[Federal Register Volume 74, Number 189 (Thursday, October 1, 2009)]
[Rules and Regulations]
[Pages 50681-50683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23648]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 981

[Doc. No. AMS-FV-08-0045; FV08-981-2 FIR]


Almonds Grown in California; Revision of Outgoing Quality Control 
Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Affirmation of interim final rule as final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting as a final 
rule, without change, an interim final rule that revised the outgoing 
quality control regulations issued under the California almond 
marketing order (order). The interim final rule revised the term 
``validation'' under the Salmonella bacteria (Salmonella) treatment 
program by specifying that validation data must be both submitted to 
and accepted by the Almond Board of California's (Board) Technical 
Expert Review Panel (TERP) for all treatment equipment prior to its use 
under this program. The interim final rule was necessary to ensure that 
all treatment equipment meets a 4-log reduction of Salmonella in 
almonds.

DATES: Effective Date: Effective October 2, 2009.

FOR FURTHER INFORMATION CONTACT: Terry Vawter, Senior Marketing 
Specialist, or Kurt J. Kimmel, Regional Manager, California Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 
487-5906, or E-mail: [email protected], or 
[email protected].
    Small businesses may obtain information on complying with this and 
other marketing order regulations by viewing a guide at the following 
Web site: http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide; or by contacting Jay Guerber, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 
Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237;

[[Page 50682]]

Telephone: (202) 720-2491, Fax: (202) 720-8938, or E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order 
No. 981, as amended (7 CFR part 981), regulating the handling of 
almonds grown in California, hereinafter referred to as the ``order.'' 
The order is effective under 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 (USDA) is issuing this rule in 
conformance with Executive Order 12866.
    The order is administered locally by the Board. Under the order, 
handlers are required to treat shipments of almonds to reduce the 
potential for Salmonella contamination, with limited exceptions. 
Various equipment systems must be in place and must be ``validated'' by 
the Board's TERP to ensure that treatments meet a required 4-log 
reduction of Salmonella in almonds destined for consumers in the United 
States, Canada, and Mexico. The TERP consists of four scientists, with 
a representative from the Food and Drug Administration serving as an 
ex-officio member.
    In an interim final rule published in the Federal Register on June 
18, 2009, and effective on June 19, 2009 (74 FR 28872, Doc. No. AMS-FV-
08-0045; FV08-981-2 IFR), Sec.  981.442 was amended by specifying that 
validation means that the treatment technology and equipment have been 
demonstrated to achieve in total a minimum 4-log reduction of 
Salmonella bacteria in almonds. Validation data must be both submitted 
to and accepted by the TERP for each piece of equipment used to treat 
almonds prior to its use under the program. Prior to the change, the 
regulation did not specify that validation data must be both submitted 
to and accepted by the TERP for each piece of equipment prior to its 
use under the program.

Final Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Agricultural Marketing Service (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 6,200 producers of almonds in the 
production area and approximately 100 handlers subject to regulation 
under the marketing order. Additionally, the Board estimates there are 
about 15 process authorities and 30 almond manufacturers under the 
Salmonella treatment program. Small agricultural producers are defined 
by the Small Business Administration (13 CFR 121.201) as those having 
annual receipts of less than $750,000, and small agricultural service 
firms are defined as those whose annual receipts are less than 
$7,000,000.
    Data for the most recently-completed crop year indicate that about 
50 percent of the handlers shipped under $7,000,000 worth of almonds. 
Dividing average almond crop value for 2006-07 reported by the National 
Agricultural Statistics Service of $2.258 billion by the number of 
producers (6,200) yields an average annual producer revenue estimate of 
about $364,190. Based on the foregoing, about half of the handlers and 
a majority of almond producers may be classified as small entities. 
While data regarding the size of the process authorities and almond 
manufacturers is not available, it may be assumed that some process 
authorities and manufacturers may be classified as small entities.
    This rule continues in effect the action that revised Sec.  
981.442(b)(3)(i) of the order's administrative rules and regulations 
specifying that the term ``validation'' under the Salmonella treatment 
program means that validation data must be both submitted to and 
accepted by the TERP for each piece of treatment equipment prior to its 
use under the program. This revision will help ensure that all 
treatment equipment meets the program's 4-log requirement prior to its 
use. Authority for this action is provided in Sec.  981.42(b) of the 
order.
    Regarding the overall impact of this action on the affected 
entities, it is expected to be minimal. Validation data had previously 
been submitted to the Board's TERP for review. This interim final rule 
simply specified that such data must be accepted by the TERP for all 
treatment equipment prior to its use under the program.
    The Board's Food Quality and Safety Committee (committee) met prior 
to the board meeting to consider this change. The committee considered 
the alternative to this action, which maintained the status quo whereby 
equipment could be used under the program that had completed validation 
testing, but had not been accepted by the TERP. The committee, and 
subsequently the Board, concluded that acceptance by the TERP was 
important in order to help ensure that all treatment equipment 
consistently meets the 4-log requirement of the program.
    The Board, with the expertise of various committees and 
subcommittees, makes recommendations regarding the revisions to the 
marketing order rules and regulations after consideration of all 
available information, including comments received by Board staff. At 
the meetings, the impact of and alternatives to these recommendations 
are deliberated. The Board and its committees and subcommittees consist 
of individual producers and handlers with many years of experience in 
the industry, who are familiar with industry practices and trends. All 
Board, committee, and subcommittee meetings are open to the public and 
comments are widely solicited. In addition, minutes of all meetings are 
distributed to Board, committee, and subcommittee members and others 
who have requested them, and are also posted on the board's Web site, 
thereby increasing the availability of this critical information within 
the industry.
    This rule will not impose any additional reporting and 
recordkeeping requirements on California almonds handlers, process 
authorities, or almond manufacturers. 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. In addition, USDA has not identified any relevant Federal 
rules that duplicate, overlap, or conflict with this rule.
    Further, the subcommittee, committee, and Board meetings where this 
issue was discussed were widely publicized throughout the California 
almond industry, and all interested persons were encouraged to attend 
the meetings and participate in deliberations on all issues. The issue 
was discussed at two Food Quality and Safety Committee meetings in 
April 2008 and at two Board meetings, one in April and one in May 2008. 
All of these meetings were public meetings, and all entities, both 
large and small, were able to express views on this issue.
    Comments on the interim final rule were required to be received on 
or before August 17, 2009. No comments were received. Therefore, for 
the reasons given in the interim final rule, we are

[[Page 50683]]

adopting the interim final rule as a final rule, without change.
    To view the interim final rule, go to http://www.regulations.gov/search/Regs/home.html#documentDetail?R=09000064809d2903.
    This action also affirms information contained in the interim final 
rule concerning Executive Orders 12866 and 12988, the Paperwork 
Reduction Act (44 U.S.C. Chapter 35), and the E-Gov Act (44 U.S.C. 
101).
    After consideration of all relevant material presented, it is found 
that finalizing the interim final rule, without change, as published in 
the Federal Register (74 FR 28872, June 18, 2009) will tend to 
effectuate the declared policy of the Act.

List of Subjects in 7 CFR Part 981

    Almonds, Marketing agreements, Nuts, Reporting and recordkeeping 
requirements.

PART 981--ALMONDS GROWN IN CALIFORNIA

    Accordingly, the interim final rule that amended 7 CFR part 981 and 
that was published at 74 FR 28872, on June 18, 2009, is adopted as a 
final rule, without change.

    Dated: September 25, 2009.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. E9-23648 Filed 9-30-09; 8:45 am]
BILLING CODE 3410-02-P