Walnuts Grown in California; Increased Assessment Rate, 43378-43381 [E8-17088]
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Federal Register / Vol. 73, No. 144 / Friday, July 25, 2008 / Proposed Rules
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 rule.
A small business guide on complying
with fruit, vegetable, and specialty crop
marketing agreements and orders may
be viewed at: https://www.ams.usda.gov/
AMSv1.0/ams.fetchTemplateData.do?
template=TemplateN&page=Marketing
OrdersSmallBusinessGuide. 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 15-day comment period is provided
to allow interested persons to respond
to this proposed rule. Fifteen days is
deemed appropriate because: (1) The
2008–2009 fiscal period begins on July
1, 2008, and the marketing order
requires that the rate of assessment for
each fiscal period apply to all assessable
potatoes handled during such fiscal
period; (2) the northern Colorado potato
shipping season begins in July; (3) the
Committee needs to have sufficient
funds to pay for expenses which are
incurred on a continuous basis; and (4)
handlers are aware of this action which
was recommended by the Committee at
a public meeting and is similar to other
assessment rate actions issued in past
years.
List of Subjects in 7 CFR Part 948
Marketing agreements, Potatoes,
Reporting and recordkeeping
requirements.
For the reasons set forth in the
preamble, 7 CFR part 948 is proposed to
be amended as follows:
PART 948—IRISH POTATOES GROWN
IN COLORADO
1. The authority citation for 7 CFR
part 948 continues to read as follows:
Authority: 7 U.S.C. 601–674.
jlentini on PROD1PC65 with PROPOSALS
2. In part 948, the suspension of
§ 948.215 is lifted.
Dated: July 22, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing
Service.
[FR Doc. E8–17089 Filed 7–24–08; 8:45 am]
BILLING CODE 3410–02–P
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DEPARTMENT OF AGRICULTURE
2491, Fax: (202) 720–8938, or e-mail:
Jay.Guerber@usda.gov.
Agricultural Marketing Service
This rule
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 rule has been reviewed under
Executive Order 12988, Civil Justice
Reform. Under the marketing order now
in effect, California walnut handlers are
subject to assessments. Funds to
administer the order are derived from
such assessments. It is intended that the
assessment rate as proposed herein
would be applicable to all assessable
walnuts beginning on August 1, 2008,
and continue until amended,
suspended, or terminated. 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 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. Such
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 rule would increase the
assessment rate established for the
Board for the 2008–09 and subsequent
marketing years from $0.0122 to $0.0158
per kernelweight pound of assessable
walnuts. The 2008–09 marketing year
begins on August 1, 2008, and ends on
August 31, 2009. Due to a recent
amendment to the order changing the
definition of marketing year, the 2008–
09 marketing year will cover a 13-month
period (73 FR 11328, March 3, 2008).
Subsequent marketing years will cover a
7 CFR Part 984
[Docket No. AMS–FV–08–0054; FV08–984–
1 PR]
Walnuts Grown in California; Increased
Assessment Rate
Agricultural Marketing Service,
USDA.
ACTION: Proposed rule.
AGENCY:
SUMMARY: This rule would increase the
assessment rate established for the
California Walnut Board (Board) for the
2008–09 marketing year from $0.0122 to
$0.0158 per kernelweight pound of
assessable walnuts. The Board locally
administers the marketing order which
regulates the handling of walnuts grown
in California. Assessments upon walnut
handlers are used by the Board to fund
reasonable and necessary expenses of
the program. The 2008–09 marketing
year begins August 1, 2008. The
assessment rate would remain in effect
indefinitely unless modified,
suspended, or terminated.
DATES: Comments must be received by
August 11, 2008.
ADDRESSES: Interested persons are
invited to submit written comments
concerning this rule. 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: https://
www.regulations.gov. Comments should
reference the docket number and the
date and page number of this issue of
the Federal Register and will be
available for public inspection in the
Office of the Docket Clerk during regular
business hours, or can be viewed at:
https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Martin J. Engeler, 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:
Martin.Engeler@usda.gov, or
Kurt.Kimmel@usda.gov.
