Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Rules and Regulations 32917

Subpart C—Dues Withholding

§ 251.301 Associations of management

officials and/or supervisors.

Dues withholding for associations of

management officials and/or supervisors

is covered in 5 CFR 550.331.

§ 251.302 All other organizations.

Under 5 CFR 550.311(b), an agency

may permit an employee to make an

allotment for any legal purpose deemed

appropriate by the head of the agency.

Agencies may provide for the allotment

of dues for organizations representing

Federal employees under that section.

[FR Doc. 96–16215 Filed 6–25–96; 8:45 am]

BILLING CODE 6325–01–M

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 981

[Docket No. A0–214–A7; FV–93–981–1]

Almonds Grown in California; Order

Amending the Marketing Order

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: This final rule amends the

marketing order (order) for California

almonds. The amendments change order

provisions regarding: five existing

definitions in the order; Almond Board

of California (Board) nomination

procedures, terms of office, qualification

procedures, eligibility requirements,

voting and tenure requirements;

modifying creditable advertising

provisions; revising volume control

procedures; requiring handlers to

maintain records in the State of

California; authorizing interest or late

payment charges on assessments paid

late; providing for periodic continuance

referenda; and making necessary

conforming changes. These changes

were favored by California almond

producers in a mail referendum. The

amendments will improve the

administration, operation and

functioning of the California almond

marketing order program.

EFFECTIVE DATE: June 27, 1996.

FOR FURTHER INFORMATION CONTACT:

Kathleen M. Finn, Marketing Specialist,

Marketing Order Administration

Branch, Fruit and Vegetable Division,

AMS, USDA, room 2523–S, P.O. Box

96456, Washington, D.C. 20090–6456,

telephone: (202) 720–1509 or Fax (202)

720–5698; or Martin Engeler, Assistant

Officer-in-Charge, California Marketing

Field Office, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, 2202

Monterey Street, suite 102–B, Fresno,

California 93721; (209) 487–5901 or

FAX (209) 487–5906.

SUPPLEMENTARY INFORMATION: Prior

documents in this proceeding: Notice of

Hearing issued on August 3, 1993, and

published in the Federal Register on

August 17, 1993 (58 FR 43565).

Recommended Decision and

Opportunity to File Written Exceptions

issued on March 22, 1995, and

published in the Federal Register on

April 6, 1995 (60 FR 17466). Secretary’s

Decision and Referendum Order issued

October 23, 1995, and published in the

Federal Register on October 30, 1995

[60 FR 55213].

Preliminary Statement

This administrative action is governed

by the provisions of sections 556 and

557 of Title 5 of the United States Code

and, therefore, is excluded from the

requirements of Executive Order 12866.

This rule has been reviewed under

Executive Order 12778, Civil Justice

Reform. This action is not intended to

have a retroactive effect. This rule will

not preempt any State or local laws,

regulations, or policies, unless they

present an irreconcilable conflict with

this action.

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 the date of the

entry of the ruling.

The final rule was formulated on the

record of a public hearing held in

Modesto, California, on November 3, 4

and 5, 1993, to consider the proposed

amendment of Marketing Order No. 981,

regulating the handling of almonds

grown in California, hereinafter referred

to as the ‘‘order.’’ Notice of the Hearing

was published in the August 17, 1993,

issue of the Federal Register (58 FR

43565).

The hearing was held pursuant to the

provisions of the Agricultural Marketing

Agreement Act of 1937, as amended (7

U.S.C. 601 et seq.), hereinafter referred

to as the Act, and the applicable rules

of practice and procedure governing

proceedings to formulate marketing

agreements and marketing orders (7 CFR

part 900). The Notice of Hearing

contained several amendment proposals

submitted by the Board, which is

responsible for local administration of

the program, and by five additional

persons.

The Board’s proposals pertained to:

(1) Increasing its membership by two

positions and changing Board

nomination, selection, and operation

procedures; (2) changing the term of

office of its members from one to three

years, and limiting the tenure of Board

members; (3) changing the definitions of

‘‘cooperative handler,’’ ‘‘to handle,’’

‘‘settlement weight,’’ ‘‘crop year’’ and

‘‘trade demand’’; (4) requiring handlers

of California almonds to maintain

program records in the State of

California; (5) changing the advertising

assessment credit program to allow

credit for certain promotion costs

incurred by handlers not previously

authorized; (6) authorizing handlers to

pay interest and/or late payment charges

for past due assessments; (7) providing

for continuance referenda every five

years; (8) requiring handlers to submit

grower lists to the Board; and (9)

allowing multi-year contracting.

