Pistachios Grown in California; Establishment of Reporting Requirements, 39905-39908 [05-13755]

Download as PDF 39905 Rules and Regulations Federal Register Vol. 70, No. 132 Tuesday, July 12, 2005 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, The Code of Federal Regulations is sold by DC 20250–0237; telephone: (202) 720– the Superintendent of Documents. Prices of 2491, Fax: (202) 720–8938, or e-mail: new books are listed in the first FEDERAL REGISTER issue of each week. Jay.Guerber@usda.gov. SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing Order DEPARTMENT OF AGRICULTURE No. 983 (7 CFR part 983), regulating the handling of pistachios grown in Agricultural Marketing Service California, hereinafter referred to as the ‘‘order.’’ The order is effective under the 7 CFR Part 983 Agricultural Marketing Agreement Act [Docket No. FV05–983–1 FR] of 1937, as amended (7 U.S.C. 601–674), hereinafter referred to as the ‘‘Act.’’ Pistachios Grown in California; The Department of Agriculture Establishment of Reporting (USDA) is issuing this rule in Requirements conformance with Executive Order 12866. AGENCY: Agricultural Marketing Service, This final rule has been reviewed USDA. under Executive Order 12988, Civil ACTION: Final rule. Justice Reform. This rule is not intended to have retroactive effect. This rule will SUMMARY: This rule establishes reporting not preempt any State or local laws, requirements authorized under the regulations, or policies, unless they California pistachio marketing order (order). The order regulates the handling present an irreconcilable conflict with this rule. of pistachios grown in California and is The Act provides that administrative administered locally by the proceedings must be exhausted before Administrative Committee for parties may file suit in court. Under Pistachios (committee). These section 608c(15)(A) of the Act, any additional reporting requirements will handler subject to an order may file enable the committee to collect with USDA a petition stating that the information on: Pistachios failing to order, any provision of the order, or any meet quality and aflatoxin requirements; obligation imposed in connection with failing pistachios that are reworked or the order is not in accordance with law disposed of in accordance with and request a modification of the order applicable requirements; handlers or to be exempted therefrom. A handler applying for exemptions; transfers of is afforded the opportunity for a hearing uninspected pistachios between on the petition. After the hearing USDA regulated handlers; and inventories and would rule on the petition. The Act shipments of pistachios. provides that the district court of the EFFECTIVE DATE: July 13, 2005. United States in any district in which FOR FURTHER INFORMATION CONTACT: Rose the handler is an inhabitant, or has his Aguayo, California Marketing Field or her principal place of business, has Office, Marketing Order Administration jurisdiction to review USDA’s ruling on Branch, Fruit and Vegetable Programs, the petition, provided an action is filed AMS, USDA, 2202 Monterey Street, not later than 20 days after the date of Suite 102B, Fresno, California 93721; the entry of the ruling. This final rule establishes reporting telephone: (559) 487–5901, Fax: (559) requirements authorized under the 487–5906; or George Kelhart, Technical California pistachio order. The Advisor, Marketing Order additional reporting requirements will Administration Branch, Fruit and enable the committee to collect Vegetable Programs, AMS, USDA, 1400 information on: (1) Pistachios failing to Independence Avenue, SW., STOP meet quality and aflatoxin requirements; 0237, Washington, DC 20250–0237; (2) failing pistachios that are reworked telephone: (202) 720–2491, Fax: (202) or disposed under the marketing order; 720–8938. This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. VerDate jul<14>2003 14:34 Jul 11, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 (3) handlers applying for exemptions; (4) transfers of uninspected pistachios between regulated handlers; and (5) inventories and shipments of pistachios. Sections 983.38, 983.39, and 983.40 of the pistachio order specify maximum aflatoxin requirements, minimum quality requirements, and failed lot rework and disposition procedures, respectively. Sections 983.41 of the pistachio order provides exemptions for certain aflatoxin and quality testing requirements for handlers who handle less than 1,000,000 pounds of assessed weight pistachios per marketing year (September 1–August 31). Section 983.47 of the pistachio order provides authority to require handlers to furnish such reports and information on such forms as are needed to enable USDA and the committee