[Federal Register Volume 59, Number 148 (Wednesday, August 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18877]


[[Page Unknown]]

[Federal Register: August 3, 1994]


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DEPARTMENT OF AGRICULTURE
7 CFR Part 981

[Docket No. FV94-981-2IFR]

 

Almonds Grown in California; Revision of the Definition of 
Inedible Kernel

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule revises the definition of inedible 
kernel established under the administrative rules and regulations of 
the Federal marketing order for California almonds. This revised 
definition of inedible kernel will better reflect handler processing 
capabilities and will be more equitable to growers and handlers. This 
rule is based on a unanimous recommendation of the Almond Board of 
California (Board), which is responsible for local administration of 
the order.

DATES: Effective on August 3, 1994. Comments which are received by 
September 2, 1994 will be considered prior to issuance of any final 
rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this interim final rule. Comments must be sent in triplicate 
to the Docket Clerk, Marketing Order Administration Branch, F&V, AMS, 
USDA, Room 2523-S, P.O. Box 96456, Washington, DC 20090-6456, FAX 
Number (202) 720-5698. Comments should reference the date and page 
number of this issue of the Federal Register and will be made available 
for public inspection in the Office of the Docket Clerk during regular 
business hours.

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, DC 
20090-6456; telephone: (202) 720-1509, or fax (202) 720-5698, or Martin 
Engeler, Assistant Officer-in-Charge, California Marketing Field 
Office, 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: This interim final rule is issued under 
Marketing Agreement and Order No. 981 (7 CFR Part 981), both as 
amended, regulating the handling of almonds grown in California. The 
marketing agreement and order are authorized by the Agricultural 
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), 
hereinafter referred to as the Act.
    The Department of Agriculture (Department) is issuing this rule in 
accordance with Executive Order 12866.
    This interim final rule has been reviewed under Executive Order 
12778, Civil Justice Reform. This interim final rule is not intended to 
have retroactive effect. This interim final rule will not preempt any 
State or local laws, regulations, or policies, unless they present an 
irreconcilable conflict with this rule.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with 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 requesting a modification of the order or to be exempted 
therefrom. A handler is afforded the opportunity for a hearing on the 
petition. After a 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 entry of the ruling.
    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Administrator of the Agricultural Marketing Service 
(AMS) has considered the economic impact of this interim final rule on 
small entities.
    The purpose of the RFA is to fit regulatory actions to the scale of 
business subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and rules issued thereunder, are unique in that 
they are brought about through group action of essentially small 
entities acting on their own behalf. Thus, both statutes have small 
entity orientation and compatibility.
    There are approximately 115 handlers of almonds that are subject to 
regulation under the marketing order and approximately 7,000 producers 
in the regulated area. Small agricultural service firms have been 
defined by the Small Business Administration (13 CFR 121.601) as those 
whose annual receipts are less than $5,000,000 and small agricultural 
producers are defined as those having annual receipts of less than 
$500,000. The majority of the almond producers and handlers may be 
classified as small entities.
    This rule revises the definition of inedible kernel in 
Sec. 981.408--Subpart--Administrative Rules and Regulations by 
excluding almond kernels, pieces, or particles of almond kernels with 
web and frass from being considered inedible almonds.
    The processing of almonds involves various steps taken by growers 
and handlers prior to shipment to market. In most situations, growers 
initially take their almonds to a huller/sheller operation where the 
hulls and shells are mechanically removed. The almonds are then 
delivered to a handler, who has the almonds inspected by the Federal-
State Inspection Service. The inspector determines the percentage of 
inedible almond kernels in a sample, as defined in section 981.408. 
Based upon the inspection, growers are paid by the handlers for the 
marketable almonds in the lot.
    The quality control provisions of the marketing order are designed 
to provide procedures to remove inedible almonds from human consumption 
channels. Under this program, handlers incur a disposition obligation 
of inedible almonds, based on the inspection results. Section 981.442 
specifies that the weight of inedible kernels in excess of 1 percent of 
the inedible kernel weight in the lot determined by USDA constitutes 
the inedible disposition obligation. In order to meet this disposition 
obligation, handlers normally deliver packer pickouts, kernels rejected 
in blanching, pieces of kernel, meal accumulated in manufacturing, or 
other material to crushers, feed manufacturers, feeders or dealers in 
nut wastes on record with the Board as accepted users.
    In order to ensure that the inedible kernels are diverted to non-
human consumption channels, the Board maintains a list of approved 
accepted users, which includes feedlots and oil mills. Handlers notify 
the Board at least 72 hours prior to making delivery to an accepted 
user so the Board, at its option, can witness the disposition.
    Section 981.8 of the marketing order defines inedible kernel as 
