[Federal Register Volume 70, Number 85 (Wednesday, May 4, 2005)]
[Proposed Rules]
[Pages 23065-23068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8861]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 983

[Docket No. FV05-983-3 PR]


Pistachios Grown in the State of California; Termination of 
Language in Table 3, ``Maximum Defect and Minimum Size Levels''

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would terminate language in Table 3, 
``Maximum Defect and Minimum Size Levels,'' of the marketing order 
regulating pistachios produced in the State of California. This 
language was erroneously included in Table 3 at the time of 
promulgation of the order. Correction of the table was unanimously 
recommended by the Administrative Committee for Pistachios, the 
committee responsible for local administration of the order.

DATES: Comments received by May 19, 2005 will be considered prior to 
issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning the proposal to: 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, E-mail: [email protected], or Internet: http://www.regulations.gov. Comments should reference the docket number and 
the date and page number of this issue of 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: Melissa Schmaedick, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. 
Box 1035, Moab, Utah, 84532; Telephone: (435) 259-7988, Fax: (435) 259-
4945; or Rose Aguayo, California Marketing Field Office, Marketing 
Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 
2202 Monterey Street, Suite 102 B, Fresno,

[[Page 23066]]

California 93721; Telephone: (559) 487-5901, Fax: (559) 487-5906.
    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 rule is proposed pursuant to 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 proposal is not intended to have retroactive 
effect. This proposed rule will not preempt any State or local laws, 
regulations, or policies, unless they present an irreconcilable 
conflict with this proposed 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 date of the 
entry of the ruling.
    This action would terminate language in Table 3, ``Maximum Defect 
and Minimum Size Levels,'' of the marketing order regulating pistachios 
produced in the State of California (69 FR 17844, April 5, 2004). The 
termination would apply to language in two portions of the table: (1) 
In the ``Internal (Kernel) Defects'' section, the words ``external or'' 
would be removed from the heading ``Total external or internal defects 
allowed'' because this section of the table only covers internal 
defects allowed, and (2) the sub-heading ``Minimum permissible defects 
(percent by weight)'' would be removed so that all information in the 
table would be captured under the table heading ``Maximum permissible 
defects (percent by weight).'' This language was erroneously included 
in Table 3 at the time of promulgation of the order. Termination of 
this language would remove these errors and would allow Table 3 to read 
as originally intended by the group establishing the order.
    Suspension of this language was unanimously recommended by the 
Administrative Committee for Pistachios (ACP), the group responsible 
for local administration of the order, at a December 15, 2004, 
committee meeting. However, because this is a permanent correction, 
USDA is proposing to remove and terminate the language.
    The federal marketing order regulating the handling of pistachios 
produced in the State of California was promulgated in 2004. Provisions 
to establish the ACP became effective on April 6, 2004 (69 FR 17844, 
April 5, 2004). The regulatory provisions of the order will become 
effective on August 1, 2005 (70 FR 661, January 5, 2005; 70 FR 4191, 
January 28, 2005).
    Section 983.39, Minimum quality levels, of the order establishes 
maximum defect and minimum size tolerances for pistachios produced and 
handled in California. Table 3 of the order, which is included in Sec.  
983.39, describes the maximum thresholds for defects, as well as the 
maximum tolerance for minimum-sized pistachios, of the provisions in 
table format. Table 3 also serves as a reference tool for handlers 
regulated by the order to easily interpret the written quality and size 
provisions of the order under Sec.  983.39.
    ACP preparations for implementing the regulatory provisions of the 
order have brought to light that two sub-headings in Table 3, ``Maximum 
Defect and Minimum Size Levels,'' were erroneously included at the time 
of promulgation. In the ``Internal (Kernel) Defects'' section, the 
words ``external or'' would be removed from the heading ``Total 
external or internal defects allowed'' because this section of the 
table only applies to internal defects, not external defects. 
Additionally, the sub-heading ``Minimum permissible defects (percent by 
weight)'' would be removed from the table so that all information in 
the table would be captured under the table heading ``Maximum 
Permissible Defects (percent by weight).'' Termination of this language 
would remove these errors and would allow Table 3 to read as originally 
intended by the group responsible for promulgating the order.
    This language should be removed prior to the effective date of the 
regulatory provisions of the order (August 1, 2005).