Five persons submitted additional

proposals related to continuance

referenda, Board composition and

nomination procedures, organic

almonds, regulatory provisions,

advertising and promotion, assessments,

compliance audits, the definition of

grower, and research and reserve

operations.

The Fruit and Vegetable Division,

Agricultural Marketing Service (AMS),

U.S. Department of Agriculture (USDA),

proposed making such changes as are

necessary to the order so that all of its

provisions conform with the proposed

amendment. USDA also proposed that

continuance referenda be conducted on

a periodic basis consistent with USDA’s

policy guidelines.

Upon the basis of evidence

introduced at the hearing and the record

thereof, the Administrator of the

Agricultural Marketing Service (AMS)

on March 22, 1995, filed with the

Hearing Clerk, Department of

Agriculture, a Recommended Decision

and Opportunity to File Written

Exceptions thereto by May 8, 1995. Four

exceptions were filed.

A Secretary’s Decision and

Referendum Order was issued on
32918 Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Rules and Regulations

October 23, 1995, directing that a

referendum be conducted during the

period January 8 through February 2,

1996, among producers of California

almonds to determine whether they

favored the proposed amendments to

the order. In the referendum, 19 of the

amendment proposals were favored by

more than two-thirds of the producers

voting in the referendum by number and

volume.

Four of the amendment proposals

failed to receive the two-thirds majority

required for approval. They are: (1)

Increase the Board representation from

10 to 12 members, increase the quorum

size to eight members and specify the

number of votes required to pass actions

based on the number of members

present, increase the required number of

votes needed to recommend saleable

and reserve percentages to the Secretary

from six to eight, and require 10

affirmative votes when voting by

methods other than at assembled

meetings; (2) authorize the Board, with

the approval of the Secretary, to

reapportion grower and/or handler

member representation on the Board

based on the proportionate amounts of

almonds handled by different segments

of the industry in the event industry

structure changes in future years; (3)

authorize the Board, with approval of

the Secretary, to exempt certified

organic almonds from assessments used

for marketing promotion; and (4)

exempt from reserve requirements, that

part of the crop which is sold as

‘‘certified organic almonds’’ under

standards established by the Organic

Foods Production Act of 1990. Since

these amendments failed to obtain the

two-thirds requirement, they are not

contained in this document.

In addition, USDA has made

modifications to sections 981.32, 981.33

and 981.40 regarding committee

nominations, tenure and voting by mail,

telegram, fax or other electronic means.

These modifications were necessary

because the amendment to increase

Board membership failed.

The amendment to stagger terms of

office for Board members passed in the

referendum. The amendatory language

set forth staggered terms for a 12-

member Board. However, the rationale

for staggered terms was not specifically

related to a 12-member Board.

Modifications were made to §§ 981.32

and 981.33 to base staggered terms of

office on a 10-member Board.

The amendment to authorize voting

by mail, telegram, fax or other electronic

means passed in the referendum and

included a provision that at least 10

members must vote in favor of its

passage or the proposition would be

defeated. This number was based on a

12-member Board. The record evidence

indicated that requiring unanimous

favorable decisions to pass actions by

these methods was burdensome to the

Board and delays and disruptions could

be avoided by alleviating this

requirement. The USDA modification to

§ 981.40 addresses this concern by

requiring eight affirmative votes to pass

a Board action.

Finally, USDA has made an

additional conforming change to section

981.73 of the order. This section

pertains to reports filed by handlers and

when they are due to the Board. The

conforming change will change the last

reporting date from July 15 to August 15

and change the report’s ending date

from June 30 to July 31. Since the crop

year will be changed in this formal

rulemaking proceeding from July 1 to

August 1, the third reporting period

specified in the order should pertain to

the end of the crop year. There is no

additional burden anticipated on

handlers in making this change.

