Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations 50151 

and future costs of supervising the 

performance of official agencies. A 

second response did not respond to the 

proposed action. Consequently, GIPSA 

is implementing the fee changes as they 

were proposed. 

Executive Orders 12866 and 12988 

This rule has been determined to be 

non-significant for the purposes of 

Executive Order 12866 and therefore 

has not been reviewed by the OMB. This 

rule has been reviewed under Executive 

Order 12988, Civil Justice Reform. This 

action is not intended to have a 

retroactive effect. The USGSA provides 

in Sec. 87g that no subdivision may 

require or impose any requirements or 

restrictions concerning the inspection, 

weighing, or description of grain under 

the Act. Otherwise, this rule will not 

preempt any State or local laws, 

regulations, or policies unless they 

present irreconcilable conflict with this 

rule. There are no administrative 

procedures that must be exhausted prior 

to any judicial challenge to the 

provisions of this rule. 

Paperwork Reduction Act and 

Government Paperwork Elimination Act 

In compliance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

Chapter 35), the information collection 

and recordkeeping requirements 

included in this rule has been approved 

by the OMB under control number 

0580–0013. 

GIPSA is committed to compliance 

with the Government Paperwork 

Elimination Act, which requires 

Government agencies, in general, to 

provide the public the option of 

submitting information or transacting 

business electronically to the maximum 

extent possible. 

Regulatory Flexibility Act Certification 

GIPSA has determined that this rule 

does not have a significant economic 

impact on a substantial number of small 

entities, as defined in the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.), 

because the majority of applicants (grain 

industry) that apply for these official 

services, and are subjected to GIPSA 

supervision fees, do not meet the 

requirements for small entities. This 

rule will affect entities engaged in 

shipping grain to and from points 

within the United States and exporting 

grain from the United States. GIPSA 

estimates there are approximately 9,500 

off-farm storage facilities and 18 export 

elevators in the United States that could 

receive services from delegated States or 

designated agencies. Official services 

are available from 7 delegated States 

and 49 designated agencies. For 

clarification, any and all grain that is 

exported from the U.S. export port 

locations must, as required by the 

USGSA, be inspected and/or weighed. 

These services are either performed by 

GIPSA or delegated States. Further, 

some grain exported from interior 

locations may also require inspection 

and/or weighing services unless the 

services are waived as provided in 

section 800.18 of the regulations. These 

services are provided by designated 

agencies. The USGSA does not require 

inspection or weighing services for grain 

marketed within the U.S. Consequently, 

these services are permissive and may 

be performed by official agencies. The 

USGSA (7 U.S.C. 71 et seq.) authorizes 

GIPSA to provide supervision of official 

grain inspection and weighing services, 

and to charge and collect reasonable 

fees for performing these services. The 

fees collected are to cover, as nearly as 

practicable, GIPSA’s costs for 

performing these services, including 

related administrative and supervisory 

costs. 

GIPSA realizes that any increase in 

supervision fees will be charged by 

official agencies to the users (grain 

industry) of the official grain inspection 

and weighing system. 

Although, the overall effect of this 

rule will be passed on to the users of 

official grain inspection and weighing 

services, mostly large corporations, 

David R. Shipman, Acting 

Administrator, GIPSA, has determined 

that this rule will not have a significant 

impact on a substantial number of small 

entities as defined in the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.). 

List of Subjects in 7 CFR Part 800 

Administrative practice and 

procedure; Grain. 

■ For the reasons set out in the 

preamble, 7 CFR part 800 is amended as 

follows: 

PART 800—GENERAL REGULATIONS 

■ 1. The authority citation for part 800 

continues to read as follows: 

Authority: Pub. L. 94–582, 90 Stat. 2867, 

as amended (7 U.S.C. 71 et seq.) 

■ 2. In § 800.71, paragraph(a), Schedule 

C is amended by removing Tables 1 and 

2 and adding introductory text in their 

place to read as follows: 

§ 800.71 Fees assesses by the Service. 

