[Federal Register: March 20, 2008 (Volume 73, Number 55)]
[Rules and Regulations]
[Page 14917-14919]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20mr08-1]
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Rules and Regulations
Federal Register
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[[Page 14917]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 983
[Docket No. AMS-FV-07-0082; FV07-983-1 FIR]
Pistachios Grown in California; Changes in Handling Requirements
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 changing the handling
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). This rule continues in effect the action
that suspended the minimum quality requirements, including maximum
defects and minimum sizes, for California pistachios. This reduces
handler costs and provides handlers more flexibility in meeting
customer needs.
DATES: Effective Date: April 21, 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 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.''
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 action that changed the handling
requirements for pistachios currently authorized under the order. This
rule continues to suspend the minimum quality requirements, including
maximum defects and minimum sizes, for California pistachios. This
reduces handler costs and provides handlers more flexibility in meeting
customer needs. This action was recommended by the committee.
Prior to implementation of the interim final rule, Sec. 983.39
established 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 were 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
[[Page 14918]]
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 have met the requirements of the order because
the sizes are smaller than authorized, which was 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 reduces handler costs and provides handlers more
flexibility in meeting customer needs. Suspending these requirements
also necessitated modifications to other sections of the order and
regulations that referenced minimum quality and size requirements.
Accordingly, this rule continues to partially suspend or amend 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 continues to
suspend 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 were removed because the committee's State counterpart,
the California Pistachio Commission, has been terminated and there is
currently no relationship between the two organizations.
Final 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 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 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 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 rule continues in effect the action that changed the handling
requirements authorized under the order. This rule continues to suspend
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 decreases handler inspection costs. The committee
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.
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.
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 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.
An interim final rule concerning this action was published in the
Federal Register on December 7, 2007. Copies of the rule were mailed by
the committee's staff to all committee members and pistachio handlers.
In addition, the rule was made available by USDA and the Office of the
Federal Register. That rule provided for a 60-day comment period which
ended February 5, 2008. One comment was received that was not relevant
to the interim final rule.
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.
The order provisions and regulations that were suspended or
terminated no longer tend to effectuate the declared policy of the Act,
while the regulations that were revised 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 finalizing this interim final rule,
without change, as published in the Federal Register (72 FR 69139,
December 7, 2007), will effectuate the declared policy of the Act.
List of Subjects in 7 CFR Part 983
Pistachios, Marketing agreements and orders, Reporting and
recordkeeping requirements.
[[Page 14919]]
PART 983--PISTACHIOS GROWN IN CALIFORNIA
0
Accordingly, the interim final rule amending 7 CFR part 983 which was
published at 72 FR 69139 on December 7, 2007, is adopted as a final
rule without change.
Dated: March 13, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E8-5648 Filed 3-19-08; 8:45 am]
BILLING CODE 3410-02-P