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Code · REGISTER · 2008-02-19 · Agricultural Agricultural Marketing Service RULES Hazelnuts Grown in Oregon and Washington: Establishment of Interim Final, Final Free and Restricted Percentages for 2007-2008 Marketing Year, 9000-900 · Unknown

Unknown. Final rule

13,060 words·~59 min read·/register/2008/02/19/08-739

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2008-02-19.xml --- 73 33 Tuesday, February 19, 2008 Contents Agricultural Agricultural Marketing Service RULES Hazelnuts Grown in Oregon and Washington: Establishment of Interim Final, Final Free and Restricted Percentages for 2007-2008 Marketing Year, 9000-9005 08-739 Raisins Produced From Grapes Grown in California: Final Free and Reserve Percentages for 2007-08, 9005-9010 E8-2960 NOTICES United States Standards for Grades of Beet Greens, 9086-9087 E8-2961 Agriculture Agriculture Department See Agricultural Marketing Service NOTICES Meetings:
Advisory Committee on Biotechnology and 21st Century Agriculture, 9086 E8-3001 Army Army Department See Engineers Corps NOTICES Availability for Non-Exclusive, Exclusive, or Partially Exclusive Licensing: Invention Described in U.S. Provisional Patent Application— Treatment of Ischemia-Reperfusion Injury With Lipid, Annexin, and Lipid-Annexin Complexes, 9103 E8-2980 Arts Arts and Humanities, National Foundation See National Foundation on the Arts and the Humanities Children Children and Families Administration NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 9121-9122 08-696 08-697 Commerce Commerce Department See Economic Development Administration See International Trade Administration See National Oceanic and Atmospheric Administration Comptroller Comptroller of the Currency RULES Assessment of Fees, 9012-9014 E8-3004 Copyright Copyright Office, Library of Congress NOTICES Review of Copyright Royalty Judges Determination, 9143-9146 E8-3149 Defense Defense Department See Army Department See Engineers Corps See Navy Department NOTICES Privacy Act;
System of Records, 9100-9102 E8-3019 Renewal of Department of Defense Federal Advisory Committees, 9102 E8-3017 Economic Economic Development Administration NOTICES Solicitation of Proposals and Applications for Economic Development Assistance Programs, 9087-9091 E8-3022 Education Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 9105-9106 E8-3015 Employment Employment and Training Administration NOTICES Solicitation for Grant Applications:
Energy Industry and Construction and Skilled Trades in the Energy Industry, 9142-9143 E8-3007 Energy Energy Department See Federal Energy Regulatory Commission PROPOSED RULES Acquisition Regulation; Security Clause, 9071-9075 E8-3012 NOTICES Intent to Grant Exclusive Patent License: LSBC, Inc., 9106 E8-3006 Invention Available for License and Intent to Grant Exclusive License: Excom, Inc., 9106-9107 E8-3010 Meetings: Environmental Management Site-Specific Advisory Board, Nevada, 9107 E8-3008 Production Engineering and Commercialization of Residential Highly Insulating Windows, 9107-9108 E8-3005 Engineers Engineers Corps NOTICES Intent to Prepare Draft Environmental Impact Statement:
Rock Mining in Wetlands, Levy County, FL, 9103-9104 E8-2979 Equal Equal Employment Opportunity Commission PROPOSED RULES Nondiscrimination Enforcement on the Basis of Disability in Programs or Activities Conducted by EEOC and Commission Electronic, etc., 9065-9068 E8-2863 NOTICES Meetings; Sunshine Act, 9118 08-765 Executive Executive Office of the President See Presidential Documents FAA Federal Aviation Administration RULES Special Conditions: Boeing Model 787 Series Airplanes— Seats With Non-traditional, Large, Non-Metallic Panels, 9014-9017 08-701 PROPOSED RULES Airworthiness Directives:
Bombardier Model DHC 8 102, et al. Airplanes, 9055-9058 E8-3000 Bombardier Model DHC 8 400 Series Airplanes, 9053-9055 E8-2997 Proposed Establishment of Class E Airspace; White Hills, AK, 9059-9060 E8-2976 Proposed Establishment of Low Altitude Area Navigation Routes (T-Routes): Sacramento and San Francisco, CA, 9060-9062 E8-2978 Proposed Revision of Class E Airspace; Allakaket, AK, 9062-9063 E8-2967 Proposed Revision of Class E Airspace; St. Mary's, AK, 9063-9065 E8-2977 NOTICES Meetings:
Air Traffic Procedures Advisory Committee, 9157 E8-2959 Special Committee 215; Aeronautical Mobile Satellite (Route) Services Next Generation Satellite Services and Equipment, 9157 08-699 FCC Federal Communications Commission RULES Amendment of Commission's Rules Concerning Commission Organization, Practice and Procedure, Frequency Allocations and Radio Treaty Matters, 9017-9031 E8-2940 Telecommunications Relay Services and Speech-to-Speech Services: Individuals With Hearing and Speech Disabilities, 9031-9034 E8-3024 NOTICES Applications for Certification as Certified State Telecommunications Relay Service Programs Filed:
Pleading Cycle Established for Comment on Applications, 9118-9120 E8-3027 Federal Energy Federal Energy Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 9108-9109 E8-2991 Application for Transfer of License, Soliciting Comments, Motions to Intervene and Protests: Consolidated Edison Energy Massachusetts, Inc. et al., 9109 E8-2974 Lower Valley Energy; Town of Afton, WY, 9110 E8-2973 Availability of Draft Environmental Impact Statement for the Midcontinent Press Pipeline Project, 9110-9112 E8-2969 Combined Notice of Filings, 9112 E8-3002 Covanta Delano, Inc.;
Filing, 9112-9113 E8-2971 Intent to File License Application for New License and Commencing Licensing Proceeding: Placer County Water Agency, 9113-9114 E8-2989 New Harquahala Generating Co., LLC; Filing, 9114 E8-2968 Pacific Gas and Electric Company; Filing, 9114-9115 E8-2972 Petal Gas Storage, L.L.C.; Application, 9115 E8-2990 Pinnacle West Capital Corp.; Filing, 9115-9116 E8-2975 Request Under Blanket Authorization: Northwest Pipeline GP, 9116 E8-2970 Settlement Agreement and Soliciting Commments:
Ketchikan Public Utilities, 9116-9117 E8-2992 Tennessee Gas Pipeline Company; Application, 9117-9118 E8-2993 Federal Labor Federal Labor Relations Authority RULES Unfair Labor Practice Proceedings, 8995-9000 E8-3013 FMC Federal Maritime Commission NOTICES Meetings: Federal Maritime Commission, 9120 08-745 Federal Motor Federal Motor Carrier Safety Administration NOTICES Meetings: Motor Carrier Safety Advisory Committee, 9157-9158 E8-3023 Qualification of Drivers; Exemption Applications;
Vision, 9158-9159 E8-2982 Qualification of Drivers; Exemption Renewals; Vision, 9159-9160 E8-2983 E8-2984 Federal Railroad Federal Railroad Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 9161 E8-3011 Notice of Application: Approval of Discontinuance or Modification of Railroad Signal System or Relief From 49 CFR Part 236, 9161-9162 E8-3026 Solicitation of Applications and Notice of Funding Availability: Capital Assistance to States - Intercity Passenger Rail Service Program, 9162-9165 E8-3018 Federal Reserve Federal Reserve System NOTICES Change in Bank Control Notices;
Acquisition of Shares of Bank or Bank Holding Companies, 9120 E8-2999 Formations, Acquisitions, and Mergers of Bank Holding Companies, 9120-9121 E8-2898 E8-2998 Federal Transit Federal Transit Administration PROPOSED RULES Contractor Performance Incentives: Capital Investment Program, 9075-9078 E8-3025 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: Listing Phyllostegia hispida (No Common Name) as Endangered Throughout Its Range, 9078-9085 E8-2841 Food Food and Drug Administration NOTICES Memorandums of Understanding:
Division of Select Agents and Toxins Center for Disease Control and Prevention, 9122-9126 08-686 Walter Reed Army Institute for Research, et al., 9127-9132 08-685 Foreign Foreign Claims Settlement Commission NOTICES Meetings; Sunshine Act, 9141 08-775 Health Health and Human Services Department See Children and Families Administration See Food and Drug Administration See National Institutes of Health Homeland Homeland Security Department See U.S. Customs and Border Protection RULES Administrative Process for Seizures and Forfeitures:
Immigration and Nationality Act and Other Authorities, 9010-9012 E8-2965 Interior Interior Department See Fish and Wildlife Service See Minerals Management Service See National Park Service International International Trade Administration NOTICES Amended Final Results of Antidumping Duty Administrative Review: Chlorinated Isocyanurates From the People's Republic of China, 9091-9092 E8-3014 International International Trade Commission NOTICES Meetings; Sunshine Act, 9141 E8-3052 Justice Justice Department See Foreign Claims Settlement Commission See Justice Programs Office Justice Justice Programs Office NOTICES Hearing of the Review Panel on Prison Rape, 9142 E8-3016 Labor Labor Department See Employment and Training Administration Legal Legal Services Corporation NOTICES Meetings;
Sunshine Act, 9143 08-758 Library Library of Congress See Copyright Office, Library of Congress Minerals Minerals Management Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 9139-9140 E8-2962 National Credit National Credit Union Administration NOTICES Meetings; Sunshine Act, 9146 08-770 National Foundation National Foundation on the Arts and the Humanities NOTICES Meetings: Humanities Panel, 9146-9147 E8-3049 NIH National Institutes of Health NOTICES Meetings:
