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

60405 

Vol. 70, No. 200 

Tuesday, October 18, 2005 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 981 

[Docket No. FV05–981–1 FIR] 

Almonds Grown in California; Revision 

to Requirements Regarding Credit for 

Promotion and Advertising 

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 revising the requirements 

regarding credit for promotion and 

advertising activities under the 

administrative rules and regulations of 

the California almond marketing order 

(order). The order regulates the handling 

of almonds grown in California and is 

administered locally by the Almond 

Board of California (Board). The order is 

funded through the collection of 

assessments from almond handlers. 

Under the order, handlers may receive 

credit towards their assessment 

obligation for certain expenditures for 

marketing promotion activities, 

including paid advertising. This rule 

continues in effect the action that 

revised the requirements regarding the 

activities for which handlers may 

receive such credit. The changes expand 

the credit allowed for certain 

promotional activities, and help to 

clarify and simplify the regulations. 

DATES: Effective Date: November 17, 

2005. 

FOR FURTHER INFORMATION CONTACT: 

Maureen T. Pello, Senior Marketing 

Specialist, California Marketing Field 

Office, Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (559) 487– 

5901, Fax: (559) 487–5906; or George 

Kelhart, Technical Advisor, 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 

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 Order No. 

981, as amended (7 CFR part 981), 

regulating the handling of almonds 

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 an 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 revised the requirements 

regarding credit for promotion and 

advertising activities prescribed under 

the administrative rules and regulations 

of the order. Under the order, handlers 

may receive credit towards their 

assessment obligation for certain 

expenditures for marketing promotion 

activities, including paid advertising. 

This rule continues to revise the 

requirements regarding the activities for 

which handlers may receive such credit. 

The changes expand the credit allowed 

for certain promotional activities, and 

help to clarify and simplify the 

regulations. This action was 

unanimously recommended by the 

Board at a meeting on May 12, 2005. 

The order provides authority for the 

Board to incur expenses for 

administering the order and to collect 

assessments from handlers to cover 

these expenses. Section 981.41(a) 

provides authority for the Board to 

conduct marketing promotion projects, 

including projects involving paid 

advertising. Section 981.41(c) allows the 

Board to credit a handler’s assessment 

obligation with all or a portion of his or 

her direct expenditures for marketing 

promotion, including paid advertising 

that promotes the sale of almonds, 

almond products, or their uses. Section 

981.41(e) allows the Board to prescribe 

rules and regulations regarding such 

credit for market promotion, including 

paid advertising activities. Those 

regulations are prescribed in § 981.441. 

The Board recommended the following 

changes to those regulations. 

Increasing Credit for Internet 

Promotion Activities 

Section 981.441(e)(4)(ii)(K) allows 

handlers to receive credit against their 

assessment obligation for the 

development and use of Web-site 

activities on the Internet for advertising 

and public relations purposes. Prior to 

implementation of the interim final rule, 

allowable credit was limited to $5,000 

per year, and no credit was given for 

costs regarding E-commerce (which is 

equivalent to opening a store). 

The Board recommended increasing 

the credit allowed for Internet 

promotional activities from $5,000 to 

$20,000 per year, adding credit for Ecommerce (except for administration 

costs), and clarifying that no credit 

would be given to Intranet (inter-office 

60406 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

communication network). The Board 

determined that administration costs 

associated with E-commerce such as 

online payments and processing fees do 

not directly promote almonds and 

should thus be excluded from 

reimbursement under the program. This 

action expands the allowable credit and 

activities concerning Web sites and thus 

provides handlers more flexibility. 

Section 981.441(e)(4)(ii)(K) continues to 

be revised accordingly. 

Clarification Regarding Final 

Reimbursement Claims 

In order for handlers to receive credit 

against their assessment obligation for 

their own promotional expenditures, the 

Board must determine that such 

expenditures meet applicable 

requirements. Handlers must submit 

claims with appropriate documentation 

to the Board. Credit may be granted in 

the form of a payment from the Board, 

or as an offset to the Board’s assessment 

if activities are conducted and 

documented to the satisfaction of the 

Board within certain time frames 

throughout the crop year. 

Section 981.441(e)(6)(iv) requires 

handlers to submit a statement of all 

outstanding credit-back commitments in 

full to the Board as of the close of the 

crop year (July 31) within 15 days after 

the crop year ends (August 15). 

Additionally, handlers must submit 

final claims pertaining to such 

outstanding commitments to the Board 

within 76 days after the crop year ends 

(October 15). 

The Board recommended adding 

language to this section to clarify that 

final claims must be submitted ‘‘with all 

required elements,’’ which includes 

invoices, proof of payment, and similar 

documentation. This will allow Board 

staff to process the final claims for a 

crop year and complete the necessary 

accounting functions to close the books 

for that crop year in a timely manner. 

