[Federal Register Volume 72, Number 248 (Friday, December 28, 2007)]
[Proposed Rules]
[Pages 73671-73676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-25162]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 981
[Docket No. AO-214-A7; AMS-FV-07-0050; FV07-981-1]
Almonds Grown in California; Recommended Decision on Proposed
Amendment of Marketing Order No. 981
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule and opportunity to file exceptions.
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SUMMARY: This is a recommended decision regarding proposed amendments
to Marketing Order No. 981 (order), which regulates the handling of
almonds grown in California. Two amendments were proposed by the Almond
Board of California (Board), which is responsible for local
administration of the order. These proposed amendments would: authorize
the establishment of specific outgoing quality requirements for
different markets; and authorize the establishment of container marking
and labeling requirements. The proposals are intended to provide
additional flexibility in administering the quality control provisions
of the order and provide the industry with additional tools to aid in
the marketing of almonds. This recommended decision invites written
exceptions on the proposed amendments.
DATES: Written exceptions must be filed by January 17, 2008.
ADDRESSES: Written exceptions should be filed with the Hearing Clerk,
U.S. Department of Agriculture, Room 1081-S, Washington, DC 20250-9200,
Fax: (202) 720-9776 or via the Internet at
http:[bs][bs]www.regulations.gov. All
comments should reference the docket number and the date and page
number of this issue of the Federal Register. Comments will be made
available for public inspection in the Office of the Hearing Clerk
during regular business hours, or can be viewed at:
http:[bs][bs]www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Martin Engeler, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 2202
Monterey Street, Suite 102-B, Fresno, California 93721; Telephone:
(559) 487-5110, Fax: (559) 487-5906, or E-mail:
[email protected]; or Laurel May, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence
Avenue, SW., Stop 0237, Washington, DC 20250-0237; Telephone: (202)
720-1509, Fax: (202) 720-8938, or E-mail: [email protected].
Small businesses may request information on this proceeding 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, E-mail: [email protected].
SUPPLEMENTARY INFORMATION: Prior document in this proceeding: Notice of
Hearing issued on June 29, 2007, and published in the July 6, 2007,
issue of the Federal Register (72 FR 36900).
This action is governed by the provisions of sections 556 and 557
of title 5 of the United States Code and is therefore excluded from the
requirements of Executive Order 12866.
Preliminary Statement
Notice is hereby given of the filing with the Hearing Clerk of this
recommended decision with respect to the proposed amendments to
Marketing Order 981 regulating the handling of almonds grown in
California, and the opportunity to file written exceptions thereto.
Copies of this decision can be obtained from Martin Engeler, whose
address is listed above.
This recommended decision is issued pursuant to the provisions of
the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C.
601-674), hereinafter referred to as the ``Act,'' and the applicable
rules of practice and procedure governing the formulation of marketing
agreements and orders (7 CFR Part 900).
The proposed amendments are based on the record of a public hearing
held August 2, 2007, in Modesto, California. Notice of this hearing was
published in the Federal Register on July 6, 2007 (72 FR 36900). The
notice of hearing contained the two proposals submitted by the Board.
The proposed amendments were recommended by the Board following
deliberations at public meetings on November 28, 2006, and February 27,
2007, and were submitted to the Agricultural Marketing Service (AMS) on
March 12, 2007. After reviewing the recommendation and other
information submitted by the Board, AMS determined to proceed with the
formal rulemaking process and schedule the matter for hearing.
The Board's proposed amendments to the order would: (1) Authorize
the establishment of different outgoing almond quality requirements for
different markets; and (2) authorize the establishment of container
marking and labeling requirements.
USDA also proposed to make such changes to the order as may be
necessary, if any of the proposed changes are adopted, so that all of
the order's provisions conform to the effectuated amendments.
Eleven industry witnesses testified at the hearing. These witnesses
represented almond producers and handlers in the production area, as
well as Board staff, and all were supportive of the proposed
amendments. The witnesses emphasized the need to equip the industry
with updated and more comprehensive tools for the marketing of
California almonds, and testified that the two proposed amendments
would assist in this matter.