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–
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SUPPLEMENTARY INFORMATION:
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Federal Register / Vol. 73, No. 144 / Friday, July 25, 2008 / Proposed Rules
12-month period from September 1
through August 31.
The California walnut marketing
order provides authority for the Board,
with the approval of USDA, to formulate
an annual budget of expenses and
collect assessments from handlers to
administer the program. The members
of the Board are producers and handlers
of California walnuts. They are familiar
with the Board’s needs and the costs for
goods and services in their local area
and are thus in a position to formulate
an appropriate budget and assessment
rate. The assessment rate is formulated
and discussed at a public meeting.
Thus, all directly affected persons have
an opportunity to participate and
provide input.
For the 2007–08 and subsequent
marketing years, the Board
recommended, and USDA approved, an
assessment rate of $0.0122 per
kernelweight pound of assessable
walnuts that would continue in effect
from year to year unless modified,
suspended, or terminated by USDA
upon recommendation and information
submitted by the Board or other
information available to USDA.
The Board met on May 28, 2008, and
unanimously recommended 2008–09
expenditures of $4,594,300 and an
assessment rate of $0.0158 per
kernelweight pound of assessable
43379
walnuts. In comparison, 2007–08
budgeted expenditures were $3,777,120.
The assessment rate of $0.0158 per
kernelweight pound of assessable
walnuts is $0.0036 per pound higher
than the rate currently in effect. The
increased assessment rate is necessary
to cover increased expenses in the areas
of domestic market promotion,
production research activities, and
Board operating expenses. The higher
assessment rate should generate
sufficient income to cover anticipated
2008–09 expenses.
The following table compares major
budget expenditures recommended by
the Board for the 2007–08 and 2008–09
marketing years:
Budget expense categories
2007–08
Employee Expenses ................................................................................................................................................
Travel/Board Expenses ...........................................................................................................................................
Office Costs/Annual Audit ........................................................................................................................................
Program Expenses Including Research Controlled Purchases ..............................................................................
Crop Acreage Survey ..............................................................................................................................................
Crop Estimate ..........................................................................................................................................................
Production Research * .............................................................................................................................................
Domestic Market Development ...............................................................................................................................
Reserve for Contingency .........................................................................................................................................
$438,600
86,000
139,500
5,000
85,000
100,000
730,000
2,002,000
191,020
2008–09
$410,500
100,000
142,500
5,000
110,000
805,000
2,935,000
56,300
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* Includes Research Director’s compensation.
The assessment rate recommended by
the Board was derived by dividing
anticipated expenses by expected
shipments of California walnuts
certified as merchantable. Merchantable
shipments for the year are estimated at
290,773,800 kernelweight pounds
which should provide $4,594,300 in
assessment income and allow the Board
to cover its expenses. Unexpended
funds may be retained in a financial
reserve, provided that funds in the
financial reserve do not exceed
approximately two year’s budgeted
expenses. If not retained in a financial
reserve, unexpended funds may be used
temporarily to defray expenses of the
subsequent marketing year, but must be
made available to the handlers from
whom collected within 5 months after
the end of the year, according to
§ 984.69 of the order.
The estimate for merchantable
shipments is based on historical data,
which is the prior year’s production of
323,082 tons (inshell). Pursuant to
§ 984.51(b) of the order, this figure was
converted to a merchantable
kernelweight basis using a factor of .45
(323,082 tons × 2,000 pounds per ton ×
.45).
The proposed assessment rate would
continue in effect indefinitely unless
modified, suspended, or terminated by
USDA upon recommendation and
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information submitted by the Board or
other available information.
Although this assessment rate would
be in effect for an indefinite period, the
Board would continue to meet prior to
or during each marketing year to
recommend a budget of expenses and
consider recommendations for
modification of the assessment rate. The
dates and times of Board meetings are
available from the Board or USDA.
Board meetings are open to the public
and interested persons may express
their views at these meetings. USDA
would evaluate Board recommendations
and other available information to
determine whether modification of the
assessment rate is needed. Further
rulemaking would be undertaken as
necessary. The Board’s 2008–09 budget
and those for subsequent fiscal periods
would be reviewed and, as appropriate,
approved by USDA.
