[Federal Register: March 28, 2005 (Volume 70, Number 58)]
[Proposed Rules]
[Page 15602-15606]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28mr05-22]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 983
[Docket No. FV05-983-1 PR]
Pistachios Grown in California; Establishment of Reporting
Requirements; Notice of Request for New Information Collection
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This rule invites comments on the establishment of 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
would 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. This document also announces the Agricultural
Marketing Service's (AMS) intention to request approval from the Office
of Management and Budget (OMB) of a new information collection.
DATES: Comments must be received by May 27, 2005. Pursuant to the
Paperwork Reduction Act, comments on the information collection burden
must be received by May 27, 2005.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposal. Comments must be sent to the Docket Clerk,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue SW., STOP 0237, 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, 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 proposal 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 proposal has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This proposal
[[Page 15603]]
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 proposal invites comments on establishing reporting
requirements authorized under the California pistachio order. The
additional reporting requirements would 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. In accordance with the
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice
also announces AMS's intention to request approval from OMB for a new
information collection. The information collected would facilitate
administration of the marketing order.
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, would 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 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 would 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 would impact no more than
20 handlers of pistachios, and further estimates that, on average, a
handler would 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.
Initial 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 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 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 20 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 $5,000,000. Eight
of the 20 handlers subject to regulation have annual pistachio receipts
of at least $5,000,000. 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 eight USDA approved testing laboratories that may participate
in this program. At least half are handler in-house operations and
already included in the estimated respondents. Other testing
laboratories are
[[Page 15604]]
government agencies. One other existing laboratory is part of the Dried
Fruit Association of California. We do not have specific information
but believe that this association would be considered a small entity.
This proposal invites comments on establishing reporting
requirements authorized under the California pistachio order. These
additional reporting requirements would 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. In accordance with the
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice
also announces AMS's intention to request approval from OMB for this
new information collection. The information collected would facilitate
proper implementation of the marketing order.
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 (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 APC-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 would be collected is necessary to properly administer
the marketing order. It further concluded that the burden was
relatively small compared to the benefits that would 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 would 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 would be important to the administration of the order and would
enhance committee operations.
Further, the committee's meetings were widely publicized throughout
the pistachio industry and all interested persons were encouraged to
attend the 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.
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 address
in the FOR FURTHER INFORMATION CONTACT section.
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. 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), AMS announces its intention to request an approval of a
new information collection for the marketing order regulating
pistachios grown in California.
Title: Pistachios Grown in California; Marketing Order No. 983.
OMB Number: 0581-New.
Type of Request: New collection.
Abstract: These information collection requirements are essential
to carry out the intent of the Act, to provide the respondents the type
of service they request, and to administer the California pistachio
marketing order program which has been operating since 2004.
On November 3, 2004, the Committee unanimously recommended the
establishment of a new subpart--``Rules and Regulations,'' and a new
section, ``Sec. 983.147--Reports.'' The Committee further clarified
this recommendation at its December 15, 2004, meeting. Section 983.147
would require handlers and certain USDA approved testing laboratories
to file up to six forms. These forms would enable the committee to
obtain information on: Pistachios failing to meet quality and aflatoxin
requirements; pistachios that are reworked and disposed of in marketing
channels; transfers of uninspected pistachios between regulated
handlers; shipments and inventories of pistachios and related
information, and identify handlers eligible for marketing order
exemptions. Approximately half of the handlers (8 of 20 estimated
handlers and the Dried Fruit Association of California) have the
capability to file reports electronically. There are an estimated eight
testing laboratories. At least half are handler in-house operations
which are included in the estimated respondents. Other testing
laboratories are government agencies. OMB does not require government
agencies to be reported as respondents for the purposes of the
Paperwork Reduction Act. One other existing laboratory is part of the
Dried Fruit Association of California, which is included as part of the
estimate of respondents.
The information collected would be used only by authorized
representatives of the USDA, including AMS, Fruit and Vegetable Program
regional and headquarters staff, and authorized committee employees.
Authorized committee employees are the primary
[[Page 15605]]
users of the information and AMS is the secondary user. Such
information would be kept confidential in accordance with the Act and
order.
Total Annual Estimated Burden
The total burden for the proposed information collection under the
order is as follows:
Estimate of Total Burden per Response: Public reporting burden for
this collection of information is estimated to average less than 11.8
minutes.
Estimated Number of Respondents: 20 (handlers and one laboratory).
Estimated Number of Responses per Respondent: 23.6 responses per
handler per form.
Estimated Total Annual Burden on Respondents: 92.4 hours.