Witnesses offered testimony in support of the Board's
recommendation to add authority for different outgoing quality
requirements for shipments to different markets. Under that authority,
the Board could recommend the establishment of outgoing quality
requirements to meet the specifications of particular markets.
According to testimony, this would assure delivery of a consistent
quality product, which would help maintain customer confidence and
market share.
Witnesses also supported the recommendation to add general
authority for container marking and labeling requirements. If
implemented, this authority would enable the Board to recommend the
establishment of container marking and labeling regulations to aid in
the orderly marketing of almonds. Such container marking or labeling
could include information about the product's origin, product handling
instructions, or other information responsive to market demands.
At the conclusion of the hearing, the Administrative Law Judge
established a deadline of September 24, 2007, for interested persons to
file proposed findings and conclusions or written arguments and briefs
based on the evidence received at the hearing. The filing deadline was
extended to September 26, 2007. Two briefs were filed during that
period: one brief summarized witness testimony from the hearing and
supported adoption of the proposed order amendments; and the second
brief provided a brief history of the California almond industry,
clarified the intent of the Board's proposed amendment regarding
container
[[Page 73672]]
marking and labeling, and offered general support for both proposed
amendments.
Material Issues
The material issues presented on the record of hearing are as
follows:
(1) Whether to amend the order to authorize establishment of
different outgoing quality requirements for different markets; and
(2) Whether to amend the order to authorize establishment of
container marking and labeling requirements.
Findings and Conclusions
The following findings and conclusions on the material issues are
based on evidence presented at the hearing and the record thereof.
Material Issue Number 1--Authority To Establish Different Outgoing
Quality Requirements for Different Markets
Section 981.42(b) of the order should be amended to authorize the
establishment of specific outgoing quality requirements for different
markets. That section currently authorizes the establishment of minimum
outgoing quality requirements applicable to almonds to be handled or to
be processed into manufactured products. However, it does not authorize
different quality requirements for product shipped to different market
destinations. Quality requirements authorized under Sec. 981.42(b) may
be established through informal rulemaking after recommendation by the
Board and implementation by USDA. If authority to establish different
outgoing quality requirements for different markets is added to this
subsection in the order as proposed, implementation of such
requirements would also require recommendation by the Board and
subsequent establishment of regulations by USDA through informal
rulemaking.
Witnesses testified that California almonds comprise approximately
80 percent of the world's almond production and that over two-thirds of
California's almonds are exported to approximately 90 countries
worldwide. According to record evidence, the 2007-08 crop is estimated
to approximate 1.330 billion pounds, which would be the largest
California almond crop ever produced. Witnesses testified that to
ensure the industry can sustain adequate market demand for production
at that level, it must be equipped with necessary tools that will allow
it to respond to rapidly changing global market requirements.
Witnesses indicated that the California almond industry faces a
wide array of market regulations and standards for such factors as
appearance, aflatoxin levels, pesticide residues, organic standards,
fumigation, and methods of testing for compliance with those standards.
Many of these requirements are not harmonized across the different
markets. Witnesses explained that there is a tendency for countries to
adopt standards from other countries and then modify them, so that the
standards and requirements proliferate and become increasingly complex.
One witness suggested that a shipment of product could meet the
requirements of one country but be rejected by another country.
Meeting the demands of increasingly diverse markets with
substantially different standards and requirements is an ongoing
challenge for the almond industry. However, witnesses testified that
maintaining customer confidence in the quality of their product is
essential for the economic well being of the industry; so the ability
to meet those standards is crucial.
Currently, the order authorizes the establishment of outgoing
quality regulations that are applicable to all almonds, regardless of
their destination. Witnesses stated that handling all almonds in such a
manner as to meet the requirements of one particular market may not
always be practical for shipments to other destinations and could
generate unnecessary costs for handlers. The industry desires to avoid
the complication and expense of applying the quality standards of one
market to shipments for other markets where they may not be required or
appropriate.
