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.

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# Rules and Regulations Federal Register 

### 14907

Vol. 78, No. 46

Friday, March 8, 2013

**DEPARTMENT OF AGRICULTURE**

**Agricultural Marketing Service**

**7 CFR Part 51**

**[Doc. Number AMS–FV–11–0046]**

**United States Standards for Grades of**
**Almonds in the Shell**

**AGENCY :**  Agricultural Marketing Service,

USDA.

**ACTION :**  Final rule.

**SUMMARY :**  This rule revises the United
States Standards for Grades of Almonds
in the Shell. These standards are issued under the Agricultural Marketing Act of 1946. The Agricultural Marketing Service (AMS) is revising the standards by changing the determination of internal defects from count to weight. These revisions will align the inspection procedures for incoming inspections (based on the marketing order) and outgoing inspections (based on the standards). These changes will promote greater uniformity and will provide consistency with current marketing practices.

**DATES :**  Effective April 8, 2013.

**FOR FURTHER INFORMATION CONTACT :**  Lindsay Mitchell, Standardization Branch, Specialty Crops Inspection (SCI) Division, (540) 361–1127 or 1150.
The United States Standards for
Almonds in the Shell are available through the SCI Division Web site at: http://www.ams.usda.gov/ freshinspection

.

**SUPPLEMENTARY INFORMATION :** 
Executive Order 12866 Regulatory Flexibility Act

This rule has been determined to be not significant for purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612), AMS has considered the economic impact of the action on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be unduly or disproportionately burdened. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The final rule will revise the United
States Standards for Grades of Almonds in the Shell (standards) that were issued under the Agricultural Marketing Act of 1946 (7 U.S.C. 1621–1627). Standards
issued under the 1946 Act are voluntary.

Small agricultural service firms, which include handlers, have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $7,000,000 and small agricultural producers have been defined as those having annual receipts of less than $750,000. There are approximately 53
handlers of almonds that would potentially be affected by the changes set forth in this rule and approximately 6,500 producers of almonds. Information provided by the Almond Board of California (ABC) indicates that approximately 36 percent of the
handlers would be considered small agricultural service firms. According to data reported by the National Agricultural Statistics Service (NASS), the two-year average crop value for 2008–09 and 2009–10 was $2.566 billion. Dividing that average by 6,500 producers yields average estimated producer revenues of $394,769, which suggests that the majority of almond producers would be considered small entities according to the SBA’s
definition.

The California almond bearing acreage increased approximately 9 percent between 2008 and 2010, from

680,000 to 740,000 acres. Approximately 1.643 billion pounds (shelled basis) of almonds were produced during the 2009–10 season.
More than two thirds of California’s almond crop is exported to approximately 90 countries worldwide, and comprises nearly 80 percent of the world’s almond supply.

The changes herein will have the effect of improving grading methods and accuracy without adding any additional financial burden to buyers or sellers of almonds in the shell. This rule changes one step in a multi-step grading procedure (7 CFR 51.2080) and changes the method of determining one of five tolerances used in determining grade (7 CFR 51.2075(b)(5)). The outgoing inspection procedure will become more closely aligned with incoming inspection by shifting the basis (from count to weight) in the standards for determining the percentage of internal defects in an inspection sample of
almonds in the shell.

In addition to simplifying the grading process, the weight basis would yield a more accurate percentage of internal defects. With a count method, a defect such as shriveling would result in a particular kernel being counted as one of the 300 kernels in the sample with internal defects, even if the defect left only a small portion of the original kernel in the sample. Due to its lower weight relative to a fully formed kernel, a shriveled kernel has a smaller impact on the percentage of internal defects when the sample is weighed rather than
counted.

The lower average percentage of internal defects using the weight method was confirmed by a review of shipping point inspection records, with 14 examples in which both the count and weight method were used on the same sample of inshell almonds. The average serious damage percentages of the count method and the weight method were 1.5 percent and 0.8 percent, respectively. Smaller percentages of defects in sampled lots using the weight method will mean larger quantities of almonds meet a particular grade, which would positively affect the quality of the almonds, as it would yield more accurate percentages of defects, resulting in higher payments to growers.

