[Federal Register Volume 76, Number 204 (Friday, October 21, 2011)]
[Proposed Rules]
[Pages 65411-65419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27285]


 ========================================================================
 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.
 
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 

  Federal Register / Vol. 76 , No. 204 / Friday, October 21, 2011 / 
Proposed Rules  

[[Page 65411]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 999

[Doc. No. AMS-FV-09-0064; FV09-999-1 PR]


Specialty Crops; Import Regulations; Proposed Pistachio Import 
Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule invites comments on the establishment of a 
minimum quality regulation for lots of pistachios imported into the 
United States. The regulation would specify maximum aflatoxin tolerance 
levels as well as mandatory aflatoxin testing and certification 
requirements. The proposed import quality requirements would be the 
same as or comparable to those in effect for the domestically produced 
commodity. Under this proposal, aflatoxin levels in imported pistachios 
could not exceed 15 parts per billion (ppb), as certified by aflatoxin 
inspection certificates issued by an accredited laboratory. This action 
is intended to assure consumers that all pistachios offered for sale in 
the United States meet the same aflatoxin standards, thus promoting 
high quality product in the market place and fostering consumer 
satisfaction. This rule also announces the Agricultural Marketing 
Service's (AMS) intention to request approval by the Office of 
Management and Budget (OMB) of a new information collection 
requirement, including two new forms that would be completed by either 
laboratories or pistachio importers.

DATES: Comments must be received by December 20, 2011. Pursuant to the 
Paperwork Reduction Act, comments on the forms and information 
collection burden must be received by December 20, 2011.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments should be sent to the Docket Clerk, 
Marketing Order and Agreement Division, 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 document 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: Laurel May or Kathleen Finn, Marketing 
Order and Agreement Division, 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] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Laurel May at the above mentioned address.

SUPPLEMENTARY INFORMATION: This proposed rule is issued under section 
8e of the Agricultural Marketing Agreement Act of 1937, as amended (7 
U.S.C. 601-674), hereinafter referred to as the ``Act,'' which provides 
that whenever the grade, size, quality, or maturity of certain 
specified commodities, including pistachios, are regulated under a 
Federal marketing order, imports of these commodities into the United 
States are prohibited unless they meet the same or comparable grade, 
size, quality, and maturity requirements as those in effect for the 
domestically produced commodities. To ensure that these requirements 
are met, the Act also authorizes the Department of Agriculture (USDA) 
to perform inspections and related functions such as commodity 
sampling, and to issue inspection certificates for such imported 
commodities.
    USDA is issuing this rule in conformance with Executive Order 
12866.
    There are no administrative procedures that must be exhausted prior 
to any judicial challenge to the provisions of import regulations 
issued under section 8e of the Act.
    This proposed rule would add a new Sec.  999.600 under 7 CFR part 
999--Specialty Crops; Import Regulations, and would establish quality 
requirements for maximum aflatoxin tolerance levels and mandatory 
testing and certification requirements for pistachios offered for 
importation into the United States. The proposed quality requirements 
for imported pistachios are the same as or comparable to those 
established for pistachios grown in California, Arizona, and New Mexico 
under Marketing Agreement and Order No. 983 (7 CFR part 983) (order), 
both as amended.
    This proposed rule would also revise Sec.  999.500, which currently 
specifies safeguard procedures for the importation of walnuts and dates 
that are exempt from Sec.  8e regulations. This section would be 
revised to include safeguard procedures for the importation of 
pistachios intended for exempted purposes.
    The order prohibits the shipping of pistachios for domestic human 
consumption that do not meet the quality requirements for aflatoxin 
levels in the nuts. Such quality requirements specify that aflatoxin 
levels may not exceed the maximum tolerance of 15 ppb. Pistachios that 
fail to meet these requirements must be reworked and retested, or 
disposed of as specified in the order. These regulations were designed 
to ensure that only high quality pistachios containing low levels of 
aflatoxin are shipped, thus promoting high quality product in the 
market place and fostering consumer satisfaction.
    The order, which was established for California pistachios in 2004, 
was recently amended to include the states of Arizona and New Mexico. 
Pistachios grown in California, Arizona, and New Mexico represent over 
99 percent of the U.S. domestic production, and 98 percent of the 
domestic consumption. Thus, almost all domestically produced pistachios 
are regulated under Marketing Order No. 983. There is no

[[Page 65412]]

other Federal marketing order in effect for pistachios produced in the 
United States.
    According to USDA's Foreign Agricultural Service (FAS), Iran is 
typically the world's largest pistachio producer, followed by the U.S. 
and Turkey, although Syria's production has increased in recent years. 
During the three most recent crop years (September through August) for 
which complete data is available, 2007-08 through 2009-10, the 
production averages in millions of pounds (inshell basis) for Iran, the 
U.S., Turkey, and Syria were approximately 386, 350, 120, and 141, 
respectively.
    Historically, the bulk of U.S. pistachio imports have come from 
Turkey and Iran, although Iranian imports have been prohibited since 
July 2010. The remainder comes from other countries, including Italy, 
China, Switzerland, France, Australia, Hong Kong, and Israel. Imported 
pistachios may be inshell or shelled. According to FAS, the U.S. 
imported an average of approximately 1.7 million pounds of pistachios 
(inshell basis) annually during the three crop years from 2007-08 
through 2009-10. Average U.S. consumption of pistachios during that 
same period was approximately 100 million pounds (inshell basis) 
annually. Imports, therefore, represent approximately two percent of 
U.S. pistachio consumption.

Proposed Requirements

Definitions

    The proposed regulations would include definitions of terms used in 
the import regulation. Such terms are the same as or comparable to 
those defined in the marketing order for domestic pistachios as 
established at 69 FR 17844 (April 5, 2004) and amended at 74 FR 56532 
(November 2, 2009).
    Under the proposed regulations, ``pistachio'' would mean the nut of 
the pistachio tree, Pistachia vera, whether inshell or shelled. 
``Importer'' would be defined as a person who imports pistachios into 
the United States. ``Aflatoxin'' would be defined as a mycotoxin that 
can be found in nuts, dried fruits, and grains. ``Aflatoxin inspection 
certificate'' would mean a certificate issued by a USDA or USDA-
accredited laboratory. ``USDA laboratory'' and ``USDA-accredited 
laboratory'' would be defined as laboratories authorized to test 
imported pistachios for aflatoxin content. ``Inspector'' would mean any 
inspector authorized by USDA to draw and prepare pistachio samples for 
testing. ``Lot'' would mean any quantity of pistachios submitted for 
testing. Other terms useful in the administration of the import 
regulation would also be defined.

