[Federal Register Volume 70, Number 58 (Monday, March 28, 2005)]
[Proposed Rules]
[Pages 15602-15606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6082]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 983

[Docket No. FV05-983-1 PR]


Pistachios Grown in California; Establishment of Reporting 
Requirements; Notice of Request for New Information Collection

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule invites comments on the establishment of reporting 
requirements authorized under the California pistachio marketing order 
(order). The order regulates the handling of pistachios grown in 
California and is administered locally by the Administrative Committee 
for Pistachios (committee). These additional reporting requirements 
would enable the committee to collect information on: Pistachios 
failing to meet quality and aflatoxin requirements; failing pistachios 
that are reworked or disposed of in accordance with applicable 
requirements; handlers applying for exemptions; transfers of 
uninspected pistachios between regulated handlers; and inventories and 
shipments of pistachios. This document also announces the Agricultural 
Marketing Service's (AMS) intention to request approval from the Office 
of Management and Budget (OMB) of a new information collection.

DATES: Comments must be received by May 27, 2005. Pursuant to the 
Paperwork Reduction Act, comments on the information collection burden 
must be received by May 27, 2005.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938, or E-mail: [email protected], 
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.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Rose Aguayo, California Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA, 2202 Monterey Street, Suite 102B, 
Fresno, California 93721; Telephone: (559) 487-5901, Fax: (559) 487-
5906; or George Kelhart, Technical Advisor, 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.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This proposal is issued under Marketing 
Order No. 983 (7 CFR part 983), regulating the handling of pistachios 
grown in California, hereinafter referred to as the ``order.'' The 
order is effective under the Agricultural Marketing Agreement Act of 
1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the 
``Act.''
    The Department of Agriculture (USDA) is issuing this rule in 
conformance with Executive Order 12866.
    This proposal has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This proposal

[[Page 15603]]

