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. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

9045 

Vol. 74, No. 39 

Monday, March 2, 2009 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 984 

[Doc. No. AMS–FV–08–0091; FV09–984–1 

FIR] 

Walnuts Grown in California; Changes 

to Regulations Governing Board 

Nominations 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, with a change, an interim 

final rule revising the administrative 

rules and regulations governing 

nominations for the California Walnut 

Board (Board). The Board locally 

administers the marketing order that 

regulates the handling of walnuts grown 

in California (order). This rule continues 

in effect an action that removes 

references to independent handlers, 

revises specifications under which 

groups of growers may submit 

nominations for certain grower 

positions on the Board, and corrects 

numerical references to other sections of 

the order. These changes are needed to 

bring the administrative rules and 

regulations into conformance with 

recently enacted amendments to the 

order concerning Board structure and 

nomination procedures. 

DATES: Effective Date: April 1, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Debbie Wray, Marketing Specialist, or 

Kurt J. Kimmel, Regional Manager, 

California Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (559) 487– 

5901, Fax: (559) 487–5906, or E-mail: 

Debbie.Wray@ams.usda.gov, or 

Kurt.Kimmel@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Jay Guerber, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue SW., STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, or E-mail: 

Jay.Guerber@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Order No. 

984, as amended (7 CFR part 984), 

regulating the handling of walnuts 

grown in California, hereinafter referred 

to as the ‘‘order.’’ 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.’’ 

USDA 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 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. Such 

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 not later than 

20 days after the date of the entry of the 

ruling. 

This rule continues in effect the 

action that revises the administrative 

rules and regulations governing Board 

nominations by removing references to 

‘‘independent’’ handlers, adding 

language specifying that groups of 

growers who marketed an aggregate of at 

least 500 tons of walnuts through 

handlers that handled less than 35% of 

the prior year’s crop may submit 

nominations for grower positions on the 

ballots, and correcting references to 

order sections that were renumbered as 

a result of recent order amendments. 

Section 984.35 of the California 

walnut marketing order provides for the 

allocation of grower and handler 

positions on the Board. Historically, 

some members represented the interests 

of a major industry cooperative, and 

some members represented independent 

interests. Some members represented 

the interests of certain production area 

districts, and some served the industry 

‘‘at large.’’ Recently, the structure of the 

industry changed when the major 

cooperative handler became a publiclytraded corporation. Subsequently, the 

industry approved amendments to the 

order that restructured the Board to 

reflect the changes to the industry’s 

composition. Language specifying 

membership allocation between 

cooperative and independent interests 

was removed from the order because all 

production area walnut handlers are 

now considered independent. 

Alternative membership allocation 

provisions were added to the order. 

Board membership positions are now 

allocated between growers and 

handlers, the specific Districts within 

the production area, and grower 

positions with no District affiliation (‘‘at 

large’’ positions). In the event that one 

industry handler handles 35 percent or 

more of the crop, such handler—and 

growers affiliated with such handler— 

are entitled to a given number of Board 

positions. As a result of the 

amendments, some sections of the order 

were renumbered. 

Section 984.37 of the order provides 

authority for the Board, with the 

approval of USDA, to make changes to 

the Board nomination procedures 

specified in the order. The procedures 

are contained in the order’s 

administrative rules and regulations. 

Prior to this action, § 984.437 of the 

regulations specified that if the ‘‘at 

large’’ grower position on the Board was 

assigned to represent independent 

growers, groups of ten or more growers 

who marketed a combined volume of 

500 or more tons of walnuts through 

independent handlers in the prior year 

could propose a nominee for the ballot. 

The previous regulations also specified 

that groups of ten or more growers from 


erowe on PROD1PC63 with RULES
9046 Federal Register / Vol. 74, No. 39 / Monday, March 2, 2009 / Rules and Regulations 

each district who marketed an aggregate 

of 500 or more tons of walnuts through 

independent handlers in the prior year 

could propose nominees for the 

independent grower positions in their 

districts. 