Maximum Aflatoxin Tolerance

    The presence or absence of aflatoxin is considered a quality 
characteristic in pistachios \1\ because concerns about aflatoxin 
contamination can impact consumers' perception of the quality of 
pistachios, and therefore negatively impact demand. According to 
research provided by the industry, poor quality pistachios impact 
demand and the potential growth of demand for pistachios.\2\ Moreover, 
any market disturbances related to aflatoxin in pistachios, regardless 
of the origin of those pistachios, could have a detrimental effect on 
the pistachio industry.\3\
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    \1\ Gibbons, Jeff; 2002. Testimony in Pistachios Grown in 
California; Hearing on Proposed Marketing Agreement and Order No. 
983. Pages 326-359.
    \2\ Sumner, Daniel A; 2002. Testimony in Pistachios Grown in 
California; Hearing on Proposed Marketing Agreement and Order No. 
983. 2002. Pages 698-735 and 747-820.
    \3\ Reinecke, Karen; 2002. Testimony in Pistachios Grown in 
California; Hearing on Proposed Marketing Agreement and Order No. 
983. Pages 152-183.
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    The proposed regulations would establish a maximum aflatoxin 
tolerance level of 15 ppb for lots of pistachios imported into the U.S. 
for human consumption. As required under section 8e of the Act, this is 
the same level currently prescribed for domestic pistachios regulated 
under the order. Establishing a 15 ppb limit for aflatoxin in all 
pistachios marketed for human consumption in the United States is 
expected to bolster overall consumer confidence in pistachio quality 
and strengthen the demand for pistachios. Comparatively, the 
international Codex Alimentarius Commission's (Codex) maximum aflatoxin 
tolerance for pistachios is 10 ppb. The domestic pistachio industry 
believes that 15 ppb is appropriate to ensure the quality of pistachios 
sold in U.S. markets,\4\ Research also supports the 15 ppb 
tolerance.\5\ Additionally, a 15 ppb tolerance for aflatoxin in 
domestic and imported pistachios is consistent with existing 
regulations for all domestic and imported peanuts marketed in the 
United States, for which USDA has established a 15 ppb aflatoxin 
tolerance.\6\
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    \4\ Gibbons, Jeff; 2002. Testimony in Pistachios Grown in 
California; Hearing on Proposed Marketing Agreement and Order No. 
983. 2002. Pages 326-359.
    \5\ Eaton, David L.; Jennifer E. Hobden; and Bruce J. Kelman. 
2002. Aflatoxin in Pistachios: Establishing a Regulatory Action 
Level in Support of a Proposed Federal Marketing Order. 11 pages.
    \6\ 7 CFR part 996--Minimum Quality and Handling Standards for 
Domestic and Imported Peanuts Marketed in the United States.
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Aflatoxin Sampling and Testing Procedures

    The proposed regulations provide for aflatoxin sampling procedures 
based on lot size. Such sampling procedures are the same as or 
comparable to those established for domestic shipments, and mirror the 
sampling procedures prescribed for pistachio shipments to the European 
Union. At the discretion of the importer, pistachio lots arriving at a 
U.S. port of entry would be warehoused near the port or shipped inland 
to a pistachio handling facility to await aflatoxin sampling and 
testing. Importers would be responsible for any transportation or 
storage fees incurred. Depending on the size of the lot, a specified 
number of incremental samples would be pulled and combined to form a 
lot sample. The lot sample would then be divided into smaller test 
samples, depending upon the size of the lot to be tested. The required 
weight of lot samples and test samples differs between inshell 
pistachios and shelled kernels because of the additional weight of the 
shells for inshell pistachios. The drawing and dividing of all samples 
must be conducted by or under the supervision of a Federal or Federal-
State inspector.
    Following the drawing and dividing of samples, each sample would be 
properly identified and submitted to a USDA or USDA-accredited 
laboratory for analysis. Test samples would be prepared and analyzed 
using High Pressure Liquid Chromatography (HPLC) or the Vicam Method 
(Aflatest). The aflatoxin level would be calculated on a kernel weight 
basis.
    For lots of up to 4,400 lbs, one test sample would be analyzed. If 
the sample has an aflatoxin level at or below 15 ppb, the lot could be 
certified as negative for aflatoxin on the aflatoxin inspection 
certificate, which would be completed by the laboratory. If the 
aflatoxin level is greater than 15 ppb, the lot fails, and the 
laboratory would fill out a failed lot notification report for 
submission to the importer, the U.S. Customs and Border Protection 
(Customs), and USDA.
    For lots of more than 4,400 lbs, two test samples would be 
prepared. If the first sample has an aflatoxin level at or below 10 
ppb, the lot could be certified as negative for aflatoxin on the 
aflatoxin inspection certificate. Analysis of the other test sample 
would be unnecessary.

