9344 Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Rules and Regulations 

the other, and specific notice that filing 

a grievance will not extend the time 

limit for filing an appeal with the Board; 

and 

(3) Whether there is any right to 

request Board review of a final decision 

on a grievance in accordance with 

§ 1201.154(d). 

■ 5. Section 1201.22 is amended by 

revising paragraph (b)(2) to read as 

follows: 

§ 1201.22 Filing an appeal and responses 

to appeals. 

(b) * * * 

(2) The time limit prescribed by 

paragraph (b)(1) of this section for filing 

an appeal does not apply where a law 

or regulation establishes a different time 

limit or where there is no applicable 

time limit. No time limit applies to 

appeals under the Uniformed Services 

Employment and Reemployment Rights 

Act (Pub. L. 103–353), as amended; see 

part 1208 of this title. See part 1208 of 

this title for the statutory filing time 

limits applicable to appeals under the 

Veterans Employment Opportunities 

Act (Pub. L. 105–339). See part 1209 of 

this title for the statutory filing time 

limits applicable to whistleblower 

appeals and stay requests. 

* * * * * 

PART 1210—[REMOVED AND 

RESERVED] 

■ 6. Part 1210 is removed and reserved. 

William D. Spencer, 

Clerk of the Board. 

[FR Doc. E9–4290 Filed 3–3–09; 8:45 am] 

BILLING CODE 7400–01–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 984 

[Doc. No. AMS–FV–08–0093; FV09–984–2 

FIR] 

Walnuts Grown in California; 

Decreased Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

final rule which decreased the 

assessment rate established for the 

California Walnut Board (Board) for the 

2008–09 and subsequent marketing 

years from $0.0158 to $0.0131 per 

kernelweight pound of assessable 

walnuts. The Board locally administers 

the marketing order which regulates the 

handling of walnuts grown in 

California. Assessments upon walnut 

handlers are used by the Board to fund 

reasonable and necessary expenses of 

the program. The marketing year began 

September 1 and ends August 31. The 

assessment rate will remain in effect 

indefinitely unless modified, 

suspended, or terminated. 

DATES: Effective Date: April 3, 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. Under the marketing order now 

in effect, California walnut handlers are 

subject to assessments. Funds to 

administer the order are derived from 

such assessments. It is intended that the 

assessment rate as issued herein will be 

applicable to all assessable walnuts 

beginning September 1, 2008, and 

continue until amended, suspended, or 

terminated. 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 decreased the assessment 

rate established for the Board for the 

2008–09 and subsequent marketing 

years from $0.0158 to $0.0131 per 

kernelweight pound of assessable 

walnuts. 

The California walnut marketing 

order provides authority for the Board, 

with the approval of USDA, to formulate 

an annual budget of expenses and 

collect assessments from handlers to 

administer the program. The members 

of the Board are producers and handlers 

of California walnuts. They are familiar 

with the Board’s needs and the costs for 

goods and services in their local area 

and are thus in a position to formulate 

an appropriate budget and assessment 

rate. The assessment rate is formulated 

and discussed at a public meeting. 

Thus, all directly affected persons have 

an opportunity to participate and 

provide input. 

For the 2008–09 and subsequent 

marketing years, the Board 

recommended, and USDA approved, an 

assessment rate of $0.0158 per 

kernelweight pound of assessable 

walnuts that would continue in effect 

from year to year unless modified, 

suspended, or terminated by USDA 

upon recommendation and information 

submitted by the Board or other 

information available to the USDA. The 

Board recommended this rate in May 

2008 along with expenditures of 

$4,594,300 for 2008–09. 

The Board met on September 12, 

2008, and unanimously recommended 

reducing its 2008–09 expenditures to 

$3,809,000 and reducing the assessment 

rate to $0.0131 per kernelweight pound 

of assessable walnuts. The assessment 

rate of $0.0131 per kernelweight pound 

of assessable walnuts is $0.0027 per 

kernelweight pound lower than the rate 

previously in effect. The decreased 

assessment rate is primarily due to an 

$800,000 decrease in domestic market 

development expenditures previously 

recommended for the 2008–09 

marketing year. 

Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Rules and Regulations 9345 

The following table compares major 

budget expenditures recommended by 

the Board in May 2008 and September 

2008 for the 2008–09 marketing year: 

Budget expense categories Original 

2008–09 

Revised 

2008–09 

Employee Expenses .................................................................................................................................................... $410,500 $410,500 

Travel/Board Expenses ............................................................................................................................................... 100,000 100,000 

Office Costs/Annual Audit ............................................................................................................................................ 142,500 142,500 

Program Expenses Including Research: 

Controlled Purchases ........................................................................................................................................... 5,000 5,000 

Crop Acreage Survey ........................................................................................................................................... ...................... ......................

Crop Estimate ....................................................................................................................................................... 110,000 110,000 

Production Research * .......................................................................................................................................... 835,000 835,000 

Domestic Market Development ............................................................................................................................ 2,935,000 2,135,000 

Reserve for Contingency ...................................................................................................................................... 56,300 71,000 

* Includes Research Director’s compensation and a contingency for production research issues. 

The assessment rate recommended by 

the Board was derived by dividing 

anticipated expenses by expected 

shipments of California walnuts 

certified as merchantable. Merchantable 

shipments for the year are estimated at 

290,773,800 kernelweight pounds 

which should provide slightly over 

$3,809,000 in assessment income and 

allow the Board to cover its expenses. 

Unexpended funds may be retained in 

a financial reserve, provided that funds 

in the financial reserve do not exceed 

approximately two years’ budgeted 

expenses. If not retained in a financial 

reserve, unexpended funds may be used 

temporarily to defray expenses of the 

subsequent marketing year, but must be 

made available to the handlers from 

whom collected within 5 months after 

the end of the year, according to 

§ 984.69 of the order. 

The estimate for merchantable 

shipments is based on historical data, 

which is the prior year’s production of 

323,082 tons (inshell). Pursuant to 

§ 984.51(b) of the order, this figure was 

converted to a merchantable 

kernelweight basis using a factor of 0.45 

(323,082 tons × 2,000 pounds per ton × 

0.45). 

The assessment rate will continue in 

effect indefinitely unless modified, 

suspended, or terminated by USDA 

upon recommendation and information 

submitted by the Board or other 

available information. 

Although this assessment rate is 

effective for an indefinite period, the 

Board will continue to meet prior to or 

during each marketing year to 

recommend a budget of expenses and 

consider recommendations for 

modification of the assessment rate. The 

dates and times of Board meetings are 

available from the Board or USDA. 

Board meetings are open to the public 

and interested persons may express 

their views at these meetings. USDA 

will evaluate Board recommendations 

and other available information to 

determine whether modification of the 

assessment rate is needed. Further 

rulemaking would be undertaken as 

necessary. The Board’s 2008–09 budget 

and those for subsequent marketing 

years will be reviewed and, as 

appropriate, approved by USDA. 

Final Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) (5 

U.S.C. 601–612), 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. 

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. Small agricultural 

service firms are 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 are defined as 

those having annual receipts of less than 

$750,000. 

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 decreased the assessment 

rate established for the Board and 

collected from handlers for the 2008–09 

and subsequent marketing years from 

$0.0158 per kernelweight pound of 

assessable walnuts to $0.0131 per 

kernelweight pound of assessable 

walnuts. The Board unanimously 

recommended 2008–09 expenditures of 

$3,809,000 and an assessment rate of 

$0.0131 per kernelweight pound of 

assessable walnuts. The assessment rate 

of $0.0131 is $0.0027 lower than the rate 

previously in effect. The quantity of 

assessable walnuts for the 2008–09 

marketing year is estimated at 323,082 

tons. Thus, the $0.0131 rate should 

provide slightly over $3,809,000 in 

9346 Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Rules and Regulations 

assessment income and be adequate to 

meet the year’s expenses. The decreased 

assessment rate is primarily due to an 

$800,000 decrease in domestic market 

development expenditures. 

