[Federal Register: July 12, 2005 (Volume 70, Number 132)]
[Rules and Regulations]
[Page 39905-39908]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12jy05-1]
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Rules and Regulations
Federal Register
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[[Page 39905]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 983
[Docket No. FV05-983-1 FR]
Pistachios Grown in California; Establishment of Reporting
Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule establishes reporting requirements authorized under
the California pistachio marketing order (order). The order regulates
the handling of pistachios grown in California and is administered
locally by the Administrative Committee for Pistachios (committee).
These additional reporting requirements will enable the committee to
collect information on: Pistachios failing to meet quality and
aflatoxin requirements; failing pistachios that are reworked or
disposed of in accordance with applicable requirements; handlers
applying for exemptions; transfers of uninspected pistachios between
regulated handlers; and inventories and shipments of pistachios.
EFFECTIVE DATE: July 13, 2005.
FOR FURTHER INFORMATION CONTACT: Rose Aguayo, California Marketing
Field Office, Marketing Order Administration Branch, Fruit and
Vegetable Programs, AMS, USDA, 2202 Monterey Street, Suite 102B,
Fresno, California 93721; telephone: (559) 487-5901, Fax: (559) 487-
5906; or George Kelhart, Technical Advisor, 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.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington, DC 20250-0237; telephone: (202)
720-2491, Fax: (202) 720-8938, or e-mail: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing
Order No. 983 (7 CFR part 983), regulating the handling of pistachios
grown in California, hereinafter referred to as the ``order.'' The
order is effective under the Agricultural Marketing Agreement Act of
1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the
``Act.''
The Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Order 12866.
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule is not intended to have retroactive
effect. This rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with USDA a petition
stating that the order, any provision of the order, or any obligation
imposed in connection with the order is not in accordance with law and
request a modification of the order or to be exempted therefrom. A
handler is afforded the opportunity for a hearing on the petition.
After the hearing USDA would rule on the petition. The Act provides
that the district court of the United States in any district in which
the handler is an inhabitant, or has his or her principal place of
business, has jurisdiction to review USDA's ruling on the petition,
provided an action is filed not later than 20 days after the date of
the entry of the ruling.
This final rule establishes reporting requirements authorized under
the California pistachio order. The additional reporting requirements
will enable the committee to collect information on: (1) Pistachios
failing to meet quality and aflatoxin requirements; (2) failing
pistachios that are reworked or disposed under the marketing order; (3)
handlers applying for exemptions; (4) transfers of uninspected
pistachios between regulated handlers; and (5) inventories and
shipments of pistachios.
Sections 983.38, 983.39, and 983.40 of the pistachio order specify
maximum aflatoxin requirements, minimum quality requirements, and
failed lot rework and disposition procedures, respectively.
Sections 983.41 of the pistachio order provides exemptions for
certain aflatoxin and quality testing requirements for handlers who
handle less than 1,000,000 pounds of assessed weight pistachios per
marketing year (September 1-August 31).
Section 983.47 of the pistachio order provides authority to require
handlers to furnish such reports and information on such forms as are
needed to enable USDA and the committee to perform their functions and
enforce order provisions.
Section 983.70 of the pistachio order exempts handlers who handle
1,000 pounds or less of dried weight pistachios (dried to 5 percent
moisture) from all aflatoxin and minimum quality requirements.
Under these authorities, the committee, at its November 3, 2004,
meeting unanimously recommended establishing a new subpart ``Rules and
Regulations,'' and a new section entitled ``Sec. 983.147--Reports'' to
delineate and define six new forms, ACP-2 through ACP-7. The committee
further clarified this recommendation at its December 15, 2004,
meeting.
Detailed information on the burdens created by these new forms is
discussed later in this document.
The recommended forms, ACP-2 through ACP-7, will be used by the
committee to track pistachios that fail to meet minimum quality and
maximum aflatoxin requirements (ACP-2); track lots which have been
reworked or disposed of in accordance with marketing order requirements
(ACP-3); identify handlers who handle 1,000 dried pounds or less of
pistachios per production year (September 1-August 31) (ACP-4) and
properly apply marketing order exemptions; identify handlers who handle
less than 1,000,000 pounds of assessed weight pistachios per marketing
year (September 1-August 31) (ACP-5) and properly apply marketing order
exemptions; track uninspected
[[Page 39906]]
pistachios that are transferred between regulated handlers (ACP-6); and
track monthly shipments and handler inventories (ACP-7).
The majority of the forms recommended by the committee (ACP-2
through APC-6) are new reporting requirements, and do not duplicate
information collected by any other Federal agency. One form, ACP-7 is
similar to a report required by the California Pistachio Commission
(commission), a program overseen by the State of California, under
which California pistachio research and promotion activities are
implemented. Because the commission is prohibited from sharing
confidential handler information, the committee recommended the ACP-7
be implemented for committee use to provide information necessary to
administer the order. Because shipment and inventory data is already
compiled by handlers for the commission, handlers may attach the
commission report to the committee form to meet this new reporting
requirement. Thus, handlers will not be duplicating their efforts and
both agencies would receive necessary data for respective program
purposes. Further, the information collection does not duplicate that
collected by any other Federal agency.
