[Federal Register: May 4, 2005 (Volume 70, Number 85)]
[Proposed Rules]
[Page 23065-23068]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04my05-10]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 983
[Docket No. FV05-983-3 PR]
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: Proposed rule.
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SUMMARY: This proposed rule would terminate 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. Correction of the table was unanimously
recommended by the Administrative Committee for Pistachios, the
committee responsible for local administration of the order.
DATES: Comments received by May 19, 2005 will be considered prior to
issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning the proposal to: 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, E-mail: moab.docketclerk@usda.gov, or Internet: http://www.regulations.gov.
Comments should reference the docket number and
the date and page number of this issue of 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: Melissa Schmaedick, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, P.O.
Box 1035, Moab, Utah, 84532; Telephone: (435) 259-7988, Fax: (435) 259-
4945; or Rose Aguayo, California Marketing Field Office, Marketing
Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA,
2202 Monterey Street, Suite 102 B, Fresno,
[[Page 23066]]
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 proposed pursuant to 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 proposal is not intended to have retroactive
effect. This proposed rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this proposed 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 action would terminate language in Table 3, ``Maximum 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 would apply to language in two portions of the table: (1)
In the ``Internal (Kernel) Defects'' section, the words ``external or''
would 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)'' would be removed so that all information in the
table would 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 would remove these errors and would allow Table 3 to read
as originally intended by the group establishing 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 correction,
USDA is proposing to remove and terminate 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, of the provisions 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 have brought to light that two sub-headings in Table 3, ``Maximum
Defect and Minimum Size Levels,'' were erroneously included at the time
of promulgation. In the ``Internal (Kernel) Defects'' section, the
words ``external or'' would be removed from the heading ``Total
external or internal defects allowed'' because this section of the
table only applies to internal defects, not external defects.
Additionally, the sub-heading ``Minimum permissible defects (percent by
weight)'' would be removed from the table so that all information in
the table would be captured under the table heading ``Maximum
Permissible Defects (percent by weight).'' Termination of this language
would remove these errors and would allow Table 3 to read as originally
intended by the group responsible for promulgating the order.
This language should be removed prior to the effective date of the
regulatory provisions of the order (August 1, 2005).
The Regulatory Flexibility Act and Effects on Small Businesses
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 proposal 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 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 out 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 would terminate language in Table 3, ``Maximum Defect
and Minimum Size Levels'' in Sec. 983.39 of the order. The termination
would apply to language in two portions of the table: (1) In the
``Internal (Kernel) Defects'' section, the words ``external or'' would
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)'' would be removed so that all information in the table
would 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
would be impacted by this termination. The termination would serve to
facilitate more accurate interpretation of the information presented in
Table 3. Thus, no significant impact on large or small
[[Page 23067]]
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 a 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. Committee meetings
are open to the public. No comments or recommendations against the
recommendation were received.
A comment period of 15 days after publication of this proposal in
the Federal Register is deemed appropriate so that the termination of
language in Table 3 can be made effective as soon as possible and prior
to the beginning of the 2005-2006 production year, which begins
September 1, 2005, and ends August 31, 2006. Pistachios harvested and
received in August of any year are applied to the subsequent production
year for marketing order purposes. This proposal has been discussed at
open meetings of the ACP and is fully supported.
In compliance with Office of 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 Number 0581-0215. This action 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. In addition, USDA has not identified any relevant Federal
rules that duplicate, overlap, or conflict with this rule.
The Committee's meeting was publicized and all Committee members
and alternate Committee members, representing both large and small
entities, were invited to attend the meeting and participate in
Committee deliberations. The Committee itself is composed of 11
members, of which 8 members are growers, 2 are handlers, and one
represents the public.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at the
following Web site: 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.
In summary, the termination would apply to language in two portions
of the table. In the ``Internal (Kernel) Defects'' section, the words
``external or'' would be removed and terminated, and the sub-heading
``Minimum permissible defects (percent by weight)'' would be removed
and terminated so that all information in the table would be captured
under the table heading ``Maximum permissible defects (percent by
weight).''
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.
Sec. 983.39 [Amended]
2. In Sec. 983.39, Table 3 is revised to read as follows:
Table 3.--Maximum Defect and Minimum Size Levels
------------------------------------------------------------------------
Maximum permissible defects
(percent by weight)
Factor ---------------------------------
Inshell Kernels
------------------------------------------------------------------------
EXTERNAL (SHELL) DEFECTS
------------------------------------------------------------------------
1. Non-splits & not split on suture... 10.0 ..............
(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 10.0 ..............
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 insect damage allowed. 2.0 0.5
Total internal defects allowed........ 9.0 ..............
---------------------------------------
OTHER DEFECTS
------------------------------------------------------------------------
1. Shell pieces and blanks............ 2.0 ..............
(Fills < 50% of the shell)
(i) Maximum blanks allowed........ 1.0 ..............
2. Foreign material--No glass, metal 0.25 0.1
or live insects permitted............
3. Particles and dust................. 0.25 ..............
4. Loose kernels...................... 6.0 ..............
Maximum allowable inshell pistachios 5.0 ..............
that will pass through a \30/64\ths
inch round hole screen...............
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[[Page 23068]]
Dated: April 29, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-8861 Filed 5-3-05; 8:45 am]
BILLING CODE 3410-02-P