The amended order no longer 

differentiates between cooperative and 

independent entities, and Board 

positions are no longer apportioned to 

represent either cooperative or 

independent entities. References in the 

order to independent handlers have 

been removed from the provisions 

specifying Board nominations. This rule 

continues in effect the action that 

changes § 984.437(a) and (b) of the 

administrative rules and regulations by 

removing references to independent 

handlers. Changes made to those 

paragraphs also specify that groups of 

ten or more growers who marketed an 

aggregate of at least 500 tons of walnuts 

through handlers that handled less than 

35 percent of the prior year’s crop may 

nominate growers to serve in the ‘‘at 

large’’ grower positions. Further 

revisions to the regulations specify that 

groups of ten or more growers from each 

district who marketed an aggregate of at 

least 500 tons of walnuts through 

handlers that handled less than 35 

percent of the prior year’s crop may 

nominate growers to represent each 

district. Finally, this rule also continues 

in effect the revision of certain 

references to renumbered order 

provisions in the regulations that are no 

longer correct. 

This rule was unanimously 

recommended by the Board at its 

meeting on September 12, 2008. 

Final Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA), the 

Agricultural Marketing Service (AMS) 

has considered the economic impact of 

this rule 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 the rules issued thereunder, are 

unique in that they are brought about 

through group action of essentially 

small entities acting on their own 

behalf. The Small Business 

Administration (SBA) defines small 

agricultural service firms as those whose 

annual receipts are less than $7,000,000, 

and defines small agricultural producers 

as those whose annual receipts are less 

than $750,000 (13 CFR 121.201). 

There are currently 55 handlers of 

California walnuts subject to regulation 

under the marketing order, and there are 

approximately 4,000 growers in the 

production area. USDA’s National 

Agricultural Statistics Service (NASS) 

reports that California walnuts were 

harvested from a total of 218,000 

bearing acres during 2007–08. The 

average yield for the 2007–08 crop was 

1.49 tons per acre, which is slightly 

lower than the 1.53 tons per acre 

average for the previous five years. 

NASS reported the value of the 2007– 

08 crop at $2,320 per ton, which is 

considerably higher than the previous 

five-year average of $1,384 per ton. 

At the time of the 2002 Census of 

Agriculture, which is the most recent 

information available, approximately 83 

percent of California’s walnut farms 

were smaller than 100 acres. Fortyseven percent were between 1 and 15 

acres. A 100-acre farm with an average 

yield of 1.49 tons per acre would have 

been expected to produce about 149 

tons of walnuts during 2007–08. At 

$2,320 per ton, that farm’s production 

would have had an approximate value 

of $345,000. Assuming that the majority 

of California’s walnut farms are still 

smaller than 100 acres, it could be 

concluded that the majority of the 

growers had receipts of less than 

$345,000 in 2007–08. This is well below 

the SBA threshold of $750,000, thus, the 

majority of California’s walnut growers 

would be considered small growers 

according to SBA’s definition. 

According to information supplied by 

the industry, approximately two-thirds 

of California’s walnut handlers shipped 

merchantable walnuts valued under 

$7,000,000 during the 2007–08 

marketing year and would therefore be 

considered small handlers according to 

the SBA definition. 

This rule continues in effect the 

action that revises the administrative 

rules and regulations governing the 

nomination of Board members. 

References to independent handlers are 

being removed from the regulations to 

conform to recent amendments to the 

order. Procedures for the nomination of 

grower members by groups of growers 

who marketed an aggregate of at least 

500 tons of walnuts through handlers 

that handled less than 35 percent of the 

prior year’s crop are being added. 

References to renumbered sections of 

the order are being corrected. This 

action imposes no additional cost or 

burden on growers or handlers of any 

size. 

The Board unanimously 

recommended these changes, which 

were necessary to bring the order’s 

administrative rules and regulations 

into conformance with the recently 

amended order. As such, no alternatives 

were considered practicable. 

