Federal Register / Vol. 62, No. 157 / Thursday, August 14, 1997 / Rules and Regulations 43461

of 2 cents is 1 cent more than the rate

currently in effect. The primary reason

for the increase for the upcoming crop

year is the inclusion of funding for a

generic paid advertising program.

The Board recommended that the

major expenditures for the 1997–98 crop

year should include $4,084,000 for

information and research programs,

$3,408,000 for paid generic advertising,

$881,534 for salaries, $794,043 for

international programs, $568,679 for

production research, $95,400 for crop

estimates, and $90,000 for travel.

Alternative rates of assessment were

considered during the budgeting

process. Keeping the assessment rate at

1 cent was considered but not

recommended because it would not

generate the income necessary to

administer the program. In order to fund

the programs recommended by the

Board for the 1997–98 season, it was

determined that the assessment rate

recommended by the Board, when

applied to the preliminary crop

estimate, would be necessary to generate

sufficient revenue. Costs of various

programs, desired and overall spending

levels, and desired levels of monetary

reserve were considered during the

budgeting process.

Handlers’ receipts of assessable

almonds for the year were originally

estimated at 681,600,000 pounds which

would provide $10,224,000 in

assessment income. The crop estimate

was subsequently reduced to

652,800,000 pounds which if realized,

would provide assessment revenue of

$9,792,000. However, in either scenario,

income derived from handler

assessments, along with interest income,

Market Access Program reimbursement,

research conference revenue,

miscellaneous income, and funds

derived from the Board’s authorized

reserve will be adequate to cover

budgeted expenses. Funds in the reserve

will be kept within the maximum

permitted by the order.

A review of historical information and

preliminary information pertaining to

the upcoming crop year indicates that

the grower price for the 1997–98 season

could range between $1.00 and $1.50

per pound of almonds. Therefore, the

estimated assessment revenue for the

1997–98 crop year as a percentage of

total grower revenue could range

between 1 and 1.5 percent.

While this rule will impose some

additional costs on handlers, the costs

would be minimal and in the form of

uniform assessments on all handlers.

Some of the additional costs may be

passed on to producers.

However, these costs will be offset by

the benefits derived by the operation of

the marketing order. In addition, the

Board’s meeting was widely publicized

throughout the California almond

industry and all interested persons were

invited to attend the meeting and

participate in Board deliberations on all

issues. Like all Board meetings, the May

9, 1997, meeting was a public meeting

and all entities, both large and small,

were able to express views on this issue.

Finally, interested persons are invited to

submit information on the regulatory

and informational impacts of this action

on small businesses.

This final rule will not impose any

additional reporting or recordkeeping

requirements on either small or large

California almond handlers. As with all

Federal marketing order programs,

reports and forms are periodically

reviewed to reduce information

requirements and duplication by

industry and public sector agencies.

The Department has not identified

any relevant Federal rules that

duplicate, overlap, or conflict with this

rule.

A proposed rule concerning this

action was issued by the Department on

July 3, 1997, and published in the

Federal Register on July 7, 1997 (62 FR

36233). Copies of the proposed rule

were also mailed or sent via facsimile to

all almond handlers. Finally, the

proposal was made available through

the Internet by the Office of the Federal

Register.

A 15-day comment period was

provided to allow interested persons to

respond to the proposal. Fifteen days

was deemed appropriate because: (1)

The Board needs to have sufficient

funds to pay its expenses which are

incurred on a continuous basis; (2) the

1997–98 crop year began on August 1,

1997, and the marketing order requires

that the rate of assessment for the crop

year apply to all assessable California

almonds handled during the crop year;

and (3) handlers are aware of this action

which was unanimously recommended

by the Board at a public meeting and is

similar to other budget actions issued in

past years. No comments to the

proposed rule were received.

After consideration of all relevant

material presented, including the

information and recommendation

submitted by the Board and other

available information, it is hereby found

that this rule, as hereinafter set forth,

will tend to effectuate the declared

policy of the Act.

It is further found that good cause

exists for not postponing the effective

date of this rule until 30 days after

publication in the Federal Register (5

U.S.C. 553) because handlers are already

receiving 1997–98 crop almonds from

growers, the crop year began August 1,

and the assessment rate applies to all

almonds received during the 1997–98

and subsequent seasons. Further,

handlers are aware of this rule, which

was recommended at a public meeting.

Also, A 15-day comment period was

provided for in the proposed rule, and

no comments were received.

List of Subjects in 7 CFR Part 981

Almonds, Marketing agreements,

Nuts, Reporting and recordkeeping

requirements.

