Pistachios Grown in California; Establishment of Procedures for Exempting Handlers From Minimum Quality Testing, 42256-42259 [05-14513]
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42256
Federal Register / Vol. 70, No. 140 / Friday, July 22, 2005 / Rules and Regulations
regulations, or policies, unless they
present an irreconcilable conflict with
this rule. There are no administrative
procedures which must be exhausted
prior to any judicial challenge to the
provisions of this rule.
Paperwork Reduction
The information collection
requirements that appear in the sections
to be amended by this action have been
previously approved by OMB and
assigned OMB Control Numbers under
the Paperwork Reduction Act (44 U.S.C.
Chapter 35) as follows: § 56.52(a)(4)—
No. 0581–0128; and § 70.77(a)(4)—No.
0581–0127.
Pursuant to 5 U.S.C. 533, it is found
and determined that good cause exists
for not postponing the effective date of
this action until 30 days after
publication in the Federal Register. The
revised fees need to be implemented on
an expedited basis in order to avoid
further financial losses in the grading
program. The effective date of the fee
increase, September 25, 2005, will
coincide with the first billing period in
FY 2006.
List of Subjects
7 CFR Part 56
Eggs and egg products, Food grades
and standards, Food labeling, Reporting
and recordkeeping requirements.
7 CFR Part 70
Food grades and standards, Food
labeling, Poultry and poultry products,
Rabbits and rabbit products, Reporting
and recordkeeping requirements.
For reasons set forth in the preamble,
title 7, Code of Federal Regulations,
parts 56 and 70 are amended as follows:
PART 56—GRADING OF SHELL EGGS
1. The authority citation for part 56
continues to read as follows:
I
Authority: 7 U.S.C. 1621–1627.
2. Section 56.46 is revised to read as
follows:
I
§ 56.46
On a fee basis.
(a) Unless otherwise provided in this
part, the fees to be charged and
collected for any service performed, in
accordance with this part, on a fee basis
shall be based on the applicable rates
specified in this section.
(b) Fees for grading services will be
based on the time required to perform
the services. The hourly charge shall be
$65.00 and shall include the time
actually required to perform the grading,
waiting time, travel time, and any
clerical costs involved in issuing a
certificate.
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(c) Grading services rendered on
Saturdays, Sundays, or legal holidays
shall be charged for at the rate of $75.12
per hour. Information on legal holidays
is available from the Supervisor.
I 3. In § 56.52, paragraph (a)(4) is revised
to read as follows:
§ 56.52 Continuous grading performed on
resident basis.
*
*
*
*
*
(a) * * *
(4) An administrative service charge
based upon the aggregate number of 30dozen cases of all shell eggs handled in
the plant per billing period multiplied
by $0.051, except that the minimum
charge per billing period shall be $260
and the maximum charge shall be
$2,875. The minimum charge also
applies where an approved application
is in effect and no product is handled.
PART 70—VOLUNTARY GRADING OF
POULTRY PRODUCTS AND RABBIT
PRODUCTS
4. The authority citation for part 70
continues to read as follows:
I
Authority: 7 U.S.C. 1621–1627.
5. Section 70.71 is revised to read as
follows:
I
§ 70.71
On a fee basis.
(a) Unless otherwise provided in this
part, the fees to be charged and
collected for any service performed, in
accordance with this part, on a fee basis
shall be based on the applicable rates
specified in this section.
(b) Fees for grading services will be
based on the time required to perform
such services for class, quality, quantity
(weight test), or condition, whether
ready-to-cook poultry, ready-to-cook
rabbits, or specified poultry food
products are involved. The hourly
charge shall be $65.00 and shall include
the time actually required to perform
the work, waiting time, travel time, and
any clerical costs involved in issuing a
certificate.
(c) Grading services rendered on
Saturdays, Sundays, or legal holidays
shall be charged for at the rate of $75.12
per hour. Information on legal holidays
is available from the Supervisor.
I 6. In § 70.77, paragraph (a)(4) is revised
to read as follows:
§ 70.77 Charges for continuous poultry or
rabbit grading performed on a resident
basis.
*
*
*
*
*
(a) * * *
(4) For poultry grading: An
administrative service charge based
upon the aggregate weight of the total
volume of all live and ready-to-cook
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poultry handled in the plant per billing
period computed in accordance with the
following: Total pounds per billing
period multiplied by $0.00039, except
that the minimum charge per billing
period shall be $260 and the maximum
charge shall be $2,875. The minimum
charge also applies where an approved
application is in effect and no product
is handled.
*
*
*
*
*
Dated: July 19, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing
Service.
[FR Doc. 05–14514 Filed 7–21–05; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 983
[Docket No. FV05–983–4 IFR]
Pistachios Grown in California;
Establishment of Procedures for
Exempting Handlers From Minimum
Quality Testing
Agricultural Marketing Service,
USDA.