The Board’s meeting was widely 

publicized throughout the California 

walnut industry and all interested 

persons were invited to attend the 

meeting and participate in Board 

deliberations on all issues. Like all 

Board meetings, the September 12, 

2008, meeting was a public meeting and 

all entities, both large and small, were 

able to express views on this issue. 

This rule imposes no additional 

reporting or recordkeeping requirements 

on either small or large California 

walnut 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. 

AMS is committed to complying with 

the E-Government Act, to promote the 

use of Internet and other information 

technologies to provide increased 

opportunities for citizen access to 

Government information and services, 

and for other purposes. 

As noted in the initial regulatory 

flexibility analysis, USDA has not 

identified any relevant Federal rules 

that duplicate, overlap, or conflict with 

this rule. 

An interim final rule concerning this 

action was published in the Federal 

Register on December 5, 2008. Copies of 

the rule were mailed or sent by 

facsimile to all walnut handlers. In 

addition, the rule was made available 

through the Internet by USDA and the 

Office of the Federal Register. That rule 

provided for a 60-day comment period, 

which ended February 3, 2009. No 

comments were received. 

The interim final rule published in 

the Federal Register contained an 

incorrect reference to an order 

provision. Section 984.437 has been 

modified to include the correct 

reference. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: http://www.ams.usda.gov/ 

AMSv1.0/ams.fetchTemplateData.

do?template=TemplateN&page=

MarketingOrdersSmallBusinessGuide. 

Any questions about the compliance 

guide should be sent to Jay Guerber at 

the previously mentioned address in the 

FOR FURTHER INFORMATION CONTACT

section. 

After consideration of all relevant 

matters presented, the information and 

recommendations submitted by the 

Board, and other information, it is found 

that finalizing the interim final rule as 

published in the Federal Register (73 


erowe on PROD1PC63 with RULES
Federal Register / Vol. 74, No. 39 / Monday, March 2, 2009 / Rules and Regulations 9047 

FR 73995, December 5, 2008), with a 

change, will tend to effectuate the 

declared policy of the Act. 

List of Subjects in 7 CFR Part 984 

Walnuts, Marketing agreements, Nuts, 

Reporting and recordkeeping 

requirements. 

■ Accordingly, the interim final rule 

amending 7 CFR part 984, which was 

published at 73 FR 73995 on December 

5, 2008, is adopted as a final rule with 

the following change: 

PART 984—WALNUTS GROWN IN 

CALIFORNIA 

■ 1. The authority citation for 7 CFR 

part 984 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. In § 984.437 paragraphs (a) and (b) 

are revised to read as follows: 

§ 984.347 Methods for proposing names of 

additional candidates to be included on 

walnut growers’ nomination ballots. 

(a) With regard to Board grower 

member positions specified in 

§ 984.35(a)(5) and (b)(6), any ten or more 

such growers who marketed an 

aggregate of 500 or more tons of walnuts 

through handlers who did not handle 

35% or more of the crop during the 

marketing year preceding the year in 

which Board nominations are held, may 

petition the Board to include on the 

nomination ballot the name of an 

eligible candidate for this position, and 

the name of an eligible candidate to 

serve as his or her alternate. The names 

of the eligible candidates proposed 

pursuant to this paragraph shall be 

included on the ballot together with the 

names of any incumbents who are 

willing to continue serving on the 

Board. 

(b) Any ten or more growers eligible 

to serve in the grower member positions 

specified in § 984.35(a)(3) and (4) or 

§ 984.35(b)(4) and (5) and who marketed 

an aggregate of 500 or more tons of 

walnuts through handlers who did not 

handle 35% or more of the crop during 

the marketing year preceding the year in 

which Board nominations are held, may 

petition the Board to include on the 

nomination ballot for a district the name 

of an eligible candidate for the 

applicable position, and the name of an 

eligible candidate to serve as his or her 

alternate. The names of the eligible 

candidates proposed pursuant to this 

paragraph shall be included on the 

ballot together with the names of any 

incumbents who are willing to continue 

serving on the Board. 

