[Federal Register: April 7, 2008 (Volume 73, Number 67)]
[Rules and Regulations]
[Page 18703-18706]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ap08-2]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 983
[Docket No. AMS-FV-07-0095; FV07-983-2 FR]
Pistachios Grown in California; Change in Reporting Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule changes the current reporting requirements
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 changes will modify one existing committee form and
add a new form to a currently-approved information collection. The
information collected will require handlers to report production and
producer data, enabling the committee to obtain better information for
preparing its annual marketing policy statement and conducting
committee nominations and periodic referenda under the order.
DATES: Effective Date: April 8, 2008.
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 E-mail: 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 final 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 final 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
[[Page 18704]]
not later than 20 days after the date of the entry of the ruling.
This final rule changes the reporting requirements prescribed under
the order. These changes will modify one committee form and add a new
form to the currently-approved information collection. The new form
will require handlers to report production and producer data. This new
data will enable the committee to obtain better information for
preparing its annual marketing policy statement and for conducting
committee nominations and periodic referenda for pistachio producers.
These changes were unanimously recommended by the committee on April 2,
2007.
Under Sec. 983.47 handlers are required to furnish such reports as
the committee, with the approval of the Secretary, needs to enable the
Secretary and the committee to perform their functions.
As a result of a producer referendum, the California Pistachio
Commission (CPC), a California State marketing program, was terminated
in the spring of 2007. Data historically collected by the CPC and
shared with the committee is no longer available. Such data includes
information on the total available supply of pistachios grown in
California and on the producers who produced the pistachios.
Thus, the committee unanimously recommended changes to its
reporting requirements to capture information necessary for the
effective administration of the Federal order that is no longer
available through the CPC. Specifically, the committee recommended
revising its current ACP Form 7, ``Monthly Report of Inventory/
Shipments,'' and creating a new form, ACP Form 8, ``Producer Delivery
Report.'' These forms will allow the committee to collect production,
producer, inventory, and shipment data from handlers.
Requiring handlers to report such data will enable the committee to
obtain better information on the total available supply of pistachios
grown in California and to contact pistachio producers. The order
requires the committee to prepare an annual marketing policy statement,
pursuant to Sec. 983.37. Several elements are required for an
acceptable marketing policy statement: production, harvesting,
processing, and storage conditions data. The committee is also required
to hold annual nominations for seats on the committee, and USDA is
required to conduct periodic continuance referenda. The committee needs
producer and production data to fulfill order requirements.
Currently on the ACP Form 7, all handlers must report their
beginning inventory, grower deliveries, shipments of pistachios to the
domestic market, interhandler transfers, non-handler purchases of
California product, inventory adjustments on split and shelled
pistachios, and ending inventory on a monthly basis. This final rule
will remove the requirement to report inventory adjustments to split
and shelled pistachios, as the committee believes that this information
is no longer needed. This final rule will also require handlers to
report their export shipments. Export data was previously collected by
the CPC and provided by some handlers voluntarily to the committee.
On the new form, ACP Form 8, ``Producer Delivery Report,'' handlers
will be required to annually provide the names of the producers who
deliver pistachios to them, the producers' mailing addresses and other
contact information (telephone and facsimile numbers and e-mail
addresses), the producers' employer identification numbers, total
receipts of pistachios from each producer, and the counties in which
the pistachios were grown. These reports will allow the committee to
identify all authorized voters for committee selections and referenda
in which each business entity is entitled to cast one vote. Individual
producers may produce and deliver pistachios under more than one
business entity. The information collected on this report will also
allow the committee to determine whether individual producers are
eligible to represent more than one business entity, based upon Federal
Tax Identification numbers.
The information on producer deliveries will also allow the
committee to track deliveries to handlers and verify that handlers pay
the appropriate assessments on pistachios they receive. This
information will also streamline handler audits for committee staff.
Pursuant to Sec. 983.147(c), handlers who handle less than 5,000
pounds annually will be exempt from filing ACP Form 8. These small
handlers tend to be producers who handle their own production only and
are known to the committee in their producer, as well as their handler,
capacity. Therefore, the committee already has business entity,
production, and contact information on the producers that are also
exempt handlers.
Such information will provide the committee with production and
producer data to enhance the administration of the order. An electronic
version of the form will be available to those handlers who file
electronically.
Since the addition of ACP Form 8 will require changes to the
order's rules and regulations, Sec. 983.147 will be modified to add a
new paragraph (g), and to redesignate current paragraphs (g) and (h) as
paragraphs (h) and (i).
Final 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 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.
There are approximately 740 producers in the production area and
approximately 50 handlers of California pistachios subject to
regulation under the order. 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 as 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 final rule will change Sec. 983.147 of the order's
regulations, and revise a currently-approved information collection.
