Almonds Grown in California; Reopening of Comment Period on Interim Final Rule

DEPARTMENT OF AGRICULTURE

7 CFR Part 981

[Docket No. FV93-981-2IFR]

Almonds Grown in California; Reopening of Comment Period on

Interim Final Rule

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Reopening of comment period.

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SUMMARY: This document reopens the period for filing written comments

on an interim final rule establishing a revised advertising program

under the almond marketing order. That rule substantially revised the

advertising program and broadened the scope of creditable promotion/

advertising activities available to handlers and expanded the Board's

ability to engage in a significant generic promotion/advertising

program.

DATES: Comments must be received by March 2, 1994.

ADDRESSES: Interested persons are invited to submit written comments

concerning this reopened action. Comments must be sent in triplicate to

the Docket Clerk, Marketing Order Administration Branch, F&V, AMS,

USDA, room 2523-S, P.O. Box 96456, Washington, DC 20090-6456, FAX

Number (202) 720-5698. Comments should reference the docket number, the

date and page number of this issue of the Federal Register and will be

made available for public inspection in the Office of the Docket Clerk

during regular business hours.

FOR FURTHER INFORMATION CONTACT: Kathleen M. Finn, Marketing

Specialist, Marketing Order Administration Branch, Fruit and Vegetable

Division, AMS, USDA, room 2536-S., P.O. Box 96456, Washington, DC

20090-6456; telephone: (202) 720-1509, or FAX (202) 720-5698; or Martin

Engeler, Assistant Officer-in-Charge, California Marketing Field

Office, Fruit and Vegetable Division, AMS, USDA, 2202 Monterey Street,

suite 102-B, Fresno, California 93721; (209) 487-5901 or FAX (209) 487-

5906.

SUPPLEMENTARY INFORMATION: The interim final rule was issued under

Marketing Agreement and Order No. 981 (7 CFR part 981), both as

amended, regulating the handling of almonds grown in California. The

marketing agreement and order are authorized by the Agricultural

Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674),

hereinafter referred to as the Act.

The interim final rule was issued on July 14, 1993, and published

in the August 17, 1993, issue of the Federal Register (57 FR 43500). It

amended Sec. 981.441 of Subpart--Administrative Rules and Regulations

by substantially revising the Board's promotion/advertising program by

broadening the scope of creditable activities available to handlers and

expanding the Board's ability to engage in a significant and more

effective generic promotion/advertising program.

Authority for marketing promotion, including paid advertising, was

added to the almond marketing order in 1972. This authority allows

handlers to receive credit against an assessment obligation for their

own paid promotional activities, and also provides for generic

promotion to be conducted by the Board on behalf of the industry.

Since this authority was added to the marketing order, almond

production has increased, markets have expanded, the number of handlers

has increased and the relative proportion of product sold to ingredient

manufacturers in bulk quantities has likewise increased. The creditable

promotion/advertising regulations issued under the almond marketing

order have been changed numerous times to better meet industry needs

and changing market conditions (37 FR 13790, 7/14/72, as amended at 37

FR 16930, 8/28/72; 38 FR 9988, 4/23/73; 39 FR 39258, 11/6/74; 40 FR

25437, 6/16/75; 42 FR 5342, 1/28/77; 44 FR 67076, 11/23/79; 46 FR

51603, 10/21/81; 47 FR 40784, 9/16/82; 48 FR 11250, 3/17/83; 49 FR

19798, 5/10/84; 50 FR 16452, 4/26/85; 52 FR 13428, 4/23/87; 52 FR

37926, 10/13/87; 52 FR 45611, 12/1/87; 54 FR 5409, 2/3/89; 54 FR 6866,

2/15/89; 55 FR 130, 1/3/90; 55 FR 30194, 7/25/90; 55 FR 41826, 10/16/

90; 57 FR 30383, 7/9/92; 58 FR 33023, 6/15/93).

The most recent change in the advertising regulations substantially

revised the creditable promotion/advertising program by incorporating a

new program called the ``credit-back'' program.

On December 22, 1993, the United States Court of Appeals for the

Ninth Circuit in California issued a ruling on a district court order

involving an action against the Department by three independent almond

handlers wherein such handlers alleged, among other things, that the

Board's advertising program during the 1980's was unconstitutional

because the program violated the handlers' First Amendment Rights. The

district court ruled that the advertising program was constitutional.

The Ninth Circuit Court of Appeals acknowledged the substantial public

interest in designing effective promotion programs to stimulate demand

and to increase returns to growers but concluded that the almond

program in place during the 1980's was sufficiently flawed that it did

not meet the constitutional standards.

In light of the potential effect of the Ninth Circuit Court of

Appeal's decision on the current promotion program conducted under the

almond marketing order and on the health of the almond industry as a

whole, the Department has determined that it is in the public interest

to reopen the comment period for this interim final rule. Such action

will provide interested persons the opportunity to review the rules for

the current program and submit additional written views and information

pertinent to the potential effect of the decision on the current

program and on how the Department can best address the issues raised in

the court's decision. Accordingly, the comment period is reopened to

March 2, 1994.

Authority: 7 U.S.C. 601-674.

Dated: January 25, 1994.

Robert C. Keeney,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-2023 Filed 1-28-94; 8:45 am]

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