Almonds Grown in California; Revision to the Adjusted Kernel Weight Computation, 28523-28526 [2018-13272]
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Federal Register / Vol. 83, No. 119 / Wednesday, June 20, 2018 / Rules and Regulations
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sector agencies. As mentioned in the
initial regulatory flexibility analysis,
USDA has not identified any relevant
Federal rules that duplicate, overlap, or
conflict with this final rule.
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 action.
A proposed rule concerning this
action was published in the Federal
Register on April 4, 2018 (83 FR 14379).
A copy of the proposed rule was
provided to the handlers by the
Committee. Finally, the proposal was
made available through the internet by
USDA and the Office of the Federal
Register. A 30-day comment period
ending May 4, 2018, was provided for
interested persons to respond to the
proposal. No comments were received.
The proposal also contained
administrative revisions to the Order’s
subpart headings to bring the language
into conformance with the Office of
Federal Register requirements. Those
revisions are not included in this rule as
they were included in a technical
amendment final rule published in the
Federal Register on April 6, 2018 (83 FR
14736).
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/
rules-regulations/moa/small-businesses.
Any questions about the compliance
guide should be sent to Richard Lower
at the previously-mentioned address in
the FOR FURTHER INFORMATION CONTACT
section.
After consideration of all relevant
material presented, including the
information and recommendation
submitted by the Committee and other
available information, it is hereby found
that this rule will tend to effectuate the
declared policy of the Act.
List of Subjects in 7 CFR Part 932
Marketing agreements, Olives,
Reporting and recordkeeping
requirements.
For the reasons set forth in the
preamble, 7 CFR part 932 is amended as
follows:
PART 932—OLIVES GROWN IN
CALIFORNIA
1. The authority citation for part 932
continues to read as follows:
■
Authority: 7 U.S.C. 601–674.
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2. Section 932.230 is revised to read
as follows:
■
§ 932.230
Assessment rate.
On and after January 1, 2018, an
assessment rate of $24.00 per ton is
established for California olives.
Dated: June 15, 2018.
Bruce Summers,
Administrator, Agricultural Marketing
Service.
[FR Doc. 2018–13271 Filed 6–19–18; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 981
[Doc. No. AMS–SC–17–0084; SC18–981–1
FR]
Almonds Grown in California; Revision
to the Adjusted Kernel Weight
Computation
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
This final rule implements a
recommendation from the Almond
Board of California (Board) to revise the
adjusted kernel weight computation
currently prescribed under the
Marketing Order for almonds grown in
California. In addition, this action
allows adjustments to the calculated
percentages for foreign material, excess
moisture, or inedible kernels so that the
sum of the percentages for the specified
measurements equals 100 percent.
DATES: Effective July 20, 2018.
FOR FURTHER INFORMATION CONTACT:
Andrea Ricci, Marketing Specialist, or
Jeffrey Smutny, Regional Director,
California Marketing Field Office,
Marketing Order and Agreement
Division, Specialty Crops Program,
AMS, USDA; Telephone: (559) 487–
5901, Fax: (559) 487–5906, or Email:
Andrea.Ricci@ams.usda.gov or
Jeffrey.Smutny@ams.usda.gov.
Small businesses may request
information on complying with this
regulation by contacting Richard Lower,
Marketing Order and Agreement
Division, Specialty Crops Program,
AMS, USDA, 1400 Independence
Avenue SW, STOP 0237, Washington,
DC 20250–0237; Telephone: (202) 720–
2491, Fax: (202) 720–8938, or Email:
Richard.Lower@ams.usda.gov.
SUPPLEMENTARY INFORMATION: This final
rule, pursuant to 5 U.S.C. 553, amends
regulations issued to carry out a
marketing order as defined in 7 CFR
SUMMARY:
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28523
900.2(j). This final rule is issued under
Marketing Order No. 981, as amended (7
CFR part 981), regulating the handling
of almonds grown in California. Part 981
(referred to as 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 Board locally
administers the Order and is comprised
of growers and handlers operating
within California.
The Department of Agriculture
(USDA) is issuing this final rule in
conformance with Executive Orders
13563 and 13175. This action falls
within a category of regulatory actions
that the Office of Management and
Budget (OMB) exempted from Executive
Order 12866 review. Additionally,
because this final rule does not meet the
definition of a significant regulatory
action, it does not trigger the
requirements contained in Executive
Order 13771. See OMB’s Memorandum
titled ‘‘Interim Guidance Implementing
Section 2 of the Executive Order of
January 30, 2017, titled ‘Reducing
Regulation and Controlling Regulatory
Costs’ ’’ (February 2, 2017).
