[Federal Register Volume 74, Number 171 (Friday, September 4, 2009)]
[Proposed Rules]
[Pages 45772-45777]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21352]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 74, No. 171 / Friday, September 4, 2009 / 
Proposed Rules  

[[Page 45772]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 983

[Doc. No. AMS-FV-09-0031; FV09-983-1 PR]


Pistachios Grown in California; Changes to Handling Regulations

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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

SUMMARY: This rule invites comments on changes to the handling 
regulations prescribed under Marketing Agreement and Order No. 983 
(order), which regulates the handling of pistachios. The changes were 
recommended by the Administrative Committee for Pistachios (committee), 
which is responsible for local administration of the order. The changes 
would bring the current handling regulations into conformance with 
proposed amendments to the order by including certain regulatory 
language currently contained in the order's provisions in the order's 
administrative rules and regulations, lifting the suspension of certain 
language, removing obsolete language, and revising references to 
renumbered order provisions.

DATES: Comments must be received by September 14, 2009.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule. 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. Comments should reference the docket number and 
the date and page number of this issue of the Federal Register, and 
will be available for public inspection in the Office of the Docket 
Clerk during regular business hours, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this rule 
will be included in the record and will be made available to the 
public. Please be advised that the identity of the individuals or 
entities submitting the comments will be made public on the Internet at 
the address provided above.

FOR FURTHER INFORMATION CONTACT: Martin Engeler, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 
Monterey Street, Suite 102-B, Fresno, California 93721; Telephone: 
(559) 487-5110, Fax: (559) 487-5906, or E-mail: 
[email protected]; or Laurel May, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 
Independence Avenue, SW., Stop 0237, Washington, DC 20250-0237; 
Telephone: (202) 205-2830, Fax: (202) 720-8938, or E-mail: 
[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, E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This proposal is issued under Marketing 
Agreement and Order No. 983, both as amended (7 CFR part 987), 
regulating the handling of pistachios. 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 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, or any obligation imposed in connection with 
the order, is not in accordance with law and may 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 proposed changes to the 
administrative rules and regulations contained in the order. The 
changes would bring the current handling regulations into conformance 
with proposed amendments to the order by including certain regulatory 
language currently contained in the order's provisions in the order's 
administrative rules and regulations, lifting the suspension of certain 
language, removing obsolete language, and revising references to 
renumbered order provisions. These changes were recommended by the 
committee and submitted to USDA on May 28, 2008.
    A Secretary's decision, which describes the proposed amendments to 
the order, was published in the Federal Register on August 6, 2009 (74 
FR 39230). A copy of the Secretary's decision may be viewed at: http://www.regulations.gov/search/Regs/home.html#documentDetail?R=0900006480a02766.
    Proposed amendments to the order's provisions would expand the 
production area subject to regulation under the order to include the 
states of California, Arizona, and New Mexico. Additional amendments to 
the order would modify existing provisions regarding aflatoxin and 
quality regulations, revise various administrative procedures under the 
order, authorize the committee to recommend research projects, and make 
other related changes. A referendum of pistachio producers who would be 
affected by the amended order will be conducted to determine support 
for such changes. If the amendments are approved by producers 
participating in the referendum, conforming changes to the order's 
administrative rules and regulations would be necessary.
    Among other things, specific regulatory language currently 
contained

[[Page 45773]]

