[Federal Register: December 7, 2007 (Volume 72, Number 235)]
[Rules and Regulations]
[Page 69139-69142]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07de07-2]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 983
[Docket No. AMS-FV-07-0082; FV07-983-1 IFR]
Pistachios Grown in California; Changes in Handling Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This rule changes the handling requirements currently
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). This rule suspends the minimum quality requirements,
including maximum defects and minimum sizes, for California pistachios.
This will reduce handler costs and provide handlers more flexibility in
meeting customer needs.
DATES: Effective December 10, 2007; comments received by February 5,
2008 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, Washington, DC
20250-0237; Fax: (202) 720-8938; 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.regulations.gov
.
FOR FURTHER INFORMATION CONTACT: Terry Vawter, Senior Marketing
Specialist, or Kurt J. Kimmel, Regional Manager, California Marketing
Field Office, Marketing Order Administration Branch, Fruit and
Vegetable Programs, AMS, USDA; Telephone: (559) 487-5901, Fax: (559)
487-5906, or Email: Terry.Vawter@usda.gov or Kurt.Kimmel@usda.gov.
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
[[Page 69140]]
the petition, provided an action is filed not later than 20 days after
the date of the entry of the ruling.
This rule changes the handling requirements for pistachios
currently authorized under the order. This rule suspends the minimum
quality requirements, including maximum defects and minimum sizes, for
California pistachios. This will reduce handler costs and provide
handlers more flexibility in meeting customer needs. This action was
recommended by the committee.
Section 983.39 establishes minimum quality levels for pistachios,
including maximum defects and minimum sizes permitted under the order.
Under Sec. 983.46, the Secretary may modify, suspend, or make rules
and regulations to implement Sec. Sec. 983.38 through 983.45 based
upon a recommendation by seven concurring committee members or other
available information.
The quality and size requirements have been in effect for
California pistachios since the order's inception in 2004. Evidence
provided at the promulgation hearing suggested that there was a direct
link between lower-quality pistachios and the incidence of aflatoxin
contamination (see 68 FR 45990). Aflatoxin is one of a group of
mycotoxins produced by the molds Aspergillus flavus and Aspergillus
parasiticus. Aflatoxins are naturally-occurring in the field and can be
further spread in improperly processed and stored nuts, dried fruits,
and grains. The data presented at the hearing was based on aflatoxin
analyses of pistachios with different defects. Although the data also
indicated that the levels of aflatoxin associated with each defect
varied widely, researchers attributed this to variability among the
samples.
As further data was collected in 2005 and 2006, University of
California researchers concluded that variability in aflatoxin levels
seen in previous studies may have been due to geographic variability
1 2. Aflatoxin contamination is more prevalent in pistachios
produced in the northern San Joaquin Valley, while quality defects,
largely due to insect damage, are less prevalent. The opposite is true
for the southern San Joaquin Valley. It is now believed that these
differences in aflatoxin contamination between the growing areas are
due to differences in climate. The northern San Joaquin Valley has more
aflatoxin contamination because its cooler temperatures and greater
moisture are more conducive to Aspergillus and aflatoxin development,
but less conducive to insect population and damage. However, in the
southern San Joaquin Valley, there is a higher incidence of insect
damage and a much lower incidence of aflatoxin contamination because of
the drier environment and higher temperatures. Thus, recent research
suggests that aflatoxin occurrence in pistachios may be attributable to
climatic factors.
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\1\ Doster, M.A., T.J. Michailides, L.D. Boeckler, and D.P.
Morgan, 2006. Development of expert systems and predictive models
for aflatoxin contamination in pistachios. In California Pistachio
Industry Annual Report Crop Year 2005-2006, pg. 101-102.
\2\ Doster, M.A., T.J. Michailides, L.D. Boeckler, and D.P.
Morgan, 2007. Prediction of aflatoxin contamination and a survey of
fungi producing Ochratoxin A in California pistachios. In California
Pistachio Industry Annual Report Crop Year 2006-2007, pg. 109-110.