The Regulatory Flexibility Act and Effects on Small Businesses

    Pursuant to the requirements set for in the Regulatory Flexibility 
Act (RFA) the administrator of the Agricultural Marketing Service (AMS) 
has considered the economic impact of this proposal on small entities.
    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 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 the marketing order and approximately 741 
producers in the production area. Small agricultural service firms are 
defined as those whose annual receipts are less than $6,000,000 and 
small agricultural producers have been defined by the Small Business 
Administration as those having annual receipts less than $750,000 (13 
CFR 121.201). Eight out of the 20 handlers subject to regulation have 
annual pistachio receipts of at least $6,000,000. In addition, 722 
producers have annual receipts less than $750,000. Thus, the majority 
of pistachio producers and handlers regulated under the marketing order 
may be classified as small entities.
    This action would terminate language in Table 3, ``Maximum Defect 
and Minimum Size Levels'' in Sec.  983.39 of the order. The termination 
would apply to language in two portions of the table: (1) In the 
``Internal (Kernel) Defects'' section, the words ``external or'' would 
be removed from the heading ``Total external or internal defects 
allowed'' because this section of the table only pertains to internal 
defects, and (2) the sub-heading ``Minimum permissible defects (percent 
by weight)'' would be removed so that all information in the table 
would be captured under the table heading ``Maximum permissible defects 
(percent by weight).'' Neither the thresholds contained in the table 
nor the regulatory provisions outlined in Sec.  983.39 of the order 
would be impacted by this termination. The termination would serve to 
facilitate more accurate interpretation of the information presented in 
Table 3. Thus, no significant impact on large or small

[[Page 23067]]

entities is anticipated as a result of this proposal.
    One alternative to this action would be to not remove and terminate 
the identified language in Table 3. However, at a December 15, 2004 
meeting of the ACP, it was determined that if this language were not 
removed from the table, handlers regulated under the order may not 
correctly interpret the thresholds outlined in Table 3. Thus, the ACP 
unanimously recommended that the table be corrected. Committee meetings 
are open to the public. No comments or recommendations against the 
recommendation were received.
    A comment period of 15 days after publication of this proposal in 
the Federal Register is deemed appropriate so that the termination of 
language in Table 3 can be made effective as soon as possible and prior 
to the beginning of the 2005-2006 production year, which begins 
September 1, 2005, and ends August 31, 2006. Pistachios harvested and 
received in August of any year are applied to the subsequent production 
year for marketing order purposes. This proposal has been discussed at 
open meetings of the ACP and is fully supported.
    In compliance with Office of Management and Budget (OMB) 
regulations (5 CFR part 1320) which implement the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.), the information collection and 
recordkeeping requirements imposed by this order have been previously 
approved by OMB and assigned OMB Number 0581-0215. This action imposes 
no additional reporting or recordkeeping requirements on either small 
or large pistachio handlers. As with all Federal marketing order 
programs, reports and forms are periodically reviewed to reduce 
information requirements and duplication by industry and public sector 
agencies. In addition, USDA has not identified any relevant Federal 
rules that duplicate, overlap, or conflict with this rule.
    The Committee's meeting was publicized and all Committee members 
and alternate Committee members, representing both large and small 
entities, were invited to attend the meeting and participate in 
Committee deliberations. The Committee itself is composed of 11 
members, of which 8 members are growers, 2 are handlers, and one 
represents the public.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at the 
following Web site: 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.
    In summary, the termination would apply to language in two portions 
of the table. In the ``Internal (Kernel) Defects'' section, the words 
``external or'' would be removed and terminated, and the sub-heading 
``Minimum permissible defects (percent by weight)'' would be removed 
and terminated so that all information in the table would be captured 
under the table heading ``Maximum permissible defects (percent by 
weight).''

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.


Sec.  983.39  [Amended]

    2. In Sec.  983.39, Table 3 is revised to read as follows:

            Table 3.--Maximum Defect and Minimum Size Levels
------------------------------------------------------------------------
                                           Maximum permissible defects
                                               (percent by weight)
                Factor                 ---------------------------------
                                             Inshell          Kernels
------------------------------------------------------------------------
                        EXTERNAL (SHELL) DEFECTS
------------------------------------------------------------------------
1. Non-splits & not split on suture...             10.0   ..............
    (i) Maximum non-splits allowed....              4.0   ..............
2. Adhering hull material.............              2.0   ..............
3. Dark stain.........................              3.0   ..............
4. Damage by other means, other than               10.0   ..............
 1, 2 and 3 above, which materially
 detracts from the appearance or the
 edible or marketing quality of the
 individual shell or the lot..........
---------------------------------------
                        INTERNAL (KERNEL) DEFECTS
------------------------------------------------------------------------
1. Damage.............................              6.0              3.0
    Immature kernel (Fills <75%->50%
     of the shell)
    Kernel spotting (Affects \1/8\
     aggregate surface)
2. Serious damage.....................              4.0              2.5
    Minor insect or vertebrate injury/
     insect damage, insect evidence,
     mold, rancidity, decay
    (i) Maximum insect damage allowed.              2.0              0.5
Total internal defects allowed........              9.0   ..............
---------------------------------------
                              OTHER DEFECTS
------------------------------------------------------------------------
1. Shell pieces and blanks............              2.0   ..............
    (Fills <50% of the shell)
    (i) Maximum blanks allowed........              1.0   ..............
2. Foreign material--No glass, metal                0.25             0.1
 or live insects permitted............
3. Particles and dust.................              0.25  ..............
4. Loose kernels......................              6.0   ..............
Maximum allowable inshell pistachios                5.0   ..............
 that will pass through a \30/64\ths
 inch round hole screen...............
------------------------------------------------------------------------



[[Page 23068]]

    Dated: April 29, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-8861 Filed 5-3-05; 8:45 am]
BILLING CODE 3410-02-P