Pistachios Grown in the State of California; Termination of Language in Table 3, “Maximum Defect and Minimum Size Levels”, 23065-23068 [05-8861]
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23065
Proposed Rules
Federal Register
Vol. 70, No. 85
Wednesday, May 4, 2005
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
SOCIAL SECURITY ADMINISTRATION
5 CFR Chapter LXXXI
RINs 0960–AE48, 3209–AA15
Supplemental Standards of Ethical
Conduct for Employees of the Social
Security Administration
AGENCY:
Social Security Administration
(SSA).
Proposed rules; reopening of
comment period.
ACTION:
SUMMARY: On February 11, 2005, SSA,
with the concurrence of the Office of
Government Ethics (OGE), published a
notice of proposed rulemaking (NPRM)
in the Federal Register (70 FR 7192–
7196) that would supplement, for
officers and employees of SSA, the OGE
Standards of Ethical Conduct for
Employees of the Executive Branch. The
proposed regulations would set forth
prohibitions and prior approval
requirements for certain outside
employment and other outside activities
for all SSA employees, except special
Government employees, and would set
forth additional prior approval
requirements for SSA Administrative
Law Judges. To allow the public
additional time to send us comments,
we are reopening the comment period.
DATES: To be sure that your comments
are considered, we must receive them
by June 3, 2005.
ADDRESSES: You may give us your
comments by: using our Internet facility
(i.e., Social Security Online) at https://
policy.ssa.gov/pnpublic.nsf/LawsRegs;
e-mail to regulations@ssa.gov; telefax to
(410) 966–2830; or letter to the
Commissioner of Social Security, P.O.
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You may also deliver them to the Office
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p.m. on regular business days.
Comments are posted on our Internet
site, or you may inspect them physically
on regular business days by making
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arrangements with the contact person
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LawsRegs.
FOR FURTHER INFORMATION CONTACT:
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Counsel, Office of General Law,
telephone (410) 966–6581, fax (410)
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On
February 11, 2005 (70 FR 7192–7196),
we published ‘‘Supplemental Standards
of Ethical Conduct for Employees of the
Social Security Administration’’ as an
NPRM, with a 30-day public comment
period. This NPRM would set forth
prohibitions and prior approval
requirements for certain outside
employment and other outside activities
for all SSA employees, except special
Government employees, and would set
forth additional prior approval
requirements for SSA Administrative
Law Judges. SSA has received a request
to extend the comment period. This
factor, and the importance of the
proposed rule, makes it appropriate to
reopen the comment period for another
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have already provided comments on the
NPRM, your comments will be
considered and you do not need to
resubmit them.
SUPPLEMENTARY INFORMATION:
Dated: April 21, 2005.
Jo Anne B. Barnhart,
Commissioner of Social Security.
Approved: April 25, 2005.
Marilyn L. Glynn,
Acting Director, Office of Government Ethics.
[FR Doc. 05–8848 Filed 5–3–05; 8:45 am]
BILLING CODE 4191–02–P
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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’’
Agricultural Marketing Service,
USDA.
ACTION: Proposed rule.
AGENCY:
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: https://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: https://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,
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Federal Register / Vol. 70, No. 85 / Wednesday, May 4, 2005 / Proposed Rules
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.
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
SUPPLEMENTARY INFORMATION:
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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 § 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 § 983.39.
ACP preparations for implementing
the regulatory provisions of the order
have brought to light that two subheadings 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.
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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 § 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
§ 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
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Federal Register / Vol. 70, No. 85 / Wednesday, May 4, 2005 / Proposed Rules
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:
https://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.
§ 983.39
[Amended]
2. In § 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 .......................................................................................................................
(i) Maximum non-splits allowed ....................................................................................................................
2. Adhering hull material ......................................................................................................................................
3. Dark stain ........................................................................................................................................................
4. Damage by other means, other than 1, 2 and 3 above, which materially detracts from the appearance or
the edible or marketing quality of the individual shell or the lot. .....................................................................
10.0
4.0
2.0
3.0
........................
........................
........................
........................
10.0
........................
6.0
3.0
4.0
2.5
2.0
9.0
0.5
........................
2.0
........................
1.0
0.25
0.25
6.0
5.0
........................
0.1
........................
........................
........................