Initial 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 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
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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
approximately 4,000 producers in the
production area. Small agricultural
service firms are defined by the Small
Business Administration (SBA) (13 CFR
121.201) as those whose annual receipts
are less than $6,500,000, and small
agricultural producers are defined as
those whose annual receipts are less
than $750,000.
Industry information for the most
recent complete season indicates that 18
of 53 handlers (34 percent) shipped over
$6,500,000 of merchantable walnuts and
could be considered large handlers by
the SBA. Thirty-five of 53 walnut
handlers (66 percent) shipped under
$6,500,000 of merchantable walnuts and
could be considered small handlers.
The number of large walnut growers
(annual walnut revenue greater than
$750,000) can be estimated as follows.
According to the National Agricultural
Statistics Service (NASS), the two-year
average yield per acre for 2005 and 2006
is approximately 1.63 tons. A grower
with 287 acres with an average yield of
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Federal Register / Vol. 73, No. 144 / Friday, July 25, 2008 / Proposed Rules
1.63 tons per acre would produce
approximately 468 tons. The season
average of grower prices for 2005 and
2006 published by NASS is $1,600 per
ton. At that average price, the 468 tons
produced on 287 acres would yield
slightly less than $750,000 in annual
revenue. The 2002 Agricultural Census
indicated two percent of walnut farms
were between 250 and 500 acres in size.
The 287 acres would produce, on
average, slightly less than the small
business threshold level of $750,000 in
annual revenue from walnuts, and is
near the lower end of the 250 to 500
acreage range category of the 2002
census. Thus, it can be concluded that
the number of large walnut farms in
2006 was likely around two percent.
Based on the foregoing, it can be
concluded that the majority of
California walnut handlers and
producers may be classified as small
entities.
This rule would increase the
assessment rate established for the
Board and collected from handlers for
the 2008–09 and subsequent marketing
years from $0.0122 per kernelweight
pound of assessable walnuts to $0.0158
per kernelweight pound of assessable
walnuts. The Board unanimously
recommended 2008–09 expenditures of
$4,594,300 and an assessment rate of
$0.0158 per kernelweight pound of
assessable walnuts. The proposed
assessment rate of $0.0158 is $0.0036
higher than the rate currently in effect.
The quantity of assessable walnuts for
the 2008–09 marketing year is estimated
at 323,082 tons. Thus, the $0.0158 rate
should provide $4,594,300 in
assessment income and be adequate to
meet the year’s expenses. The increased
assessment rate is primarily due to
increased budget expenditures.
The following table compares major
budget expenditures recommended by
the Board for the 2007–08 and 2008–09
fiscal years:
Budget expense categories
2007–08
Employee Expenses ................................................................................................................................................
Travel/Board Expenses ...........................................................................................................................................
Office Costs/Annual Audit ........................................................................................................................................
Program Expenses Including Research Controlled Purchases ..............................................................................
Crop Acreage Survey ..............................................................................................................................................
Crop Estimate ..........................................................................................................................................................
Production Research * .............................................................................................................................................
Domestic Market Development ...............................................................................................................................
Reserve for Contingency .........................................................................................................................................
$438,600
86,000
139,500
5,000
85,000
100,000
730,000
2,002,000
191,020
2008–09
$410,500
100,000
142,500
5,000
........................
110,000
805,000
2,935,000
56,300
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* Includes Research Director’s compensation.
The Board reviewed and unanimously
recommended 2008–09 expenditures of
$4,954,300. Prior to arriving at this
budget, the Board considered alternative
expenditure levels, but ultimately
decided that the recommended levels
were reasonable to properly administer
the order. The assessment rate
recommended by the Board was derived
by dividing anticipated expenses by
expected shipments of California
walnuts certified as merchantable.
Merchantable shipments for the year are
estimated at 290,773,800 kernelweight
pounds which should provide
$4,954,300 in assessment income and
allow the Board to cover its expenses.
Unexpended funds may be retained in
a financial reserve, provided that funds
in the financial reserve do not exceed
approximately two years’ budgeted
expenses. If not retained in a financial
reserve, unexpended funds may be used
temporarily to defray expenses of the
subsequent marketing year, but must be
made available to the handlers from
whom collected within 5 months after
the end of the year, according to
§ 984.69 of the order.
