Federal Register / Vol. 63, No. 150 /Wednesday, August 5, 1998 /Rules and Regulations 41709

§ 1631.13 [Amended]

7. In section 1631.13 amend

paragraph (c) by removing the number

‘‘10’’ and adding in its place the number

‘‘20’’.

§ 1631.14 [Amended]

8. In section 1631.14 amend the first

sentence of paragraph (a) and the

second sentence of paragraph (b) by

removing the phrase ‘‘plus 16 percent’’

and adding the phrase ‘‘plus 23.5

percent’’ in its place.

9. Section 1631.18 is revised to read

as follows:

§ 1631.18 Annual report.

The Executive Director will submit

annually, on or before February 1, a

Freedom of Information report covering

the preceding fiscal year to the Attorney

General of the United States. The report

will include matters required by 5

U.S.C. 552(e).

[FR Doc. 98–20876 Filed 8–4–98; 8:45 am]

BILLING CODE 6760–01–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 981

[Docket No. FV98–981–1 FR]

Almonds Grown in California; Revision

of Requirements Regarding Quality

Control Program

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: This rule revises the

administrative rules and regulations of

the California almond marketing order

(order) pertaining to the quality control

program. The order regulates the

handling of almonds grown in

California, and is administered locally

by the Almond Board of California

(Board). 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

accepted users of such product.

Accepted users are approved annually

by the Board. This rule clarifies

conditions upon which accepted users’

status may be denied or revoked by the

Board. This rule will help to ensure that

inedible almonds are removed from

human consumption channels, thereby

maintaining the integrity of the quality

control provisions of the order.

EFFECTIVE DATE: This final rule becomes

effective August 6, 1998.

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, Technical Advisor, Marketing

Order Administration Branch, Fruit and

Vegetable Programs, AMS, USDA, room

2525-S, PO Box 96456, Washington, DC

20090–6456; telephone: (202) 720–2491,

Fax: (202) 205–6632. 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, PO Box 96456,

Washington, DC 20090–6456; telephone:

(202) 720–2491, Fax: (202) 205–6632.

SUPPLEMENTARY INFORMATION: This final

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 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.

This final rule revises the

administrative rules and regulations

pertaining to a quality control program

under the California almond order. This

rule was unanimously recommended by

the Board, and clarifies conditions

under which the Board may deny or

revoke the status of accepted users of

inedible almonds.

Section 981.42 of the order provides

authority for a quality control program.

Section 981.42(a) requires handlers to

obtain incoming inspection on almonds

received from growers to determine the

percent of inedible kernels in each lot

of any variety. Handlers are required to

report such inedible determination for

each lot received to the Board. 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 quality

control provisions.

Section 981.442 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. Handlers are

required to deliver inedible kernels

accumulated in the course of processing

to Board-approved accepted users of

such product in order to satisfy the

disposition obligation. Accepted users

then dispose of inedible kernels to nonhuman consumption outlets. Because

inedible kernels are considered unfit for

human consumption, 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.

Accepted users of inedible almonds

file an application with the Board

specifying certain terms and conditions

with which they will voluntarily abide.

The application also indicates they will

dispose of the inedible almonds

received from handlers in one or more

of the following manners: crushing into

oil; manufacturing into animal feed; or

feeding directly to animals. The Board

staff reviews and approves accepted

user applications on an annual basis.

Section 981.442(a)(7) of the rules and

regulations lists eligibility criteria for

accepted users. These criteria are

applied by the Board when reviewing

and approving accepted users. However,

the regulations do not specifically

address when the Board may deny or

revoke accepted user status. Situations
41710 Federal Register / Vol. 63, No. 150 /Wednesday, August 5, 1998 /Rules and Regulations

have occurred in the past wherein

accepted users have failed to completely

meet these conditions, and the Board

could not be assured the inedible

almonds were being disposed of in nonhuman consumption outlets.

The Board met on March 25, 1998,

and unanimously recommended adding

language to § 981.442(a)(7) of the

administrative rules and regulations

stating that an accepted user’s status

may be denied or revoked if the

eligibility requirements are not met or if

the terms and conditions agreed to in

the accepted user application are not

met. The Board recommended that this

change be made effective by the

beginning of the crop year (August 1,

1998), or as soon as possible thereafter,

so that this action coincides with the

approval cycle for accepted user

applications.

