[Federal Register Volume 72, Number 173 (Friday, September 7, 2007)]
[Proposed Rules]
[Pages 51378-51381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-4370]


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

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 983

[Docket No. AMS-FV-07-0095; FV07-983-2 PR]


Pistachios Grown in California; Change in Reporting Requirements 
and New Information Collection

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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

SUMMARY: This rule invites comments on changes to the reporting 
requirements established 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 changes would modify one existing 
committee form and add a new form to a currently-approved information 
collection. The information collected would require handlers to report 
production and producer data, enabling the committee to obtain better 
information for preparing its annual marketing policy statement and 
conducting committee nominations and periodic referenda under the 
marketing order for California pistachios. This proposal announces the 
Agricultural Marketing Service's (AMS) intention to request revisions 
to a currently-approved information collection issued under the order. 
These changes are intended to enhance the efficient operation of the 
program.

DATES: Comments must be received by November 6, 2007. Pursuant to the 
Paperwork Reduction Act, comments on the information collection burden 
that would result from this proposal must be received by November 6, 
2007.

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 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.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Terry Vawter, Senior Marketing 
Specialist, or Kurt J. Kimmel, Regional Manager, California Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 
487-5906, or E-mail:

[[Page 51379]]

[email protected] or [email protected].
    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 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 invites comments on changes to the reporting requirements 
authorized under the order. These changes would modify one committee 
form and add a new reporting form to the currently-approved information 
collection. The new form would require handlers to report production 
and producer data. This new data would enable the committee to obtain 
better information for preparing its annual marketing policy statement 
and for conducting committee nominations and periodic referenda for 
pistachio producers.
    The information collected on the new form would provide the 
committee with information that was previously available from the 
California Pistachio Commission (CPC), a California State marketing 
program.
    As a result of a producer referendum, the CPC is to be terminated, 
and data historically collected by it and shared with the committee 
will no longer be available, beginning no later than August 31, 2007. 
Thus, information necessary for the effective administration of the 
order would need to be collected by the committee in the CPC's stead. 
Requiring handlers to report such data would allow the committee to 
collect information on the total available supply of pistachios grown 
in California and on the producers who produced the pistachios.
    Under Sec.  983.47 handlers are required to furnish such reports as 
the committee, with the approval of the Secretary, needs to enable the 
Secretary and the committee to perform their functions.
    The committee met on April 2, 2007 to consider changes to their 
current reporting requirements. With the demise of their State 
counterpart, the CPC, the committee will need to collect information on 
producers and voting entities, the acreage of pistachios, and on 
receipts, inventory, and shipments of pistachios. This information is 
necessary for the effective administration of the order.
    Requiring handlers to report such data would enable the committee 
to obtain better information on the total available supply of 
pistachios grown in California and to contact pistachio producers. The 
marketing order requires the committee to prepare the annual marketing 
policy statement. Several elements are required for an acceptable 
marketing policy statement: Production, harvesting, processing, and 
storage conditions data. The committee is also required to hold annual 
nominations for seats on the committee, and USDA is required to conduct 
periodic continuance referenda. Thus, the committee needs producer and 
production data to fulfill order requirements.
    Section 983.37 of the order requires the committee to prepare a 
marketing policy statement annually when quality regulations are in 
effect under the order.
    Section 983.47 of the order requires that handlers provide such 
reports and information as are needed to enable the committee to 
perform its functions and enforce the regulations under the order.
    Under the authority of those sections, the committee unanimously 
recommended a revision to the current ACP Form 7, ``Monthly Report of 
Inventory/Shipments;'' and establishment of a new form, ACP Form 8, 
``Producer Delivery Report,'' for the purpose of collecting production, 
producer, inventory, and shipment data from handlers.
    This action would also slightly modify the handler reporting 
requirements in ACP Form 7. Currently, all handlers must report their 
beginning inventory, grower deliveries, shipments of pistachios to 
domestic and export markets, interhandler transfers, non-handler 
purchases of California product, inventory adjustments on split and 
shelled pistachios, and ending inventory on a monthly basis on the 
form. This rule would remove the requirement to report inventory 
adjustments to split and shelled pistachios, as the committee believes 
that this information is no longer needed. This form is part of a 
currently-approved information collection, OMB No. 0581-0215, 
``Pistachios Grown in California.''
    The new form, ACP Form 8, ``Producer Delivery Report,'' would 
require handlers to annually provide the names of the producers who 
deliver pistachios to them, the producers' mailing addresses and other 
contact information (telephone and facsimile numbers and e-mail 
addresses), the producers' employer identification numbers, total 
receipts of pistachios from each producer, and the counties in which 
the pistachios were grown. These reports would allow the committee to 
identify all authorized voters for committee selections and referenda 
in which each business entity is entitled to cast one vote. Individual 
producers may produce and deliver pistachios under more than one 
business entity. The information collected on this report would also 
allow the committee to determine whether individual producers are 
eligible to represent more than one business entity, based upon Federal 
Tax Identification numbers.
    The information on producer deliveries would also allow the 
committee to track deliveries to handlers and verify that handlers pay 
the appropriate assessments on pistachios they receive. This 
information would also streamline handler audits for committee staff.
    Handlers who handle less than 5,000 pounds annually would be exempt 
from filing ACP Form 8. These small handlers tend to be producers who 
handle their own production only and are known to the committee in 
their producer, as well

