[Federal Register: July 13, 2005 (Volume 70, Number 133)]
[Rules and Regulations]
[Page 40185-40187]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jy05-1]
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Rules and Regulations
Federal Register
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[[Page 40185]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 983
[Docket No. FV05-983-3 FR]
Pistachios Grown in the State of California; Termination of
Language in Table 3 ``Maximum Defect and Minimum Size Levels''
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule terminates language in Table 3, ``Maximum Defect and
Minimum Size Levels,'' of the marketing order regulating pistachios
produced in the State of California. This language was erroneously
included in Table 3 at the time of promulgation of the order. Removal
of the language in the table was unanimously recommended by the
Administrative Committee for Pistachios, the committee responsible for
local administration of the order.
DATES: Effective July 14, 2005.
FOR FURTHER INFORMATION CONTACT: Melissa Schmaedick, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, P.O.
Box 1035, Moab, Utah 84532; telephone: (435) 259-7988, Fax: 259-4945;
or 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.
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 rule is issued under the Agricultural
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674),
hereinafter referred to as the ``Act.''
The Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This 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 date of the
entry of the ruling.
This rule terminates language in Table 3, ``Defect and Minimum Size
Levels,'' of the marketing order regulating pistachios produced in the
State of California (69 FR 17844, April 5, 2004). The termination
applies to language in two portions of the table: (1) In the ``Internal
(Kernel) Defects'' section, the words ``external or'' will be removed
from the heading ``Total external or internal defects allowed'' because
this section of the table only covers internal defects allowed, and (2)
the sub-heading ``Minimum permissible defects (percent by weight)''
will be removed so that all information in the table will be captured
under the table heading ``Maximum permissible defects (percent by
weight).'' This language was erroneously included in Table 3 at the
time of promulgation of the order. Termination of this language removes
this language and allows Table 3 to read as originally intended by the
proponents of the order.
Suspension of this language was unanimously recommended by the
Administrative Committee for Pistachios (ACP), the group responsible
for local administration of the order, at a December 15, 2004,
committee meeting. However, because this is a permanent change, USDA is
removing and terminating the language.
The federal marketing order regulating the handling of pistachios
produced in the State of California was promulgated in 2004. Provisions
to establish the ACP became effective on April 6, 2004 (69 FR 17844,
April 5, 2004). The regulatory provisions of the order will become
effective on August 1, 2005 (70 FR 661, January 5, 2005; 70 FR 4191,
January 28, 2005).
Section 983.39, Minimum quality levels, of the order establishes
maximum defect and minimum size tolerances for pistachios produced and
handled in California. Table 3 of the order, which is included in Sec.
983.39, describes the maximum thresholds for defects, as well as the
maximum tolerance for minimum-sized pistachios, in table format. Table
3 also serves as a reference tool for handlers regulated by the order
to easily interpret the written quality and size provisions of the
order under Sec. 983.39.
ACP preparations for implementing the regulatory provisions of the
order brought to light that two sub-headings in Table 3, ``Maximum
Defect and Minimum Size Levels,'' were erroneously included at the time
of promulgation. As earlier mentioned, termination of this language
will remove this language and allow Table 3 to read as originally
intended by the proponents of the order.
This final rule removes the words ``external or'' from the heading
``Total external or internal defects allowed'' in the ``Internal
(Kernel) Defects'' section because this section of the table only
applies to internal defects, not external defects. Additionally, the
sub-heading ``Minimum permissible defects (percent by weight)'' is
removed from the table so that all information in the table will be
captured under the table heading ``Maximum Permissible Defects (percent
by weight).'' This language should be removed prior to the effective
date of
[[Page 40186]]
the regulatory provisions of the order (August 1, 2005).
Final Regulatory Flexibility Analysis
Pursuant to the requirements set for in the Regulatory Flexibility
Act (RFA) the administrator of the Agricultural Marketing Service (AMS)
has considered the economic impact of this action on small entities.
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. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 20 handlers of California pistachios
subject to regulation under the marketing order and approximately 741
producers in the production area. Small agricultural service firms are
defined as those whose annual receipts are less than $6,000,000 and
small agricultural producers have been defined by the Small Business
Administration as those having annual receipts less than $750,000 (13
CFR 121.201). Eight of the 20 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 pistachio producers and handlers regulated under the marketing order
may be classified as small entities.
This action terminates language in Table 3, ``Maximum Defect and
Minimum Size Levels'' in Sec. 983.39 of the order. The termination
applies to language in two portions of the table: (1) In the ``Internal
(Kernel) Defects'' section, the words ``external or'' will be removed
from the heading ``Total external or internal defects allowed'' because
this section of the table only pertains to internal defects, and (2)
the sub-heading ``Minimum permissible defects (percent by weight)'' is
removed so that all information in the table will be captured under the
table heading ``Maximum permissible defects (percent by weight).''
