Pistachios Grown in California; Changes in Handling Requirements, 14917-14919 [E8-5648]
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14917
Rules and Regulations
Federal Register
Vol. 73, No. 55
Thursday, March 20, 2008
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.
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 983
[Docket No. AMS–FV–07–0082; FV07–983–
1 FIR]
Pistachios Grown in California;
Changes in Handling Requirements
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
SUMMARY: The Department of
Agriculture (USDA) is adopting, as a
final rule, without change, an interim
final rule changing the handling
requirements authorized under the
California pistachio marketing order
(order). The order regulates the handling
of pistachios grown in California and is
administered locally by the
Administrative Committee for
Pistachios (committee). This rule
continues in effect the action that
suspended the minimum quality
requirements, including maximum
defects and minimum sizes, for
California pistachios. This reduces
handler costs and provides handlers
more flexibility in meeting customer
needs.
DATES:
Effective Date: April 21, 2008.
ebenthall on PRODPC61 with RULES
FOR FURTHER INFORMATION CONTACT:
Terry Vawter, Senior Marketing
Specialist, or Kurt J. Kimmel, Regional
Manager, California Marketing Field
Office, Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA; Telephone: (559) 487–
5901, Fax: (559) 487–5906, or E-mail:
Terry.Vawter@usda.gov or
Kurt.Kimmel@usda.gov.
Small businesses may request
information on complying with this
regulation by contacting Jay Guerber,
Marketing Order Administration
Branch, Fruit and Vegetable Programs,
VerDate Aug<31>2005
13:27 Mar 19, 2008
Jkt 214001
AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington,
DC 20250–0237; Telephone: (202) 720–
2491, Fax: (202) 720–8938, or E-mail:
Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This rule
is issued under Marketing Order No.
983 (7 CFR part 983), regulating the
handling of pistachios grown in
California, hereinafter referred to as the
‘‘order.’’ The order is effective under the
Agricultural Marketing Agreement Act
of 1937, as amended (7 U.S.C. 601–674),
hereinafter referred to as the ‘‘Act.’’
USDA is issuing this rule in
conformance with Executive Order
12866.
This rule has been reviewed under
Executive Order 12988, Civil Justice
Reform. This rule is not intended to
have retroactive effect. This rule will
not preempt any State or local laws,
regulations, or policies, unless they
present an irreconcilable conflict with
this rule.
The Act provides that administrative
proceedings must be exhausted before
parties may file suit in court. Under
section 608c(15)(A) of the Act, any
handler subject to an order may file
with USDA a petition stating that the
order, any provision of the order, or any
obligation imposed in connection with
the order is not in accordance with law
and request a modification of the order
or to be exempted therefrom. A handler
is afforded the opportunity for a hearing
on the petition. After the hearing, USDA
would rule on the petition. The Act
provides that the district court of the
United States in any district in which
the handler is an inhabitant, or has his
or her principal place of business, has
jurisdiction to review USDA’s ruling on
the petition, provided an action is filed
not later than 20 days after the date of
the entry of the ruling.
This rule continues in effect the
action that changed the handling
requirements for pistachios currently
authorized under the order. This rule
continues to suspend the minimum
quality requirements, including
maximum defects and minimum sizes,
for California pistachios. This reduces
handler costs and provides handlers
more flexibility in meeting customer
needs. This action was recommended by
the committee.
Prior to implementation of the interim
final rule, § 983.39 established
minimum quality levels for pistachios,
PO 00000
Frm 00001
Fmt 4700
Sfmt 4700
including maximum defects and
minimum sizes permitted under the
order. Under § 983.46, the Secretary
may modify, suspend, or make rules and
regulations to implement §§ 983.38
through 983.45 based upon a
recommendation by seven concurring
committee members or other available
information.
The quality and size requirements
were in effect for California pistachios
since the order’s inception in 2004.
Evidence provided at the promulgation
hearing suggested that there was a direct
link between lower-quality pistachios
and the incidence of aflatoxin
contamination (see 68 FR 45990).