This final rule has been reviewed
under Executive Order 12988, Civil
Justice Reform. This final 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 final rule changes the way
adjusted kernel weight is expressed by
requiring calculation of percentages for
specified measurements to round the
decimal to the nearest thousandth rather
than the current hundredth. In addition,
this final rule allows adjustments to the
calculated percentages for foreign
material, excess moisture, or inedible
kernels so that the sum of the
percentages for the specified
measurements equals 100 percent. The
Board unanimously recommended these
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Federal Register / Vol. 83, No. 119 / Wednesday, June 20, 2018 / Rules and Regulations
changes at its December 4, 2017,
meeting.
Section 981.42 provides authority for
quality control regulations. Paragraph
(a) of that section requires that each
handler shall have the inspection
agency determine the percentage of
inedible kernels received by that
handler and report such determination
to the Board.
Section 981.442(a)(1) prescribes that
each handler shall have a representative
sample drawn from each lot of any
variety of incoming almonds that the
handler receives. Section 981.442(a)(3)
prescribes that each such sample shall
be analyzed by or under surveillance of
the Federal-State Inspection Service (or,
when specifically designated, the
Federal Inspection Service) to determine
the kernel content and the portion of
inedible kernels in the sample. The
inspection agency prepares a report
showing, among other things, the total
adjusted kernel weight. This report is
submitted by the inspection agency to
the Board and the handler.
Section 981.401(a) defines adjusted
kernel weight. Section 981.401(b)
provides examples of the computation
that is used to determine adjusted
kernel weight. This computation
includes a calculation of percentages for
specified measurements of edible
kernels, inedible kernels, foreign
material, and excess moisture. The table
of examples contained in § 981.401(b)
shows percentages rounded to the
nearest tenth and the nearest hundredth
decimal place. However, in practice, the
calculated percentages are currently
being rounded to the nearest hundredth
decimal place.
Currently, the inspection agency
utilizes a computer-based database
program that computes and totals the
percentages for the specified
measurements. As part of the program’s
computation process, it automatically
makes adjustments, when needed, so
that the total of the percentages equals
100 percent. This program has been
used for several years, and the industry
is accustomed to receiving reports from
the inspection agency that show the
100-percent summed total.
In early 2017, the USDA inspection
service began testing a new web-based
program that will replace the computerbased program described above. During
this testing, USDA discovered that, due
to the rounding method used by the new
program, the sum of the percentages
occasionally did not equal 100 percent.
It was further determined during testing
that having the new program round the
decimal to the nearest thousandth,
rather than the nearest hundredth as
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currently provided in the Order, would
produce more accurate results.
The new program also makes
automatic minor adjustments to the
percentage computations for foreign
material, excess moisture, or inedible
kernels so that the sum of the
percentages always equals 100 percent.
This allowance for automatic
adjustments of these specified
measurements aligns with industry
practice that has existed for many years.
As a result of these test results, the
Board determined that rounding the
decimal to the nearest thousandth rather
than the current hundredth provides a
more accurate computed percentage. In
addition, allowing the program to make
adjustments to the calculated
percentages for foreign material, excess
moisture, or inedible kernels aligns the
requirements under the Order with
current industry practices, ensuring the
continuance of longstanding reporting
practices and transparency in the
program.
Final 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
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
businesses subject to such actions in
order that small businesses will not be
unduly or disproportionately burdened.
Marketing orders issued pursuant to the
Act, and rules issued thereunder, are
unique in that they are brought about
through group action of essentially
small entities acting on their own
behalf.
There are approximately 6,800
almond growers in the production area
and approximately 100 almond handlers
subject to regulation under the Order.
Small agricultural service firms are
defined by the Small Business
Administration (SBA) as those having
annual receipts of less than $7,500,000,
and small agricultural producers are
defined as those having annual receipts
of less than $750,000 (13 CFR 121.201).
The National Agricultural Statistics
Service (NASS) reported in its most
recent (2012) Agricultural Census that
there were 6,841 almond farms in the
production area (California), of which
6,204 had bearing acres. The following
computation provides an estimate of the
proportion of agricultural producers
(farms) and agricultural service firms
(handlers) that would be considered
small under the SBA definitions.