to perform their functions and enforce order provisions. Section 983.70 of the pistachio order exempts handlers who handle 1,000 pounds or less of dried weight pistachios (dried to 5 percent moisture) from all aflatoxin and minimum quality requirements. Under these authorities, the committee, at its November 3, 2004, meeting unanimously recommended establishing a new subpart ‘‘Rules and Regulations,’’ and a new section entitled ‘‘§ 983.147—Reports’’ to delineate and define six new forms, ACP–2 through ACP–7. The committee further clarified this recommendation at its December 15, 2004, meeting. Detailed information on the burdens created by these new forms is discussed later in this document. The recommended forms, ACP–2 through ACP–7, will be used by the committee to track pistachios that fail to meet minimum quality and maximum aflatoxin requirements (ACP–2); track lots which have been reworked or disposed of in accordance with marketing order requirements (ACP–3); identify handlers who handle 1,000 dried pounds or less of pistachios per production year (September 1–August 31) (ACP–4) and properly apply marketing order exemptions; identify handlers who handle less than 1,000,000 pounds of assessed weight pistachios per marketing year (September 1–August 31) (ACP–5) and properly apply marketing order exemptions; track uninspected E:\FR\FM\12JYR1.SGM 12JYR1 39906 Federal Register / Vol. 70, No. 132 / Tuesday, July 12, 2005 / Rules and Regulations pistachios that are transferred between regulated handlers (ACP–6); and track monthly shipments and handler inventories (ACP–7). The majority of the forms recommended by the committee (ACP– 2 through APC–6) are new reporting requirements, and do not duplicate information collected by any other Federal agency. One form, ACP–7 is similar to a report required by the California Pistachio Commission (commission), a program overseen by the State of California, under which California pistachio research and promotion activities are implemented. Because the commission is prohibited from sharing confidential handler information, the committee recommended the ACP–7 be implemented for committee use to provide information necessary to administer the order. Because shipment and inventory data is already compiled by handlers for the commission, handlers may attach the commission report to the committee form to meet this new reporting requirement. Thus, handlers will not be duplicating their efforts and both agencies would receive necessary data for respective program purposes. Further, the information collection does not duplicate that collected by any other Federal agency. The committee estimates that this action will impact no more than 24 handlers of pistachios, and further estimates that, on average, a handler will expend no more than an average of 11.8 minutes in completing each form. The total estimated annual burden for all six forms is estimated to be 92.4 hours. The committee believes that these forms are easy to prepare and file, and place as small a reporting burden as possible on handlers. These forms and their respective burdens were discussed at public meetings at which all affected entities were encouraged to comment on the effect of requiring these forms to be completed and filed by pistachio handlers. The committee vote was unanimous, with 8 in favor and none opposed or abstaining. 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 would not be unduly or disproportionately burdened. Marketing orders issued pursuant to the VerDate jul<14>2003 14:34 Jul 11, 2005 Jkt 205001 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. Thus, both statutes have small entity orientation and compatibility. There are approximately 24 handlers of California pistachios subject to regulation under the order and approximately 741 producers in the production area. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $6,000,000. Seven of the 24 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 handlers and producers of California pistachios may be classified as small entities. There are an estimated nine USDA approved testing laboratories that may participate in this program. Five of these laboratories are handler in-house operations and already included in the estimated respondents. Other testing laboratories are government agencies. There are two other existing laboratories. One is part of the Dried Fruit Association of California and the other is a private laboratory operated by Am Cal Analytical Laboratories. We believe that this association and private laboratory would be considered small entities. This final rule establishes reporting requirements authorized under the California pistachio order. These additional reporting requirements will