For the reasons set forth in the

preamble, 7 CFR part 981 is amended as

follows:

PART 981—ALMONDS GROWN IN

CALIFORNIA

1. The authority citation for 7 CFR

part 981 continues to read as follows:

Authority: 7 U.S.C. 601–674.

§ 981.343 [Amended]

2. Section 981.343 is amended by

removing ‘‘July 1, 1996,’’ and adding in

its place ‘‘August 1, 1997,’’, by removing

‘‘$0.01 cent’’ and adding in its place ‘‘2

cents,’’ and by adding as the last

sentence ‘‘Of the 2 cent assessment rate,

1 cent per assessable pound is available

for handler credit-back.’’

Dated: August 8, 1997.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 97–21525 Filed 8–13–97; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 985

[Docket No. FV97–985–1 FR]

Marketing Order Regulating the

Handling of Spearmint Oil Produced in

the Far West; Revision of

Administrative Rules and Regulations

Governing Issuance of Additional

Allotment Base to New and Existing

Producers

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: This final rule reduces the

number of regions established for

issuing additional allotment bases to

new producers from four to three,

revises the procedure used for issuing

additional allotment bases when no

requests are received from a region for

a class of spearmint oil, and eliminates

obsolete language pertaining to the
43462 Federal Register / Vol. 62, No. 157 / Thursday, August 14, 1997 / Rules and Regulations

issuance of additional allotment bases to

existing producers during the 1992–93

and 1993–94 marketing years. The

Spearmint Oil Administrative

Committee (Committee), the agency

responsible for local administration of

the marketing order for spearmint oil

produced in the Far West,

recommended this rule to ensure that a

maximum number of new producers

receive additional allotment base each

year at a level determined by the

Committee to be a minimum economic

enterprise.

EFFECTIVE DATE: This final rule becomes

effective August 15, 1997.

FOR FURTHER INFORMATION CONTACT:

Robert J. Curry or Gary D. Olson,

Northwest Marketing Field Office,

Marketing Order Administration

Branch, Fruit and Vegetable Division,

AMS, USDA, 1220 SW Third Avenue,

room 369, Portland, Oregon 97204;

telephone: (503) 326–2043; Fax: (503)

326–7440; or Anne M. Dec, Marketing

Order Administration Branch, Fruit and

Vegetable Division, AMS, USDA, room

2525–S, South Building, P.O. Box

96456, Washington, D.C. 20090–6456;

telephone: (202) 720–2491; Fax: (202)

720–5698. Small businesses may request

information on compliance with this

regulation by contacting: Jay Guerber,

Marketing Order Administration

Branch, Fruit and Vegetable Division,

AMS, USDA, P.O. Box 96456, room

2523–S, Washington, D.C. 20090-6456;

telephone: (202) 720–2491; Fax: (202)

720–5698.

SUPPLEMENTARY INFORMATION: This final

rule is issued under Marketing Order

No. 985 (7 CFR Part 985), as amended,

regulating the handling of spearmint oil

produced in the Far West (Washington,

Idaho, Oregon, and designated parts of

Nevada and Utah), hereinafter referred

to as the ‘‘order’’. This order is effective

under the Agricultural Marketing

Agreement Act of 1937, as amended (7

U.S.C. 601–674), hereinafter referred to

as the ‘‘Act.’’

The Department of Agriculture

(Department) is issuing this rule in

conformance with Executive Order

12866.

This rule has been reviewed under

Executive Order 12988, Civil Justice

Reform. This rule is not intended to

have retroactive effect. This rule will

not preempt any State or local laws,

regulations, or policies, unless they

present an irreconcilable conflict with

this rule.

The Act provides that administrative

proceedings must be exhausted before

parties may file suit in court. Under

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

handler subject to an order may file

with the Secretary a petition stating that

the order, any provision of the order, or

any obligation imposed in connection

with the order is not in accordance with

law and request a modification of the

order or to be exempted therefrom. A

handler is afforded the opportunity for

a hearing on the petition. After the

hearing the Secretary would rule on the

petition. The Act provides that the

district court of the United States in any

district in which the handler is an

inhabitant, or has his or her principal

place of business, has jurisdiction to

review the Secretary’s ruling on the

petition, provided an action is filed not

later than 20 days after date of the entry

of the ruling.

The spearmint oil order is a volume

control program that authorizes the

regulation of spearmint oil produced in

the Far West through annual allotment

percentages and salable quantities for

Class 1 (Scotch) and Class 3 (Native)

spearmint oils. The salable quantity

limits the quantity of each class of

spearmint oil that may be marketed

from each season’s crop. Each producer

is allotted a share of the salable quantity

by applying the allotment percentage to

that producer’s allotment base for the

applicable class of spearmint oil.