Center for Scientific Review, 9133 08-713 National Center for Complementary & Alternative Medicine, 9133 08-715 National Heart, Lung, and Blood Institute, 9133-9134 08-714 National Institute of Arthritis and Musculoskeletal and Skin Diseases, 9134 08-710 National Institute of Child Health and Human Development, 9134-9135 08-712 National Institute of Dental and Craniofacial Research, 9134 08-711 National Library of Medicine, 9135 08-708 08-709 NOAA National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska:
Atka Mackerel in the Bering Sea and Aleutian Islands Management Area, 9034-9035 08-741 Groundfish, Crab, Scallop, and Salmon Fisheries of the Bering Sea and Aleutian Islands Management Area, 9035-9052 08-707 NOTICES Small Takes of Marine Mammals Incidental to Specified Activities: Taking Marine Mammals Incidental to Construction and Operation of Liquefied Natural Gas Facility; Massachusetts, 9092-9100 E8-3021 National Park National Park Service NOTICES National Register of Historic Places:
Notification of Pending Nominations and Related Actions, 9140-9141 E8-2966 National Science National Science Foundation NOTICES Committee Management; Notice of Establishment, 9147 E8-2988 Meetings: National Science Foundation Proposal Review, 9147 E8-2987 Navy Navy Department NOTICES Privacy Act; System of Records, 9104-9105 E8-3020 Personnel Personnel Management Office NOTICES Meetings: Federal Prevailing Rate Advisory Committee, 9147-9148 E8-2963 Presidential Presidential Documents ADMINISTRATIVE ORDERS Government agencies and employees:
Health and Human Services, Department of; Medicare Funding, Assignment of Function to the Secretary (Memorandum of February 14, 2008), 9167-9169 08-783 SEC Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: National Stock Exchange, Inc., 9148-9151 E8-2955 New York Stock Exchange LLC, 9151-9155 E8-2981 Options Clearing Corp., 9155-9156 E8-2903 SBA Small Business Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 9156-9157 E8-2964 Surface Surface Transportation Board NOTICES Meetings:
Rail Energy Transportation Advisory Committee, 9165-9166 E8-3009 Transportation Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration See Federal Railroad Administration See Federal Transit Administration See Surface Transportation Board Treasury Treasury Department See Comptroller of the Currency Customs U.S. Customs and Border Protection NOTICES Accreditation and Approval as a Commercial Gauger and Laboratory: Chemical Petrochemical Inspections, LP, 9135-9136 E8-3028 Coastal Gulf and International, 9136 E8-3063 Intertek USA, Inc., 9136-9137 E8-3032 E8-3033 NMC Global Corporation, 9137 E8-3035 Saybolt LP, 9137 E8-3030 SGS North America, Inc., 9137-9138 E8-3034 E8-3067 Accreditation as a Commercial Laboratory:
Dixie Services, Inc., 9138 E8-3029 Approval as a Commercial Gauger: Inspectorate America Corp., 9138-9139 E8-3066 Intertek USA, Inc., 9139 E8-3065 W.B. Bransom & Company, Inc., 9139 E8-3031 Veterans Veterans Affairs Department PROPOSED RULES Civilian Health and Medical Program of the Department of Veterans Affairs: Expansion of Benefit Coverage for Prostheses and Enuretic (Bed wetting) Devices; Miscellaneous Provisions, 9068-9071 E8-3003 Separate Parts in this Issue Part II Executive Office of the President, Presidential Documents, 9167-9169 08-783 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 73 33 Tuesday, February 19, 2008 Rules and Regulations FEDERAL LABOR RELATIONS AUTHORITY 5 CFR Part 2423 Unfair Labor Practice Proceedings AGENCY: Office of the General Counsel, Federal Labor Relations Authority. ACTION: Final rule.
SUMMARY: The General Counsel of the Federal Labor Relations Authority
(FLRA)revises portions of its regulations regarding unfair labor practice
(ULP)proceedings (Part 2423, subpart A). The purpose of the revisions is to clarify the Office of the General Counsel's
(OGC)role during the investigatory stage of processing ULP charges consistent with the policies of the General Counsel, and to clarify certain administrative matters relating to the filing and investigation of ULP charges. Implementation of the final rule confirms and enhances the neutrality of the OGC before a ULP merit determination is made and returns the OGC to its core mission. DATES: *Effective Date:* February 19, 2008. FOR FURTHER INFORMATION CONTACT: Jill Crumpacker, Executive Director, at
(202)218-7945, *FLRAexecutivedirector@flra.gov.* SUPPLEMENTARY INFORMATION: On December 21, 2007, the OGC of the FLRA published proposed modifications to the existing rules and regulations in subpart A of title 5 of the Code of Federal Regulations regarding the processing and investigation of ULP charges (72 FR 72632) (December 21, 2007). The revisions clarify the neutral fact-finding role of the OGC in the investigation of ULP charges. The revisions encourage parties involved in a ULP dispute to work collaboratively to resolve the dispute, and consistent with the General Counsel's Settlement policy, clarify that the OGC will not be involved in any way in resolving parties' disputes until after a determination has been made that a charge is meritorious. At that time, the OGC will strongly encourage the use of Alternative Dispute Resolution
(ADR)to work to resolve parties' ULP disputes and to avoid protracted litigation of ULP complaints. Should those efforts fail, the OGC will aggressively litigate any ULP complaint. In the Notice of Proposed Rulemaking published in the **Federal Register** , the OGC solicited public comment on the proposed rule for a period of more than 30 days. All comments have been carefully considered prior to publishing the final rule, although all comments are not specifically addressed below. Sectional Analyses Sectional analyses of the revisions to Part 2423—Unfair Labor Practice Proceedings are as follows: Part 2423—Unfair Labor Practice Proceedings Section 2423.0 This section is amended to provide that this part is applicable to any charge of an alleged ULP pending or filed with the Authority on or after February 19, 2008. The provision regarding applicability of this part to any complaint is deleted. Subpart A—Filing, Investigating, Resolving, and Acting on Charges Section 2423.1 A majority of the comments received concern sections 2423.1, 2423.2, 2423.7, and 2423.12 of the proposed rule and the role of the OGC in the resolution of ULP disputes prior to and after the filing of a charge and up until a merit determination is made by a Regional Director. Nearly all commenters stated that parties to a ULP dispute are best served by the resolution of their dispute at the earliest practicable opportunity, and that resolving ULP disputes early effectuates the purposes and policies of the Federal Service Labor-Management Relations Statute (Statute). Two commenters responded favorably to the regulatory revision. One commenter asserted that the rule change will result in more thorough investigations and, therefore, a better understanding of the parties' positions prior to attempting to use ADR processes. The commenter stated that this will result in better discussions when parties are initially contacted regarding settlement by the OGC after a decision to issue complaint has been made. Numerous commenters objected to limiting the OGC involvement in the resolution of ULP disputes until only after a decision is made that the issuance of a ULP complaint is warranted. As set forth in the Statute, the General Counsel's role is to “investigate alleged unfair labor practices” under the Statute, “file and prosecute complaints” under the Statute, and “exercise such other powers of the Authority as the Authority may prescribe.” 5 U.S.C. 7104(f)(2). Consistent with this statutory mandate, with respect to alleged ULPs, the OGC has an investigatory role and a prosecutorial role in the enforcement of the Statute. This mandate governs the policy of the OGC in the processing of ULPs. Consistent with this mandate, the OGC's role should be focused on its core investigatory and prosecutorial responsibilities. That role should not, contrary to the suggestion of some commenters, be to bring about a “win-win” resolution during the processing of every ULP dispute regardless of whether the allegations are meritorious. Although the OGC has an investigatory and prosecutorial role under the Statute, consistent with the comments set forth above, the OGC recognizes the value in parties resolving their own labor-management disputes at the earliest stages. As stated in the final rule, parties are encouraged to meet and resolve ULP disputes prior to and even after filing ULP charges. Contrary to some of the commenters' assertions, the final rule does not prohibit the use of ADR prior to a merit determination; the final rule encourages the use of ADR by parties who are always free to resolve their dispute on their own or with the assistance of a third party. Nothing in the final rule prohibits or impedes the ability of parties to enter into a settlement prior to filing or during the processing of a ULP charge. Further, nothing prohibits or impedes parties from including requirements in their collective bargaining agreements that would mandate parties to make attempts to resolve their disputes prior to filing ULP charges—i.e., a negotiated pre-filing requirement. As stated in the final rule, and as noted by many of the commenters, the purposes and policies of the Statute can best be achieved by parties to a ULP dispute working collaboratively. A few commenters asserted that OGC involvement in facilitating ULP disputes prior to and during the investigation of a ULP charge greatly assists parties in resolving their disputes. To the extent that the involvement of a third-party enhances the ability of parties to resolve their dispute, there