Federal Register / Vol. 62, No. 186 / Thursday, September 25, 1997 / Rules and Regulations 50239

PART 330—FEDERAL PLANT PEST

REGULATIONS; GENERAL; PLANT

PESTS; SOIL, STONE, and QUARRY

PRODUCTS; GARBAGE

4. The authority citation for part 330

continues to read as follows:

Authority: 7 U.S.C. 147a, 150bb, 150dd–

150ff, 161, 162, 164a, 450, 2260; 19 U.S.C.

1306; 21 U.S.C. 111, 114a; 136 and 136a; 31

U.S.C. 9701; 42 U.S.C. 4331, and 4332; 7 CFR

2.22, 2.80, and 371.2(c).

5. In § 330.300a, the words ‘‘South

Saanich’’ are removed and the words

‘‘Central Saanich’’ are added in their

place.

Done in Washington, DC, this 22nd day of

September 1997.

Terry L. Medley,

Administrator, Animal and Plant Health

Inspection Service.

[FR Doc. 97–25489 Filed 9–24–97; 8:45 am]

BILLING CODE 3410–34–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 981

[Docket No. FV97–981–3 FIR]

Almonds Grown in California; Revision

to Requirements Regarding Inedible

Almonds

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: The Department of

Agriculture (Department) is adopting, as

a final rule, without change, the

provisions of an interim final rule

revising the administrative rules and

regulations of the California almond

marketing order regarding inedible

almonds. Under the terms of the order,

handlers are required to obtain

inspection on almonds received from

growers to determine the percent of

inedible almonds in each lot of any

variety. Handlers are then required to

dispose of a quantity of almonds in

excess of 1 percent of the weight of

almonds reported as inedible to nonhuman consumption outlets. This rule

allows alternative methods of

determining handlers’ inedible

disposition obligations in such

instances. It will add flexibility to the

order’s rules and regulations and will

help ensure that the integrity of the

quality control provisions is

maintained.

EFFECTIVE DATE: October 27, 1997.

FOR FURTHER INFORMATION CONTACT:

Martin Engeler, Assistant Regional

Manager, California Marketing Field

Office, Marketing Order Administration

Branch, F&V, AMS, USDA, 2202

Monterey Street, suite 102B, Fresno,

California 93721; telephone: (209) 487–

5901, Fax: (209) 487–5906; or George

Kelhart, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, Room

2525–S, P.O. Box 96456, Washington,

DC 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, F&V, AMS,

USDA, room 2525–S, P.O. Box 96456,

Washington, DC 20090–6456; telephone:

(202) 720–2491, Fax: (202) 720–5698.

SUPPLEMENTARY INFORMATION: This rule

is issued under Marketing Order No.

981, as amended (7 CFR part 981),

regulating the handling of almonds

grown in California, hereinafter referred

to as the ‘‘order.’’ The marketing

agreement and order are effective under

the Agricultural Marketing Agreement

Act of 1937, as amended (7 U.S.C. 601–

674), hereinafter referred to as the

‘‘Act.’’

The Department of Agriculture

(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.

This rule revises the administrative

rules and regulations of the California

almond order regarding inedible

almonds. Under the terms of the order,

handlers are required to obtain

inspection on almonds received from

growers to determine the percent of

inedible almonds in each lot of any

variety. Handlers are then required to

dispose of a quantity of almonds in

excess of 1 percent of the weight of

almonds reported as inedible to nonhuman consumption outlets. The

quantity of almonds required to be

disposed of is the handler’s inedible

disposition obligation. However, there

are times when an incoming inspection

sample may not be drawn, may be lost,

or the size of the sample drawn may be

too small for an inedible weight to be

determined. This rule provides handlers

with the opportunity in such cases to

substantiate to the Board the weight of

almonds received, the edible and

inedible kernel weights, and the

adjusted kernel weight. Such

information can often be obtained from

an outgoing inspection certificate. The

inedible disposition obligation may then

be based on that information. If a

handler is only able to substantiate the

approximate weight of almonds

received, an inedible disposition

obligation of 10 percent of the weight of

almonds received in that particular lot

may be applied, upon agreement

between Board staff and the handler.

