43056 Federal Register / Vol. 73, No. 143 / Thursday, July 24, 2008 / Rules and Regulations 

increasing the availability of this critical 

information within the industry. 

Regarding the impact of this action on 

the affected entities, both large and 

small entities are expected to benefit 

from the changes, and the costs of 

compliance are not expected to be 

significantly different between large and 

small entities. 

This rule will not impose any 

additional reporting or recordkeeping 

requirements on either small or large 

nectarine and peach 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 the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

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. 

Further, the committees’ meetings 

were widely publicized throughout the 

nectarine and peach industry and all 

interested parties were invited to attend 

the meetings and participate in 

committee deliberations. Like all 

committee meetings, the December 18, 

2007, meetings were public meetings 

and all entities, both large and small, 

were able to express their views on this 

issue. 

Also, the committees have a number 

of appointed subcommittees to review 

certain issues and make 

recommendations to the committees. 

The committees’ Tree Fruit Quality 

Subcommittee met on December 11, 

2007, and discussed this issue in detail. 

That meeting was also a public meeting 

and both large and small entities were 

able to participate and express their 

views. 

An interim final rule concerning this 

action was published in the Federal 

Register on March 18, 2008. Copies of 

the rule were posted on the committees’

Web site. In addition, the rule was made 

available through the Internet by USDA 

and the Office of the Federal Register. 

That rule provided a 60-day comment 

period which ended May 19, 2008. One 

comment was received from the 

committees’ staff. The comment stated 

that the trademark name for the 

currently regulated Burpeachsixteen 

variety had been established as ‘‘Spring 

Flame 24.’’ Section 917.459(a)(6) has 

been modified to include the new 

trademark name. 

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/AMSv1.0/ 

ams.fetchTemplateData.do

?template=TemplateN&page=Marketing

OrdersSmallBusinessGuide. 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 

committees’ recommendations, and 

other information, it is found that 

finalizing this interim final rule, with a 

change, as published in the Federal 

Register (73 FR 14372, March 18, 2008) 

will tend to effectuate the declared 

policy of the Act. 

List of Subjects 

7 CFR Part 916 

Marketing agreements, Nectarines, 

Reporting and recordkeeping 

requirements. 

7 CFR Part 917 

Marketing agreements, Peaches, Pears, 

Reporting and recordkeeping 

requirements. 

■ Accordingly, the interim final rule 

amending 7 CFR parts 916 and 917 

which was published at 73 FR 14372 on 

March 18, 2008, is adopted as a final 

rule with the following change: 

PART 917—FRESH PEARS AND 

PEACHES GROWN IN CALIFORNIA 

■ 1. The authority citation for part 917 

continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Section 917.459 is amended by 

revising the introductory text of 

paragraph (a)(6) to read as follows: 

§ 917.459 California peach grade and size 

regulation. 

* * * * * 

(6) Any package or container of 

August Lady, Autumn Flame, Autumn 

Red, Autumn Rich, Autumn Rose, 

Autumn Snow, Burpeachtwo (Henry 

II), Burpeachthree (September 

Flame), Burpeachfour (August 

Flame), Burpeachfive (July Flame), 

Burpeachsix (June Flame), 

Burpeachseven (Summer Flame 29), 

Burpeachfifteen (Summer Flame 34), 

Burpeachsixteen (Spring Flame 24), 

Burpeachtwenty (Summer Flame), 

Burpeachtwentyone (Summer Flame

26), Candy Princess, Coral Princess, 

Country Sweet, Diamond Princess, 

Earlirich, Early Elegant Lady, Elegant 

Lady, Fancy Lady, Fay Elberta, Full 

Moon, Galaxy, Glacier White, Henry III, 

Henry IV, Ice Princess, Ivory Princess, 

Jasper Flame, Jasper Treasure, Jillie 

White, Joanna Sweet, John Henry, 

Kaweah, Klondike, Last Tango, Natures 

#10, O’Henry, Peach-N-Cream, Pink 

Giant, Pink Moon, Prima Gattie 8, Prima 

Peach 13, Prima Peach XV, Prima Peach 

20, Prima Peach 23, Prima Peach XXVII, 

Princess Gayle, Queen Jewel, Rich Lady, 

Royal Lady, Ruby Queen, Ryan Sun, 

Saturn (Donut), September Blaze, 

September Snow, September Sun, Sierra 

Gem, Sierra Rich, Snow Beauty, Snow 

Blaze, Snow Fall, Snow Gem, Snow 

Giant, Snow Jewel, Snow King, Snow 

Magic, Snow Princess, Sprague Last 

Chance, Spring Candy, Strawberry, 

Sugar Crisp, Sugar Giant, Sugar Lady, 

Summer Dragon, Summer Fling, 

Summer Lady, Summer Sweet, Summer 

Zee, Sweet Blaze, Sweet Dream, Sweet 

Henry, Sweet Kay, Sweet September, 

Tra Zee, Valley Sweet, Vista, White 

Lady, or Zee Lady variety peaches 

unless: 

* * * * * 

Dated: July 21, 2008. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E8–16956 Filed 7–23–08; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 981 

[Docket No. AMS–FV–08–0044; FV08–981–

1 IFR] 

Almonds Grown in California; 

Relaxation of Incoming Quality Control 

Requirements 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Interim final rule with request 

for comments. 