enable the committee to collect information on: (1) Pistachios failing to meet quality and aflatoxin requirements; (2) failing pistachios that are reworked or disposed of in marketing order requirements; (3) handlers applying for exemptions; (4) transfers of uninspected pistachios between regulated handlers; and (5) inventories and shipments of pistachios. Sections 983.38, 983.39, and 983.40 of the pistachio order provide maximum aflatoxin requirements, and minimum quality requirements, and failed lot rework and disposition procedures, respectively. Sections 983.41 of the pistachio order provides exemptions for certain aflatoxin and quality testing requirements for handlers who handle less than 1,000,000 pounds of assessed weight pistachios per marketing year (September 1–August 31). Section 983.47 of the pistachio order provides authority for the committee to PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 require handlers to furnish such reports and information on such forms as are needed to enable the Secretary of Agriculture and the committee to perform their functions and enforce order provisions. Section 983.70 of the pistachio order exempts handlers who handle 1,000 pounds or less of dried weight pistachios during any marketing year (dried to 5 percent moisture) from all aflatoxin and minimum quality requirements. Under these authorities, the committee, at its November 3, 2004, meeting, unanimously recommended establishing a new subpart ‘‘Rules and Regulations,’’ and a new section entitled ‘‘§ 983.147—Reports’’ to delineate and define six new forms, ACP–2 through ACP–7. The committee further clarified this recommendation at its December 15, 2004, meeting. The majority of the reports recommended by the committee are new reporting requirements (ACP–2 through ACP–6). One form, ACP–7 is similar to a report required by the commission, a program overseen by the State of California, under which California pistachio research and promotion activities are implemented. The committee debated the overall merits of the forms at its meetings, deliberating over the value of the information to be collected relative to the burden which each form would impose on the regulated handlers. In the end, the committee concluded that the information that will be collected is necessary to properly administer the marketing order. It further concluded that the burden was relatively small compared to the benefits that will be accrued by the committee and industry from the information obtained. The committee discussed alternatives to establishing these reporting requirements including not adopting ACP–4, as it was believed that this information might be obtained by staff during compliance audits. Upon reviewing the auditing procedure, committee members determined that utilization of the ACP–4 will be a more feasible means of obtaining information on identifying exempt handlers. Thus, the committee unanimously recommended all six forms for implementation. It believes that the information to be provided on each of the recommended forms will be important to the administration of the order and will enhance committee operations. Further, the committee’s meetings were widely publicized throughout the pistachio industry and all interested persons were encouraged to attend the E:\FR\FM\12JYR1.SGM 12JYR1 Federal Register / Vol. 70, No. 132 / Tuesday, July 12, 2005 / Rules and Regulations meetings and participate in the committee’s deliberations. Like all committee meetings, the November 3 and December 15, 2004, meetings were public meetings and entities of all sizes were invited to express their views on these issues. A proposed rule concerning this action was published in the Federal Register on March 28, 2005 (70 FR 15602). The proposal also announced AMS’s intent to request an approval of a new information collection for the marketing order regulating pistachios grown in California. Copies of the proposal were also mailed or sent via facsimile to all pistachio handlers. Finally, the proposed rule was made available through the Internet by USDA and the Office of the Federal Register. A 60-day comment period ending May 27, 2005, was provided to allow interested persons to respond to the proposal. No comments were 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. It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register (5 U.S.C. 553) because the committee is required to furnish handlers with one of the forms by July 15. Further, handlers are aware of this rule, which was unanimously recommended at a public meeting. Also, a 60-day comment period was provided for in the proposed rule, and no comments were received. 