[[Page 65413]]

If the aflatoxin level of the first test sample is above 20 ppb, the 
lot fails, and the laboratory would fill out a failed lot notification 
report for submission to the importer, Customs, and USDA. If the 
aflatoxin level of the first test sample is higher than 10 ppb and at 
or below 20 ppb, the importer could elect to test the second sample or 
rework the lot and resubmit it for testing. If the importer chooses to 
proceed with testing the second sample, the results from testing both 
samples would be averaged. If the average results are at or below 15 
ppb, the lot may be certified negative for aflatoxin. If the average 
results are higher than 15 ppb, the lot fails and the accredited lab 
would submit a failed lot notification report to the importer, Customs, 
and USDA. If the importer chooses to rework the lot after the first 
sample is analyzed, the lot would again be subject to sampling and 
testing as if it were a new lot.
    If an aflatoxin inspection certificate is issued certifying that a 
lot is negative for aflatoxin at any stage of the sequential testing 
(meaning that the lot's aflatoxin content is below the maximum 
threshold), the certification would state that the lot meets the Sec.  
8e import aflatoxin requirements. The certification would expire after 
12 months.
    Upon notification of any failed lot, the importer would work with 
Customs to determine the appropriate disposition of the pistachios. 
Pistachios that fail to meet the aflatoxin requirements would be 
required to be sold for non-human consumption, exported to another 
destination with a higher aflatoxin tolerance, or disposed of under the 
supervision of Customs, and the Federal or Federal-State Inspection 
Programs could be called upon to verify disposals. Any costs associated 
with certifying a disposal would be paid by the importer.

Rework Procedures

    Although reworking and retesting of a failed lot would not be 
required, importers could opt to take those steps, which would provide 
them with an opportunity to secure a return for their imported product 
while maintaining the integrity of the aflatoxin requirements. The 
alternative would be to dispose of the lot through proper channels as 
described above. The rework procedures described below are the same as 
or comparable to those required for domestic pistachios under the 
order.
    Inshell pistachios. Rework procedures for inshell pistachios 
failing to meet aflatoxin requirements would require importers to 
remove 100 percent of the failing lot from its bulk or retail 
packaging. These pistachios would be required to pass through the 
sorting stages of the handling process in order to remove those nuts 
having the characteristics most susceptible to harboring aflatoxin. 
After reworking the lot, the importer would report the weight of the 
total accepted and rejected product to Customs and USDA on a rework and 
failed lot disposition report, and the acceptable portion of the 
reworked lot would be resampled and tested for aflatoxin. In the case 
of a reworked lot, the lot sample size and the test sample size would 
be doubled from that specified in the initial testing. If, after having 
been reworked, the lot fails aflatoxin testing for a second time, the 
lot could be shelled and the kernels reworked, sampled, and tested in 
the manner required for an original lot of pistachio kernels. If the 
importer decides not to pursue further reworking of the failed lot, 
those pistachios would be prohibited from entering the stream of 
commerce for domestic human consumption. The lot must be exported, sold 
for domestic non-human consumption purposes, or disposed of as 
described above. The importer would report the lot's final disposition 
to Customs and USDA on a rework and failed lot disposition report.
    Shelled pistachios. Rework procedures proposed for pistachio 
kernels failing to test negative for aflatoxin would also require a 
reprocessing of 100 percent of the volume of the failing lot. As with 
inshell pistachios, after reworking, the total weight of the accepted 
product and the total weight of the rejected product would be reported 
by the importer to Customs and USDA on the rework and failed lot 
disposition report. The reworked lot of kernels would be resampled and 
retested for aflatoxin content as previously described.

Comingling

    Importers could comingle certified lots with other certified lots 
of pistachios. However, to maintain the integrity of certified lots, 
the comingling of certified and uncertified lots of pistachios would 
cause the loss of certification for the comingled lots.

Exemptions

    Section 983.70 of the marketing order provides that domestic 
handlers may handle pistachios free of the regulatory and assessment 
provisions of the order if such pistachios are handled in quantities 
not exceeding 5,000 dried pounds during any production year. The 
purpose of this provision is to provide an exemption from the 
requirements of the order for small quantities of pistachios such as 
those that are grown for home or personal use. Further, this exemption 
is applied on a production year basis. Accordingly, under the proposed 
import regulation, a comparable 5,000-pound exemption would apply to 
all shipments of pistachios imported for human consumption. Also, 
substandard pistachios imported for use in non-human consumption 
outlets would not be subject to the proposed aflatoxin regulations.

Compliance

    Any importer who violates any provision of the proposed import 
regulations would be subject to a forfeiture in the amount prescribed 
in section 608a(5) of the Act (7 U.S.C. 601-674), or, upon conviction, 
penalties in the amounts prescribed in section 608c(14) of the Act, or 
to both forfeiture and penalty. False representation to any agency of 
the United States on any matter within its jurisdiction, knowing it to 
be false, is a violation of 18 U.S.C. 1001, which provides for a fine 
or imprisonment or both.

Safeguards

    Safeguard procedures in the form of importer and receiver reporting 
requirements would be used to ensure that substandard pistachios 
imported for purposes other than human consumption would be used only 
in authorized outlets exempt from the proposed aflatoxin regulations. 
The safeguard procedures would be comparable to those currently 
specified for the importation of other exempted commodities. Under the 
proposed regulations, importers and receivers of pistachios for other 
than human consumption purposes would be required to complete and 
submit to USDA an Importer's Exempt Commodity Form (Form FV-6), the 
generic form used by importers and receivers of other exempted 
commodities. The information provided on Form FV-6 would be used by 
USDA to track pistachios marketed for exempted uses.
    The provisions of this proposed rule would establish maximum 
aflatoxin tolerance levels and mandatory testing and certification 
requirements for lots of pistachios offered for importation into the 
United States. The proposed import quality requirements would be 
implemented in accordance with section 8e of the Act. These provisions 
are intended to ensure that pistachios imported into the United States 
for the purposes of domestic human consumption are of a quality 
comparable to those pistachios regulated under Marketing Order No.

[[Page 65414]]

983 and contain no more than 15 ppb of aflatoxin.

