[Federal Register: July 22, 2005 (Volume 70, Number 140)]
[Rules and Regulations]
[Page 42256-42259]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22jy05-3]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 983
[Docket No. FV05-983-4 IFR]
Pistachios Grown in California; Establishment of Procedures for
Exempting Handlers From Minimum Quality Testing
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This rule establishes procedures for exempting handlers from
quality requirements, including maximum limits for quality defects and
minimum size, prescribed 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 procedures will be used by the
Committee in considering handler requests for exemptions from minimum
quality testing requirements and when considering revocations of such
exemptions. Additionally, this rule establishes an appeals process for
handlers who have been denied an exemption or had an approved exemption
revoked.
DATES: Effective July 23, 2005; comments received by September 20, 2005
will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent to the Docket Clerk,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue SW., STOP 0237,
[[Page 42257]]
Washington, DC 20250-0237; Fax: (202) 720-8938, or E-mail:
moab.docketclerk@usda.gov; or Internet: http://www.regulations.gov. All
comments should reference the docket number and the date and page
number of this issue of the Federal Register and will be made available
for public inspection in the Office of the Docket Clerk during regular
business hours, or can be viewed at: http://www.ams.usda.gov/fv/moab.html
.
FOR FURTHER INFORMATION CONTACT: Rose Aguayo, California Marketing
Field Office, Marketing Order Administration Branch, Fruit and
Vegetable Programs, AMS, USDA; 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 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 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 rule establishes procedures for use by the Committee in
exempting handlers from minimum quality (maximum limits for quality
defects and minimum size) testing requirements prescribed under the
order. These procedures also will be used by the Committee, or its duly
authorized agents, when considering the revocation of exemptions for
good cause, and when considering appeals of handlers who have had
exemptions denied or revoked.
Section 983.46 of the pistachio order authorizes the Committee to
recommend that the Secretary modify or suspend the order provisions
contained in Sec. Sec. 983.38 through 983.45. These sections are
scheduled to be implemented on August 1, 2005.
Section 983.41 of the pistachio order authorizes handler exemptions
from minimum quality testing requirements for handlers handling less
than 1 million pounds of assessed weight pistachios per production year
(September 1-August 31) and specifies that the Committee may grant
handler exemptions. For the purposes, of this document, the term
``production year'' is synonymous with ``marketing year''.
Section 983.70 of the pistachio order exempts handlers who handle
1,000 pounds or less of dried weight (assessed weight) pistachios
(dried to 5 percent moisture) during any marketing year from all
assessment, aflatoxin, and minimum quality requirements.
Section 983.147 of the pistachio order establishes handler
reporting requirements (ACP Forms 2-7) and exempts handlers who handle
1,000 pounds or less of dried weight pistachios from all reporting
requirements with the exception of ACP Form-4. Handlers who have
handled or intend to handle 1,000 pounds or less of dried weight
pistachios during the marketing period (September 1-August 31) must
submit ACP Form-4 by November 15 each year to the Committee.
The recommended decision, published on August 4, 2003, (68 FR
45990) indicates that implementing regulations should be effectuated to
establish the specific procedures for exempting handlers who handle
more than 1,000 pounds and less than 1 million pounds of assessed
weight pistachios per production year (September 1-August 31) from
minimum quality testing requirements.
Under these authorities, the Committee at its April 12, 2005,
meeting, unanimously recommended establishing a new section entitled,
``Sec. 983.141--Procedures for Exempting Handlers from Minimum Quality
Testing'' to specify appropriate exemption, revocation, and appeal
procedures. The Committee believes that standardized procedures would
ensure that handler requests for exemptions and revocations of such
exemptions are treated similarly by the Committee, and ensure that all
applicants are treated equitably.
The Committee also recommended that handler exemptions under Sec.
983.41(b) not be granted if a handler failed to file required reports,
shipped substandard pistachios, or failed to comply with the
requirements specified in Sec. 983.41 on exemptions for minimum
quality testing. Revocations of approved exemptions could be
implemented by the Committee, or its authorized agents, for the same
reasons.
Additionally, the Committee recommended that any handler who
believes that he/she has been improperly denied an exemption or
improperly had an exemption revoked by the Committee should be allowed
to appeal the Committee's action to USDA. The Committee recommended
that the USDA review any appeals and determine their merit. All appeals
must be submitted in writing and the Committee would provide USDA the
complete file on each appeal.