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The NASS Census data indicates that
out of the 6,204 California farms with
bearing acres of almonds, 4,471 (72
percent) have fewer than 100 bearing
acres.
For the almond industry’s most
recently reported crop year (2016),
NASS reported an average yield of 2,280
pounds per acre and a season average
grower price of $2.44 per pound. A 100acre farm with an average yield of 2,280
pounds per acre would produce about
228,000 pounds of almonds. At $2.44
per pound, that farm’s production
would be valued at $556,320. The
Census of Agriculture indicates that the
majority of California’s almond farms
are smaller than 100 acres; therefore, it
could be concluded that the majority of
growers had annual receipts from the
sale of almonds in 2016–17 of less than
$556,320, which is below the SBA
threshold of $750,000. Thus, over 70
percent of California’s almond growers
would be classified as small growers
according to SBA’s definition.
To estimate the proportion of almond
handlers that would be considered
small businesses, it was assumed that
the unit value per shelled pound of
almonds exported in a particular year
could serve as a representative almond
price at the handler level. A unit value
for a commodity is the value of exports
divided by the quantity. Data from the
Global Agricultural Trade System
database of USDA’s Foreign Agricultural
Service showed that the value of
almond exports from August 2016 to
July 2017 (combining shelled and
inshell almonds) was $4.072 billion.
The quantity of almond exports over
that time period was 1.406 billion
pounds, combining shelled exports and
the shelled equivalent of inshell
exports. Dividing the export value by
the quantity yields a unit value of $2.90
per pound. Subtracting this figure from
the NASS 2016 estimate of season
average grower price per pound ($2.44)
yields $0.46 per pound as a
representative grower-handler margin.
Applying the $2.90 representative
handler price per pound to 2016–17
handler shipment quantities provided
by the Board showed that approximately
40 percent of California’s almond
handlers shipped almonds valued under
$7,500,000 during the 2016–17 crop
year and would therefore be considered
small handlers according to the SBA
definition.
This final rule revises the adjusted
kernel weight computation in § 981.401
by requiring calculation of the
percentages for specified measurements
to round the decimal to the nearest
thousandth rather than the current
hundredth. In addition, this action
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Federal Register / Vol. 83, No. 119 / Wednesday, June 20, 2018 / Rules and Regulations
allows adjustments to the calculated
percentages for foreign material, excess
moisture, or inedible kernels so that the
sum of the percentages for the specified
measurements equals 100 percent.
Requiring rounding of the decimal to
the nearest thousandth provides for a
more accurate computed percentage. In
addition, allowing adjustments to the
foreign material, excess moisture, or
inedible kernel measurements aligns the
Order with current industry practices,
ensuring the continuance of
longstanding reporting practices and
transparency in the program. Authority
for this action is provided in § 981.42(a).
The Board recommended this action at
a meeting on December 4, 2017.
It is not anticipated that this action
would impose additional costs on
handlers or growers, regardless of size.
The changes are intended to align
provisions of the Order with current
industry practices. This final rule is not
expected to change handler inspection
costs, as handlers are currently required
to have all lots inspected to determine
kernel content.
The Board considered alternatives to
this action, including not changing the
current computation procedures. Prior
to this recommendation, the Board’s
Almond Quality, Food Safety and
Services Committee (Committee)
reviewed the program, surveyed
handlers, and determined that not
changing the computation procedures to
align with current industry practices
would cause disruption in the industry.
Therefore, the Committee unanimously
recommended this action to the Board at
a meeting on November 16, 2017.
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C.
Chapter 35), the Order’s information
collection requirements have been
previously approved by OMB and
assigned OMB No. 0581–0178
(Vegetable and Specialty Crops). No
changes are necessary in those
requirements as a result of this action.
Should any changes become necessary,
they would be submitted to OMB for
approval.
This final rule imposes no additional
reporting or recordkeeping requirements
on either small or large almond
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 final rule.
Further, the Board’s meeting was
widely publicized throughout the
almond industry, and all interested
persons were invited to attend the
meeting and participate in Board
deliberations. Like all Board meetings,
the December 4, 2017, meeting was a
public meeting, and all entities, both
large and small, were able to express
their views on this issue.
