[Federal Register Volume 70, Number 133 (Wednesday, July 13, 2005)]
[Rules and Regulations]
[Pages 40185-40187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13756]



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  Federal Register / Vol. 70, No. 133 / Wednesday, July 13, 2005 / 
Rules and Regulations  

[[Page 40185]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 983

[Docket No. FV05-983-3 FR]


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: Final rule.

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

SUMMARY: This rule terminates 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. Removal 
of the language in the table was unanimously recommended by the 
Administrative Committee for Pistachios, the committee responsible for 
local administration of the order.

DATES: Effective July 14, 2005.

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: 259-4945; 
or 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.
    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 issued 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. 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 date of the 
entry of the ruling.
    This rule terminates language in Table 3, ``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 
applies to language in two portions of the table: (1) In the ``Internal 
(Kernel) Defects'' section, the words ``external or'' will 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)'' 
will be removed so that all information in the table will 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 removes 
this language and allows Table 3 to read as originally intended by the 
proponents of 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 change, USDA is 
removing and terminating 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, 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 brought to light that two sub-headings in Table 3, ``Maximum 
Defect and Minimum Size Levels,'' were erroneously included at the time 
of promulgation. As earlier mentioned, termination of this language 
will remove this language and allow Table 3 to read as originally 
intended by the proponents of the order.
    This final rule removes the words ``external or'' from the heading 
``Total external or internal defects allowed'' in the ``Internal 
(Kernel) Defects'' section because this section of the table only 
applies to internal defects, not external defects. Additionally, the 
sub-heading ``Minimum permissible defects (percent by weight)'' is 
removed from the table so that all information in the table will be 
captured under the table heading ``Maximum Permissible Defects (percent 
by weight).'' This language should be removed prior to the effective 
date of

[[Page 40186]]

the regulatory provisions of the order (August 1, 2005).

Final Regulatory Flexibility Analysis

    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 action 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 under 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 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 terminates language in Table 3, ``Maximum Defect and 
Minimum Size Levels'' in Sec.  983.39 of the order. The termination 
applies to language in two portions of the table: (1) In the ``Internal 
(Kernel) Defects'' section, the words ``external or'' will 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)'' is 
removed so that all information in the table will 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 will be impacted by 
this termination. The termination will serve to facilitate a more 
accurate interpretation of the information presented in Table 3. Thus, 
no significant impact on large or small 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 the 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. Like all committee 
meetings, this meeting was a public meeting and all entities, both 
large and small, were able to express views on this issue. No comments 
or recommendations against the recommendation were voiced at the 
meeting.
    In compliance with Office and 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 No. 0581-0215. This rule 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.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this rule.
    A proposed rule concerning this action was published in the Federal 
Register on May 4, 2005 (70 FR 23065). Copies of the proposed rule were 
also mailed to all pistachio handlers. Finally, the proposal was made 
available through the Internet by the Office of the Federal Register 
and USDA. A 15-day comment period ending May 19, 2005, was provided for 
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 the 
following website: 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 ACP's recommendation, and other information, it is found that the 
provisions being removed and terminated by this final rule do not tend 
to effectuate the declared policy of the Act and that this action is 
appropriate. Accordingly, this action is appropriate under the order.
    Pursuant to 5 U.S.C. 553, it is also found and determined that good 
cause exists for not postponing the effective date of this rule until 
30 days after publication in the Federal Register because: (1) 
Termination of language in Table 3 should be made as soon as possible 
prior to the effective date of the regulatory provisions of the order, 
August 1, 2005; (2) this action has been discussed at open meetings of 
the ACP and is fully supported; and (3) comments on the removal and 
termination of this language were solicited and no comments were 
received.

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 Sec.  983.39, Table 3 to paragraph (a) is revised to read as 
follows:


Sec.  983.39  Minimum quality levels.

    (a) * * *

            Table 3.--Maximum Defect and Minimum Size Levels
------------------------------------------------------------------------
                                                  Maximum permissible
                                                  defects  (percent by
                    Factor                              weight)
                                              --------------------------
                                                  Inshell      Kernels
------------------------------------------------------------------------
External (Shell) Defects:
    1. Non-splits & not split on suture......         10.0   ...........

[[Page 40187]]

 
        (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 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 inset damage allowed.....          2.0           0.5
    Total internal defects allowed...........          9.0   ...........
Other Defects:
    1. Shell pieces and blanks (Fills <50% of          2.0   ...........
     the shell)..............................
        (i) Maximum blanks allowed...........          1.0   ...........
    2. Foreign material......................          0.25          0.1
        No glass, metal or live insects
         permitted
    3. Particles and dust....................          0.25  ...........
    4. Loose kernels.........................          6.0   ...........
    Maximum allowable inshell pistachios that          5.0   ...........
     will pass through a \30/64\ths inch
     round hold screen.......................
------------------------------------------------------------------------

* * * * *

    Dated: July 8, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-13756 Filed 7-12-05; 8:45 am]
BILLING CODE 3410-02-M