The appropriate weight received can

often be obtained from a weighmaster’s

weight certificate. In adding these

procedures to the text of the rules and

regulations, this rule will add flexibility

to the rules and regulations and will

help ensure that the integrity of the

quality control provisions of the order is

maintained. This change was

unanimously recommended by the

Board.

Section 981.42(a) of the almond order

requires handlers to obtain incoming

inspection on almonds received from

growers to determine the percent of

inedible kernels in any variety.

Handlers are required to report such

inedible determination for each lot

received to the Board. Inedible kernels

are those kernels, pieces, or particles of

kernels with any defect scored as

serious damage (excluding the presence

of web and frass), or damage due to

mold, gum, shrivel, or brown spot, as

defined in the United States Standards

for Grades of Shelled Almonds, or

which have embedded dirt not easily

removed by washing. Edible kernels are

kernels, pieces, or particles of almond

kernels that are not inedible. Section

981.42(a) also provides authority for the

Board, with the approval of the

Secretary, to establish rules and

regulations necessary and incidental to
50240 Federal Register / Vol. 62, No. 186 / Thursday, September 25, 1997 / Rules and Regulations

the administration of the order’s

incoming quality control provisions.

Section 981.442(a)(4) of the order’s

administrative rules and regulations

specifies that the weight of inedible

kernels in each lot of any variety of

almonds in excess of 1 percent of the

kernel weight received by a handler

shall constitute such handler’s inedible

disposition obligation. Inedible kernels

accumulated in the course of processing

must be disposed of in non-human

consumption outlets such as Board

approved oil crushers, feed

manufacturers, and animal feeders.

Requiring handlers to meet this

obligation helps to ensure that each

handler’s outgoing shipments of

almonds are relatively free of almonds

with serious damage, and the number of

kernels with minor damage should be

minimal. Thus, the intent of the order’s

inedible program is to help ensure that

only quality almonds are ultimately

shipped into market channels.

At a meeting on May 9, 1997, the

Board recommended that § 981.442 of

the order’s administrative rules and

regulations be revised to allow

alternative methods of establishing

handlers’ inedible disposition

obligations in certain instances. The

Board recommended that this rule be in

effect for the beginning of the 1997–98

crop year which began on August 1,

1997.

Discussions at this and prior meetings

of the Board’s Quality Control

Committee indicated that a considerable

amount of activity occurs at handlers’

facilities when handlers are receiving

almonds from growers. For example,

handlers may be receiving, moving,

processing, and shipping several lots of

almonds at a rapid pace. During this

time, incoming inspection for some lots

of almonds may be inadvertently missed

due to the high level of activity. In

addition, samples are occasionally lost

or the size of the samples drawn are too

small for kernel weight determinations.

Board staff commented that there are

instances where handlers notice that an

error was made and contact the Board’s

staff in an effort to comply with the

order’s rules and regulations. Board staff

also indicated that this is not a large

problem but that it does occur

occasionally.

Thus, the Board recommended that

for any lot of almonds where a sample

is not drawn, is lost, or is too small for

the kernel weight to be determined, the

handler may establish and substantiate,

to the Board’s satisfaction, the weight of

the almonds received, the edible and

inedible kernel weights, and the

adjusted kernel weight. Adjusted kernel

weight means the actual gross weight of

any lot of almonds less the following:

the weight of containers; moisture of

kernels in excess of 5 percent; shells (if

applicable); processing loss of 1 percent

for deliveries with less than 95 percent

kernels; and trash or other foreign

material. In such instances, the

handler’s inedible disposition obligation

will be based on that information. If the

handler is only able to establish and

substantiate the approximate received

weight, an inedible disposition

obligation of 10 percent of such received

weight may be applied, upon agreement

between Board staff and the handler.

This change will add flexibility to the

order and will help ensure that the

integrity of the order’s quality control

provisions is maintained. The Board

estimates that for the past 3 years, about

3.05 percent of the almonds received by

handlers from growers were inedible.

Thus, the Board’s recommended 10

percent disposition obligation for lots of

almonds where an inedible weight was

not determined exceeds historical

averages. This should provide a

disincentive for handlers to purposely

avoid inspection, while providing

handlers an opportunity to maintain

compliance with order requirements.

