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

32913

Vol. 61, No. 124

Wednesday, June 26, 1996

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Part 251

RIN 3206–AG38

Agency Relationships With

Organizations Representing Federal

Employees and Other Organizations

AGENCY: Office of Personnel

Management.

ACTION: Final rule.

SUMMARY: The Office of Personnel

Management (OPM) is issuing final

regulations governing agency relations

with managerial, supervisory,

professional, and other organizations

that are not labor organizations. These

regulations are being issued as part of

the implementation of the Federal

Personnel Manual (FPM) sunset. The

regulations incorporate certain

provisions that existed in former FPM

chapters 251 and 252.

EFFECTIVE DATE: July 26, 1996.

FOR FURTHER INFORMATION CONTACT:

Hal Fibish, (202) 606–1170.

SUPPLEMENTARY INFORMATION: OPM

published for comment in the Federal

Register on October 2, 1995, at 60 FR

51371–51373, proposed regulations on

agency relationships with organizations

representing Federal employees and

other organizations (hereinafter

sometimes referred to as non-labor

organizations). A total of 19 comments

and/or suggestions were received: 7

from agencies, 2 from unions, 9 from

various non-labor organizations, and 1

from an individual. With the exceptions

noted below, the comments generally

supported the proposed regulation.

One union was opposed to

publication of the regulation to the

extent that it applies to non-supervisors,

because it believes it would be

impossible for agency representatives to

distinguish between the statutory duties

the agency owes unions holding

exclusive recognition regarding

conditions of employment of unit

employees and communications with

non-labor organizations on other matters

of interest to those organizations. OPM

disagrees. The former FPM policies on

relationships with non-labor

organizations, which these regulations

reinstate, were in effect for many years

and OPM is unaware of any evidence

that during that time agencies were

unable to deal with non-labor

organizations on matters of interest to

them without compromising duties

owed unions holding exclusive

recognition.

Another union challenged OPM’s

authority to issue its proposed

regulation, claiming that it went beyond

the limitations of section 7 of Executive

Order 11491 when it expressly referred

to managerial employees in the

discussion of the requirement that

agencies establish consultative

relationships with associations whose

membership is primarily supervisory

and/or managerial. OPM disagrees. It is

clear from the Study Committee Report

and Recommendations of August 1969

that former section 7(e) of Executive

Order 11491, in requiring agencies to

establish a system for intra-management

communication and consultation with

its supervisors or associations of

supervisors in order to minimize the

potential for friction and conflict within

the ranks of management, was intended

to encompass management officials as

they, too, are part of the ranks of

management. Moreover, the Study

Committee also recommended that the

Civil Service Commission authorize

agencies to enter into dues withholding

agreements with associations of

managerial or supervisory employees,

and this was reflected in former section

21(b) of Executive Order 11491 which

referred to an ‘‘association of

management officials or supervisors’’

(emphasis added). Finally, when

sections 7(e) and 21(b) were

subsequently deleted from Executive

Order 11491, the basis for such a

recommendation by the Federal Labor

Relations Council (FLRC) in January

1975 was that the Civil Service

Commission (CSC) had published

guidance for establishing

intramanagement communication and

consultation systems required by

section 7(e) of the Order and that FLRC

believed it would be more appropriate

that this requirement be dealt with

outside the Order. The CSC guidance to

which FLRC referred had been issued in

1971 and section 1–3.a of that guidance

referred to ‘‘[a]n association of

supervisors (or other management

officials, or both).’’

Two agencies thought the proposed

regulation too prescriptive in requiring

agencies to establish communication

systems with associations of

management officials and/or supervisors

and suggested the regulation be

modified to give agencies discretion to

establish and maintain such systems as

they see fit. This suggestion is not being

adopted. The requirement of section

251.201 that agencies establish and

maintain a system for intra-management

communication and consultation with

their supervisors and managers and to

establish consultative relationships with

associations of management officials

and/or supervisors do no more than

reinstate the requirements of chapter

251 which, as noted above, were based

on the requirements of section 7(e) of

Executive Order 11491. Moreover,

agencies have broad discretion in

implementing these requirements. They

can, for example, retain the systems

they had in place while FPM chapter

251 was in effect, or they can modify

aspects of those systems, such as

membership requirements, in light of

their experiences under the FPM

program. Finally, it is to be emphasized

that while agencies are required to

communicate and consult with

associations of supervisors and

managers, dealings with other non-labor

organizations representing Federal

employees are discretionary. In order to

highlight this distinction, we are adding

a sentence to section 251.201(a) that

states that dealings with non-labor

organizations that are not associations of

management officials and/or supervisors

is discretionary.