Aflatoxin is one of a group of
mycotoxins produced by the molds
Aspergillus flavus and Aspergillus
parasiticus. Aflatoxins are naturallyoccurring in the field and can be further
spread in improperly processed and
stored nuts, dried fruits, and grains. The
data presented at the hearing was based
on aflatoxin analyses of pistachios with
different defects. Although the data also
indicated that the levels of aflatoxin
associated with each defect varied
widely, researchers attributed this to
variability among the samples.
As further data was collected in 2005
and 2006, University of California
researchers concluded that variability in
aflatoxin levels seen in previous studies
may have been due to geographic
variability.1 2 Aflatoxin contamination is
more prevalent in pistachios produced
in the northern San Joaquin Valley,
while quality defects, largely due to
insect damage, are less prevalent. The
opposite is true for the southern San
Joaquin Valley. It is now believed that
these differences in aflatoxin
contamination between the growing
areas are due to differences in climate.
The northern San Joaquin Valley has
more aflatoxin contamination because
its cooler temperatures and greater
moisture are more conducive to
Aspergillus and aflatoxin development,
but less conducive to insect population
1 Doster, M.A., T.J. Michailides, L.D. Boeckler,
and D.P. Morgan, 2006. Development of expert
systems and predictive models for aflatoxin
contamination in pistachios. In California Pistachio
Industry Annual Report Crop Year 2005–2006, pg.
101–102.
2 Doster, M.A., T.J. Michailides, L.D. Boeckler,
and D.P. Morgan, 2007. Prediction of aflatoxin
contamination and a survey of fungi producing
Ochratoxin A in California pistachios. In California
Pistachio Industry Annual Report Crop Year 2006–
2007, pg. 109–110.
E:\FR\FM\20MRR1.SGM
20MRR1
14918
Federal Register / Vol. 73, No. 55 / Thursday, March 20, 2008 / Rules and Regulations
ebenthall on PRODPC61 with RULES
and damage. However, in the southern
San Joaquin Valley, there is a higher
incidence of insect damage and a much
lower incidence of aflatoxin
contamination because of the drier
environment and higher temperatures.
Thus, recent research suggests that
aflatoxin occurrence in pistachios may
be attributable to climatic factors.
Additionally, growers and handlers
are reporting unexpected problems with
the size of pistachios this season, as
well as with staining of the nut shell
from the hull. Pistachios are smaller
than usual, and the large crop has
resulted in a large percentage of
pistachios which may not have met the
requirements of the order because the
sizes are smaller than authorized, which
was 30/64ths of an inch. Staining is a
problem this season due to
unseasonable humidity and spotty rains
on August 26th and 30th. The moisture
wet the outer hull, and the hull then
stained the pistachio shell. Dark stains
are an external defect, which affects
overall pistachio quality.
Thus, the committee recommended
suspending the minimum quality
requirements, which include maximum
defects and minimum sizes, under the
order. This reduces handler costs and
provides handlers more flexibility in
meeting customer needs. Suspending
these requirements also necessitated
modifications to other sections of the
order and regulations that referenced
minimum quality and size
requirements. Accordingly, this rule
continues to partially suspend or amend
language in §§ 983.6, 983.7, 983.31,
983.38, 983.40, 983.41, 983.42, 983.45,
983.138, 983.143, and 983.147 of the
order; and continues to suspend
§§ 983.19, 983.20, 983.39, and 983.141
in their entirety.
Additionally, the third sentence in
§ 983.11(b), and all of § 983.71 were
removed because the committee’s State
counterpart, the California Pistachio
Commission, has been terminated and
there is currently no relationship
between the two organizations.
Final Regulatory Flexibility Analysis
Pursuant to requirements set forth in
the Regulatory Flexibility Act (RFA),
Agricultural Marketing Service (AMS)
has considered the economic impact of
this action on small entities.
Accordingly, AMS has prepared this
final regulatory flexibility analysis.
The purpose of the RFA is to fit
regulatory actions to the scale of
business subject to such actions in order
that small businesses would not be
unduly or disproportionately burdened.
Marketing orders issued pursuant to the
Act, and the rules issued thereunder, are
VerDate Aug<31>2005
13:27 Mar 19, 2008
Jkt 214001
unique in that they are brought about
through group action of essentially
small entities acting on their own
behalf.