ACTION: Interim final rule with request
for comments.
AGENCY:
SUMMARY: This rule establishes
procedures for exempting handlers from
quality requirements, including
maximum limits for quality defects and
minimum size, prescribed under the
California pistachio marketing order
(order). The order regulates the handling
of pistachios grown in California and is
administered locally by the
Administrative Committee for
Pistachios (Committee). These
procedures will be used by the
Committee in considering handler
requests for exemptions from minimum
quality testing requirements and when
considering revocations of such
exemptions. Additionally, this rule
establishes an appeals process for
handlers who have been denied an
exemption or had an approved
exemption revoked.
DATES: Effective July 23, 2005;
comments received by September 20,
2005 will be considered prior to
issuance of a final rule.
ADDRESSES: Interested persons are
invited to submit written comments
concerning this rule. Comments must be
sent to the Docket Clerk, Marketing
Order Administration Branch, Fruit and
Vegetable Programs, AMS, USDA, 1400
Independence Avenue SW., STOP 0237,
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Federal Register / Vol. 70, No. 140 / Friday, July 22, 2005 / Rules and Regulations
Washington, DC 20250–0237; Fax: (202)
720–8938, or E-mail:
moab.docketclerk@usda.gov; or Internet:
https://www.regulations.gov. All
comments should reference the docket
number and the date and page number
of this issue of the Federal Register and
will be made available for public
inspection in the Office of the Docket
Clerk during regular business hours, or
can be viewed at: https://
www.ams.usda.gov/fv/moab.html.
FOR FURTHER INFORMATION CONTACT: Rose
Aguayo, California Marketing Field
Office, Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA; 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 rule
is issued under Marketing Order No.
983 (7 CFR part 983), regulating the
handling of pistachios grown in
California, hereinafter referred to as the
‘‘order.’’ The order is effective under the
Agricultural Marketing Agreement Act
of 1937, as amended (7 U.S.C. 601–674),
hereinafter referred to as the ‘‘Act.’’
The Department of Agriculture
(USDA) is issuing this rule in
conformance with Executive Order
12866.
This rule has been reviewed under
Executive Order 12988, Civil Justice
Reform. This rule is not intended to
have retroactive effect. This rule will
not preempt any State or local laws,
regulations, or policies, unless they
present an irreconcilable conflict with
this rule.
The Act provides that administrative
proceedings must be exhausted before
parties may file suit in court. Under
section 608c(15)(A) of the Act, any
handler subject to an order may file
with USDA a petition stating that the
order, any provision of the order, or any
obligation imposed in connection with
the order is not in accordance with law
and request a modification of the order
or to be exempted therefrom. A handler
is afforded the opportunity for a hearing
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on the petition. After the hearing USDA
would rule on the petition. The Act
provides that the district court of the
United States in any district in which
the handler is an inhabitant, or has his
or her principal place of business, has
jurisdiction to review USDA’s ruling on
the petition, provided an action is filed
not later than 20 days after the date of
the entry of the ruling.
This rule establishes procedures for
use by the Committee in exempting
handlers from minimum quality
(maximum limits for quality defects and
minimum size) testing requirements
prescribed under the order. These
procedures also will be used by the
Committee, or its duly authorized
agents, when considering the revocation
of exemptions for good cause, and when
considering appeals of handlers who
have had exemptions denied or revoked.
Section 983.46 of the pistachio order
authorizes the Committee to recommend
that the Secretary modify or suspend the
order provisions contained in §§ 983.38
through 983.45. These sections are
scheduled to be implemented on August
1, 2005.
Section 983.41 of the pistachio order
authorizes handler exemptions from
minimum quality testing requirements
for handlers handling less than 1
million pounds of assessed weight
pistachios per production year
(September 1–August 31) and specifies
that the Committee may grant handler
exemptions. For the purposes, of this
document, the term ‘‘production year’’
is synonymous with ‘‘marketing year’’.
Section 983.70 of the pistachio order
exempts handlers who handle 1,000
pounds or less of dried weight (assessed
weight) pistachios (dried to 5 percent
moisture) during any marketing year
from all assessment, aflatoxin, and
minimum quality requirements.
Section 983.147 of the pistachio order
establishes handler reporting
requirements (ACP Forms 2–7) and
exempts handlers who handle 1,000
pounds or less of dried weight
pistachios from all reporting
requirements with the exception of ACP
Form-4. Handlers who have handled or
intend to handle 1,000 pounds or less of
dried weight pistachios during the
marketing period (September 1–August
31) must submit ACP Form-4 by
November 15 each year to the
Committee.