The amended marketing agreement

was subsequently mailed to all

California almond handlers in the

production area for their approval. The

marketing agreement was not approved

by almond handlers representing 50

percent or more of the volume of

almonds handled by all handlers during

the representative period of July 1, 1994,

through June 30, 1995.

Small Business Considerations

In accordance with the provisions of

the Regulatory Flexibility Act (RFA)

(5 U.S.C. 601 et seq.), the AMS has

determined that this action will not

have a significant economic impact on

a substantial number of small entities.

Small agricultural service firms, which

include handlers regulated under this

order, have been defined by the Small

Business Administration (SBA) (13 CFR

121.601) as those having annual receipts

of less than $5,000,000. Small

agricultural producers are defined as

those having annual receipts of less than

$500,000.

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 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 the RFA and the

Act have small entity orientation and

compatibility. Interested persons were

invited to present evidence at the

hearing on the probable impact that the

proposed amendments to the order

would have on small businesses.

During the 1993–94 crop year,

approximately 115 handlers were

regulated under Marketing Order No.

981. In addition, there are about 7,000

producers of almonds in the production

area. The Act requires the application of

uniform rules on regulated handlers.

The amendments to the order include

changes to five definitions in the order.

These definitions are cooperative

handler, to handle, settlement weight,

crop year, and trade demand. The

changes to the definitions are intended

to make them consistent with current

industry practices. They are designed to

enhance the administration and

functioning of the marketing order to

the benefit of the industry.

The change to the nomination

procedures will require Board nominees

to be nominated by January 20 rather

than April 20 as currently provided.

This will ensure that the new Board is

seated prior to meetings where

important decisions are made for the

following year and will allow the Board

to function more efficiently.

The change to the Board members’

term of office from one year to three

year staggered terms allows more

continuity on the Board. This will allow

the Board to focus more on long-term

strategic goals and develop long-term

approaches to problems in the industry.

The amendment to require those

persons nominated to the Board to

qualify prior to their selection to the

Board is an administrative change. This

change allows the selection process to

take place in a more timely manner.

The amendment to add tenure

requirements for Board members allows

more persons the opportunity to serve

as members on the Board. It will

provide opportunity for new ideas and

approaches to issues that the Board

addresses each year.

The amendment to the creditable

advertising provisions expands the

promotional activities for which

handlers may receive Credit-Back from

their assessments. This will allow the

Board to increase program flexibility for

participating handlers.

The amendment to allow the

settlement weight for unshelled

almonds to be determined on the basis

of representative samples will be more

consistent with current industry

practices.

The amendment to require handlers to

maintain records in the State of

California will improve the Board’s

administration of the program. It will

also allow the Board to have the records

available to them for compliance

purposes. It is not expected that any
Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Rules and Regulations 32919

additional costs will be incurred by

handlers to comply with this

amendment.

The amendment to authorize interest

and/or late payment charges on

assessments paid late encourages

handlers to pay their assessments on

time. Assessments not paid promptly

add an undue burden on the Board

because the Board has ongoing projects

and programs funded by assessments

that are functioning throughout the year.

This change is consistent with standard

business practices and there will be no

significant economic burden on small or

large entities because the increase in

prompt payments will economically

benefit the Board and handlers.

The amendment to provide for

periodic continuance referenda allows

growers the opportunity to vote on

whether to continue the operation of the

almond marketing order.

The amendment to authorize handlers

to transfer their reserve obligation to

other handlers helps facilitate the

operation of the reserve program by

providing handlers more flexibility.

All these changes are designed to

enhance the administration and

functioning of the marketing order to

the benefit of the industry. Accordingly,

AMS has determined that the proposed

revisions of the order will not have a

significant economic impact on a

substantial number of small entities.

In compliance with Office of

Management and Budget (OMB)

regulations (5 CFR part 1320) which

implement the Paperwork Reduction

Act of 1995 (44 U.S.C. Chapter 35), any

reporting and recordkeeping

requirements that may result from these

amendments will be submitted to OMB

for approval.

Order Further Amending the Order

Regulating the Handling of Almonds

Grown in California

Findings and Determinations

The findings and determinations

hereinafter set forth are supplementary

and in addition to the findings and

determinations previously made in

connection with the issuance of the

order; and all of said previous findings

and determinations are hereby ratified

and affirmed, except insofar as such

findings and determinations may be in

conflict with the findings and

determinations set forth herein.

