[Federal Register Volume 83, Number 195 (Tuesday, October 9, 2018)]
[Rules and Regulations]
[Pages 50475-50477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21845]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 
 ========================================================================
 

  Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / 
Rules and Regulations  

[[Page 50475]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 51

[Document Number AMS-FV-14-0101, SC-17-331]


United States Standards for Grades of Pecans

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Direct final rule.

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

SUMMARY: The Agricultural Marketing Service (AMS) is amending the U.S. 
Standards for Grades of Shelled Pecans and the U.S. Standards for 
Grades of Pecans in the Shell. The revisions include replacing the term 
``midget'' with ``extra small'' in the Shelled Pecan standards and 
removing references to plastic models of pecan kernels and information 
on where the color standards may be examined from both standards.

DATES: This direct final rule is effective December 10, 2018; without 
further action or notice, unless significant adverse comment is 
received by November 8, 2018. If significant adverse comment is 
received, AMS will publish a timely withdrawal of this rule in the 
Federal Register.

ADDRESSES: Interested persons are invited to submit written comments to 
the USDA, Specialty Crops Inspection Division, 100 Riverside Parkway, 
Suite 101, Fredericksburg, VA 22406; fax: (540) 361-1199; or at 
www.regulations.gov. Comments should reference the date and page number 
of this issue of the Federal Register, and will be made available for 
public inspection in the above office during regular business hours. 
Comments can also be viewed as submitted, including any personal 
information you provide, on the www.regulations.gov website.

FOR FURTHER INFORMATION CONTACT: Lindsay H. Mitchell at the address 
above, by phone (540) 361-1120; fax (540) 361-1199; or, email 
[email protected]. Copies of the revised U.S. Standards for 
Grades of Shelled Pecans and the U.S. Standards for Grades of Pecans in 
the Shell are available at http://www.regulations.gov or http://www.ams.usda.gov/grades-standards/nuts.

SUPPLEMENTARY INFORMATION: Section 203(c) of the Agricultural Marketing 
Act of 1946 (7 U.S.C. 1621-1627) as amended, directs and authorizes the 
Secretary of Agriculture ``to develop and improve standards of quality, 
condition, quantity, grade, and packaging, and recommend and 
demonstrate such standards in order to encourage uniformity and 
consistency in commercial practices.''
    The Agricultural Marketing Service (AMS) is committed to carrying 
out this authority in a manner that facilitates the marketing of 
agricultural commodities and makes copies of official standards 
available upon request. The U.S. Standards for Grades of Fruits and 
Vegetables that no longer appear in the Code of Federal Regulations are 
maintained by AMS at: http://www.ams.usda.gov/grades-standards.

Executive Orders 12866, 13771, and 13563

    This rule is not expected to be an Executive Order 13771 regulatory 
action because this rule is not significant under Executive Order 
12866. See the Office of Management and Budget's memorandum, ``Interim 
Guidance Implementing Section 2 of the Executive Order of January 30, 
2017 titled `Reducing Regulation and Controlling Regulatory Costs' '' 
(February 2, 2017). Executive Orders 12866 and 13563 direct agencies to 
assess all costs and benefits of available regulatory alternatives and, 
if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, reducing costs, harmonizing rules, and promoting 
flexibility.

Executive Order 13175

    This rule has been reviewed in accordance with the requirements of 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments. The review reveals that this regulation would not have 
substantial and direct effects on Tribal governments nor significant 
Tribal implications.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. It is not intended to have retroactive effect. There 
are no administrative procedures that must be exhausted prior to any 
judicial challenge to the provisions of this rule.

Background

    AMS continuously reviews fruit and vegetable grade standards to 
assess their effectiveness in the industry and to modernize language. 
In addition, on May 13, 2013, AMS received a petition from the Little 
People of America stating that the group is ``trying to raise awareness 
around and eliminate the use of the word midget.'' The petition further 
stated that, ``Though the use of the word midget by the USDA when 
classifying certain food products is benign, Little People of America, 
and the dwarfism community, hopes that the USDA would consider phasing 
out the term midget.'' Five grade standards contain the term 
``midget'': U.S. Standards for Grades of Canned Lima Beans, U.S. 
Standards for Grades of Canned Mushrooms, U.S. Standards for Grades of 
Pickles, U.S. Standards for Grades of Green Olives, and U.S. Standards 
for Grades of Shelled Pecans. Canned lima beans, canned mushrooms, 
pickles, and green olives will be covered in another notice due to 
additional changes being made to those specific standards.
    Prior to developing the proposed revisions to the pecan grade 
standards, AMS solicited comments and suggestions about the standards 
from the National Pecan Shellers Association (NPSA). The NPSA 
recommended replacing the term ``midget'' with ``extra small.''
    As part of modernizing the standards, the obsolete language 
regarding the purchase of plastic pecan models (PEC-MC-1) is being 
removed. These color standards are still in effect, but are no