The committee estimates that this action will impact no more than
24 handlers of pistachios, and further estimates that, on average, a
handler will expend no more than an average of 11.8 minutes in
completing each form. The total estimated annual burden for all six
forms is estimated to be 92.4 hours.
The committee believes that these forms are easy to prepare and
file, and place as small a reporting burden as possible on handlers.
These forms and their respective burdens were discussed at public
meetings at which all affected entities were encouraged to comment on
the effect of requiring these forms to be completed and filed by
pistachio handlers. The committee vote was unanimous, with 8 in favor
and none opposed or abstaining.
Final Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), AMS has considered the economic impact of this action on
small entities. Accordingly, AMS has prepared this final regulatory
flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses would
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 24 handlers of California pistachios
subject to regulation under the order and approximately 741 producers
in the production area. Small agricultural producers are defined by the
Small Business Administration (13 CFR 121.201) as those having annual
receipts less than $750,000, and small agricultural service firms are
defined as those whose annual receipts are less than $6,000,000. Seven
of the 24 handlers subject to regulation have annual pistachio receipts
of at least $6,000,000. In addition, 722 producers have annual receipts
less than $750,000. Thus, the majority of handlers and producers of
California pistachios may be classified as small entities. There are an
estimated nine USDA approved testing laboratories that may participate
in this program. Five of these laboratories are handler in-house
operations and already included in the estimated respondents. Other
testing laboratories are government agencies. There are two other
existing laboratories. One is part of the Dried Fruit Association of
California and the other is a private laboratory operated by Am Cal
Analytical Laboratories. We believe that this association and private
laboratory would be considered small entities.
This final rule establishes reporting requirements authorized under
the California pistachio order. These additional reporting requirements
will enable the committee to collect information on: (1) Pistachios
failing to meet quality and aflatoxin requirements; (2) failing
pistachios that are reworked or disposed of in marketing order
requirements; (3) handlers applying for exemptions; (4) transfers of
uninspected pistachios between regulated handlers; and (5) inventories
and shipments of pistachios.
Sections 983.38, 983.39, and 983.40 of the pistachio order provide
maximum aflatoxin requirements, and minimum quality requirements, and
failed lot rework and disposition procedures, respectively.
Sections 983.41 of the pistachio order provides exemptions for
certain aflatoxin and quality testing requirements for handlers who
handle less than 1,000,000 pounds of assessed weight pistachios per
marketing year (September 1-August 31).
Section 983.47 of the pistachio order provides authority for the
committee to require handlers to furnish such reports and information
on such forms as are needed to enable the Secretary of Agriculture and
the committee to perform their functions and enforce order provisions.
Section 983.70 of the pistachio order exempts handlers who handle
1,000 pounds or less of dried weight pistachios during any marketing
year (dried to 5 percent moisture) from all aflatoxin and minimum
quality requirements.
Under these authorities, the committee, at its November 3, 2004,
meeting, unanimously recommended establishing a new subpart ``Rules and
Regulations,'' and a new section entitled ``Sec. 983.147--Reports'' to
delineate and define six new forms, ACP-2 through ACP-7. The committee
further clarified this recommendation at its December 15, 2004,
meeting.
The majority of the reports recommended by the committee are new
reporting requirements (ACP-2 through ACP-6). One form, ACP-7 is
similar to a report required by the commission, a program overseen by
the State of California, under which California pistachio research and
promotion activities are implemented.
The committee debated the overall merits of the forms at its
meetings, deliberating over the value of the information to be
collected relative to the burden which each form would impose on the
regulated handlers. In the end, the committee concluded that the
information that will be collected is necessary to properly administer
the marketing order. It further concluded that the burden was
relatively small compared to the benefits that will be accrued by the
committee and industry from the information obtained.
The committee discussed alternatives to establishing these
reporting requirements including not adopting ACP-4, as it was believed
that this information might be obtained by staff during compliance
audits. Upon reviewing the auditing procedure, committee members
determined that utilization of the ACP-4 will be a more feasible means
of obtaining information on identifying exempt handlers. Thus, the
committee unanimously recommended all six forms for implementation. It
believes that the information to be provided on each of the recommended
forms will be important to the administration of the order and will
enhance committee operations.
Further, the committee's meetings were widely publicized throughout
the pistachio industry and all interested persons were encouraged to
attend the
[[Page 39907]]
meetings and participate in the committee's deliberations. Like all
committee meetings, the November 3 and December 15, 2004, meetings were
public meetings and entities of all sizes were invited to express their
views on these issues.
A proposed rule concerning this action was published in the Federal
Register on March 28, 2005 (70 FR 15602). The proposal also announced
AMS's intent to request an approval of a new information collection for
the marketing order regulating pistachios grown in California. Copies
of the proposal were also mailed or sent via facsimile to all pistachio
handlers. Finally, the proposed rule was made available through the
Internet by USDA and the Office of the Federal Register. A 60-day
comment period ending May 27, 2005, was provided to allow interested
persons to respond to the proposal. No comments were received.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html.