However, at the same time, witnesses indicated that not making
country and region-specific mandatory marketing requirements compulsory
as part of outgoing quality regulations in the order is causing a
disruption in the flow of almonds to specific markets, such as the
European Union (EU). Witnesses explained that the EU has established a
maximum tolerance for aflatoxin in almonds shipped to its member
countries. Handlers who choose to ship almonds to the EU must comply
with EU specifications. However, under the current order regulations,
there are no mandatory requirements pertaining to aflatoxin for
California almonds. Witnesses explained that, in the absence of the
authority to establish specific outgoing quality requirements for
shipments to the EU, the almond industry developed a voluntary
aflatoxin testing protocol for handlers to follow when shipping almonds
to the EU. The intent of the program was to ensure the product meets EU
requirements before being shipped, therefore minimizing the number of
rejected shipments and the expenses and delays associated with them.
The industry also hoped to prevent the erosion of confidence in the
overall quality of California almonds and the implementation of even
tighter controls in the EU.
However, according to witness testimony, the voluntary nature of
the industry's program did not sufficiently assure the EU that its
requirements would be met. Beginning on September 1, 2007, EU officials
implemented a program requiring mandatory aflatoxin testing of
California almond shipments upon arrival in the EU. This program
requires mandatory testing of five percent of shipments of almonds from
California handlers participating in the voluntary California aflatoxin
testing program, and mandatory testing of 100% of shipments of almonds
from California handlers not participating in the voluntary program.
One witness stated that similar controls mandated for other crops have
resulted in increased rejections, costs to producers, market
disruption, and loss of market share.
Testimony provided at the hearing shows that it is impractical to
require aflatoxin testing for almond shipments to all markets, which is
the only alternative available under the current order authority. To do
so would impose unnecessary expenses for shipments to markets that do
not require aflatoxin testing. Neither do witnesses want to risk
unfavorable consequences to the entire industry, including the
potential for even greater testing frequency by the EU, due to the
failure of some shipments to meet import requirements. The authority to
establish testing requirements for all shipments to the EU would reduce
the risk that one shipment with aflatoxin levels exceeding the EU
tolerance could compromise the industry's reputation and market
position.
Witnesses testified that the authority to establish different
requirements for different markets would prove useful in other domestic
and international market situations that could arise. If the proposed
amendment is adopted, the Board would be authorized to establish, with
the approval of the Secretary, specific outgoing quality regulations to
address critical market issues as they arise. Currently, handlers
routinely meet individual market requirements as part of conducting
business in those markets. However, witnesses stressed that the
industry's reputation would be reinforced by implementation of
mandatory, rather than voluntary,
[[Page 73673]]
compliance with certain market demands.
Establishing different requirements for different markets would
help insure that substandard almonds do not find their way to the
market and destroy consumer confidence and harm industry returns.
Furthermore, the flexibility provided in this amendment would allow the
application of such requirements to be limited to shipments destined
for specified markets, saving handlers the additional burden or cost of
meeting regulations other than those necessary for each market. Thus,
it is recommended that Sec. 981.42(b) be amended to include authority
for the Board, with the approval of the Secretary, to establish
different outgoing quality requirements for different markets. There
was no testimony in opposition to this proposal.
Furthermore, USDA is recommending changes to the proposed language
of the amendment to Sec. 981.42(b) that was published in the notice of
hearing. The word ``recommend'' would be changed to ``establish'' to
harmonize and conform the proposed language with that already present
in this subsection regarding the establishment of outgoing quality
requirements. In addition, the proposed language in the amendment would
be moved within the paragraph.
Material Issue Number 2--Authority To Establish Container Marking and
Labeling Requirements
A new section 981.43 should be added to the order to authorize the
establishment of marking and labeling requirements for bulk containers.
A definition of ``container'' is included in the amendatory text for
this section to clarify that the regulation would be applicable to
receptacles used in the packaging or handling of almonds. Specifying
that only bulk containers be included in this authority was not part of
the Board's original proposal. However, proponents testified that it
was their original intent.
Currently, very limited authority for marking and labeling
requirements exists in this marketing program. Adding this section
would provide for the establishment of general authority for making
requirements for the marking or labeling of bulk almond containers as
appropriate to meet industry and market needs. Such requirements could
be established through informal rulemaking after recommendation by the
Board and implementation by USDA and could be included in the order's
administrative rules and regulations.
