[Federal Register Volume 74, Number 195 (Friday, October 9, 2009)]
[Proposed Rules]
[Pages 52154-52156]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24299]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / 
Proposed Rules  

[[Page 52154]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 984

[Doc. No. AMS-FV-09-0050; FV09-984-5 PR]


Walnuts Grown in California; Changes to Regulations Governing 
Voting Procedures

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule invites comments on revisions to the administrative 
regulations governing voting procedures for the California Walnut Board 
(Board). The Board locally administers the marketing order that 
regulates the handling of walnuts grown in California (order). This 
rule would specify the voting procedures to be used for expanded types 
of non-assembled meetings and remove voting by telegraph. This would 
enable the Board to conduct business using current communication 
methods, which would result in time and cost savings to the Board and 
its members.

DATES: Comments must be received by December 8, 2009.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. All comments should reference the document number 
and 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, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this rule 
will be included in the record and will be made available to the 
public. Please be advised that the identity of the individuals or 
entities submitting the comments will be made public on the Internet at 
the address provided above.

FOR FURTHER INFORMATION CONTACT: Debbie Wray, 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 request information on complying with this 
regulation 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, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This proposal is issued under Marketing 
Order No. 984, as amended (7 CFR part 984), regulating the handling of 
walnuts 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.
    This proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect.
    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 States 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 not later than 20 days after the date of 
the entry of the ruling.
    This proposal invites comments on revisions to the administrative 
regulations governing the Board's voting procedures to implement 
authority from a recent amendment to the order. It would expand the 
current procedures for voting by allowing voting by e-mail, facsimile, 
telephone, and videoconference, or by other means of communication. 
This proposal was unanimously recommended by the Board at a meeting on 
May 18, 2009.
    Section 984.45(b) of the California walnut marketing order 
specifies the percentage requirements for quorum and voting procedures 
of the Board. Section 984.45(c) of the order provides authority for the 
Board to vote by mail or telegram, or by any other means of 
communication, and to prescribe, with the approval of USDA, the minimum 
number of votes that must be cast, as well as any other procedures that 
are necessary when the voting is by any of these communication methods. 
Section 984.45(d) of the order provides authority for the Board to meet 
by telephone or other means of communication.
    Currently, Section 984.445 of the order's administrative 
regulations prescribes procedures for voting by mail or telegram but 
does not include procedures for voting by other means of communication, 
such as e-mail, facsimile, telephone, or videoconference.
    At its meeting on May 18, 2009, the Board discussed the need to 
change the order's administrative regulations to include the use of 
current communication technologies to conduct business at non-assembled 
meetings, as authorized by a recent amendment to the order (73 FR 
11328, March 3, 2008). Prior to the amendment, the Board had the 
authority to vote by mail or telegram upon due notice to all members 
but not to hold non-assembled meetings. As amended, the order provides 
for non-assembled meetings, but voting requirements and procedures for 
all such communication methods needed to be recommended by the Board 
and established through informal rulemaking. The Board unanimously 
recommended these changes at its meeting on May 18, 2009.

[[Page 52155]]