Also, the Board has a number of
appointed committees to review certain
issues and make recommendations to
the Board. The Committee met on
November 16, 2017, and discussed this
issue in detail. That meeting was also a
public meeting, and both large and
small entities were able to participate
and express their views.
A proposed rule concerning this
action was published in the Federal
Register on April 20, 2018 (83 FR
17506). Copies of the rule were made
available to all members of the Board
and all California almond growers and
handlers. Finally, the rule was made
available through the internet by USDA
and the Office of the Federal Register. A
30-day comment period ending May 21,
2018, was provided to allow interested
persons to respond to the proposal. No
comments were received. Accordingly,
no changes will be made to the rule as
proposed.
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/
rules-regulations/moa/small-businesses.
Any questions about the compliance
guide should be sent to Richard Lower
at the previously mentioned address in
the FOR FURTHER INFORMATION CONTACT
section.
After consideration of all relevant
matters 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.
List of Subjects in 7 CFR Part 981
Almonds, Marketing agreements,
Nuts, Reporting and recordkeeping
requirements.
For the reasons set forth in the
preamble, 7 CFR part 981 is amended as
follows:
PART 981—ALMONDS GROWN IN
CALIFORNIA
1. The authority citation for 7 CFR
part 981 continues to read as follows:
■
Authority: 7 U.S.C. 601–674.
2. In § 981.401, revise the table in
paragraph (b) and add paragraph (c) to
read as follows:
■
§ 981.401
*
Adjusted kernel weight.
*
*
(b) * * *
*
*
Computation number 1
Computation number 2
Deliveries with less than
95 percent kernels
Deliveries with 95 percent
or more kernels
sradovich on DSK3GMQ082PROD with RULES
Percent of
sample
1.
2.
3.
4.
5.
6.
7.
8.
Actual gross weight of delivery ....................................................................
Percent of edible kernel weight ...................................................................
Less weight loss in processing 1 .................................................................
Less excess moisture of edible kernels (excess moisture × line 2) ...........
Net percent shell out (line 2¥lines 3 and 4) ..............................................
Net edible kernels (line 5 × line 1) ..............................................................
Percent of inedible kernels (from sample) ..................................................
Less excess moisture of inedible kernels (excess moisture from sample ×
line 7) ...........................................................................................................
9. Net percent inedible kernels (line 7¥line 8) ...............................................
10. Total inedible kernels (line 9 × line 1) .......................................................
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Weight
(pounds)
Percent of
sample
Weight
(pounds)
........................
53.000
1.000
1.060
50.940
........................
12.000
10,000
........................
........................
........................
........................
5,094
........................
........................
84.000
0.000
1.680
82.320
........................
12.000
10,000
........................
........................
........................
........................
8,232
........................
0.240
11.760
........................
........................
........................
1,176
0.240
11.760
........................
........................
........................
1,176
Sfmt 4700
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Federal Register / Vol. 83, No. 119 / Wednesday, June 20, 2018 / Rules and Regulations
Computation number 1
Computation number 2
Deliveries with less than
95 percent kernels
Deliveries with 95 percent
or more kernels
Percent of
sample
11. Adjusted kernel weight (line 6 + line 10) ...................................................
1 Only
........................
6,270
Percent of
sample
Weight
(pounds)
........................
9,408
applies to deliveries with less than 95 percent kernels.
(c) Computation adjustments. If
applicable, adjustments shall be made
by rounding such that the sample
computation percentages total equals
100 percent. Rounding adjustments
shall be made as follows: First adjust the
foreign material percentage; if there is
no foreign material in the sample, then
adjust the excess moisture percentage;
or if there is no foreign material or
excess moisture in the sample, adjust
the inedible kernels percentage.
Dated: June 15, 2018.
Bruce Summers,
Administrator, Agricultural Marketing
Service.
[FR Doc. 2018–13272 Filed 6–19–18; 8:45 am]
BILLING CODE 3410–02–P
FEDERAL RESERVE SYSTEM
12 CFR Part 201
[Docket No. R–1611]
RIN 7100–AF 07
Regulation A: Extensions of Credit by
Federal Reserve Banks
Board of Governors of the
Federal Reserve System.
ACTION: Final rule.
AGENCY:
The Board of Governors of the
Federal Reserve System (‘‘Board’’) has
adopted final amendments to its
Regulation A to reflect the Board’s
approval of an increase in the rate for
primary credit at each Federal Reserve
Bank. The secondary credit rate at each
Reserve Bank automatically increased
by formula as a result of the Board’s
primary credit rate action.