(a) Findings and Determinations Upon

the Basis of the Hearing Record.

Pursuant to the provisions of the

Agricultural Marketing Agreement Act

of 1937, as amended (7 U.S.C. 601 et

seq.), and applicable rules of practice

and procedure effective thereunder (7

CFR part 900), a public hearing was

held upon the amendments to

Marketing Order No. 981 (7 CFR part

981), regulating the handling of almonds

grown in California.

Upon the basis of the evidence

introduced at such hearing and the

record thereof, it is found that:

(1) The order, as amended, and hereby

further amended, and all of the terms

and conditions thereof, will tend to

effectuate the declared policy of the Act;

(2) The order, as amended, as hereby

further amended, regulates the handling

of almonds grown in the production

area in the same manner as, and is

applicable only to persons in the

respective classes of commercial and

industrial activity specified in the

marketing order upon which a hearing

has been held;

(3) The order, as amended, as hereby

further amended, is limited in

application to the smallest regional

production area which is practicable,

consistent with carrying out the

declared policy of the Act, and the

issuance of several orders applicable to

subdivisions of the production area

would not effectively carry out the

declared policy of the Act; and

(4) All handling of almonds grown in

the production area is in the current of

interstate or foreign commerce or

directly burdens, obstructs, or affects

such commerce.

(b) Additional findings. It is necessary

and in the public interest to make these

order amendments effective one day

after publication.

A later effective date would

unnecessarily delay the implementation

of the order amendments and the

improvement in operation of the

marketing order program. The Board,

producers, and handlers need as much

time as possible to make plans to

implement the amended order and

discuss any needed changes to the

regulations and Board operating

procedures.

In view of the foregoing, it is hereby

found and determined that good cause

exists for making these order

amendments effective one day after

publication, and that it would be

contrary to the public interest to delay

the effective date of these order

amendments for 30 days after

publication in the Federal Register (Sec.

553(d), Administrative Procedure Act; 5

U.S.C. 551–559).

(c) Determinations. It is hereby

determined that:

(1) Handlers (excluding cooperative

associations of producers who are not

engaged in processing, distributing, or

shipping almonds covered by the said

order, as amended, as hereby further

amended) who, during the period July 1,

1994, through June 30, 1995, handled 50

percent or more of the volume of such

almonds covered by said order, as

amended, and as hereby further

amended, have not signed an amended

marketing agreement;

(2) The issuance of this amendatory

order, further amending the aforesaid

order, is favored or approved by at least

two-thirds of the producers who

participated in a referendum on the

question of approval and who, during

the period July 1, 1994, through June 30,

1995 (which has been deemed to be a

representative period), have been

engaged within the California

production area in the production of

such almonds for fresh market.

(3) In the absence of a signed

marketing agreement, the issuance of

this amendatory order is the only

practical means pursuant to the

declared policy of the Act of advancing

the interests of producers of almonds in

the production area.

Order Relative to Handling

It is therefore ordered, That on and

after the effective date hereof, all

handling of almonds grown in

California, shall be in conformity to, and

in compliance with, the terms and

conditions of the said order as hereby

further amended as follows:

The provisions of the proposed

marketing order amendments further

amending the order contained in the

Recommended Decision issued by the

Administrator on March 22, 1995, and

published in the Federal Register on

April 6, 1995 (60 FR 17466) and in the

Secretary’s Decision issued on October

23, 1995, and published in the Federal

Register on October 30, 1995 (60 FR

55213), shall be and are the terms and

provisions of this order further

amending the order, and are set forth in

full herein.

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 981.14 is revised to read as

follows:
32920 Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Rules and Regulations

§ 981.14 Cooperative handler.

Cooperative handler means any

handler as defined in § 981.13 of this

Subpart which qualifies for treatment as

a nonprofit cooperative association as

defined in Section 54001, et seq. of the

California Food and Agricultural Code.

The Board, with the approval of the

Secretary, may modify this definition, if

necessary.

3. Section 981.16 is revised to read as

follows:

§ 981.16 To handle.