are a number of resources available to parties, including the services of the Federal Mediation and Conciliation Service (FMCS), which offers labor-management dispute resolution mediation by skilled facilitators as well as programs to improve labor-management relationships generally. The final rule urges the parties to a ULP dispute to be responsible for their relationship and the resolution of their disputes. This is consistent with the statement of a number of commenters that ADR works best when parties mutually agree to utilize such services to resolve their dispute. Through vigorous enforcement of the Statute, the OGC protects the rights of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them. In addition, the OGC encourages the amicable settlement of disputes between employees and their employers by urging parties to work collaboratively to resolve their ULP disputes prior to filing a ULP charge and throughout the processing of a ULP charge after it is filed. In addition, once a determination is made that the Statute has been violated, the OGC will actively work with the parties using ADR processes to resolve the parties' ULP dispute and actively pursue litigation where appropriate. These actions are wholly consistent with the Statute, and accordingly, the final rule as promulgated is the same as the proposed rule. Section 2423.2 The comments concerning this section are addressed in connection with section 2423.1 above. The final rule as promulgated is the same as the proposed rule. Section 2423.3 The final rule as promulgated is the same as the proposed rule. Section 2423.4 Numerous commenters responded favorably to the regulatory revision that provides for the inclusion of e-mail addresses in charges for all of the parties and witnesses. One commenter suggested modifying the e-mail requirement to reflect that e-mail addresses for the Charged Party and the Charged Party's point of contact be provided only “if known.” This suggestion has been incorporated into the final regulation because, as noted by the commenter, not all Charging Parties will know the e-mail address of the Charged Parties. One commenter suggested inserting a requirement that a charge include the particular agent of the Charged Party that allegedly committed the ULP, as well as the specific setting—e.g., division, section, or department within an agency—where the alleged ULP took place, if the Charged Party is an agency. The commenter notes that at times the general nature of the information set forth in a charge against a large agency is insufficient for the Charged Party to take a proactive approach and conduct its own investigation into the allegations, and resolve the issue. The final rule adopts this suggestion. One commenter claims that this section now adds a new requirement that a party explain how the facts alleged violate the specific paragraphs of the Statute. It is noted that the requirement set forth in 5 CFR 2423.4(a)(5) is not a new requirement and was not revised in the proposed rule. Section 2423.5 This section is reserved. Section 2423.6 All of the comments on this section were favorable and pertained to the elimination of the 2-page limitation on charges filed by facsimile transmission. The final rule as promulgated is the same as the proposed rule. Section 2423.7 A number of comments were received regarding the role of the OGC in the resolution of a ULP charge prior to a merit determination. As addressed fully in connection with section 2423.1 above, under 5 U.S.C. 7104(f)(2), the OGC has an investigatory and prosecutorial role in the enforcement of the Statute, and as such, it is consistent with the Statute to limit the OGC's efforts to fulfilling that role—i.e., turning the focus back to the core mission. As noted above, to the extent that the involvement of a third-party enhances the ability of parties to resolve their dispute, there are a number of resources available to parties, including the services of the FMCS, which offers programs, training and mediation involving labor-management disputes and relationships. Under the final rule, the parties to a ULP dispute are always encouraged to work collaboratively to resolve their own dispute, taking a problem-solving approach, rather than filing a ULP charge. Once a ULP charge is filed, parties are also encouraged on their own to attempt to resolve their dispute while the OGC conducts its investigation of the facts and determines the merits of the charge. The final rule as promulgated is the same as the proposed rule. Section 2423.8 A number of commenters stated that the rule should include a sanction for the Charged Party in the event that a Charged Party does not cooperate in an investigation. Two commenters stated that the definition of what constitutes cooperation is too narrow. The final rule clarifies the long-standing practice that the failure of a party to cooperate during an investigation may result in a dismissal of the ULP charge by the Regional Director. To the extent that a Charged Party fails to cooperate in an investigation, the final rule continues to set forth that the General Counsel may issue a subpoena under 5 U.S.C. 7132 for the attendance and testimony of witnesses and the production of documentary or other evidence. The final rule as promulgated is the same as the proposed rule. Section 2423.9 The final rule as promulgated is the same as the proposed rule. Section 2423.10 One comment was received regarding this section. The commenter did not oppose the revisions to this section. The final rule as promulgated is the same as the proposed rule. Section 2423.11 Some commenters favored the revision to § 2423.11(a) providing that the Regional Director will notify all parties to a dispute of a decision to dismiss a ULP charge upon completion of the investigation. One commenter stated that this is a positive rule change that promotes neutrality and employs parties to take responsibility for their actions. A number of commenters expressed concern regarding informing a Charged Party of an OGC decision to dismiss a charge even where a Charging Party may withdraw the charge. These commenters uniformly claimed that this will disadvantage the Charging Party and will have a chilling effect on any settlement discussion that the parties may be engaged in over the pending ULP charge. In this respect, one commenter stated that the proposed rule will remove the impetus of the Charged Party to enter into a settlement. According to one commenter, the current practice of allowing a Charging Party to withdraw a charge without notifying the Charged Party of a Regional Director's decision to dismiss the charge is a “face-saving” measure for the Charging Party. A few commenters also questioned whether the basis for the dismissal will be communicated to the Charged Party. The final rule ensures that both parties to the dispute are apprised of the result of the investigation, including the basis for the decision where requested, and maintains the neutrality of the OGC, as it is a neutral fact-finding investigator reporting the results of its investigation. As discussed above, the OGC's role is limited to investigating and prosecuting alleged violations of the Statute. In cases where an alleged violation of the Statute is not found, the OGC's processes and procedures are not intended to be a tool for parties to bring about a settlement of their underlying non-meritorious dispute or to provide either party with the opportunity to “save face.” It is recognized that labor-management disputes which do not rise to the level of a ULP are still serious, and that their resolution is critical to good labor-management relations and to an effective and efficient Government. These regulations, however, place the responsibility for resolving such disputes in the hands of the parties where they are more appropriately addressed. Some commenters expressed concern that if a decision is made to dismiss an otherwise meritorious charge on procedural grounds, then the parties may have a false sense that unlawful conduct is in fact lawful. As set forth above, parties will be apprised of the basis for a dismissal where requested. In addition, under the ULP processes and procedures, a party is always free to file a new charge once all procedural matters are resolved and where all of the other filing requirements, such as timeliness, etc, are met. The final rule as promulgated is modified as set forth above. Section 2423.12 A number of comments were received regarding the use of ADR after a decision to issue complaint has been made. One commenter asserted that waiting to address settlement of ULP charges until after a merit decision is made will result in more thorough investigations and, therefore, a better understanding of the parties' positions prior to attempting to use ADR. The commenter stated that this will result in better settlement discussions when parties are contacted regarding settlement. A few commenters expressed concern that the proposed rule providing for the use of ADR prior to the issuance of complaint will result in all meritorious ULP charges being settled even over the objections of the Charging Party, and that the OGC will no longer issue complaint and litigate such cases. The OGC will actively work with the parties using ADR processes to reach a satisfactory resolution that is consistent with the Statute, resolves the parties' ULP dispute, and obtains the same types of remedies and relief as would be appropriate if the complaint was litigated. The OGC will also continue to vigorously enforce the Statute, prosecuting unresolved violations through litigation. The final rule as promulgated is the same as the proposed rule with a minor editorial clarification. Regulatory Flexibility Act Certification Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the General Counsel of the FLRA has determined that this regulation, as amended, will not have a significant impact on a substantial number of small entities, because this rule applies to federal employees, federal agencies, and labor organizations representing federal employees. Unfunded Mandates Reform Act of 1995 This rule change will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This action is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. Paperwork Reduction Act of 1995 The amended regulations contain no additional information collection or record keeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, *et seq.