DATES:
Effective date: The amendments to
part 201 (Regulation A) are effective
June 20, 2018.
Applicability date: The rate changes
for primary and secondary credit were
applicable on June 14, 2018.
FOR FURTHER INFORMATION CONTACT:
Sophia Allison, Special Counsel (202–
452–3565), or Clinton Chen, Senior
Attorney (202–452–3952), Legal
Division, or Lyle Kumasaka, Senior
Financial Analyst (202–452–2382), or
SUMMARY:
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Weight
(pounds)
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Jkt 244001
Thomas Keating, Financial Analyst
(202–973–7401), Division of Monetary
Affairs; for the hearing impaired,
Telecommunications Device for the Deaf
(TDD) 202–263–4869; Board of
Governors of the Federal Reserve
System, 20th and C Streets NW,
Washington, DC 20551.
SUPPLEMENTARY INFORMATION: The
Federal Reserve Banks make primary
and secondary credit available to
depository institutions as a backup
source of funding on a short-term basis,
usually overnight. The primary and
secondary credit rates are the interest
rates that the twelve Federal Reserve
Banks charge for extensions of credit
under these programs. In accordance
with the Federal Reserve Act, the
primary and secondary credit rates are
established by the boards of directors of
the Federal Reserve Banks, subject to
the review and determination of the
Board.
On June 13, 2018, the Board voted to
approve a 1⁄4 percentage point increase
in the primary credit rate in effect at
each of the twelve Federal Reserve
Banks, thereby increasing from 2.25
percent to 2.50 percent the rate that
each Reserve Bank charges for
extensions of primary credit. In
addition, the Board had previously
approved the renewal of the secondary
credit rate formula, the primary credit
rate plus 50 basis points. Under the
formula, the secondary credit rate in
effect at each of the twelve Federal
Reserve Banks increased by 1⁄4
percentage point as a result of the
Board’s primary credit rate action,
thereby increasing from 2.75 percent to
3.00 percent the rate that each Reserve
Bank charges for extensions of
secondary credit. The amendments to
Regulation A reflect these rate changes.
The 1⁄4 percentage point increase in
the primary credit rate was associated
with an increase in the target range for
the federal funds rate (from a target
range of 11⁄2 to 13⁄4 percent to a target
range of 13⁄4 to 2 percent) announced by
the Federal Open Market Committee on
June 13, 2018, as described in the
Board’s amendment of its Regulation D
published elsewhere in today’s Federal
Register.
PO 00000
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Administrative Procedure Act
In general, the Administrative
Procedure Act (‘‘APA’’) 1 imposes three
principal requirements when an agency
promulgates legislative rules (rules
made pursuant to congressionally
delegated authority): (1) Publication
with adequate notice of a proposed rule;
(2) followed by a meaningful
opportunity for the public to comment
on the rule’s content; and (3)
publication of the final rule not less
than 30 days before its effective date.
The APA provides that notice and
comment procedures do not apply if the
agency for good cause finds them to be
‘‘unnecessary, impracticable, or contrary
to the public interest.’’ 2 Section 553(d)
of the APA also provides that
publication at least 30 days prior to a
rule’s effective date is not required for
(1) a substantive rule which grants or
recognizes an exemption or relieves a
restriction; (2) interpretive rules and
statements of policy; or (3) a rule for
which the agency finds good cause for
shortened notice and publishes its
reasoning with the rule.3 The APA
further provides that the notice, public
comment, and delayed effective date
requirements of 5 U.S.C. 553 do not
apply ‘‘to the extent that there is
involved . . . a matter relating to agency
management or personnel or to public
property, loans, grants, benefits, or
contracts.’’ 4
Regulation A establishes the interest
rates that the twelve Reserve Banks
charge for extensions of primary credit
and secondary credit. The Board has
determined that the notice, public
comment, and delayed effective date
requirements of the APA do not apply
to these final amendments to Regulation
A for several reasons. The amendments
involve a matter relating to loans and
are therefore exempt under the terms of
the APA. In addition, the Board has
determined that notice, public
comment, and delayed effective date
would be unnecessary and contrary to
the public interest because delay in
implementation of changes to the rates
15
U.S.C. 551 et seq.
U.S.C. 553(b)(3)(A).
3 5 U.S.C. 553(d).