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, 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 approximately 97 handlers

of California almonds who are subject to

regulation under the marketing order

and approximately 7,000 almond

producers in the regulated area. Small

agricultural service firms have been

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 are defined as those having

annual receipts of less than $500,000.

Currently, about 58 percent of the

handlers ship under $5,000,000 worth

of almonds and 42 percent ship over

$5,000,000 worth on an annual basis. In

addition, based on acreage, production,

and grower prices reported by the

National Agricultural Statistics Service,

and the total number of almond

growers, the average annual grower

revenue is approximately $156,000. In

view of the foregoing, it can be

concluded that the majority of handlers

and producers of California almonds

may be classified as small entities.

This rule revises the administrative

rules and regulations of the almond

order regarding inedible almonds.

Section 981.42(a) of the order requires

handlers to obtain inspection on

almonds received from growers to

determine the percent of inedible

almonds in each lot of any variety.

Section 981.42(a) also provides

authority for the Board, with the

approval of the Secretary, to establish

rules and regulations necessary and

incidental to the administration of the

order’s incoming quality control

provisions.

Under § 981.442(a)(4) of the order’s

administrative rules and regulations,

handlers are required to dispose of a

quantity of almonds in excess of 1

percent of the weight of almonds

reported as inedible in non-human

consumption outlets. However, there are

times when a sample may not be drawn,

may be lost, or the size of the sample

drawn may be too small for an inedible

kernel weight to be determined. This

rule revises § 981.442(a)(4) to allow a

handler’s inedible disposition obligation

in such cases to be based on

documentation provided by the handler,

to the satisfaction of Board staff. If

sufficient documentation is not

available, an inedible disposition

obligation of 10 percent of the received

weight may be applied. This change

adds flexibility to the regulations while

maintaining the integrity of the order’s

quality control provisions. This rule was

unanimously recommended by the

Board and will be in effect beginning

with the 1997–98 season which began

on August 1, 1997.

Regarding the impact of this rule on

handlers and growers in terms of cost,

providing handlers with the option of

accepting an inedible disposition

obligation based on appropriate

documentation or accepting an

obligation of 10 percent for lots where

a sample was not drawn, was lost, or

was too small for an inedible weight to

be determined are options that will be

made available to all handlers, both

large and small. Handlers receive lower

prices for inedible almonds that must be

sold in non-human consumption outlets

as opposed to edible almonds that can

be sold in normal market channels. For

example, handlers receive about 28–35

cents per pound for almonds used for

crushing into oil and about 2–3 cents

per pound for almonds used for animal
Federal Register / Vol. 62, No. 186 / Thursday, September 25, 1997 / Rules and Regulations 50241

feed. Price levels for sales of edible

almonds to normal market outlets vary

significantly from year to year

depending on available supplies and

market conditions and can range from

$1.00–$3.00 per pound. If inedible

almonds were allowed to be sold in

normal market channels, consumer and

buyer satisfaction would likely decrease

because poor quality almonds were

being made available. Buyers would

likely purchase fewer almonds and

demand for almonds would thus

decline, which would in turn decrease

returns to growers and handlers, both

large and small.

Thus, this rule will add flexibility to

the rules and regulations and help

ensure that the integrity of the order’s

quality control provisions is

maintained. As previously mentioned,

the Board estimates that for the past 3

years, about 3.05 percent of the almonds

received by handlers from growers were

inedible. The Board’s recommended 10

percent disposition obligation for lots

where an inedible weight was not

determined exceeds historical averages.

This rule also provides handlers an

opportunity to maintain compliance

with order requirements.

An alternative to this change would

be to not incorporate these options into

the order’s administrative rules and

regulations. Thus, in cases where an

inedible disposition obligation was

inadvertently not obtained, such

handlers would be considered to be out

of compliance with order requirements

and subject to penalties under the Act.

However, the Board determined that it

would be in the industry’s best interest

to provide alternative methods of

determining inedible disposition

obligations. This will allow handlers

additional options in the rules and

regulations to remain in compliance

with order requirements and the

integrity of the order’s incoming quality

control program will still be maintained.

