approved the incorporation by reference 

of certain publications listed in this AD 

as of November 6, 2023. 

ADDRESSES: 

AD Docket: You may examine the AD 

docket at regulations.gov under Docket 

No. FAA–2023–1220; or in person at 

Docket Operations between 9 a.m. and 

5 p.m., Monday through Friday, except 

Federal holidays. The AD docket 

contains this final rule, the mandatory 

continuing airworthiness information 

(MCAI), any comments received, and 

other information. The address for 

Docket Operations is U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue SE, 

Washington, DC 20590. 

Material Incorporated by Reference: 

• For EASA material incorporated by 

reference in this AD, contact EASA, 

Konrad-Adenauer-Ufer 3, 50668 

Cologne, Germany; telephone +49 221 

8999 000; email ADs@easa.europa.eu; 

website easa.europa.eu. You may find 

this material on the EASA website at 

ad.easa.europa.eu. 

• For Honeywell International Inc. 

service information incorporated by 

reference in this AD, contact Honeywell 

International, Inc., 111 South 34th 

Street, Phoenix, AZ 85034; phone: (800) 

601–3099; fax: (602) 365–5577; website: 

myaerospace.honeywell.com/wps/ 

portal. 

• You may view this material at the 

FAA, Airworthiness Products Section, 

Operational Safety Branch, 2200 South 

216th St., Des Moines, WA. For 

information on the availability of this 

material at the FAA, call 206–231–3195. 

It is also available in the AD docket at 

regulations.gov under Docket No. FAA– 

2023–1220. 

FOR FURTHER INFORMATION CONTACT: 

Timothy Dowling, Aviation Safety 

Engineer, FAA, 1600 Stewart Avenue, 

Suite 410, Westbury, NY 11590; 

telephone 206–231–3667; email 

Timothy.P.Dowling@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

The FAA issued a notice of proposed 

rulemaking (NPRM) to amend 14 CFR 

part 39 by adding an AD that would 

apply to all Model A330–200 series 

airplanes; Model A330–200 Freighter 

series airplanes; Model A330–300 series 

airplanes; Model A330–800 series 

airplanes; Model A330–900 series 

airplanes; Model A340–200 series 

airplanes; and Model A340–300 series 

airplanes. The NPRM published in the 

Federal Register on June 27, 2023 (88 

FR 41516). The NPRM was prompted by 

AD 2023–0057, dated March 16, 2023, 

issued by EASA, which is the Technical 

Agent for the Member States of the 

European Union (EASA AD 2023–0057) 

(also referred to as the MCAI). The 

MCAI states cracks were found in the 

fuel control unit housing assembly of a 

Honeywell GTCP331–350 APU, which 

caused fuel leakage in the APU 

compartment. This condition, if not 

addressed, could lead to an 

uncommanded in-flight shutdown of the 

APU, or a fire in the APU compartment, 

possibly resulting in damage to the 

airplane. 


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