According to NASS, the season
average grower price for 2006 was
$1,630 per ton. Although no official
NASS data is available regarding the
2007 average grower price, industry
information indicates that it could be
higher than the 2006 average grower
price. Dividing the 2006 price of $1,630
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16:33 Jul 24, 2008
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by 2,000 pounds per ton provides an
inshell equivalent price per pound of
$0.815. Dividing this inshell price per
pound by the 0.45 conversion factor
(inshell to kernelweight) established in
the order yields a 2006 average
equivalent grower price of $1.81 per
kernelweight pound of assessable
walnuts.
To calculate the percentage of grower
revenue represented by the assessment
rate for 2006, the assessment rate of
$0.0122 (per kernelweight pound) is
divided by the estimated average grower
price. This results in estimated
assessment revenue for the 2006
marketing year as a percentage of total
grower revenue of .674 percent. As
previously mentioned, NASS data for
2007 is not yet available. However,
applying the same calculations above
utilizing 2006 price levels and the
proposed assessment rate would result
in estimated assessment revenue as a
percentage of total grower revenue of
0.873 percent for the 2008 season.
Because 2007 average grower prices are
expected to be higher than 2006 levels,
and could continue at the higher level
into the 2008 season, it is expected that
2008 assessment revenue as a
percentage of grower revenue will be
less than the 0.873 percent expressed
above. In any event, it is estimated that
assessment revenue will be well below
one percent of estimated grower revenue
in 2008.
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This action would increase the
assessment obligation imposed on
handlers. While assessments impose
some additional costs on handlers, the
costs are minimal and uniform on all
handlers. Some of the additional costs
may be passed on to producers.
However, these costs would be offset by
the benefits derived by the operation of
the marketing order. In addition, the
Board’s meeting was widely publicized
throughout the California 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
28, 2008, 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.
This proposed rule would impose no
additional reporting or recordkeeping
requirements on either small or large
California 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 Internet and other information
technologies to provide increased
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Federal Register / Vol. 73, No. 144 / Friday, July 25, 2008 / Proposed Rules
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 rule.
A small business guide on complying
with fruit, vegetable, and specialty crop
marketing agreements and orders may
be viewed at: https://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 15-day comment period is provided
to allow interested persons to respond
to this proposed rule. Fifteen days is
deemed appropriate because: (1) The
2008–09 marketing year will begin on
August 1, 2008, and the marketing order
requires that the rate of assessment for
each year apply to all assessable
walnuts handled during the year; (2) the
Board needs to have sufficient funds to
pay its expenses which are incurred on
a continuous basis; and (3) handlers are
aware of this action which was
unanimously recommended by the
Board at a public meeting and is similar
to other assessment rate actions issued
in past years.
List of Subjects in 7 CFR Part 984
Walnuts, Marketing agreements, Nuts,
Reporting and recordkeeping
requirements.
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 984.347 is revised to read
as follows:
§ 984.347
Assessment rate.
jlentini on PROD1PC65 with PROPOSALS
On and after August 1, 2008, an
assessment rate of $0.0158 per
kernelweight pound is established for
California merchantable walnuts.
Dated: July 22, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing
Service.
[FR Doc. E8–17088 Filed 7–24–08; 8:45 am]
BILLING CODE 3410–02–P
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16:33 Jul 24, 2008
Jkt 214001
NUCLEAR REGULATORY
COMMISSION
10 CFR Part 20
[Docket No. PRM–20–26; NRC–2005–0017]
James Salsman; Denial of Petition for
Rulemaking
Nuclear Regulatory
Commission.
ACTION: Denial of petition for
rulemaking.
AGENCY:
SUMMARY: The Nuclear Regulatory
Commission (NRC) is denying a petition
for rulemaking (PRM–20–26) submitted
by James Salsman (petitioner). The
petitioner requested that NRC amend its
regulations to modify exposure and
environmental limits for heavy metal
radionuclides, in particular uranium.