There are approximately 740
producers in the production area, and
50 handlers of California pistachios
subject to regulation. The Small
Business Administration (SBA) (13 CFR
121.201) defines small agricultural
producers as those having annual
receipts less than $750,000, and defines
small agricultural service firms as those
whose annual receipts are less than
$6,500,000. Of the 740 producers,
approximately 722 have annual receipts
of less than $750,000. Forty-two of the
50 handlers subject to regulation have
annual pistachio receipts of less than
$6,500,000. Thus, the majority of
producers and handlers of California
pistachios may be classified as small
entities.
This rule continues in effect the
action that changed the handling
requirements authorized under the
order. This rule continues to suspend
the minimum quality requirements,
including maximum defects and
minimum sizes, for California
pistachios. Authority for this action is
provided in § 983.46.
Regarding the impact on affected
entities, suspending the minimum
quality requirements decreases handler
inspection costs. The committee
estimates that the direct costs to obtain
inspection average approximately
$50.00 per lot. The average lot is
approximately 44,000 pounds. With
over 100,000,000 pounds shipped
domestically, the direct costs for
inspection for approximately 2,300 lots
could total $115,000 for the industry.
The direct costs do not include handler
staff time in preparing samples, and
handler storage and recordkeeping costs
associated with inspected pistachios.
The committee considered
alternatives to suspending the minimum
quality requirements. Some producers
were concerned that this could give
handlers too much latitude in their
operations. Other producers commented
that handlers’ customers would likely
dictate product quality and prevent
shipment of substandard pistachios into
the market. Ultimately, the majority of
committee members supported the
changes.
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C.
Chapter 35), the form ACP–5, ‘‘Minimal
Testing’’ being suspended by this rule
was previously approved by the Office
of Management and Budget and
assigned OMB No. 0581–0215,
Pistachios Grown in California, for 1
burden hour. As with all Federal
PO 00000
Frm 00002
Fmt 4700
Sfmt 4700
marketing order programs, reports and
forms are periodically reviewed to
reduce information requirements and
duplication by industry and public
sector agencies.
AMS is committed to complying with
the E-Government Act, to promote the
use of the Internet and other
information technologies to provide
increased opportunities for citizen
access to Government information and
services, and for other purposes.
In addition, as noted in the initial
regulatory flexibility analysis, USDA
has not identified any relevant Federal
rules that duplicate, overlap, or conflict
with this rule.
Further, the committee meetings
where this action was discussed were
widely publicized throughout the
pistachio industry and all interested
persons were encouraged to attend the
meetings and participate in the
committee’s deliberations. Like all
committee meetings, these were public
meetings, and entities of all sizes were
encouraged to express their views on
these issues.
An interim final rule concerning this
action was published in the Federal
Register on December 7, 2007. Copies of
the rule were mailed by the committee’s
staff to all committee members and
pistachio handlers. In addition, the rule
was made available by USDA and the
Office of the Federal Register. That rule
provided for a 60-day comment period
which ended February 5, 2008. One
comment was received that was not
relevant to the interim final rule.
A small business guide on complying
with fruit, vegetable, and specialty crop
marketing agreements and orders may
be viewed at: https://www.ams.usda.gov/
fv/moab/html. Any questions about the
compliance guide should be sent to Jay
Guerber at the previously mentioned
address in the FOR FURTHER INFORMATION
CONTACT section.
The order provisions and regulations
that were suspended or terminated no
longer tend to effectuate the declared
policy of the Act, while the regulations
that were revised tend to effectuate the
declared policy of the Act. Accordingly,
after consideration of all relevant
material presented, including the
committee’s recommendation, and other
information, it is found that finalizing
this interim final rule, without change,
as published in the Federal Register (72
FR 69139, December 7, 2007), will
effectuate the declared policy of the Act.
List of Subjects in 7 CFR Part 983
Pistachios, Marketing agreements and
orders, Reporting and recordkeeping
requirements.