The recommended exemption procedures require the Committee, or its
authorized agents, to timely notify all handlers of the opportunity to
apply to be exempted from minimum quality testing so that all
interested handlers can submit applications on forms provided by the
Committee by the August 1 deadline; promptly review all requests for
exemption; verify that the quantity of assessed weight pistachios
handled by any applicants during the prior production year was less
than 1 million pounds of assessed weight and that applicants are in
compliance with the order's inspection, quality, and reporting
requirements; approve or disapprove requests for exemptions by August
20 of each year; maintain complete files concerning the approval or
disapproval of each handler's application; and notify handlers by
August 30 of approval or disapproval.
A handler's exemption would be revoked by the Committee, or its
duly authorized agents, if the handler fails to provide reports
required under this part
[[Page 42258]]
or has not complied with the provisions on minimal quantity testing in
Sec. 983.41. Additionally, the Committee, or its duly authorized
agents, would revoke an approved exemption when a handler audit reveals
that a handler has handled a million pounds or more of assessed weight
pistachios during the applicable production year. The revocation of a
handler's exemption would be made in writing to the handler and specify
the reason(s) for and the effective date.
Any handler who believes that he/she has been improperly denied an
exemption or improperly had an exemption revoked, may appeal to USDA
for reconsideration within 20 days after notification of the
Committee's findings. All appeals must be in writing.
The Committee, or its duly authorized agents, shall forward a file
with all pertinent information related to the handler's appeal to USDA.
USDA shall inform the handler and all interested persons of the
Secretary's decision.
As previously mentioned, under Sec. 983.70 of the order, this rule
applies to handlers handling more than 1,000 pounds and less than 1
million pounds, because handlers who handle 1,000 pounds or less of
dried weight pistachios are exempt from assessment, aflatoxin, and
minimum quality requirements and from all reporting requirements under
Sec. 983.147 of the order's administrative rules and regulations, with
the exception of ACP Form-4.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this action on small entities. Accordingly, AMS has
prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and 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 who
are subject to regulation under the order and about 741 producers of
pistachios in the production area. Small agricultural service firms are
defined by the Small Business Administration (SBA)(13 CFR 121.201) as
those having annual receipts of less than $6,000,000 and small
agricultural producers are defined as those having annual receipts of
less than $750,000. Seventeen of the 24 handlers subject to regulation
have annual pistachio receipts of less than $6,000,000. In addition,
722 of the 741 producers have annual receipts less than $750,000.
Therefore, a majority of handlers and producers may be classified as
small entities under the SBA standards.
This rule establishes procedures for exempting handlers from
minimum quality (maximum limits for quality defects and minimum size)
testing requirements prescribed under the order. These procedures will
be used by the Committee when considering handler requests for
exemptions from minimum quality testing requirements and when
considering revocations of such exemptions. Additionally, this rule
establishes an appeals process for handlers who have been denied an
exemption or had an approved exemption revoked.
Section 983.41(a) of the pistachio order allows handlers handling
less than 1 million pounds of assessed weight pistachios each
production year (September 1-August 31) to use optional aflatoxin
testing methods. The optional methods permit the sampling and testing
of a handler's entire inventory before further processing, and allow
handlers to segregate their receipts into various lots for sampling and
testing.
Section 983.41(b) of the pistachio order authorizes handler
exemptions from minimum quality testing for handlers handling less than
1 million pounds of assessed weight pistachios per production year and
specifies that the Committee may grant such handler exemptions.
Section 983.70 of the pistachio order exempts handlers who handle
1,000 pounds or less of dried weight (assessed weight) pistachios
(dried to 5 percent moisture) during any marketing year from all
assessment, aflatoxin, and minimum quality requirements. For the
purposes of this document, the term ``marketing year'' is synonymous
with the term ``production year'' and covers the period September 1
through August 31.
The recommended decision, published on August 4, 2003, (68 FR
45990) indicated that implementing regulations should be effectuated to
establish the specific procedures for exempting handlers who handle
more than 1,000 pounds and less than 1 million pounds of assessed
weight pistachios per production year (September 1-August 31) from
minimum quality testing requirements.
Under these authorities, the Committee at its April 12, 2005,
meeting, unanimously recommended establishing standardized procedures
for granting and revoking handler exemption requests, and considering
handler appeals on exemption decisions. This action will have a
positive impact on small and large handlers by assuring that all
exemption applications and reviews are handled following standardized
procedures.