[[Page 50476]]

longer available for purchase from the single previous manufacturer. 
Related information on where the color standards can be examined also 
will be removed as it is no longer current.
    A notice announcing these changes was published in the January 12, 
2016, Federal Register (81 FR 1386). AMS received one comment in favor 
of the changes. After the comment period ended, AMS recognized that the 
standards for both in-shell and shelled pecans are published in the 
Code of Federal Regulations (7 CFR 51.1400 through 51.1416 and 51.1430 
through 51.1451), even though there was no Federal marketing order for 
pecans at that time. The Pecan Marketing Order No. 986 became effective 
August 5, 2016. Therefore, AMS is providing notice and an opportunity 
to comment on the revised regulatory language.
    AMS is making the following revisions in the U.S. Standards for 
Grades of Shelled Pecans:
     Sec.  51.1436 Color classifications (b): Revised to remove 
reference to plastic models and address for viewing them.
     Sec.  51.1437 Table I: Revised to change Midget to Extra 
small.
     Sec.  51.1438 Table II and Table III: Revised to change 
Midget pieces to Extra small pieces.
     Sec.  51.1443 Particles and dust: Revised to change midget 
to extra small.
    In addition, AMS is making the following revision in the U.S. 
Standards for Grades of Pecans in the Shell:
     Sec.  51.1403 Kernel color classifications (b): Revised to 
remove reference to plastic models and address.

Regulatory Flexibility Analysis

    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA), AMS has considered the economic impact of this 
action on small entities. Accordingly, AMS prepared this final 
regulatory flexibility analysis.
    The purpose of the RFA is to fit regulatory actions to the scale of 
businesses subject to such actions so that small businesses will not be 
unduly or disproportionately burdened. Small agricultural producers 
have been defined by the Small Business Administration (SBA) (13 CFR 
121.201) as those having annual receipts of less than $750,000. Small 
agricultural service firms (handlers) are defined as those with annual 
receipts of less than $7,500,000.
    Considering the economic impact on small entities involves 
estimating whether a majority of growers and handlers in the U.S. pecan 
market qualify as small or large businesses. The following paragraphs 
explain a set of computations that achieves this goal.
    Almost all U.S. pecans are grown in the 15-state production area of 
the Federal marketing order for pecans (Marketing Order 986). There are 
2,500 growers of pecans in the production area and 250 handlers subject 
to regulation under the marketing order. The grower number estimate was 
supplied by the American Pecan Council, which administers the marketing 
order under the oversight of USDA. The handler number estimate comes 
from the Secretary's Decision on promulgating the marketing order (81 
FR 10140).
    According to data published by the National Agricultural Statistics 
Service (NASS), the 3-year average value of utilized pecan production 
for 2014 through 2016 was $591.204 million. Dividing this average value 
of utilized pecan production by the total number of pecan growers 
(2,500) provides an average return per grower estimate of $236,482, 
well below the SBA small business threshold of $750,000 in annual 
receipts. Using this average value of utilized production and grower 
number information, and assuming a normal bell-curve distribution of 
receipts among growers, the majority of growers qualify as small 
businesses.
    Evidence presented in 2015 during formal rulemaking for the pecan 
Federal marketing order indicated an average handler margin of $0.58 
per pound. Adding the handler margin to the 2014-2016 average grower 
price of $2.22 per pound of inshell pecans results in an estimated 
handler price of $2.80 per pound. Multiplying the estimated handler 
price by the 3-year average utilized production figure of 266.312 
million pounds yields a total value of production at the handler level 
of $745.7 million. Dividing this handler-level value of utilized pecan 
production by the number of handlers (250) results in an average return 
per handler of $2.98 million, well below the SBA small business 
threshold of $7.5 million in annual receipts. Using this estimated 
price, utilization volume and value, and number of handlers, and 
assuming a normal bell-curve distribution of receipts among handlers, 
the majority of handlers qualify as small businesses.
    The pecan standard changes are limited to modernizing grading 
terminology and removing language related to outdated vendor references 
for color standards. The pecan size standard currently known as 
``midget'' will be changed to ``extra small.'' Additionally, obsolete 
vendor information for the pecan kernel color standards will be 
revised. Information regarding the purchasing of the color standards 
from the manufacturer is obsolete as models are no longer available. 
The inspection procedures and color standards will remain in effect. 
AMS also is removing outdated language in another section that 
identified where the kernel models could be viewed. The remaining 
language in that section identifies the four ``color intensities'' of 
the kernel color standards.
    With the adoption of this rule, current inspection methods will 
continue unchanged. The ``extra small'' size category will be identical 
to the previous ``midget'' size category; only the name will change. 
Renaming the size category and continuing to use the current method of 
applying kernel color standards will not require any significant 
changes in grower or handler business operations. Any additional costs 
to growers and handlers will be negligible. No small businesses will be 
unduly or disproportionately burdened.
    Renaming the size standard and removing outdated language helps 
keep grading standards current. Food grading standards provide 
important quality information to buyers and sellers, contributing to 
the efficient marketing of agricultural commodities.
    A 30-day comment period is provided for public comment on the 
changes to the U.S. Standards for Grades of Shelled Pecans and the U.S. 
Standards for Grades of Pecans in the Shell proposed herein. If no 
significant comment is received, the changes in this rule, would be 
implemented 30 days thereafter.