Initial Regulatory Flexibility Analysis

    Pursuant to the 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 proposed rule 
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. Import regulations issued under 
the Act are based on those established under Federal marketing orders.
    Small agricultural service firms, which include importers and 
receivers, have been defined by the Small Business Administration (SBA) 
(13 CFR 121.201) as those having annual receipts of less than 
$7,000,000.
    AMS estimates that the there are approximately 50 importers and 
receivers who handled shipments of pistachios into the United States 
between 2007 and 2009. About 10 of the 50 firms are also substantially 
engaged in the marketing of U.S. grown pistachios, and are large firms 
according to the SBA definition. Most of the remaining 40 firms import 
a number of different food products, and most are also likely to be 
large firms under the SBA definition, even though they generally import 
only small quantities of pistachios. There are also nine USDA-
accredited laboratories in California that perform aflatoxin testing 
for pistachios. AMS estimates that four of the nine laboratories would 
be considered small firms according to the SBA definition.
    Turkey and Iran have historically been the source of most 
pistachios imported into the U.S. Turkish pistachios are imported 
predominantly in the shell, while Iranian pistachios are typically 
imported shelled. Imported pistachios also come from Italy, China, 
Switzerland, France, Australia, Hong Kong, and Italy. Most pistachios 
imported from other nations are also shelled. The proposed import 
regulations would establish protocols for aflatoxin analysis for both 
inshell and shelled pistachios.
    Section 8e of the Act provides that when certain domestically 
produced commodities, including pistachios, are regulated under a 
Federal marketing order, imports of that commodity must meet the same 
or comparable grade, quality, size, and maturity requirements.
    This rule would establish a minimum quality requirement for lots of 
imported pistachios by specifying a maximum aflatoxin tolerance level 
as well as aflatoxin testing and certification requirements. Importers 
would be responsible for arranging for the required transportation, 
storage, sampling, testing, and certification of such pistachios prior 
to importation. Sampling would be conducted by the Federal or Federal-
State inspection services, and aflatoxin testing and certification 
would be performed by USDA or USDA-accredited laboratories.
    The proposed import aflatoxin testing and certification 
requirements are the same as or comparable to those implemented under 
the order regulating the handling of pistachios grown in California, 
Arizona, and New Mexico. Pistachios failing to meet the aflatoxin 
requirements on initial analysis could be reworked and retested, 
exported to another destination with a higher aflatoxin tolerance, or 
disposed of in authorized outlets under the supervision of Customs, 
with assistance from the inspection service if necessary, to verify 
proper disposal of substandard nuts. Procedures for these activities 
also are proposed. Lots of imported pistachios that fail aflatoxin 
testing could be diverted to certain non-human consumption outlets and 
would be subject to the safeguard provisions of Sec.  999.500. Some 
reporting and recordkeeping requirements also are proposed in the 
pistachio import regulation. These requirements also are the same as or 
comparable to those implemented under the order.
    The cost of testing pistachios for aflatoxin would vary, depending 
on such factors as the location of the port of entry and the size of 
the lot to be tested. For purposes of estimating an average per-pound 
testing expense for imported pistachios, this analysis assumes an 
average lot equal to one container load weighing 16,000 pounds of 
inshell pistachios arriving at the Port of San Francisco and being 
tested for aflatoxin by an accredited laboratory in Fresno, California.
    In the following example computation of testing costs, there are 
four elements: (1) A fee (at an hourly rate) charged by the inspection 
fee to draw the sample, (2) overnight shipping, (3) a fee charged by 
the laboratory to determine the level of aflatoxin, and (4) the ``unit 
value'' of the quantity of pistachios drawn for the sample. The unit 
value used in this example computation is the average for the last 3 
complete marketing years for which import data are available, 2007/08-
2009/10. The unit value for the 3-year period ($1.68 per pound) is 
computed by dividing the average 3-year import value ($2,900,000) by 
the average import quantity (1,725,000 pounds). Data are from FAS.
    The inspection service fee of $74 per hour is multiplied by the 
estimated time of 2 hours to draw a sample, for a cost of $148. The 
overnight shipping cost and laboratory fee are estimated at $200 and 
$100, respectively.
    The next step in the example computation is value of pistachios 
drawn for the sample. Under the new proposed section 996.600, in 
section (d) Sampling, the weight of a lot sample is 16 kilograms 
(equivalent to 35.3 pounds) for a lot weighing between 11,001 and 
22,000 pounds. Multiplying 35.3 pounds times the unit value of imported 
pistachios ($1.68) yields a value of the tested sample of approximately 
$59. Assuming that aflatoxin certification of the 16,000-pound lot 
requires the testing of only one sample, the sum of the four cost 
elements would be $507, or approximately 3.2 cents per pound 
(approximately two percent of the unit value of imported pistachios).
    It is likely that a pistachio lot arriving at the Port of San 
Francisco would be transported to an inland handling facility to await 
sampling and testing and would incur no additional storage costs. 
However, if the lot is stored at a Customs warehouse near the port, 
storage fees ranging between $100 and $500 per day could be incurred 
while the samples are analyzed. Analysis and certification is estimated 
to require between two to five days. Assuming a three day turnaround 
for a lot incurring $200 per day storage fees, approximately $600, or 
3.75 cents per pound of pistachios could be added to the testing 
expense described above.
    Regarding the impact of this proposed rule on affected entities, 
this proposal would establish an import regulation for pistachios as 
provided in section 8e of the Act. The proposed import regulation would 
require importers to arrange for the testing and certification of all 
imports of pistachios for human consumption prior to importation. There 
would be some increased costs to importers associated with the testing 
and certification of imported product. However, it is expected that 
consumer satisfaction, and therefore demand, would be increased by 
regulating imports and domestic product uniformly. The additional costs 
are expected to be offset by the benefits of supplying the U.S. 
marketplace with only high quality pistachios. As