E:\FR\FM\20MRR1.SGM
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Federal Register / Vol. 73, No. 55 / Thursday, March 20, 2008 / Rules and Regulations
PART 983—PISTACHIOS GROWN IN
CALIFORNIA
Accordingly, the interim final rule
amending 7 CFR part 983 which was
published at 72 FR 69139 on December
7, 2007, is adopted as a final rule
without change.
I
Dated: March 13, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing
Service.
[FR Doc. E8–5648 Filed 3–19–08; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1216
[Docket No.: AMS–FV–08–0001; FV–08–701
IFR]
Peanut Promotion, Research, and
Information Order; Amendment to
Primary Peanut-Producing States and
Adjustment of Membership
AGENCY:
Agricultural Marketing Service,
USDA.
Interim final rule with request
for comments.
ebenthall on PRODPC61 with RULES
ACTION:
SUMMARY: This rule would add a
producer member and alternate from the
State of Mississippi to the National
Peanut Board (Board). The change was
proposed by the Board, which
administers the nationally coordinated
program, in accordance to the
provisions of the Peanut Promotion,
Research, and Information Order (Order)
which is authorized under the
Commodity Promotion, Research, and
Information Act of 1996 (1996 Act). This
change is made because Mississippi is
now considered a major peanutproducing state based on the Board’s
review of the geographical distribution
of the production of peanuts. The Order
requires a review of the geographical
distribution of the production of
peanuts at least every five years. The
addition of a member from Mississippi
will provide for additional
representation from another primary
peanut-producing state.
DATES: Effective date: March 21, 2008.
Comments must be submitted on or
before April 21, 2008.
ADDRESSES: Interested persons are
invited to submit written comments on
the Internet at: https://
www.regulations.gov or to the Research
and Promotion Branch, Fruit and
Vegetable Programs, Agricultural
Marketing Service (AMS), U.S.
VerDate Aug<31>2005
13:27 Mar 19, 2008
Jkt 214001
Department of Agriculture, Room 0632–
S, Stop 0244, 1400 Independence
Avenue, SW., Washington, DC 20250–
0244; fax: (202) 205–2800. 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 above office during
regular business hours or can be viewed
at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Jeanette Palmer, Marketing Specialist,
Research and Promotion Branch, Fruit
and Vegetable Programs, AMS, USDA,
1400 Independence Avenue, SW., Room
0632, Stop 0244, Washington, DC
20250–0244; telephone: (202) 720–9915;
or fax: (202) 205–2800; or e-mail:
Jeanette.Palmer@usda.gov.
SUPPLEMENTARY INFORMATION: This rule
is issued under the Peanut Promotion,
Research, and Information Order [7 CFR
Part 1216]. The Order is authorized
under the Commodity Promotion,
Research, and Information Act of 1996
[7 U.S.C. 7411–7425].
Executive Order 12866
The Office of Management and Budget
has waived the review process required
by Executive Order 12866 for this
action.
Executive Order 12988
This rule has been reviewed under
Executive Order 12988, Civil Justice
Reform. The rule is not intended to have
a retroactive effect and will not affect or
preempt any other State or Federal law
authorizing promotion or research
relating to an agricultural commodity.
The 1996 Act provides that any
person subject to an order may file a
written petition with the Department of
Agriculture (Department) if they believe
that the order, any provision of the
order, or any obligation imposed in
connection with the order, is not
established in accordance with the law.
In any petition, the person may request
a modification of the order or an
exemption from the order. The
petitioner is afforded the opportunity
for a hearing on the petition. After a
hearing, the Department would rule on
the petition. The 1996 Act provides that
the district court of the United States in
any district in which the petitioner
resides or conducts business shall have
the jurisdiction to review the
Department’s ruling on the petition,
provided a complaint is filed not later
than 20 days after the date of the entry
of the ruling.
Regulatory Flexibility Analysis
In accordance with the Regulatory
Flexibility Act (RFA) [5 U.S.C. 601–
PO 00000
Frm 00003
Fmt 4700
Sfmt 4700
14919
612], AMS has examined the economic
impact of this rule on small entities that
would be affected by this rule. 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.
The Small Business Administration
defines, in 13 CFR part 121, small
agricultural producers as those having
annual receipts of no more than
$750,000 and small agricultural service
firms as having receipts of no more than
$6,500,000 million.