(a) * * * 

SCHEDULE C—FEES FOR FGIS 

SUPERVISION OF OFFICIAL 

INSPECTION AND WEIGHING 

SERVICES PERFORMED BY 

DELEGATED STATES AND/OR 

DESIGNATED AGENCIES IN THE 

UNITED STATES. 

The supervision fee is charged at 

$0.011 per metric ton inspected and/or 

weighed. 

* * * * * 

David R. Shipman, 

Acting Administrator, Grain Inspection, 

Packers and Stockyards Administration. 

[FR Doc. 05–16952 Filed 8–25–05; 8:45 am] 

BILLING CODE 3410–EN–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 984 

[Docket No. FV05–984–1 IFR] 

Walnuts Grown in California; 

Suspension of Provision Regarding 

Eligibility of Walnut Marketing Board 

Members 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Interim final rule with request 

for comments. 

SUMMARY: This rule suspends a 

provision of the walnut marketing order 

(order) pertaining to eligibility of 

members to serve on the Walnut 

Marketing Board (Board). The order 

regulates the handling of walnuts grown 

in California, and the Board is 

responsible for local administration of 

the order. This action is an interim 

measure to address a change in industry 

structure affecting cooperative 

marketing association related positions. 

This will allow the Board to continue to 

represent the industry’s interests while 

the order is amended to reflect the 

change in industry structure. The Board 

unanimously recommended a 

suspension action by mail balloting in 

early July, 2005. 

DATES: Effective August 29, 2005; 

comments received by October 25, 2005 

will be considered prior to issuance of 

a final rule. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning the proposal to: Docket 

Clerk, Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., STOP 0237, Washington, 

DC 20250–0237; Fax: (202) 720–8938, Email: moab.docketclerk@usda.gov, or 

Internet: http://www.regulations.gov. 

Comments should reference the docket 

number and the date and page number 

of this issue of Federal Register and will 

be made available for public inspection 

in the Office of the Docket Clerk during 

50152 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations 

regular business hours, or can be viewed 

at: http://www.ams.usda.gov/fv/ 

moab.html. 

FOR FURTHER INFORMATION CONTACT: 

Martin Engeler, Senior Marketing 

Specialist, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 2202 

Monterey Street, Suite 102–B, Fresno, 

California 93721; Telephone: (559) 487– 

5901, Fax: (559) 487–5906; or Kathleen 

M. Finn, Formal Rulemaking Team 

Leader, Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue SW., STOP 0237, Washington, 

DC 20250–0237; telephone: (202) 720– 

2491, or Fax: (202) 720–8938. 

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@usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Agreement 

and Order No. 984, both as amended (7 

CFR part 984), hereinafter referred to as 

the ‘‘order’’, regulating the handling of 

walnuts grown in the State of California. 

The marketing agreement and order are 

effective pursuant to 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 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

This proposal has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This proposal is not 

intended to have retroactive effect. This 

proposed rule will not preempt any 

State or local laws, regulations, or 

policies, unless they present an 

irreconcilable conflict with this 

proposed 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. A 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 suspends a provision of the 

walnut marketing order (order) 

pertaining to eligibility of members to 

serve on the Walnut Marketing Board 

(Board). The order regulates the 

handling of walnuts grown in 

California, and the Board is responsible 

for local administration of the order. 

This action is an interim measure to 

address a change in industry structure 

affecting cooperative marketing 

association related positions. This will 

allow the Board to continue to represent 

the industry’s interests while the order 

is amended to reflect the change in 

industry structure. The Board 

unanimously recommended a 

suspension action by mail balloting in 

early July, 2005. 