[[Page 65415]]

mentioned above, the proposed import regulations are the same as or 
comparable to those established for U.S. domestic pistachio shipments. 
The domestic industry recently adopted aflatoxin sampling and testing 
procedures that align with the Codex Alimentarius Commission's (Codex) 
sampling plan (75 FR 43045; July 23, 2010). The Codex sampling plan is 
used by the European Commission as its regulation for the importation 
of tree nuts into the European Union. Thus, the proposed import 
regulations are comparable to those widely recognized by international 
pistachio markets.
    Industry information suggests that when aflatoxin levels in 
imported lots of pistachios exceed the FDA maximum tolerance of 20 ppb, 
the levels are generally significantly higher than 20 ppb. Very few 
lots test between 15 ppb and 20 ppb. It is anticipated that most 
imported lots will test below the proposed 15 ppb tolerance. Thus, 
establishing a maximum aflatoxin tolerance of 15 ppb for imported 
pistachios is not expected to have a significant impact on trade.
    The alternative to this action is to continue to allow pistachios 
to be imported without having to meet aflatoxin requirements the same 
as or comparable to those established for domestic pistachios. However, 
the import regulations are necessary to ensure that imported and 
domestic pistachios for human consumption in the United States are of 
uniformly high quality. Further, the Act requires that import 
regulations be issued whenever marketing order regulations are 
established for pistachios. Therefore, this alternative is not 
appropriate.
    The additional reporting and recordkeeping requirements that would 
be imposed under this proposed rule are discussed in more detail below. 
Reports and forms required under the pistachio import regulation will 
be periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies.
    Additionally, except for the applicable domestic regulations, USDA 
has not identified any relevant Federal rules that duplicate, overlap, 
or conflict with this proposed rule.
    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/MarketingOrdersSmallBusinessGuide. Any questions 
about the compliance guide should be sent to Laurel May at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    In accordance with section 8e of the Act, the United States Trade 
Representative has concurred with the issuance of this proposed rule.
    Interested persons are invited to comment on this initial 
regulatory flexibility analysis and submit information on the 
regulatory and informational impacts this proposed action would likely 
have on small businesses. A 60-day period for comments is provided. All 
written comments received within the comment period will be considered 
before a final determination is made on this matter.
    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.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
chapter 35), this notice announces that AMS is requesting OMB approval 
of a new information collection under OMB No. 0581-NEW. Upon approval 
of this new information collection by OMB, a request will be made to 
merge this collection with the forms currently approved for use under 
OMB No. 0581-0215, Pistachios Grown in California, Arizona, and New 
Mexico.
    Title: Pistachios Imported Into the United States.
    OMB Number: 0581-New.
    Type of Request: New information collection.
    Abstract: The information collection requirements contained in this 
request are necessary in the administration of proposed regulations for 
pistachios imported into the United States. Such regulations are 
authorized under Section 8e of the Agricultural Marketing Agreement Act 
of 1937 (Act), as amended (7 U.S.C. 601-674), which requires that 
whenever the Secretary of Agriculture issues grade, size, quality, or 
maturity regulations under domestic marketing orders for certain 
commodities, the same or comparable regulations on imports of those 
commodities must be issued.
    The proposed rule would establish mandatory aflatoxin testing and 
certification requirements for pistachios offered for importation into 
the United States. These requirements would be the same as or 
comparable to those established under Marketing Order No. 983 
regulating the handling of pistachios grown in California, Arizona, and 
New Mexico.
    Under the proposed regulation, laboratories that perform chemical 
analysis of aflatoxin content for imported pistachios would be required 
to report any lots that fail aflatoxin testing. The Imported 
Pistachios--Failed Lot Notification Report (FV-249) would be completed 
by the laboratory and submitted to the importer, Customs, and USDA 
within 10 days of the failed test. This report would contain 
information about the failed lot, including its identity and the 
aflatoxin level determined during analysis of the lot.
    Under the proposed regulations, importers would be required to 
report the disposition of any failed lots, including those that are 
reworked to meet the aflatoxin requirements, on the Imported 
Pistachios--Rework and Failed Lot Disposition Report (FV-251). This 
report would contain information about the quantity of nuts that were 
accepted and rejected during rework, and would be used to report the 
disposition of any pistachios failing aflatoxin testing. Importers 
would be required to complete and submit the form to Customs and USDA 
within 10 days of reworking the lot.
    USDA and Customs would use the two reports described above to track 
pistachio lots being offered for importation into the United States and 
follow up on the disposition of failing lots to ensure that pistachios 
with aflatoxin levels exceeding the maximum tolerance of 15 ppb are not 
shipped to domestic human consumption markets.
    Safeguard procedures in the form of importer and receiver reporting 
requirements would be used to ensure that shipments of pistachios 
exempt from the import regulations are disposed of only in authorized 
exempt outlets. Under the proposed import regulations, importers of 
exempt imported pistachios would be required to complete and submit, 
prior to importation, an Importer's Exempt Commodity Form (FV-6). Form 
FV-6 would be used for tracking pistachios marketed for exempted uses 
that do not meet requirements for human consumption. Form FV-6 is an 
electronic form available through AMS, is used by importers of other 
commodities to report imports of exempted products, and is already 
approved by OMB through December 31, 2011 (OMB Control Number 0581-
0167--Specified Commodities Imported into the United States Exempt From 
Import Regulations). Importers and receivers register as users of the 
electronic form and then are granted access to the reporting system. 
Receivers use the same system to certify that the commodity has been 
received and that

[[Page 65416]]

it will be utilized for authorized exempt purposes.
    The two new forms require the minimum amount of information 
necessary to effectively carry out the requirements of the Act, and 
their use is necessary to fulfill the intent of the Act and to 
administer section 8e compliance activities. These reports and the 
safeguard procedures outlined above are the same as or comparable to 
the reports and procedures currently required by other domestic 
marketing orders and import regulations.
    The information collected on these forms is used primarily by 
authorized representatives of USDA, including AMS, Fruit and Vegetable 
Programs' regional and headquarters staff. AMS is the primary user of 
the information.
    The proposed request for a new information collection under the 
pistachio import regulations is as follows:

Imported Pistachios--Failed Lot Notification--Form FV-New

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 12 minutes per response.
    Respondents: USDA and USDA-accredited Laboratories.
    Estimated Number of Respondents: 7.
    Estimated Number of Responses per Respondent: 4.
    Estimated Total Annual Burden on Respondents: 5.6 hours.

Imported Pistachios--Rework and Failed Lot Disposition Report--Form FV-
New

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 12 minutes per response.
    Respondents: Importers of pistachios failing aflatoxin testing.
    Estimated Number of Respondents: 10.
    Estimated Number of Responses per Respondent: 3.
    Estimated Total Annual Burden on Respondents: 6.0 hours.
    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 through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology. Comments should reference OMB 
No. 0581-NEW and the pistachio import regulations, and be sent to USDA 
in care of the Docket Clerk at the previously mentioned address. All 
comments received will be available for public inspection during 
regular business hours at the same address.