in the order's aflatoxin and quality provisions would be removed if the 
amendments are approved. To avoid a lapse in regulation, the committee 
recommended that specific order provisions concerning aflatoxin 
tolerance levels and testing procedures be added to the order's 
administrative rules and regulations section at the same time the 
amendments are effectuated. This would provide a seamless transition 
and would assure that pistachios continue to be handled under the same 
regulations currently in place under the order. This rule addresses 
those conforming changes. If the proposed amendments are not approved 
by producers, this rule regarding conforming changes to the order's 
administrative rules and regulations would be withdrawn. It is intended 
that finalization of this rule would correspond with the issuance of 
the order amending order, both of which would be published in a future 
issue of the Federal Register, as appropriate.
    Section 983.38 of the order currently specifies the maximum 
aflatoxin tolerance level for domestic shipments of pistachios for 
human consumption. This section also specifies aflatoxin testing and 
certification procedures. Section 983.39 of the order, which was 
suspended on December 10, 2007 (72 FR 69141), specifies minimum quality 
levels for domestic shipments of pistachios for human consumption. 
Testing and certification procedures to verify pistachio quality are 
also specified in this section. Section 983.46(c) of the order 
authorizes the committee to recommend administrative rules and 
regulations implementing the provisions of Sec. Sec.  983.38 and 
983.39.
    The formal rulemaking proceeding includes amendments to Sec. Sec.  
983.38 and 983.39 that would remove specific regulatory language from 
those provisions and replace it with general authority to recommend and 
establish aflatoxin and quality regulations through the informal 
rulemaking process. Sections 983.38 and 983.39 would also be 
redesignated as Sec. Sec.  983.50 and 983.51, respectively. Such 
changes would require the addition of new regulatory sections to the 
order's current administrative rules and regulations, render certain 
other sections obsolete, and require the revision of other sections to 
reflect changes to the order provisions, including references to 
renumbered sections.
    If Sec.  983.38 is amended, certain specific handling requirements 
concerning aflatoxin levels and testing procedures currently provided 
in that section would be moved to a new Sec.  983.150--Aflatoxin 
Regulations, which would be added to the order's rules and regulations. 
Section 983.150 would specify an aflatoxin tolerance level of 15 ppb, 
which is the aflatoxin tolerance currently provided under the order. 
Section 983.150 would also specify the same aflatoxin sampling, 
testing, and certification procedures currently contained in the order, 
with some modifications. For instance, the regulation would require 
that at least eight members of the committee recommend, and the 
Secretary approve, any alternative aflatoxin analysis methods. The 
regulation would also require accredited laboratories performing 
aflatoxin testing to certify that every lot of production area 
pistachios shipped domestically does not exceed the maximum aflatoxin 
tolerance level specified under the order. Additionally, handlers would 
be required to maintain testing and shipping records for three years 
beyond the production year of their applicability. Finally, section 
references throughout the section would be updated to reflect 
renumbered order provisions.
    Section 983.138 of the order's administrative rules and regulations 
concerns the drawing of samples for aflatoxin testing in accordance 
with requirements in Sec.  983.38. Because updated sampling procedures 