The same agency recommended that

the proposed regulations give agencies

discretionary authority on the provision

of the resources mentioned in section

251.202(b) This is unnecessary, as this

section clearly states that agencies

‘‘may’’ provide such services to the

extent consistent with GSA regulations.

One non-labor organization suggested

that the regulation prohibit agencies

from refusing meeting space or any

other support to an organization that is
32914 Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Rules and Regulations

provided to a comparable organization.

OPM is not adopting this suggestion.

The conditions under which various

support services may be provided to

various organizations are for the most

part governed by laws and regulations

that OPM does not administer. Apart

from this, OPM stands by the view

expressed in section 1–3.c(2) of former

FPM chapter 252 that ‘‘[t]here is no

general requirement that agencyprovided services, space, or other

considerations be automatically given to

an organization under this [regulation]

simply because they have been given to

a labor organization, or vice versa.’’

One agency found insufficient the

reminder, in section 251.101(d), that

agency dealings with non-labor

organizations may not take on the

character of negotiations or

consultations regarding the conditions

of employment of unit employees

exclusively represented by labor

organizations. It expressed a concern

that agencies, relying on the proposed

regulation, may unintentionally violate

the Federal Service Labor-Management

Relations Statute, 5 U.S.C. 7101–7135

(1994), by bypassing exclusive

representatives and failing to afford

them an opportunity to be present at

formal discussions. It suggested that the

intent of section 251.101(d) would be

enhanced if OPM added the following

statement to that section: ‘‘These

regulations do not authorize any actions

inconsistent with Chapter 71 of title 5

of the U.S. Code.’’

As is noted above, the proposed

regulation does little more than reinstate

an FPM program that has successfully

coexisted with the labor-management

relations program for several years.

Moreover, in devising consultation

systems and/or revising systems that

were in place under the FPM program,

and in dealing with non-labor

organizations, agencies can of course

seek the views of their labor relations

officials in order to minimize the risk of

violating 5 U.S.C. 7101–7135.

Notwithstanding these observations,

OPM is adopting this agency’s

suggestion and is amending section

251.101(d) to include the suggested

statement.

One agency asked why special

treatment is accorded associations of

management officials and/or

supervisors. Two non-labor

organizations objected to the distinction

in treatment between associations of

management officials and/or supervisors

and other non-labor organizations. One

non-labor organization suggested that

the regulations require agencies to

consult with organizations other than

associations of management officials

and/or supervisors.

The regulations, in mandating

consultation with associations of

management officials and/or supervisors

but leaving to agency discretion

consultation with other non-labor

organizations, merely reflect a

distinction that was made in FPM

chapters 251 and 252 which, in turn,

reflected the differences between

sections 7(d) and 7(e) of Executive

Order 11491. Moreover, OPM does not

think it advisable to mandate

consultations with non-labor

organizations that are not associations of

management officials and/or

supervisors, partly because of the

concerns expressed by the two labor

organizations that commented on these

regulations and by some agencies. An

agency should have discretion in

determining whether, and to what

extent and under what conditions, it

will consult with non-supervisory, nonmanagerial associations because, among

other things, of the far greater likelihood

that members of such organizations will

also be members of bargaining units for

which labor organizations hold

exclusive recognition regarding their

conditions of employment. Supervisors

and management officials, on the other

hand, are excluded from bargaining

units by 5 U.S.C. 7112(b)(1) and

consequently labor organizations, with

the exception of the few units preserved

by 5 U.S.C. 7135, may not be their

exclusive representative regarding their

conditions of employment.

Several agencies and organizations

commented on section 251.101(f),

which advised agency officials, in

dealing with representatives of nonlabor organizations, to consult with

their designated agency ethics official

for guidance regarding any conflicts of

interest that may arise under 18 U.S.C.

205. Most noted that H.R. 782, a bill to

amend 18 U.S.C. 205, passed the House

and suggested that the regulations be

amended should the bill become law.

One agency suggested that the

regulation contain a provision

authorizing employees to represent nonlabor organizations as part of their

official duties. One organization, which

disagreed with the Department of

Justice’s interpretation of 18 U.S.C. 205,

took issue with the inclusion of section

251.101(f).