List of Subjects in 7 CFR Part 999

    Dates, Filberts, Food grades and standards, Imports, Nuts, Prunes, 
Raisins, Reporting and recordkeeping requirements, Walnuts.

    For the reasons set forth above, 7 CFR Part 999 is proposed to be 
amended as follows:

PART 999--SPECIALTY CROPS; IMPORT REGULATIONS

    1. The authority citation for 7 CFR Part 999 continues to read as 
follows:

    Authority:  7 U.S.C. 601-674.

    2. Amend Sec.  999.500 by revising the section heading and 
paragraphs (a) and (d) to read as follows:


Sec.  999.500  Safeguard procedures for walnuts, certain dates, and 
pistachios exempt from grade, size, quality, and maturity requirements.

    (a) Each person who imports or receives any of the commodities 
listed in paragraphs (a)(1) through (3) of this section shall file an 
``Importer's Exempt Commodity Form'' (FV-6) with the Marketing Order 
and Agreement Division, Fruit and Vegetable Programs, AMS, USDA, and 
shall provide a printed copy of the completed Form FV-6 to the U.S. 
Customs and Border Protection Regional Director or District Director, 
as applicable, at the port at which the customs entry is filed. A 
printed copy shall accompany the lot to the exempt outlet specified on 
the form. Any lot of any commodity offered for inspection or aflatoxin 
testing and, all or a portion thereof, subsequently imported as exempt 
under this provision shall also be reported on an ``Importer's Exempt 
Commodity Form.'' Such form, accompanied by a copy of the applicable 
inspection certificate, shall be provided to the Marketing Order and 
Agreement Division. The applicable commodities are:
    (1) Dates which are donated to needy persons, prisoners or Native 
Americans on reservations;
    (2) Walnuts which are: Green walnuts (so immature that they cannot 
be used for drying and sale as dried walnuts); walnuts used in non-
competitive outlets such as use by charitable institutions, relief 
agencies, governmental agencies for school lunch programs, and 
diversion to animal feed or oil manufacture; or
    (3) Substandard pistachios which are for non-human consumption 
purposes.
* * * * *
    (d) All FV-6 forms and other correspondence regarding entry of 8e 
commodities must be submitted online, mailed or faxed to the Marketing 
Order and Agreement Division, Fruit and Vegetable Programs, AMS, USDA, 
1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; 
Telephone (202) 720-4607; or Fax (202) 720-5698. FV-6 forms submitted 
by FAX must be followed by a mailed, original copy of the FV-6.
    3. Add Sec.  999.600 to read as follows:


Sec.  999.600  Regulation governing the importation of pistachios.

    (a) Definitions. (1) Aflatoxin is one of a group of mycotoxins 
produced by the molds Aspergillus flavus and Aspergillus parasiticus. 
Aflatoxins are naturally occurring compounds produced by molds, which 
can be spread in improperly processed and stored nuts, dried fruits, 
and grains.
    (2) Aflatoxin inspection certificate means a certificate issued by 
a USDA or USDA-accredited laboratory.
    (3) Certified lots of pistachios are those for which aflatoxin 
inspection certificates have been issued.
    (4) Customs means the U.S. Customs and Border Protection.
    (5) Importation of pistachios means the release of pistachios from 
the custody of U.S. Customs and Border Protection.
    (6) Importer means a person who engages in the importation of 
pistachios into the United States.
    (7) Inshell pistachios means pistachios that have shells that have 
not been removed.
    (8) Inspection Service means the Federal Inspection Service, Fruit 
and Vegetable Programs, Agricultural Marketing Service, USDA, or the 
Federal-State Inspection Programs.
    (9) Inspector means any inspector authorized by USDA to draw and 
prepare pistachio samples.
    (10) Lot means any quantity of pistachios that is submitted for 
testing purposes under this part.
    (11) Person means an individual, partnership, limited-liability 
corporation, corporation, trust, association, or any other business 
unit.
    (12) Pistachio means the nut of the pistachio tree, Pistachia vera, 
whether inshell or shelled.
    (13) Secretary means the Secretary of Agriculture of the United 
States or any

[[Page 65417]]