* * * * * 

Dated: February 24, 2009. 

Robert C. Keeney, 

Acting Associate Administrator. 

[FR Doc. E9–4291 Filed 2–27–09; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1220 

[Doc. No. AMS–LS–08–0074] 

Soybean Promotion, Research, and 

Information Program: Amend 

Procedures To Request a Referendum 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This final rule amends the 

procedures to request a referendum 

under the Soybean Promotion, Research, 

and Consumer Information program, 

commonly known as the soybean 

checkoff program, by updating the 

number of soybean producers in the 

United States. The number of soybean 

producers, based on information 

provided by the Department of 

Agriculture (USDA), Farm Service 

Agency (FSA), is 589,182. 

Additionally, this rule amends the 

regulations pursuant to administrative 

changes to Web site addresses and office 

locations made for the USDA’s 

Agricultural Marketing Service (AMS). 

DATES: Effective Date: March 3, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Kenneth R. Payne, Chief, Marketing 

Programs Branch, Livestock and Seed 

Program, AMS, USDA, Room 2628–S, 

STOP 0251, 1400 Independence 

Avenue, SW., Washington, DC 20250– 

0251; Telephone 202/720–1115; Fax 

202/720–1125; or e-mail to 

Kenneth.Payne@usda.gov. 

SUPPLEMENTARY INFORMATION: 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has waived the review process 

required by Executive Order 12866 for 

this action. 

Executive Order 12988 

This final rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This final rule is not 

intended to have a retroactive effect. 

The final rule would not preempt any 

other Federal or State laws, regulations, 

or policies. 

The Soybean Promotion, Research, 

and Consumer Information Act (Act) 

provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 1971 of the Act, a person subject 

to the Soybean Promotion and Research 

Order (Order) may file a petition with 

USDA stating that the Order, any 

provision of the Order, or any obligation 

imposed in connection with the Order, 

is not in accordance with the law and 

requesting a modification of the Order 

or an exemption from the Order. The 

petitioner is afforded the opportunity 

for a hearing on the petition. After a 

hearing, USDA would rule on the 

petition. The Act provides that district 

courts of the United States in any 

district in which such person is an 

inhabitant, or has their principal place 

of business, has jurisdiction to review 

USDA’s ruling on the petition, if a 

complaint for this purpose is filed 

within 20 days after the date of the entry 

of the ruling. 

Further, section 1974 of the Act 

provides, with certain exceptions, that 

nothing in the Act may be construed to 

preempt or supersede any other program 

relating to soybean promotion, research, 

consumer information, or industry 

information organized under the laws of 

the United States or any State. One 

exception in the Act concerns 

assessments collected by Qualified State 

Soybean Boards (QSSBs). The exception 

provides that to ensure adequate 

funding of the operations of QSSBs 

under the Act, no State law or 

regulation may limit or have the effect 

of limiting the full amount of 

assessments that a QSSB in that State 

may collect, and which is authorized to 

be credited under the Act. Another 

exception concerns certain referenda 

conducted during specified periods by a 

State relating to the continuation of a 

QSSB or State soybean assessment. 

Regulatory Flexibility Act 

AMS has determined that this final 

rule will not have a significant impact 

on a substantial number of small 

entities, as defined by the Regulatory 

Flexibility Act (RFA) (5 U.S.C. 601– 

612). 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 

disproportionately burdened. 

For the purpose of the Request for 

Referendum, the Secretary will use the 

most recent number of soybean 

producers identified by USDA’s FSA. 

The latest number of soybean producers 

identified by FSA is 589,182 and was 

obtained using information from 2006 

and 2007 acreage reports. The data were 

sorted in such a manner as to include 

all producers that were engaged in the 

production of soybeans in at least one 


erowe on PROD1PC63 with RULES