Handlers may not purchase spearmint

oil in excess of a producer’s annual

allotment, or from producers who have

not been issued an allotment base under

the order.

Section 985.53(d)(3) of the order

provides for rules to be established by

the Committee, with the approval of the

Secretary, for distribution of additional

allotment bases. Pursuant to the

authority in that section, the Committee

unanimously recommended revising

section 985.153 of the order’s rules and

regulations at its meeting on March 18,

1997. Section 985.153 provides

regulations for the issuance of

additional allotment bases to new and

existing producers. This final rule

modifies portions of section 985.153 to

reflect current conditions within the Far

West spearmint oil industry relative to

the annual issuance of additional

allotment bases to both new and

existing producers. This rule reduces

the number of regions established for

issuing additional allotment bases to

new producers from four to three,

revises the procedure used for issuing

additional allotment bases when no

requests are received from a region for

a class of spearmint oil, and eliminates

obsolete language pertaining to the

issuance of additional allotment bases to

existing producers during the 1992–93

and 1993–94 marketing years.

Section 985.53(d)(1) provides that,

beginning with the 1982–83 marketing

year, the Committee annually makes

additional allotment bases available in

an amount not greater than 1 percent of

the total allotment base for each class of

spearmint oil. The order specifies that,

each year, 50 percent of the additional

allotment bases be made available for

new producers and 50 percent be made

available for existing producers. A new

producer is any person who has never

been issued allotment base for a class of

oil, and an existing producer is any

person who has been issued allotment

base for a class of oil. Provision is made

in the order for new producers to apply

to the Committee for the additional

allotment base, which in turn is issued

to applicants in each oil class by lottery.

The additional allotment bases being

made available to existing producers are

distributed equally among all existing

producers who apply.

The order was amended on June 26,

1996 (61 FR 32924), by redefining the

production area to exclude those

portions of the area with no historic

record of commercial production of

spearmint oil. The amendment thus

removed the regulated portions of

California and Montana, leaving the

defined production area to mean the

States of Washington, Oregon, and

Idaho, and portions of the States of

Nevada and Utah.

Based on the order prior to the

amendment, section 985.153(c)

established the regions for issuing

additional allotment base as follows:

(A) Region 1—Those portions of

Montana and Utah included in the

production area.

(B) Region 2—The State of Oregon

and those portions of Nevada and

California included in the production

area.

(C) Region 3—The State of Idaho.

(D) Region 4—The State of

Washington.

During past additional allotment base

lotteries, the name of one new producer

per class of oil in each of the above four

regions was drawn by Committee staff.

The lottery usually resulted in four new

Scotch spearmint oil producers

receiving approximately 2,300 pounds

of allotment base each, and four new

Native spearmint oil producers

receiving approximately 2,500 pounds

of allotment base each.

This rule replaces the above four

regions with the following three regions:

(A) Region 1—The State of Oregon

and those portions of Utah and Nevada

included in the production area.

(B) Region 2—The State of Idaho.

(C) Region 3—The State of

Washington.

The Committee made this

recommendation primarily because of
Federal Register / Vol. 62, No. 157 / Thursday, August 14, 1997 / Rules and Regulations 43463

the removal of Montana and California

from the production area, as well as its

analysis of statistics relating to current

spearmint oil production and the

number of requests received each year

for additional allotment base from the

various states included in the

production area. For example,

Committee records show that the

average number of applications by state

for additional allotment base from 1986

to 1996 for Class 1 and Class 3

spearmint oil, respectively, is 63.2 and

73.2 percent for Washington, 26.7 and

21.5 percent for Idaho, 9.6 and 11.2

percent for Oregon, 1.4 and 2.6 percent

for Utah, and 0.2 and 0.2 percent for

Nevada. Records also show that the

number of producers, as well as the

allotment bases held by those

producers, is greatest in Washington

followed in decreasing order by Idaho,

Oregon, Utah, and Nevada. This rule

increases the potential of having a

significant number of applicants from

each region each year, thus bringing

about equity in issuing the additional

allotment base. It also increases the

amount of allotment base that is issued

to each new producer.

In reaching its recommendation to

establish three regions the Committee

also considered the importance of

issuing as many blocks of additional

allotment base as are possible at a level

considered economically viable to each

recipient. The Committee also resolved

that each region should receive an equal

number of these blocks. To establish a

reasonable minimum economic

enterprise required to produce each

class of spearmint oil, the Committee

relied on available statistical

information and on the spearmint oil

production experience of each member.

