[Federal Register Volume 70, Number 208 (Friday, October 28, 2005)]
[Rules and Regulations]
[Pages 62055-62057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21489]



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  Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / 
Rules and Regulations  

[[Page 62055]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 983

[Docket No. FV05-983-4 FIR]


Pistachios Grown in California; Establishment of Procedures for 
Exempting Handlers From Minimum Quality Testing

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim final rule that established procedures 
for exempting handlers from quality requirements, including maximum 
limits for quality defects and minimum size, prescribed 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 
procedures will be used by the committee in considering handler 
requests for exemptions from minimum quality testing requirements and 
when considering revocations of such exemptions. Additionally, this 
final rule continues in effect the establishment of an appeals process 
for handlers who have been denied an exemption or had an approved 
exemption revoked.

EFFECTIVE DATE: November 28, 2005.

FOR FURTHER INFORMATION CONTACT: Terry Vawter, California Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA; 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 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 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 rule continues in effect the establishment of procedures for 
use by the committee in exempting handlers from minimum quality 
(maximum limits for quality defects and minimum size) testing 
requirements prescribed under the order. The committee, or its duly 
authorized agents, will also use these procedures when considering the 
revocation of exemptions for good cause, and when considering appeals 
of handlers who have had exemptions denied or revoked.
    Section 983.46 of the pistachio order authorizes the committee to 
recommend that the Secretary modify or suspend the order provisions 
contained in Sec. Sec.  983.38 through 983.45. These sections were 
implemented on August 1, 2005.
    Section 983.41 of the pistachio order authorizes exemptions from 
minimum quality testing requirements for handlers handling less than 1 
million pounds of assessed weight pistachios per production year 
(September 1-August 31) and specifies that the committee may grant 
handler exemptions. For the purposes, of this document, the term 
``production year'' is synonymous with ``marketing year''.
    Section 983.70 of the pistachio order exempts handlers who handle 
1,000 pounds or less of dried weight (assessed weight) pistachios 
(dried to 5 percent moisture) during any marketing year from all 
assessment, aflatoxin, and minimum quality requirements.
    Section 983.147 of the pistachio order establishes handler 
reporting requirements (ACP Forms 2-7) and exempts handlers who handle 
1,000 pounds or less of dried weight pistachios from all reporting 
requirements with the exception of ACP Form-4. Handlers who have 
handled or intend to handle 1,000 pounds or less of dried weight 
pistachios during the production year (September 1-August 31) must 
submit ACP Form-4 by November 15 each year to the committee.
    The recommended decision, published on August 4, 2003, (68 FR 
45990), indicated that implementing regulations would effectuate the 
declared policy of the Act by establishing the specific procedures for 
exempting handlers who handle more than 1,000 pounds and less than 1 
million pounds of assessed weight pistachios per production year 
(September 1-August 31) from minimum quality testing requirements.
    Under these authorities, the committee at its April 12, 2005, 
meeting, unanimously recommended establishing a new section entitled,

[[Page 62056]]

``Sec.  983.141--Procedures for Exempting Handlers from Minimum Quality 
Testing'' to specify appropriate exemption, revocation, and appeal 
procedures. The committee believes that standardized procedures would 
ensure equitable treatment of applicants for exemptions and those 
handlers subject to the revocation of such exemptions.
    The committee also recommended that handler exemptions under Sec.  
983.41(b) not be granted if a handler failed to file required reports, 
shipped substandard pistachios, or failed to comply with the 
requirements specified in Sec.  983.41 on exemptions for minimum 
quality testing. Revocation of approved exemptions could be implemented 
by the committee, or its duly authorized agents, for the same reasons.
    Additionally, the committee recommended that any handler who 
believes that he/she has been improperly denied an exemption or 
improperly had an exemption revoked by the committee should be allowed 
to appeal the committee's action to USDA. The committee recommended 
that the USDA review any appeals and determine their merit. All appeals 
must be submitted in writing, and the committee will provide USDA the 
complete file on each appeal.
    The recommended exemption procedures require the committee, or its 
duly authorized agents, to timely notify all handlers of the 
opportunity to apply to be exempted from minimum quality testing so 
that all interested handlers can submit applications on forms provided 
by the committee by the August 1 deadline; promptly review all requests 
for exemption; verify that the quantity of assessed weight pistachios 
handled by any applicants during the prior production year was less 
than 1 million pounds of assessed weight and that applicants are in 
compliance with the order's inspection, quality, and reporting 
requirements; approve or disapprove requests for exemptions by August 
20 of each year; maintain complete files concerning the approval or 
disapproval of each handler's application; and notify handlers by 
August 30 of approval or disapproval.
    A handler's exemption would be revoked by the committee, or its 
duly authorized agents, if the handler fails to provide reports 
required under this part, or has not complied with the provisions on 
minimal quantity testing in Sec.  983.41. Additionally, the committee, 
or its duly authorized agents, would revoke an approved exemption when 
a handler audit reveals that a handler has handled a million pounds or 
more of assessed weight pistachios during the applicable production 
year. The revocation of a handler's exemption would be made in writing 
to the handler and specify the reason(s) for and the effective date of 
the revocation.
    Any handler who believes that he/she has been improperly denied an 
exemption or improperly had an exemption revoked may appeal to USDA for 
reconsideration within 20 days after notification of the committee's 
findings. All appeals must be in writing.
    The committee, or its duly authorized agents, shall forward all 
pertinent information related to the handler's appeal to USDA. USDA 
shall inform the handler and all interested persons of the Secretary's 
decision.
    As previously mentioned, under Sec.  983.70 of the order, this rule 
continues in effect the application to handlers handling more than 
1,000 pounds and less than 1 million pounds because handlers who handle 
1,000 pounds or less of dried weight pistachios are exempt from 
assessment, aflatoxin, and minimum quality requirements and from all 
reporting requirements under Sec.  983.147 of the order's 
administrative rules and regulations, with the exception of filing ACP 
Form-4.

