[Federal Register Volume 73, Number 67 (Monday, April 7, 2008)]
[Rules and Regulations]
[Pages 18703-18706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-1109]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 983

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


Pistachios Grown in California; Change in Reporting Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule changes the current reporting requirements 
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 changes will modify one existing committee form and 
add a new form to a currently-approved information collection. The 
information collected will 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 order.

DATES: Effective Date: April 8, 2008.

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: [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 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

[[Page 18704]]

not later than 20 days after the date of the entry of the ruling.
    This final rule changes the reporting requirements prescribed under 
the order. These changes will modify one committee form and add a new 
form to the currently-approved information collection. The new form 
will require handlers to report production and producer data. This new 
data will 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. 
These changes were unanimously recommended by the committee on April 2, 
2007.
    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.
    As a result of a producer referendum, the California Pistachio 
Commission (CPC), a California State marketing program, was terminated 
in the spring of 2007. Data historically collected by the CPC and 
shared with the committee is no longer available. Such data includes 
information on the total available supply of pistachios grown in 
California and on the producers who produced the pistachios.
    Thus, the committee unanimously recommended changes to its 
reporting requirements to capture information necessary for the 
effective administration of the Federal order that is no longer 
available through the CPC. Specifically, the committee recommended 
revising its current ACP Form 7, ``Monthly Report of Inventory/
Shipments,'' and creating a new form, ACP Form 8, ``Producer Delivery 
Report.'' These forms will allow the committee to collect production, 
producer, inventory, and shipment data from handlers.
    Requiring handlers to report such data will enable the committee to 
obtain better information on the total available supply of pistachios 
grown in California and to contact pistachio producers. The order 
requires the committee to prepare an annual marketing policy statement, 
pursuant to Sec.  983.37. 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. The committee needs 
producer and production data to fulfill order requirements.
    Currently on the ACP Form 7, all handlers must report their 
beginning inventory, grower deliveries, shipments of pistachios to the 
domestic market, interhandler transfers, non-handler purchases of 
California product, inventory adjustments on split and shelled 
pistachios, and ending inventory on a monthly basis. This final rule 
will remove the requirement to report inventory adjustments to split 
and shelled pistachios, as the committee believes that this information 
is no longer needed. This final rule will also require handlers to 
report their export shipments. Export data was previously collected by 
the CPC and provided by some handlers voluntarily to the committee.
    On the new form, ACP Form 8, ``Producer Delivery Report,'' handlers 
will be required 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 will 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 will 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 will also allow the 
committee to track deliveries to handlers and verify that handlers pay 
the appropriate assessments on pistachios they receive. This 
information will also streamline handler audits for committee staff.
    Pursuant to Sec.  983.147(c), handlers who handle less than 5,000 
pounds annually will 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 as their handler, 
capacity. Therefore, the committee already has business entity, 
production, and contact information on the producers that are also 
exempt handlers.
    Such information will provide the committee with production and 
producer data to enhance the administration of the order. An electronic 
version of the form will be available to those handlers who file 
electronically.
    Since the addition of ACP Form 8 will require changes to the 
order's rules and regulations, Sec.  983.147 will be modified to add a 
new paragraph (g), and to redesignate current paragraphs (g) and (h) as 
paragraphs (h) and (i).

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 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.
    There are approximately 740 producers in the production area and 
approximately 50 handlers of California pistachios subject to 
regulation under the order. 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. Forty-two of the 50 handlers subject to regulation have 
annual pistachio receipts of less than $6,500,000. Thus, the majority 
of producers and handlers of California pistachios may be classified as 
small entities.
    This final rule will change Sec.  983.147 of the order's 
regulations, and revise a currently-approved information collection. 
The committee determined that production data the CPC previously 
collected and made available to the committee was still necessary for 
the efficient operation of the program. Therefore, the committee agreed 
that it should require handlers to report production and shipment 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. Authority for these changes 
is provided in Sec.  983.47.
    On April 2, 2007, the committee deliberated on the value of 
revising the current form and requiring the new form, and discussed 
alternatives. It

[[Page 18705]]

determined that the only alternative would be to not collect such 
industry data. However, the order requires the committee to prepare an 
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 have been approved by the Office of Management 
and Budget (OMB) under 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 final rule will 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 will continue 
to file the ACP Form 7 monthly and will file the ACP Form 8 annually, 
but the data collected will serve multiple purposes and streamline 
committee operations. 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.
    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 meeting was widely publicized throughout 
the pistachio industry and all interested persons were encouraged to 
attend the meeting 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.
    A proposed rule was published in the Federal Register on September 
7, 2007 (72 FR 173). Copies of the proposed rule were mailed or sent 
via facsimile to all committee members and handlers. Finally, the 
proposed rule was made available through the Internet, USDA and the 
Office of the Federal Register. A 60-day comment period ending November 
6, 2007, was provided to allow interested persons to respond to the 
proposal. One opposing comment was received.
    The commenter was opposed to the committee collecting and 
disseminating monthly export shipment and inventory data from handlers. 
According to the commenter, this data, when collected by the CPC in the 
past, proved valuable in evaluating market conditions and measuring the 
effectiveness of marketing efforts by the industry. However, the 
commenter stated that the export data is no longer necessary because 
the Federal order only regulates domestically shipped product and not 
exports. The commenter also expressed concern with the accuracy of the 
inventory data, and contends that such discrepancies are deliberate or 
accidental errors in the reporting to the committee. The commenter 
stated a preference for standardized inventory reporting practices 
because there are no standards for determining inventory levels. The 
commenter argues that, without set procedures, handlers could easily 
manipulate their reported inventory to seek competitive advantage in 
the marketplace.
    Regarding the concerns about export shipments, the order provides 
authority for the collection of information from handlers, which 
includes shipment data. The committee believes that this information is 
valuable to the industry, and unanimously voted to collect this 
information under the Federal order.
    Regarding the concerns about the accuracy of the monthly inventory 
data, the ACP-7 requires handlers to report an ``inventory adjustment'' 
figure, which is an adjustment to inventory due to issues including 
splitting, shelling, shrink, and loss of product. According to 
committee staff, there is variability in the way handlers store and 
manage their pistachios, which creates differences in how handlers 
report inventory adjustments. The committee is exploring ways to 
improve the accuracy of this information.
    Accordingly, no changes will be made to this rule based on the 
comment 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.
    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 the data 
required through this rule is no longer available from the CPC, and the 
committee needs this information to ensure proper administration of the 
Federal order. Further, handlers are aware of this rule, which was 
unanimously recommended by the committee at a public meeting. Also, a 
60-day comment period was provided for the proposed rule.

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.  983.147, 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: Provided, That for the 2007-08 production 
year, handlers must file this report with the committee by April 17, 
2008, 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.
* * * * *


[[Page 18706]]


    Dated: April 2, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 08-1109 Filed 4-3-08; 1:02 pm]
BILLING CODE 3410-02-P