Estimated Annual Burden for Each Form
For each new form, the proposed request for approval of the new
information collection under the order is as follows:
ACP-2 Failed Lot Notification Form
Handlers would use this form to notify the committee of the failure
of a lot of pistachios to pass minimum size/quality requirements under
the order. USDA certified aflatoxin laboratories would use this form to
notify the committee of the failure of a lot of pistachios that exceeds
the maximum aflatoxin requirements under the order.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 12 minutes per response.
Respondents: Persons who handle California pistachios and testing
laboratory(s).
Estimated Number of Respondents: 20.
Estimated Number of Responses per Respondent: 5.
Estimated Total Annual Burden on Respondents: 20 hours.
ACP-3 Failed Lot Disposition and Rework Report Form
Handlers would use this form to notify the committee of the
disposition or reworking of failed lots. This would enable the
committee to verify that failed lots were disposed of in accordance
with the marketing order.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 12 minutes per response.
Respondents: Persons who handle California pistachios.
Estimated Number of Respondents: 20.
Estimated Number of Responses per Respondent: 5.
Estimated Total Annual Burden on Respondents: 20 hours.
ACP-4 FMO Exempt Handler Notification Report Form
Handlers would use this form to notify the committee that they
handled 1,000 pounds or less of dried pistachios during any marketing
year (September 1 to August 31). Dried pistachios are those pistachios
which have been dried to approximately 5 percent moisture.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 6 minutes per response.
Respondents: Persons who handle California pistachios.
Estimated Number of Respondents: 10.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 1 hour.
ACP-5 Minimal Testing Report Form
Handlers who handle less than 1,000,000 pounds of assessed weight
pistachios in a production year (September 1-August 31) would use this
form to apply for committee approval to operate under the order's
minimal quantities provisions.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 6 minutes per response.
Respondents: Persons who handle less than 1,000,000 pounds of
assessed weight California pistachios in the production year.
Estimated Number of Respondents: 10.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 1 hour.
ACP-6 Inter-Handler Transfer Report
Handlers would use this form to notify the committee that they had
transferred uninspected pistachios within the production area to
another handler within the production area.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 12 minutes per response.
Respondents: Persons who transfer or receive uninspected California
pistachios within the production area.
Estimated Number of Respondents: 12.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 2.4 hours.
ACP-7 Monthly Report of Inventory/Shipments
Handlers would use this form to report their monthly inventory and
domestic shipments of pistachios.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 12 minutes per response.
Respondents: Persons who handle California pistachios.
Estimated Number of Respondents: 20.
Estimated Number of Responses per Respondent: 12.
Estimated Total Annual Burden on Respondents: 48 hours.
Comments: Comments are invited on: (1) Whether this collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information would have practical
utility; (2) the accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used; (3) ways to enhance the quality,
utility, and clarity of the information to be collected; and (4) ways
to minimize the burden of the collection of information on those who
are to respond, including the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology.
Comments should reference OMB No. 0581-New and the Marketing Order
for Pistachios Grown in California, and be sent to the USDA in care of
the Docket Clerk at the previously-mentioned address. All comments
timely received will be available for public inspection during regular
business hours at the same address.
All responses to this notice will be summarized and included in the
request for OMB approval. All comments received will become a matter of
public record and will be available for public inspection during
regular business hours at the same address or at http://www.ams.usda.gov/fv/moab.html.
Once the Web site page is opened, click
on ``pistachios'' and find the docket number of this rule. Any comments
received regarding this rule will be found in the ``Comments'' link. If
no comments have been received in response to a rule, there will be no
``Comments'' link available.
In summary, this proposal would establish reporting requirements
authorized under the California pistachio order. These additional
reporting requirements would enable the committee to collect
information on:
[[Page 15606]]
(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 would allow
the Committee to obtain accurate information for preparation of the
annual marketing policy statement, as required under the order. Any
comments received will be considered prior to finalization of this
rule.
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 December 10, 2004 (69 FR 71749). This form would be
included in the order at Sec. 983.253, at such time that it is
approved.
List of Subjects in 7 CFR Part 983
Pistachios, Marketing agreements and orders, Reporting and
recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 983 is
proposed to be amended as follows:
PART 983--PISTACHIOS GROWN IN CALIFORNIA
1. The authority citation for 7 CFR part 983 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. In part 983, a new subpart titled ``Subpart--Rules and
Regulations'' consisting of Sec. 983.147 is 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 would like 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 year to show compliance with the marketing order provisions.
Dated: March 23, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-6082 Filed 3-23-05; 3:56 pm]
BILLING CODE 3410-02-P