NRC is denying the petition because
current NRC regulations provide
adequate protection of public health and
safety. The petitioner has not presented
sufficient peer-reviewed data, pertinent
to the types and levels of exposures
associated with the concentration values
used in NRC’s regulations, to provide a
sufficient reason for NRC to initiate a
revision of its regulations. Thus, the
NRC has decided not to expend limited
resources on initiating a rulemaking at
this time.
ADDRESSES: You can access publicly
available documents related to this
petition for rulemaking using the
following methods:
Federal e-Rulemaking Portal: Go to
https://www.regulations.gov and search
for documents filed under Docket ID
[NRC–2008–0017].
NRC’s Public Document Room (PDR):
The public may examine and have
copied for a fee publicly available
documents at the NRC’s PDR, Public
File Area O1 F21, One White Flint
North, 11555 Rockville Pike, Rockville,
Maryland.
NRC’s Agencywide Documents
Access and Management System
(ADAMS): Publicly available documents
created or received at the NRC are
available electronically at the NRC’s
electronic Reading Room at https://
www.nrc.gov/reading-rm/adams.html.
From this page, the public can gain
entry into ADAMS, which provides text
and image files of NRC’s public
documents. If you do not have access to
ADAMS or if there are problems in
accessing the documents located in
ADAMS, contact the NRC PDR reference
staff at 1–899–397–4209, 301–415–4737,
or by e-mail to pdr.resource@nrc.gov.
FOR FURTHER INFORMATION CONTACT:
Frank Cardile, Office of Federal and
PO 00000
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43381
State Materials and Environmental
Management Programs, U.S. Nuclear
Regulatory Commission, Washington,
DC 20555–0001, telephone (301) 415–
6185, e-mail frank.cardile@nrc.gov.
SUPPLEMENTARY INFORMATION:
I. The Petition
On June 15, 2005 (70 FR 34699), NRC
published a notice of receipt of a
petition for rulemaking filed by James
Salsman. The petitioner requested that
NRC revise its regulations in 10 CFR
part 20 that specify limits for ingestion
and inhalation occupational values,
effluent concentrations, and releases to
sewers, for heavy metal radionuclides,
with nonradiological chemical toxicity
hazards exceeding that of their
radiological hazards so that those limits
properly reflect the hazards associated
with danger to organs, reproductive
toxicity, and all other known
nonradiological aspects of heavy metal
toxicity. Specifically, the petition
focused on uranium toxicity. The
petitioner also requested that the
classification for uranium trioxide
within Class W, given in the Class
column of the table for Uranium-230 in
Appendix B to 10 CFR part 20, be
amended to Class D. In addition, the
petitioner requested that monomeric
(monomolecular) uranium trioxide gas,
as produced by the oxidation of U3O8 at
temperatures above 1000° Celsius, be
assigned its own unique solubility class
if necessary, when its solubility
characteristics become known.
In providing support for the petition,
the petitioner states that NRC’s
regulations were designed to address
only the radiological hazard of uranium,
and not heavy metal toxicity which is
known to be about six orders of
magnitude worse. The petitioner
believes that current regulations allow
intake of more soluble compounds than
insoluble compounds and that, in
practice, the soluble compounds are
more toxic than the insoluble
compounds. The petitioner states that
this should indicate that long half-life
uranium isotope standards need to be
revised.
The petitioner states that the current
NRC regulations allow an annual
inhalation of more than two grams of
uranium. The petitioner also states that
because ‘‘...the LD50/30 [lethal dose to
50 percent of a population in 30 days]
of uranyl nitrate (which has
considerably less uranyl ion per unit of
mass than uranium trioxide) is 2.1 mg/
kg in rabbits, 12.6 mg/kg in dogs, 48 mg/
kg in rats, and 51 mg/kg in guinea pigs
and albino mice,’’ two grams of UO3
seems very likely to comprise a fatal
dose for a 200 pound human (Gmelin
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]]>Agencies
[Federal Register Volume 73, Number 144 (Friday, July 25, 2008)]
[Proposed Rules]
[Pages 43378-43381]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-17088]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 984
[Docket No. AMS-FV-08-0054; FV08-984-1 PR]
Walnuts Grown in California; Increased Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This rule would increase the assessment rate established for
the California Walnut Board (Board) for the 2008-09 marketing year from
$0.0122 to $0.0158 per kernelweight pound of assessable walnuts. The
Board locally administers the marketing order which regulates the
handling of walnuts grown in California. Assessments upon walnut
handlers are used by the Board to fund reasonable and necessary
expenses of the program. The 2008-09 marketing year begins August 1,
2008. The assessment rate would remain in effect indefinitely unless
modified, suspended, or terminated.