would be contained in new Sec.  983.150, this section would be obsolete 
under the amended order. Therefore, the committee recommended removing 
this section.
    If Sec.  983.39 is amended, the order would no longer contain 
specific regulations regarding minimal pistachio quality or testing. 
The committee would have general authority to consider and recommend 
minimal quality regulations and testing procedures. Certain references 
to the provisions of Sec.  983.39 would be obsolete. Therefore, the 
committee recommended that affected sections be revised to reflect 
proposed amendments to that section.
    Section 983.141 outlines procedures for exempting handlers from 
minimum quality testing. This section has been suspended since December 
10, 2007 (72 FR 69141), when the minimum quality provision of the order 
was also suspended. This section would be obsolete under the amended 
order. Therefore, the committee recommended lifting the suspension of 
Sec.  983.141 and removing the section.
    The formal rulemaking proceeding includes amendments to Sec.  
983.40 that would remove specific regulations regarding rework 
procedures for lots of pistachios failing aflatoxin and minimum quality 
testing. Those regulations would be replaced with general authority to 
recommend rework procedures for failed lots. Specific regulations 
describing rework provisions for lots failing aflatoxin testing would 
be moved to a new Sec.  983.152--Failed lots/rework procedure. 
Conforming changes to the text of the current regulations would be made 
in Sec.  983.152 to reference aflatoxin regulations in the amended 
order provisions, and would revise references to renumbered sections.
    The formal rulemaking proceeding includes an amendment to Sec.  
983.41 that would remove a quality testing exemption for handlers 
handling fewer than 1,000,000 pounds of pistachios annually and replace 
it with general authority to recommend testing procedures for minimum 
quantities. Section 983.41 would also be redesignated as Sec.  983.53. 
Section 983.47 currently provides for the collection of necessary 
reports from regulated handlers. If the proposed amendments are 
approved by producers, Sec.  983.47 would be redesignated as Sec.  
983.64. Paragraph (d) of Sec.  983.147 describes Form ACP-5--``Minimal 
Testing Form,'' for use by handlers handling fewer than 1,000,000 
pounds of pistachios annually. That paragraph has been suspended since 
December 10, 2007 (72 FR 69141), when the minimum quality provision of 
the order was also suspended. The committee recommended revising that 
paragraph to specify that handlers may use Form ACP-5 to request 
permission to handle minimum quantities of pistachios according to the 
provisions of redesignated Sec.  983.53. To remain consistent with the 
redesignation of Sec.  983.47 as Sec.  983.64, this rule would 
redesignate Sec.  983.147 as Sec.  983.164.
    The formal rulemaking proceeding includes amendments to Sec.  
983.70, which currently provides an exemption from certain handling 
regulations under the order for handlers of fewer than 1,000 pounds of 
pistachios and authorizes the committee to recommend revised exemption 
levels. The amendment would raise the exemption level to 5,000 pounds. 
The section would also be redesignated as Sec.  983.92. As authorized 
under Sec.  983.70, Sec.  983.170 of the order's administrative rules 
and regulations currently provides an exemption for handlers of fewer 
than 5,000 pounds. If the proposed amendment to Sec.  983.70 is 
approved by producers, Sec.  983.170 would be redundant. Therefore, the 
committee recommended that Sec.  983.170 be removed. Additionally, a 
reference to Sec.  983.170 in Sec.  983.143 would be revised to 
reference the exemption level in redesignated Sec.  983.92. Finally, 
proposed