Section 984.35 of the order establishes 

the Board as the administrative body 

appointed by USDA to administer the 

order. That section also specifies 

composition of the Board, and allocates 

seats to cooperative and independent 

growers and handlers. The Board is 

comprised of ten members and ten 

alternate members. Two members 

represent handlers that are cooperative 

marketing associations of growers 

(cooperative handlers), and two 

members represent growers who market 

their walnuts through cooperative 

handlers. Two members represent 

handlers that are not cooperative 

marketing associations of growers 

(independent handlers), and two 

members represent growers that market 

their walnuts through independent 

handlers. One member represents 

growers that market their walnuts 

through either cooperative or 

independent handlers, whichever 

category handled over fifty percent of 

the walnuts handled by all handlers in 

the industry in the immediately 

preceding two marketing years. In 

recent years, this Board position has 

been allocated to the independent 

category. One member represents 

neither growers nor handlers (public 

member). 

Section 984.38 of the order provides, 

in part, that no person shall be selected 

or continue to serve as a member or 

alternate member of the Board unless 

that person is engaged in the business 

of the group he or she was nominated 

to represent. 

A change recently occurred in the 

walnut industry that impacts 

composition of the Board. A large 

cooperative marketing association 

recently converted to a publicly held 

corporation. The former cooperative 

association held two grower and two 

handler positions on the Board. 

In order to address this change, 

section 984.38 of the order needs to be 

suspended to allow a representative 

Board to continue in place while the 

order is amended to reflect the new 

industry structure. Therefore, the Board 

recommended through a mail ballot vote 

in early July, 2005, to suspend the order 

provision. USDA has reviewed the 

recommendation and has determined 

that suspending § 984.38 of the order 

regarding eligibility requirements of 

Board members will accomplish that 

objective. As previously discussed, 

§ 984.38 provides that no person shall 

be selected or continue to serve as a 

member or alternate member of the 

Board unless that person is engaged in 

the business of the group he or she was 

nominated to represent. 

If the eligibility requirements are not 

suspended, four of the Board members 

that represented the cooperative become 

ineligible to serve on the Board. 

However, these members continue to 

represent a significant portion of the 

industry. Suspending the order 

provision regarding eligibility of Board 

members allows a complete Board to 

remain in place. This action will enable 

a Board that is representative of the 

walnut industry to continue to 

administer the order without disruption 

while the order is being amended to 

reflect changes in the industry structure. 

This action suspends § 984.38 of the 

order entitled ‘‘Eligibility’’. This action 

is in the best interest of handlers and 

growers in the California walnut 

industry as the industry transitions 

through a structural change. 

Initial Regulatory Flexibility Act 

Pursuant to the requirements set forth 

in the Regulatory Flexibility Act (RFA), 

the Agricultural Marketing Service 

(AMS) has considered the economic 

impact of this proposal on small 

entities. Accordingly, AMS has 

prepared this initial 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 5,000 

producers of walnuts in the production 

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations 50153 

area and 50 walnut handlers subject to 

regulation under the marketing order. 

Small agricultural service firms are 

defined as those whose annual receipts 

are less than $6,000,000 and small 

agricultural producers have been 

defined by the Small Business 

Administration as those having annual 

receipts less than $750,000 (13 CFR 

121.201). 

Industry information from the Walnut 

Marketing Board indicates that 36 of the 

50 walnut handlers, or 72%, shipped 

less than $6,000,000 worth of walnuts 

and could be considered small 

businesses by the Small Business 

Administration. In addition, only an 

estimated 60 producers, or 1.2%, have 

annual receipts in excess of $750,000. 

Based on the foregoing, the majority of 

walnut producers and handlers 

regulated under the marketing order 

may be classified as small entities. 

This rule suspends provisions of the 

walnut marketing order (order) 

pertaining to eligibility of members to 

serve on the Walnut Marketing Board 

(Board). The order regulates the 

handling of walnuts grown in 

California, and the Board is responsible 

for local administration of the order. 

Specifically, this action suspends 

§ 984.38 of the order entitled 

‘‘Eligibility’’. 

Due to structural changes in the 

industry, the order provisions regarding 

Board composition no longer accurately 

reflect the industry composition. If the 

eligibility requirements are not 

suspended, four of the Board members 

that represented the cooperative become 

ineligible to serve on the Board. 