Any questions about the compliance
guide should be sent to Jay Guerber at the previously mentioned address
in the FOR FURTHER INFORMATION CONTACT section.
After consideration of all relevant material presented, including
the information and recommendation submitted by the committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
It is further found that good cause exists for not postponing the
effective date of this rule until 30 days after publication in the
Federal Register (5 U.S.C. 553) because the committee is required to
furnish handlers with one of the forms by July 15. Further, handlers
are aware of this rule, which was unanimously recommended at a public
meeting. Also, a 60-day comment period was provided for in the proposed
rule, and no comments were received.
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. In addition, as
noted in the initial regulatory flexibility analysis, USDA has not
identified any relevant Federal rules that duplicate, overlap, or
conflict with this final rule. A detailed discussion of the six new
forms follows.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), the information collection requirements that are contained
in this rule were approved by the Office of Management and Budget
(OMB), under OMB No. 0581-0230. The information collection has been
merged into OMB No. 0581-0215 Pistachios Grown in California, which
expires May 31, 2008.
Since publication of the proposed rule on March 28, 2005 (70 FR
15602), the committee has found that the number of respondents
(handlers and approved aflatoxin laboratories) has increased from 20 to
25. However, 5 of these 25 respondents will be exempt from filing 5 of
the 6 forms, as they handle 1,000 pounds or less and are exempt from
handling requirements and most reporting requirements.
In summary, this final rule establishes reporting requirements
authorized under the California pistachio order. These additional
reporting requirements will enable the committee to collect information
on: (1) Pistachios failing to meet quality and aflatoxin requirements;
(2) failing pistachios that are reworked or disposed of in accordance
with marketing order requirements; (3) handlers applying for
exemptions; (4) transfers of uninspected pistachios between regulated
handlers; and (5) inventories and shipments of pistachios.
Additionally, it will allow the committee to obtain accurate
information for preparation of the annual marketing policy statement,
as required under the order.
Another form, ACP 1, was not included with this approval request
because that form was part of a previous request, published in the
Federal Register on March 1, 2005 (70 FR 9843).
List of Subjects in 7 CFR Part 983
Pistachios, Marketing agreements and orders, Reporting and
recordkeeping requirements.
0
For the reasons set forth in the preamble, 7 CFR part 983 is amended as
follows:
PART 983--PISTACHIOS GROWN IN CALIFORNIA
0
1. The authority citation for 7 CFR part 983 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. In part 983, a new Subpart--Rules and Regulations and Sec.
983.147--Reports are added to read as follows:
Subpart--Rules and Regulations
Sec. 983.147 Reports.
(a) ACP-2, Failed Lot Notification. Each handler shall notify the
Administrative Committee for Pistachios (committee) of all lots which
fail to meet the order's minimum quality requirements by completing
sections A and B of this form. Handlers shall furnish this report to
the committee no later than 10 days after test completion. Each USDA
approved aflatoxin testing laboratory shall complete section C of this
report and forward this report and the failing aflatoxin test results
to the committee and to the handler within 10 days of the test failure.
(b) ACP-3, Failed Lot Disposition and Rework Report. Each handler
who reworks a failing lot of pistachios shall complete this report and
shall forward it to the committee no later than 10 days after the
rework is completed. If rework is not selected as a remedy, the handler
shall submit the form to the committee office within 10 days of
disposition of the lot.
(c) ACP-4, Federal Marketing Order Exempt Handler Notification.
Each handler who handles 1,000 pounds or less of dried weight
pistachios in a production year shall complete and furnish this report
to the committee no later than November 15 of each production year.
(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 an exemption under the minimal quantities
provisions (Section 983.41) of the order shall furnish this report to
the committee office no later than August 1 of each production year.
(e) ACP-6, Inter-handler Transfer. Each handler who transfers
uninspected pistachios to another handler within the production area
shall complete the ACP-6 and sign Part A. The transferring handler
shall forward the original ACP-6 and one copy to the handler who
receives the uninspected pistachios. The transferring handler shall
furnish one copy of ACP-6 to the committee within 30 days of the
transfer. The handler receiving the uninspected pistachios (receiving
handler) shall sign Part B of the original ACP-6 and shall file it with
the committee within 30 days of the transfer.
(f) ACP-7 Monthly Report of Inventory/Shipments. Each handler of
pistachios shall file this report with the committee by the 10th day of
each month for the previous month's inventory and shipment information.
(g) Exemptions. Handlers, who handle 1,000 pounds or less of dried
pistachios during any marketing year, are exempt from filing all forms
with the exception of the ACP-4.
(h) Records. Each handler shall maintain all records of pistachios
received, held, shipped, and disposed of for at least 3 years following
each crop
[[Page 39908]]
year to show compliance with the marketing order provisions.
Dated: July 8, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-13755 Filed 7-11-05; 8:45 am]
BILLING CODE 3410-02-P