The following table compares major 

budget expenditures recommended by 

the Board in May 2008 and September 

2008 for the 2008–09 marketing year: 

Budget expense categories Original 

2008–09 

Revised 

2008–09 

Employee Expenses .................................................................................................................................................... $410,500 $410,500 

Travel/Board Expenses ............................................................................................................................................... 100,000 100,000 

Office Costs/Annual Audit ............................................................................................................................................ 142,500 142,500 

Program Expenses Including Research: 

Controlled Purchases ........................................................................................................................................... 5,000 5,000 

Crop Acreage Survey ........................................................................................................................................... ...................... ......................

Crop Estimate ....................................................................................................................................................... 110,000 110,000 

Production Research * .......................................................................................................................................... 835,000 835,000 

Domestic Market Development ............................................................................................................................ 2,935,000 2,135,000 

Reserve for Contingency ...................................................................................................................................... 56,300 71,000 

* Includes Research Director’s compensation and a contingency for production research issues. 

The Board reviewed and unanimously 

recommended 2008–09 expenditures of 

$3,809,000. Prior to arriving at this 

budget, the Board considered alternative 

expenditure levels but ultimately 

decided that the recommended levels 

were reasonable to properly administer 

the order. The assessment rate 

recommended by the Board was derived 

by dividing anticipated expenses by 

expected shipments of California 

walnuts certified as merchantable. 

Merchantable shipments for the year are 

estimated at 290,773,800 kernelweight 

pounds which should provide 

$3,809,000 in assessment income and 

allow the Board to cover its expenses. 

Unexpended funds may be retained in 

a financial reserve, provided that funds 

in the financial reserve do not exceed 

approximately two years’ budgeted 

expenses. If not retained in a financial 

reserve, unexpended funds may be used 

temporarily to defray expenses of the 

subsequent marketing year, but must be 

made available to the handlers from 

whom collected within 5 months after 

the end of the year, according to 

§ 984.69 of the order. 

According to NASS, the season 

average grower price for years 2006 and 

2007 were $1,630 and $2,320 per ton, 

respectively. These prices provide a 

range within which the 2008–09 season 

average price could fall. Dividing these 

average grower prices by 2,000 pounds 

per ton provides an inshell price per 

pound range of $0.815 to $1.16. 

Dividing these inshell prices per pound 

by the 0.45 conversion factor (inshell to 

kernelweight) established in the order 

yields a 2008–09 price range estimate of 

$1.81 to $2.58 per kernelweight pound 

of assessable walnuts. 

To calculate the percentage of grower 

revenue represented by the assessment 

rate, the assessment rate of $0.0131 per 

kernelweight pound is divided by the 

low and high estimates of the price 

range. The estimated assessment 

revenue for the 2008–09 marketing year 

as a percentage of total grower revenue 

would thus likely range between 0.508 

and 0.724 percent. 

This action continues in effect the 

action that decreased the assessment 

obligation imposed on handlers. 

Assessments are applied uniformly on 

all handlers, and some of the costs may 

be passed on to producers. However, 

decreasing the assessment rate reduces 

the burden on handlers, and may reduce 

the burden on producers. In addition, 

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 action 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. In addition, as noted in 

the initial regulatory flexibility analysis, 

USDA has not identified any relevant 

Federal rules that duplicate, overlap, or 

conflict with this rule. 

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. 

An interim final rule concerning this 

action was published in the Federal 

Register on December 4, 2008 (73 FR 

73761). Copies of that rule were also 

mailed or sent via facsimile to all 

walnut handlers. Finally, the interim 

final rule was made available through 

the Internet by USDA and the Office of 

the Federal Register. A 60-day comment 

period was provided for interested 

persons to respond to the interim final 

rule. The comment period ended on 

February 2, 2009, and no comments 

were received. 

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=Template

N&page=MarketingOrders

SmallBusinessGuide. 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 

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. 

List of Subjects in 7 CFR Part 984 

Walnuts, Marketing agreements, Nuts, 

Reporting and recordkeeping 

requirements. 

PART 984—WALNUTS GROWN IN 

CALIFORNIA 

■ Accordingly, the interim final rule 

amending 7 CFR part 984, which was 

published at 73 FR 73761 on December 

4, 2008, is adopted as a final rule 

without change. 

Dated: February 26, 2009. 

Robert C. Keeney, 

Acting Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. E9–4591 Filed 3–3–09; 8:45 am] 

BILLING CODE 3410–02–P