Using this information and experience,

the Committee concluded that

producers require approximately 14

acres for Scotch spearmint oil

production and approximately 13 acres

for Native spearmint oil production to

be economically viable. Using a 5-year

average yield and a nominal allotment

percentage of 55 as a basis, the

Committee calculated that each new

block of additional allotment base

should be approximately 3,000 pounds

for Scotch spearmint oil, and

approximately 3,400 pounds for Native

spearmint oil.

The Committee used the following

formula to establish a range of possible

allotments for additional base: (Number

of Acres x Average Yield per Acre =

Production) ÷ Allotment Percentage =

Allotment Base Required for Viability.

For example, applying this formula to a

theoretical 14-acre Scotch spearmint oil

operation with a 5-year average yield of

126 pounds per acre and a nominal 55

percent allotment, each new producer

would receive an allotment base of

3,207 pounds. To obtain the total

additional allotment base available for

new Scotch spearmint oil producers

during the 1997–98 marketing year, the

total allotment base of 1,811,556 was

multiplied by 0.5 percent (50 percent of

the additional allotment base). The

result, 9,058 pounds, when divided

equally among the three new regions,

would provide three new Class 1

producers with 3,019 pounds of

allotment base each.

Similarly, an example with a

theoretical 13-acre Native spearmint oil

operation, using a 5-year average yield

of 151 pounds per acre and a nominal

allotment percentage of 55, results in an

allotment base of 3,569 pounds for each

new producer. The total additional

allotment base available for new Native

spearmint oil producers during the

1997–98 marketing year, 10,048 pounds,

was obtained by multiplying the total

allotment base of 2,009,556 pounds by

0.5 percent. Thus, equal distribution

among the three new regions would

result in three new Class 3 producers

each receiving 3,349 pounds of

allotment base.

From such calculations the

Committee determined that there should

be three regions, that a reasonable

minimum economic unit would

currently be approximately 3,000

pounds for Scotch spearmint oil and

approximately 3,400 pounds for Native

spearmint oil, and that currently there

should be one new producer per class

per region drawn during the annual

allotment base lottery. Based on the

current total industry allotment bases,

the Committee concluded that any more

than one recipient per class of oil in a

region would result in an inadequate

level of allotment base being issued to

each new producer.

The amount of allotment base to be

issued to new Scotch spearmint oil

producers is slightly higher than the

approximate amount the Committee

believes necessary for an economically

viable production unit. The amount to

be issued to new Native spearmint oil

producers is only slightly lower than the

Committee’s guideline of 3,400 pounds.

In both cases, the amount to be allocated

to new producers is higher than under

the previous four district system.

The Committee also recommended

changing the procedure used to

distribute unused additional allotment

base for each class of oil in the event

requests for such are not received from

eligible new producers in one or more

of the three proposed regions.

Previously, if the Committee did not

receive requests for additional allotment

base for a class of oil from one or more

regions, the unused allotment base was

divided equally among the eligible new

producers within the other regions

receiving allotment base for that class of

oil. That procedure occasionally

resulted in a reduction in the number of

additional allotment base recipients. To

insure that a maximum number of new

producers receive allotment base for

each class of oil each year, the

Committee recommended that, in the

event no requests for additional

allotment base for a class of oil are

received from a region, the unused

allotment base be issued to an eligible

new producer whose name is drawn by

lot from all remaining eligible new

producers from all regions for that class

of oil.

Finally, the Committee recommended

that obsolete language in section

985.153(c)(2) pertaining to existing

producers, but specific to the 1992–93

and 1993–94 marketing years, be

removed. This language is specific to

action taken on June 26, 1992 (57 FR

28569), to issue additional allotment

base to existing producers with less than

3,000 pounds of allotment base to bring

them up to a level not to exceed 3,000

pounds.

Pursuant to requirements set forth in

the Regulatory Flexibility Act (RFA), the

Agricultural Marketing Service (AMS)

has considered the economic impact of

this action on small entities.

Accordingly, the AMS has prepared this

final regulatory flexibility analysis.

The purpose of the RFA is to fit

regulatory actions to the scale of

business subject to such actions in order

that small businesses will not be unduly

or disproportionately burdened.

Marketing orders issued pursuant to the

Act, and rules issued thereunder, are

unique in that they are brought about

through group action of essentially

small entities acting on their own

behalf. Thus, both statutes have small

entity orientation and compatibility.