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Additionally, growers and handlers are reporting unexpected
problems with the size of pistachios this season, as well as with
staining of the nut shell from the hull. Pistachios are smaller than
usual, and the large crop has resulted in a large percentage of
pistachios which may not meet the requirements of the order because the
sizes are smaller than currently authorized, which is 30/64ths of an
inch. Staining is a problem this season due to unseasonable humidity
and spotty rains on August 26th and 30th. The moisture wet the outer
hull, and the hull then stained the pistachio shell. Dark stains are an
external defect, which affects overall pistachio quality.
Thus, the committee recommended suspending the minimum quality
requirements, which include maximum defects and minimum sizes, under
the order. This will reduce handler costs and provide handlers more
flexibility in meeting customer needs. Suspending these requirements
also necessitates modifications to other sections of the order and
regulations that reference minimum quality and size requirements.
Accordingly, this rule partially suspends or amends language in
Sec. Sec. 983.6, 983.7, 983.31, 983.38, 983.40, 983.41, 983.42,
983.45, 983.138, 983.143, and 983.147 of the order; and suspends
Sec. Sec. 983.19, 983.20, 983.39, and 983.141 in their entirety.
Additionally, the third sentence in Sec. 983.11(b), and all of
Sec. 983.71 are removed because the committee's State counterpart, the
California Pistachio Commission, has been terminated and there is
currently no relationship between the two organizations.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), 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 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.
There are approximately 740 producers in the production area, and
50 handlers of California pistachios subject to regulation. The Small
Business Administration (SBA) (13 CFR 121.201) defines small
agricultural producers as those having annual receipts less than
$750,000, and defines small agricultural service firms those whose
annual receipts are less than $6,500,000. Of the 740 producers,
approximately 722 have annual receipts of less than $750,000. Forty-two
of the 50 handlers subject to regulation have annual pistachio receipts
of less than $6,500,000. Thus, the majority of producers and handlers
of California pistachios may be classified as small entities.
This rule changes the handling requirements authorized under the
order. This rule suspends the minimum quality requirements, including
maximum defects and minimum sizes, for California pistachios. Authority
for this action is provided in Sec. 983.46.
Regarding the impact on affected entities, suspending the minimum
quality requirements will decrease handler inspection costs. The
committee currently estimates that the direct costs to obtain
inspection average approximately $50.00 per lot. The average lot is
approximately 44,000 pounds. With over 100,000,000 pounds shipped
domestically, the direct costs for inspection for approximately 2,300
lots could total $115,000 for the industry. The direct costs do not
include handler staff time in preparing samples, and handler storage
and recordkeeping costs associated with inspected pistachios.
The committee considered alternatives to suspending the minimum
quality requirements. Some producers were concerned that this could
give handlers too much latitude in their operations. Other producers
commented that handlers' customers would likely dictate product quality
and prevent shipment of substandard pistachios into the market.
Ultimately, the majority of committee members supported the changes.
[[Page 69141]]
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), the form ACP-5, ``Minimal Testing'' being suspended by
this rule was previously approved by the Office of Management and
Budget and assigned OMB No. 0581-0215, Pistachios Grown in California,
for 1 burden hour. 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.
AMS is committed to complying with the E-Government Act, to promote
the use of the Internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes.
USDA has not identified any relevant Federal rules that duplicate,
overlap, or conflict with this rule.
Further, the committee meetings where this action was discussed
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, these were public meetings, and entities of all sizes were
encouraged to express their views on these issues. Finally, interested
persons are invited to submit comments on this interim final rule,
including 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.
This rule invites comments on changes to the handling requirements
currently prescribed under the order. Any comments received will be
considered prior to finalization of this rule.
The order provisions suspended by this action no longer tend to
effectuate the declared policy of the Act. Accordingly, 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 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) It relaxes quality requirements currently in effect; (2)
handlers are already receiving 2007-08 crop pistachios, and this rule
should apply to as much of the 2007-08 crop as possible; (3) handlers
are aware of these changes, which were discussed at two public
meetings; and (4) this rule has 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.