The recommended decision,
published on August 4, 2003, (68 FR
45990) indicates that implementing
regulations should be effectuated to
establish the specific procedures for
exempting handlers who handle more
than 1,000 pounds and less than 1
million pounds of assessed weight
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42257
pistachios per production year
(September 1–August 31) from
minimum quality testing requirements.
Under these authorities, the
Committee at its April 12, 2005,
meeting, unanimously recommended
establishing a new section entitled,
‘‘§ 983.141—Procedures for Exempting
Handlers from Minimum Quality
Testing’’ to specify appropriate
exemption, revocation, and appeal
procedures. The Committee believes
that standardized procedures would
ensure that handler requests for
exemptions and revocations of such
exemptions are treated similarly by the
Committee, and ensure that all
applicants are treated equitably.
The Committee also recommended
that handler exemptions under
§ 983.41(b) not be granted if a handler
failed to file required reports, shipped
substandard pistachios, or failed to
comply with the requirements specified
in § 983.41 on exemptions for minimum
quality testing. Revocations of approved
exemptions could be implemented by
the Committee, or its authorized agents,
for the same reasons.
Additionally, the Committee
recommended that any handler who
believes that he/she has been
improperly denied an exemption or
improperly had an exemption revoked
by the Committee should be allowed to
appeal the Committee’s action to USDA.
The Committee recommended that the
USDA review any appeals and
determine their merit. All appeals must
be submitted in writing and the
Committee would provide USDA the
complete file on each appeal.
The recommended exemption
procedures require the Committee, or its
authorized agents, to timely notify all
handlers of the opportunity to apply to
be exempted from minimum quality
testing so that all interested handlers
can submit applications on forms
provided by the Committee by the
August 1 deadline; promptly review all
requests for exemption; verify that the
quantity of assessed weight pistachios
handled by any applicants during the
prior production year was less than 1
million pounds of assessed weight and
that applicants are in compliance with
the order’s inspection, quality, and
reporting requirements; approve or
disapprove requests for exemptions by
August 20 of each year; maintain
complete files concerning the approval
or disapproval of each handler’s
application; and notify handlers by
August 30 of approval or disapproval.
A handler’s exemption would be
revoked by the Committee, or its duly
authorized agents, if the handler fails to
provide reports required under this part
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Federal Register / Vol. 70, No. 140 / Friday, July 22, 2005 / Rules and Regulations
or has not complied with the provisions
on minimal quantity testing in § 983.41.
Additionally, the Committee, or its duly
authorized agents, would revoke an
approved exemption when a handler
audit reveals that a handler has handled
a million pounds or more of assessed
weight pistachios during the applicable
production year. The revocation of a
handler’s exemption would be made in
writing to the handler and specify the
reason(s) for and the effective date.
Any handler who believes that he/she
has been improperly denied an
exemption or improperly had an
exemption revoked, may appeal to
USDA for reconsideration within 20
days after notification of the
Committee’s findings. All appeals must
be in writing.
The Committee, or its duly authorized
agents, shall forward a file with all
pertinent information related to the
handler’s appeal to USDA. USDA shall
inform the handler and all interested
persons of the Secretary’s decision.
As previously mentioned, under
§ 983.70 of the order, this rule applies
to handlers handling more than 1,000
pounds and less than 1 million pounds,
because handlers who handle 1,000
pounds or less of dried weight
pistachios are exempt from assessment,
aflatoxin, and minimum quality
requirements and from all reporting
requirements under § 983.147 of the
order’s administrative rules and
regulations, with the exception of ACP
Form-4.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in
the Regulatory Flexibility Act (RFA), the
Agricultural Marketing Service (AMS)
has considered the economic impact of
this action on small entities.
Accordingly, AMS has prepared this
initial regulatory flexibility analysis.
The purpose of the RFA is to fit
regulatory actions to the scale of
business subject to such actions in order
that small businesses will not be unduly
or disproportionately burdened.
Marketing orders issued pursuant to the
Act, and the rules issued thereunder, are
unique in that they are brought about
through group action of essentially
small entities acting on their own
behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 24 handlers
of California pistachios who are subject
to regulation under the order and about
741 producers of pistachios in the
production area. Small agricultural
service firms are defined by the Small
Business Administration (SBA)(13 CFR
121.201) as those having annual receipts
of less than $6,000,000 and small
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agricultural producers are defined as
those having annual receipts of less than
$750,000. Seventeen of the 24 handlers
subject to regulation have annual
pistachio receipts of less than
$6,000,000. In addition, 722 of the 741
producers have annual receipts less
than $750,000. Therefore, a majority of
handlers and producers may be
classified as small entities under the
SBA standards.