Proponents of the proposal testified that this amendment might be
necessary as market requirements change. Witnesses cited several
instances in which such authority would assist with the orderly
marketing of California almonds. For instance, marking or labeling
requirements could be implemented that would complement regulations
implemented under the authority for different outgoing quality
requirements described under Material Issue Number 1. In the case of
aflatoxin testing for almond shipments to the EU, container labeling
could be required to indicate that such testing requirements had been
met.
One witness testified that product handling instructions in foreign
languages might be appropriately applied to containers in export
shipments. Other witnesses stated that labeling containers with proper
handling and storage instructions could help maintain the quality of
almonds, ensuring greater customer satisfaction.
The record shows that the lack of marking and labeling authority
impeded the industry's efforts to restore customer confidence following
recalls of California almonds in 2001 and 2004. As a precaution against
Salmonella contamination, some handlers treated and/or reprocessed
their almonds. Individual handlers were able to mark containers to
indicate whether their almonds had been treated, but there was no
standardized industry language to express a consistent message to
consumers about such treatment. This left customers down the supply
chain uncertain about the state of the almonds they received.
Proponents stated that if they'd had the authority to recommend
container marking and labeling regulations, the Board could have
determined how best to mark containers of treated almonds in a
consistent way to assure customers that the almonds had been treated.
Proponents of the proposed amendment also testified that adding
authority to recommend container marking and labeling would be a useful
tool that would allow the industry to respond to evolving market
situations.
As mentioned above, witnesses testifying in support of the
amendment suggested revising the proposal to include a reference to
bulk containers. Proponents stated that they wanted to clarify that the
authority to recommend container marking and labeling should apply only
to bulk containers of almonds, and not to packages sold at the retail
level. Although some handlers ship almonds in both bulk and retail or
consumer packages, many do not. Witnesses stated that it has never been
the industry's intent to regulate the marking or labeling of retail
packages. Although the Board did not specify limiting authority for
marking and labeling to bulk containers in their original proposal,
witnesses testified that it was widely understood among industry
members that only authority to recommend the marking and labeling of
bulk containers was intended to be part of the proposal. Witnesses were
asked whether the industry might prefer to retain greater flexibility
to address needs that could arise in the future by preserving the
language of their original proposal. However, witnesses confirmed that
they wanted to specify more limited authority to regulate the marking
and labeling of bulk containers only. All of the witnesses supported
modifying the original proposed language in this regard. Further, other
minor language changes are intended to conform with record evidence.
USDA recommends that Sec. 981.43 authorizing the Board, with
approval of the Secretary, to establish container marking and labeling
requirements be added to the order. USDA further recommends that the
language of the proposed amendment be modified to specify that such
authority would apply only to bulk containers.
Furthermore, USDA is recommending a change to the proposed language
of the new Sec. 981.43 that was published in the notice of hearing.
The word ``recommend'' would be changed to ``establish'' to harmonize
and conform the proposed language with that already present in this
subsection regarding the establishment of outgoing quality
requirements.
Conforming Changes
AMS also proposed to make such changes as may be necessary to the
order to conform to any amendment that may result from the hearing.
Conforming changes are identified in the above discussion of the
material issues.
Small Business Considerations
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA), 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 so that small businesses will not be
unduly or disproportionately burdened. Marketing orders and amendments
thereto are unique in that they are normally brought about through
group action of essentially small entities for their own benefit.
Small agricultural service firms, which include handlers regulated
under
[[Page 73674]]
the order, have been defined by the Small Business Administration (SBA)
(13 CFR 121.201) as those having annual receipts of less than
$6,500,000. Small agricultural producers have been defined as those
with annual receipts of less than $750,000.
There are approximately 104 handlers of almonds subject to
regulation under the order and approximately 6,000 producers of almonds
in the regulated area. Information provided at the hearing indicates
that approximately 50 percent of the handlers would be considered small
agricultural service firms. According to data reported by the National
Agricultural Statistics Service (NASS), the two-year average crop value
for 2005-06 and 2006-07 was $2.283 billion. Dividing that average by
6,000 producers yields average estimated producer revenues of $380,500,
which suggests that the majority of almond producers would also be
considered small entities according to the SBA's definition.