INTERNAL (KERNEL) DEFECTS
1. Damage ...........................................................................................................................................................
Immature kernel (Fills <75%–>50% of the shell)
Kernel spotting (Affects 1⁄8 aggregate surface)
2. Serious damage ..............................................................................................................................................
Minor insect or vertebrate injury/insect damage, insect evidence, mold, rancidity, decay
(i) Maximum insect damage allowed ............................................................................................................
Total internal defects allowed ..............................................................................................................................
OTHER DEFECTS
1. Shell pieces and blanks ..................................................................................................................................
(Fills <50% of the shell)
(i) Maximum blanks allowed .........................................................................................................................
2. Foreign material—No glass, metal or live insects permitted ..........................................................................
3. Particles and dust ............................................................................................................................................
4. Loose kernels ..................................................................................................................................................
Maximum allowable inshell pistachios that will pass through a 30⁄64ths inch round hole screen .......................
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Federal Register / Vol. 70, No. 85 / Wednesday, May 4, 2005 / Proposed Rules
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
FEDERAL ELECTION COMMISSION
11 CFR Part 100
Definition of Federal Election Activity
Federal Election Commission.
Notice of proposed rulemaking.
AGENCY:
SUMMARY: The Federal Election
Commission seeks comments on
proposed changes to its rules defining
‘‘Federal election activity’’ under the
Federal Election Campaign Act of 1971,
as amended (‘‘FECA’’). The proposed
changes would retain the existing
definition of ‘‘voter registration activity’’
and modify the existing definitions of
‘‘get-out-the-vote activity’’ and ‘‘voter
identification’’ consistent with the
ruling of the U.S. District Court for the
District of Columbia in Shays v. FEC.
The Commission has made no final
decision on the issues presented in this
rulemaking. Further information is
provided in the supplementary
information that follows.
DATES: Comments must be received on
or before June 3, 2005. If the
Commission receives sufficient requests
to testify, it may hold a hearing on these
proposed rules. Anyone wishing to
testify at the hearing must file written
comments by the due date and must
include a request to testify in the
written comments.
ADDRESSES: All comments must be in
writing, addressed to Ms. Mai T. Dinh,
Assistant General Counsel, and
submitted in either electronic, facsimile
or hard copy form. Commenters are
strongly encouraged to submit
comments electronically to ensure
timely receipt and consideration.
Electronic comments must be sent to
either FEAdef@fec.gov or submitted
through the Federal eRegulations Portal
at https://www.regulations.gov. If the
electronic comments include an
attachment, the attachment must be in
Adobe Acrobat (.pdf) or Microsoft Word
(.doc) format. Faxed comments should
be sent to (202) 219–3923, with hard
copy follow-up. Hard copy comments
and hard copy follow-up of faxed
comments should be sent to the Federal
Election Commission, 999 E Street,
NW., Washington, DC 20463. All
comments must include the full name
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13:04 May 03, 2005
Ms.
Mai T. Dinh, Assistant General Counsel,
Mr. J. Duane Pugh Jr., Senior Attorney,
or Ms. Margaret G. Perl, Attorney, 999
E Street, NW., Washington, DC 20463,
(202) 694–1650 or (800) 424–9530.
SUPPLEMENTARY INFORMATION: The
Bipartisan Campaign Reform Act of
2002 (‘‘BCRA’’), Public Law No. 107–
155, 116 Stat. 81 (2002), amended FECA
by adding a new term, ‘‘Federal election
activity’’ (‘‘FEA’’), that describes certain
activities that State, district, and local
party committees must pay for with
either Federal funds 1 or a combination
of Federal and Levin funds.2 2 U.S.C.
431(20) and 441i(b)(1); see also 2 U.S.C.
441i(d)(1) (prohibiting national, State,
district or local party committees from
soliciting or directing non-Federal funds
to 501(c) tax-exempt organizations
which engage in FEA); 2 U.S.C.
441i(e)(4) (limiting Federal candidate
and officeholder solicitations for funds
on behalf of 501(c) tax-exempt
organizations whose principal purpose
is to conduct certain types of FEA). The
Commission further defined FEA in 11
CFR 100.24. In Shays v. FEC, 337 F.
Supp.2d 28, 101, 106–07 (D.D.C. 2004),
appeal docketed, No. 04–5352 (D.C. Cir.