Shifting the determination of internal (kernel) defects from a count basis to a weight basis in the standards is expected to contribute to efficiencies in the grading process. It would make the internal defects aspect of the outgoing inspection process consistent with that of the incoming inspection. Weighing rather than counting the kernels may result in slightly more time in the inspection process, but any potential effect on the cost of inspections is expected to be minor or nonexistent, and would be offset by the benefits.


### 14908 Federal Register / Vol. 78, No. 46 / Friday, March 8, 2013 / Rules and Regulations

There is no disproportionate impact on smaller entities; entities of all sizes
will benefit.

This rule would not impose any additional reporting or recordkeeping requirements on either small or large almond producers, handler or exporters.

The use of grading services and grading standards is voluntary unless required by a specific Act, Federal Marketing Order or Agreement, or other regulations governing domestic, import or export shipments. USDA has not identified any Federal rules that duplicate, overlap, or conflict with this rule. However, there is a marketing program which regulates the handling of almonds under 7 CFR part 981. The revision in this action only affects the inspection procedures for internal defects in the standards. As such, the
action would not affect almonds in the shell under the marketing order.

Alternatives were considered for this
action. One alternative would be to not issue a rule. However, the need for revisions remains due to differing procedures for incoming and outgoing almond inspections, and is the result of a request by industry. Further, the purpose of these standards is to facilitate the marketing of agricultural
commodities.

Executive Order 12988

The rule has been reviewed under Executive Order 12988, Civil Justice
Reform. This action is not intended to
have retroactive effect. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of the rule.

Section 203(c) of the Act directs and authorizes the Secretary of Agriculture ‘‘to develop and improve standards of quality, condition, quantity, grade and packaging and recommend and
demonstrate such standards in order to encourage uniformity and consistency in commercial practices.’’ AMS is committed to carrying out this authority
in a manner that facilitates the marketing of agricultural commodities and makes copies of official standards available upon request.

Background

On March 11, 2011, AMS received a
letter from the Almond Board of California (Board) requesting that the procedure for measuring internal (kernel) defects in the United States
Standards for Grades of Almonds in the Shell be changed from a count basis to a weight basis. The purpose of this change is to align incoming and outgoing inspection procedures.

Currently, almonds must undergo incoming inspections and may undergo outgoing inspections. The almond marketing order (part 981—Almonds Grown in California) mandates that the percentage of inedible kernels is determined during an incoming inspection. As required in the marketing order (7 CFR 981.42 and 981.442 (Quality Control)), federally licensed state inspectors perform these inspections on 100 percent of the product moving from growers to handlers (packers). ‘‘Inedible kernel’’ is defined in §§ 981.8 and 981.408 of the marketing order and is based on internal (kernel) defects as defined in the standards, in §§ 51.2087 (Decay), 51.2088 (Rancidity), 51.2089 (Damage) and 51.2090 (Serious Damage).

Federally licensed state inspectors also perform outgoing inspections, which are voluntary, on approximately 75 percent of all of the almonds going
from the handlers to domestic and international markets, according to shipping point records maintained by Federal State Inspection. The current procedures for determining the percentage of defective kernels in the two different inspections are not the same. For incoming inspections, the percentage of inedible kernels is determined on a weight basis. With outgoing inspections, however, determining the percentage of internal (kernel) defects, which is one step in a multi-step procedure specified in the standards for determining U.S. grade, is done through a combination of count and weight of the nuts in the sample. This change to the standards would more closely align the procedures of the incoming and outgoing inspections.

A key reason for making this change is the increasing magnitude of exports of
almonds in the shell. Between the 2006/ 07 and 2009/10 seasons, export shipments of almonds in the shell doubled, rising from 148 to 297 million pounds (inshell basis), according to trade data from the Foreign Agricultural Service of USDA. During this same time period, the number of handlers exporting almonds in the shell increased by 42 percent. Due to the
substantial increase in the number of handlers and volume of shipments, the Board received numerous inquiries regarding the reasons for the different procedures for determining internal defects on incoming and outgoing inspections.

