[Federal Register: October 28, 2005 (Volume 70, Number 208)]
[Rules and Regulations]
[Page 62055-62057]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28oc05-1]
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Rules and Regulations
Federal Register
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[[Page 62055]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 983
[Docket No. FV05-983-4 FIR]
Pistachios Grown in California; Establishment of Procedures for
Exempting Handlers From Minimum Quality Testing
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final
rule, without change, an interim final rule that established 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
final rule continues in effect the establishment of an appeals process
for handlers who have been denied an exemption or had an approved
exemption revoked.
EFFECTIVE DATE: November 28, 2005.
FOR FURTHER INFORMATION CONTACT: Terry Vawter, 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 continues in effect the establishment of 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. The committee, or its duly
authorized agents, will also use these procedures 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 were
implemented on August 1, 2005.
Section 983.41 of the pistachio order authorizes 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 production year (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), indicated that implementing regulations would effectuate the
declared policy of the Act by establishing 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,
[[Page 62056]]
``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 equitable treatment of applicants for exemptions and those
handlers subject to the revocation of such exemptions.
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. Revocation of approved exemptions could be implemented
by the committee, or its duly 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 will provide USDA the
complete file on each appeal.
The recommended exemption procedures require the committee, or its
duly 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, 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 of
the revocation.
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 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
continues in effect the application 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 filing ACP
Form-4.
Final 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 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 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. The Small Business Administration
(SBA) (13 CFR 121.20) defines small agricultural service firms 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 continues in effect the establishment of 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 continues in effect the establishment of an
appeals process for handlers who have been denied an exemption or had
an exemption revoked.
Section 983.41(a) of the pistachio order permits handlers who
handle 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 who handle 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 ``production year'' and represents the period September 1 through
August 31.
The recommended decision, published on August 4, 2003, (68 FR
45990), indicated that implementing regulations would effectuate the
declared policy of the Act by establishing 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
[[Page 62057]]
positive impact on small and large handlers by assuring that all
exemption applications and reviews are handled equitably following
approved 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 requirements under 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's vote was unanimous.
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.
The AMS is committed to compliance with the Government Paperwork
Elimination Act, which requires government agencies in general to
provide the public the option of submitting information or transacting
business electronically to the maximum extent possible.
Further, the committee's meetings are widely publicized throughout
the pistachio industry and all interested persons are encouraged 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 encouraged to
express their views on these issues.
An interim final rule concerning this action was published in the
Federal Register on July 22, 2005 (70 FR 42256). Copies of the rule
were provided to the committee and handlers by the committee staff. In
addition, the rule was made available through the Internet by USDA and
the Office of the Federal Register. That rule provided for a 60-day
comment period, which ended September 20, 2005. 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 committee's recommendation and other information, it is found that
this finalizing the interim final rule, without change, as published in
the Federal Register (70 FR 42256, July 22, 2005), will tend to
effectuate the declared policy of the Act.
List of Subjects in 7 CFR Part 983
Pistachios, Marketing agreements and orders, Reporting and
recordkeeping requirements.
PART 983--PISTACHIOS GROWN IN CALIFORNIA
0
Accordingly, the interim final rule amending 7 CFR part 983, which was
published at 70 FR 42256 on July 22, 2005, is adopted as a final rule
without change.
Dated: October 24, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-21489 Filed 10-27-05; 8:45 am]
BILLING CODE 3410-02-P