[Federal Register Volume 64, Number 209 (Friday, October 29, 1999)]
[Rules and Regulations]
[Pages 58325-58328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28376]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 984
[Docket No. FV99-984-2 FR]
Walnuts Grown in California; Reporting Walnuts Grown Outside of
the United States and Received by California Handlers
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule revises the administrative rules and regulations of
the Federal marketing order for California walnuts (order) to require
handlers to report receipts of walnuts grown outside of the United
States. The order regulates the handling of walnuts grown in California
and is administered locally by the Walnut Marketing Board (Board).
Requiring handlers to report to the Board receipts of walnuts grown
outside of the United States will allow the Board to have better
information on the total available supply of walnuts within California,
which includes both California and foreign product. This will
facilitate program administration.
EFFECTIVE DATE: This rule becomes effective November 1, 1999.
FOR FURTHER INFORMATION CONTACT: Maureen T. Pello, Marketing
Specialist, California Marketing Field Office, Fruit and Vegetable
Programs, AMS, USDA, 2202 Monterey Street, suite 102B, Fresno,
California 93721; telephone: (559) 487-5901; Fax: (559) 487-5906; or
George Kelhart, Technical Advisor, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 96456, room
2525-S, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax:
(202) 720-5698. Small businesses may request information on complying
with this regulation by contacting Jay Guerber, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, P.O.
Box 96456, room 2525-S, Washington, DC 20090-6456; telephone (202) 720-
2491, Fax: (202) 720-5698, or E-mail: Jay.G[email protected].
SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing
Agreement and Order No. 984, both as amended (7 CFR part 984),
regulating the handling of walnuts grown in California, hereinafter
referred to as the ``order.'' The marketing agreement and order are
effective under the Agricultural Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.''
[[Page 58326]]
The Department of Agriculture (Department) is issuing this final
rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with 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. Such 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.
This final rule revises the order's administrative rules and
regulations to require handlers to report to the Board receipts of
walnuts grown outside of the United States. This will allow the Board
to have better information on the total available supply of walnuts
within California, which includes both California and foreign product,
which will facilitate program administration. This action was
unanimously recommended by the Board at a meeting on September 11,
1998.
Section 984.76 of the order provides authority for the Board, with
the approval of the Secretary, to require handlers to furnish reports
and information to the Board as needed to enable the Board to perform
its duties under the order. The Board meets during the season to make
decisions on various programs authorized under the order. These
programs include quality control (minimum grade and size requirements
for both inshell and shelled walnuts placed into channels of commerce),
volume regulation, and projects regarding production research, and
marketing research and development.
The Board would like to have better information on the total supply
of walnuts within California, which includes both California and
foreign product. The Board will use this information in its marketing
policy deliberations each fall when it reviews the crop estimate,
handler carryover, and other factors to determine whether volume
regulation would be appropriate. In addition, the Board has some
concerns that, particularly in short crop years when handlers may
import more walnuts to meet customer demands, imported walnuts could be
included in handler inventory reports of California walnuts. Accurate
information regarding the supply of walnuts within California is needed
by the Board in its administration of the order.
According to the National Agricultural Statistics Service, the 10-
year average annual production of California walnuts is 235,000 inshell
tons. Bureau of Census data indicates that the 10-year average annual
import figure for walnuts is 1,036.5 shelled tons. However, during
short crop years in California such as the 1992-93 (203,000 inshell
tons) and 1996-97 (208,000 inshell tons) seasons, imports increased to
8,046 and 5,806 shelled tons, respectively.
Thus, the Board recommended that handlers be required to report to
the Board receipts of walnuts grown outside of the United States. This
report, WMB Form No. 7, will be submitted to the Board four times per
year as follows: On or before November 5 for such walnuts received
during the period August 1 to October 31; on or before February 5 for
such walnuts received during the period November 1 to January 31; on or
before May 5 for such walnuts received during the period February 1 to
April 30; and on or before August 5 for such walnuts received during
the period May 1 to July 31. The report will include the quantity of
such walnuts received, country of origin, and whether such walnuts were
inshell or shelled. Given the effective date of this final rule, the
first reporting date will be February 5, 2000, for walnuts received
during the period November 1 to January 31.