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 proposal invites comments on establishing reporting 
requirements authorized under the California pistachio order. The 
additional reporting requirements would enable the committee to collect 
information on: (1) Pistachios failing to meet quality and aflatoxin 
requirements; (2) failing pistachios that are reworked or disposed 
under the marketing order; (3) handlers applying for exemptions; (4) 
transfers of uninspected pistachios between regulated handlers; and (5) 
inventories and shipments of pistachios. In accordance with the 
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice 
also announces AMS's intention to request approval from OMB for a new 
information collection. The information collected would facilitate 
administration of the marketing order.
    Sections 983.38, 983.39, and 983.40 of the pistachio order specify 
maximum aflatoxin requirements, minimum quality requirements, and 
failed lot rework and disposition procedures, respectively.
    Sections 983.41 of the pistachio order provides exemptions for 
certain aflatoxin and quality testing requirements for handlers who 
handle less than 1,000,000 pounds of assessed weight pistachios per 
marketing year (September 1-August 31).
    Section 983.47 of the pistachio order provides authority to require 
handlers to furnish such reports and information on such forms as are 
needed to enable USDA and the committee to perform their functions and 
enforce order provisions.
    Section 983.70 of the pistachio order exempts handlers who handle 
1,000 pounds or less of dried weight pistachios (dried to 5 percent 
moisture) from all aflatoxin and minimum quality requirements.
    Under these authorities, the committee, at its November 3, 2004, 
meeting unanimously recommended establishing a new subpart ``Rules and 
Regulations,'' and a new section entitled ``Sec.  983.147--Reports'' to 
delineate and define six new forms, ACP-2 through ACP-7. The committee 
further clarified this recommendation at its December 15, 2004, 
meeting.
    Detailed information on the burdens created by these new forms is 
discussed later in this document.
    The recommended forms, ACP-2 through ACP-7, would be used by the 
committee to track pistachios that fail to meet minimum quality and 
maximum aflatoxin requirements (ACP-2); track lots which have been 
reworked or disposed of in accordance with marketing order requirements 
(ACP-3); identify handlers who handle 1,000 dried pounds or less of 
pistachios per production year (September 1-August 31) (ACP-4) and 
properly apply marketing order exemptions; identify handlers who handle 
less than 1,000,000 pounds of assessed weight pistachios per marketing 
year (September 1-August 31) (ACP-5) and properly apply marketing order 
exemptions; track uninspected pistachios that are transferred between 
regulated handlers (ACP-6); and track monthly shipments and handler 
inventories (ACP-7).
    The majority of the forms recommended by the committee (ACP-2 
through APC-6) are new reporting requirements, and do not duplicate 
information collected by any other Federal agency. One form, ACP-7 is 
similar to a report required by the California Pistachio Commission 
(commission), a program overseen by the State of California, under 
which California pistachio research and promotion activities are 
implemented. Because the commission is prohibited from sharing 
confidential handler information, the committee recommended the ACP-7 
be implemented for committee use to provide information necessary to 
administer the order. Because shipment and inventory data is already 
compiled by handlers for the commission, handlers may attach the 
commission report to the committee form to meet this new reporting 
requirement. Thus, handlers would not be duplicating their efforts and 
both agencies would receive necessary data for respective program 
purposes. Further, the information collection does not duplicate that 
collected by any other Federal agency.
    The committee estimates that this action would impact no more than 
20 handlers of pistachios, and further estimates that, on average, a 
handler would expend no more than an average of 11.8 minutes in 
completing each form. The total estimated annual burden for all six 
forms is estimated to be 92.4 hours.
    The committee believes that these forms are easy to prepare and 
file, and place as small a reporting burden as possible on handlers. 
These forms and their respective burdens were discussed at public 
meetings at which all affected entities were encouraged to comment on 
the effect of requiring these forms to be completed and filed by 
pistachio handlers. The Committee vote was unanimous, with 8 in favor 
and none opposed or abstaining.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), 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 would 
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.
    There are approximately 20 handlers of California pistachios 
subject to regulation under the order and approximately 741 producers 
in the production area. Small agricultural producers are defined by the 
Small Business Administration (13 CFR 121.201) as those having annual 
receipts less than $750,000, and small agricultural service firms are 
defined as those whose annual receipts are less than $5,000,000. Eight 
of the 20 handlers subject to regulation have annual pistachio receipts 
of at least $5,000,000. In addition, 722 producers have annual receipts 
less than $750,000. Thus, the majority of handlers and producers of 
California pistachios may be classified as small entities. There are an 
estimated eight USDA approved testing laboratories that may participate 
in this program. At least half are handler in-house operations and 
already included in the estimated respondents. Other testing 
laboratories are

[[Page 15604]]