The committee determined that production data the CPC previously
collected and made available to the committee was still necessary for
the efficient operation of the program. Therefore, the committee agreed
that it should require handlers to report production and shipment data
directly to the committee. In order to receive this data, the committee
unanimously recommended that current ACP Form 7, ``Monthly Report of
Inventory/Shipments,'' be revised and that a new form, ACP Form 8,
``Producer Delivery Report,'' be developed. Authority for these changes
is provided in Sec. 983.47.
On April 2, 2007, the committee deliberated on the value of
revising the current form and requiring the new form, and discussed
alternatives. It
[[Page 18705]]
determined that the only alternative would be to not collect such
industry data. However, the order requires the committee to prepare an
annual marketing policy statement. Several elements are required for an
acceptable marketing policy statement: Production, harvesting,
processing, and storage conditions data. The committee is also required
to hold annual nominations for seats on the committee, and USDA is
required to conduct periodic continuance referenda. Thus, the committee
needs this data to fulfill order requirements. The revised ACP Form 7
and the new ACP Form 8 have been approved by the Office of Management
and Budget (OMB) under OMB No. 0581-0215, ``Pistachios Grown in
California.''
As with other marketing order programs, reports and forms are
periodically reviewed to reduce information requirements and
duplication by industry and public sector agencies.
This final rule will impose additional reporting and recordkeeping
burdens on handlers. However, any additional burden is expected to be
offset by the efficient operation of the order. Handlers will continue
to file the ACP Form 7 monthly and will file the ACP Form 8 annually,
but the data collected will serve multiple purposes and streamline
committee operations. In addition, as noted in the initial regulatory
flexibility analysis, USDA has not identified any relevant Federal
rules that duplicate, overlap, or conflict with this final rule.
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.
Further, the committee's meeting was widely publicized throughout
the pistachio industry and all interested persons were encouraged to
attend the meeting and participate in the committee's deliberations.
Like all committee meetings, the April 2, 2007, meeting was a public
meeting, and entities of all sizes were encouraged to express their
views on these issues.
A proposed rule was published in the Federal Register on September
7, 2007 (72 FR 173). Copies of the proposed rule were mailed or sent
via facsimile to all committee members and handlers. Finally, the
proposed rule was made available through the Internet, USDA and the
Office of the Federal Register. A 60-day comment period ending November
6, 2007, was provided to allow interested persons to respond to the
proposal. One opposing comment was received.
The commenter was opposed to the committee collecting and
disseminating monthly export shipment and inventory data from handlers.
According to the commenter, this data, when collected by the CPC in the
past, proved valuable in evaluating market conditions and measuring the
effectiveness of marketing efforts by the industry. However, the
commenter stated that the export data is no longer necessary because
the Federal order only regulates domestically shipped product and not
exports. The commenter also expressed concern with the accuracy of the
inventory data, and contends that such discrepancies are deliberate or
accidental errors in the reporting to the committee. The commenter
stated a preference for standardized inventory reporting practices
because there are no standards for determining inventory levels. The
commenter argues that, without set procedures, handlers could easily
manipulate their reported inventory to seek competitive advantage in
the marketplace.
Regarding the concerns about export shipments, the order provides
authority for the collection of information from handlers, which
includes shipment data. The committee believes that this information is
valuable to the industry, and unanimously voted to collect this
information under the Federal order.
Regarding the concerns about the accuracy of the monthly inventory
data, the ACP-7 requires handlers to report an ``inventory adjustment''
figure, which is an adjustment to inventory due to issues including
splitting, shelling, shrink, and loss of product. According to
committee staff, there is variability in the way handlers store and
manage their pistachios, which creates differences in how handlers
report inventory adjustments. The committee is exploring ways to
improve the accuracy of this information.
Accordingly, no changes will be made to this rule based on the
comment 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 information and recommendation submitted by the committee and other
available information, it is hereby found that this 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 that good
cause exists for not postponing the effective date of this rule until
30 days after publication in the Federal Register because the data
required through this rule is no longer available from the CPC, and the
committee needs this information to ensure proper administration of the
Federal order. Further, handlers are aware of this rule, which was
unanimously recommended by the committee at a public meeting. Also, a
60-day comment period was provided for the proposed 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 Sec. 983.147, current paragraphs (g) and (h) are redesignated as
paragraphs (h) and (i), and a new paragraph (g) is added to read as
follows:
Sec. 983.147 Reports.
* * * * *
(g) ACP-8, Producer Delivery Report. Each handler of pistachios
shall file this report with the committee by the 15th day of December
of each production year: Provided, That for the 2007-08 production
year, handlers must file this report with the committee by April 17,
2008, to report his/her receipts of pistachios during the current
production year, the names of the handlers' producing entities,
business type, and the following information concerning each producing
entity: Federal Tax Identification number; mailing and e-mail address;
telephone and fax number; total bearing acres; county of production;
and for the current production year, the total receipts of open
inshell, closed shell, shelling stock of each producing entity; and
total pounds of processed pistachios produced by each producing entity.
* * * * *
[[Page 18706]]
Dated: April 2, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 08-1109 Filed 4-3-08; 1:02 pm]
BILLING CODE 3410-02-P