DATES: Comments must be received by August 11, 2008.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. 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: https://
www.regulations.gov. Comments should reference the docket number and
the date and page number of this issue of the Federal Register and will
be available for public inspection in the Office of the Docket Clerk
during regular business hours, or can be viewed at: https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Martin J. Engeler, 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: Martin.Engeler@usda.gov, or Kurt.Kimmel@usda.gov.
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: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This rule 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 rule has been reviewed under Executive Order 12988, Civil
Justice Reform. Under the marketing order now in effect, California
walnut handlers are subject to assessments. Funds to administer the
order are derived from such assessments. It is intended that the
assessment rate as proposed herein would be applicable to all
assessable walnuts beginning on August 1, 2008, and continue until
amended, suspended, or terminated. 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 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. Such
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 rule would increase the assessment rate established for the
Board for the 2008-09 and subsequent marketing years from $0.0122 to
$0.0158 per kernelweight pound of assessable walnuts. The 2008-09
marketing year begins on August 1, 2008, and ends on August 31, 2009.
Due to a recent amendment to the order changing the definition of
marketing year, the 2008-09 marketing year will cover a 13-month period
(73 FR 11328, March 3, 2008). Subsequent marketing years will cover a
[[Page 43379]]
12-month period from September 1 through August 31.
The California walnut marketing order provides authority for the
Board, with the approval of USDA, to formulate an annual budget of
expenses and collect assessments from handlers to administer the
program. The members of the Board are producers and handlers of
California walnuts. They are familiar with the Board's needs and the
costs for goods and services in their local area and are thus in a
position to formulate an appropriate budget and assessment rate. The
assessment rate is formulated and discussed at a public meeting. Thus,
all directly affected persons have an opportunity to participate and
provide input.
For the 2007-08 and subsequent marketing years, the Board
recommended, and USDA approved, an assessment rate of $0.0122 per
kernelweight pound of assessable walnuts that would continue in effect
from year to year unless modified, suspended, or terminated by USDA
upon recommendation and information submitted by the Board or other
information available to USDA.
The Board met on May 28, 2008, and unanimously recommended 2008-09
expenditures of $4,594,300 and an assessment rate of $0.0158 per
kernelweight pound of assessable walnuts. In comparison, 2007-08
budgeted expenditures were $3,777,120. The assessment rate of $0.0158
per kernelweight pound of assessable walnuts is $0.0036 per pound
higher than the rate currently in effect. The increased assessment rate
is necessary to cover increased expenses in the areas of domestic
market promotion, production research activities, and Board operating
expenses. The higher assessment rate should generate sufficient income
to cover anticipated 2008-09 expenses.
The following table compares major budget expenditures recommended
by the Board for the 2007-08 and 2008-09 marketing years:
------------------------------------------------------------------------
Budget expense categories 2007-08 2008-09
------------------------------------------------------------------------
Employee Expenses....................... $438,600 $410,500
Travel/Board Expenses................... 86,000 100,000
Office Costs/Annual Audit............... 139,500 142,500
Program Expenses Including Research 5,000 5,000
Controlled Purchases...................
Crop Acreage Survey..................... 85,000
Crop Estimate........................... 100,000 110,000
Production Research *................... 730,000 805,000
Domestic Market Development............. 2,002,000 2,935,000
Reserve for Contingency................. 191,020 56,300
------------------------------------------------------------------------
* Includes Research Director's compensation.