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, 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. A detailed discussion of the six new forms follows. Paperwork Reduction Act In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection VerDate jul<14>2003 14:34 Jul 11, 2005 Jkt 205001 requirements that are contained in this rule were approved by the Office of Management and Budget (OMB), under OMB No. 0581–0230. The information collection has been merged into OMB No. 0581–0215 Pistachios Grown in California, which expires May 31, 2008. Since publication of the proposed rule on March 28, 2005 (70 FR 15602), the committee has found that the number of respondents (handlers and approved aflatoxin laboratories) has increased from 20 to 25. However, 5 of these 25 respondents will be exempt from filing 5 of the 6 forms, as they handle 1,000 pounds or less and are exempt from handling requirements and most reporting requirements. In summary, this final rule establishes reporting requirements authorized under the California pistachio order. These additional reporting requirements will enable the committee to collect information on: (1) Pistachios failing to meet quality and aflatoxin requirements; (2) failing pistachios that are reworked or disposed of in accordance with marketing order requirements; (3) handlers applying for exemptions; (4) transfers of uninspected pistachios between regulated handlers; and (5) inventories and shipments of pistachios. Additionally, it will allow the committee to obtain accurate information for preparation of the annual marketing policy statement, as required under the order. Another form, ACP 1, was not included with this approval request because that form was part of a previous request, published in the Federal Register on March 1, 2005 (70 FR 9843). List of Subjects in 7 CFR Part 983 Pistachios, Marketing agreements and orders, Reporting and recordkeeping requirements. I For the reasons set forth in the preamble, 7 CFR part 983 is amended as follows: PART 983—PISTACHIOS GROWN IN CALIFORNIA 1. The authority citation for 7 CFR part 983 continues to read as follows: I Authority: 7 U.S.C. 601–674. 2. In part 983, a new Subpart—Rules and Regulations and § 983.147—Reports are added to read as follows: I Subpart—Rules and Regulations § 983.147 Reports. (a) ACP–2, Failed Lot Notification. Each handler shall notify the Administrative Committee for Pistachios (committee) of all lots which fail to meet the order’s minimum quality PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 39907 requirements by completing sections A and B of this form. Handlers shall furnish this report to the committee no later than 10 days after test completion. 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. (b) ACP–3, Failed Lot Disposition and Rework Report. Each handler who reworks a failing lot of pistachios shall complete this report and shall forward it to the committee no later than 10 days after the rework is completed. If rework is not selected as a remedy, the handler shall submit the form to the committee office within 10 days of disposition of the lot. (c) ACP–4, Federal Marketing Order Exempt Handler Notification. Each handler who handles 1,000 pounds or less of dried weight pistachios in a production year shall complete and furnish this report to the committee no later than November 15 of each production year. (d) ACP–5, Minimal Testing Form. Each handler who handles less than 1,000,000 pounds of dried weight pistachios in a production year and who wishes to request an exemption under the minimal quantities provisions (Section 983.41) of the order shall furnish this report to the committee office no later than August 1 of each production year. (e) ACP–6, Inter-handler Transfer. Each handler who transfers uninspected pistachios to another handler within the production area shall complete the ACP–6 and sign Part A. The transferring handler shall forward the original ACP– 6 and one copy to the handler who receives the uninspected pistachios. The transferring handler shall furnish one copy of ACP–6 to the committee within 30 days of the transfer. The handler receiving the uninspected pistachios (receiving handler) shall sign Part B of the original ACP–6 and shall file it with the committee within 30 days of the transfer. (f) ACP–7 Monthly Report of Inventory/Shipments. Each handler of pistachios shall file this report with the committee by the 10th day of each month for the previous month’s inventory and shipment information. (g) Exemptions. Handlers, who handle 1,000 pounds or less of dried pistachios during any marketing year, are exempt from filing all forms with the exception of the ACP–4. (h) Records. Each handler shall maintain all records of pistachios received, held, shipped, and disposed of for at least 3 years following each