There are approximately 10,840
producers and 33 handlers of peanuts
who are subject to the program. Most
producers would be classified as small
businesses under the criteria established
by the Small Business Administration
[13 CFR 121.201], and most of the
handlers would not be classified as
small businesses.
The Department’s National
Agricultural Statistics Service (NASS),
reports U.S. peanut production from the
10 major peanut-producing states. The
combined production from these states
totaled 3.74 billion pounds in 2007.
NASS data indicates that Georgia was
the largest producer (44 percent of the
total U.S. production), followed by
Texas (20 percent), Alabama (11
percent), Florida (9 percent), North
Carolina (7 percent), South Carolina (5
percent), Mississippi (2 percent),
Oklahoma (2 percent), Virginia (2
percent), and New Mexico (1 percent).
According to the 2002 Census of
Agriculture, small amounts of peanuts
were also grown in six other states.
NASS data indicates that the farm value
of the peanuts produced in the top 10
states in 2007 was $763 million.
Three main types of peanuts are
grown in the United States: Runners,
Virginia, and Spanish. The southeast
growing region grows mostly the
medium-kernel Runner peanuts. The
southwest growing region used to grow
two-thirds Spanish and one-third
Runner peanuts, but now more Runners
than Spanish are grown. Virtually all of
the Spanish peanut production is in
Oklahoma and Texas. In the VirginiaCarolina region, mainly large-kernel
Virginia peanuts are grown. New
Mexico grows a fourth type of peanut,
the Valencia.
According to the Department’s
Agricultural Statistics report, in 2005
there were 10,840 commercial
producers of peanuts in the United
States. If that number of growers is
divided into the total U.S. production in
2005, the resulting average is 449,249
pounds of peanuts per grower. Peanuts
produced during 2005 provided average
E:\FR\FM\20MRR1.SGM
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]]>Agencies
[Federal Register Volume 73, Number 55 (Thursday, March 20, 2008)]
[Rules and Regulations]
[Pages 14917-14919]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-5648]
========================================================================
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. 73, No. 55 / Thursday, March 20, 2008 / Rules
and Regulations
[[Page 14917]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 983
[Docket No. AMS-FV-07-0082; FV07-983-1 FIR]
Pistachios Grown in California; Changes in Handling Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Agriculture (USDA) is adopting, as a final
rule, without change, an interim final rule changing the handling
requirements authorized under the California pistachio marketing order
(order). The order regulates the handling of pistachios grown in
California and is administered locally by the Administrative Committee
for Pistachios (committee). This rule continues in effect the action
that suspended the minimum quality requirements, including maximum
defects and minimum sizes, for California pistachios. This reduces
handler costs and provides handlers more flexibility in meeting
customer needs.
DATES: Effective Date: April 21, 2008.
FOR FURTHER INFORMATION CONTACT: Terry Vawter, Senior Marketing
Specialist, or Kurt J. Kimmel, Regional Manager, California Marketing
Field Office, Marketing Order Administration Branch, Fruit and
Vegetable Programs, AMS, USDA; Telephone: (559) 487-5901, Fax: (559)
487-5906, or E-mail: Terry.Vawter@usda.gov or Kurt.Kimmel@usda.gov.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202)
720-2491, Fax: (202) 720-8938, or E-mail: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order
No. 983 (7 CFR part 983), regulating the handling of pistachios grown
in California, hereinafter referred to as the ``order.'' The order is
effective under the Agricultural Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.''
USDA is issuing this rule in conformance with Executive Order
12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with USDA a petition
stating that the order, any provision of the order, or any obligation
imposed in connection with the order is not in accordance with law and
request a modification of the order or to be exempted therefrom. A
handler is afforded the opportunity for a hearing on the petition.
After the hearing, USDA would rule on the petition. The Act provides
that the district court of the United States in any district in which
the handler is an inhabitant, or has his or her principal place of
business, has jurisdiction to review USDA's ruling on the petition,
provided an action is filed not later than 20 days after the date of
the entry of the ruling.