The order regulates the handling of almonds grown in the state of
California. The California almond bearing acreage increased nearly 40
percent between 1996 and 2006, from 418,000 to 585,000 acres.
Approximately 1.115 billion pounds (shelled basis) of almonds were
produced during the 2006-07 season. Bearing acreage for the 2007-08
season is estimated to be 615,000 acres. NASS has forecasted that the
2007-08 crop will reach 1.330 billion pounds (shelled basis). More than
two thirds of California's almond crop is exported to approximately 90
countries worldwide, and comprises nearly 80 percent of the world's
almond supply.
Under the order, incoming and outgoing quality regulations are
established, statistical information is collected, production research
projects are conducted, and marketing research and generic promotion
programs are sponsored. Program activities administered by the Board
are designed to support large and small almond producers and handlers.
The 10-member Board is comprised of both producer and handler
representatives from the production area. Board meetings where
regulatory recommendations and other decisions are made are open to the
public. All members are able to participate in Board deliberations, and
each Board member has an equal vote. Others in attendance at meetings
are also allowed to express their views.
The Board's Food Quality and Safety Committee discussed the need
for amendments to the order at meetings held on May 12, 2005; July 20,
2005; and November 1, 2006. The Board approved language for two
proposed amendments to the order at their meeting on November 28, 2006.
During a conference call on February 27, 2007, the Board confirmed that
the two amendments should be proposed to USDA. The views of all
participants were considered throughout this process.
In addition, the hearing to receive evidence on the proposed
changes was open to the public and all interested parties were invited
and encouraged to participate and provide their views.
The proposed amendments are intended to provide the Board and the
industry with additional flexibility in the marketing of California
almonds. Record evidence indicates that the proposals are intended to
benefit all producers and handlers under the order, regardless of size.
There would be no cost implications for handlers or growers from adding
the proposed order authorities. Costs of implementation would be
incurred only if specific additional requirements were established
following future informal rulemaking. All grower and handler witnesses
supported the proposed amendments and commented on the implications of
implementing specific requirements in the future. In that context,
witnesses stated that they expected the benefits to be substantial and
the costs of any future requirements to be minimal.
A description of the proposed amendments and their anticipated
economic impact on small and large entities is discussed below.
Proposal 1--Adding the Authority To Establish Different Outgoing
Quality Requirements for Different Markets
The record shows that the proposal to add authority to establish
different outgoing quality requirements for different markets would, in
itself, have no economic impact on producers or handlers of any size.
Regulations implemented under that authority could impose additional
costs on handlers required to comply with them. However, witnesses
testified that establishing mandatory regulations for different markets
could increase the industry's credibility and reduce the risk that
shipments of substandard product could jeopardize the entire industry's
reputation. Record evidence shows that any additional costs are likely
to be offset by the benefits of complying with those requirements.
Witnesses cited decreased delays and demurrage charges, as well as
fewer rejected loads and increased customer confidence, as expected
benefits. Recently, almonds have been rejected in the EU due to
aflatoxin levels exceeding its importing tolerances. Information
provided at the hearing shows that the rejection of a 44,000 pound
container of almonds in the EU costs about $10,000, or 22.7 cents per
pound. The cost includes demurrage for unanticipated delays at port,
warehousing product while awaiting official import testing results,
shipping rejected almonds back to the U.S., and shipping a replacement
container back to the EU.
To reduce the risk of rejections, the California almond industry
developed a voluntary aflatoxin testing protocol. Witnesses estimated
that the cost of the pre-export testing, including the value of the
sample, analytical fees, courier fees, and sampling labor is less than
2 cents per pound, which is less than 10 percent of the cost associated
with a rejection. Proponents testified that if a requirement that all
almonds destined for the EU be tested prior to shipment was established
under authority provided by the proposed order amendment, handlers
would incur the cost of testing, but those costs would be expected to
be more than offset by the reduced risk of rejections.
It's likely that most handlers are already complying with their
customers' specific market requirements on a voluntary basis as a part
of doing business, but witnesses explained that mandatory requirements
lend credibility to the entire industry. In addition, such requirements
could reduce the risk that one shipment of substandard product would
jeopardize the entire industry's reputation.