OPM is bound by the Department of

Justice’s interpretation of 18 U.S.C. 205

and it would be improper for the

regulation to authorize employees to

represent non-labor organizations as

part of their official duties. Indeed, it

was out of concern that some officials

might misconstrue these regulations as

authorizing dealings with employee

representatives of non-labor

organizations without regard to 18

U.S.C. 205 as interpreted by the

Department of Justice that OPM

included the cautionary note of section

251.101(f). Should a law be passed

making the cautionary note

unnecessary, OPM will modify its

regulations.

One agency, two organizations, and

one individual suggested that section

251.102(b)—which excludes from the

coverage of this regulation organizations

that discriminate in terms of

membership or treatment because of

race, color, religion, sex, national origin,

age, or handicapping condition—

include a reference to sexual

orientation. OPM has not adopted this

suggestion because regulations which it

publishes with respect to Federal

employees should be consistent with

Federal anti-discrimination laws and,

therefore, should be limited to

prohibiting discrimination against those

individuals or groups of individuals

currently protected under Federal law,

i.e., Title VII of the Civil Rights Act of

1964, as amended (42 U.S.C. 2000e et

seq.) and the Age Discrimination Act of

1973, as amended (29 U.S.C. 791 and

794a).

One agency suggested that the

introductory clause of section

251.202(a) more closely track the

language of the 4th sentence of section

1–4b of former FPM chapter 252 in the

interest of greater clarity. We agree, and

have modified the opening of section

251.201(a) accordingly. The same

agency recommended that the reference

to 5 CFR 410 be rewritten to refer to

funding constraints. In a similar vein,

another agency suggested we cite the

exact provisions of title 41 of the Code

of Federal Regulations bearing on the

examples of support services mentioned

in section 251.202(b) and suggested that

the regulations provide agencies with

full and unilateral discretionary

authority on provision of such

resources. Neither suggestion is being

adopted because the revised

introductory language of section

251.202(b) clearly states that the

provision of various support services is

at the discretion of the agency, which

perforce must be exercised in

accordance with applicable laws and

regulations.

One agency suggested that the

reference to Chapter 71 of title 5 of the

U.S. Code in sections 251.101(d),

251.103(b), and 251.103(c) be modified

by adding ‘‘or comparable provisions of

other laws’’ to accommodate Federal

employees who are covered by other

labor-management relations laws, such
Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Rules and Regulations 32915

as 22 U.S.C. 4101–4118. OPM agrees

and is modifying those sections

accordingly. The same agency caught a

typographical error in the

supplementary information section: the

reference to section 251.203 at the end

of the fourth paragraph should have

been 251.202. The same agency also

noted that the fourth paragraph in the

supplementary information states that

section 251.202 provides a framework

for dealing with organizations that are

‘‘not supervisory or managerial.’’

However, the last sentence of that

paragraph says that section 251.203

(which should have been 251.202)

provides information on support that

may be provided to organizations, thus

suggesting that the support services

alluded to in that paragraph do not

apply to associations of management

officials and/or supervisors. This was

not, of course, the intent of that

paragraph. The reference to

‘‘organizations that are not supervisory

or managerial’’ in the third sentence of

the fourth paragraph should have read

‘‘non-labor organizations.’’ This agency,

noting that although section 251.103(d)

defines ‘‘association of management

officials and/or supervisors,’’ section

251.201 refers to ‘‘associations of

supervisors and management officials’’

and ‘‘association of supervisors or

managers’’ and suggested we use the

expression ‘‘association of management

officials and/or supervisors’’

throughout. OPM agrees and the

regulation is being changed accordingly.

OPM is also adopting this agency’s

suggestion that ‘‘or attorneys’’ be added

after ‘‘agents’’ in the second sentence of

section 251.101(f).

Two agencies suggested that the terms

‘‘fiscal responsibility’’ and ‘‘democratic

principles‘‘ as used in section

251.102(a) be defined. This suggestion is

not being adopted. The requirement that

a non-labor organization subscribe to

minimum standards of fiscal

responsibility and employ democratic

principles in the nomination and

election of officers derives from section

1–5(4) or FPM chapter 252. These

requirements have been in effect for

several years and there is no evidence

that agencies have had problems in

applying these common sense notions.

OPM also is not adopting one agency’s

suggestion that the parenthetical

examples of organizations concerned

with special social interest in section

251.103(a) also refer to credit unions,

employee recreational and/or fitness

associations, and child care

associations. Given that it is in each

agency’s discretion to determine to what

extent and under what conditions it will

deal with organizations concerned with

special social interests, we believe that

the parenthetical examples are

unnecessary and are therefore removing

them from the final regulations.