[[Page 45774]]

amendments to Sec.  983.43 would redesignate that section as Sec.  
983.55. To remain consistent with that redesignation, this rule would 
redesignate Sec.  983.143 as Sec.  983.155.
    Section 983.53 of the order authorizes the collection of 
assessments from handlers on receipts of pistachios. Such assessments 
are used to fund expenses of the committee. Section 983.253 specifies 
the current assessment rate established for California pistachios. As 
explained above, the formal rulemaking proceeding includes an amendment 
to the order that would expand the production area to include 
California, Arizona, and New Mexico. Therefore, the committee 
recommended that paragraph (b) of Sec.  983.253 be revised to establish 
an assessment rate applicable to all production area pistachios. To 
conform to the definition of the committee's ``production year'' 
contained in the order, the language of paragraph (b) of Sec.  983.253 
would also be revised to specify that assessments are due to the 
committee by December 15 of the applicable production year.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (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 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.
    Small business firms, which include handlers regulated under the 
order, have been defined by the Small Business Administration (SBA) (13 
CFR 121.201) as those having annual receipts of less than $7,000,000. 
Small agricultural producers have been defined as those with annual 
receipts of less than $750,000.
    There are approximately 24 handlers and 800 producers of pistachios 
in California, the production area currently regulated under the order. 
If proposed amendments to the order are approved by producers, the 
production area could expand to include the states of Arizona and New 
Mexico. According to information provided by the industry, there are 
two handlers and approximately 45 pistachio producers in Arizona, and 
there are three handlers and approximately 30 producers in New Mexico.
    The committee has estimated that approximately 50 per cent of 
California handlers would be considered small businesses, as defined by 
SBA. The industry has estimated that one of the Arizona handlers and 
all three New Mexico handlers would also be considered small 
businesses.
    Data provided by the committee regarding the size of the 2007 crop, 
as well as data reported by the National Agricultural Statistics 
Service (NASS), suggests that the average California producer revenue 
for the 2007 crop was $733,200. It is estimated that 85 percent of 
California producers had receipts of less than $750,000 and would thus 
be considered small businesses according to the SBA definition. 
Although there is no official data available, the industry estimates 
that the majority of producers in Arizona and New Mexico would also be 
considered small businesses.
    Currently, the order regulates pistachios produced in California. 
The formal rulemaking proceeding includes amendments to the order that 
would expand the regulated production area to include Arizona and New 
Mexico, at the request of producers in those two states. Additional 
proposed amendments to the order would remove specific aflatoxin and 
quality regulations and testing procedures from the order's provisions 
and replace them with general authority for the committee to recommend 
aflatoxin and quality regulations. This proposed rule would make 
changes to the order's administrative rules and regulations by adding 
the specific aflatoxin regulations currently found in the order's 
provisions and clarifying that the regulations pertain to handlers 
throughout the expanded production area. Certain language in the 
administrative rules and regulations section that is currently 
suspended, or that would be redundant or obsolete if the amendments are 
approved, would be removed or revised. References to order sections 
that have been redesignated would be revised to reference the 
renumbered sections. These changes were recommended by the committee to 
ensure a seamless transition in aflatoxin regulation if the amendments 
are approved and to conform to various changes to the order's 
provisions. If the proposed amendments to the order are not approved by 
pistachio producers, this proposed rule would be withdrawn.
    Specifically, this proposed rule would remove Sec.  983.138--
Samples for testing, Sec.  983.141--Procedures for exempting handlers 
from minimum quality testing, and Sec.  983.170--Handler exemption, 
from the order's administrative rules and regulations. Conforming 
changes would be made to the language and references in Sec. Sec.  
983.143, 983.147, 983.253 to reflect amendments to the order, such as 
the expansion of the production area to include Arizona and New Mexico 
and the redesignation of several order sections. Sections 983.143 and 
983.147 would be redesignated as Sec. Sec.  983.155 and 983.164, 
respectively. Finally, two new sections, Sec.  983.150--Aflatoxin 
regulations, and Sec.  983.152--Failed lots/rework procedure, would be 
added to incorporate specific regulations concerning aflatoxin 
tolerance levels and testing procedures that would be removed from the 
order's provisions if the amendments are approved.
    The impact of proposed amendments to the order on producers and 
handlers has been analyzed in the Secretary's Decision published in the 
Federal Register on August 6, 2009, at 74 FR 39230. It may be generally 
concluded from the final regulatory impact analysis that the order 
amendments would improve the operation and functioning of the marketing 
order program and that all producers and handlers would benefit 
regardless of size. The analysis examined the benefits and costs to 
producers and handlers as a result of the expansion of the production 
area to include Arizona and New Mexico and the regulation of handlers 
under the marketing order program, including aflatoxin certification 
requirements.
    Many of the amendments proposed in this rule simply change the 
location of the regulatory provisions concerning aflatoxin levels and 
testing from the order provisions to the regulations. Therefore, these 
proposed changes should have no effect upon California pistachio 
handlers of any size since they are currently required to comply with 
those requirements. With regard to application of aflatoxin 
certification requirements on Arizona and New Mexico handlers, that 
impact is fully considered in the previously referenced final 
regulatory flexibility analysis. The minimum quality provisions of the 
order have been suspended since December 10, 2007 (72 FR 69141), so 
there would be no effect on handlers if those provisions are removed. 
The revision of certain language, redesignation of some sections, and 
references to redesignated sections of the order that would be made to 
conform to the amended order are administrative in nature and would 
have no effect on producers or handlers of any size.