The Board also recommended that, with each report, the handler
submit a copy of a product tag issued by the Dried Fruit Association of
California (DFA) for compliance purposes. The DFA is a private agency
designated under the marketing order to provide inspection services for
handlers to ensure that California walnuts meet minimum grade and size
requirements in effect under the order. The product tag will indicate
the name of the person from whom the walnuts were received, the date
the walnuts were received by the handler, the number of containers and
U.S. Custom's Service entry number, whether the product is inshell or
shelled, the quantity of walnuts, country of origin, the name of the
DFA inspector who issued the tag, and the date such tag was issued. The
Board believes product tags are necessary to verify handler receipt
reports for imported walnuts. Accordingly, a new Sec. 984.476 is added
to the orders' administrative rules and regulations.
Final Regulatory Flexibility Analysis and Paperwork Reduction Act
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the AMS has considered the economic impact of this rule on
small entities. Accordingly, AMS has prepared this final regulatory
flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 5,000 producers of walnuts in the
production area and approximately 50 handlers subject to regulation
under the order. Small agricultural producers have been defined by the
Small Business Administration (13 CFR 121.601) as those having annual
receipts less than $500,000, and small agricultural service firms are
defined as those whose annual receipts are less than $5,000,000. The
majority of producers of California walnuts may be classified as small
entities.
During the 1997-98 season, as a percentage, 33 percent of the
handlers shipped over 2.4 million kernelweight pounds of walnuts, and
67 percent of the handlers shipped under 2.4 million kernelweight
pounds of walnuts. Based on an average price of $2.10 per kernelweight
pound at the point of first sale, the majority of handlers of
California walnuts may be classified as small entities.
This rule adds a new Sec. 984.476 to the order's administrative
rules and regulations which requires handlers to report to the Board
receipts of walnuts grown outside of the United States. This will allow
the Board to have better information on the total available supply of
walnuts, including California and foreign product, which will
facilitate program administration. Authority for requiring handlers to
submit this information to the Board is provided in Sec. 984.76 of the
order.
[[Page 58327]]
Regarding the impact of this action on affected entities, this rule
should impose minimal additional costs. The Board estimates that about
six handlers have imported walnuts over the past few years. Such
handlers will be required to submit an additional report to the Board
four times per year along with tags issued by the DFA verifying
receipts of foreign product. The DFA currently provides inspection
services for all handlers of California walnuts and will be available
at no additional cost to issue product tags to handlers receiving
imports. Handlers will then submit these tags to the Board for
verification purposes.
An alternative to this action would be to not collect information
from handlers on receipts of imported walnuts. However, as previously
mentioned, the Board would like to have better information on the total
available supply of walnuts within California, which includes both
California and foreign product. The only way this information can be
obtained by the Board is to collect it from handlers. This information
will facilitate program administration by improving the Board's base of
information from which to make decisions.
The Board also recommended that a system be established for
monitoring walnuts grown outside of the United States that are received
by California handlers. Under the proposed monitoring system, DFA
inspectors would check whether or not foreign product had been
inspected and met the requirements of section 8e of the Act. Under
section 8e, whenever certain specified commodities are regulated under
a Federal marketing order, imports of that commodity must meet the same
or comparable grade, size, quality, and maturity requirements as those
in effect for the domestic commodity. Walnuts are included under
section 8e, and thus importers of walnuts are required to have such
walnuts inspected. However, it is the USDA's responsibility to ensure
that imported walnuts meet the requirements of section 8e. Thus, we are
not proceeding with this recommendation.
Finally, the Board considered whether it would be useful to collect
information on walnuts grown outside of California, but within the
United States. However, Board members agreed that the amount of such
walnuts was so small, it was not worth requiring handlers to report
such information.
This action imposes some additional reporting and recordkeeping
burden on handlers that receive walnuts grown outside of the United
States. It is estimated that six handlers may import walnuts during the
season. Such handlers will be required to submit a receipt report to
the Board four times per year. It is estimated that it will take such
handlers 5 minutes to complete each report. Thus, the additional annual
burden should total no more than 2 hours for the industry. The
information will be collected on WMB Form No. 7. That form has been
approved by the Office of Management and Budget (OMB) under OMB Control
No. 0581-0178. As with other similar marketing order programs, reports
and forms are periodically reviewed to reduce information requirements
and duplication by industry and public sector agencies.