However, these members continue to 

represent a significant portion of the 

industry. Suspending the order 

provision regarding eligibility of Board 

members allows a complete Board to 

remain in place. This action will enable 

a Board that still represents the walnut 

industry to continue to administer the 

order without disruption while the 

order is being amended to reflect 

changes in the industry structure. The 

Board unanimously recommended 

suspending order language by mail 

balloting in early July, 2005. 

Alternatives to this action were 

considered. One alternative was to 

remove the former cooperative members 

from the Board, which would result in 

a 6-member Board. This was not 

considered a preferred option because it 

would limit the size of the Board. 

This rule suspends order language 

pertaining to membership eligibility on 

the Walnut Marketing Board. 

Accordingly, this action does not 

impose any additional reporting or 

recordkeeping requirements, or any 

other costs, on either small or large 

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, USDA has 

not identified any relevant Federal rules 

that duplicate, overlap, or conflict with 

this rule. Finally, interested persons are 

invited to submit information on the 

regulatory and informational impacts of 

this action on small businesses. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at the following Web site: 

http://www.ams.usda.gov/fv/moab.html. 

Any questions about the compliance 

guide should be sent to Jay Guerber at 

the previously mentioned address in the 

FOR FURTHER INFORMATION CONTACT

section. 

This rule invites comments on 

suspending order provisions regarding 

eligibility of Board members under the 

California walnut marketing order. Any 

comments received will be considered 

prior to finalization of this rule. 

After consideration of all relevant 

material presented, including the 

Board’s recommendation, and other 

information, it is found that the order 

language being suspended, as 

hereinafter set forth, no longer tends to 

effectuate the declared policy of the Act. 

Pursuant to 5 U.S.C. 553, it is also 

found and determined upon good cause 

that it is impracticable, unnecessary, 

and contrary to the public interest to 

give preliminary notice prior to putting 

this rule into effect and that good cause 

exists for not postponing the effective 

date of this rule until 30 days after 

publication in the Federal Register 

because: (1) The Board unanimously 

recommended these changes; (2) these 

changes are needed to allow a 

representative Board to remain in place 

to administer the order; and (3) this rule 

provides a 60-day comment period and 

any comments timely received will be 

considered prior to finalization of this 

rule. 

List of Subjects in 7 CFR Part 984 

Walnuts, Marketing agreements, Nuts, 

Reporting and recordkeeping 

requirements. 

■ For the reasons set forth in the 

preamble, 7 CFR part 984 is amended as 

follows: 

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 part 984, § 984.38 is suspended 

indefinitely. 

Dated: August 23, 2005. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 05–17055 Filed 8–23–05; 4:46 pm] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Parts 993 and 999 

[Docket No. FV05–993–2 FIR] 

Dried Prunes Produced in California; 

Suspension of Handling and Reporting 

Requirements, Extension of the 

Suspension of Outgoing Inspection 

and Volume Control Regulations, and 

Extension of the Suspension of the 

Prune Import Regulation 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule; affirmation of interim 

rule as final rule. 

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

final rule suspending indefinitely all 

remaining handling and most reporting 

requirements under Marketing Order 

No. 993. The marketing order regulates 

the handling of dried prunes produced 

in California and is administered locally 

by the Prune Marketing Committee 

(committee). The interim final rule 

being adopted by this action also 

indefinitely extends the suspensions of 

the outgoing inspection and prune 

import regulations and volume control 

regulations, currently temporarily 

suspended until August 1, 2006, and 

August 1, 2008, respectively. The 

interim final rule was effective August 

1, 2005. 

DATES: Effective September 26, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Terry Vawter, California Marketing 

Field Office, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA; 

telephone: (559) 487–5901, Fax: (559) 

487–5906; or Kathy Finn, Formal 

Rulemaking Team Leader, 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. 

Small businesses may request 

information on complying with this 

regulation by contacting Jay Guerber, 

Marketing Order Administration