This change provides a clear

foundation of understanding between

the Board, handlers, and accepted users.

This action will assist in maintaining

the integrity of the Board’s quality

control program by providing clear

authority to deny or revoke accepted

user status. This will help to ensure

inedible almonds are properly disposed

of in non-human consumption outlets,

which is in the interest of producers,

handlers, and consumers.

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 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.

There are currently 23 accepted users

of inedible almonds approved by the

Board. Accepted users may enter into a

voluntary agreement with the Board to

function as an outlet to which handlers

can ship inedible almonds to satisfy an

order obligation. While data concerning

these entities is limited, based on a

review of the quantity of inedible

almonds delivered to each entity, it is

believed that the majority may be

classified as small entities.

This rule revises the quality control

provisions of the administrative rules

and regulations issued under the

California almond order. 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 accepted users of such product.

Accepted users are approved annually

by the Board.

Section 981.442(a)(7) of the order’s

administrative rules and regulations

provides criteria which accepted users

must meet. This rule revises this section

to specify that an accepted user’s status

may be denied or revoked if the criteria

are not met. This rule will help

maintain the integrity of the Board’s

quality control program.

This change is not expected to impact

handlers, other than to clarify to them

that an accepted user’s status may be

denied or revoked. Handlers are

provided a listing of approved accepted

users so they know who they can

deliver inedible material to and receive

credit against their obligation. In the

event an application for accepted user

status is denied or an accepted user’s

status is revoked, handlers will be

notified by Board staff and provided an

updated listing.

This rule only impacts applicants for

accepted user status, or accepted users

in the sense that it clarifies that

accepted user status may be denied or

revoked if the terms and conditions set

forth in the rules and regulations and

the accepted user application are not

met. Accepted users are approved

entities to which handlers may deliver

inedible almonds and receive credit

against their inedible disposition

obligation. Accepted users voluntarily

agree to meet certain terms and

conditions so the Board may be assured

that inedible almonds do not enter

human consumption channels. If these

dealers in inedible almonds do not agree

to the terms and conditions, they are not

approved by the Board. However, they

may still operate in the business,

although handlers do not receive credit

against their inedible disposition

obligation if they deliver product to

such non-approved entities. Situations

have occurred in the past wherein

accepted users have failed to completely

meet these conditions, and the Board

could not be assured the inedible

almonds were being disposed of in nonhuman consumption outlets.

One alternative to this rule would be

to maintain the regulatory language as it

currently exists, in which case there

would be no clarification. Another

alternative would be to specify at length

all possible reasons for denying or

revoking an accepted user’s status. The

first alternative fails to address the

issue, and the second would require

unnecessary lengthy additions to

regulatory language, and may be

incomplete.

This rule imposes no 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

sector agencies. 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

approved by the Office of Management

and Budget (OMB) and have been

assigned OMB No. 0581–0071. Finally,

the Department has not identified any

relevant Federal rules that duplicate,

overlap or conflict with this rule.

In addition, 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 March 25, 1998, meeting was a

public meeting and all entities, both

large and small, were able to express

their views on this issue. The Board

itself is composed of 10 members, of

which 5 are producers and 5 are

handlers.

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 February 25, 1998,
Federal Register / Vol. 63, No. 150 /Wednesday, August 5, 1998 /Rules and Regulations 41711

and discussed this issue. That meeting

was also a public meeting and both large

and small entities were able to

participate and express their views.

A proposed rule concerning this

action was published in the Federal

Register on June 17, 1998 (63 FR 33010).

Copies of the rule were mailed to all

Board members and almond handlers.

Finally, the rule was made available

through the Internet by the Office of the

Federal Register. A 30-day comment

period ending July 17, 1998, was

provided to allow interested persons to

respond to the proposal.

One comment was received in

response to the proposed rule. The

commenter, a marketing cooperative

representing California almond growers,

supported the proposal. The commenter

believes that denying or revoking

accepted user status is the principal

method that the Board has to ensure that

only users that dispose of inedible

almonds in proper channels are

approved by the Board.