4 5 U.S.C. 553(a)(2) (emphasis added).
25
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]]>Agencies
[Federal Register Volume 83, Number 119 (Wednesday, June 20, 2018)]
[Rules and Regulations]
[Pages 28523-28526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13272]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 981
[Doc. No. AMS-SC-17-0084; SC18-981-1 FR]
Almonds Grown in California; Revision to the Adjusted Kernel
Weight Computation
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule implements a recommendation from the Almond
Board of California (Board) to revise the adjusted kernel weight
computation currently prescribed under the Marketing Order for almonds
grown in California. In addition, this action allows adjustments to the
calculated percentages for foreign material, excess moisture, or
inedible kernels so that the sum of the percentages for the specified
measurements equals 100 percent.
DATES: Effective July 20, 2018.
FOR FURTHER INFORMATION CONTACT: Andrea Ricci, Marketing Specialist, or
Jeffrey Smutny, Regional Director, California Marketing Field Office,
Marketing Order and Agreement Division, Specialty Crops Program, AMS,
USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or Email:
[email protected] or [email protected].
Small businesses may request information on complying with this
regulation by contacting Richard Lower, Marketing Order and Agreement
Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue
SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491,
Fax: (202) 720-8938, or Email: [email protected].
SUPPLEMENTARY INFORMATION: This final rule, pursuant to 5 U.S.C. 553,
amends regulations issued to carry out a marketing order as defined in
7 CFR 900.2(j). This final rule is issued under Marketing Order No.
981, as amended (7 CFR part 981), regulating the handling of almonds
grown in California. Part 981 (referred to as 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
Board locally administers the Order and is comprised of growers and
handlers operating within California.
The Department of Agriculture (USDA) is issuing this final rule in
conformance with Executive Orders 13563 and 13175. This action falls
within a category of regulatory actions that the Office of Management
and Budget (OMB) exempted from Executive Order 12866 review.
Additionally, because this final rule does not meet the definition of a
significant regulatory action, it does not trigger the requirements
contained in Executive Order 13771. See OMB's Memorandum titled
``Interim Guidance Implementing Section 2 of the Executive Order of
January 30, 2017, titled `Reducing Regulation and Controlling
Regulatory Costs' '' (February 2, 2017).
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This final 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 final rule changes the way adjusted kernel weight is expressed
by requiring calculation of percentages for specified measurements to
round the decimal to the nearest thousandth rather than the current
hundredth. In addition, this final rule allows adjustments to the
calculated percentages for foreign material, excess moisture, or
inedible kernels so that the sum of the percentages for the specified
measurements equals 100 percent. The Board unanimously recommended
these
[[Page 28524]]
changes at its December 4, 2017, meeting.
Section 981.42 provides authority for quality control regulations.
Paragraph (a) of that section requires that each handler shall have the
inspection agency determine the percentage of inedible kernels received
by that handler and report such determination to the Board.
Section 981.442(a)(1) prescribes that each handler shall have a
representative sample drawn from each lot of any variety of incoming
almonds that the handler receives. Section 981.442(a)(3) prescribes
that each such sample shall be analyzed by or under surveillance of the
Federal-State Inspection Service (or, when specifically designated, the
Federal Inspection Service) to determine the kernel content and the
portion of inedible kernels in the sample. The inspection agency
prepares a report showing, among other things, the total adjusted
kernel weight. This report is submitted by the inspection agency to the
Board and the handler.
Section 981.401(a) defines adjusted kernel weight. Section
981.401(b) provides examples of the computation that is used to
determine adjusted kernel weight. This computation includes a
calculation of percentages for specified measurements of edible
kernels, inedible kernels, foreign material, and excess moisture. The
table of examples contained in Sec. 981.401(b) shows percentages
rounded to the nearest tenth and the nearest hundredth decimal place.
However, in practice, the calculated percentages are currently being
rounded to the nearest hundredth decimal place.
Currently, the inspection agency utilizes a computer-based database
program that computes and totals the percentages for the specified
measurements. As part of the program's computation process, it
automatically makes adjustments, when needed, so that the total of the
percentages equals 100 percent. This program has been used for several
years, and the industry is accustomed to receiving reports from the
inspection agency that show the 100-percent summed total.