Sept. 28, 2004) (‘‘Shays’’), the district
court held that certain parts of the
definitions of ‘‘voter registration
activity’’ and ‘‘get-out-the-vote activity’’
(‘‘GOTV’’) in 11 CFR 100.24(a)(2) and
(3), respectively, had not been
promulgated with adequate notice and
opportunity for comment. In addition,
the district court held that certain
aspects of the definitions of ‘‘get-outthe-vote activity’’ and ‘‘voter
identification’’ in 11 CFR 100.24(a)(3)
and (4), respectively, were inconsistent
with Congressional intent. Shays at 104,
107 n.83, and 108.3 The district court
FOR FURTHER INFORMATION CONTACT:
[Notice 2005–13]
ACTION:
and postal service address of the
commenter or they will not be
considered. The Commission will post
comments on its Web site after the
comment period ends. If the
Commission decides a hearing is
necessary, the hearing will be held in
the Commission’s ninth floor meeting
room, 999 E Street, NW., Washington,
DC.
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1 ‘‘Federal funds’’ are funds subject to the
limitations, prohibitions, and reporting
requirements of the Act. See 11 CFR 300.2(g).
2 ‘‘Levin funds’’ are funds that are raised by State,
district or local party committees pursuant to the
restrictions in 11 CFR 300.31 and disbursed subject
to the restrictions in 11 CFR 300.32. See 11 CFR
300.2(i).
3 The district court described the first step of the
Chevron analysis, which courts use to review an
agency’s regulations: ‘‘a court firsts asks ‘whether
Congress has directly spoken to the precise question
at issue. If the intent of Congress is clear, that is
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remanded the case for further action
consistent with the court’s decision. The
Commission has initiated this
rulemaking to comply with the district
court order.
1. 11 CFR 100.24(a)(2)—Definition of
‘‘Voter Registration Activity’’
BCRA does not define ‘‘voter
registration activity’’ other than to
specify that it is only FEA when it is
conducted 120 days or fewer before a
regularly scheduled Federal election.
See 2 U.S.C. 431(20)(A)(i). Current
section 100.24(a)(2) defines voter
registration activity to mean ‘‘contacting
individuals by telephone, in person, or
by other individualized means to assist
them in registering to vote.’’ (Emphasis
added). The definition also includes a
non-exhaustive list of examples of costs
that are included, such as printing and
distributing registration and voting
information, providing individuals with
voter registration forms, and assisting
individuals in the completion and filing
of such forms.
In Shays, the plaintiffs argued that the
requirement that voter registration
activity ‘‘assist’’ in the registration of
voters impermissibly narrowed the
definition because it excludes from its
reach encouragement that does not
constitute actual assistance. See Shays
at 98. The district court found that the
Commission’s interpretation of section
431(20)(A) does not conflict with the
expressed intent of Congress. Shays at
99–100. ‘‘[T]he Court note[d] that it is
possible to read the term ‘voter
registration activity’ to encompass those
activities that actually register persons
to vote, as opposed to those that only
encourage persons to do so without
more. [citation omitted]. Moreover, the
Court [did not] find based on the record
presented that the ‘common usage’ of
the term ‘voter registration activity’
necessarily includes the latter type of
activities.’’ Id. at 99.4
The court also held that the question
of whether the regulation satisfies step
two of the Chevron test—whether the
Commission’s interpretation of the
statute is a permissible one—was not
ripe for review. While the court found
that the regulation is not an
impermissible construction of BCRA,
the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously
expressed intent of Congress.’ ’’ See Shays at 51
(quoting Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, 467 U.S. 837, 842–43 (1984)).
4 The Court also noted an apparent discrepancy
between 11 CFR 100.133 and 11 CFR 106.5(a)(2)(iv)
with regard to the definition of voter registration
and get-out-the-vote activity. See Shays at 99 n.71,
103 n.77. However, any such comparison is no
longer relevant since the latter regulation sunsetted
on December 31, 2002.
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]]>Agencies
[Federal Register Volume 70, Number 85 (Wednesday, May 4, 2005)]
[Proposed Rules]
[Pages 23065-23068]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-8861]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: https://
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: https://
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: https://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...............
------------------------------------------------------------------------
[[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