One agency said that there are

possible Federal Advisory Committee

Act (FACA) concerns if discussions are

held with non-labor organization

members who are not Federal

employees. FACA governs the

relationship between agencies and

Advisory Committees as defined under

5 U.S.C. app. 2, section 3(2)(C). OPM

notes that under GSA regulations, 41

CFR Part 101–6, there are certain

meetings and groups that include

Federal and non-Federal members that

are not subject to FACA requirements.

Agencies are advised to consult with

their Committee Management officers to

determine whether FACA would apply

in any given instance. OPM is adopting

this agency’s suggestion that the

reference to ‘‘strike’’ at the end of the

section 251.102 include reference to

‘‘work stoppage or slowdown.’’ We are

also adopting this agency’s suggestion

that section 251.103(a) refer to groups

representing minorities, women or

persons with disabilities in connection

with the agencies’ EEO programs and

action plans.

One non-labor organization suggested

that section 251.201(a) drop the

requirement that associations of

management officials and/or supervisors

have sufficient agency membership to

assure a worthwhile dialogue with

executive management. We are not

adopting this suggestion because

membership is a meaningful and

objective indicator of employee interest

in and support of an association.

However, it is for each agency to

determine what membership

requirements it will establish as a

condition for establishing consultative

relationships.

E.O. 12866, Regulatory Review

This rule has been reviewed by the

Office of Management and Budget in

accordance with E.O. 12866.

Regulatory Flexibility Act

I certify that this regulation will not

have a significant economic impact on

a substantial number of small entities

because it will only affect Federal

Government employees and non-labor

organizations representing such

employees.

List of Subjects in 5 CFR Part 251

Government employees.

Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM is adding Part 251

as follows:

1. Part 251 is added to read as follows:

PART 251—AGENCY RELATIONSHIPS

WITH ORGANIZATIONS

REPRESENTING FEDERAL

EMPLOYEES AND OTHER

ORGANIZATIONS

Subpart A—General Provisions

Sec.

251.101 Introduction.

251.102 Coverage.

251.103 Definitions.

Subpart B—Relationships With

Organizations Representing Federal

Employees and Other Organizations

251.201 Associations of management

officials and/or supervisors.

251.202 Agency support to organizations

representing Federal employees and

other organizations.

Subpart C—Dues Withholding

251.301 Associations of management

officials and/or supervisors.

251.302 All other organizations.

Authority: 5 U.S.C. 1104; 5 U.S.C. Chap 7;

5 U.S.C. 7135; 5 U.S.C. 7301; and E.O. 11491.

Subpart A—General Provisions

§ 251.101 Introduction.

(a) The regulations in this part apply

to all Federal executive branch

departments and agencies and their

officers and employees.

(b) This part provides a framework for

consulting and communicating with

non-labor organizations representing

Federal employees and with other

organizations on matters related to

agency operations and personnel

management.

(c) The purposes of consultation and

communication are: the improvement of

agency operations, personnel

management, and employee

effectiveness; the exchange of

information (e.g., ideas, opinions, and

proposals); and the establishment of

policies that best serve the public

interest in accomplishing the mission of

the agency.

(d) An agency’s consultation and

communication with organizations

representing Federal employees and

with other organizations under this part

may not take on the character of

negotiations or consultations regarding

conditions of employment of bargaining

unit employees, which is reserved

exclusively to labor organizations as

provided for in Chapter 71 of title 5 of

the U.S. Code or comparable provisions

of other laws. The regulations in this
32916 Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Rules and Regulations

part do not authorize any actions

inconsistent with Chapter 71 of the U.S.

Code or comparable provisions of other

laws.

(e) The head of a Federal agency may

determine that it is in the interest of the

agency to consult, from time to time,

with organizations other than labor

organizations and associations of

management officials and/or supervisors

to the extent permitted by law. Under

section 7(d)(2) and (3) of Executive

Order 11491, as amended, recognition of

a labor organization does not preclude

an agency from consulting or dealing

with a veterans organization, or with a

religious, social, fraternal, professional,

or other lawful association, not qualified

as a labor organization, with respect to

matters or policies which involve

individual members of the organization

or association or are of particular

applicability to it or its members.

(f) Federal employees, including

management officials and supervisors,

may communicate with any Federal

agency, officer, or other Federal entity

on the employee’s own behalf. However,

Federal employees should be aware that

18 U.S.C. 205, in pertinent part, restricts

Federal employees from acting, other

than in the proper discharge of their

official duties, as agents or attorneys for

any person or organization other than a

labor organization, before any Federal

agency or other Federal entity in

connection with any matter in which

the United States is a party or has a

direct and substantial interest. Agency

officials and employees are therefore

advised to consult with their designated

agency ethics official for guidance

regarding any conflicts of interest that

may arise.