meaning ``a kernel, piece, or particle of almond kernel with any defect 
scored as serious damage, or damage due to mold, gum, shrivel, or brown 
spot, as defined in the United States Standards for Shelled Almonds or 
which has embedded dirt not easily removed by washing.'' This section 
authorizes modification of the definition by the Board with the 
approval of the Secretary. Currently, the definition under Sec. 981.408 
of the regulations defines an inedible kernel as ``a kernel, piece, or 
particle of almond kernel with any defect scored as serious damage, or 
damage due to mold, gum, shrivel, or brown spot, as defined in the 
United States Standards for Shelled Almonds or which has embedded dirt 
or other foreign material not easily removed by washing.'' Kernels or 
kernel pieces with any defect scored as serious damage are considered 
inedible kernels.
    Section 51.2130 of the U.S. Standards for Grades of Shelled Almonds 
defines serious damage as ``any defect which makes a kernel or piece of 
kernel unsuitable for human consumption, and includes decay, rancidity, 
insect injury and damage by mold.'' Section 51.2123 of the Standards 
defines ``insect injury'' to mean that ``the insect, web, or frass is 
present or there is definite evidence of insect feeding.''
    The way the definition is currently applied, web or frass is 
considered serious damage by insect injury and when present and noted 
on the incoming inspection, causes the almonds so affected to be 
classified as inedible. As stated previously, handlers pay their 
growers based on the percentage of marketable almonds in the lot. 
Handlers do not pay growers for almonds classified as inedible. Web and 
frass can be removed from the kernels or kernel pieces during normal 
processing, thus making them suitable for human consumption. Because 
handlers pay growers based on the marketable almonds in each lot prior 
to processing, growers are not compensated for any additional 
marketable almonds made available due to web or frass removal after 
processing.
    Handlers disposition obligations are based on the inedible kernel 
content found in the lot prior to processing. When the web and frass 
are removed during processing, those kernels become marketable, thus 
making it difficult to generate enough inedible almonds to meet the 
disposition obligation with inedible almonds. Handlers then often 
purchase a mixture of inedible almonds and foreign material such as 
hulls, shells, etc., mixed with almond meats from a hulling and/or 
shelling operation to satisfy their disposition obligation. It has been 
determined that the revision of the definition of inedible kernel will 
make it easier for handlers to meet their inedible obligations because 
the disposition obligations will more accurately reflect the inedible 
percentage determined by the incoming inspection. This rule will better 
address the intent of the quality control program.
    For these reasons, the Board and its Quality Control Committee 
developed plans to further revise the definition. As a result, the 
Board unanimously recommended on May 16, 1994, to revise the definition 
of inedible kernel to eliminate kernels with attached frass and webbing 
from being classified as insect injury and therefore, inedible. This 
rule will not affect the U.S. Standards for Grades of Shelled Almonds.
    This revision is expected to improve the quality control program by 
making the definition of inedible kernel better reflect handler 
processing capabilities and providing more equity for handlers and 
growers. It may also result in growers being paid for marketable 
almonds which are currently being scored as inedible on incoming 
inspections and may result in higher returns to growers.
    Based on the above, the Administrator of the AMS has determined 
that this interim final rule will not have a significant economic 
impact on a substantial number of small entities.
    After consideration of all relevant material presented, including 
the Board's recommendation, it is found that this interim final rule, 
as hereinafter set forth, will tend to effectuate the declared policy 
of the Act.
    Pursuant to 5 U.S.C. 553, it is also found and determined upon good 
cause, that it is impracticable, unnecessary and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect, and that good cause exists for not postponing the effective 
date of this rule until 30 days after publication in the Federal 
Register because: (1) This rule relaxes requirements currently in 
effect; (2) this rule should be made effective as close to the 
beginning of the 1994-95 crop year as possible to be equitable and 
beneficial to growers and handlers; (3) this rule was unanimously 
recommended at a public meeting and all interested persons had an 
opportunity to provide input; (4) this rule is not controversial; and 
(5) this rule provides a 30-day comment period, and any comments 
received will be considered prior to finalization.

List of Subjects in 7 CFR Part 981

    Almonds, Marketing agreements, Nuts, Reporting and recording 
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 981.408 is revised to read as follows:


Sec. 981.408  Inedible kernel.

    Pursuant to Sec. 981.8, the definition of inedible kernel is 
modified to mean a kernel, piece, or particle of almond kernel with any 
defect scored as serious damage, or damage due to mold, gum, shrivel, 
or brown spot, as defined in the United States Standards for Shelled 
Almonds, or which has embedded dirt or other foreign material not 
easily removed by washing: Provided, That the presence of web or frass 
shall not be considered serious damage for the purposes of determining 
inedible kernels, pieces, or particles of almond kernels.

    Dated: July 28, 1994.
Eric M. Forman,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 94-18877 Filed 8-2-94; 8:45 am]
BILLING CODE 3410-02-P