Other comparable deadlines throughout 

the credit-back regulations contain this 

language. This addition helps to 

facilitate program administration. 

Section 981.441(e)(6)(iv) continues to be 

revised accordingly. 

Removal of Obsolete Language 

Prior to implementation of the interim 

final rule § 981.441 contained language 

throughout the section that referred to 

the 1998–99 crop year only. The Board 

recommended removing this language to 

help clarify and simplify the regulation. 

Section 981.441 continues to be revised 

accordingly. 

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. Thus, both statutes have small 

entity orientation and compatibility. 

There are approximately 6,000 

producers of almonds in the production 

area and approximately 115 handlers 

subject to regulation under the 

marketing order. Small agricultural 

producers are defined by the Small 

Business Administration (13 CFR 

121.201) as those having annual receipts 

of less than $750,000, and small 

agricultural service firms are defined as 

those whose annual receipts are less 

than $6,000,000. 

Data for the 2003–04 crop year 

indicate that about 48 percent of the 

handlers shipped over $6,000,000 worth 

of almonds and about 52 percent of the 

handlers shipped under $6,000,000 

worth of almonds. In addition, based on 

production and grower price data 

reported by the California Agricultural 

Statistics Service (CASS), and the total 

number of almond growers, the average 

annual grower revenue is estimated to 

be approximately $261,248. Based on 

the foregoing, the majority of handlers 

and producers of almonds may be 

classified as small entities. 

This rule continues in effect the 

action that revised § 981.441 of the 

order’s administrative rules and 

regulations regarding credit-back 

promotion and advertising. Under the 

order, handlers may receive credit 

towards their assessment expenditures 

for marketing promotion activities, 

including paid advertising. This rule 

continues to increase the credit allowed 

for Internet promotion activities from 

$5,000 to $20,000 per year, adds credit 

for E-commerce (excluding 

administration), and clarifies that final 

reimbursement claims submitted to the 

Board by handlers for a crop year must 

include all applicable documentation. 

This final rule continues to remove 

obsolete language from the regulations 

that was applicable to the 1998–99 crop 

year. 

Regarding the impact of this rule on 

affected entities, it is estimated that, for 

the 2003–04 crop year, about 18 percent 

of the industry’s handlers participated 

in the credit-back program administered 

under the order. Increasing the credit 

allowed for Internet promotion activities 

and adding credit for E-commerce 

provides additional opportunities for 

handlers. The changes to specify that 

handlers must submit final claims with 

all required elements help to facilitate 

program administration. Finally, 

removing obsolete language clarifies and 

simplifies the regulations. 

Regarding alternatives, the Board 

formed a task force that met on January 

26, March 1, and April 1, 2005, to 

review the credit-back regulations. The 

task force considered several changes to 

the regulations, including whether 

handlers should receive credit for travel 

to trade shows, sponsorships, and 

sweepstakes. The task force also 

reviewed a handbook that Board staff 

developed to facilitate administration of 

the credit-back regulations. The task 

force’s recommendations were reviewed 

by the Board’s Public Relations and 

Advertising Committee on May 11, 

2005, and by the full Board on May 12, 

2005. Ultimately, the Board decided that 

the changes discussed herein are 

warranted at this time. 

This action imposes no additional 

reporting or recordkeeping requirements 

on either small or large California 

almond handlers. 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 

previously approved by the Office of 

Management and Budget and assigned 

OMB. No. 0581–0178. 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. 

Finally, USDA has not identified any 

relevant Federal rules that duplicate, 

overlap, or conflict with this rule. 

Additionally, the meetings were 

widely publicized throughout the 

California almond industry and all 

interested persons were invited to 

attend the meetings and participate in 

deliberations on all issues. Like all task 

force, committee and Board meetings, 

those meetings held on January 26, 

March 1, April 1, May 11, and May 12, 

2005, were all public meetings and all 

entities, both large and small, were able 

to express views on this issue. Finally, 

interested persons were invited to 

submit information on the regulatory 

and informational impacts of this action 

on small businesses. 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60407 

1See, for example, section 135(a)(2)(B) (the 

definition of ‘‘medium base compact fluorescent 

lamp’’); section 135(a)(3) (the definition of 

‘‘commercial prerinse spray valve’’); and section 

135(c)(4) (standards for medium base compact 

fluorescent lamps). 

An interim final rule concerning this 

action was published in the Federal 

Register on June 27, 2005. Copies of the 

rule were mailed or sent via facsimile by 

the Board’s staff to all Board members, 

alternates and almond handlers. In 

addition, the rule was made available 

through the Internet by the Office of the 

Federal Register and USDA. That rule 

provided a 30-day comment period 

which ended on August 26, 2005. 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/ 

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. 