officer or employee of the United States Department of Agriculture who 
is, or who may hereafter be, authorized to act in his/her stead.
    (14) Shelled pistachios means pistachio kernels, or portions of 
kernels, after the pistachio shells have been removed.
    (15) Substandard pistachios means pistachios, inshell or shelled, 
that do not comply with the aflatoxin regulations of this section.
    (16) USDA means the United States Department of Agriculture, 
including any officer, employee, service, program, or branch of the 
Department of Agriculture, or any other person acting as the 
Secretary's agent or representative in connection with any provisions 
of this section.
    (17) USDA laboratory means laboratories of the Science and 
Technology Programs, Agricultural Marketing Service, USDA, that perform 
chemical analyses of pistachios for aflatoxin content.
    (18) USDA-accredited laboratory means a laboratory that has been 
approved or accredited by the U.S. Department of Agriculture to perform 
chemical analyses of pistachios for aflatoxin content.
    (b) Importation requirements. The importation of any lot of 
pistachios for human consumption is prohibited unless it meets the 
requirements contained in this section, which are determined to be the 
same as or comparable to those imposed upon domestic pistachios handled 
pursuant to Order No. 983, as amended (part 983 of this chapter).
    (c) Maximum aflatoxin tolerance. No importer shall ship for 
domestic human consumption lots of pistachios that exceed an aflatoxin 
level of 15 ppb. Compliance with the aflatoxin requirements of this 
section shall be determined upon the basis of sampling by a USDA-
authorized inspector and testing by a USDA or USDA-accredited 
laboratory. All shipments must be covered by an aflatoxin inspection 
certificate issued by the laboratory. Testing and certification must be 
completed prior to the importation of pistachios.
    (d) Sampling. (1) Prior to, or upon, arrival of a pistachio lot at 
a port of entry, the importer shall provide a copy of the Customs entry 
documentation for the pistachio lot or lots to the Inspection Service 
office that will draw and prepare samples of the pistachio shipment. 
More than one lot may be listed on one entry document. The 
documentation shall include: The Customs entry number; the container 
number(s) or other identification of the lot(s); the weight of the 
pistachios in each lot being imported, the location where the lot will 
be made available for sampling; and a contact name or telephone number 
at the testing location. The Inspection Service shall sign, stamp, and 
return the entry document to the importer. The importer shall provide a 
copy of the relevant entry documentation and such other identifying 
information as may be requested for each pistachio lot to the inspector 
at the time samples are drawn and prepared.
    (2) All sampling for aflatoxin testing shall be performed by USDA-
authorized inspectors in accordance with USDA rules and regulations 
governing the inspection and certification of fresh fruits, vegetables, 
and other products (7 CFR part 51). The cost of each such sampling and 
related certification shall be borne by the applicant. Whenever 
pistachios are offered for sampling and testing, the applicant shall 
furnish any labor and pay any costs incurred for storing, moving, and 
opening containers as may be necessary for proper sampling and testing. 
The applicant should make advance arrangements with the Inspection 
Service to avoid delay in scheduling sampling. Importers may make 
arrangements for required sampling by contacting the Inspection Service 
office closest to where the pistachios will be made available for 
sampling. For questions regarding inspection services, a list of 
Federal or Federal-State Inspection Program offices, or for further 
assistance, importers may contact: Fresh Products Branch, Fruit and 
Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., Room 
1536-S, Washington, DC, 20250; Telephone: (202) 720-5870; Fax: (202) 
720-0393.
    (3) Lot samples shall be drawn from each lot of pistachios 
designated for aflatoxin testing, and individual test samples shall be 
prepared by, or under the supervision of, an inspector. Each sample 
shall be drawn and prepared in accordance with the sample size 
requirements outlined in Tables 1 and 2 below. The gross weight of the 
inshell lot and test samples for aflatoxin testing and the minimum 
number of incremental samples required are shown in Table 1. The gross 
weight of the kernel lot and test samples for aflatoxin testing and the 
minimum number of incremental samples required is shown in Table 2. If 
more than one test sample is necessary, the test samples shall be 
designated by the inspector as Test Sample 1 and Test Sample 
2. Each sample shall be placed in a suitable container, with 
the lot number clearly identified, and the importer shall submit it, 
along with a copy of the customs entry documentation, to a USDA or 
USDA-accredited laboratory. The importer shall assume all costs for 
shipping samples to the laboratory.

                 Table 1--Inshell Pistachio Lot Sampling Increments for Aflatoxin Certification
----------------------------------------------------------------------------------------------------------------
                                                             Minimum number
                                                             of incremental   Total weight  of   Weight of  test
                     Lot weight (lbs.)                      samples for  the     lot sample          sample
                                                               lot sample        (kilograms)       (kilograms)
----------------------------------------------------------------------------------------------------------------
220 or less...............................................                10               2.0               2.0
221-440...................................................                15               3.0               3.0
441-1,100.................................................                20               4.0               4.0
1,101-2,200...............................................                30               6.0               6.0
2,201-4,400...............................................                40               8.0               8.0
4,401-11,000..............................................                60              12.0               6.0
11,001-22,000.............................................                80              16.0               8.0
22,001-150,000............................................               100              20.0              10.0
----------------------------------------------------------------------------------------------------------------


[[Page 65418]]


              Table 2--Shelled Pistachio Kernel Lot Sampling Increments for Aflatoxin Certification
----------------------------------------------------------------------------------------------------------------
                                                             Minimum number
                                                             of incremental   Total weight  of   Weight of  test
                     Lot weight (lbs.)                       samples for the     lot sample          sample
                                                               lot sample        (kilograms)       (kilograms)
----------------------------------------------------------------------------------------------------------------
220 or less...............................................                10               1.0               1.0
221-440...................................................                15               1.5               1.5
441-1,100.................................................                20               2.0               2.0
1,101-2,200...............................................                30               3.0               3.0
2,201-4,400...............................................                40               4.0               4.0
4,401-11,000..............................................                60               6.0               3.0
11,001-22,000.............................................                80               8.0               4.0
22,001-150,000............................................               100              10.0               5.0
----------------------------------------------------------------------------------------------------------------