[[Page 51380]]

as their handler, capacity. Therefore, the committee already has 
business entity, production, and contact information on the producers 
that are also exempt handlers.
    Upon OMB approval, the revised ACP Form 7 and the new ACP Form 8 
will be merged into OMB No. 0581-0215, ``Pistachios Grown in 
California.'' Specific burden information is detailed later in this 
document in the section entitled, ``Paperwork Reduction Act.''
    Such information would provide the committee with production and 
producer data to enhance the administration of the order. An electronic 
version of the form would be available to those handlers who file 
electronically.
    Since the addition of ACP Form 8 would require changes to the 
order's rules and regulations, Sec.  983.147 would be modified to add a 
new paragraph (g), and to redesignate current paragraphs (g) and (h) as 
paragraphs (h) and (i).

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.
    There are approximately 50 handlers of California pistachios 
subject to regulation under the order and approximately 740 producers 
in the production area. The Small Business Administration (SBA) (13 CFR 
121.201) defines small agricultural producers as those having annual 
receipts less than $750,000, and defines small agricultural service 
firms as those whose annual receipts are less than $6,500,000. Of the 
740 producers, approximately 722 have annual receipts of less than 
$750,000. Eight of the 50 handlers subject to regulation have annual 
pistachio receipts of at least $6,500,000. Thus, the majority of 
handlers and producers of California pistachios may be classified as 
small entities.
    This proposed rule invites comments on changes to the regulations 
authorized under the California pistachio marketing order (order), 
which would revise a currently-approved information collection.
    The committee discussed data collection at its meeting on April 2, 
2007. It determined that production data the CPC previously collected 
and made available to the committee was still necessary for the 
efficient operations of the program. Therefore, the committee agreed 
that it should require handlers to report production data directly to 
the committee. In order to receive this data, the committee unanimously 
recommended that current ACP Form 7, ``Monthly Report of Inventory/
Shipments,'' be revised and that a new form, ACP Form 8, ``Producer 
Delivery Report,'' be developed.
    The committee deliberated the value of revising the current form 
and requiring the new form, and discussed alternatives. In their 
discussion, the committee determined that the only alternative would be 
to not collect such industry data. However, the marketing order 
requires the committee to prepare the annual marketing policy 
statement. Several elements are required for an acceptable marketing 
policy statement: Production, harvesting, processing, and storage 
conditions data. The committee is also required to hold annual 
nominations for seats on the committee, and USDA is required to conduct 
periodic continuance referenda. Thus, the committee needs this data to 
fulfill order requirements.
    The revised ACP Form 7 and the new ACP Form 8 are being submitted 
to the OMB as a revision to a currently-approved information collection 
and upon approval these forms will be merged into OMB No. 0581-0215, 
``Pistachios Grown in California.'' As with other marketing order 
programs, reports and forms are periodically reviewed to reduce 
information requirements and duplication by industry and public sector 
agencies.
    This proposal would impose additional reporting and recordkeeping 
burdens on handlers. However, any additional burden is expected to be 
offset by the efficient operation of the order. Handlers would continue 
to file the ACP Form 7 monthly and would file the ACP Form 8 annually, 
but the data collected would serve multiple purposes and streamline 
committee operations. In addition, USDA has not identified any relevant 
Federal rules that duplicate, overlap, or conflict with this rule. A 
detailed discussion of the amended form follows.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.
    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 April 2, 2007, meeting was a public 
meeting, and entities of all sizes were encouraged 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.
    A 60-day comment period is provided for interested persons to 
comment on this proposal. All written comments received will be 
considered before a final determination is made on this matter.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the AMS announces its intention to submit a revision to a 
currently-approved information collection. This proposed rule creates a 
new form and revises an existing form. Upon approval of this revision 
by OMB, the forms will be merged with the forms approved under OMB No. 
0581-0215, ``Pistachios Grown in California.''
    Title: Pistachios Grown in California; Marketing Order No. 983.
    OMB Number: 0581-0215.
    Type of Request: Revision.
    Abstract: The information collection requirement in this request is 
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 April, 2, 2007, the committee unanimously recommended revising 
the current ACP Form 7 and developing a new ACP Form 8 on which 
handlers report to the committee the receipts of pistachios grown in 
California. This notice concerns those reports, in addition to the 
accompanying regulation previously discussed regarding requiring the 
reports to be submitted by handlers to the committee.
    The committee delegated the task of developing the final versions 
of the forms to their Technical Subcommittee, which met on May 7, 2007.