The Committee discussed alternatives to this change, including not
making any changes, but determined that specific procedures were needed
to facilitate: (1) Exempting handlers from minimum quality testing; (2)
revoking exemptions when handlers violate the marketing order; and (3)
processing appeals to the Committee's actions. These procedures are
expected to ensure that all such requests are treated equitably. The
Committee vote was 8 in favor, 0 opposed, and 0 abstained.
The information collection requirements for the ACP Form-5, which
handlers will complete and forward to the Committee to request
exemption from minimum quality requirements under the order, was
previously submitted to the Office of Management and Budget (OMB) and
approved under OMB No. 0581-0230. Thus, this action will not impose any
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.
In addition, USDA has not identified any relevant Federal rules
that duplicate, overlap or conflict with this rule.
Further, the Committee's meetings are widely publicized throughout
the pistachio industry and all interested persons are invited to attend
the meetings and participate in the Committee's deliberations. Like all
Committee meetings, the April 12, 2005, meeting was a public meeting
and all entities, both large and small, were able to express their
views on these issues.
Finally, interested persons are invited to submit information on
the regulatory and informational impacts of this action on small
businesses.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html.
Any questions about the compliance
guide should be sent to Jay Guerber at the previously mentioned
[[Page 42259]]
address in the FOR FURTHER INFORMATION CONTACT section.
This rule invites comments on the establishment of minimum quality
testing exemption procedures under the order. Any comments received
will be considered prior to finalization of this rule.
After consideration of all relevant material presented, including
the Committee's recommendation and other information, it is found that
this interim final rule, as hereinafter set forth, will tend to
effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect and that good cause exists for not postponing the effective date
of this rule until 30 days after publication in the Federal Register
because: (1) This action provides procedures to facilitate the review
and approval of minimum quality testing exemption requests, denials and
revocations of such exemptions, and subsequent appeals, if submitted;
(2) the Committee unanimously recommended the procedures at a public
meeting and interested parties had an opportunity to provide input; (3)
handlers are required to file the exemption form with the Committee by
August 1 of each year; and (4) this rule provides for a 60-day comment
period and any comments received will be considered prior to
finalization of this rule.
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, Sec. 983.141 is added to Subpart-Rules and Regulations
to read as follows:
Sec. 983.141 Procedures for exempting handlers from minimum quality
testing.
(a) Exemption procedures. The Committee, or its duly authorized
agents, shall notify all handlers each year of the opportunity to apply
to be exempted from minimum quality testing and handlers shall submit
such requests on forms furnished by the Committee. The deadline for
submission shall be August 1. The Committee, or its duly authorized
agents, shall:
(1) Promptly review all exemption applications received. In
reviewing applications for exemption, the Committee, or its duly
authorized agents, shall determine that the quantity of assessed weight
pistachios handled during the prior production year was less than 1
million assessed weight pounds and that the applicants are in
compliance with the order's reporting requirements and the provisions
of Sec. 983.41. Handler compliance will be determined through handler
audits;
(2) Complete the review and approve or disapprove requests for
exemptions by August 20;
(3) Maintain complete files detailing the reason(s) for the
approval or disapproval of each application for at least three years
beyond the crop year of applicability; and
(4) Notify in writing all applicants by August 30 of the approval
or disapproval of their requests together with the reason(s) for
disapproval, if applicable.
(b) Revocation of exemptions. A handler's exemption shall be
revoked by the Committee, or its duly authorized agents, if the handler
fails to provide reports required under Sec. 983.147, or has not
complied with the provisions on minimal quality testing in Sec.
983.41, of this part. Additionally, the Committee, or its duly
authorized agents, shall revoke an approved exemption when a handler
audit reveals that a handler has handled a million pounds or more of
assessed weight pistachios during the current production year. The
revocation of a handler's exemption shall be made in writing to the
handler and shall specify the reason(s) for and the effective date.
(c) Appeals. (1) Any handler who believes that he/she has been
improperly denied an exemption or improperly had an exemption revoked,
may appeal to the Secretary, within 20 days after notification of the
Committee's, or agents of the Committee's, decisions. All appeals shall
be in writing. When requested by the Secretary, the Committee, or its
duly authorized agents, shall forward a file with all pertinent
information related to any handler appeal. The Secretary shall inform
the handler and all interested persons of the Secretary's decision.
(2) If handlers do not file an appeal or if their appeal is denied
by the Secretary, they shall present all remaining lots of pistachios
in inventory for minimum quality testing before moving the pistachios
into the channels of commerce.
Dated: July 18, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-14513 Filed 7-19-05; 1:38 pm]
BILLING CODE 3410-02-P