* List of Subjects in 5 CFR Part 2423 Administrative practice and procedure, Government employees, Labor management relations. For these reasons, the General Counsel of the Federal Labor Relations Authority, amends 5 CFR Part 2423 as follows: PART 2423—UNFAIR LABOR PRACTICE PROCEEDINGS 1. The authority citation for part 2423 continues to read as follows: Authority: 5 U.S.C. 7134. 2. Section 2423.0 and subpart A of Part 2423 are revised to read as follows: Sec. 2423.0 Applicability of this part. Subpart A—Filing, Investigating, Resolving, and Acting on Charges 2423.1 Resolution of unfair labor practice disputes prior to a Regional Director determination whether to issue a complaint. 2423.2 Alternative Dispute Resolution
(ADR)services. 2423.3 Who may file charges. 2423.4 Contents of the charge; supporting evidence and documents. 2423.5 [Reserved] 2423.6 Filing and service of copies. 2423.7 [Reserved] 2423.8 Investigation of charges. 2423.9 Amendment of charges. 2423.10 Action by the Regional Director. 2423.11 Determination not to issue complaint; review of action by the Regional Director. 2423.12 Settlement of unfair labor practice charges after a Regional Director determination to issue a complaint but prior to issuance of a complaint. 2423.13-2423.19 [Reserved] § 2423.0 Applicability of this part. This part is applicable to any charge of alleged unfair labor practices pending or filed with the Authority on or after February 19, 2008. Subpart A—Filing, Investigating, Resolving, and Acting on Charges § 2423.1 Resolution of unfair labor practice disputes prior to a Regional Director determination whether to issue a complaint. The purposes and policies of the Federal Service Labor-Management Relations Statute can best be achieved by the collaborative efforts of all persons covered by that law. The General Counsel encourages all persons on their own to meet, and in good faith, attempt to settle unfair labor practice disputes. To maintain complete neutrality, the General Counsel may not be involved with such settlement discussions with the parties prior to a Regional Director determination on the merits. Attempts by the parties to resolve unfair labor practice disputes prior to filing an unfair labor practice charge do not toll the time limitations for filing a charge set forth at 5 U.S.C. 7118(a)(4). § 2423.2 Alternative Dispute Resolution
(ADR)services. The General Counsel provides ADR services under § 2423.12(a) after a Regional Director has determined to issue a complaint. § 2423.3 Who may file charges.
(a)*Filing charges.* Any person may charge an activity, agency or labor organization with having engaged in, or engaging in, any unfair labor practice prohibited under 5 U.S.C. 7116.
(b)*Charging Party.* Charging Party means the individual, labor organization, activity or agency filing an unfair labor practice charge with a Regional Director.
(c)*Charged Party.* Charged Party means the activity, agency or labor organization charged with allegedly having engaged in, or engaging in, an unfair labor practice. § 2423.4 Contents of the charge; supporting evidence and documents.
(a)*What to file.* The Charging Party may file a charge alleging a violation of 5 U.S.C. 7116 by completing a form prescribed by the General Counsel, or on a substantially similar form, that contains the following information:
(1)The name, address, telephone number, facsimile number (where facsimile equipment is available), and e-mail address of the Charging Party;
(2)The name, address, telephone number, facsimile number (where facsimile equipment is available), and e-mail address (where known) of the Charged Party;
(3)The name, address, telephone number, facsimile number (where facsimile equipment is available), and e-mail address of the Charging Party's point of contact;
(4)The name, address, telephone number, facsimile number (where facsimile equipment is available), and e-mail address (where known) of the Charged Party's point of contact;
(5)A clear and concise statement of the facts alleged to constitute an unfair labor practice, a statement of how those facts allegedly violate specific section(s) and paragraph(s) of the Federal Service Labor-Management Relations Statute and the date and place of occurrence of the particular acts, which includes the identity (name and title) of the all the individuals involved, as well as the specific agency entity (if applicable) within which the events took place; and
(6)A statement whether the subject matter raised in the charge:
(i)Has been raised previously in a grievance procedure;
(ii)Has been referred to the Federal Service Impasses Panel, the Federal Mediation and Conciliation Service, the Equal Employment Opportunity Commission, the Merit Systems Protection Board, or the Office of the Special Counsel for consideration or action;
(iii)Involves a negotiability issue raised by the Charging Party in a petition pending before the Authority pursuant to part 2424 of this subchapter; or
(iv)Has been the subject of any other administrative or judicial proceeding.
(7)A statement describing the result or status of any proceeding identified in paragraph (a)(6) of this section.
(b)*When to file.* Under 5 U.S.C. 7118 (a)(4), a charge alleging an unfair labor practice must normally be filed within six
(6)months of its occurrence.
(c)*Declarations of truth and statement of service* . A charge shall be in writing and signed, and shall contain a declaration by the individual signing the charge, under the penalties of the Criminal Code (18 U.S.C. 1001), that its contents are true and correct to the best of that individual's knowledge and belief.
(d)*Statement of service* . A charge shall also contain a statement that the Charging Party served the charge on the Charged Party, and shall list the name, title and location of the individual served, and the method of service.
(e)*Self-contained document* . A charge shall be a self-contained document describing the alleged unfair labor practice without a need to refer to supporting evidence and documents submitted under paragraph
(f)of this section.
(f)*Submitting supporting evidence and documents and identifying potential witnesses.* When filing a charge, the Charging Party shall submit to the Regional Director, any supporting evidence and documents, including, but not limited to, correspondence and memoranda, records, reports, applicable collective bargaining agreement clauses, memoranda of understanding, minutes of meetings, applicable regulations, statements of position and other documentary evidence. The Charging Party also shall identify potential witnesses with contact information (telephone number, e-mail address, and facsimile number) and shall provide a brief synopsis of their expected testimony. § 2423.5 [Reserved] § 2423.6 Filing and service of copies.
(a)*Where to file* . A Charging Party shall file the charge with the Regional Director for the region in which the alleged unfair labor practice has occurred or is occurring. A charge alleging that an unfair labor practice has occurred or is occurring in two or more regions may be filed with the Regional Director in any of those regions.
(b)*Filing date* . A charge is deemed filed when it is received by a Regional Director. A charge received in a Region after the close of the business day will be deemed received and docketed on the next business day. The business hours for each of the Regional Offices are set forth at *http://www.FLRA.gov.*
(c)*Method of filing.* A Charging Party may file a charge with the Regional Director in person or by commercial delivery, first class mail, facsimile or certified mail. If filing by facsimile transmission, the Charging Party is not required to file an original copy of the charge with the Region. A Charging Party assumes responsibility for receipt of a charge. Supporting evidence and documents must be submitted to the Regional Director in person, by commercial delivery, first class mail, certified mail, or by facsimile transmission.
(d)*Service of the charge.* The Charging Party shall serve a copy of the charge (without supporting evidence and documents) on the Charged Party. Where facsimile equipment is available, the charge may be served by facsimile transmission in accordance with paragraph
(c)of this section. § 2423.7 [Reserved] § 2423.8 Investigation of charges.
(a)*Investigation* . The Regional Director, on behalf of the General Counsel, conducts an unbiased, neutral investigation of the charge as the Regional Director deems necessary. During the course of the investigation, all parties involved are afforded an opportunity to present their evidence and views to the Regional Director.