To handle means to use almonds

commercially of own production or to

sell, consign, transport, ship (except as

a common carrier of almonds owned by

another) or in any other way to put

almonds grown in the area of

production into any channel of trade for

human consumption worldwide, either

within the area of production or by

transfer from the area of production to

points outside or by receipt as first

receiver at any point of entry in the

United States or Puerto Rico of almonds

grown in the area of production,

exported therefrom and submitted for

reentry or which are reentered free of

duty. However, sales or deliveries by a

grower to handlers, hullers or other

processors within the area of production

shall not, in itself, be considered as

handling by a grower.

4. Section 981.18 is amended by

removing the word ‘‘and’’ at the end of

paragraph (b); removing the period and

adding ‘‘, and’’ at the end of paragraph

(c); and adding a new paragraph (d) to

read as follows:

§ 981.18 Settlement weight.

* * * * *

(d) For inedible kernels as defined in

§ 981.8.

5. Section 981.19 is revised to read as

follows:

§ 981.19 Crop year.

Crop year means the twelve month

period from August 1 to the following

July 31, inclusive. Any new crop

almonds harvested or received prior to

August 1 will be applied to the next

crop year for marketing order purposes.

The first crop year after the

implementation of this amendment

shall be a 13-month period.

6. Section 981.21 is revised to read as

follows:

§ 981.21 Trade demand.

Trade demand means the quantity of

almonds (kernelweight basis) which

commercial distributors and users such

as the wholesale, chain store,

confectionery, bakery, ice cream, and

nut salting trades will acquire from all

handlers during a crop year for

distribution worldwide.

7. Section 981.31 is revised to read as

follows:

§ 981.31 Membership representation.

Membership of the Board will be

determined in the following manner:

(a) Two members and an alternate for

each member shall be selected from

nominees submitted by each of the

following groups designated in

paragraphs (a)(1) and (2) of this section,

or from among other qualified persons

belonging to such groups:

(1) Those growers who market their

almonds through cooperative handlers;

and

(2) Those growers who market their

almonds through other than cooperative

handlers.

(b) Two members and an alternate for

each member shall be selected from

nominees submitted by each of the

following groups designated in

paragraphs (b) (1) and (2) of this section,

or from among other qualified persons

belonging to such groups:

(1) Cooperative handlers; and

(2) All handlers, other than

cooperative handlers.

(c) One member and an alternate shall

be selected from nominees submitted by

each of the following groups designated

in paragraphs (c) (1) and (2) of this

section, or from among other qualified

persons belonging to such groups:

(1) The group of cooperative handlers

or the group of handlers other than

cooperative handlers, whichever

received for their account more than 50

percent of the almonds delivered by all

growers as determined by December 31

of the then current crop year; and

(2) Those growers whose almonds

were marketed through the handler

group identified in paragraph (c)(1) of

this section.

8. Section 981.32 is amended by

revising paragraph (a) and amending

paragraph (b)(2) by removing the date

‘‘March 31’’ and adding in its place the

date ‘‘December 31’’ to read as follows:

§ 981.32 Nominations.

(a) Method. (1) Each year the terms of

office of three of the members elected

pursuant to Section 981.31 (a) and (b)

shall expire, except every third year

when the term of office for two of those

members shall expire. Nominees for

each respective member and alternate

member shall be chosen by ballot

delivered to the Board. Nominees

chosen by the Board in this manner

shall be submitted by the Board to the

Secretary on or before February 20 of

each year together with such

information as the Secretary may

require. If a nomination for any Board

member or alternate is not received by

the Secretary on or before February 20,

the Secretary may select such member

or alternate from persons belonging to

the group to be represented without

nomination. The Board shall mail to all

handlers and growers, other than the

cooperative(s) of record, the required

ballots with all necessary voting

information including the names of

incumbents willing to accept

renomination, and, to such growers, the

name of any person proposed for

nomination in a petition signed by at

least 15 such growers and filed with the

Board on or before January 20.

Distribution of ballots shall be

announced by press release, furnishing

pertinent information on balloting,

issued by the Board through newspapers

and other publications having general

circulation in the almond producing

areas.

(2) Nominees for the positions

described in Section 981.31(c) shall be

handled in the same manner as

described in paragraph (a)(1) of this

section except that those terms of office

shall expire annually.