[[Page 45775]]

    The changes in this proposed rule are necessary to conform to 
proposed amendments to the order. With regard to alternatives, if the 
amendments are approved by producers voting in the referendum, these 
changes should be made. As explained above, if the amendments are not 
approved by voters, this proposed rule would be withdrawn.
    This action would not impose any additional reporting or 
recordkeeping requirements on either small or large date 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.
    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.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap or conflict with this proposed rule.
    These proposed changes in this action were recommended by the 
committee on March 6, 2008, and submitted to AMS on May 28, 2008. The 
committee's meeting was widely publicized throughout the pistachio 
industry and all interested persons were invited to attend and 
participate. All entities, both large and small, were able to express 
their views on the effects of the proposed amendments contained herein.
    Finally, interested persons are invited to submit comments on this 
proposed rule, including 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/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide. 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 10-day comment period is provided to allow interested persons to 
respond to this proposal. Ten days is deemed appropriate because the 
proposed changes need to be made concurrently with any amendments made 
to the order itself. All written comments timely received will be 
considered before a final determination is made on this matter.
    A referendum is to be conducted on proposed amendments to the order 
on August 10-22, 2009.

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.


Sec.  983.138  [Removed]

    2. Section 983.138 is removed.


Sec.  983.141  [Removed]

    3. Lift the December 10, 2007 (published on Dec. 7, 2007, 72 FR 
69141), suspension of Sec.  983.141, and remove the section.


Sec.  983.143  [Redesignated as Sec.  983.155 and Amended]

    4. Redesignate Sec.  983.143 as Sec.  983.155, and amend paragraph 
(b) by removing the reference ``Sec.  983.170'' and adding in their 
place the reference ``Sec.  983.92.''


Sec.  983.147  [Redesignated as Sec.  983.164]

    5. Lift the December 10, 2007 (published on Dec. 7, 2007, 72 FR 
69142), suspension of Sec.  983.147(d), redesignate Sec.  983.147 as 
Sec.  983.164, and revise paragraph (d) of that section to read as 
follows:


Sec.  983.164  Reports.

* * * * *
    (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 permission to handle under the minimal quantities 
provisions (Sec.  983.53) of the order shall furnish this report to the 
committee office no later than August 1 of each production year.
* * * * *
    6. Add new Sec.  983.150 to read as follows:


Sec.  983.150  Aflatoxin regulations.

    (a) Maximum level. No handler shall ship for domestic human 
consumption, pistachios that exceed an aflatoxin level of 15 ppb. All 
shipments must also be covered by an aflatoxin inspection certificate. 
Pistachios that fail to meet the aflatoxin requirements shall be 
disposed in such manner as described in the Failed Lots/Rework 
Procedure of this part (Sec.  983.152).
    (b) Change in level. The committee may recommend to the Secretary 
changes in the aflatoxin level specified in this section. If the 
Secretary finds, on the basis of such recommendation or other 
information, that such an adjustment of the aflatoxin level would tend 
to effectuate the declared policy of the Act, such change shall be made 
accordingly.
    (c) Transfers between handlers. Transfers between handlers within 
the production area are exempt from the aflatoxin regulation of this 
section.
    (d) Aflatoxin testing procedures. To obtain an aflatoxin inspection 
certificate, each lot to be certified shall be uniquely identified, be 
traceable from testing through shipment by the handler, and be 
subjected to the following:
    (1) Samples for testing. Prior to testing, a sample shall be drawn 
from each lot (``lot samples'') of sufficient weight to comply with 
Table 1 and Table 2 of this section.
    (2) Test samples for aflatoxin. Prior to submission of samples to 
an accredited laboratory for aflatoxin analysis, three samples shall be 
created equally from the pistachios designated for aflatoxin testing in 
compliance with the requirements of Tables 1 and 2 of this paragraph 
(``test samples''). The test samples shall be prepared by, or under the 
supervision of, an inspector, or as approved under an alternative USDA-
recognized inspection program. The test samples shall be designated by 
an inspector as Test Sample 1, Test Sample 2, and 
Test Sample 3. Each sample shall be placed in a suitable 
container, with the lot number clearly identified, and then submitted 
to an accredited laboratory. The gross weight of the in-shell lot 
sample for aflatoxin testing and the number of incremental samples 
required are shown in Table 1. The gross weight of the kernel (shelled) 
lot sample for aflatoxin testing and the number of incremental samples 
required is shown in Table 2.