SUMMARY: This rule relaxes the 

incoming quality control requirements 

prescribed under 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). This rule changes the 

date by which almond handlers must 

satisfy their inedible disposition 

obligation from August 31 to September 

30 of each year. This will provide 

handlers more flexibility in their 

operations in light of larger almond 

crops. 


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Federal Register / Vol. 73, No. 143 / Thursday, July 24, 2008 / Rules and Regulations 43057 

DATES: Effective July 25, 2008; 

comments received by September 22, 

2008 will be considered prior to 

issuance of a final rule. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this rule. Comments must be 

sent to the 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; or Internet: http:// 

www.regulations.gov. All comments 

should reference the docket number and 

the date and page number of this issue 

of the Federal Register and will be 

made available for public inspection in 

the Office of the Docket Clerk during 

regular business hours, or can be viewed 

at: http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Terry Vawter, Senior 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: 

Terry.Vawter@usda.gov or 

Kurt.Kimmel@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@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.’’

The Department of Agriculture 

(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. 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 relaxes the incoming quality 

control requirements prescribed under 

the order. This rule changes the date by 

which almond handlers must satisfy 

their inedible disposition obligation 

from August 31 to September 30 of each 

year. This will provide handlers more 

flexibility in their operations in light of 

larger almond crops. 

Section 981.42 of the order provides 

authority for a quality control program. 

Paragraph (a) of this section requires 

handlers to obtain incoming inspections 

on almonds received from growers to 

determine the percent of inedible 

kernels in each lot of any variety. 

Inedible kernels are poor quality kernels 

or pieces of kernels as defined in 

§ 981.408. A handler’s inedible 

disposition obligation is based on the 

percentage of inedible kernels in lots 

received by such handler during a crop 

year, as determined by the Federal-State 

inspection service. Handlers must 

satisfy their obligation by disposing of 

inedible kernels and other almond 

material in Board-accepted, non-human 

consumption outlets like oil and animal 

feed. Section 981.42(a) also provides 

authority for the Board, with approval of 

the Secretary, to establish rules and 

regulations necessary to administer this 

program. 

Section 981.442(a)(5) of the order’s 

administrative rules and regulations 

currently specifies that handlers must 

satisfy their inedible disposition 

obligation no later than August 31 

succeeding the crop year in which the 

obligation was incurred. The crop year 

runs from August 1 through July 31. 

Since the mid-1990s, almond crops 

have doubled in size and are now over 

1 billion pounds annually. Larger crops 

have resulted in larger quantities of 

inedible kernels. Between the 1993–94 

and 1997–98 crop years, almond 

production averaged about 570 million 

pounds and inedible disposition 

obligations averaged about 7 million 

pounds annually. Between the 2003–04 

and 2007–08 crop years, production 

averaged about 1 billion pounds and 

inedible disposition obligations 

averaged about 10 million pounds 

annually. 

Many handlers now operate yearround and dispose of their inedible 

kernels at one time after the end of the 

crop year. With larger crops, it has 

become difficult for handlers to meet 

the August 31 inedible-disposition 

deadline because of the larger volume of 

inedible kernels that must be disposed 

of under the program. Thus, the Board 

recommended extending the deadline 

from August 31 to September 30, giving 

handlers an additional month to meet 

their prior year’s obligation. This will 

provide handlers more flexibility in 

their operations in light of larger 

almond crops. Section 981.442(a)(5) is 

revised accordingly. 

This rule also removes obsolete 

language in § 981.442(a)(5). That section 

was modified in 2006 to specify that at 

least 50 percent (increased from 25 

percent) of a handler’s crop year 

inedible disposition obligation must be 

satisfied with dispositions consisting of 

inedible kernels. The 50 percent 

requirement does not apply to handlers 

with total inedible obligations of less 

than 1,000 pounds. However, that 

section still contains the sentence 

referencing the 25 percent requirement. 

This rule removes that sentence and 

revises § 981.442(a)(5) accordingly. 