* * * * *

9. Section 981.33 is revised to read as

follows:

§ 981.33 Selection and term of office.

(a) Members and their respective

alternates for positions open on the

Board shall be selected by the Secretary

from persons nominated pursuant to

§ 981.32, or, at the discretion of the

Secretary, from other qualified persons,

for a term of office beginning March 1.

Members and alternates shall continue

to serve until their respective successors

are selected and qualified.

(b) The term of office of members of

the Board shall be for a period of three

years beginning on March 1 of the years

selected except where otherwise

provided. However, for the initial eight

members of the Board selected pursuant

to this section and to paragraphs (a) and

(b) of § 981.31, two members shall serve

for a term of one year; three members

shall serve for a term of two years; and

three members shall serve for a term of

three years. For the initial terms of

office, at the time of nomination under

§ 981.32, the Board shall make this

designation by lot. The term of office for

the two members selected under

paragraph (c) of § 981.31 shall always be

for a period of one year.

(c) Board members may serve for a

total of six consecutive years. Members

who have served for six consecutive

years must leave the Board for at least

one year before becoming eligible to

serve again. A person who has served
Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Rules and Regulations 32921

less than six consecutive years on the

Board may not be nominated to a new

three year term if his or her total

consecutive years on the Board at the

end of that new term would exceed six

years. This limitation on tenure shall

not include service on the Board prior

to implementation of this amendment

and shall not apply to alternate

members.

10. Section 981.34 is revised to read

as follows:

§ 981.34 Qualification and acceptance.

(a) Any person to be selected as a

member or alternate of the Board shall,

prior to such selection, qualify by

providing such background information

as necessary and by advising the

Secretary that he/she agrees to serve in

the position for which nominated.

Grower members and alternates shall be

growers or employees of growers, and

handler members and alternates shall be

handlers or employees of handlers. In

the event any member or alternate

ceases to be qualified for the position for

which selected, that position shall be

deemed vacant.

(b) The Board, with approval of the

Secretary, may establish additional

eligibility requirements for grower

members on the Board.

11. Section 981.40 is amended by

revising paragraph (c) to read as follows:

§ 981.40 Procedure.

* * * * *

(c) Voting by mail, telegram, fax or

other electronic means. The Board may

vote by mail, telegram, fax or other

electronic means upon written notice to

all members, or alternates acting in their

place, including in the notice a

statement of a reasonable time, not to

exceed 10 days, in which a vote by mail,

telegram, fax or other electronic means

must be received by the Board for

counting. Voting by mail, telegram, fax

or other electronic means shall not be

permitted at any assembled meeting of

the Board. When a proposition is

submitted for vote by mail, telegram, fax

or other electronic means, at least eight

members of the Board must vote in favor

of its passage or the proposition shall be

defeated.

* * * * *

§ 981.41 [Amended]

12. In section 981.41, paragraph (c) is

amended by removing the colon and all

text following the words ‘‘15 percent’’ in

the last sentence and adding in its place

a period.

§ 981.47 [Amended]

13. Section 981.47 is amended by

removing the words ‘‘either domestic

or’’ in the third sentence.

14. Section 981.49 is amended by

removing ‘‘; and’’ in paragraph (e) and

adding a period in its place, by adding

‘‘and’’ at the end of paragraph (d); by

removing paragraph (f) and by revising

paragraph (b) to read as follows:

§ 981.49 Board estimates and

recommendations.

* * * * *

(b) The estimated handler carryover

and the estimated reserve inventory as

of July 31;

* * * * *

15. Section 981.55 is amended by

designating existing undesignated text

as paragraph (a) and adding a new

paragraph (b) to read as follows:

§ 981.55 Interhandler transfers.

* * * * *

(b) When salable and reserve

percentages are in effect, any handler

may transfer reserve withholding

obligation to other handlers. Terms and

conditions implementing this provision

must be recommended by the Board and

approved by the Secretary.

16. Section 981.60 is amended by

revising paragraph (b) to read as follows:

§ 981.60 Determination of kernel weight.

* * * * *

(b) Almonds for which settlement is

made on unshelled weight. The

settlement weight for unshelled

almonds shall be determined on the

basis of representative samples of

unshelled almonds reduced to shelled

weight.