[[Page 51381]]

    Due to the pending termination of the CPC, the committee will need 
to begin collecting production, producer, and inventory data directly 
from handlers. The committee would use this information in its 
marketing policy deliberations each year when it reviews the 
production, harvesting, processing, and storage of the California crop. 
They would also use it conduct committee nominations, and USDA would 
use it to conduct periodic producer referenda. The committee needs 
accurate information to effectively administer the order.
    The information collected would be used only by authorized 
representatives of the USDA, including AMS, Fruit and Vegetable 
Programs regional and headquarters staff, and authorized employees of 
the committee. Authorized committee staff are the primary users of the 
information, and AMS is the secondary user. Such information would be 
kept confidential in accordance with the Act and the order.

Estimated Annual Burden for Each Form

    The proposed request for revision of a currently-approved 
information collection under the order is as follows:

ACP-7, Monthly Report of Inventory/Shipments Form

    Handlers would use this form to report their monthly inventory, 
receipts, domestic and export shipments of pistachios, interhandler 
transfers, non-handler purchases of California product, inventory 
adjustments, and the ending inventory. Because small handlers are 
exempt from filing all forms other than the ACP-4, there are only an 
estimated 20 huller/dryer handlers who would be required to file this 
form.
    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 Total Annual Responses: 240.
    Estimated Number of Responses per Respondent: 12.
    Estimated Total Annual Burden on Respondents: 48 hours.

ACP-8, Producer Delivery Report Form

    Handlers would use this form annually to notify the committee of 
the receipts of pistachios and to report information on producers who 
own the acreage upon which the pistachios are grown. There are only an 
estimated 14 producers/handlers who receive pistachios for processing 
from other producers, thus, there would be fewer handlers filing this 
form.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 12 minutes per response.
    Respondents: California pistachio handlers who receive pistachios 
grown in California.
    Estimated Number of Respondents: 14.
    Estimated Number of Total Annual Reponses: 14.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 2.8 hours.
    Comments: Comments are invited on: (1) Whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information will 
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. 0581-0215 and the Marketing Order 
for Pistachios Grown in California, and should be sent to the USDA in 
care of the Docket Clerk at the previous-mentioned address or at http://www.regulations.gov.
    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.regulations.gov.
    In summary, this proposal would modify one reporting form and 
establish a new reporting requirement under the order.
    Requiring handlers to file the new reports would allow the 
committee to obtain accurate information for preparation of the 
mandatory annual marketing policy statement, and for the conduct of 
committee nominations and periodic referenda. Since the addition of ACP 
Form 8 would require changes to the order's rules and regulations, 
Sec.  983.147 would be modified to add a new paragraph (g), and to 
redesignate current paragraphs (g) and (h) as paragraphs (h) and (i).
    All written comments timely received will be considered before a 
final determination is made on this matter.

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.

Subpart--Rules and Regulations

    2. In Sec.  983.147, current paragraphs (g) and (h) are 
redesignated as paragraphs (h) and (i), and a new paragraph (g) is 
added to read as follows:


Sec.  983.147  Reports.

* * * * *
    (g) ACP-8, Producer Delivery Report. Each handler of pistachios 
shall file this report with the committee by the 15th day of December 
of each production year to report his/her receipts of pistachios during 
the current production year, the names of the handlers' producing 
entities, business type, and the following information concerning each 
producing entity: Federal Tax Identification number; mailing and e-mail 
address; telephone and fax number; total bearing acres; county of 
production; and for the current production year, the total receipts of 
open inshell, closed shell, shelling stock of each producing entity; 
and total pounds of processed pistachios produced by each producing 
entity.
* * * * *

    Dated: August 30, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 07-4370 Filed 9-6-07; 8:45 am]
BILLING CODE 3410-02-M