In early 2017, the USDA inspection service began testing a new web-
based program that will replace the computer-based program described
above. During this testing, USDA discovered that, due to the rounding
method used by the new program, the sum of the percentages occasionally
did not equal 100 percent. It was further determined during testing
that having the new program round the decimal to the nearest
thousandth, rather than the nearest hundredth as currently provided in
the Order, would produce more accurate results.
The new program also makes automatic minor adjustments to the
percentage computations for foreign material, excess moisture, or
inedible kernels so that the sum of the percentages always equals 100
percent. This allowance for automatic adjustments of these specified
measurements aligns with industry practice that has existed for many
years.
As a result of these test results, the Board determined that
rounding the decimal to the nearest thousandth rather than the current
hundredth provides a more accurate computed percentage. In addition,
allowing the program to make adjustments to the calculated percentages
for foreign material, excess moisture, or inedible kernels aligns the
requirements under the Order with current industry practices, ensuring
the continuance of longstanding reporting practices and transparency in
the program.
Final 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 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
businesses subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf.
There are approximately 6,800 almond growers in the production area
and approximately 100 almond handlers subject to regulation under the
Order. Small agricultural service firms are defined by the Small
Business Administration (SBA) as those having annual receipts of less
than $7,500,000, and small agricultural producers are defined as those
having annual receipts of less than $750,000 (13 CFR 121.201).
The National Agricultural Statistics Service (NASS) reported in its
most recent (2012) Agricultural Census that there were 6,841 almond
farms in the production area (California), of which 6,204 had bearing
acres. The following computation provides an estimate of the proportion
of agricultural producers (farms) and agricultural service firms
(handlers) that would be considered small under the SBA definitions.
The NASS Census data indicates that out of the 6,204 California
farms with bearing acres of almonds, 4,471 (72 percent) have fewer than
100 bearing acres.
For the almond industry's most recently reported crop year (2016),
NASS reported an average yield of 2,280 pounds per acre and a season
average grower price of $2.44 per pound. A 100-acre farm with an
average yield of 2,280 pounds per acre would produce about 228,000
pounds of almonds. At $2.44 per pound, that farm's production would be
valued at $556,320. The Census of Agriculture indicates that the
majority of California's almond farms are smaller than 100 acres;
therefore, it could be concluded that the majority of growers had
annual receipts from the sale of almonds in 2016-17 of less than
$556,320, which is below the SBA threshold of $750,000. Thus, over 70
percent of California's almond growers would be classified as small
growers according to SBA's definition.
To estimate the proportion of almond handlers that would be
considered small businesses, it was assumed that the unit value per
shelled pound of almonds exported in a particular year could serve as a
representative almond price at the handler level. A unit value for a
commodity is the value of exports divided by the quantity. Data from
the Global Agricultural Trade System database of USDA's Foreign
Agricultural Service showed that the value of almond exports from
August 2016 to July 2017 (combining shelled and inshell almonds) was
$4.072 billion. The quantity of almond exports over that time period
was 1.406 billion pounds, combining shelled exports and the shelled
equivalent of inshell exports. Dividing the export value by the
quantity yields a unit value of $2.90 per pound. Subtracting this
figure from the NASS 2016 estimate of season average grower price per
pound ($2.44) yields $0.46 per pound as a representative grower-handler
margin. Applying the $2.90 representative handler price per pound to
2016-17 handler shipment quantities provided by the Board showed that
approximately 40 percent of California's almond handlers shipped
almonds valued under $7,500,000 during the 2016-17 crop year and would
therefore be considered small handlers according to the SBA definition.
This final rule revises the adjusted kernel weight computation in
Sec. 981.401 by requiring calculation of the percentages for specified
measurements to round the decimal to the nearest thousandth rather than
the current hundredth. In addition, this action
[[Page 28525]]
allows adjustments to the calculated percentages for foreign material,
excess moisture, or inedible kernels so that the sum of the percentages
for the specified measurements equals 100 percent. Requiring rounding
of the decimal to the nearest thousandth provides for a more accurate
computed percentage. In addition, allowing adjustments to the foreign
material, excess moisture, or inedible kernel measurements aligns the
Order with current industry practices, ensuring the continuance of
longstanding reporting practices and transparency in the program.
Authority for this action is provided in Sec. 981.42(a). The Board
recommended this action at a meeting on December 4, 2017.
It is not anticipated that this action would impose additional
costs on handlers or growers, regardless of size. The changes are
intended to align provisions of the Order with current industry
practices. This final rule is not expected to change handler inspection
costs, as handlers are currently required to have all lots inspected to
determine kernel content.