(b)*Cooperation* . The purposes and policies of the Federal Service Labor-Management Relations Statute can best be achieved by the full cooperation of all parties involved and the timely submission of all potentially relevant information from all potential sources during the course of the investigation. All persons shall cooperate fully with the Regional Director in the investigation of charges. The failure of a Charging Party to cooperate during an investigation may provide grounds for a Regional Director to dismiss the charge for failure to produce evidence supporting the charge. Cooperation includes any of the following actions, when deemed appropriate by the Regional Director:
(1)Making union officials, employees, and agency supervisors and managers available to give sworn/affirmed testimony regarding matters under investigation;
(2)Producing documentary evidence pertinent to the matters under investigation; and
(3)Providing statements of position on the matters under investigation.
(c)*Investigatory subpoenas.* If a person fails to cooperate with the Regional Director in the investigation of a charge, the General Counsel, upon recommendation of a Regional Director, may decide in appropriate circumstances to issue a subpoena under 5 U.S.C. 7132 for the attendance and testimony of witnesses and the production of documentary or other evidence. However, no subpoena shall be issued under this section which requires the disclosure of intramanagement guidance, advice, counsel or training within an agency or between an agency and the Office of Personnel Management.
(1)A subpoena shall be served by any individual who is at least 18 years old and who is not a party to the proceeding. The individual who served the subpoena must certify that he or she did so:
(i)By delivering it to the witness in person;
(ii)By registered or certified mail; or
(iii)By delivering the subpoena to a responsible individual (named in the document certifying the delivery) at the residence or place of business (as appropriate) of the person for whom the subpoena was intended. The subpoena shall show on its face the name and address of the Regional Director and the General Counsel.
(2)Any person served with a subpoena who does not intend to comply shall, within 5 days after the date of service of the subpoena upon such person, petition in writing to revoke the subpoena. A copy of any petition to revoke shall be served on the General Counsel.
(3)The General Counsel shall revoke the subpoena if the witness or evidence, the production of which is required, is not material and relevant to the matters under investigation or in question in the proceedings, or the subpoena does not describe with sufficient particularity the evidence the production of which is required, or if for any other reason sufficient in law the subpoena is invalid. The General Counsel shall state the procedural or other grounds for the ruling on the petition to revoke. The petition to revoke, shall become part of the official record if there is a hearing under subpart C of this part.
(4)Upon the failure of any person to comply with a subpoena issued by the General Counsel, the General Counsel shall determine whether to institute proceedings in the appropriate district court for the enforcement of the subpoena. Enforcement shall not be sought if to do so would be inconsistent with law, including the Federal Service Labor-Management Relations Statute.
(d)*Confidentiality* . It is the General Counsel's policy to protect the identity of individuals who submit statements and information during the investigation, and to protect against the disclosure of documents obtained during the investigation, as a means of ensuring the General Counsel's continuing ability to obtain all relevant information. After issuance of a complaint and in preparation for a hearing, however, identification of witnesses, a synopsis of their expected testimony and documents proposed to be offered into evidence at the hearing may be disclosed as required by the prehearing disclosure requirements in § 2423.23. § 2423.9 Amendment of charges. Prior to the issuance of a complaint, the Charging Party may amend the charge in accordance with the requirements set forth in § 2423.6. § 2423.10 Action by the Regional Director.
(a)*Regional Director action* . The Regional Director, on behalf of the General Counsel, may take any of the following actions, as appropriate:
(1)Approve a request to withdraw a charge;
(2)Dismiss a charge;
(3)Approve a written settlement agreement in accordance with the provisions of § 2423.12;
(4)Issue a complaint; or
(5)Withdraw a complaint.
(b)*Request for appropriate temporary relief.* Parties may request the General Counsel to seek appropriate temporary relief (including a restraining order) under 5 U.S.C. 7123(d). The General Counsel may initiate and prosecute injunctive proceedings under 5 U.S.C. 7123(d) only upon approval of the Authority. A determination by the General Counsel not to seek approval of the Authority to seek such appropriate temporary relief is final and shall not be appealed to the Authority.
(c)*General Counsel requests to the Authority.* When a complaint issues and the Authority approves the General Counsel's request to seek appropriate temporary relief (including a restraining order) under 5 U.S.C. 7123(d), the General Counsel may make application for appropriate temporary relief (including a restraining order) in the district court of the United States within which the unfair labor practice is alleged to have occurred or in which the party sought to be enjoined resides or transacts business. Temporary relief may be sought if it is just and proper and the record establishes probable cause that an unfair labor practice is being committed. Temporary relief shall not be sought if it would interfere with the ability of the agency to carry out its essential functions.
(d)*Actions subsequent to obtaining appropriate temporary relief.* The General Counsel shall inform the district court which granted temporary relief pursuant to 5 U.S.C. 7123(d) whenever an Administrative Law Judge recommends dismissal of the complaint, in whole or in part. § 2423.11 Determination not to issue complaint; review of action by the Regional Director.
(a)*Opportunity to withdraw a charge.* If, upon the completion of an investigation under § 2423.8, a decision is made to dismiss the charge, the Regional Director will notify the parties of the decision, including the basis of the decision, if requested, and the Charging Party will be advised of an opportunity to withdraw the charge(s).
(b)*Dismissal letter.* If the Charging Party does not withdraw the charge within a reasonable period of time, the Regional Director will, on behalf of the General Counsel, dismiss the charge and provide the parties with a written statement of the reasons for not issuing a complaint.
(c)*Appeal of a dismissal letter* . The Charging Party may obtain review of the Regional Director's decision not to issue a complaint by filing an appeal with the General Counsel within 25 days after service of the Regional Director's decision. A Charging Party shall serve a copy of the appeal on the Regional Director. The General Counsel shall serve notice on the Charged Party that an appeal has been filed.
(d)*Extension of time.* The Charging Party may file a request, in writing, for an extension of time to file an appeal, which shall be received by the General Counsel not later than 5 days before the date the appeal is due. A Charging Party shall serve a copy of the request for an extension of time on the Regional Director.
(e)*Grounds for granting an appeal.* The General Counsel may grant an appeal when the appeal establishes at least one of the following grounds:
(1)The Regional Director's decision did not consider material facts that would have resulted in issuance of a complaint;
(2)The Regional Director's decision is based on a finding of a material fact that is clearly erroneous;
(3)The Regional Director's decision is based on an incorrect statement or application of the applicable rule of law;
(4)There is no Authority precedent on the legal issue in the case; or
(5)The manner in which the Region conducted the investigation has resulted in prejudicial error.
(f)*General Counsel action* . The General Counsel may deny the appeal of the Regional Director's dismissal of the charge, or may grant the appeal and remand the case to the Regional Director to take further action. The General Counsel's decision on the appeal states the grounds listed in paragraph
(e)of this section for denying or granting the appeal, and is served on all the parties. Absent a timely motion for reconsideration, the decision of the General Counsel is final.
(g)*Reconsideration* . After the General Counsel issues a final decision, the Charging Party may move for reconsideration of the final decision if it can establish extraordinary circumstances in its moving papers. The motion shall be filed within 10 days after the date on which the General Counsel's final decision is postmarked. A motion for reconsideration shall state with particularity the extraordinary circumstances claimed and shall be supported by appropriate citations. The decision of the General Counsel on a motion for reconsideration is final. § 2423.12 Settlement of unfair labor practice charges after a Regional Director determination to issue a complaint but prior to issuance of a complaint.
(a)*Alternative Dispute Resolution (ADR)* . After a merit determination to issue a complaint, the Regional Director will work with the parties to settle the dispute using ADR, to avoid costly and protracted litigation where possible.
(b)*Bilateral informal settlement agreement.* Prior to issuing a complaint but after a merit determination by the Regional Director, the Regional Director may afford the Charging Party and the Charged Party a reasonable period of time to enter into an informal settlement agreement to be approved by the Regional Director. When a Charged Party complies with the terms of an informal settlement agreement approved by the Regional Director, no further action is taken in the case. If the Charged Party fails to perform its obligations under the approved informal settlement agreement, the Regional Director may institute further proceedings.