There are 8 spearmint oil handlers

subject to regulation under the order

and approximately 250 producers of

spearmint oil in the regulated

production area. Of the 250 producers,

approximately 135 producers hold Class

1 spearmint oil allotment base, and

approximately 115 producers hold Class

3 spearmint oil allotment base. Small

agricultural service firms are defined by

the Small Business Administration (13

CFR 121.601) as those having annual

receipts of less than $5,000,000, and

small agricultural producers have been

defined as those whose annual receipts

are less than $500,000.
43464 Federal Register / Vol. 62, No. 157 / Thursday, August 14, 1997 / Rules and Regulations

The Far West spearmint oil industry

is characterized by producers whose

farming operations generally involve

more than one commodity, and whose

incomes from farming operations are not

exclusively dependent on the

production of spearmint oil. In the

production of the spearmint plant, crop

rotation is an essential cultural practice

for weed, insect, and disease control. An

average spearmint oil producing

operation has acreage sufficient enough

to ensure that the total acreage available

for the production of the crop is

approximately one-third spearmint and

two-thirds rotational crops.

Consequently, most spearmint oil

producers have considerably more

acreage available than is planted to

spearmint during any given season. To

remain economically viable with the

added costs associated with spearmint

oil production, most such farms would

fall into the category of large businesses.

Small spearmint oil producers

generally are not extensively diversified

and as such are more at risk to market

fluctuations. Such small producers

generally need to market their entire

annual crop and do not have the luxury

of having other crops to cushion seasons

with poor spearmint oil returns.

Conversely, large diversified producers

have the potential to endure one or

more seasons of poor spearmint oil

markets because incomes from alternate

crops could support the operation for a

period of time. Being reasonably assured

of a stable price and market provides

small producing entities with the ability

to maintain proper cash flow and to

meet annual expenses. Thus, the market

and price stability provided by the order

potentially benefit the small producer

more than such provisions benefit large

producers. Even though a majority of

handlers and producers of spearmint oil

may not be classified as small entities,

the volume control feature of this order

has small entity orientation. Records

show that the order has contributed

extensively to the stabilization of

producer prices.

Based on the Small Business

Administration’s definition of small

entities, the Committee estimates that

none of the eight handlers regulated by

the order would be considered small

entities. All are large corporations

involved in the international trading of

essential oils and the products of

essential oils. Further, the Committee

estimates that 17 of the 135 Scotch

spearmint oil producers and 10 of the

115 Native spearmint oil producers

would be classified as small entities.

Thus, a majority of handlers and

producers of Far West spearmint oil

may not be classified as small entities.

Section 985.53 of the order provides

that each year the Committee make

available additional allotment bases for

each class of oil in the amount of no

more than 1 percent of the total

allotment base for that class of oil. This

affords an orderly method for new

spearmint oil producers to enter into

business and existing producers the

ability to expand their operations as the

spearmint oil market and individual

conditions warrant. One-half of the 1

percent increase is issued annually by

lot to eligible new producers for each

class of oil. To be eligible, a producer

must never have been issued allotment

base for the class of spearmint oil such

producer is making application for, and

have the ability to produce such

spearmint oil. The ability to produce

spearmint oil is generally demonstrated

when a producer has experience at

farming, and owns or rents the

equipment and land necessary to

successfully produce spearmint oil.

This final rule reduces the number of

regions established for the purpose of

issuing annual additional allotment

bases to new producers from four to

three. It also changes the procedure

used to issue additional allotment bases

should no requests be received from

eligible new producers in one or more

of these three regions. This final rule

also deletes obsolete provisions in

section 985.153(c)(2) that pertain to the

issuance of additional allotment base to

existing producers during the 1992–93

and 1993–94 marketing years. The

Committee recommended this rule for

the purpose of ensuring equity in the

distribution of additional allotment base

following the order amendment that

removed the regulated portions of

California and Montana from the

production area. Further, this rule will

help to ensure that a maximum number

of eligible new producers receive

additional allotment base each year at a

level determined by the Committee to be

the minimum economic enterprise

needed to produce each class of

spearmint oil.

To establish a reasonable minimum

economic enterprise required for the

production of each class of spearmint

oil, the Committee relied on available

statistical information and on the

spearmint oil production experience of

each member. Using this information

and experience, the Committee

concluded that producers require

approximately 14 acres for Scotch

spearmint oil production and

approximately 13 acres for Native

spearmint oil production to be

economically viable. Using a 5-year

average yield and a nominal allotment

percentage of 55 as a basis, the

Committee calculated that each new

block of additional allotment base

should be approximately 3,000 pounds

for Scotch spearmint oil, and

approximately 3,400 pounds for Native

spearmint oil.