crop E:\FR\FM\12JYR1.SGM 12JYR1 39908 Federal Register / Vol. 70, No. 132 / Tuesday, July 12, 2005 / Rules and Regulations year to show compliance with the marketing order provisions. Dated: July 8, 2005. Kenneth C. Clayton, Acting Administrator, Agricultural Marketing Service. [FR Doc. 05–13755 Filed 7–11–05; 8:45 am] BILLING CODE 3410–02–P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. NM311; Special Conditions No. 25–291–SC] Special Conditions: Raytheon Model BH.125 Series 400A, DH.125 Series 400A, and HS.125 Series 400B Airplanes; High-Intensity Radiated Fields (HIRF) Federal Aviation Administration (FAA), DOT. ACTION: Final special conditions; request for comments. AGENCY: SUMMARY: These special conditions are issued for Raytheon Model BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes modified by Envoy Aerospace. These modified airplanes will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. The modification incorporates digital air data computers and displays that perform critical functions. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for the protection of these systems from the effects of high-intensity radiated fields (HIRF). These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. DATES: The effective date of these special conditions is July 1, 2005. Comments must be received on or before August 11, 2005. ADDRESSES: Comments on these special conditions may be mailed in duplicate to: Federal Aviation Administration, Transport Airplane Directorate, Attention: Rules Docket (ANM–113), Docket No. NM311, 1601 Lind Avenue, SW., Renton, Washington 98055–4056; or delivered in duplicate to the Transport Airplane Directorate at the above address. All comments must be marked Docket No. NM311. VerDate jul<14>2003 14:34 Jul 11, 2005 Jkt 205001 Greg Dunn, FAA, Airplane and Flight Crew Interface Branch, ANM–111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98055–4056; telephone (425) 227–2799; facsimile (425) 227–1320. SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION CONTACT: Comments Invited The FAA has determined that notice and opportunity for prior public comment is impracticable because these procedures would significantly delay certification of the airplane and thus delivery of the affected airplanes. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance; however, we invite interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments. We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays. We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive. If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you. Background On March 28, 2005, Envoy Aerospace, 5027 Switch Grass Lane, Naperville, Illinois 60564–5368, applied for a supplemental type certificate (STC) to modify Raytheon Model BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes. Raytheon Model PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes are currently approved under Type Certificate No. A3EU. The Raytheon Model BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes are transport category airplanes powered by two turbofan engines, with maximum takeoff weights of up to 23,600 pounds. These airplanes operate with a 2-pilot crew and can seat up to 8 passengers. The proposed modification includes the incorporation of dual Innovative Solutions and Support Air Data Systems. The avionics installed in these airplanes have the potential to be vulnerable to highintensity radiated fields (HIRF) external to the airplane. Type Certification Basis Under the provisions of 14 CFR 21.101, Envoy Aerospace must show that the Raytheon Aircraft Company Model BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A3EU or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the ‘‘original type certification basis.’’ The certification basis for the Raytheon Aircraft Company Model BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes includes CAR.4b dated December 1953, Amendment 4b–1 through 4b–11, exclusive of CAR 4b.350(e), and includes Special Regulation SR.422B. In addition, the certification basis includes later amended sections of 14 CFR part 25 that are not relevant to these special conditions. If the Administrator finds that the applicable airworthiness regulations (i.e., part 25, as amended) do not contain adequate or appropriate safety standards for the Raytheon Aircraft Company Model BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes, because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16. In addition to the applicable airworthiness regulations and special conditions, the Raytheon Aircraft Company Model BH.125 series 400A, DH.125 series 400A, and HS.125 series 400B airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. E:\FR\FM\12JYR1.SGM 12JYR1