A number of handlers asked the Board’s Food Quality and Safety Committee (committee) to look into how to change the standards to make outgoing inspections more consistent with the incoming inspection method. Determining the percentage of nuts with
internal defects is the third of three required steps in section 51.2080 (Determination of Grade). In addition, a 10 percent tolerance for internal (kernel)
defects is one of five tolerances that are specified in section 51.2075(b)(5) for determining whether a lot of inshell almonds is graded as U.S. No. 1. Committee staff queried handlers that ship almonds in the shell about changing the determination of internal defects from a count basis to a weight basis, which would apply to both of
these sections.

A proposed rule regarding these
revisions to the United States Standards
for Grades of Almonds in the Shell was published in the Federal Register on July 16, 2012 (77 FR 41707). The public comment period closed on August 15, 2012, with no responses. Based on the information gathered, AMS believes the revisions will bring the standards for
almonds in the shell in line with the marketing order and thereby improve
their usefulness.

List of Subjects in 7 CFR part 51

Agricultural commodities, Food grades and standards, Fruits, Nuts, Reporting and record keeping requirements, Trees, Vegetables.

For reasons set forth in the preamble, 7 CFR part 51 is to be amended as
follows:

**PART 51—[AMENDED]**

■ 1. The authority citation for part 51
continues to read as follows:

Authority: 7 U.S.C. 1621–1627.

■ 2. In § 51.2075, paragraph (b)(5) is
revised to read as follows:

**§ 51.2075 U.S. No. 1**

* * * * *

(b) * * * (5) For internal (kernel) defects. 10 percent, by weight, for almonds with kernels failing to meet the requirements of this grade: Provided, that not more
than one-half of this tolerance or 5 percent shall be allowed for kernels affected by decay or rancidity, damaged by insects or mold or seriously damaged by shriveling: And provided further, that no part of this tolerance shall be
allowed for live insects inside the shell.

* * * * *

■ 3. Section 51.2080 is revised to read
as follows:

**§ 51.2080 Determination of grade.**

In grading the inspection sample, the percentage of loose hulls, pieces of shell, chaff and foreign material is determined on the basis of weight. Next, the percentages of nuts which are of dissimilar varieties, undersize or have


### 14909 Federal Register / Vol. 78, No. 46 / Friday, March 8, 2013 / Rules and Regulations

adhering hulls or defective shells are determined by count, using an adequate portion of the total sample. Finally, the nuts in that portion of the sample are cracked and the percentage having
internal defects is determined on the basis of weight.

Dated: February 28, 2013. David R. Shipman, Administrator, Agricultural Marketing

Service.

[FR Doc. 2013–05436 Filed 3–7–13; 8:45 am]

**BILLING CODE 3410–02–P**

**DEPARTMENT OF AGRICULTURE**

**Agricultural Marketing Service**

**7 CFR Part 1230**

**[Doc. No. AMS–LS–07–0143]**

**Pork Promotion, Research, and Consumer Information Program;** 
**Section 610 Review**

**AGENCY :**  Agricultural Marketing Service,

USDA.

**ACTION :**  Confirmation of regulations.

**SUMMARY :**  This document summarizes the results of an Agricultural Marketing Service (AMS) review of the Pork Promotion, Research, and Consumer Information Program (Program), commonly known as the Pork Checkoff Program, under the criteria contained in section 610 of the Regulatory Flexibility Act (RFA). Based upon this review,
AMS concluded that there is a continued need for the Pork Promotion, Research, and Consumer Information Order (Order). Copies of the review performed by AMS are available to interested parties.

**DATES :**  Effective March 8, 2013.

**ADDRESSES :**  Interested persons may obtain a copy of the review. Requests for copies should be sent to Kenneth R. Payne, Director, Marketing Programs Division, Livestock and Seed Program, AMS, USDA, Room 2628–S, STOP 0251, 1400 Independence Avenue SW, Washington, DC 20250–0251 or email Kenneth.Payne@ams.usda.gov.

**FOR FURTHER INFORMATION CONTACT :**  Kenneth R. Payne, Director, Marketing Programs Division, Livestock and Seed Program, AMS, USDA, Room 2628–S, STOP 0251, 1400 Independence Avenue SW, Washington, DC 20250–0251 or
email Kenneth.Payne@ams.usda.gov.