    (e) Aflatoxin testing. Importers may make arrangements for required 
chemical analysis for aflatoxin content at the nearest USDA or USDA-
accredited laboratory. For further information concerning chemical 
analysis and a list of laboratories authorized to conduct such analysis 
contact: Science and Technology Programs, AMS, USDA, 1400 Independence 
Avenue, SW., STOP 0270, Washington, DC 20250-0270; Telephone: (202) 
720-5231; Fax: (202) 720-6496.
    (1) Aflatoxin test samples shall be received and logged by a USDA 
or USDA-accredited laboratory, and each test sample shall be prepared 
and analyzed using High Pressure Liquid Chromatography (HPLC) or the 
Vicam Method (Aflatest). The aflatoxin level shall be calculated on a 
kernel weight basis.
    (2) Lots that require a single test sample will be certified as 
``negative'' on the aflatoxin inspection certificate if the sample has 
an aflatoxin level at or below 15 ppb. If the aflatoxin level is above 
15 ppb, the lot fails and the laboratory shall fill out an Imported 
Pistachios--Failed Lot Notification report (Form FV-249) as described 
in paragraph (h)(1) of this section.
    (3) Lots that require two test samples will be certified as 
``negative'' on the aflatoxin inspection certificate if Test Sample 
1 has an aflatoxin level at or below 10 ppb. If the aflatoxin 
level of Test Sample 1 is above 20 ppb, the lot fails and the 
laboratory shall fill out an Imported Pistachios--Failed Lot 
Notification report (Form FV-249). If the aflatoxin level of Test 
Sample 1 is above 10 ppb and at or below 20 ppb, the 
laboratory may, at the importer's discretion, analyze Test Sample 
2 and average the test results of Test Samples 1 and 
2. Alternately, the importer may elect to withdraw the lot 
from testing, rework the lot, and resubmit it for testing after 
reworking. If the importer directs the laboratory to proceed with the 
analysis of Test Sample 2, a lot will be certified as negative 
to aflatoxin and the laboratory shall issue an aflatoxin inspection 
certificate if the averaged result of Test Samples 1 and 
2 is at or below 15 ppb. If the average aflatoxin level of 
Test Samples 1 and 2 is above 15 ppb, the lot fails 
and the laboratory shall fill out an Imported Pistachios--Failed Lot 
Notification report (Form FV-249).
    (4) If an importer does not elect to use Test Sample 2 for 
certification purposes, the importer may request that the laboratory 
return the sample to the importer.
    (f) Certification. Each lot of pistachios sampled and tested in 
accordance with paragraphs (d) and (e) of this section shall be covered 
by an aflatoxin inspection certificate completed by the laboratory. The 
certification expires for the lot or remainder of the lot after 12 
months. Each such certificate shall set forth the following:
    (1) The date and place of sampling and testing.
    (2) The name of the applicant.
    (3) The Customs entry number pertaining to the lot or shipment 
covered by the certificate.
    (4) The quantity and identifying marks of the lot tested.
    (5) The aflatoxin level of the lot, stated on a kernel weight 
basis.
    (6) The statement, if applicable: ``Meets U.S. import requirements 
under section 8e of the AMA Act of 1937.''
    (7) If the lot fails to meet the import requirements, a statement 
to that effect and the reasons therefore.
    (g) Failed lots/rework procedure. Any lot or portion thereof that 
fails to meet the import requirements prior to or after reconditioning 
may be exported, sold for non-human consumption, or disposed of under 
the supervision of Customs and, if necessary for verification purposes, 
the Federal or Federal-State Inspection Programs, with the costs of 
certifying the disposal of such lot paid by the importer.
    (1) Inshell rework procedure for aflatoxin. If inshell rework is 
selected as a remedy to meet the aflatoxin requirements of this part, 
then 100 percent 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 by the importer to Customs and USDA 
on an Imported Pistachios--Rework and Failed Lot Disposition report 
(Form FV-251) as described in paragraph (h)(2) of this section. The 
reworked lot shall be sampled and tested for aflatoxin as specified in 
paragraphs (d) and (e) of this section, 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 exported, used for non-human consumption, or otherwise disposed of.
    (2) Kernel rework procedure for aflatoxin. If pistachio kernel 
rework is selected as a remedy to meet the aflatoxin requirements of 
this part, then 100 percent 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 Customs and USDA on an 
Imported Pistachios--Rework and Failed Lot Disposition report (Form FV-
251). The reworked lot shall be sampled and tested for aflatoxin

[[Page 65419]]

as specified in paragraphs (d) and (e) of this section.
    (3) Failed lot reporting. If a lot fails to meet the aflatoxin 
requirements of this part, the testing laboratory shall complete an 
Imported Pistachios--Failed Lot Notification report (Form FV-249) as 
described in paragraph (h)(1) of this section, and shall submit it to 
Customs, the importer, and USDA within 10 working days of the test 
failure. This form must be completed and submitted each time a lot 
fails aflatoxin testing.
    (h) Reports and recordkeeping. (1) Form FV-249 Imported 
Pistachios--Failed Lot Notification. Each USDA or USDA-accredited 
laboratory shall notify the importer; Customs; and the Marketing Order 
and Agreement Division, Fruit and Vegetable Programs, AMS, USDA; of all 
lots that fail to meet the maximum aflatoxin requirements by completing 
this form and submitting it within 10 days of failed aflatoxin testing.
    (2) Form FV-251 Imported Pistachios--Rework and Failed Lot 
Disposition. Each importer who reworks a failing lot of pistachios 
shall complete this report and shall forward it to Customs and the 
Marketing Order and Agreement Division, Fruit and Vegetable Programs, 
AMS, USDA, no later than 10 days after the rework is completed. If 
rework is not selected as a remedy, the importer shall complete and 
submit this form within 10 days of alternate disposition of the lot.
    (i) Exemptions. Any importer may import pistachios free of the 
requirements of this section if such importer imports a quantity not 
exceeding a total of 5,000 dried pounds between September 1 and August 
31 of each year. Substandard pistachios imported for use in non-human 
consumption outlets shall be subject to the safeguard provisions 
contained in Sec.  999.500.
    (j) Reconditioning prior to importation. Nothing contained in this 
section shall be deemed to preclude reconditioning pistachios prior to 
importation, in order that such pistachios may be made eligible to meet 
the applicable aflatoxin regulations prescribed in paragraphs (c) 
through (f) of this section.
    (k) Comingling. Certified lots of pistachios may be comingled with 
other certified lots, but the comingling of certified lots and 
uncertified lots shall cause the loss of certification for the 
comingled lots.
    (l) Retesting. Whenever USDA has reason to believe that imported 
pistachios may have been damaged or deteriorated while in storage, USDA 
may reject the then effective inspection certificate and may require 
the owner of the pistachios to have them retested to establish whether 
or not such pistachios may be shipped for human consumption.
    (m) Compliance. Any person who violates any provision of this 
section shall be subject to a forfeiture in the amount prescribed in 
section 8a(5) of the Agricultural Marketing Agreement Act of 1937, as 
amended; 7 U.S.C. 601-674), or, upon conviction, a penalty in the 
amount prescribed in section 8c(14) of the said Act, or to both such 
forfeiture and penalty. False representation to any agency of the 
United States on any matter within its jurisdiction, knowing it to be 
false, is a violation of 18 U.S.C. 1001, which provides for a fine or 
imprisonments or both.
    (n) Other import requirements. The provisions of this section do 
not supersede any restrictions or prohibitions on pistachios under the 
Federal Plant Quarantine Act of 1912, or any other applicable laws or 
regulations of city, county, State, or Federal Agencies including the 
Federal Food, Drug and Cosmetic Act.

    Dated: October 14, 2011.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2011-27285 Filed 10-20-11; 8:45 am]
BILLING CODE 3410-02-P