Final 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 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 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.
    There are approximately 24 handlers of California pistachios who 
are subject to regulation under the order and about 741 producers of 
pistachios in the production area. The Small Business Administration 
(SBA) (13 CFR 121.20) defines small agricultural service firms as those 
having annual receipts of less than $6,000,000, and small agricultural 
producers are defined as those having annual receipts of less than 
$750,000. Seventeen of the 24 handlers subject to regulation have 
annual pistachio receipts of less than $6,000,000. In addition, 722 of 
the 741 producers have annual receipts less than $750,000. Therefore, a 
majority of handlers and producers may be classified as small entities 
under the SBA standards.
    This rule continues in effect the establishment of procedures for 
exempting handlers from minimum quality (maximum limits for quality 
defects and minimum size) testing requirements prescribed under the 
order. These procedures will be used by the committee when considering 
handler requests for exemptions from minimum quality testing 
requirements and when considering revocations of such exemptions. 
Additionally, this rule continues in effect the establishment of an 
appeals process for handlers who have been denied an exemption or had 
an exemption revoked.
    Section 983.41(a) of the pistachio order permits handlers who 
handle less than 1 million pounds of assessed weight pistachios each 
production year (September 1-August 31) to use optional aflatoxin 
testing methods. The optional methods permit the sampling and testing 
of a handler's entire inventory before further processing, and allow 
handlers to segregate their receipts into various lots for sampling and 
testing.
    Section 983.41(b) of the pistachio order authorizes handler 
exemptions from minimum quality testing for handlers who handle less 
than 1 million pounds of assessed weight pistachios per production 
year, and specifies that the committee may grant such handler 
exemptions.
    Section 983.70 of the pistachio order exempts handlers who handle 
1,000 pounds or less of dried weight (assessed weight) pistachios 
(dried to 5 percent moisture) during any marketing year from all 
assessment, aflatoxin, and minimum quality requirements. For the 
purposes of this document, the term ``marketing year'' is synonymous 
with ``production year'' and represents the period September 1 through 
August 31.
    The recommended decision, published on August 4, 2003, (68 FR 
45990), indicated that implementing regulations would effectuate the 
declared policy of the Act by establishing the specific procedures for 
exempting handlers who handle more than 1,000 pounds and less than 1 
million pounds of assessed weight pistachios per production year 
(September 1-August 31) from minimum quality testing requirements.
    Under these authorities, the committee at its April 12, 2005, 
meeting, unanimously recommended establishing standardized procedures 
for granting and revoking handler exemption requests, and considering 
handler appeals on exemption decisions. This action will have a

[[Page 62057]]

positive impact on small and large handlers by assuring that all 
exemption applications and reviews are handled equitably following 
approved standardized procedures.
    The committee discussed alternatives to this change, including not 
making any changes, but determined that specific procedures were needed 
to facilitate: (1) Exempting handlers from minimum quality testing; (2) 
revoking exemptions when handlers violate requirements under the 
marketing order; and (3) processing appeals to the committee's actions. 
These procedures are expected to ensure that all such requests are 
treated equitably. The committee's vote was unanimous.
    The information collection requirements for the ACP Form-5, which 
handlers will complete and forward to the committee to request 
exemption from minimum quality requirements under the order, was 
previously submitted to the Office of Management and Budget (OMB) and 
approved under OMB No. 0581-0230. Thus, this action will not impose any 
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 AMS is committed to compliance with the Government Paperwork 
Elimination Act, which requires government agencies in general to 
provide the public the option of submitting information or transacting 
business electronically to the maximum extent possible.
    Further, the committee's meetings are widely publicized throughout 
the pistachio industry and all interested persons are encouraged to 
attend the meetings and participate in the committee's deliberations. 
Like all committee meetings, the April 12, 2005, meeting was a public 
meeting and all entities, both large and small, were encouraged to 
express their views on these issues.
    An interim final rule concerning this action was published in the 
Federal Register on July 22, 2005 (70 FR 42256). Copies of the rule 
were provided to the committee and handlers by the committee staff. In 
addition, the rule was made available through the Internet by USDA and 
the Office of the Federal Register. That rule provided for a 60-day 
comment period, which ended September 20, 2005. 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 committee's recommendation and other information, it is found that 
this finalizing the interim final rule, without change, as published in 
the Federal Register (70 FR 42256, July 22, 2005), will tend to 
effectuate the declared policy of the Act.

List of Subjects in 7 CFR Part 983

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

PART 983--PISTACHIOS GROWN IN CALIFORNIA

0
Accordingly, the interim final rule amending 7 CFR part 983, which was 
published at 70 FR 42256 on July 22, 2005, is adopted as a final rule 
without change.

    Dated: October 24, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-21489 Filed 10-27-05; 8:45 am]
BILLING CODE 3410-02-P