Currently, outgoing quality requirements established under the
order apply to all handler entities regardless of size. If the proposed
amendment and subsequent regulations established thereunder are
implemented, distribution of any increased costs between small and
large entities would depend on the requirements established for the
markets to which individual handlers shipped their almonds as well as
the volume of almonds shipped to those markets. But increases in cost
would be equitable to all entities because requirements for each market
would be imposed uniformly on all handlers shipping to that market.
Witnesses explained that almonds are used in many different ways by
the various markets. In Europe, almonds are widely used as marzipan and
ingredients for baked goods, candy, and other dishes. In India and the
Middle East, almonds are presented as gifts at holidays and weddings,
and play a part in other cultural traditions. India imports large
quantities of inshell
[[Page 73675]]
almonds that are then processed by hand. The wide range of uses leads
to a similarly wide array of customer requirements.
According to record testimony, handlers adapt their export methods
to satisfy customer requirements. One witness explained that it is
often difficult for smaller handlers to stay informed of rapidly
changing import regulations. The witness stated that small handlers in
particular would benefit from the proposed authority to establish
different requirements for different markets by avoiding costly
mistakes that could be associated with not understanding various market
and import requirements. If regulations were established under the
proposed authority, the Board would provide information about updated
requirements to the industry.
Finally, one witness explained that having the ability under the
order to establish different outgoing quality requirements for
different markets would not restrict handlers' choices regarding which
markets to supply. Rather, the provision would ensure that the
important standards that differentiate markets would be consistently
met by all handlers shipping to those markets.
Proposal 2--Adding the Authority To Establish Container Labeling and
Marking Requirements
The proposal described in Material Issue No. 2 would add Sec.
981.43 to the order to provide general authority to establish container
and marking requirements. If implemented, the proposed amendment would
allow the Board, through the informal rulemaking process, to recommend
and establish uniform container marking and labeling regulations in
response to evolving market requirements. Under current order
provisions, there is only very limited authority for container marking
and labeling requirements.
Witnesses testified that the lack of this authority has hindered
them from adapting quickly and appropriately to recent market
situations. In one case described at the hearing, the industry was
unable to implement container marking or labeling following recalls for
possible Salmonella contamination. Witnesses stated that customer
confidence in almond quality could have been reinforced if the
necessary authority to establish marking and labeling requirements had
been available. Such authority would have allowed the industry to
prescribe labeling to clearly indicate which almonds had been produced
and handled or treated to reduce risk of contamination.
The proposed amendment would allow the industry to respond to
evolving market needs as they develop by establishing uniform and
consistent marking and labeling requirements. According to proponents,
the ability to communicate important product information to customers
in a uniform and consistent manner will be essential as the industry
strives to maintain its position in the expanding global marketplace.
If the proposed amendment is implemented, costs of complying with
any regulations established thereunder would not be disproportionate to
small businesses. Witnesses testified that applying labels and marks to
almond containers is currently a common practice, and industry handlers
already have container marking processes and equipment in place.
Therefore, the costs associated with the addition of uniform marking or
labeling requirements would be minimal for both small and large
entities. The record shows that any costs would likely be offset by the
benefits derived from being more responsive to market demands.
Interested persons were invited to present evidence at the hearing
on the probable regulatory and informational impact of the proposed
amendments to the order on small entities. The record evidence is that
while there will be no economic impact from the implementation of the
two proposed amendments, some costs may be associated with regulation
that may be established under the authority of the amendments. However,
the record indicates that the costs would be outweighed by the benefits
expected to accrue to the California almond industry.
USDA has not identified any relevant Federal rules that duplicate,
overlap or conflict with this proposed rule. These amendments are
intended to improve the operation and administration of the order to
the benefit of the industry.
Board meetings regarding these proposals as well as the hearing
date and location were widely publicized throughout the almond
industry, and all interested persons were invited to attend the
meetings and the hearing, and to participate in Board deliberations on
all issues. All Board meetings and the hearing were public forums and
all entities, both large and small, were able to express views on these
issues. Finally, interested persons are invited to submit information
on the regulatory and informational impacts of this action on small
businesses.
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.