The assessment rate recommended by the Board was derived by
dividing anticipated expenses by expected shipments of California
walnuts certified as merchantable. Merchantable shipments for the year
are estimated at 290,773,800 kernelweight pounds which should provide
$4,594,300 in assessment income and allow the Board to cover its
expenses. Unexpended funds may be retained in a financial reserve,
provided that funds in the financial reserve do not exceed
approximately two year's budgeted expenses. If not retained in a
financial reserve, unexpended funds may be used temporarily to defray
expenses of the subsequent marketing year, but must be made available
to the handlers from whom collected within 5 months after the end of
the year, according to Sec. 984.69 of the order.
The estimate for merchantable shipments is based on historical
data, which is the prior year's production of 323,082 tons (inshell).
Pursuant to Sec. 984.51(b) of the order, this figure was converted to
a merchantable kernelweight basis using a factor of .45 (323,082 tons x
2,000 pounds per ton x .45).
The proposed assessment rate would continue in effect indefinitely
unless modified, suspended, or terminated by USDA upon recommendation
and information submitted by the Board or other available information.
Although this assessment rate would be in effect for an indefinite
period, the Board would continue to meet prior to or during each
marketing year to recommend a budget of expenses and consider
recommendations for modification of the assessment rate. The dates and
times of Board meetings are available from the Board or USDA. Board
meetings are open to the public and interested persons may express
their views at these meetings. USDA would evaluate Board
recommendations and other available information to determine whether
modification of the assessment rate is needed. Further rulemaking would
be undertaken as necessary. The Board's 2008-09 budget and those for
subsequent fiscal periods would be reviewed and, as appropriate,
approved by USDA.
Initial 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 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 approximately 4,000 producers
in the production area. Small agricultural service firms are defined by
the Small Business Administration (SBA) (13 CFR 121.201) as those whose
annual receipts are less than $6,500,000, and small agricultural
producers are defined as those whose annual receipts are less than
$750,000.
Industry information for the most recent complete season indicates
that 18 of 53 handlers (34 percent) shipped over $6,500,000 of
merchantable walnuts and could be considered large handlers by the SBA.
Thirty-five of 53 walnut handlers (66 percent) shipped under $6,500,000
of merchantable walnuts and could be considered small handlers.
The number of large walnut growers (annual walnut revenue greater
than $750,000) can be estimated as follows. According to the National
Agricultural Statistics Service (NASS), the two-year average yield per
acre for 2005 and 2006 is approximately 1.63 tons. A grower with 287
acres with an average yield of
[[Page 43380]]
1.63 tons per acre would produce approximately 468 tons. The season
average of grower prices for 2005 and 2006 published by NASS is $1,600
per ton. At that average price, the 468 tons produced on 287 acres
would yield slightly less than $750,000 in annual revenue. The 2002
Agricultural Census indicated two percent of walnut farms were between
250 and 500 acres in size. The 287 acres would produce, on average,
slightly less than the small business threshold level of $750,000 in
annual revenue from walnuts, and is near the lower end of the 250 to
500 acreage range category of the 2002 census. Thus, it can be
concluded that the number of large walnut farms in 2006 was likely
around two percent. Based on the foregoing, it can be concluded that
the majority of California walnut handlers and producers may be
classified as small entities.
This rule would increase the assessment rate established for the
Board and collected from handlers for the 2008-09 and subsequent
marketing years from $0.0122 per kernelweight pound of assessable
walnuts to $0.0158 per kernelweight pound of assessable walnuts. The
Board unanimously recommended 2008-09 expenditures of $4,594,300 and an
assessment rate of $0.0158 per kernelweight pound of assessable
walnuts. The proposed assessment rate of $0.0158 is $0.0036 higher than
the rate currently in effect. The quantity of assessable walnuts for
the 2008-09 marketing year is estimated at 323,082 tons. Thus, the
$0.0158 rate should provide $4,594,300 in assessment income and be
adequate to meet the year's expenses. The increased assessment rate is
primarily due to increased budget expenditures.
The following table compares major budget expenditures recommended
by the Board for the 2007-08 and 2008-09 fiscal years:
------------------------------------------------------------------------
Budget expense categories 2007-08 2008-09
------------------------------------------------------------------------
Employee Expenses....................... $438,600 $410,500
Travel/Board Expenses................... 86,000 100,000
Office Costs/Annual Audit............... 139,500 142,500
Program Expenses Including Research 5,000 5,000
Controlled Purchases...................