(c)*Unilateral informal settlement agreement* . If the Charging Party elects not to become a party to a bilateral settlement agreement which the Regional Director concludes effectuates the policies of the Federal Service Labor-Management Relations Statute, the Regional Director may choose to approve a unilateral settlement between the General Counsel and the Charged Party. The Regional Director, on behalf of the General Counsel, shall issue a letter stating the grounds for approving the settlement agreement and declining to issue a complaint. The Charging Party may obtain review of the Regional Director's action by filing an appeal with the General Counsel in accordance with § 2423.11(c) and (d). The General Counsel shall take action on the appeal as set forth in § 2423.11(e)-(g). §§ 2423.13-2423.19 [Reserved] Dated: February 13, 2008. Colleen Duffy Kiko, General Counsel, Federal Labor Relations Authority. [FR Doc. E8-3013 Filed 2-15-08; 8:45 am] BILLING CODE 6727-01-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 982 [Docket No. AMS-FV-07-0150; FV08-982-1 IFR] Hazelnuts Grown in Oregon and Washington; Establishment of Interim Final and Final Free and Restricted Percentages for the 2007-2008 Marketing Year AGENCY: Agricultural Marketing Service, USDA. ACTION: Interim final rule with request for comments. SUMMARY: This rule establishes interim final and final free and restricted percentages for domestic inshell hazelnuts for the 2007-2008 marketing year under the Federal marketing order for hazelnuts grown in Oregon and Washington. The interim final free and restricted percentages are 8.1863 and 91.8137 percent, respectively, and the final free and restricted percentages are 9.2671 and 90.7329 percent, respectively. The percentages allocate the quantity of domestically produced hazelnuts which may be marketed in the domestic inshell market
(free)and the quantity of domestically produced hazelnuts that must be disposed of in outlets approved by the Board (restricted). Volume regulation is intended to stabilize the supply of domestic inshell hazelnuts to meet the limited domestic demand for such hazelnuts with the goal of providing producers with reasonable returns. This rule was recommended unanimously by the Hazelnut Marketing Board (Board), the agency responsible for local administration of the marketing order. DATES: Effective February 20, 2008. This interim final rule applies to all 2007-2008 marketing year restricted hazelnuts until they are properly disposed of in accordance with marketing order requirements. Comments received by April 21, 2008 will be considered prior to issuance of a final rule. 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:* *http://www.regulations.gov.* All comments should reference the docket number and the date and page number of this issue of the **Federal Register** and will be made available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Barry Broadbent or Gary Olson, Northwest Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW. Third Avenue, Suite 385, Portland, OR 97204; *Telephone:*
(503)326-2724, *Fax:*
(503)326-7440, or *E-mail:* *Barry.Broadbent@usda.gov* or *GaryD.Olson@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 Agreement No. 115 and Marketing Order No. 982, both as amended (7 CFR Part 982), regulating the handling of hazelnuts grown in Oregon and Washington, 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. It is intended that this action apply to all merchantable hazelnuts handled during the 2007-2008 marketing year beginning July 1, 2007. This action applies to all 2007-2008 marketing year restricted hazelnuts until they are properly disposed of in accordance with marketing order requirements. 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. 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 rule establishes free and restricted percentages which allocate the quantity of domestically produced hazelnuts that may be marketed in domestic inshell markets
(free)and hazelnuts that must be exported, shelled, or otherwise disposed of by handlers (restricted). The Board met and, after determining that volume regulation would tend to effectuate the declared policy of the Act, developed a marketing policy to be employed for the duration of the 2007-2008 marketing year. Volume regulation is intended to stabilize the supply of domestic inshell hazelnuts to meet the limited domestic demand for such hazelnuts, with the goal of providing producers with reasonable returns. Based on an estimate of the domestic inshell trade demand and total supply of domestically produced hazelnuts available for the 2007-2008 marketing year, the Board voted unanimously at their November 15, 2007, meeting to recommend to USDA that the interim final free and restricted percentages for the 2007-2008 marketing year be established at 8.1863 percent and 91.8137 percent, respectively. Additionally, the Board unanimously voted to set the final free and restricted percentages, effective May 1, 2008, at 9.2671 and 90.7329 percent, respectively. The Board's authority to recommend volume regulation and use computations to determine the allocation of hazelnuts to individual markets is specified in § 982.40 of the order. Under the order's provisions, free and restricted market allocations of hazelnuts are expressed as percentages of the total hazelnut supply subject to regulation. The percentages are derived by dividing the estimated domestic inshell trade demand (computed by formula) by the Board's estimate of the total domestically produced supply of hazelnuts that are expected to be available over the course of the marketing year. Inshell trade demand, the key component of the marketing policy, is the estimated quantity of inshell hazelnuts necessary to adequately supply the domestic inshell hazelnut market for the duration of the marketing year. The Board determines the domestic inshell trade demand for each year and uses that estimate as the basis for setting the percentage of the available supply of domestically produced hazelnuts that handlers may ship to the domestic inshell market throughout the marketing season. The order specifies that inshell trade demand be computed by averaging the preceding three years' trade acquisitions of inshell hazelnuts, allowing adjustments for abnormal crop or marketing conditions. In addition, the Board may increase the computed inshell trade demand by up to 25 percent, if market conditions warrant an increase. As required by the order, prior to September 20 of each marketing year, the Board meets to establish its marketing policy for that year. If the Board determines that volume control would tend to effectuate the declared policy of the Act, the Board then follows a procedure, specified by the order, to compute and announce preliminary free and restricted percentages. The preliminary free percentage releases 80 percent of the adjusted inshell trade demand that handlers may ship to the domestic market. The purpose of releasing only 80 percent of the inshell trade demand under the preliminary stage of regulation is to guard against any potential underestimate of crop size. The preliminary free percentage is expressed as a percentage of the total hazelnut supply subject to regulation, where total supply is the sum of the estimated crop production less the three-year average disappearance plus the undeclared carry-in from the previous marketing year. On August 21, 2007, the National Agricultural Statistics Service
(NASS)released an estimate of 2007 hazelnut production for the Oregon and Washington area at 33,000 dry orchard-run tons. NASS uses an objective yield survey method to estimate hazelnut production which has historically been very accurate. On August 23, 2007, the Board met for the purpose of
(1)determining if volume control regulation would tend to effectuate the declared policy of the Act;
(2)estimating the total available supply and the domestic inshell trade demand for hazelnuts;
(3)establishing preliminary free and restricted marketing percentages for the 2007-2008 marketing year; and
(4)authorizing market outlets for restricted hazelnuts. After discussion, the Board unanimously determined that volume regulation would be necessary to effectively market the industry's 2007 crop and would tend to effectuate the declared policy of the Act. The determination was based on
(1)the size of the 2007 hazelnut crop;
(2)the inability of the domestic inshell market to absorb such a large crop;
(3)the projected large size of the world hazelnut crop and the probability of an oversupplied world market; and
(4)the average price paid to Oregon-Washington growers has not exceeded the parity price in any one of the past 18 years. The Board then estimated the total available supply for the 2007 crop year to be 33,603 tons. The Board arrived at that quantity by using the crop estimate compiled by NASS (33,000 tons) and then adjusting that estimate to account for disappearance and carry-in. The order requires the Board to reduce the crop estimate by the average disappearance over the preceding three years (1,426 tons) and to increase it by the amount of undeclared carry-in from previous years' production (2,029 tons). In the calculation, disappearance is defined as the difference between the estimated orchard-run production and the actual supply of merchantable product available for sale by handlers. Disappearance can consist of
(1)unharvested hazelnuts;
(2)culled product (nuts that are delivered to handlers but later discarded);
(3)product used on the farm, sold locally, or otherwise disposed of by producers; and