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 finalizing the interim rule, without 

change as published in the Federal 

Register (70 FR 36816 on June 27, 2005) 

will tend to effectuate the declared 

policy of the Act. 

List of Subjects in 7 CFR Part 981 

Almonds, Marketing agreements, 

Nuts, Reporting and recordkeeping 

requirements. 

PART 981—ALMONDS GROWN IN 

CALIFORNIA 

Accordingly, the interim final rule 

amending 7 CFR part 981 which was 

published at 70 FR 36816 on June 27, 

2005, is adopted as a final rule without 

change. 

Dated: October 13, 2005. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 05–20859 Filed 10–17–05; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF ENERGY 

Office of Energy Efficiency and 

Renewable Energy 

10 CFR Parts 430 and 431 

RIN 1904–AB54 

Energy Conservation Standards for 

Certain Consumer Products and 

Commercial and Industrial Equipment 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final rule; technical 

amendment. 

SUMMARY: The Department of Energy 

(DOE) is publishing this technical 

amendment to place in the Code of 

Federal Regulations the energy 

conservation standards, and related 

definitions, that Congress prescribed in 

the Energy Policy Act of 2005 for certain 

consumer products and commercial and 

industrial equipment. 

DATES: Effective Date: October 18, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Linda Graves, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Program, EE–2J, 1000 

Independence Avenue, SW., 

Washington, DC 20585–0121, (202) 586–

1851, e-mail: linda.graves@ee.doe.gov, 

or Thomas DePriest, Esq., U.S. 

Department of Energy, Office of the 

General Counsel, Forrestal Building, 

GC–72, 1000 Independence Avenue, 

SW., Washington, DC 20585, (202) 586–

9507, e-mail: 

Thomas.DePriest@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Summary of Today’s Action 

III. Procedural Requirements 

IV. Approval of the Office of the Secretary 

I. Background 

The Energy Policy Act of 2005 

(EPACT 2005) (Pub. L. 109–58) was 

enacted on August 8, 2005. Among the 

provisions of Subtitle C of Title I of 

EPACT 2005 are provisions that amend 

Part B of Title III of the Energy Policy 

and Conservation Act (EPCA) (42 U.S.C. 

6291–6309), which provides for an 

energy conservation program for 

consumer products other than 

automobiles, and Part C of Title III of 

EPCA (42 U.S.C. 6311–6317), which 

provides for a program, similar to the 

one in Part B, for certain commercial 

and industrial equipment. In addition to 

provisions directing DOE to undertake 

rulemakings to promulgate new or 

amended energy conservation standards 

for various consumer products and 

commercial and industrial equipment, 

Congress itself prescribed new 

efficiency standards and related 

definitions for certain consumer 

products and commercial and industrial 

equipment. 

By today’s action, DOE is placing in 

the Code of Federal Regulations (CFR), 

for the benefit of the public, the energy 

conservation standards and related 

definitions that Congress has prescribed 

for various consumer products and 

commercial and industrial equipment. 

In this technical amendment, DOE is not 

exercising any of the discretionary 

authority that Congress has provided in 

EPACT 2005 for the Secretary of Energy 

to revise, by rule, several of the product 

or equipment definitions and energy 

conservation standards.1 DOE may 

exercise this discretionary authority at a 

later time in rulemakings to establish 

test procedures or efficiency standards 

for these products and equipment. 

II. Summary of Today’s Action 

DOE is placing the new energy 

conservation standards and related 

definitions into 10 CFR part 430 

(‘‘Energy Conservation Program for 

Consumer Products’’) or 10 CFR part 

431 (‘‘Energy Efficiency Program for 

Certain Commercial and Industrial 

Equipment’’), as appropriate given the 

nature or type of the product or 

equipment. Apparently due to an error 

in legislative drafting, EPACT 2005 

includes provisions dealing with the 

definitions, test procedures and 

standards for several types of 

commercial equipment in a section that 

amends sections 321, 323 and 325 of 

Part B of EPCA. Part B contains 

provisions for the ‘‘Energy Conservation 

Program for Consumer Products Other 

Than Automobiles.’’ DOE anticipates 

that this error will be corrected through 

legislation, and that the provisions will 

become amendments to Part C of EPCA 

for ‘‘Certain Industrial Equipment.’’

Because the location of the provisions 

within the statute and the Code of 

Federal Regulations does not affect 

either their substance or applicable 

procedures, DOE is placing them in the 

appropriate CFR part based on their 

nature or type. DOE provides a ‘‘crosswalk’’ in Table 1 that shows the location 

of the standards for the products and 

equipment in EPACT 2005 and in the 

Code of Federal Regulations.