17. Section 981.61 is amended by

revising the last sentence to read as

follows:

§ 981.61 Redetermination of kernel weight.

* * * Weights used in such

computations for various classifications

of almonds shall be:

(a) For unshelled almonds, the

kernelweight based on representative

samples reduced to shelled weight;

(b) For shelled almonds, the net

weight; and

(c) For shelled almonds used in

production of almond products, the net

weight of such almonds.

§ 981.62 [Removed]

18. Section 981.62 is removed.

§ 981.66 [Amended]

19. Section 981.66 is amended by

removing paragraphs (b) and (d),

redesignating paragraph (c) as paragraph

(b), redesignating paragraph (e) as

paragraph (c), redesignating paragraphs

(f) and (g) as paragraphs (d) and (e), and

by amending newly designated

paragraph (c) by removing all references

to the date ‘‘September 1’’ everywhere it

appears and adding in its place

‘‘December 31’’.

§ 981.67 [Amended]

20. Section 981.67 is amended by

removing all references to the date

‘‘September 1’’ and adding in its place

‘‘December 31’’.

21. Section 981.70 is amended by

revising the first sentence to read as

follows:

§ 981.70 Records and verification.

Each handler shall keep records

which will clearly show the details of

his or her receipts of almonds,

withholdings, sales, shipments,

inventories, reserve disposition,

advertising and promotion activities, as

well as other pertinent information

regarding his or her operation pursuant

to the provisions of this part: Provided,

that, such records shall be kept in the

State of California. * * *

22. A new section 981.76 is added

before the undesignated center heading

‘‘Expenses and Assessments’’ to read as

follows:

§ 981.76 Handler List of Growers.

No later than December 31 of each

crop year, each handler other than a

cooperative handler (hereinafter,

referred to as independent handler)

governed by this Subpart shall, upon

request, submit to the Board a complete

list of growers who have delivered

almonds to such independent handler

during that crop year.

23. Section 981.81 is amended by

adding a new paragraph (e) to read as

follows:

§ 981.81 Assessment.

* * * * *

(e) Any assessment not paid by a

handler within a period of time

prescribed by the Board may be subject

to an interest or late payment charge or

both. The period of time, rate of interest

and late payment charge shall be as

recommended by the Board and

approved by the Secretary. Subsequent

to such approval, all assessments not

paid within the prescribed period of

time shall be subject to an interest or

late payment charge or both.

24. Section 981.90 is amended by

redesignating paragraphs (b)(2) and

(b)(3) as paragraphs (b)(3) and (b)(4) and

by amending newly designated

paragraph (b)(3) by removing the date

‘‘June 1’’ and adding in its place ‘‘July

1’’ and adding a new paragraph (b)(2) to

read as follows:

§ 981.90 Effective time, suspension, or

termination.

* * * * *

(b) * * *
32922 Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Rules and Regulations

(2) The Secretary shall conduct a

referendum as soon as practical after the

end of the fiscal year ending two years

after implementation of this

amendment, and at such time every fifth

year thereafter, to ascertain whether

continuation of the order is favored by

growers who have been engaged in the

production of almonds for market

within the State of California during the

current crop year.

* * * * *

§ 981.467 [Amended]

25. In section 981.467, paragraph (a)

is amended by removing the date ‘‘July

1’’ and adding in its place ‘‘August 1’’

and by removing the words ‘‘export or’’

and ‘‘or both,’’ from the second sentence

in paragraph (a).

§ 981.472 [Amended]

26. In section 981.472, paragraph (a)

is amended by removing the dates ‘‘July

1 to August 31’’ and adding in its place

‘‘August 1 to August 31.’’

981.73 [Amended]

27. Section 981.73 is amended by

removing the date ‘‘July 15’’ and adding

in its place ‘‘August 15’’ and by

removing the date ‘‘June 30’’ and adding

in its place ‘‘July 31’’.

Dated: June 19, 1996.

Michael V. Dunn,

Assistant Secretary, Marketing and

Regulatory Programs.