This rule establishes procedures for
exempting handlers from minimum
quality (maximum limits for quality
defects and minimum size) testing
requirements prescribed under the
order. These procedures will be used by
the Committee when considering
handler requests for exemptions from
minimum quality testing requirements
and when considering revocations of
such exemptions. Additionally, this rule
establishes an appeals process for
handlers who have been denied an
exemption or had an approved
exemption revoked.
Section 983.41(a) of the pistachio
order allows handlers handling less
than 1 million pounds of assessed
weight pistachios each production year
(September 1–August 31) to use
optional aflatoxin testing methods. The
optional methods permit the sampling
and testing of a handler’s entire
inventory before further processing, and
allow handlers to segregate their
receipts into various lots for sampling
and testing.
Section 983.41(b) of the pistachio
order authorizes handler exemptions
from minimum quality testing for
handlers handling less than 1 million
pounds of assessed weight pistachios
per production year and specifies that
the Committee may grant such handler
exemptions.
Section 983.70 of the pistachio order
exempts handlers who handle 1,000
pounds or less of dried weight (assessed
weight) pistachios (dried to 5 percent
moisture) during any marketing year
from all assessment, aflatoxin, and
minimum quality requirements. For the
purposes of this document, the term
‘‘marketing year’’ is synonymous with
the term ‘‘production year’’ and covers
the period September 1 through August
31.
The recommended decision,
published on August 4, 2003, (68 FR
45990) indicated that implementing
regulations should be effectuated to
establish the specific procedures for
exempting handlers who handle more
than 1,000 pounds and less than 1
million pounds of assessed weight
pistachios per production year
(September 1–August 31) from
minimum quality testing requirements.
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Under these authorities, the
Committee at its April 12, 2005,
meeting, unanimously recommended
establishing standardized procedures for
granting and revoking handler
exemption requests, and considering
handler appeals on exemption
decisions. This action will have a
positive impact on small and large
handlers by assuring that all exemption
applications and reviews are handled
following standardized procedures.
The Committee discussed alternatives
to this change, including not making
any changes, but determined that
specific procedures were needed to
facilitate: (1) Exempting handlers from
minimum quality testing; (2) revoking
exemptions when handlers violate the
marketing order; and (3) processing
appeals to the Committee’s actions.
These procedures are expected to ensure
that all such requests are treated
equitably. The Committee vote was 8 in
favor, 0 opposed, and 0 abstained.
The information collection
requirements for the ACP Form-5,
which handlers will complete and
forward to the Committee to request
exemption from minimum quality
requirements under the order, was
previously submitted to the Office of
Management and Budget (OMB) and
approved under OMB No. 0581–0230.
Thus, this action will not impose any
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.
Further, the Committee’s meetings are
widely publicized throughout the
pistachio industry and all interested
persons are invited to attend the
meetings and participate in the
Committee’s deliberations. Like all
Committee meetings, the April 12, 2005,
meeting was a public meeting and all
entities, both large and small, were able
to express their views on these issues.
Finally, interested persons are invited
to submit information on the regulatory
and informational impacts of this action
on small businesses.
A small business guide on complying
with fruit, vegetable, and specialty crop
marketing agreements and orders may
be viewed at: https://www.ams.usda.gov/
fv/moab.html. Any questions about the
compliance guide should be sent to Jay
Guerber at the previously mentioned
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Federal Register / Vol. 70, No. 140 / Friday, July 22, 2005 / Rules and Regulations
August 1. The Committee, or its duly
authorized agents, shall:
(1) Promptly review all exemption
applications received. In reviewing
applications for exemption, the
Committee, or its duly authorized
agents, shall determine that the quantity
of assessed weight pistachios handled
during the prior production year was
less than 1 million assessed weight
pounds and that the applicants are in
compliance with the order’s reporting
requirements and the provisions of
§ 983.41. Handler compliance will be
determined through handler audits;
(2) Complete the review and approve
or disapprove requests for exemptions
by August 20;
(3) Maintain complete files detailing
the reason(s) for the approval or
disapproval of each application for at
least three years beyond the crop year of
applicability; and
(4) Notify in writing all applicants by
August 30 of the approval or
disapproval of their requests together
with the reason(s) for disapproval, if
applicable.
(b) Revocation of exemptions. A
handler’s exemption shall be revoked by
the Committee, or its duly authorized
agents, if the handler fails to provide
reports required under § 983.147, or has
not complied with the provisions on
minimal quality testing in § 983.41, of
this part. Additionally, the Committee,
or its duly authorized agents, shall
revoke an approved exemption when a
handler audit reveals that a handler has
handled a million pounds or more of
List of Subjects in 7 CFR Part 983
assessed weight pistachios during the
Pistachios, Marketing agreements and current production year. The revocation
of a handler’s exemption shall be made
orders, Reporting and recordkeeping
in writing to the handler and shall
requirements.
specify the reason(s) for and the
I For the reasons set forth in the
preamble, 7 CFR part 983 is amended as effective date.