(4)statistical error in the orchard-run production estimate. Undeclared carry-in is defined as hazelnuts that were produced in a previous marketing year but were not subject to regulation because they were not shipped during that marketing year. Undeclared carry-in is subject to regulation during the current marketing year and is accounted for as such by the Board. Additionally, the Board estimated domestic inshell trade demand for the 2007-2008 marketing year to be 2,478 tons. The Board arrived at this estimate by taking the average of the domestic inshell trade acquisitions for the 2003/2004, 2004/2005, and the 2006/2007 marketing years (2,649 tons), increasing that amount by 5 percent (133 tons) to encourage sales (as allowed by the order), and then reducing that quantity by the declared carry-in from last year's crop (304 tons). The trade acquisition data for the 2005-2006 marketing year was omitted from the Board's calculations, as allowed by the order, after it was determined to be abnormal due to crop and marketing conditions. The Board is also allowed to increase the average domestic inshell trade acquisitions in their calculation by up to 25 percent, if market conditions justify such an increase. At this stage in the establishment of the marketing policy, the Board voted unanimously that a 5 percent increase would be sufficient to encourage new sales without risking oversupply of the market. The declared carry-in represents product regulated under the order during a preceding marketing year but not shipped during that year. This inventory must be accounted for when estimating the quantity of product to make available to adequately supply the market. After establishing estimates for total available hazelnut supply and domestic inshell trade demand, the Board used those estimates to compute and announce preliminary free and restricted percentages of 5.8983 percent and 94.1017 percent, respectively. The Board computed the preliminary free percentage by multiplying the adjusted inshell trade demand by 80 percent and dividing the result by the estimate of the total available supply subject to regulation (2,478 tons × 80 percent/33,603 tons = 5.8983 percent). The preliminary free percentage initially released 1,982 tons of hazelnuts from the 2007-2008 supply for domestic inshell use. The Board authorized the preliminary restricted percentage (31,621 tons) to be exported or shelled for the domestic kernel markets. Under the order, the Board must meet again on or before November 15 to review and revise the preliminary estimate of the total available supply of hazelnuts and to recommend interim final and final free and restricted percentages. As indicated earlier, when establishing preliminary free and restricted percentages, the Board utilizes a pre-harvest objective yield survey, compiled by NASS on behalf of the Board, to estimate the upcoming crop size. After the hazelnut harvest has concluded, usually sometime in October, information is available directly from handlers to more accurately estimate crop size. The Board may use this information to amend their preliminary estimate of total available supply before calculating the interim final and final percentages. At this meeting, the Board may also amend the percentage increase included in the computation of inshell trade demand to encourage increased sales. Interim final percentages are calculated in the same way as the preliminary percentages but release 100 percent of the inshell trade demand, effectively releasing the additional 20 percent held back at the preliminary stage. Final free and restricted percentages may release up to an additional 15 percent of the average trade acquisitions of inshell hazelnuts for desirable carryout, to provide an adequate carryover of product into the following season. The order requires that final free and restricted percentages be effective 30 days prior to the end of the marketing year, or earlier, if recommended by the Board and approved by USDA. The Board is allowed to combine the interim final and the final stages of the marketing policy, if marketing conditions so warrant, by recommending final percentages which immediately release 100 percent of the inshell trade demand (the preliminary percentage plus the additional 20 held back) plus any percentage increase the Board determines for desirable carryout. Revisions in the marketing policy can be made until February 15 of each marketing year, but the inshell trade demand can only be revised upward, consistent with § 982.40(e). The Board met, as required by the order, on November 15, 2007, to review and approve an amended marketing policy and to recommend the establishment of interim final and final free and restricted percentages. At that time, the Board revised the crop estimate in the marketing policy to 36,270 tons (from 33,000 tons) after considering the results of post-harvest handler survey information compiled by the Board. The Board also revised the percentage increase meant to encourage sales that is included in the inshell trade demand computation from 5 percent to 25 percent, effectively allocating another 529 tons of inshell hazelnuts that may be marketed in the domestic market. Using the revised crop estimate and the increased inshell trade demand, the Board then computed interim final free and restricted percentages. The percentages release the remaining 20 percent of the estimated inshell trade demand that was withheld during the preliminary stage of the marketing policy, as well as take into account the amendments made by the Board to the marketing policy computations (revising the total supply estimate and increasing the inshell trade demand). The interim final free and restricted percentages were therefore set at 8.1863 and 91.8137 percent, respectively. The interim final free percentage immediately releases a total 3007 tons of inshell hazelnuts from the 2007-2008 supply that may be marketed in domestic markets. During the meeting, the Board decided that market conditions were such that the industry would benefit from the release of an additional 15 percent of the three year average trade acquisitions to allow for desirable carryout and that the increase would not adversely affect the 2007-2008 domestic inshell market. The final free and restricted percentages were set at 9.2671 and 90.7329 percent, respectively. The final percentages are to become effective May 1, 2008. The final free percentage releases 3,404 tons of inshell hazelnuts from the 2007-2008 supply for domestic use, which includes 397 tons released late in the marketing year for desirable carryout. The final marketing percentages are based on the Board's final production estimate and the following supply and demand information for the 2007-2008 marketing year: Tons Total Available Supply
(1)Production forecast (11/15/07 crop estimate) 36,270
(2)Minus: Disappearance (three year average—4.32 percent of Item 1) -1,567
(3)Merchantable production (Item 1 minus Item 2) 34,703
(4)Plus: Undeclared carry-in as of July 1, 2007 (subject to 2007-2008 regulation) + 2,029
(5)Available supply subject to regulation (Item 3 plus Item 4) 36,732 Inshell Trade Demand
(6)Average trade acquisition
(ATA)of inshell hazelnuts (three prior years domestic sales) 2,649
(7)Plus: Increase to encourage increased sales (25% of average trade acquisitions) + 662
(8)Minus: Declared carry-in as of July 1, 2007 (not subject to 2007-2008 regulation) -304
(9)Adjusted inshell trade demand (Item 6 plus Item 7 minus Item 8) 3,007 Percentages Free Restricted
(10)Interim final percentages (Item 9 divided by Item 5) × 100 8.1863 91.8137
(11)Interim final free tonnage (Item 9) 3,007
(12)Interim final restricted in tons (Item 5 minus Item 9) 33,725
(13)Final percentages (Item 14 divided by Item 5) × 100 9.2671 90.7329
(14)Final free tonnage (Interim final free tonnage (Item 11) plus 15% of ATA (397)) 3,404
(15)Final restricted tonnage (Item 5 minus Item 11) 33,328 In addition to complying with the provisions of the order, the Board also considered USDA's 1982 “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” (Guidelines) when making its computations in the marketing policy. This volume control regulation provides a method to collectively limit the supply of inshell hazelnuts available for sale in domestic markets. The Guidelines provide that the domestic inshell market has available a quantity equal to 110 percent of prior years' shipments before allocating supplies for the export inshell, export kernel, and domestic kernel markets. This provides for a plentiful supply of inshell hazelnuts for consumers and for market expansion, while retaining the mechanism for dealing with oversupply situations. The established final percentages make available approximately 755 additional tons to encourage increased sales. The total free supply for the 2007-2008 marketing year is estimated to be 3,404 tons of hazelnuts, which is 137 percent of the average of the last three prior years' sales (2,478 tons) and exceeds the goal of the Guidelines. 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 action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those having annual receipts of less than $6,500,000. There are approximately 650 producers of hazelnuts in the production area and approximately 19 handlers subject to regulation under the order. Using statistics compiled by NASS, the average value of production received by producers in 2004-2006 was $54,088,000. Using those estimates, the average annual hazelnut revenue per producer would be approximately $77,300. The level of sales of other crops by hazelnut producers is not known. In addition, based on records maintained by the Board, approximately 83 percent of the handlers ship under $6,500,000 worth of hazelnuts on an annual basis. In view of the foregoing, it can be concluded that the majority of hazelnut producers and handlers may be classified as small entities. Board meetings are widely publicized in advance of the meetings and are held in a location central to the production area. The meetings are open to all industry members and other interested persons who are encouraged to participate in the deliberations and voice their opinions on topics under discussion. Thus, Board recommendations can be considered to represent the interests of small business entities in the industry. Currently, U.S. hazelnut production is allocated among three main market outlets: domestic inshell, export inshell, and kernel markets. Handlers and growers receive the highest return for sales in the domestic inshell market. They receive less for product going to export inshell, and the least for kernels. Based on Board records of average shipments for 1997-2006, the percentage going to each of these markets was 10 percent (domestic inshell), 53 percent (export inshell), and 36 percent (kernels). Other minor market outlets make up the remaining 1 percent. The inshell hazelnut market can be characterized as having limited and inelastic demand with a very short primary marketing period. On average, 80 percent of domestic inshell hazelnut shipments occur between October 1 and November 30, primarily to supply holiday nut demand. The inshell market is, therefore, prone to oversupply and correspondingly low grower prices in the absence of supply restrictions. This volume control regulation provides a method for the U.S. hazelnut industry to limit the supply of domestic inshell hazelnuts available for sale in the continental U.S. and thereby mitigate market oversupply conditions. Many years of marketing experience led to the development of the current volume control procedures. These procedures have helped the industry solve its marketing problems by keeping inshell supplies in balance with domestic needs. Volume controls ensure that the domestic inshell market is fully supplied while protecting the market from the negative effects of oversupply. Although the domestic inshell market is a relatively small portion of total hazelnut sales (averaging 10 percent of total shipments for 1997-2006), it remains a profitable market segment. The volume control provisions of the order are designed to avoid oversupplying this particular market segment, because that would likely lead to