Agencies

[Federal Register Volume 70, Number 132 (Tuesday, July 12, 2005)]
[Rules and Regulations]
[Pages 39905-39908]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-13755]



========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
week.

========================================================================


Federal Register / Vol. 70, No. 132 / Tuesday, July 12, 2005 / Rules 
and Regulations

[[Page 39905]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 983

[Docket No. FV05-983-1 FR]


Pistachios Grown in California; Establishment of Reporting 
Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule establishes reporting 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). 
These additional reporting requirements will enable the committee to 
collect information on: Pistachios failing to meet quality and 
aflatoxin requirements; failing pistachios that are reworked or 
disposed of in accordance with applicable requirements; handlers 
applying for exemptions; transfers of uninspected pistachios between 
regulated handlers; and inventories and shipments of pistachios.

EFFECTIVE DATE: July 13, 2005.

FOR FURTHER INFORMATION CONTACT: Rose Aguayo, California Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA, 2202 Monterey Street, Suite 102B, 
Fresno, California 93721; telephone: (559) 487-5901, Fax: (559) 487-
5906; or George Kelhart, Technical Advisor, 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.
    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 not later than 20 days after the date of 
the entry of the ruling.
    This final rule establishes reporting requirements authorized under 
the California pistachio order. The additional reporting requirements 
will enable the committee to collect information on: (1) Pistachios 
failing to meet quality and aflatoxin requirements; (2) failing 
pistachios that are reworked or disposed under the marketing order; (3) 
handlers applying for exemptions; (4) transfers of uninspected 
pistachios between regulated handlers; and (5) inventories and 
shipments of pistachios.
    Sections 983.38, 983.39, and 983.40 of the pistachio order specify 
maximum aflatoxin requirements, minimum quality requirements, and 
failed lot rework and disposition procedures, respectively.
    Sections 983.41 of the pistachio order provides exemptions for 
certain aflatoxin and quality testing requirements for handlers who 
handle less than 1,000,000 pounds of assessed weight pistachios per 
marketing year (September 1-August 31).
    Section 983.47 of the pistachio order provides authority to require 
handlers to furnish such reports and information on such forms as are 
needed to enable USDA and the committee to perform their functions and 
enforce order provisions.
    Section 983.70 of the pistachio order exempts handlers who handle 
1,000 pounds or less of dried weight pistachios (dried to 5 percent 
moisture) from all aflatoxin and minimum quality requirements.
    Under these authorities, the committee, at its November 3, 2004, 
meeting unanimously recommended establishing a new subpart ``Rules and 
Regulations,'' and a new section entitled ``Sec.  983.147--Reports'' to 
delineate and define six new forms, ACP-2 through ACP-7. The committee 
further clarified this recommendation at its December 15, 2004, 
meeting.
    Detailed information on the burdens created by these new forms is 
discussed later in this document.
    The recommended forms, ACP-2 through ACP-7, will be used by the 
committee to track pistachios that fail to meet minimum quality and 
maximum aflatoxin requirements (ACP-2); track lots which have been 
reworked or disposed of in accordance with marketing order requirements 
(ACP-3); identify handlers who handle 1,000 dried pounds or less of 
pistachios per production year (September 1-August 31) (ACP-4) and 
properly apply marketing order exemptions; identify handlers who handle 
less than 1,000,000 pounds of assessed weight pistachios per marketing 
year (September 1-August 31) (ACP-5) and properly apply marketing order 
exemptions; track uninspected

[[Page 39906]]

pistachios that are transferred between regulated handlers (ACP-6); and 
track monthly shipments and handler inventories (ACP-7).
    The majority of the forms recommended by the committee (ACP-2 
through APC-6) are new reporting requirements, and do not duplicate 
information collected by any other Federal agency. One form, ACP-7 is 
similar to a report required by the California Pistachio Commission 
(commission), a program overseen by the State of California, under 
which California pistachio research and promotion activities are 
implemented. Because the commission is prohibited from sharing 
confidential handler information, the committee recommended the ACP-7 
be implemented for committee use to provide information necessary to 
administer the order. Because shipment and inventory data is already 
compiled by handlers for the commission, handlers may attach the 
commission report to the committee form to meet this new reporting 
requirement. Thus, handlers will not be duplicating their efforts and 
both agencies would receive necessary data for respective program 
purposes. Further, the information collection does not duplicate that 
collected by any other Federal agency.
    The committee estimates that this action will impact no more than 
24 handlers of pistachios, and further estimates that, on average, a 
handler will expend no more than an average of 11.8 minutes in 
completing each form. The total estimated annual burden for all six 
forms is estimated to be 92.4 hours.
    The committee believes that these forms are easy to prepare and 
file, and place as small a reporting burden as possible on handlers. 
These forms and their respective burdens were discussed at public 
meetings at which all affected entities were encouraged to comment on 
the effect of requiring these forms to be completed and filed by 
pistachio handlers. The committee vote was unanimous, with 8 in favor 
and none opposed or abstaining.