(c) Appeals. (1) Any handler who
follows:
believes that he/she has been
improperly denied an exemption or
PART 983—PISTACHIOS GROWN IN
improperly had an exemption revoked,
CALIFORNIA
may appeal to the Secretary, within 20
I 1. The authority citation for 7 CFR part
days after notification of the
983 continues to read as follows:
Committee’s, or agents of the
Authority: 7 U.S.C. 601–674.
Committee’s, decisions. All appeals
shall be in writing. When requested by
I 2. In part 983, § 983.141 is added to
Subpart-Rules and Regulations to read as the Secretary, the Committee, or its duly
authorized agents, shall forward a file
follows:
with all pertinent information related to
any handler appeal. The Secretary shall
§ 983.141 Procedures for exempting
handlers from minimum quality testing.
inform the handler and all interested
persons of the Secretary’s decision.
(a) Exemption procedures. The
(2) If handlers do not file an appeal or
Committee, or its duly authorized
if their appeal is denied by the
agents, shall notify all handlers each
Secretary, they shall present all
year of the opportunity to apply to be
exempted from minimum quality testing remaining lots of pistachios in inventory
and handlers shall submit such requests for minimum quality testing before
moving the pistachios into the channels
on forms furnished by the Committee.
of commerce.
The deadline for submission shall be
address in the FOR FURTHER INFORMATION
CONTACT section.
This rule invites comments on the
establishment of minimum quality
testing exemption procedures under the
order. Any comments received will be
considered prior to finalization of this
rule.
After consideration of all relevant
material presented, including the
Committee’s recommendation and other
information, it is found that this interim
final rule, as hereinafter set forth, will
tend to effectuate the declared policy of
the Act.
Pursuant to 5 U.S.C. 553, it is also
found and determined upon good cause
that it is impracticable, unnecessary,
and contrary to the public interest to
give preliminary notice prior to putting
this rule into effect and that good cause
exists for not postponing the effective
date of this rule until 30 days after
publication in the Federal Register
because: (1) This action provides
procedures to facilitate the review and
approval of minimum quality testing
exemption requests, denials and
revocations of such exemptions, and
subsequent appeals, if submitted; (2) the
Committee unanimously recommended
the procedures at a public meeting and
interested parties had an opportunity to
provide input; (3) handlers are required
to file the exemption form with the
Committee by August 1 of each year;
and (4) this rule provides for a 60-day
comment period and any comments
received will be considered prior to
finalization of this rule.
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42259
Dated: July 18, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing
Service.
[FR Doc. 05–14513 Filed 7–19–05; 1:38 pm]
BILLING CODE 3410–02–P
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection
Service
9 CFR Part 77
[Docket No. 04–068–1]
Tuberculosis in Cattle and Bison; State
and Zone Designations; New Mexico
Animal and Plant Health
Inspection Service, USDA.
ACTION: Interim rule and request for
comments.
AGENCY:
SUMMARY: We are amending the bovine
tuberculosis regulations regarding State
and zone classifications by removing
New Mexico from the list of modified
accredited advanced States, adding
portions of two counties in New Mexico
to the list of modified accredited
advanced zones, and adding the
remainder of the State to the list of
accredited-free zones. We are taking this
action based on our determination that
New Mexico meets the requirements of
the regulations for zone recognition and
that one of the zones meets the criteria
for designation as accredited-free.
DATES: This interim rule is effective July
22, 2005. We will consider all
comments that we receive on or before
September 20, 2005.
ADDRESSES: You may submit comments
by any of the following methods:
• EDOCKET: Go to https://
www.epa.gov/feddocket to submit or
view public comments, access the index
listing of the contents of the official
public docket, and to access those
documents in the public docket that are
available electronically. Once you have
entered EDOCKET, click on the ‘‘View
Open APHIS Dockets’’ link to locate this
document.
• Postal Mail/Commercial Delivery:
Please send four copies of your
comment (an original and three copies)
to Docket No. 04–068–1, Regulatory
Analysis and Development, PPD,
APHIS, Station 3C71, 4700 River Road
Unit 118, Riverdale, MD 20737–1238.
Please state your comment refers to
Docket No. 04–068–1.
• Federal eRulemaking Portal: Go to
https://www.regulations.gov and follow
the instructions for locating this docket
and submitting comments.