Initial 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 action 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 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 approximately 6,200 

producers of almonds in the production 

area and approximately 100 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 $6,500,000. 


ebenthall on PRODPC60 with RULES
43058 Federal Register / Vol. 73, No. 143 / Thursday, July 24, 2008 / Rules and Regulations 

Data for the most recently-completed 

crop year indicate that about 50 percent 

of the handlers shipped under 

$6,500,000 worth of almonds. Dividing 

average almond crop value for 2006–07 

reported by the National Agricultural 

Statistics Service of $2.258 billion by 

the number of producers (6,200) yields 

an average annual producer revenue 

estimate of about $364,190. Based on 

the foregoing, about half of the handlers 

and a majority of almond producers may 

be classified as small entities. 

This rule revises and relaxes 

§ 981.442(a)(5) of the order’s 

administrative rules and regulations, 

whereby handlers will be permitted to 

satisfy their inedible disposition 

obligation no later than September 30 of 

each year for obligations incurred in the 

previous crop year, rather than the 

current deadline of August 31 of each 

year. This rule also removes an obsolete 

sentence in that section that references 

handler dispositions containing 25 

percent inedible kernels. Authority for 

this action is provided in § 981.42(a) of 

the order. 

Regarding the impact of this action on 

affected entities, extending the 

disposition deadline will provide 

handlers with additional flexibility in 

light of larger almond crops. Handlers 

who operate year round and dispose of 

their inedible kernels at one time after 

the end of the crop year will have an 

additional month to satisfy their prior 

year’s inedible obligation. 

The Board considered alternatives to 

this action. The Board’s Food Quality 

and Safety Committee (committee) met 

in September and November 2007 and 

discussed the difficulties that handlers 

were experiencing with meeting the 

August 31 disposition deadline. The 

committee recommended revising the 

regulation to allow July dispositions to 

be counted towards either the current 

year or the following year’s obligation. 

However, the intent of the inedible 

program is to ensure that poor quality 

almonds from the current crop year are 

removed from the market. Thus, 

allowing July dispositions to count 

towards the following year’s obligation 

would not meet the intent of the 

program. 

The committee deliberated on this 

issue again in April 2008. The 

committee considered the option of 

extending the August 31 deadline to 

September 30. The Board concurred 

with this option at its meeting on April 

2, 2008, and referred the issue back to 

the committee for full discussion. The 

committee met again on April 22, 2008, 

to discuss the potential change. 

Ultimately, the committee 

recommended this option to the Board, 

and the Board unanimously 

recommended this change at its May 

2008 meeting. 

This rule will not impose any 

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. 

AMS is committed to complying with 

the E-Government Act, to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

In addition, USDA has not identified 

any relevant Federal rules that 

duplicate, overlap or conflict with this 

rule. 

Further, the committee and Board 

meetings where this issue was discussed 

were widely publicized throughout the 

almond industry and all interested 

persons were invited to attend the 

meetings and encouraged to participate 

in Board deliberations. Like all 

committee and Board meetings, the 

meetings held in September and 

November 2007, and in April and May 

2008 were all public meetings and all 

entities, both large and small, were able 

to express their views on this issue. 

Finally, interested persons are invited to 

submit comments on this interim final 

rule, including 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: http://www.ams.usda.gov/ 

AMSv1.0/ams.fetchTemplate

Data.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. 

This rule invites comments on 

relaxing the quality control 

requirements currently prescribed under 

the California almond marketing order. 

This rule extends the date by which 

handlers must satisfy their inedible 

disposition obligation from August 31 to 

September 30 of each year. 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 this interim 

final rule, as hereinafter set forth, will 

tend 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) This rule should be in place 

as soon as possible so that handlers can 

act accordingly; (2) the Board 

unanimously recommended this change 

at a public meeting, and interested 

parties had an opportunity to provide 

input; (3) this rule relaxes the current 

rules and regulations; and (4) this rule 

provides a 60-day comment period and 

any comments received will be 

considered prior to finalization of this 

rule. 

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. In § 981.442, paragraph (a)(5) the 

words ‘‘At least 25 percent of a 

handler’s total crop year inedible 

disposition obligation shall be satisfied 

with dispositions consisting of inedible 

kernels as defined in § 981.408: 

Provided, That this 25 percent 

requirement shall not apply to handlers 

with total annual obligations of less 

than 1,000 pounds.’’ are removed and 

the last sentence is revised to read as 

follows: 

§ 981.442 Quality control. 

(a) * * * 

(5) * * * Each handler’s disposition 

obligation shall be satisfied when the 

almond meat content of the material 

delivered to accepted users equals the 

disposition obligation, but no later than 

September 30 succeeding the crop year 

in which the obligation was incurred. 

* * * * * 

Dated: July 22, 2008. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 08–1465 Filed 7–22–08; 12:26 pm] 

BILLING CODE 3410–02–P 


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