After consideration of all relevant

matter presented, including the

information and recommendation

submitted by the Board, the comment

received, 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 beginning of the

1998–99 crop year is August 1, 1998,

and the rule needs to be in effect as soon

as possible so this action coincides with

the approval cycle for accepted user

applications. Further, handlers are

aware of this rule, which was

recommended at a public meeting. Also,

a 30-day comment period was provided

for in the proposed rule, and one

comment was received which supported

the change.

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.

2. Section 981.442 is amended by

adding a new paragraph (a)(7)(iv) to

read as follows:

§ 981.442 Quality Control.

(a) * * *

(7) * * *

(iv) The Board may deny or revoke

accepted user status at any time if the

applicant or accepted user fails to meet

the terms and conditions of § 981.442,

or if the applicant or accepted user fails

to meet the terms and conditions set

forth in the accepted user application

(ABC Form 34).

* * * * *

Dated: July 30, 1998.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable

Programs.

[FR Doc. 98–20913 Filed 8–4–98; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1446

RIN: 0560–AF56

Cleaning and Reinspection of Farmers

Stock Peanuts

AGENCY: Commodity Credit Corporation,

USDA.

ACTION: Interim rule with request for

comments.

SUMMARY: This rule amends regulations

for the peanut price support program to,

pending comment, ease conditions for

marketing Segregation 3 peanuts by

allowing the peanuts to be

reconditioned and regraded in certain

limited instances. Peanuts are graded as

‘‘Segregation 3’’ peanuts when they are

found by visual inspection to have

Aspergillus flavus (A. flavus) mold. This

rule would allow a farmer whose

peanuts were found at a buying point

inspection to have the mold to reclean

those peanuts at the buying point and

have them visually reinspected within

24 hours. The farmer could obtain such

a re-inspection only once for any given

lot. This rule follows litigation in which

all segments of the industry were

involved and buying point inspection

procedures were at issue. This rule is

issued as an interim rule to allow relief

with respect to the upcoming crop (the

1998 crop) which should come to

market shortly. However, comments on

all inspection options related to the

price support program for peanuts are

solicited and should be offered by all

interested parties.

DATES: Effective August 5, 1998.

Comments must be received on or

before September 4, 1998 to be assured

consideration. Comments regarding

information collection must be received

on or before October 5, 1998 to be

assured consideration.

ADDRESSES: Submit comments on the

interim rule to: Director, Tobacco and

Peanuts Division, Farm Service Agency,

U.S. Department of Agriculture, STOP

0514, 1400 Independence Avenue, SW,

Washington, D.C., 20250–0514. All

written submissions made pursuant to

this rule will be made available for

public inspection in Room 5750 South

Building, USDA, between the hours of

8:15 a.m. and 4:45 p.m., during regular

Federal workdays.

FOR FURTHER INFORMATION CONTACT:

David Kincannon, (202) 720–7914.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

For purposes of Executive Order

12866, this rule has been determined to

be not significant and has not been

reviewed by the Office of Management

and Budget (OMB).

Regulatory Flexibility Act

The Regulatory Flexibility Act is not

applicable to this interim rule because

the Commodity Credit Corporation is

not required by 5 U.S.C. 553 or any

other provision of law to publish a

notice of proposed rulemaking with

respect to the subject matter of this rule.

Environmental Evaluation

It has been determined by an

environmental evaluation that this

action will have no significant impact

on the quality of the human

environment. Therefore, neither an

Environmental Assessment nor an

Environmental Impact Statement is

needed.

Unfunded Federal Mandates

This rule contains no Federal

mandates (under the regulatory

provisions of Title II of the Unfunded

Mandate Reform Act of 1995 (UMRA),

for State, local, and tribal governments

or the private sector. Thus, this rule is

not subject to the requirements of

sections 202 and 205 of the UMRA.

Federal Assistance Program

The title and number of the Federal

Assistance Program, as found in the

Catalog of Federal Domestic Assistance,

to which this interim rule applies are:

Commodity Loans and Purchases—

10.051.

Executive Order 12372

This program is not subject to the

provisions of Executive Order 12372,

which requires intergovernmental

consultation with State and local

officials. See the Notice related to 7 CFR