The Committee used the following

formula to establish a range of possible

allotments for additional base: (Number

of Acres × Average Yield per

Acre=Production) ÷ Allotment

Percentage = Allotment Base Required

for Viability. For example, applying this

formula to a theoretical 14-acre Scotch

spearmint oil operation with a 5-year

average yield of 126 pounds per acre

and a nominal allotment percentage of

55, each new producer would receive an

allotment base of 3,207 pounds. To

obtain the total additional allotment

base available for new Scotch spearmint

oil producers during the 1997–98

marketing year, the Committee

multiplied the total industry allotment

base of 1,811,556 by 0.5 percent (50

percent of the additional allotment

base). The result, 9,058 pounds, when

divided equally among the three new

regions, allots 3,019 pounds each for

three new Class 1 producers.

Similarly, an example with a

theoretical 13-acre Native spearmint oil

operation, using a 5-year average yield

of 151 pounds per acre and a nominal

allotment of 55 percent, would result in

an allotment base of 3,569 pounds for

each new producer. To determine the

actual total additional allotment base

available for new Native spearmint oil

producers during the 1997–98

marketing year, the Committee

multiplied the total industry allotment

base of 2,009,556 pounds by 0.5 percent.

The result, 10,048 pounds, when

equally distributed among the three new

regions, ensures that three new Class 3

producers would receive 3,349 pounds

of allotment base each.

From such calculations the

Committee determined that there should

be three regions, that a reasonable

minimum economic unit would

currently be approximately 3,000

pounds for Scotch spearmint oil and

approximately 3,400 pounds for Native

spearmint oil, and that currently there

should be one new producer per class

per region drawn during the annual

allotment base lottery. Based on the

current total industry allotment bases,

the Committee concluded that any more

than one recipient per class of oil in a

region would result in an inadequate

level of allotment base being issued to

each new producer.

The amount of allotment base to be

issued to new Scotch spearmint oil

producers is slightly higher than the

approximate amount the Committee
Federal Register / Vol. 62, No. 157 / Thursday, August 14, 1997 / Rules and Regulations 43465

believes necessary for an economically

viable production unit. The amount to

be issued to new Native spearmint oil

producers is only slightly lower than the

Committee’s guideline of 3,400 pounds.

In both cases, the amount to be allocated

to new producers will be higher than

under the previous four district system.

During its deliberations, the

Committee considered alternatives to

this proposal. The first option discussed

would have left section 985.153(c)

unchanged. This was rejected because of

the need to develop a more equitable

method of issuing additional base in

light of the order amendment that

removed California and Montana from

the production area. The Committee

also discussed the possibility of

eliminating the use of different regions

in its additional allotment base issuance

procedures. In such a scenario, available

additional allotment base would be

distributed equally to those new

producers drawing the allotment

regardless of their spearmint acreage

location. However, this option was also

rejected because the Committee

determined that such a procedure has

the statistical potential of adding more

new producers to those states with a

greater number of current producers

than to the states with few producers.

The Committee made its

recommendation after careful

consideration of available information,

including the aforementioned

alternative recommendations, the order

amendment that removed Montana and

California from the production area, the

minimum economic enterprise required

for spearmint oil production, historical

statistics relating to the locations of the

producers applying for the annual

additional allotment base, and other

factors such as number of producers by

state and the amount of allotment base

held by such producers. Based on its

review, the Committee believes that the

action recommended is the best option

available to ensure that the objectives

sought will be achieved.

The information collection

requirements contained in the section of

the order’s rules and regulations

amended by this rule have been

previously approved by the Office of

Management and Budget (OMB) under

the provisions of 44 U.S.C. chapter 35

and have been assigned OMB No. 0581–

0065. This action does not impose any

additional reporting or record keeping

requirements on either small or large

spearmint oil producers and handlers.

All reports and forms associated with

this program are reviewed periodically

in order to avoid unnecessary and

duplicative information collection by

industry and public sector agencies. The

Department has not identified any

relevant Federal rules that duplicate,

overlap, or conflict with this rule.

A proposed rule was published in the

Federal Register (62 FR 36236) on July

7, 1997. A 15-day comment period was

provided to allow interested persons the

opportunity to respond to the proposal,

including any regulatory and

informational impacts of this action on

small businesses. Copies of the rule

were faxed and mailed to the Committee

office, which in turn notified Committee

members and spearmint oil producers

and handlers of the proposed action. In

addition, the Committee’s meeting was

widely publicized throughout the

spearmint oil industry and all interested

persons were invited to attend and

participate in the discussion on these

issues. A copy of the proposal was also

made available on the Internet by the

U.S. Government Printing Office. No

comments were received.

Accordingly no changes are made to

the rule as proposed.

After consideration of all relevant

matter presented, including the

information and recommendation

submitted by the Committee and other

available information, it is hereby found

that this rule, as hereinafter set forth,

will tend to effectuate the declared

policy of the Act.