Crop Acreage Survey..................... 85,000 ..............
Crop Estimate........................... 100,000 110,000
Production Research *................... 730,000 805,000
Domestic Market Development............. 2,002,000 2,935,000
Reserve for Contingency................. 191,020 56,300
------------------------------------------------------------------------
* Includes Research Director's compensation.
The Board reviewed and unanimously recommended 2008-09 expenditures
of $4,954,300. Prior to arriving at this budget, the Board considered
alternative expenditure levels, but ultimately decided that the
recommended levels were reasonable to properly administer the order.
The assessment rate recommended by the Board was derived by dividing
anticipated expenses by expected shipments of California walnuts
certified as merchantable. Merchantable shipments for the year are
estimated at 290,773,800 kernelweight pounds which should provide
$4,954,300 in assessment income and allow the Board to cover its
expenses. Unexpended funds may be retained in a financial reserve,
provided that funds in the financial reserve do not exceed
approximately two years' budgeted expenses. If not retained in a
financial reserve, unexpended funds may be used temporarily to defray
expenses of the subsequent marketing year, but must be made available
to the handlers from whom collected within 5 months after the end of
the year, according to Sec. 984.69 of the order.
According to NASS, the season average grower price for 2006 was
$1,630 per ton. Although no official NASS data is available regarding
the 2007 average grower price, industry information indicates that it
could be higher than the 2006 average grower price. Dividing the 2006
price of $1,630 by 2,000 pounds per ton provides an inshell equivalent
price per pound of $0.815. Dividing this inshell price per pound by the
0.45 conversion factor (inshell to kernelweight) established in the
order yields a 2006 average equivalent grower price of $1.81 per
kernelweight pound of assessable walnuts.
To calculate the percentage of grower revenue represented by the
assessment rate for 2006, the assessment rate of $0.0122 (per
kernelweight pound) is divided by the estimated average grower price.
This results in estimated assessment revenue for the 2006 marketing
year as a percentage of total grower revenue of .674 percent. As
previously mentioned, NASS data for 2007 is not yet available. However,
applying the same calculations above utilizing 2006 price levels and
the proposed assessment rate would result in estimated assessment
revenue as a percentage of total grower revenue of 0.873 percent for
the 2008 season. Because 2007 average grower prices are expected to be
higher than 2006 levels, and could continue at the higher level into
the 2008 season, it is expected that 2008 assessment revenue as a
percentage of grower revenue will be less than the 0.873 percent
expressed above. In any event, it is estimated that assessment revenue
will be well below one percent of estimated grower revenue in 2008.
This action would increase the assessment obligation imposed on
handlers. While assessments impose some additional costs on handlers,
the costs are minimal and uniform on all handlers. Some of the
additional costs may be passed on to producers. However, these costs
would be offset by the benefits derived by the operation of the
marketing order. In addition, the Board's meeting was widely publicized
throughout the California 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 28, 2008,
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.
This proposed rule would impose no additional reporting or
recordkeeping requirements on either small or large California 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 Internet and other information technologies to provide
increased
[[Page 43381]]
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 rule.
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=MarketingOrdersSmallBus
inessGuide. 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 15-day comment period is provided to allow interested persons to
respond to this proposed rule. Fifteen days is deemed appropriate
because: (1) The 2008-09 marketing year will begin on August 1, 2008,
and the marketing order requires that the rate of assessment for each
year apply to all assessable walnuts handled during the year; (2) the
Board needs to have sufficient funds to pay its expenses which are
incurred on a continuous basis; and (3) handlers are aware of this
action which was unanimously recommended by the Board at a public
meeting and is similar to other assessment rate actions issued in past
years.
List of Subjects in 7 CFR Part 984
Walnuts, Marketing agreements, Nuts, Reporting and recordkeeping
requirements.
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 984.347 is revised to read as follows:
Sec. 984.347 Assessment rate.
On and after August 1, 2008, an assessment rate of $0.0158 per
kernelweight pound is established for California merchantable walnuts.
Dated: July 22, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E8-17088 Filed 7-24-08; 8:45 am]
BILLING CODE 3410-02-P