[FR Doc. 96–16304 Filed 6–25–96; 8:45 am]

BILLING CODE 3410–02–P

7 CFR Part 985

[Docket No. AO–79–2; FV95–985–4]

Spearmint Oil Produced in the Far

West Order Amending the Order

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: This final rule amends the

marketing order for spearmint oil

produced in the Far West. The

Department of Agriculture (Department)

proposed this amendment, which was

favored by spearmint oil producers in a

referendum. Previously, the order

included in the regulated production

area the States of Washington, Idaho,

Oregon, and portions of Utah, Nevada,

Montana, and California. This

amendment redefines the ‘‘production

area’’ to remove the portions of the

States of Montana and California. This

amendment is designed to improve the

administration, operation, and function

of the Far West spearmint oil program.

EFFECTIVE DATE: June 27, 1996.

FOR FURTHER INFORMATION CONTACT:

Caroline C. Thorpe, Marketing

Specialist, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, P.O.

Box 96456, Room 2522–S, Washington,

D.C. 20090–6456, telephone (202) 720–

5127; or Robert Curry, Marketing

Specialist, Northwest Marketing Field

Office, Marketing Order Administration

Branch, Fruit and Vegetable Division,

AMS, USDA, 1220 SW Third Avenue,

room 369, Portland, Oregon 97204–

2807, telephone: (503) 326–2724.

SUPPLEMENTARY INFORMATION: Prior

documents in this proceeding: Notice of

Hearing was issued on October 4, 1995,

and published in the Federal Register

on October 11, 1995 (60 FR 52869).

Notice of Public Hearing: Correction

was issued on November 8, 1995, and

published in the Federal Register on

November 13, 1995 (60 FR 57144). A

Notice of order filed on proposed

rulemaking was issued on November 30,

1995, and published in the Federal

Register December 5, 1995 (60 FR

62229). The Emergency Final Decision

and Referendum Order was issued on

February 13, 1996, and published in the

Federal Register on February 20, 1996

(61 FR 6329).

This administrative action is governed

by the provision of sections 556 and 557

of title 5 of the United States Code, and

is therefore excluded from the

requirements of Executive Order 12866.

This rule has been reviewed under

Executive Order 12778, 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 Agricultural Marketing

Agreement Act of 1937 (Act), as

amended (7 U.S.C. 601 et seq.) 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 in equity to

review the Secretary’s ruling on the

petition, provided a bill in equity is

filed not later than 20 days after date of

the entry of the ruling.

Preliminary Statement

This final rule was formulated on the

record of a public hearing held in

Spokane, Washington, on November 14,

1995, to consider the proposed

amendment of Marketing Order No. 985,

regulating the handling of spearmint oil

produced in the Far West, hereinafter

referred to as the ‘‘order.’’ The hearing

was held pursuant to the provisions of

the Act and the applicable rules of

practice and procedure governing

proceedings to formulate marketing

agreements and marketing orders (7 CFR

Part 900). The Notice of Hearing

contained an amendment proposal

recommended by the Department.

The Department proposed this action

to determine if portions of both the

States of California and Montana should

continue to be regulated under the

order.

Upon the basis of evidence

introduced at the hearing and the record

thereof, the Assistant Secretary for

Marketing and Regulatory Programs on

February 13, 1996, filed with the

Hearing Clerk, Department of

Agriculture, an Emergency Final

Decision and Referendum Order,

directing that a referendum be

conducted during the period March 2

through March 15, 1996, among all

known producers of spearmint oil

produced in the Far West. The proposed

amendment was favored by more than

the requisite two-thirds of spearmint oil

producers voting in the referendum.

Based upon the referendum and other

available information the Department

determined that the ‘‘production area,’’

the area regulated under the order, no

longer include portions of the states of

California and Montana.

There is no amended marketing

agreement effective with this

amendment of the order. The original

order was published in the April 14,

1980, Federal Register (45 FR 25040), as

a final rule. At that time, a marketing

agreement was not approved by

spearmint oil handlers representing 50

percent or more of the volume of

spearmint oil handled by all handlers

during the representative period.

The information collection

requirements contained in the order and

regulation have been previously

approved by the Office of Management

and Budget (OMB) under the provisions

of the Paperwork Reduction Act of 1995

(Pub. L. 104–13) and have been assigned

OMB numbers 0581–0065 for Far West

spearmint oil.