List of Subjects in 7 CFR Part 51

    Food grades and standards, Fruits, Nuts, Reporting and 
recordkeeping requirements, Vegetables.

    For reasons set forth in the preamble, 7 CFR part 51 is amended as 
follows:

PART 51--[AMENDED]

0
1. The authority citation for part 51 continues to read as follows:

    Authority:  7 U.S.C. 1621--1627.

0
2. In Sec.  51.1403, paragraph (b) is revised to read as follows:


Sec.  51.1403   Kernel color classifications.

* * * * *
    (b) U.S. Department of Agriculture kernel color standards, PEC-MC-
1, illustrate the color intensities implied by the terms ``golden,'' 
``light brown,'' ``medium brown,'' and ``dark brown'' referred to in 
paragraph (a) of this section.

0
3. In Sec.  51.1436, paragraph (b) is revised to read as follows:


Sec.  51.1436   Color classifications.

* * * * *

[[Page 50477]]

    (b) U.S. Department of Agriculture kernel color standards, PEC-MC-
1, illustrate the color intensities implied by the terms ``golden,'' 
``light brown,'' ``medium brown,'' and ``dark brown'' referred to in 
paragraph (a) of this section.

0
4. In Sec.  51.1437, Table I is amended by removing the entry 
``Midget'' and adding in its place the entry ``Extra small'' to read as 
follows:


Sec.  51.1437   Size classifications for halves.

* * * * *

                                 Table I
------------------------------------------------------------------------
      Size classifications for halves        Number of halves per pound
------------------------------------------------------------------------
 
                                * * * * *
Extra small...............................  751 or more.
------------------------------------------------------------------------

* * * * *

0
5. In Sec.  51.1438, Table II and Table III are amended by removing the 
entry ``Midget pieces'' and adding in its place the entry ``Extra small 
pieces'' to read as follows:


Sec.  51.1438   Size classifications for pieces.

* * * * *

                                Table II
------------------------------------------------------------------------
                                                             Minimum
                                                         diameter  (will
                                     Maximum diameter        not pass
                                    (will pass through    through round
       Size classification           round opening of     opening of the
                                    following diameter)     following
                                                            diameter)
                                                              (inch)
------------------------------------------------------------------------
 
                              * * * * * * *
Extra small pieces...............  3/16 inch...........            1/16
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *

                                                    Table III
                                                    [Percent]
----------------------------------------------------------------------------------------------------------------
                                                                   Tolerance (included in total tolerance) for
                                               Total tolerance                 pieces smaller than
             Size classification                 for offsize   -------------------------------------------------
                                                    pieces                    2/16                  1/16 inch
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Extra small pieces...........................              15   ...............................               2
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
6. Revise Sec.  51.1443 to read as follows:


Sec.  51.1443   Particles and dust.

    Particles and dust means, for all size designations except ``extra 
small pieces'' and ``granules,'' fragments of kernels which will pass 
through a round opening two-sixteenths inch in diameter.

    Dated: October 3, 2018.
Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2018-21845 Filed 10-5-18; 8:45 am]
 BILLING CODE 3410-02-P