[[Page 45776]]



        Table 1 to Sec.   983.150--Inshell Pistachio Lot Sampling Increments for Aflatoxin Certification
----------------------------------------------------------------------------------------------------------------
                                                                     Number of
                                                                    incremental    Total weight    Weight of the
                        Lot weight (lbs)                            samples for    of lot sample    test sample
                                                                  the lot sample    (kilograms)     (kilograms)
----------------------------------------------------------------------------------------------------------------
220 or less.....................................................              10             3.0             1.0
221-440.........................................................              15             4.5             1.5
441-1,100.......................................................              20             6.0             2.0
1,101-2,200.....................................................              30             9.0             3.0
2,201-4,400.....................................................              40            12.0             4.0
4,401-11,000....................................................              60            18.0             6.0
11,001-22,000...................................................              80            24.0             8.0
22,001-150,000..................................................             100            30.0            10.0
----------------------------------------------------------------------------------------------------------------


     Table 2 to Sec.   983.150--Shelled Pistachio Kernel Lot Sampling Increments for Aflatoxin Certification
----------------------------------------------------------------------------------------------------------------
                                                                     Number of
                                                                    incremental    Total weight    Weight of the
                        Lot weight (lbs)                            samples for    of lot sample    test sample
                                                                  the lot sample    (kilograms)     (kilograms)
----------------------------------------------------------------------------------------------------------------
220 or less.....................................................              10             1.5            0.5
221-440.........................................................              15             2.3            0.75
441-1,100.......................................................              20             3.0            1.0
1,101-2,200.....................................................              30             4.5            1.5
2,201-4,400.....................................................              40             6.0            2.0
4,401-11,000....................................................              60             9.0            3.0
11,001-22,000...................................................              80            12.0            4.0
22,001-150,000..................................................             100            15.0            5.0
----------------------------------------------------------------------------------------------------------------

     (3) Testing of pistachios. Test samples shall be received and 
logged by an accredited laboratory and each test sample shall be 
prepared and analyzed using High Pressure Liquid Chromatograph (HPLC), 
Vicam Method (Aflatest), or other methods as recommended by not fewer 
than eight members of the committee and approved by the Secretary. The 
aflatoxin level shall be calculated on a kernel weight basis.
    (4) Certification of lots ``negative'' as to aflatoxin. Lots will 
be certified as ``negative'' on the aflatoxin inspection certificate if 
Test Sample 1 has an aflatoxin level at or below 5 ppb. If the 
aflatoxin level of Test Sample 1 is above 25 ppb, the lot 
fails and the accredited laboratory shall fill out a failed lot 
notification report as specified in Sec.  983.52. If the aflatoxin 
level of Test Sample 1 is above 5 ppb and below 25 ppb, the 
accredited laboratory may at the handler's discretion analyze Test 
Sample 2, and the test results of Test Samples 1 and 
2 will be averaged. Alternatively, the handler may elect to 
withdraw the lot from testing, rework the lot, and resubmit it for 
testing after reworking. If the handler directs the laboratory to 
proceed with the analysis of Test Sample 2, the lot will be 
certified as negative to aflatoxin and the laboratory shall issue an 
aflatoxin inspection certificate if the averaged results of Test Sample 
1 and Test Sample 2 are at or below 10 ppb. If the 
averaged aflatoxin level of Test Samples 1 and 2 is 
at or above 20 ppb, the lot fails and the accredited laboratory shall 
fill out a failed lot notification report as specified in Sec.  983.52. 
If the averaged aflatoxin level of Test Samples 1 and 
2 is above 10 ppb and below 20 ppb, the accredited laboratory 
may, at the handler's discretion, analyze Test Sample 3, and 
the results of Test Samples 1, 2, and 3 will 
be averaged. Alternatively, the handler may elect to withdraw the lot 
from testing, rework the lot, and resubmit it for testing after 
reworking. If the handler directs the laboratory to proceed with the 
analysis of Test Sample 3, a lot will be certified as negative 
to aflatoxin and the laboratory shall issue an aflatoxin inspection 
certificate if the averaged results of Test Samples 1, 
2, and 3 are at or below 15 ppb. If the averaged 
aflatoxin results of Test Samples 1, 2, and 
3 are above 15 ppb, the lot fails and the accredited 
laboratory shall fill out a failed lot notification report as specified 
in Sec.  983.52. The accredited laboratory shall send a copy of the 
failed lot notification report to the committee and to the failed lot's 
owner within 10 working days of any failure described in this section. 
If the lot is certified as negative as described in this section, the 
aflatoxin inspection certificate shall certify the lot using a 
certification form identifying each lot by weight and date. The 
certification expires for the lot or remainder of the lot after 12 
months.
    (5) Certification of aflatoxin levels. Each accredited laboratory 
shall complete aflatoxin testing and reporting and shall certify that 
every lot of pistachios shipped domestically does not exceed the 
aflatoxin levels as required in paragraph (a) of this section or as 
provided under Sec.  983.50. Each handler shall keep a record of each 
test, along with a record of final shipping disposition. These records 
must be maintained for three years beyond the production year of their 
applicability, and are subject to audit by the Secretary or the 
committee at any time.
    (6) Test samples that are not used for analysis. If a handler does 
not elect to use Test Samples 2 or 3 for 
certification purposes, the handler may request that the laboratory 
return them to the handler.
    7. Add new Sec.  983.152 to read as follows:


Sec.  983.152  Failed lots/rework procedure.

    (a) Inshell rework procedure for aflatoxin. If inshell rework is 
selected as a remedy to meet the aflatoxin regulations of this part, 
then 100% of the product within that lot shall be removed from the bulk 
and/or retail packaging containers and reworked to remove the portion 
of the lot that caused the failure. Reworking shall consist of 
mechanical, electronic, or manual procedures normally used in the

[[Page 45777]]

handling of pistachios. After the rework procedure has been completed, 
the total weight of the accepted product and the total weight of the 
rejected product shall be reported to the committee. The reworked lot 
shall be sampled and tested for aflatoxin as specified in Sec.  
983.150, except that the lot sample size and the test sample size shall 
be doubled. If, after the lot has been reworked and tested, it fails 
the aflatoxin test for a second time, the lot may be shelled and the 
kernels reworked, sampled, and tested in the manner specified for an 
original lot of kernels, or the failed lot may be used for non-human 
consumption or otherwise disposed of.
    (b) Kernel rework procedure for aflatoxin. If pistachio kernel 
rework is selected as a remedy to meet the aflatoxin regulations in 
Sec.  983.150, then 100% of the product within that lot shall be 
removed from the bulk and/or retail packaging containers and reworked 
to remove the portion of the lot that caused the failure. Reworking 
shall consist of mechanical, electronic, or manual procedures normally 
used in the handling of pistachios. After the rework procedure has been 
completed, the total weight of the accepted product and the total 
weight of the rejected product shall be reported to the committee. The 
reworked lot shall be sampled and tested for aflatoxin as specified in 
Sec.  983.150.


Sec.  983.170  [Removed]

    8. Section 983.170 is removed.
    9. Amend Sec.  983.253 by removing the word ``California'' in 
paragraph (a), and by revising paragraph (b) to read as follows:


Sec.  983.253  Assessment rate.

* * * * *
    (b) Each handler who receives pistachios for processing shall 
furnish the Receipts/Assessment Report and pay all due assessments to 
the committee by December 15 of the applicable production year.

    Dated: August 31, 2009.
Rayne Pegg,
Administrator.
[FR Doc. E9-21352 Filed 9-3-09; 8:45 am]
BILLING CODE 3410-02-P