§ 251.102 Coverage.

To be covered by this part, an

association or organization:

(a) Must be a lawful, nonprofit

organization whose constitution and

bylaws indicate that it subscribes to

minimum standards of fiscal

responsibility and employs democratic

principles in the nomination and

election of officers;

(b) Must not discriminate in terms of

membership or treatment because of

race, color, religion, sex, national origin,

age, or handicapping condition;

(c) Must not assist or participate in a

strike, work stoppage, or slowdown

against the Government of the United

States or any agency thereof or impose

a duty or obligation to conduct, assist,

or participate in such strike, work

stoppage, or slowdown; and

(d) Must not advocate the overthrow

of the constitutional form of

Government of the United States.

§ 251.103 Definitions.

(a) Organization representing Federal

employees and other organizations

means an organization other than a

labor organization that can provide

information, views, and services which

will contribute to improved agency

operations, personnel management, and

employee effectiveness. Such an

organization may be an association of

Federal management officials and/or

supervisors, a group representing

minorities, women or persons with

disabilities in connection with the

agencies’ EEO programs and action

plans, a professional association, a civic

or consumer group, and organization

concerned with special social interests,

and the like.

(b) Association of management

officials and/or supervisors means an

association comprised primarily of

Federal management officials and/or

supervisors, which is not eligible for

recognition under Chapter 71 of title 5

of the U.S. Code or comparable

provisions of other laws, and which is

not affiliated with a labor organization

or federation of labor organizations.

(c) Labor organization means an

organization as defined in 5 U.S.C.

7103(a)(4), which is in compliance with

5 U.S.C. 7120, or as defined in

comparable provisions of other laws.

Subpart B—Relationships With

Organizations Representing Federal

Employees and Other Organizations

§ 251.201 Associations of management

officials and/or supervisors.

(a) As part of agency management,

supervisors and managers should be

included in the decision-making process

and notified of executive-level decisions

on a timely basis. Each agency must

establish and maintain a system for

intra-management communication and

consultation with its supervisors and

managers. Agencies must also establish

consultative relationships with

associations whose membership is

primarily composed of Federal

supervisory and/or managerial

personnel, provided that such

associations are not affiliated with any

labor organization and that they have

sufficient agency membership to assure

a worthwhile dialogue with executive

management. Consultative relationships

with other non-labor organizations

representing Federal employees are

discretionary.

(b) Consultations should have as their

objectives the improvement of

managerial effectiveness and the

working conditions of supervisors and

managers, as well as the identification

and resolution of problems affecting

agency operations and employees,

including supervisors and managers.

(c) The system of communication and

consultation should be designed so that

individual supervisors and managers are

able to participate if they are not

affiliated with an association of

management officials and/or

supervisors. At the same time, the

voluntary joining together of

supervisory and management personnel

in groups of associations shall not be

precluded or discouraged.

§ 251.202 Agency support to organizations

representing Federal employees and other

organizations.

(a) An agency may provide support

services to an organization when the

agency determines that such action

would benefit the agency’s programs or

would be warranted as a service to

employees who are members of the

organization and complies with

applicable statutes and regulations.

Examples of such support services are

as follows:

(1) Permitting employees, in

appropriate cases, to use agency

equipment or administrative support

services for preparing papers to be

presented at conferences or symposia or

published in journals;

(2) Using the authority under 5 U.S.C.

4109 and 4110, as implemented by 5

CFR part 410, to pay expenses of

employees to attend professional

organization meetings when such

attendance is for the purpose of

employee development or directly

concerned with agency functions or

activities and the agency can derive

benefits from employee attendance at

such meetings; and

(3) Following a liberal policy in

authorizing excused absence for other

employees who are willing to pay their

own expenses to attend a meeting of a

professional association or other

organization from which an agency

could derive some benefits.

(b) Agencies may provide Government

resources support to organizations (such

as space in Government facilities for

meeting purposes and the use of agency

bulletin boards, internal agency mail

distribution systems, electronic bulletin

boards and other means of informing

agency employees about meetings and

activities) in accordance with

appropriate General Services

Administration regulations contained in

title 41 of the Code of Federal

Regulations. The mere provision of such

support to any organization is not to be

construed as Federal sponsorship,

sanction, or endorsement of the

organization or its activities.
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