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]]>Agencies
[Federal Register Volume 70, Number 140 (Friday, July 22, 2005)]
[Rules and Regulations]
[Pages 42256-42259]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-14513]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 983
[Docket No. FV05-983-4 IFR]
Pistachios Grown in California; Establishment of Procedures for
Exempting Handlers From Minimum Quality Testing
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This rule establishes procedures for exempting handlers from
quality requirements, including maximum limits for quality defects and
minimum size, prescribed under the California pistachio marketing order
(order). The order regulates the handling of pistachios grown in
California and is administered locally by the Administrative Committee
for Pistachios (Committee). These procedures will be used by the
Committee in considering handler requests for exemptions from minimum
quality testing requirements and when considering revocations of such
exemptions. Additionally, this rule establishes an appeals process for
handlers who have been denied an exemption or had an approved exemption
revoked.
DATES: Effective July 23, 2005; comments received by September 20, 2005
will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent to the Docket Clerk,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue SW., STOP 0237,
[[Page 42257]]
Washington, DC 20250-0237; Fax: (202) 720-8938, or E-mail:
moab.docketclerk@usda.gov; or Internet: https://www.regulations.gov. All
comments should reference the docket number and the date and page
number of this issue of the Federal Register and will be made available
for public inspection in the Office of the Docket Clerk during regular
business hours, or can be viewed at: https://www.ams.usda.gov/fv/
moab.html.
FOR FURTHER INFORMATION CONTACT: Rose Aguayo, California Marketing
Field Office, Marketing Order Administration Branch, Fruit and
Vegetable Programs, AMS, USDA; 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 rule is issued under Marketing Order
No. 983 (7 CFR part 983), regulating the handling of pistachios grown
in California, hereinafter referred to as the ``order.'' The order is
effective under the Agricultural Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.''
The Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with USDA a petition
stating that the order, any provision of the order, or any obligation
imposed in connection with the order is not in accordance with law and
request a modification of the order or to be exempted therefrom. A
handler is afforded the opportunity for a hearing on the petition.
After the hearing USDA would rule on the petition. The Act provides
that the district court of the United States in any district in which
the handler is an inhabitant, or has his or her principal place of
business, has jurisdiction to review USDA's ruling on the petition,
provided an action is filed not later than 20 days after the date of
the entry of the ruling.
This rule establishes procedures for use by the Committee in
exempting handlers from minimum quality (maximum limits for quality
defects and minimum size) testing requirements prescribed under the
order. These procedures also will be used by the Committee, or its duly
authorized agents, when considering the revocation of exemptions for
good cause, and when considering appeals of handlers who have had
exemptions denied or revoked.
Section 983.46 of the pistachio order authorizes the Committee to
recommend that the Secretary modify or suspend the order provisions
contained in Sec. Sec. 983.38 through 983.45. These sections are
scheduled to be implemented on August 1, 2005.
Section 983.41 of the pistachio order authorizes handler exemptions
from minimum quality testing requirements for handlers handling less
than 1 million pounds of assessed weight pistachios per production year
(September 1-August 31) and specifies that the Committee may grant
handler exemptions. For the purposes, of this document, the term
``production year'' is synonymous with ``marketing year''.
Section 983.70 of the pistachio order exempts handlers who handle
1,000 pounds or less of dried weight (assessed weight) pistachios
(dried to 5 percent moisture) during any marketing year from all
assessment, aflatoxin, and minimum quality requirements.
Section 983.147 of the pistachio order establishes handler
reporting requirements (ACP Forms 2-7) and exempts handlers who handle
1,000 pounds or less of dried weight pistachios from all reporting
requirements with the exception of ACP Form-4. Handlers who have
handled or intend to handle 1,000 pounds or less of dried weight
pistachios during the marketing period (September 1-August 31) must
submit ACP Form-4 by November 15 each year to the Committee.
The recommended decision, published on August 4, 2003, (68 FR
45990) indicates that implementing regulations should be effectuated to
establish the specific procedures for exempting handlers who handle
more than 1,000 pounds and less than 1 million pounds of assessed
weight pistachios per production year (September 1-August 31) from
minimum quality testing requirements.
Under these authorities, the Committee at its April 12, 2005,
meeting, unanimously recommended establishing a new section entitled,
``Sec. 983.141--Procedures for Exempting Handlers from Minimum Quality
Testing'' to specify appropriate exemption, revocation, and appeal
procedures. The Committee believes that standardized procedures would
ensure that handler requests for exemptions and revocations of such
exemptions are treated similarly by the Committee, and ensure that all
applicants are treated equitably.
The Committee also recommended that handler exemptions under Sec.
983.41(b) not be granted if a handler failed to file required reports,
shipped substandard pistachios, or failed to comply with the
requirements specified in Sec. 983.41 on exemptions for minimum
quality testing. Revocations of approved exemptions could be
implemented by the Committee, or its authorized agents, for the same
reasons.
Additionally, the Committee recommended that any handler who
believes that he/she has been improperly denied an exemption or
improperly had an exemption revoked by the Committee should be allowed
to appeal the Committee's action to USDA. The Committee recommended
that the USDA review any appeals and determine their merit. All appeals
must be submitted in writing and the Committee would provide USDA the
complete file on each appeal.