This rule will not impose any

additional reporting or recordkeeping

requirements on either small or large

almond handlers. As with all Federal

marketing order programs, reports and

forms are periodically reviewed to

reduce information requirements and

duplication by industry and public

sectors. In accordance with the

Paperwork Reduction Act of 1995 (44

U.S.C. Chapter 35), the information

collection requirements that are

contained in this rule have been

previously approved by the Office of

Management and Budget (OMB) and

have been assigned OMB No. 0581–

0071. In addition, as noted in the initial

regulatory flexibility analysis, the

Department has not identified any

relevant Federal rules that duplicate,

overlap or conflict with this rule.

Further, the Board’s meeting was

widely publicized throughout the

almond industry and all interested

persons were invited to attend the

meeting and participate in Board

deliberations. Like all Board meetings,

the May 9, 1997, meeting was a public

meeting and all entities, both large and

small, were able to express their views

on this issue.

Also, the Board has a number of

appointed committees to review certain

issues and make recommendations to

the Board. The Board’s Quality Control

Committee met on April 23, 1997, and

discussed this inedible disposition

obligation issue in detail. That meeting

was also a public meeting and both large

and small entities were able to

participate and express their views.

Finally, interested persons were invited

to submit information on the regulatory

and information impacts of this action

on small businesses.

An interim final rule concerning this

action was issued by the Department on

July 8, 1997, and published in the

Federal Register on July 14, 1997 (62 FR

37485). Copies of the rule were mailed

or sent via facsimile to all almond

handlers. Finally, a copy of the rule was

made available through the Internet by

the Office of the Federal Register. No

comments were received in response to

the interim final rule.

After consideration of all relevant

material presented, including the

Board’s recommendation, and other

information, it is found that finalizing

this interim final rule, without change,

as published in the Federal Register (62

FR 37485, July 14, 1997), will tend to

effectuate the declared policy of the Act.

List of Subjects in 7 CFR Part 981

Almonds, Marketing agreements,

Nuts, Reporting and recordkeeping

requirements.

PART 981—ALMONDS GROWN IN

CALIFORNIA

Accordingly, the interim final rule

amending 7 CFR 981 which was

published at 62 FR 37485 on July 14,

1997, is adopted as a final rule without

change.

Dated: September 19, 1997.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 97–25412 Filed 9–24–97; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 999

[Docket No. FV97–999–1 IFR]

Specialty Crops; Import Regulations;

Extension of Reporting Period for

Peanuts Imported Under 1997 Import

Quotas

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Interim final rule with request

for comments.

SUMMARY: This rule removes the 23-day

reporting requirement and establishes a

new date for importers to report

disposition of peanuts imported under

1997 peanut import quotas. This rule

also establishes a 120-day reporting

period for any peanuts imported after

the 1997 import quotas are filled. The

23-day reporting period established in

the import regulation is impractical

given the volume of peanuts imported

under January 1 and April 1 peanut

import quotas. This is an administrative

change for the 1997 peanut quota

periods only. This rule is deemed

necessary by the Agricultural Marketing

Service (AMS) to provide peanut

importers with sufficient time to meet

the quality and reporting requirements

of the peanut import regulation.

DATES: Effective Setpember 29, 1997.

Comments received by October 27, 1997

will be considered prior to issuance of

a final rule.

ADDRESSES: Interested persons are

invited to submit written comments

concerning this action. Comments must

be sent in triplicate to the Docket Clerk,

Fruit and Vegetable Division, AMS,

USDA, P.O. Box 96456, room 2525–S,

Washington, DC 20090–6456; fax 202–

720–5698. Comments should reference

the docket number and the date and

page number of this issue of the Federal

Register and will be made available for

public inspection in the Office of the

Docket Clerk during regular business

hours.

FOR FURTHER INFORMATION CONTACT: Tom

Tichenor, Senior Marketing Specialist,

Marketing Order Administration

Branch, Fruit and Vegetable Division,

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

2525–S, Washington, DC 20090–6456;

tel: (202) 720–6862; 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, room 2525–S, P.O. Box