substantially lower grower prices. The other market segments, export inshell and kernels, are expected to continue to provide good outlets for U.S. hazelnut production into the future. Adverse climatic conditions that negatively impacted hazelnut production in the other hazelnut producing regions of the world in 2004 and 2005 have corrected and the total world supply in 2007-2008 is predicted to be near the historically high levels seen in 2006. Product prices in the world market have trended downward in the expectation of the large available supply. While the U.S. hazelnut industry continues to experience high demand for their large sized and high quality product, the prices that producers receive are tied to the global market. In light of the anticipated world supply situation, regulation of the domestic inshell market is important to the U.S. hazelnut industry to insulate that specialty market from the supply related challenges of the global hazelnut market. In Oregon and Washington, lower hazelnut production years typically follow higher production years (a historically consistent cyclical pattern), and such was the case in 2007. The 2006 crop of 43,000 tons was 20 percent above the 10-year average (34,000 tons for 1997-2006) for hazelnut production. The 2007 crop (36,720 tons, according to the survey of handlers conducted by the Board) is estimated to be 16 percent below the previous year. Using the NASS estimate of 33,000 tons, the crop is 23 percent lower. It is predicted that the 2008 crop will follow the recent production pattern and will be larger than the current crop year. This cyclical trait also leads to an inversely corresponding cyclical price pattern for hazelnuts. The intrinsic cyclical nature of the hazelnut industry lends credibility to the volume control measures enacted by the Board under the marketing order. Recent production and price data reflect the stabilizing effect of volume control regulations. Industry statistics show that total hazelnut production has varied widely over the 10-year period between 1997 and 2006, from a low of 15,500 tons in 1998 to a high of 49,500 tons in 2001. Production in the smallest crop year and the largest crop year were 48 percent and 145 percent, respectively, of the 10-year average of 34,000 tons. Grower price, however, has not fluctuated to the extent of production. Prices in the lowest price year and the highest price year were 63 percent and 200 percent, respectively, of the 10-year average price of $1,114 per ton. If the extraordinarily high price for the 2005 crop year is excluded as an aberration that stems from a global production crisis, the percentage variation in price drops to 70 percent and 145 percent of a $988 per ton average price, respectively. The lower level of variability of price versus the variability of production provides an illustration of the order's price-stabilizing impact. The coefficient of variation (a standard statistical measure of variability; “CV”) for hazelnut production over the 10-year period is 0.33. In contrast, the coefficient of variation for hazelnut grower prices, excluding the 2005 price, is only 0.20, dramatically lower than the CV for production. The lower level of variability of price versus the variability of production provides an illustration of the order's price-stabilizing impact. Comparing grower revenue to cost is useful in highlighting the impact on growers of recent product and price levels. A recent hazelnut production cost study from Oregon State University estimated cost-of-production per acre to be approximately $1,340 for a typical 100-acre hazelnut enterprise. Average grower revenue per bearing acre (based on NASS acreage and value of production data) equaled or exceeded that typical cost level only four times from 1997 to 2006. Average grower revenue was below typical costs in the other years. Without the stabilizing influence of the order, growers may have lost more money. While crop size has fluctuated, volume regulations contribute to orderly marketing and market stability by moderating the variation in returns for all producers and handlers, both large and small. While the level of benefits of this rulemaking is difficult to quantify, the stabilizing effects of volume regulation impact both small and large handlers positively by helping them maintain and expand markets even though hazelnut supplies fluctuate widely from season to season. This regulation provides equitable allotment of the most profitable market, the domestic inshell market. That market is available to all handlers, regardless of size. As an alternative to this regulation, the Board discussed not regulating the marketing of the 2007 hazelnut crop. However, without any regulation in effect, the Board believes that the industry would tend to oversupply the inshell domestic market. The 2007 hazelnut crop is smaller than last year's crop but is still 7 percent above the ten-year average. The unregulated release of 36,732 tons on the domestic inshell market could easily oversupply the small, but lucrative domestic inshell market. The Board believes that any oversupply would completely disrupt the market, causing producer returns to decrease dramatically. Section 982.40 of the order establishes a procedure and computations for the Board to follow in recommending to USDA establishment of preliminary, interim final, and final percentages of hazelnuts to be released to the free and restricted markets each marketing year. The program results in a plentiful supply of hazelnuts for consumers and for market expansion while retaining the mechanism for dealing with oversupply situations. Hazelnuts produced under the order comprise virtually all of the hazelnuts produced in the U.S. This production represents, on average, less than 3 percent of total U.S. production of all tree nuts, and less than 5 percent of the world's hazelnut production. Last season, 73 percent of the domestically produced hazelnut kernels were marketed in the domestic market and 27 percent were exported. Domestically produced kernels generally command a higher price in the domestic market than imported kernels. The industry is continuing its efforts to develop and expand other markets with emphasis on the domestic kernel market. Small business entities, both producers and handlers, benefit from the expansion efforts resulting from this program. Inshell hazelnuts produced under the order compete well in export markets because of their high quality. Based on Board statistics, Europe has historically been the primary export market for U.S. produced inshell hazelnuts. Shipments have also been relatively consistent, not varying much from the 10-year average of 4,906 tons. Recent years, though, have seen a significant increase in export destinations. Last season, inshell shipments to Europe totaled 4,401 tons, representing just 16 percent of exports, with the largest share going to Germany. Inshell shipments to Southwest Pacific countries, Hong Kong in particular, have increased dramatically in the past few years, rising to 79 percent of total inshell exports of 27,259 tons for the 2006-2007 marketing year. The industry continues to pursue export opportunities. There are some reporting, recordkeeping, and other compliance requirements under the order. The reporting and recordkeeping burdens are necessary for compliance purposes and for developing statistical data for maintenance of the program. The information collection requirements have been previously approved by the Office of Management and Budget under OMB No. 0581-0178, Vegetable and Specialty Crops. The forms require information which is readily available from handler records and which can be provided without data processing equipment or trained statistical staff. 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. This rule does not change those requirements. The 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. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. Further, the Board's meetings were widely publicized throughout the hazelnut industry and all interested persons were invited to attend the meetings and participate in Board deliberations. Like all Board meetings, those held on August 23, 2007, and November 15, 2007, were public meetings and all entities, both large and small, were able to express their views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/fv/moab.html* . Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. This rule invites comments on the establishment of interim final and final free and restricted percentages for the 2007-2008 marketing year under the hazelnut marketing order. Any comments received will be considered prior to finalization of this rule. After consideration of all relevant material presented, including the Board's recommendation, and other information, it is found that this interim final rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act. Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this action until 30 days after publication in the **Federal Register** because:
(1)The 2007-2008 marketing year began July 1, 2007, and the percentages established herein apply to all merchantable hazelnuts handled from the beginning of the crop year;
(2)the percentages make the full trade demand available so handlers can take advantage of inshell marketing opportunities;
(3)handlers are aware of this rule, which was recommended at an open Board meeting, and need no additional time to comply with this rule; and
(4)interested persons are provided a 60-day comment period in which to respond, and all comments timely received will be considered prior to finalization of this action. List of Subjects in 7 CFR Part 982 Filberts, Hazelnuts, Marketing agreements, Nuts, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, 7 CFR Part 982 is amended as follows: PART 982—HAZELNUTS GROWN IN OREGON AND WASHINGTON 1. The authority citation for 7 CFR Part 982 continues to read as follows: Authority: 7 U.S.C. 601-674. 2. A new section 982.255 is added to read as follows: § 982.255 Free and restricted percentages—2007-2008 marketing year.
(a)The interim final free and restricted percentages for merchantable hazelnuts for the 2007-2008 marketing year shall be 8.1863 and 91.8137 percent, respectively.
(b)On May 1, 2008, the final free and restricted percentages for merchantable hazelnuts for the 2007-2008 marketing year shall be 9.2671 and 90.7329 percent, respectively. Dated: February 12, 2008. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. 08-739 Filed 2-15-08; 8:45 am]
Connectionstraces to 13
5 references not yet in our index
  • 49 CFR 236
  • 5 CFR 2423
  • 5 CFR 2423.4(a)(5)
  • 7 CFR 982
  • 7 USC 601-674
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U.S.C.§ 7134
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U.S.C.§ 7123
Cite49 CFR 236
Cite5 CFR 2423
Cite5 CFR 2423.4(a)(5)
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