The recommended exemption procedures require the Committee, or its
authorized agents, to timely notify all handlers of the opportunity to
apply to be exempted from minimum quality testing so that all
interested handlers can submit applications on forms provided by the
Committee by the August 1 deadline; promptly review all requests for
exemption; verify that the quantity of assessed weight pistachios
handled by any applicants during the prior production year was less
than 1 million pounds of assessed weight and that applicants are in
compliance with the order's inspection, quality, and reporting
requirements; approve or disapprove requests for exemptions by August
20 of each year; maintain complete files concerning the approval or
disapproval of each handler's application; and notify handlers by
August 30 of approval or disapproval.
A handler's exemption would be revoked by the Committee, or its
duly authorized agents, if the handler fails to provide reports
required under this part
[[Page 42258]]
or has not complied with the provisions on minimal quantity testing in
Sec. 983.41. Additionally, the Committee, or its duly authorized
agents, would revoke an approved exemption when a handler audit reveals
that a handler has handled a million pounds or more of assessed weight
pistachios during the applicable production year. The revocation of a
handler's exemption would be made in writing to the handler and specify
the reason(s) for and the effective date.
Any handler who believes that he/she has been improperly denied an
exemption or improperly had an exemption revoked, may appeal to USDA
for reconsideration within 20 days after notification of the
Committee's findings. All appeals must be in writing.
The Committee, or its duly authorized agents, shall forward a file
with all pertinent information related to the handler's appeal to USDA.
USDA shall inform the handler and all interested persons of the
Secretary's decision.
As previously mentioned, under Sec. 983.70 of the order, this rule
applies to handlers handling more than 1,000 pounds and less than 1
million pounds, because handlers who handle 1,000 pounds or less of
dried weight pistachios are exempt from assessment, aflatoxin, and
minimum quality requirements and from all reporting requirements under
Sec. 983.147 of the order's administrative rules and regulations, with
the exception of ACP Form-4.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this action on small entities. Accordingly, AMS has
prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 24 handlers of California pistachios who
are subject to regulation under the order and about 741 producers of
pistachios in the production area. Small agricultural service firms are
defined by the Small Business Administration (SBA)(13 CFR 121.201) as
those having annual receipts of less than $6,000,000 and small
agricultural producers are defined as those having annual receipts of
less than $750,000. Seventeen of the 24 handlers subject to regulation
have annual pistachio receipts of less than $6,000,000. In addition,
722 of the 741 producers have annual receipts less than $750,000.
Therefore, a majority of handlers and producers may be classified as
small entities under the SBA standards.
This rule establishes procedures for exempting handlers from
minimum quality (maximum limits for quality defects and minimum size)
testing requirements prescribed under the order. These procedures will
be used by the Committee when considering handler requests for
exemptions from minimum quality testing requirements and when
considering revocations of such exemptions. Additionally, this rule
establishes an appeals process for handlers who have been denied an
exemption or had an approved exemption revoked.
Section 983.41(a) of the pistachio order allows handlers handling
less than 1 million pounds of assessed weight pistachios each
production year (September 1-August 31) to use optional aflatoxin
testing methods. The optional methods permit the sampling and testing
of a handler's entire inventory before further processing, and allow
handlers to segregate their receipts into various lots for sampling and
testing.
Section 983.41(b) of the pistachio order authorizes handler
exemptions from minimum quality testing for handlers handling less than
1 million pounds of assessed weight pistachios per production year and
specifies that the Committee may grant such handler exemptions.
Section 983.70 of the pistachio order exempts handlers who handle
1,000 pounds or less of dried weight (assessed weight) pistachios
(dried to 5 percent moisture) during any marketing year from all
assessment, aflatoxin, and minimum quality requirements. For the
purposes of this document, the term ``marketing year'' is synonymous
with the term ``production year'' and covers the period September 1
through August 31.
The recommended decision, published on August 4, 2003, (68 FR
45990) indicated that implementing regulations should be effectuated to
establish the specific procedures for exempting handlers who handle
more than 1,000 pounds and less than 1 million pounds of assessed
weight pistachios per production year (September 1-August 31) from
minimum quality testing requirements.
Under these authorities, the Committee at its April 12, 2005,
meeting, unanimously recommended establishing standardized procedures
for granting and revoking handler exemption requests, and considering
handler appeals on exemption decisions. This action will have a
positive impact on small and large handlers by assuring that all
exemption applications and reviews are handled following standardized
procedures.