This rule continues in effect the action that changed the handling
requirements for pistachios currently authorized under the order. This
rule continues to suspend the minimum quality requirements, including
maximum defects and minimum sizes, for California pistachios. This
reduces handler costs and provides handlers more flexibility in meeting
customer needs. This action was recommended by the committee.
Prior to implementation of the interim final rule, Sec. 983.39
established minimum quality levels for pistachios, including maximum
defects and minimum sizes permitted under the order. Under Sec.
983.46, the Secretary may modify, suspend, or make rules and
regulations to implement Sec. Sec. 983.38 through 983.45 based upon a
recommendation by seven concurring committee members or other available
information.
The quality and size requirements were in effect for California
pistachios since the order's inception in 2004. Evidence provided at
the promulgation hearing suggested that there was a direct link between
lower-quality pistachios and the incidence of aflatoxin contamination
(see 68 FR 45990). Aflatoxin is one of a group of mycotoxins produced
by the molds Aspergillus flavus and Aspergillus parasiticus. Aflatoxins
are naturally-occurring in the field and can be further spread in
improperly processed and stored nuts, dried fruits, and grains. The
data presented at the hearing was based on aflatoxin analyses of
pistachios with different defects. Although the data also indicated
that the levels of aflatoxin associated with each defect varied widely,
researchers attributed this to variability among the samples.
As further data was collected in 2005 and 2006, University of
California researchers concluded that variability in aflatoxin levels
seen in previous studies may have been due to geographic
variability.1 2 Aflatoxin contamination is more prevalent in
pistachios produced in the northern San Joaquin Valley, while quality
defects, largely due to insect damage, are less prevalent. The opposite
is true for the southern San Joaquin Valley. It is now believed that
these differences in aflatoxin contamination between the growing areas
are due to differences in climate. The northern San Joaquin Valley has
more aflatoxin contamination because its cooler temperatures and
greater moisture are more conducive to Aspergillus and aflatoxin
development, but less conducive to insect population
[[Page 14918]]
and damage. However, in the southern San Joaquin Valley, there is a
higher incidence of insect damage and a much lower incidence of
aflatoxin contamination because of the drier environment and higher
temperatures. Thus, recent research suggests that aflatoxin occurrence
in pistachios may be attributable to climatic factors.
---------------------------------------------------------------------------
\1\ Doster, M.A., T.J. Michailides, L.D. Boeckler, and D.P.
Morgan, 2006. Development of expert systems and predictive models
for aflatoxin contamination in pistachios. In California Pistachio
Industry Annual Report Crop Year 2005-2006, pg. 101-102.
\2\ Doster, M.A., T.J. Michailides, L.D. Boeckler, and D.P.
Morgan, 2007. Prediction of aflatoxin contamination and a survey of
fungi producing Ochratoxin A in California pistachios. In California
Pistachio Industry Annual Report Crop Year 2006-2007, pg. 109-110.
---------------------------------------------------------------------------
Additionally, growers and handlers are reporting unexpected
problems with the size of pistachios this season, as well as with
staining of the nut shell from the hull. Pistachios are smaller than
usual, and the large crop has resulted in a large percentage of
pistachios which may not have met the requirements of the order because
the sizes are smaller than authorized, which was 30/64ths of an inch.
Staining is a problem this season due to unseasonable humidity and
spotty rains on August 26th and 30th. The moisture wet the outer hull,
and the hull then stained the pistachio shell. Dark stains are an
external defect, which affects overall pistachio quality.
Thus, the committee recommended suspending the minimum quality
requirements, which include maximum defects and minimum sizes, under
the order. This reduces handler costs and provides handlers more
flexibility in meeting customer needs. Suspending these requirements
also necessitated modifications to other sections of the order and
regulations that referenced minimum quality and size requirements.
Accordingly, this rule continues to partially suspend or amend language
in Sec. Sec. 983.6, 983.7, 983.31, 983.38, 983.40, 983.41, 983.42,
983.45, 983.138, 983.143, and 983.147 of the order; and continues to
suspend Sec. Sec. 983.19, 983.20, 983.39, and 983.141 in their
entirety.