The Department has identified one relevant Federal rule regarding
requirements for walnuts grown outside of the United States. As
previously stated, walnuts are included under section 8e. Thus,
importers of walnuts are required to have such walnuts inspected by the
USDA's inspection service. Importers whose walnuts meet section 8e
requirements do not have to submit any paperwork to the USDA. However,
importers whose walnuts fail section 8e requirements, or whose walnuts
are exempt from section 8e because such walnuts are so immature that
they cannot be used for drying and sale as dried walnuts (green
walnuts), or are being sent to designated outlets (animal feed,
processing, or charity) have to submit paperwork to the USDA. However,
only a small amount of information requested by the USDA in these
instances or by the Board through this rule, will be duplicative.
In addition, the Board's meeting on September 11, 1998, where this
action was deliberated was a public meeting widely publicized
throughout the walnut industry. This issue was also deliberated at an
earlier Board meeting on February 2, 1998, and at a Grades and
Standards Subcommittee meeting on June 5, 1998. All interested persons
were invited to attend these meetings and participate in the industry's
deliberations. A proposed rule concerning this action was published in
the Federal Register on August 19, 1999 (64 FR 45208). Copies of the
rule were mailed to all handlers, Board members, and alternate members.
The rule was also made available through the Internet by the Office of
the Federal Register. A 60-day comment period ending October 18, 1999,
was provided to allow interested persons to respond to the proposal. No
comments were received.
A small business guide on complying with fruit, vegetable, and
speciality crop marketing agreements and orders may be viewed at the
following web site: http://www.ams.usda.gov/fv/moab.html. Any questions
about the compliance guide should be sent to Jay Guerber at the
previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
After consideration of all relevant matter presented, including the
information and recommendation submitted by the Board and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
It is further found that good cause exists for not postponing the
effective date of this rule until 30 days after publication in the
Federal Register (5 U.S.C. 553) because: (1) The Board would like to
begin collecting this report as soon as possible in order to have
better information on the total supply of walnuts within California;
(2) the first report would be due to the Board on or before February 5,
2000; (3) handlers are aware of this rule which was unanimously
recommended at a public meeting; and (4) a 60-day comment period was
provided in the proposed rule; no comments were received.
List of Subjects in 7 CFR Part 984
Marketing agreements, Nuts, Reporting and recordkeeping
requirements, Walnuts.
For the reasons set forth in the preamble, 7 CFR part 984 is
amended as follows:
PART 984--WALNUTS GROWN IN CALIFORNIA
1. The authority citation for 7 CFR part 984 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. A new Sec. 984.476 is added to read as follows:
Sec. 984.476 Report of walnut receipts from outside of the United
States.
Each handler who receives walnuts from outside of the United States
shall file with the Board, on WMB Form No. 7, a report of the receipt
of such walnuts. The report shall be filed beginning with the February
5, 2000, report as follows: On or before November 5 for such walnuts
received during the period August 1 to October 31; on or before
February 5 for such walnuts received during the period November 1 to
January 31; on or before May 5 for such walnuts received during the
period February 1 to April 30; and on or before August 5 for such
walnuts received during the period May 1 to July 31. The report shall
include the quantity
[[Page 58328]]
of such walnuts received, the country of origin for such walnuts, and
whether such walnuts are inshell or shelled. With each report, the
handler shall submit a copy of a product tag issued by a DFA of
California inspector for each receipt of such walnuts that includes the
name of the person from whom such walnuts were received, the date such
walnuts were received by the handler, the number of containers and the
U.S. Custom's Service entry number, whether such walnuts are inshell or
shelled, the quantity of such walnuts received, the country of origin
for such walnuts, the name of the DFA of California inspector who
issued the product tag, and the date such tag was issued.
Dated: October 26, 1999.
Eric M. Forman,
Acting Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-28376 Filed 10-28-99; 8:45 am]
BILLING CODE 3410-02-P