The Committee discussed alternatives to this change, including not
making any changes, but determined that specific procedures were needed
to facilitate: (1) Exempting handlers from minimum quality testing; (2)
revoking exemptions when handlers violate the marketing order; and (3)
processing appeals to the Committee's actions. These procedures are
expected to ensure that all such requests are treated equitably. The
Committee vote was 8 in favor, 0 opposed, and 0 abstained.
The information collection requirements for the ACP Form-5, which
handlers will complete and forward to the Committee to request
exemption from minimum quality requirements under the order, was
previously submitted to the Office of Management and Budget (OMB) and
approved under OMB No. 0581-0230. Thus, this action will not impose any
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.
Further, the Committee's meetings are widely publicized throughout
the pistachio industry and all interested persons are invited to attend
the meetings and participate in the Committee's deliberations. Like all
Committee meetings, the April 12, 2005, meeting was a public meeting
and all entities, both large and small, were able to express their
views on these issues.
Finally, interested persons are invited to submit information on
the regulatory and informational impacts of this action on small
businesses.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at: http:/
/www.ams.usda.gov/fv/moab.html. Any questions about the compliance
guide should be sent to Jay Guerber at the previously mentioned
[[Page 42259]]
address in the FOR FURTHER INFORMATION CONTACT section.
This rule invites comments on the establishment of minimum quality
testing exemption procedures under the order. Any comments received
will be considered prior to finalization of this rule.
After consideration of all relevant material presented, including
the Committee's recommendation and other information, it is found that
this interim final rule, as hereinafter set forth, will tend to
effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect and that good cause exists for not postponing the effective date
of this rule until 30 days after publication in the Federal Register
because: (1) This action provides procedures to facilitate the review
and approval of minimum quality testing exemption requests, denials and
revocations of such exemptions, and subsequent appeals, if submitted;
(2) the Committee unanimously recommended the procedures at a public
meeting and interested parties had an opportunity to provide input; (3)
handlers are required to file the exemption form with the Committee by
August 1 of each year; and (4) this rule provides for a 60-day comment
period and any comments received will be considered prior to
finalization of this rule.
List of Subjects in 7 CFR Part 983
Pistachios, Marketing agreements and orders, Reporting and
recordkeeping requirements.
0
For the reasons set forth in the preamble, 7 CFR part 983 is amended as
follows:
PART 983--PISTACHIOS GROWN IN CALIFORNIA
0
1. The authority citation for 7 CFR part 983 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. In part 983, Sec. 983.141 is added to Subpart-Rules and Regulations
to read as follows:
Sec. 983.141 Procedures for exempting handlers from minimum quality
testing.
(a) Exemption procedures. The Committee, or its duly authorized
agents, shall notify all handlers each year of the opportunity to apply
to be exempted from minimum quality testing and handlers shall submit
such requests on forms furnished by the Committee. The deadline for
submission shall be August 1. The Committee, or its duly authorized
agents, shall:
(1) Promptly review all exemption applications received. In
reviewing applications for exemption, the Committee, or its duly
authorized agents, shall determine that the quantity of assessed weight
pistachios handled during the prior production year was less than 1
million assessed weight pounds and that the applicants are in
compliance with the order's reporting requirements and the provisions
of Sec. 983.41. Handler compliance will be determined through handler
audits;
(2) Complete the review and approve or disapprove requests for
exemptions by August 20;
(3) Maintain complete files detailing the reason(s) for the
approval or disapproval of each application for at least three years
beyond the crop year of applicability; and
(4) Notify in writing all applicants by August 30 of the approval
or disapproval of their requests together with the reason(s) for
disapproval, if applicable.
(b) Revocation of exemptions. A handler's exemption shall be
revoked by the Committee, or its duly authorized agents, if the handler
fails to provide reports required under Sec. 983.147, or has not
complied with the provisions on minimal quality testing in Sec.
983.41, of this part. Additionally, the Committee, or its duly
authorized agents, shall revoke an approved exemption when a handler
audit reveals that a handler has handled a million pounds or more of
assessed weight pistachios during the current production year. The
revocation of a handler's exemption shall be made in writing to the
handler and shall specify the reason(s) for and the effective date.
(c) Appeals. (1) Any handler who believes that he/she has been
improperly denied an exemption or improperly had an exemption revoked,
may appeal to the Secretary, within 20 days after notification of the
Committee's, or agents of the Committee's, decisions. All appeals shall
be in writing. When requested by the Secretary, the Committee, or its
duly authorized agents, shall forward a file with all pertinent
information related to any handler appeal. The Secretary shall inform
the handler and all interested persons of the Secretary's decision.
(2) If handlers do not file an appeal or if their appeal is denied
by the Secretary, they shall present all remaining lots of pistachios
in inventory for minimum quality testing before moving the pistachios
into the channels of commerce.
Dated: July 18, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-14513 Filed 7-19-05; 1:38 pm]
BILLING CODE 3410-02-P