government agencies. One other existing laboratory is part of the Dried 
Fruit Association of California. We do not have specific information 
but believe that this association would be considered a small entity.
    This proposal invites comments on establishing reporting 
requirements authorized under the California pistachio order. These 
additional reporting requirements would enable the committee to collect 
information on: (1) Pistachios failing to meet quality and aflatoxin 
requirements; (2) failing pistachios that are reworked or disposed of 
in marketing order requirements; (3) handlers applying for exemptions; 
(4) transfers of uninspected pistachios between regulated handlers; and 
(5) inventories and shipments of pistachios. In accordance with the 
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice 
also announces AMS's intention to request approval from OMB for this 
new information collection. The information collected would facilitate 
proper implementation of the marketing order.
    Sections 983.38, 983.39, and 983.40 of the pistachio order provide 
maximum aflatoxin requirements, and minimum quality requirements, and 
failed lot rework and disposition procedures, respectively.
    Sections 983.41 of the pistachio order provides exemptions for 
certain aflatoxin and quality testing requirements for handlers who 
handle less than 1,000,000 pounds of assessed weight pistachios per 
marketing year (September 1-August 31).
    Section 983.47 of the pistachio order provides authority for the 
committee to require handlers to furnish such reports and information 
on such forms as are needed to enable the Secretary of Agriculture and 
the committee to perform their functions and enforce order provisions.
    Section 983.70 of the pistachio order exempts handlers who handle 
1,000 pounds or less of dried weight pistachios (dried to 5 percent 
moisture) from all aflatoxin and minimum quality requirements.
    Under these authorities, the committee, at its November 3, 2004, 
meeting, unanimously recommended establishing a new subpart ``Rules and 
Regulations,'' and a new section entitled ``Sec.  983.147--Reports'' to 
delineate and define six new forms, ACP-2 through ACP-7. The committee 
further clarified this recommendation at its December 15, 2004, 
meeting.
    The majority of the reports recommended by the committee are new 
reporting requirements (ACP-2 through APC-6). One form, ACP-7 is 
similar to a report required by the commission, a program overseen by 
the State of California, under which California pistachio research and 
promotion activities are implemented.
    The committee debated the overall merits of the forms at its 
meetings, deliberating over the value of the information to be 
collected relative to the burden which each form would impose on the 
regulated handlers. In the end, the committee concluded that the 
information that would be collected is necessary to properly administer 
the marketing order. It further concluded that the burden was 
relatively small compared to the benefits that would be accrued by the 
committee and industry from the information obtained.
    The committee discussed alternatives to establishing these 
reporting requirements including not adopting ACP-4, as it was believed 
that this information might be obtained by staff during compliance 
audits. Upon reviewing the auditing procedure, committee members 
determined that utilization of the ACP-4 would be a more feasible means 
of obtaining information on identifying exempt handlers. Thus, the 
committee unanimously recommended all six forms for implementation. It 
believes that the information to be provided on each of the recommended 
forms would be important to the administration of the order and would 
enhance committee operations.
    Further, the committee's meetings were widely publicized throughout 
the pistachio industry and all interested persons were encouraged to 
attend the meetings and participate in the committee's deliberations. 
Like all committee meetings, the November 3 and December 15, 2004, 
meetings were public meetings and entities of all sizes were invited to 
express their views on these issues.
    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.
    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. In addition, USDA 
has not identified any relevant Federal rules that duplicate, overlap, 
or conflict with this rule. A detailed discussion of the six new forms 
follows.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), AMS announces its intention to request an approval of a 
new information collection for the marketing order regulating 
pistachios grown in California.
    Title: Pistachios Grown in California; Marketing Order No. 983.
    OMB Number: 0581-New.
    Type of Request: New collection.
    Abstract: These information collection requirements are essential 
to carry out the intent of the Act, to provide the respondents the type 
of service they request, and to administer the California pistachio 
marketing order program which has been operating since 2004.
    On November 3, 2004, the Committee unanimously recommended the 
establishment of a new subpart--``Rules and Regulations,'' and a new 
section, ``Sec.  983.147--Reports.'' The Committee further clarified 
this recommendation at its December 15, 2004, meeting. Section 983.147 
would require handlers and certain USDA approved testing laboratories 
to file up to six forms. These forms would enable the committee to 
obtain information on: Pistachios failing to meet quality and aflatoxin 
requirements; pistachios that are reworked and disposed of in marketing 
channels; transfers of uninspected pistachios between regulated 
handlers; shipments and inventories of pistachios and related 
information, and identify handlers eligible for marketing order 
exemptions. Approximately half of the handlers (8 of 20 estimated 
handlers and the Dried Fruit Association of California) have the 
capability to file reports electronically. There are an estimated eight 
testing laboratories. At least half are handler in-house operations 
which are included in the estimated respondents. Other testing 
laboratories are government agencies. OMB does not require government 
agencies to be reported as respondents for the purposes of the 
Paperwork Reduction Act. One other existing laboratory is part of the 
Dried Fruit Association of California, which is included as part of the 
estimate of respondents.
    The information collected would be used only by authorized 
representatives of the USDA, including AMS, Fruit and Vegetable Program 
regional and headquarters staff, and authorized committee employees. 
Authorized committee employees are the primary

[[Page 15605]]

users of the information and AMS is the secondary user. Such 
information would be kept confidential in accordance with the Act and 
order.