The Board considered alternatives to this action, including not
changing the current computation procedures. Prior to this
recommendation, the Board's Almond Quality, Food Safety and Services
Committee (Committee) reviewed the program, surveyed handlers, and
determined that not changing the computation procedures to align with
current industry practices would cause disruption in the industry.
Therefore, the Committee unanimously recommended this action to the
Board at a meeting on November 16, 2017.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), the Order's information collection requirements have been
previously approved by OMB and assigned OMB No. 0581-0178 (Vegetable
and Specialty Crops). No changes are necessary in those requirements as
a result of this action. Should any changes become necessary, they
would be submitted to OMB for approval.
This final rule imposes no additional reporting or recordkeeping
requirements on either small or large almond 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 final rule.
Further, the Board's meeting was widely publicized throughout the
almond industry, and all interested persons were invited to attend the
meeting and participate in Board deliberations. Like all Board
meetings, the December 4, 2017, meeting was a public meeting, and all
entities, both large and small, were able to express their views on
this issue.
Also, the Board has a number of appointed committees to review
certain issues and make recommendations to the Board. The Committee met
on November 16, 2017, and discussed this issue in detail. That meeting
was also a public meeting, and both large and small entities were able
to participate and express their views.
A proposed rule concerning this action was published in the Federal
Register on April 20, 2018 (83 FR 17506). Copies of the rule were made
available to all members of the Board and all California almond growers
and handlers. Finally, the rule was made available through the internet
by USDA and the Office of the Federal Register. A 30-day comment period
ending May 21, 2018, was provided to allow interested persons to
respond to the proposal. No comments were received. Accordingly, no
changes will be made to the rule as proposed.
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/rules-regulations/moa/small-businesses. Any questions
about the compliance guide should be sent to Richard Lower at the
previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
After consideration of all relevant matters 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.
List of Subjects in 7 CFR Part 981
Almonds, Marketing agreements, Nuts, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 981 is
amended as follows:
PART 981--ALMONDS GROWN IN CALIFORNIA
0
1. The authority citation for 7 CFR part 981 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. In Sec. 981.401, revise the table in paragraph (b) and add
paragraph (c) to read as follows:
Sec. 981.401 Adjusted kernel weight.
* * * * *
(b) * * *
----------------------------------------------------------------------------------------------------------------
Computation number 1 Computation number 2
---------------------------------------------------------------
Deliveries with less than 95 Deliveries with 95 percent or
percent kernels more kernels
---------------------------------------------------------------
Percent of Weight Percent of Weight
sample (pounds) sample (pounds)
----------------------------------------------------------------------------------------------------------------
1. Actual gross weight of delivery.............. .............. 10,000 .............. 10,000
2. Percent of edible kernel weight.............. 53.000 .............. 84.000 ..............
3. Less weight loss in processing \1\........... 1.000 .............. 0.000 ..............
4. Less excess moisture of edible kernels 1.060 .............. 1.680 ..............
(excess moisture x line 2).....................
5. Net percent shell out (line 2-lines 3 and 4). 50.940 .............. 82.320 ..............
6. Net edible kernels (line 5 x line 1)......... .............. 5,094 .............. 8,232
7. Percent of inedible kernels (from sample).... 12.000 .............. 12.000 ..............
8. Less excess moisture of inedible kernels 0.240 .............. 0.240 ..............
(excess moisture from sample x line 7).........
9. Net percent inedible kernels (line 7-line 8). 11.760 .............. 11.760 ..............
10. Total inedible kernels (line 9 x line 1).... .............. 1,176 .............. 1,176
[[Page 28526]]
11. Adjusted kernel weight (line 6 + line 10)... .............. 6,270 .............. 9,408
----------------------------------------------------------------------------------------------------------------
\1\ Only applies to deliveries with less than 95 percent kernels.
(c) Computation adjustments. If applicable, adjustments shall be
made by rounding such that the sample computation percentages total
equals 100 percent. Rounding adjustments shall be made as follows:
First adjust the foreign material percentage; if there is no foreign
material in the sample, then adjust the excess moisture percentage; or
if there is no foreign material or excess moisture in the sample,
adjust the inedible kernels percentage.
Dated: June 15, 2018.
Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2018-13272 Filed 6-19-18; 8:45 am]
BILLING CODE 3410-02-P