Neither the thresholds contained in the table nor the regulatory
provisions outlined in Sec. 983.39 of the order will be impacted by
this termination. The termination will serve to facilitate a more
accurate interpretation of the information presented in Table 3. Thus,
no significant impact on large or small entities is anticipated as a
result of this proposal.
One alternative to this action would be to not remove and terminate
the identified language in Table 3. However, at the December 15, 2004,
meeting of the ACP, it was determined that if this language were not
removed from the table, handlers regulated under the order may not
correctly interpret the thresholds outlined in Table 3. Thus, the ACP
unanimously recommended that the table be corrected. Like all committee
meetings, this meeting was a public meeting and all entities, both
large and small, were able to express views on this issue. No comments
or recommendations against the recommendation were voiced at the
meeting.
In compliance with Office and Management and Budget (OMB)
regulations (5 CFR part 1320) which implement the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.), the information collection and
recordkeeping requirements imposed by this order have been previously
approved by OMB and assigned OMB No. 0581-0215. This rule imposes no
additional reporting or recordkeeping requirements on either small or
large pistachio handlers. As with all Federal marketing order programs,
reports and forms are periodically reviewed to reduce information
requirements and duplication by industry and public sector agencies.
USDA has not identified any relevant Federal rules that duplicate,
overlap, or conflict with this rule.
A proposed rule concerning this action was published in the Federal
Register on May 4, 2005 (70 FR 23065). Copies of the proposed rule were
also mailed to all pistachio handlers. Finally, the proposal was made
available through the Internet by the Office of the Federal Register
and USDA. A 15-day comment period ending May 19, 2005, was provided for
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 the
following website: 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 ACP's recommendation, and other information, it is found that the
provisions being removed and terminated by this final rule do not tend
to effectuate the declared policy of the Act and that this action is
appropriate. Accordingly, this action is appropriate under the order.
Pursuant to 5 U.S.C. 553, it is also found and determined that good
cause exists for not postponing the effective date of this rule until
30 days after publication in the Federal Register because: (1)
Termination of language in Table 3 should be made as soon as possible
prior to the effective date of the regulatory provisions of the order,
August 1, 2005; (2) this action has been discussed at open meetings of
the ACP and is fully supported; and (3) comments on the removal and
termination of this language were solicited and no comments were
received.
List of Subjects in 7 CFR Part 983
Pistachios, Marketing agreements and orders, Reporting and
recordkeeping requirements.
0
For the reasons set forth in the preamble, 7 CFR part 983 is amended as
follows:
PART 983--PISTACHIOS GROWN IN CALIFORNIA
0
1. The authority citation for 7 CFR part 983 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. In Sec. 983.39, Table 3 to paragraph (a) is revised to read as
follows:
Sec. 983.39 Minimum quality levels.
(a) * * *
Table 3.--Maximum Defect and Minimum Size Levels
------------------------------------------------------------------------
Maximum permissible
defects (percent by
Factor weight)
--------------------------
Inshell Kernels
------------------------------------------------------------------------
External (Shell) Defects:
1. Non-splits & not split on suture...... 10.0 ...........
[[Page 40187]]
(i) Maximum non-splits allowed....... 4.0 ...........
2. Adhering hull material................ 2.0 ...........
3. Dark stain............................ 3.0 ...........
4. Damage by other means, other than 1, 2
and 3 above, which materially detracts
from the appearance or the edible or
marketing quality of the individual
shell or the lot........................
Internal (Kernel) Defects:
1. Damage................................ 6.0 3.0
Immature kernel (Fills <75%-->50% of
the shell)
Kernel spotting (Affects \1/8\
aggregate surface)
2. Serious damage........................ 4.0 2.5
Minor insect or vertebrate injury/
insect damage, insect evidence,
mold, rancidity, decay.
(i) Maximum inset damage allowed..... 2.0 0.5
Total internal defects allowed........... 9.0 ...........
Other Defects:
1. Shell pieces and blanks (Fills < 50% of 2.0 ...........
the shell)..............................
(i) Maximum blanks allowed........... 1.0 ...........
2. Foreign material...................... 0.25 0.1
No glass, metal or live insects
permitted
3. Particles and dust.................... 0.25 ...........
4. Loose kernels......................... 6.0 ...........
Maximum allowable inshell pistachios that 5.0 ...........
will pass through a \30/64\ths inch
round hold screen.......................
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* * * * *
Dated: July 8, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-13756 Filed 7-12-05; 8:45 am]
BILLING CODE 3410-02-M