Additionally, the third sentence in Sec. 983.11(b), and all of
Sec. 983.71 were removed because the committee's State counterpart,
the California Pistachio Commission, has been terminated and there is
currently no relationship between the two organizations.
Final Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), Agricultural Marketing Service (AMS) has considered the
economic impact of this action on small entities. Accordingly, AMS has
prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses would
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf.
There are approximately 740 producers in the production area, and
50 handlers of California pistachios subject to regulation. The Small
Business Administration (SBA) (13 CFR 121.201) defines small
agricultural producers as those having annual receipts less than
$750,000, and defines small agricultural service firms as those whose
annual receipts are less than $6,500,000. Of the 740 producers,
approximately 722 have annual receipts of less than $750,000. Forty-two
of the 50 handlers subject to regulation have annual pistachio receipts
of less than $6,500,000. Thus, the majority of producers and handlers
of California pistachios may be classified as small entities.
This rule continues in effect the action that changed the handling
requirements authorized under the order. This rule continues to suspend
the minimum quality requirements, including maximum defects and minimum
sizes, for California pistachios. Authority for this action is provided
in Sec. 983.46.
Regarding the impact on affected entities, suspending the minimum
quality requirements decreases handler inspection costs. The committee
estimates that the direct costs to obtain inspection average
approximately $50.00 per lot. The average lot is approximately 44,000
pounds. With over 100,000,000 pounds shipped domestically, the direct
costs for inspection for approximately 2,300 lots could total $115,000
for the industry. The direct costs do not include handler staff time in
preparing samples, and handler storage and recordkeeping costs
associated with inspected pistachios.
The committee considered alternatives to suspending the minimum
quality requirements. Some producers were concerned that this could
give handlers too much latitude in their operations. Other producers
commented that handlers' customers would likely dictate product quality
and prevent shipment of substandard pistachios into the market.
Ultimately, the majority of committee members supported the changes.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), the form ACP-5, ``Minimal Testing'' being suspended by
this rule was previously approved by the Office of Management and
Budget and assigned OMB No. 0581-0215, Pistachios Grown in California,
for 1 burden hour. As with all Federal marketing order programs,
reports and forms are periodically reviewed to reduce information
requirements and duplication by industry and public sector agencies.
AMS is committed to complying with the E-Government Act, to promote
the use of the Internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes.
In addition, as noted in the initial regulatory flexibility
analysis, USDA has not identified any relevant Federal rules that
duplicate, overlap, or conflict with this rule.
Further, the committee meetings where this action was discussed
were widely publicized throughout the pistachio industry and all
interested persons were encouraged to attend the meetings and
participate in the committee's deliberations. Like all committee
meetings, these were public meetings, and entities of all sizes were
encouraged to express their views on these issues.
An interim final rule concerning this action was published in the
Federal Register on December 7, 2007. Copies of the rule were mailed by
the committee's staff to all committee members and pistachio handlers.
In addition, the rule was made available by USDA and the Office of the
Federal Register. That rule provided for a 60-day comment period which
ended February 5, 2008. One comment was received that was not relevant
to the interim final rule.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at: http:/
/www.ams.usda.gov/fv/moab/html. Any questions about the compliance
guide should be sent to Jay Guerber at the previously mentioned address
in the FOR FURTHER INFORMATION CONTACT section.
The order provisions and regulations that were suspended or
terminated no longer tend to effectuate the declared policy of the Act,
while the regulations that were revised tend to effectuate the declared
policy of the Act. Accordingly, after consideration of all relevant
material presented, including the committee's recommendation, and other
information, it is found that finalizing this interim final rule,
without change, as published in the Federal Register (72 FR 69139,
December 7, 2007), will effectuate the declared policy of the Act.
List of Subjects in 7 CFR Part 983
Pistachios, Marketing agreements and orders, Reporting and
recordkeeping requirements.
[[Page 14919]]
PART 983--PISTACHIOS GROWN IN CALIFORNIA
0
Accordingly, the interim final rule amending 7 CFR part 983 which was
published at 72 FR 69139 on December 7, 2007, is adopted as a final
rule without change.
Dated: March 13, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E8-5648 Filed 3-19-08; 8:45 am]
BILLING CODE 3410-02-P
