[Federal Register Volume 70, Number 132 (Tuesday, July 12, 2005)]
[Rules and Regulations]
[Pages 39905-39908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13755]



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 Rules and Regulations
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  Federal Register / Vol. 70, No. 132 / Tuesday, July 12, 2005 / Rules 
and Regulations  

[[Page 39905]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 983

[Docket No. FV05-983-1 FR]


Pistachios Grown in California; Establishment of Reporting 
Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule establishes 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 will 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.

EFFECTIVE DATE: July 13, 2005.

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 final rule 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 final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule is not intended to have retroactive 
effect. 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 final rule establishes reporting requirements authorized under 
the California pistachio order. The additional reporting requirements 
will 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.
    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, will 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

[[Page 39906]]

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 will 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 will impact no more than 
24 handlers of pistachios, and further estimates that, on average, a 
handler will 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.

Final 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 final 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 24 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 $6,000,000. Seven 
of the 24 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 handlers and producers of 
California pistachios may be classified as small entities. There are an 
estimated nine USDA approved testing laboratories that may participate 
in this program. Five of these laboratories are handler in-house 
operations and already included in the estimated respondents. Other 
testing laboratories are government agencies. There are two other 
existing laboratories. One is part of the Dried Fruit Association of 
California and the other is a private laboratory operated by Am Cal 
Analytical Laboratories. We believe that this association and private 
laboratory would be considered small entities.
    This final rule establishes reporting requirements authorized under 
the California pistachio order. These additional reporting requirements 
will 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.
    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 during any marketing 
year (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 ACP-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 will be collected is necessary to properly administer 
the marketing order. It further concluded that the burden was 
relatively small compared to the benefits that will 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 will 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 will be important to the administration of the order and will 
enhance committee operations.
    Further, the committee's meetings were widely publicized throughout 
the pistachio industry and all interested persons were encouraged to 
attend the

[[Page 39907]]

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.
    A proposed rule concerning this action was published in the Federal 
Register on March 28, 2005 (70 FR 15602). The proposal also announced 
AMS's intent to request an approval of a new information collection for 
the marketing order regulating pistachios grown in California. Copies 
of the proposal were also mailed or sent via facsimile to all pistachio 
handlers. Finally, the proposed rule was made available through the 
Internet by USDA and the Office of the Federal Register. A 60-day 
comment period ending May 27, 2005, was provided to allow interested 
persons to respond to the proposal. No comments were received.
    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.
    After consideration of all relevant material presented, including 
the information and recommendation submitted by the committee and other 
available information, it is hereby found that this rule, as 
hereinafter set forth, will tend to effectuate the declared policy of 
the Act.
    It is further found that good cause exists for not postponing the 
effective date of this rule until 30 days after publication in the 
Federal Register (5 U.S.C. 553) because the committee is required to 
furnish handlers with one of the forms by July 15. Further, handlers 
are aware of this rule, which was unanimously recommended at a public 
meeting. Also, a 60-day comment period was provided for in the proposed 
rule, and no comments were received.
    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, as 
noted in the initial regulatory flexibility analysis, USDA has not 
identified any relevant Federal rules that duplicate, overlap, or 
conflict with this final 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), the information collection requirements that are contained 
in this rule were approved by the Office of Management and Budget 
(OMB), under OMB No. 0581-0230. The information collection has been 
merged into OMB No. 0581-0215 Pistachios Grown in California, which 
expires May 31, 2008.
    Since publication of the proposed rule on March 28, 2005 (70 FR 
15602), the committee has found that the number of respondents 
(handlers and approved aflatoxin laboratories) has increased from 20 to 
25. However, 5 of these 25 respondents will be exempt from filing 5 of 
the 6 forms, as they handle 1,000 pounds or less and are exempt from 
handling requirements and most reporting requirements.
    In summary, this final rule establishes reporting requirements 
authorized under the California pistachio order. These additional 
reporting requirements will 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 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 will allow the committee to obtain accurate 
information for preparation of the annual marketing policy statement, 
as required under the order.
    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 March 1, 2005 (70 FR 9843).

List of Subjects in 7 CFR Part 983

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

0
For the reasons set forth in the preamble, 7 CFR part 983 is amended as 
follows:

PART 983--PISTACHIOS GROWN IN CALIFORNIA

0
1. The authority citation for 7 CFR part 983 continues to read as 
follows:

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


0
2. In part 983, a new Subpart--Rules and Regulations and Sec.  
983.147--Reports are 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 wishes 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

[[Page 39908]]

year to show compliance with the marketing order provisions.

    Dated: July 8, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-13755 Filed 7-11-05; 8:45 am]
BILLING CODE 3410-02-P