It is further found that good cause

exists for not postponing the effective

date of this rule until 30 days after

publication in the Federal Register (5

U.S.C. 553) because the Committee

plans an August 15, 1997, distribution

of additional allotment base to new and

existing producers for the marketing

year beginning on June 1, 1998. The

Committee devised the August

distribution date so that producers may

make cultural and marketing plans in

advance of the 1998–99 marketing year.

Furthermore, this rule was

recommended at a public meeting and

all affected parties are aware of it. Also,

a comment period of 15 days was

provided for in the proposed rule.

List of Subjects in 7 CFR Part 985

Marketing agreements, Oils and fats,

Reporting and recordkeeping

requirements, Spearmint oil.

For the reasons set forth in the

preamble, 7 CFR Part 985 is amended as

follows:

PART 985—MARKETING ORDER

REGULATING THE HANDLING OF

SPEARMINT OIL PRODUCED IN THE

FAR WEST

1. The authority citation for 7 CFR

part 985 continues to read as follows:

Authority: 7 U.S.C. 601–674.

2. In § 985.153, paragraph (c) is

revised to read as follows:

§ 985.153 Issuance of additional allotment

base to new and existing producers.

* * * * *

(c) Issuance—(1) New producers. (i)

Regions: For the purpose of issuing

additional allotment base to new

producers, the production area is

divided into the following regions:

(A) Region 1. The State of Oregon and

those portions of Utah and Nevada

included in the production area.

(B) Region 2. The State of Idaho.

(C) Region 3. The State of

Washington.

(ii) Each year, the Committee shall

determine the size of the minimum

economic enterprise required to

produce each class of oil. The

Committee shall thereafter calculate the

number of new producers who will

receive allotment base under this

section for each class of oil. An equal

number of grants of the additional

allotment base for each class of oil that

is available to new producers each

marketing year shall be issued to

producers within each region. The

Committee shall include that

information in its announcements to

new producers in each region informing

them when to submit requests for

allotment base. The Committee shall

determine whether the new producers

requesting additional base have ability

to produce spearmint oil. The names of

all eligible new producers in each

region shall be placed in a lot for

drawing. A separate drawing shall be

held for each region. If, in any

marketing year, there are no requests in

a class of oil from eligible new

producers in a region, such unused

allotment base shall be issued to an

eligible new producer whose name is

selected by drawing from a lot

containing the names of all remaining

eligible new producers from all regions

for that class of oil. The Committee shall

immediately notify each new producer

whose name was drawn and issue that

producer an allotment base in the

appropriate amount.

(2) Existing producers. (i) The

Committee shall review all requests

from existing producers for additional

allotment base.

(ii) Each existing producer of a class

of spearmint oil who requests additional

allotment base and who has the ability

to produce additional quantities of that

class of spearmint oil, shall be eligible

to receive a share of the additional

allotment base for that class of oil.

Additional allotment base to be issued

by the Committee for a class of oil shall

be distributed equally among the
43466 Federal Register / Vol. 62, No. 157 / Thursday, August 14, 1997 / Rules and Regulations

eligible producers for that class of oil.

The Committee shall immediately notify

each producer who is to receive

additional allotment base by issuing that

producer an allotment base in the

appropriate amount.

* * * * *

Dated: August 8, 1997.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 97–21524 Filed 8–13–97; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 212

[INS No. 1748–96; AG Order No. 2104–97]

RIN 1115–AE27

Executive Office for Immigration

Review; Periods of Lawful Temporary

Resident Status and Lawful Permanent

Resident Status to Establish Seven

Years of Lawful Domicile

AGENCY: Immigration and Naturalization

Service (INS), Executive Office for

Immigration Review (EOIR), Justice.

ACTION: Final rule.

SUMMARY: This rule adopts without

change an interim rule published in the

Federal Register by the Immigration and

Naturalization Service and the

Executive Office for Immigration

Review on November 25, 1996, which

amended Department of Justice

regulations that limit discretion to grant

an application for relief under section

212(c) of the Immigration and

Nationality Act (the Act) by expanding

the class of aliens eligible for section

212(c) relief. Although Congress

recently limited the availability of

section 212(c) relief, certain classes of

aliens remain eligible. This rule allows

a 212(c) eligible alien who has adjusted

to lawful permanent resident status,

pursuant to sections 245A or 210 of the

Act, to use the combined period of his

or her status as a lawful temporary

resident and lawful permanent resident

to establish seven (7) years of lawful

domicile in the United States for

purposes of eligibility for section 212(c)

relief. This rule will provide uniformity

between the regulation and case law.

DATES: This final rule is effective August

14, 1997.