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 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. Thus, both statutes have small 
entity orientation and compatibility.
    There are approximately 24 handlers of California pistachios 
subject to regulation under the order and approximately 741 producers 
in the production area. Small agricultural producers are defined by the 
Small Business Administration (13 CFR 121.201) as those having annual 
receipts less than $750,000, and small agricultural service firms are 
defined as those whose annual receipts are less than $6,000,000. Seven 
of the 24 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 handlers and producers of 
California pistachios may be classified as small entities. There are an 
estimated nine USDA approved testing laboratories that may participate 
in this program. Five of these laboratories are handler in-house 
operations and already included in the estimated respondents. Other 
testing laboratories are government agencies. There are two other 
existing laboratories. One is part of the Dried Fruit Association of 
California and the other is a private laboratory operated by Am Cal 
Analytical Laboratories. We believe that this association and private 
laboratory would be considered small entities.
    This final rule establishes reporting requirements authorized under 
the California pistachio order. These additional reporting requirements 
will enable the committee to collect information on: (1) Pistachios 
failing to meet quality and aflatoxin requirements; (2) failing 
pistachios that are reworked or disposed of in marketing order 
requirements; (3) handlers applying for exemptions; (4) transfers of 
uninspected pistachios between regulated handlers; and (5) inventories 
and shipments of pistachios.
    Sections 983.38, 983.39, and 983.40 of the pistachio order provide 
maximum aflatoxin requirements, and minimum quality requirements, and 
failed lot rework and disposition procedures, respectively.
    Sections 983.41 of the pistachio order provides exemptions for 
certain aflatoxin and quality testing requirements for handlers who 
handle less than 1,000,000 pounds of assessed weight pistachios per 
marketing year (September 1-August 31).
    Section 983.47 of the pistachio order provides authority for the 
committee to require handlers to furnish such reports and information 
on such forms as are needed to enable the Secretary of Agriculture and 
the committee to perform their functions and enforce order provisions.
    Section 983.70 of the pistachio order exempts handlers who handle 
1,000 pounds or less of dried weight pistachios during any marketing 
year (dried to 5 percent moisture) from all aflatoxin and minimum 
quality requirements.
    Under these authorities, the committee, at its November 3, 2004, 
meeting, unanimously recommended establishing a new subpart ``Rules and 
Regulations,'' and a new section entitled ``Sec.  983.147--Reports'' to 
delineate and define six new forms, ACP-2 through ACP-7. The committee 
further clarified this recommendation at its December 15, 2004, 
meeting.
    The majority of the reports recommended by the committee are new 
reporting requirements (ACP-2 through ACP-6). One form, ACP-7 is 
similar to a report required by the commission, a program overseen by 
the State of California, under which California pistachio research and 
promotion activities are implemented.
    The committee debated the overall merits of the forms at its 
meetings, deliberating over the value of the information to be 
collected relative to the burden which each form would impose on the 
regulated handlers. In the end, the committee concluded that the 
information that will be collected is necessary to properly administer 
the marketing order. It further concluded that the burden was 
relatively small compared to the benefits that will be accrued by the 
committee and industry from the information obtained.
    The committee discussed alternatives to establishing these 
reporting requirements including not adopting ACP-4, as it was believed 
that this information might be obtained by staff during compliance 
audits. Upon reviewing the auditing procedure, committee members 
determined that utilization of the ACP-4 will be a more feasible means 
of obtaining information on identifying exempt handlers. Thus, the 
committee unanimously recommended all six forms for implementation. It 
believes that the information to be provided on each of the recommended 
forms will be important to the administration of the order and will 
enhance committee operations.
    Further, the committee's meetings were widely publicized throughout 
the pistachio industry and all interested persons were encouraged to 
attend the

[[Page 39907]]