Sec. Sec. 983.19, 983.20, 983.39, 983.141 [Amended]
0
2. In part 983, Sec. Sec. 983.19, 983.20, 983.39, and 983.141 are
suspended indefinitely.
Sec. 983.6 [Amended]
0
3. In Sec. 983.6, the words ``free of internal defects as defined in
Sec. 983.39(b)(4) and (5)'' are suspended indefinitely.
Sec. 983.7 [Amended]
0
4. In Sec. 983.7, the words ``and minimum quality'' are suspended
indefinitely.
Sec. 983.11 [Amended]
0
5. In Sec. 983.11, paragraph (b), the third sentence is removed.
Sec. 983.31 [Amended]
0
6. In Sec. 983.31, the words ``and/or minimum quality'' are suspended
indefinitely.
Sec. 983.38 [Amended]
0
7. In Sec. 983.38, paragraph (d)(1), the words ``and divided between
those pistachios for aflatoxin testing and those for minimum quality
testing'' are suspended indefinitely.
0
8. In Sec. 983.38, paragraph (d)(4), the word ``, grade'' is suspended
from the penultimate sentence indefinitely.
Sec. 983.40 [Amended]
0
9. Paragraph (a) of Sec. 983.40 is suspended indefinitely.
0
10. In Sec. 983.40, paragraph (b), the words ``and/or the minimum
quality'' are suspended from the first sentence indefinitely, the words
``either'' and ``or the minimum quality'' are suspended from the second
sentence indefinitely, and the words ``, and the handler, under the
supervision of an inspector, shall send the failed lot notification
reports for the lots that do not meet the minimum quality requirements
to the committee'' are suspended from the third sentence indefinitely.
0
11. In Sec. 983.40, paragraph (c), the fifth sentence is suspended
indefinitely.
0
12. Paragraph (e) of Sec. 983.40 is suspended indefinitely.
Sec. 983.41 [Amended]
0
13. Paragraph (b) of Sec. 983.41 is suspended indefinitely.
Sec. 983.42 [Amended]
0
14. In Sec. 983.42, the words ``and minimum quality certificate'' are
suspended indefinitely.
Sec. 983.45 [Amended]
0
15. In Sec. 983.45, the words ``and minimum quality requirements,''
the first ``Sec. ,'' and ``and 983.39'' are suspended indefinitely.
Sec. 983.71 [Removed]
0
16. Section 983.71 is removed.
0
17. Section 983.138 is revised to read as follows:
Sec. 983.138 Samples for testing.
Prior to testing, a sample shall be drawn from each lot to be used
to test pistachios for aflatoxin. The lot sample shall be of sufficient
weight to comply with Tables 1 and 2 of Sec. 983.38.
Sec. 983.143 [Amended]
0
18. Section 983.143 is amended by revising paragraph (b) to read as
follows:
Sec. 983.143 Reinspection.
(a) * * *
(b) Each handler who handles pistachios shall cause any lot or
portion of a lot initially certified for aflatoxin, and subsequently
materially changed, to be reinspected for aflatoxin and certified as a
new lot or new lots: Provided, That, handlers exempted from order
requirements under Sec. 983.170 are exempt from all reinspection
requirements.
0
19. In Sec. 983.147, paragraph (a) is revised to read as follows:
[[Page 69142]]
Sec. 983.147 Reports.
(a) ACP-2, Failed Lot Notification. Each handler shall notify the
Administrative Committee for Pistachios (committee) of all lots that
fail to meet the order's maximum aflatoxin requirements by completing
section A of this form. Handlers shall furnish this report to the
committee no later than 10 days after completion of the aflatoxin test.
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.
* * * * *
Sec. 983.147 [Amended]
0
20. Paragraph (d) of Sec. 983.147 is suspended indefinitely.
Dated: December 4, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 07-5989 Filed 12-5-07; 10:02 am]
BILLING CODE 3410-02-P