Paperwork Reduction Act
Information collection requirements for Part 981 are currently
approved by the Office of Management and Budget (OMB), under OMB Number
0581-0178, Vegetable and Specialty Crops. Implementation of these
proposed amendments would not trigger any changes to those
requirements. Should any such changes become necessary in the future,
they would be submitted to OMB for approval.
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.
Civil Justice Reform
The amendments to Marketing Order 981 proposed herein have been
reviewed under Executive Order 12988, Civil Justice Reform. They are
not intended to have retroactive effect. If adopted, the proposed
amendments would not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
proposal.
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 Sates 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 no later than 20 days after the date of the
entry of the ruling.
Rulings on Briefs of Interested Persons
Briefs, proposed findings and conclusions, and the evidence in the
record were considered in making the findings and conclusions set forth
in this recommended decision. To the extent that the suggested findings
and conclusions filed by interested persons
[[Page 73676]]
are inconsistent with the findings and conclusions of this recommended
decision, the requests to make such findings or to reach such
conclusions are denied.
One motion and a brief supporting the motion were submitted
requesting that the Secretary expedite the formal rulemaking process by
omitting this recommended decision and the period allowed for the
filing of exceptions to AMS' findings herein. The motion was filed on
October 3, 2007, and the brief supporting the motion was filed on
October 12, 2007. The Rules of Practice allow omission of a recommended
decision only when the Secretary finds, on the basis of the record, due
and timely execution of his functions imperatively and unavoidably
require such omission. No such finding may be made in this instance.
Absent from the hearing record is testimony or other evidence that
would form a basis to make such a determination. Further, interested
persons would have no opportunity to comment on this request to omit
the recommended decision. Therefore, this motion is denied.
A second motion, also filed on October 3, 2007, requested that four
corrections be made to one of the exhibits presented at the hearing,
although the hearing transcript and all exhibits were certified by the
Administrative Law Judge on October 1, 2007. Nevertheless, AMS is
granting the first three of those corrections as such corrections would
make references in exhibits and testimony uniform. However, the fourth
correction is denied. The requested change would make the result of the
calculation in the exhibit incorrect, and it would be in conflict with
testimony in the hearing transcript, which is correct.
General Findings
The findings hereinafter set forth are supplementary to the
findings and determinations which were previously made in connection
with the issuance of the marketing order; and all 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.
(1) The marketing order, as amended, and as hereby proposed to be
further amended, and all of the terms and conditions thereof, would
tend to effectuate the declared policy of the Act;
(2) The marketing order, as amended, and as hereby proposed to be
further amended, regulates the handling of almonds grown in the
production area (California) 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 marketing order, as amended, and as hereby proposed to be
further amended, is limited in its 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;
(4) The marketing order, as amended, and as hereby proposed to be
further amended, prescribes, insofar as practicable, such different
terms applicable to different parts of the production area as are
necessary to give due recognition to the differences in the production
and marketing of almonds grown in the production area; and
(5) All handling of almonds grown in the production area as defined
in the marketing order, is in the current of interstate or foreign
commerce or directly burdens, obstructs, or affects such commerce.
A 20-day comment period is provided to allow interested persons to
respond to this proposal. Twenty days is deemed appropriate because
these proposed changes have been widely publicized and implementation
of the changes, if adopted, would be desirable to benefit the industry
as soon as possible. All written exceptions timely received will be
considered and a grower referendum will be conducted before any of
these proposals are implemented.
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
proposed to be 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. Amend paragraph (b) of Sec. 981.42 by adding the following
sentence before the last sentence to read as follows:
Sec. 981.42 Quality Control.
* * * * *
(b) * * * The Board may, with the approval of the Secretary,
establish different outgoing quality requirements for different
markets. * * *
3. Add a new Sec. 981.43 to read as follows:
Sec. 981.43 Marking or Labeling of Containers.
The Board may, with the approval of the Secretary, establish
regulations to require handlers to mark or label their containers that
are used in packaging or handling of bulk almonds. For purposes of this
section, container means a box, bin, bag, carton, or any other type of
receptacle used in the packaging or handling of bulk almonds.
Dated: December 21, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E7-25162 Filed 12-27-07; 8:45 am]
BILLING CODE 3410-02-P