FOR FURTHER INFORMATION CONTACT:

Margaret M. Philbin, General Counsel,

Executive Office for Immigration

Review, Suite 2400, 5107 Leesburg Pike,

Falls Church, Virginia 22041, telephone

(703) 305–0470; David M. Dixon, Chief

Appellate Counsel, Immigration and

Naturalization Service, Suite 309, 5113

Leesburg Pike, Falls Church, Virginia

22041, telephone (703) 756–6257.

SUPPLEMENTARY INFORMATION: Two

recent enactments affect the availability

of relief under section 212(c). The

Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA) restricts

the classes of alien criminals eligible for

section 212(c) relief. The Illegal

Immigration Reform and Immigrant

Responsibility Act of 1996 repeals and

replaces section 212(c), but only for

proceedings commenced on or after

April 1, 1997. This rule only affects the

cases not covered by these new

restrictions, i.e., those commenced

before April 1, 1997, and not barred by

AEDPA.

Under recent 212(c) case law, an alien

who has acquired lawful permanent

resident status under section 245A of

the Act may accrue the seven (7) years

of lawful domicile required for purposes

of section 212(c) relief from the date of

his or her application for temporary

resident status. See Robles v. INS, 58

F.3d 1355 (9th Cir. 1995); Avelar-Cruz v.

INS, 58 F.3d 338 (7th Cir. 1995);

Castellon-Contreras v. INS, 45 F.3d 149

(7th Cir. 1995). The current regulation

allows an alien to apply for section

212(c) relief only if he or she has

established at least seven consecutive

years of lawful permanent resident

status immediately prior to filing the

application. See 8 CFR 212.3(f)(2). The

Board of Immigration Appeals (BIA) has

determined that, in cases arising in the

Ninth Circuit, an alien may use the

period of temporary resident status to

establish the requisite seven years. See

In re Carlos Cazares-Alvarez, Interim

Decision 3262 (BIA 1996). However, in

cases arising in circuits without such a

temporary resident status rule, the BIA

has determined that the current

regulation requires seven years of lawful

permanent resident status. See In re

Hector Ponce de Leon-Ruiz, Interim

Decision 3261 (BIA 1996). The BIA has

referred these cases to the Attorney

General pursuant to 8 CFR 3.1(h)(1)(ii)

to resolve the issue. The issue raised in

White v. INS, 75 F.3d 213 (5th Cir. 1996)

(whether 8 CFR 212.3(f)(2) is consistent

with 8 U.S.C. 1182(c) and therefore is

entitled to deference), has been

addressed and rendered moot by section

304 of the Illegal Immigration Reform

and Immigrant Responsibility Act of

1996, Public Law 104–208, 110 Stat.

3009 (September 30, 1996) (repealing

section 212(c) and substituting other

relief), effective April 1, 1997, codified

at section 240A of the Immigration and

Nationality Act as amended. The White

court computed the years of lawful

unrelinquished domicile (including the

years of lawful temporary resident

status) rather than lawful permanent

residence in determining eligibility for

relief.

The Service published an interim rule

with request for comments in the

Federal Register on November 25, 1996,

at 61 FR 59824. The interim rule

permitted an alien to demonstrate

lawful domicile for section 212(c) relief

purposes by combining his or her status

as a lawful temporary resident and as a

lawful permanent resident under

sections 245A or 210 of the Act. Since

no comments were received, the Service

and EOIR are adopting the interim rule

as final without changes.

Effective Date

Since there are no changes between

the interim rule and this final rule, the

Service believes that ‘‘good cause’’

exists to implement this rule effective

upon date of publication in the Federal

Register.

Regulatory Flexibility Act

The Attorney General, in accordance

with 5 U.S.C. 605(b) has reviewed this

regulation and, by approving it, certifies

that this rule will not have a significant

adverse economic impact on a

substantial number of small entities.

The affected parties are individuals not

small entities, and the impact of the

regulation is not an economic one.

Unfunded Mandates Reform Act

This rule will not result in the

expenditure by State, local, and tribunal

governments, in the aggregate, or by the

private sector, of $100 million or more

in any one year, and it will not

significantly or uniquely affect small

governments. Therefore, no actions were

deemed necessary under the provisions

of the Unfunded Mandates Reform Act

of 1995.

Small Business Regulatory Enforcement

Fairness Act of 1996

This rule is not a major rule as

defined by section 804 of the Small

Business Regulatory Enforcement Act of

1996. This rule will not result in an

annual effect on the economy of $100

million or more; a major increase in

costs or prices; or significant adverse

effects on competition, employment,

investment, productivity, innovation, or

on the ability of United States-based

companies to compete with foreignbased companies in domestic and

export markets.

Executive Order 12866

This rule is not considered by the

Department of Justice, Immigration and