meetings and participate in the committee's deliberations. Like all 
committee meetings, the November 3 and December 15, 2004, meetings were 
public meetings and entities of all sizes were invited to express their 
views on these issues.
    A proposed rule concerning this action was published in the Federal 
Register on March 28, 2005 (70 FR 15602). The proposal also announced 
AMS's intent to request an approval of a new information collection for 
the marketing order regulating pistachios grown in California. Copies 
of the proposal were also mailed or sent via facsimile to all pistachio 
handlers. Finally, the proposed rule was made available through the 
Internet by USDA and the Office of the Federal Register. A 60-day 
comment period ending May 27, 2005, was provided to allow interested 
persons to respond to the proposal. No comments were 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.
    It is further found that good cause exists for not postponing the 
effective date of this rule until 30 days after publication in the 
Federal Register (5 U.S.C. 553) because the committee is required to 
furnish handlers with one of the forms by July 15. Further, handlers 
are aware of this rule, which was unanimously recommended at a public 
meeting. Also, a 60-day comment period was provided for in the proposed 
rule, and no comments were received.
    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, 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. A detailed discussion of the six new 
forms follows.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the information collection requirements that are contained 
in this rule were approved by the Office of Management and Budget 
(OMB), under OMB No. 0581-0230. The information collection has been 
merged into OMB No. 0581-0215 Pistachios Grown in California, which 
expires May 31, 2008.
    Since publication of the proposed rule on March 28, 2005 (70 FR 
15602), the committee has found that the number of respondents 
(handlers and approved aflatoxin laboratories) has increased from 20 to 
25. However, 5 of these 25 respondents will be exempt from filing 5 of 
the 6 forms, as they handle 1,000 pounds or less and are exempt from 
handling requirements and most reporting requirements.
    In summary, this final rule establishes reporting requirements 
authorized under the California pistachio order. These additional 
reporting requirements will enable the committee to collect information 
on: (1) Pistachios failing to meet quality and aflatoxin requirements; 
(2) failing pistachios that are reworked or disposed of in accordance 
with marketing order requirements; (3) handlers applying for 
exemptions; (4) transfers of uninspected pistachios between regulated 
handlers; and (5) inventories and shipments of pistachios. 
Additionally, it will allow the committee to obtain accurate 
information for preparation of the annual marketing policy statement, 
as required under the order.
    Another form, ACP 1, was not included with this approval request 
because that form was part of a previous request, published in the 
Federal Register on March 1, 2005 (70 FR 9843).

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 part 983, a new Subpart--Rules and Regulations and Sec.  
983.147--Reports are added to read as follows:

Subpart--Rules and Regulations


Sec.  983.147  Reports.

    (a) ACP-2, Failed Lot Notification. Each handler shall notify the 
Administrative Committee for Pistachios (committee) of all lots which 
fail to meet the order's minimum quality requirements by completing 
sections A and B of this form. Handlers shall furnish this report to 
the committee no later than 10 days after test completion. 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.
    (b) ACP-3, Failed Lot Disposition and Rework Report. Each handler 
who reworks a failing lot of pistachios shall complete this report and 
shall forward it to the committee no later than 10 days after the 
rework is completed. If rework is not selected as a remedy, the handler 
shall submit the form to the committee office within 10 days of 
disposition of the lot.
    (c) ACP-4, Federal Marketing Order Exempt Handler Notification. 
Each handler who handles 1,000 pounds or less of dried weight 
pistachios in a production year shall complete and furnish this report 
to the committee no later than November 15 of each production year.
    (d) ACP-5, Minimal Testing Form. Each handler who handles less than 
1,000,000 pounds of dried weight pistachios in a production year and 
who wishes to request an exemption under the minimal quantities 
provisions (Section 983.41) of the order shall furnish this report to 
the committee office no later than August 1 of each production year.
    (e) ACP-6, Inter-handler Transfer. Each handler who transfers 
uninspected pistachios to another handler within the production area 
shall complete the ACP-6 and sign Part A. The transferring handler 
shall forward the original ACP-6 and one copy to the handler who 
receives the uninspected pistachios. The transferring handler shall 
furnish one copy of ACP-6 to the committee within 30 days of the 
transfer. The handler receiving the uninspected pistachios (receiving 
handler) shall sign Part B of the original ACP-6 and shall file it with 
the committee within 30 days of the transfer.
    (f) ACP-7 Monthly Report of Inventory/Shipments. Each handler of 
pistachios shall file this report with the committee by the 10th day of 
each month for the previous month's inventory and shipment information.
    (g) Exemptions. Handlers, who handle 1,000 pounds or less of dried 
pistachios during any marketing year, are exempt from filing all forms 
with the exception of the ACP-4.
    (h) Records. Each handler shall maintain all records of pistachios 
received, held, shipped, and disposed of for at least 3 years following 
each crop

[[Page 39908]]

year to show compliance with the marketing order provisions.

    Dated: July 8, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-13755 Filed 7-11-05; 8:45 am]
BILLING CODE 3410-02-P