Total Annual Estimated Burden

    The total burden for the proposed information collection under the 
order is as follows:
    Estimate of Total Burden per Response: Public reporting burden for 
this collection of information is estimated to average less than 11.8 
minutes.
    Estimated Number of Respondents: 20 (handlers and one laboratory).
    Estimated Number of Responses per Respondent: 23.6 responses per 
handler per form.
    Estimated Total Annual Burden on Respondents: 92.4 hours.

Estimated Annual Burden for Each Form

    For each new form, the proposed request for approval of the new 
information collection under the order is as follows:

ACP-2 Failed Lot Notification Form

    Handlers would use this form to notify the committee of the failure 
of a lot of pistachios to pass minimum size/quality requirements under 
the order. USDA certified aflatoxin laboratories would use this form to 
notify the committee of the failure of a lot of pistachios that exceeds 
the maximum aflatoxin requirements under the order.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 12 minutes per response.
    Respondents: Persons who handle California pistachios and testing 
laboratory(s).
    Estimated Number of Respondents: 20.
    Estimated Number of Responses per Respondent: 5.
    Estimated Total Annual Burden on Respondents: 20 hours.

ACP-3 Failed Lot Disposition and Rework Report Form

    Handlers would use this form to notify the committee of the 
disposition or reworking of failed lots. This would enable the 
committee to verify that failed lots were disposed of in accordance 
with the marketing order.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 12 minutes per response.
    Respondents: Persons who handle California pistachios.
    Estimated Number of Respondents: 20.
    Estimated Number of Responses per Respondent: 5.
    Estimated Total Annual Burden on Respondents: 20 hours.

ACP-4 FMO Exempt Handler Notification Report Form

    Handlers would use this form to notify the committee that they 
handled 1,000 pounds or less of dried pistachios during any marketing 
year (September 1 to August 31). Dried pistachios are those pistachios 
which have been dried to approximately 5 percent moisture.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 6 minutes per response.
    Respondents: Persons who handle California pistachios.
    Estimated Number of Respondents: 10.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 1 hour.

ACP-5 Minimal Testing Report Form

    Handlers who handle less than 1,000,000 pounds of assessed weight 
pistachios in a production year (September 1-August 31) would use this 
form to apply for committee approval to operate under the order's 
minimal quantities provisions.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 6 minutes per response.
    Respondents: Persons who handle less than 1,000,000 pounds of 
assessed weight California pistachios in the production year.
    Estimated Number of Respondents: 10.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 1 hour.

ACP-6 Inter-Handler Transfer Report

    Handlers would use this form to notify the committee that they had 
transferred uninspected pistachios within the production area to 
another handler within the production area.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 12 minutes per response.
    Respondents: Persons who transfer or receive uninspected California 
pistachios within the production area.
    Estimated Number of Respondents: 12.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 2.4 hours.

ACP-7 Monthly Report of Inventory/Shipments

    Handlers would use this form to report their monthly inventory and 
domestic shipments of pistachios.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 12 minutes per response.
    Respondents: Persons who handle California pistachios.
    Estimated Number of Respondents: 20.
    Estimated Number of Responses per Respondent: 12.
    Estimated Total Annual Burden on Respondents: 48 hours.
    Comments: Comments are invited on: (1) Whether this collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information would have practical 
utility; (2) the accuracy of the agency's estimate of the burden of the 
proposed collection of information, including the validity of the 
methodology and assumptions used; (3) ways to enhance the quality, 
utility, and clarity of the information to be collected; and (4) ways 
to minimize the burden of the collection of information on those who 
are to respond, including the use of appropriate automated, electronic, 
mechanical, or other technological collection techniques or other forms 
of information technology.
    Comments should reference OMB No. 0581-New and the Marketing Order 
for Pistachios Grown in California, and be sent to the USDA in care of 
the Docket Clerk at the previously-mentioned address. All comments 
timely received will be available for public inspection during regular 
business hours at the same address.
    All responses to this notice will be summarized and included in the 
request for OMB approval. All comments received will become a matter of 
public record and will be available for public inspection during 
regular business hours at the same address or at http://www.ams.usda.gov/fv/moab.html. Once the Web site page is opened, click 
on ``pistachios'' and find the docket number of this rule. Any comments 
received regarding this rule will be found in the ``Comments'' link. If 
no comments have been received in response to a rule, there will be no 
``Comments'' link available.
    In summary, this proposal would establish reporting requirements 
authorized under the California pistachio order. These additional 
reporting requirements would enable the committee to collect 
information on:

[[Page 15606]]

(1) Pistachios failing to meet quality and aflatoxin requirements; (2) 
failing pistachios that are reworked or disposed of in accordance with 
marketing order requirements; (3) handlers applying for exemptions; (4) 
transfers of uninspected pistachios between regulated handlers; and (5) 
inventories and shipments of pistachios. Additionally, it would allow 
the Committee to obtain accurate information for preparation of the 
annual marketing policy statement, as required under the order. Any 
comments received will be considered prior to finalization of this 
rule.
    Another form, ACP 1, was not included with this approval request 
because that form was part of a previous request, published in the 
Federal Register on December 10, 2004 (69 FR 71749). This form would be 
included in the order at Sec.  983.253, at such time that it is 
approved.

List of Subjects in 7 CFR Part 983

    Pistachios, Marketing agreements and orders, Reporting and 
recordkeeping requirements.

    For the reasons set forth in the preamble, 7 CFR part 983 is 
proposed to be amended as follows:

PART 983--PISTACHIOS GROWN IN CALIFORNIA

    1. The authority citation for 7 CFR part 983 continues to read as 
follows:

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

    2. In part 983, a new subpart titled ``Subpart--Rules and 
Regulations'' consisting of Sec.  983.147 is added to read as follows:

Subpart--Rules and Regulations


Sec.  983.147  Reports.

    (a) ACP-2, failed lot notification. Each handler shall notify the 
Administrative Committee for Pistachios (committee) of all lots which 
fail to meet the order's minimum quality requirements by completing 
sections A and B of this form. Handlers shall furnish this report to 
the committee no later than 10 days after test completion. Each USDA 
approved aflatoxin testing laboratory shall complete section C of this 
report and forward this report and the failing aflatoxin test results 
to the committee and to the handler within 10 days of the test failure.
    (b) ACP-3, failed lot disposition and rework report. Each handler 
who reworks a failing lot of pistachios shall complete this report and 
shall forward it to the committee no later than 10 days after the 
rework is completed. If rework is not selected as a remedy, the handler 
shall submit the form to the committee office within 10 days of 
disposition of the lot.
    (c) ACP-4, Federal marketing order exempt handler notification. 
Each handler who handles 1,000 pounds or less of dried weight 
pistachios in a production year shall complete and furnish this report 
to the committee no later than November 15 of each production year.
    (d) ACP-5, minimal testing form. Each handler who handles less than 
1,000,000 pounds of dried weight pistachios in a production year and 
who would like to request an exemption under the minimal quantities 
provisions (Section 983.41) of the order shall furnish this report to 
the committee office no later than August 1 of each production year.
    (e) ACP-6, inter-handler transfer. Each handler who transfers 
uninspected pistachios to another handler within the production area 
shall complete the ACP-6 and sign Part A. The transferring handler 
shall forward the original ACP-6 and one copy to the handler who 
receives the uninspected pistachios. The transferring handler shall 
furnish one copy of ACP-6 to the committee within 30 days of the 
transfer. The handler receiving the uninspected pistachios (receiving 
handler) shall sign Part B of the original ACP-6 and shall file it with 
the committee within 30 days of the transfer.
    (f) ACP-7, monthly report of inventory/shipments. Each handler of 
pistachios shall file this report with the committee by the 10th day of 
each month for the previous month's inventory and shipment information.
    (g) Exemptions. Handlers, who handle 1,000 pounds or less of dried 
pistachios during any marketing year, are exempt from filing all forms 
with the exception of the ACP-4.
    (h) Records. Each handler shall maintain all records of pistachios 
received, held, shipped, and disposed of for at least 3 years following 
each crop year to show compliance with the marketing order provisions.

    Dated: March 23, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-6082 Filed 3-23-05; 3:56 pm]
BILLING CODE 3410-02-P