    Using current communication methods and technology to vote at non-
assembled meetings on matters deemed to be non-controversial, 
administrative, or of an emergency nature would result in cost savings 
by reducing time and travel expenses of Board members, many of whom are 
walnut producers and handlers who must travel long distances within 
California to attend meetings. Other Board expenses associated with 
holding assembled meetings, such as reserving meeting spaces, could 
also be reduced.
    This proposal would expand the procedures currently prescribed for 
voting by mail or telegram to include voting by e-mail and facsimile. 
In addition, reference to voting by telegram would be removed from the 
regulations since this communication method generally has been replaced 
by newer technology. Finally, voting by roll call would be prescribed 
for meetings conducted by telephone, videoconference, or any other 
method of communication that enables interaction of Board members to 
ensure each member's vote by such method is accurately recorded.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (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 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.
    There are currently 58 handlers of California walnuts subject to 
regulation under the marketing order, and there are approximately 4,500 
growers in the production area. Small agricultural service firms are 
defined by the Small Business Administration (SBA) (13 CFR 121.201) as 
those having annual receipts of less than $7,000,000, and small 
agricultural growers are defined as those having annual receipts of 
less than $750,000.
    USDA's National Agricultural Statistics Service (NASS) reports that 
California walnuts were harvested from a total of 223,000 bearing acres 
during 2008-09. The average yield for the 2008-09 crop was 1.96 tons 
per acre, which is higher than the 1.56 tons per acre average for the 
previous five years. NASS reported the value of the 2008-09 crop at 
$1,210 per ton, which is lower than the previous five-year average of 
$1,598 per ton.
    At the time of the 2007 Census of Agriculture, which is the most 
recent information available, approximately 89 percent of California's 
walnut farms were smaller than 100 acres. Fifty-four percent were 
between 1 and 15 acres. A 100-acre farm with an average yield of 1.96 
tons per acre would have been expected to produce about 196 tons of 
walnuts during 2008-09. At $1,210 per ton, that farm's production would 
have had an approximate value of $237,000. Assuming that the majority 
of California's walnut farms are still smaller than 100 acres, it could 
be concluded that the majority of the growers had receipts of less than 
$237,000 in 2008-09. This is well below the SBA threshold of $750,000; 
thus, the majority of California's walnut growers would be considered 
small growers according to SBA's definition.
    Industry information regarding the value of merchantable walnuts 
shipped by handlers during the 2008-09 marketing year is not yet 
available; however, the industry reported that during the 2007-08 
marketing year, approximately two-thirds of California's walnut 
handlers shipped merchantable walnuts valued under $7,000,000 and would 
therefore be considered small handlers according to the SBA definition.
    This proposal would revise procedures currently prescribed under 
Sec.  984.445 of the order for voting by mail and telegram to include 
other means of communication, including e-mail, facsimile, telephone, 
and videoconference. This revision to the regulations would incorporate 
authority from a recent amendment to the order concerning voting 
procedures and would allow the Board to conduct business at non-
assembled meetings using current methods of communication. Authority 
for this action is provided in Sec.  984.45 of the order.
    The majority of the Board's members are walnut producers and 
handlers who are located at various locations throughout California, 
and it can be difficult to assemble these members in one location for a 
meeting, especially during harvest season. By prescribing procedures 
for voting by the communication methods authorized by the order, the 
Board would be able to vote on non-controversial, administrative, or 
emergency matters at non-assembled meetings, which would reduce travel 
time and expenses for producer and handler Board members. Board 
expenses associated with holding assembled meetings, such as the cost 
of reserving a meeting room, would also be reduced.
    The Board unanimously recommended these changes, which are 
necessary to implement authority provided by a recent amendment to the 
order. Therefore, no alternatives to these changes were considered 
practicable.
    This action would not impose any additional reporting or 
recordkeeping requirements on either small or large walnut handlers. 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.
    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.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap or conflict with this proposed rule.
    The Board's meeting was widely publicized throughout the walnut 
industry, and all interested persons were invited to attend the meeting 
and participate in Board deliberations on all issues. Like all Board 
meetings, the May 18, 2009, meeting was a public meeting, and all 
entities, both large and small, were able to express views on this 
issue. Finally, interested persons are invited to submit comments on 
this proposed rule, including the regulatory and informational impacts 
of this action on small businesses.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to 
Jay Guerber at the previously mentioned address in the FOR FURTHER 
INFORMATION CONTACT section.
    A 60-day comment period is provided to allow interested persons to 
respond to this proposal. All written comments timely received will be 
considered before a final determination is made on this matter.

List of Subjects in 7 CFR Part 984

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

[[Page 52156]]

    For the reasons set forth in the preamble, 7 CFR part 984 is 
proposed to be 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. Section 984.445 is revised to read as follows:


Sec.  984.445  Procedures for voting by mail, e-mail, telephone, 
videoconference, facsimile, or any other means of communication.

    (a) Whenever the Board votes upon any proposition by mail, e-mail, 
or facsimile, at least six members or alternates acting as members must 
vote and one dissenting vote shall prevent its adoption. Each 
proposition to be voted upon by mail, e-mail, or facsimile shall 
specify a time limit for members to vote, after which the alternates 
shall be given the opportunity to vote.
    (b) Whenever the Board conducts meetings by telephone, 
videoconference, or any technology that enables member interaction, the 
vote shall be conducted by roll call.

    Dated: October 1, 2009.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. E9-24299 Filed 10-8-09; 8:45 am]
BILLING CODE P