**SUPPLEMENTARY INFORMATION :**  The Order (7 CFR Part 1230) is authorized under the Pork Promotion, Research, and Consumer Information Act of 1985 (Act) (7 U.S.C. 4801–4819). As part of a comprehensive strategy to strengthen the pork industry’s position in the marketplace, this national pork Program maintains and expands existing domestic and foreign markets and develops new markets for pork and pork products. The Program is funded by amandatory assessment of $0.40 perhundred-dollars of market value. Nearly all producers, with few exceptions, owning and marketing swine, regardless of the size of their operation or the value of their swine, must pay the assessment. A comparable assessment is collected on all imported swine, pork, and pork products. Assessments collected under this Program are used for promotion, research, consumer information, and industry information.

The Program is administered by the National Pork Board (Board), which is composed of 15 producer members. Board members serve 3-year terms, but no individual may serve more than two consecutive 3-year terms. Producer members are selected by the National Pork Producers Delegate Body, a group of producer and importer members that represent all 50 States and importers. The Program became effective on September 5, 1986, when the Order was issued. Assessments began on November 1, 1986.

On February 18, 1999, AMS published in the Federal Register (64 FR 8014) its plan to review certain regulations. On January 4, 2002, AMS published in the Federal Register (67 FR 525) an update to its plan to review regulations, including the Pork Promotion and Research Program, which is conducted under the Order,
under criteria contained in section 610 of the RFA (5 USC 601–612). Additional updates were provided on August 14, 2003, in the Federal Register (68 FR 48575) and on March 24, 2006, in the Federal Register (71 FR 14827). Because many AMS regulations impact small entities, AMS decided, as a matter of policy, certain regulations warranted review, although they may not meet the threshold requirement under section
610 of the RFA.

The reviews are being conducted over a ten-year period under section 610 of the RFA. The Program was reviewed for the purpose of determining whether it should be continued without change, or should be amended, rescinded, or terminated (consistent with the objectives of applicable statutes) to minimize the impacts on small entities.

AMS published a notice for review and request for written comments on the Order in the March 27, 2008, issue of
the Federal Register (73 FR 16218).

Comments were due May 27, 2008. USDA received one comment generally opposing the Program, which did not specifically address the criteria provided under section 610 of the RFA.

The review was undertaken to
determine whether the Order should be continued without change, amended, or rescinded (consistent with the objectives of the Act) to minimize the impacts on small entities. In conducting this review and using the guidance set forth in section 610 of the RFA, AMS considered the following factors: (1) The continued need for the Order; (2) the nature of complaints or comments received from the public concerning the Order; (3) the complexity of the Order; (4) the extent to which the Order overlaps, duplicates, or conflicts with other Federal rules, and, to the extent feasible, with State and local governmental rules; and (5) the length of
time since the Order has been evaluated or the degree to which technology,
economic conditions or other factors have changed in the area affected by the
Order.

Based upon this review, AMS has
concluded that there is continued need for the Order. AMS plans to continue working with the pork industry in maintaining an effective program. Interested parties may request a copy of the review by AMS as set forth in this Confirmation of Regulations.

Authority: 7 U.S.C. 4801–4819.

Dated: February 28, 2013. David R. Shipman, Acting Administrator, Agricultural Marketing

Service.

[FR Doc. 2013–05432 Filed 3–7–13; 8:45 am]

**BILLING CODE 3410–02–P**

**DEPARTMENT OF TRANSPORTATION**

**Federal Aviation Administration**

**14 CFR Part 71**

**[Docket No. FAA–2013–0079; Airspace Docket No. 13–AWA–1]** 

**RIN 2120–AA66**

**Amendment of Class B Airspace Description; Houston, TX** 

**AGENCY :**  Federal Aviation Administration (FAA), DOT.

**ACTION :**  Final rule, technical
amendment.

**SUMMARY :**  This action amends the description of the Houston, TX, Class B airspace area by changing the airport reference for describing the William P. Hobby Airport in the Class B airspace header from ‘‘Secondary Airport’’ to ‘‘Primary Airport.’’ This change is editorial only and does not alter the