Pistachios Grown in California; Change in Reporting Requirements, 18703-18706 [08-1109]
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Federal Register / Vol. 73, No. 67 / Monday, April 7, 2008 / Rules and Regulations
Executive Order 12372
This program/activity is listed in the
Catalog of Federal Domestic Assistance
under No. 10.025 and is subject to
Executive Order 12372, which requires
intergovernmental consultation with
State and local officials. (See 7 CFR part
3015, subpart V.)
Executive Order 12988
This rule has been reviewed under
Executive Order 12988, Civil Justice
Reform. This rule: (1) Preempts all State
and local laws and regulations that are
inconsistent with this rule; (2) has no
retroactive effect; and (3) does not
require administrative proceedings
before parties may file suit in court
challenging this rule.
Paperwork Reduction Act
This interim rule contains no
information collection or recordkeeping
requirements under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
List of Subjects in 7 CFR Part 301
Agricultural commodities, Plant
diseases and pests, Quarantine,
Reporting and recordkeeping
requirements, Transportation.
I Accordingly, we are amending 7 CFR
part 301 as follows:
PART 301—DOMESTIC QUARANTINE
NOTICES
to the line of latitude 33.1809° N; then
east along the line of latitude 33.1809°
N to the Throckmorton/Young County
line at the line of longitude ¥98.9527°
W; then north along the line of
longitude ¥98.9527° W to the line of
latitude 33.2836° N; then west along the
line of latitude 33.2836° N to the point
of beginning.
Young County. Beginning in the
northwestern portion of the county at
the line of longitude ¥98.9527° W and
the line of latitude 33.2836° N; then
south along the line of longitude
¥98.9527° W to the line of latitude
33.1809° N; then east along the line of
latitude 33.1809° N to the line of
longitude ¥98.8762° W; then north
along the line of longitude ¥98.8762° W
to the line of latitude 33.1946° N; then
east along the line of latitude 33.1946°
N to the line of longitude ¥98.8356° W;
then north along the line of longitude
¥98.8356° W to the line of latitude
33.2880° N; then west along the line of
latitude 33.2880° N to the line of
longitude ¥98.9430° W; then south
along the line of longitude ¥98.9430° W
to the line of latitude 33.2836° N; then
west along the line of latitude 33.2836°
N to the point of beginning.
Done in Washington, DC, this 1st day of
April 2008.
Kevin Shea,
Acting Administrator, Animal and Plant
Health Inspection Service.
[FR Doc. E8–7194 Filed 4–4–08; 8:45 am]
I
1. The authority citation for part 301
continues to read as follows:
BILLING CODE 3410–34–P
Authority: 7 U.S.C. 7701–7772 and 7781–
7786; 7 CFR 2.22, 2.80, and 371.3.
Section 301.75–15 issued under Sec. 204,
Title II, Public Law 106–113, 113 Stat.
1501A–293; sections 301.75–15 and 301.75–
16 issued under Sec. 203, Title II, Public Law
106–224, 114 Stat. 400 (7 U.S.C. 1421 note).
DEPARTMENT OF AGRICULTURE
I 2. In § 301–89.3, paragraph (g) is
amended under the heading ‘‘Texas’’ by
removing the entries for Baylor County
and Knox County and by revising the
entries for Throckmorton County and
Young County to read as follows:
§ 301.89–3
*
Regulated areas.
*
*
(g) * * *
*
*
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Texas
Throckmorton County. Beginning in
the northeastern portion of the county at
the line of longitude ¥98.9921° W and
the line of latitude 33.2836° N; then
south along the line of longitude
¥98.9921° W to the line of latitude
33.2055° N; then east along the line of
latitude 33.2055° N to the line of
longitude ¥98.9891° W; then south
along the line of longitude ¥98.9891° W
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Agricultural Marketing Service
7 CFR Part 983
[Docket No. AMS–FV–07–0095; FV07–983–
2 FR]
Pistachios Grown in California;
Change in Reporting Requirements
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
SUMMARY: This rule changes the current
reporting requirements 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 changes
will modify one existing committee
form and add a new form to a currentlyapproved information collection. The
information collected will require
handlers to report production and
producer data, enabling the committee
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18703
to obtain better information for
preparing its annual marketing policy
statement and conducting committee
nominations and periodic referenda
under the order.
DATES: Effective Date: April 8, 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.
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
SUPPLEMENTARY INFORMATION:
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Federal Register / Vol. 73, No. 67 / Monday, April 7, 2008 / Rules and Regulations
not later than 20 days after the date of
the entry of the ruling.
This final rule changes the reporting
requirements prescribed under the
order. These changes will modify one
committee form and add a new form to
the currently-approved information
collection. The new form will require
handlers to report production and
producer data. This new data will
enable the committee to obtain better
information for preparing its annual
marketing policy statement and for
conducting committee nominations and
periodic referenda for pistachio
producers. These changes were
unanimously recommended by the
committee on April 2, 2007.
Under § 983.47 handlers are required
to furnish such reports as the
committee, with the approval of the
Secretary, needs to enable the Secretary
and the committee to perform their
functions.
As a result of a producer referendum,
the California Pistachio Commission
(CPC), a California State marketing
program, was terminated in the spring
of 2007. Data historically collected by
the CPC and shared with the committee
is no longer available. Such data
includes information on the total
available supply of pistachios grown in
California and on the producers who
produced the pistachios.
Thus, the committee unanimously
recommended changes to its reporting
requirements to capture information
necessary for the effective
administration of the Federal order that
is no longer available through the CPC.
Specifically, the committee
recommended revising its current ACP
Form 7, ‘‘Monthly Report of Inventory/
Shipments,’’ and creating a new form,
ACP Form 8, ‘‘Producer Delivery
Report.’’ These forms will allow the
committee to collect production,
producer, inventory, and shipment data
from handlers.
Requiring handlers to report such data
will enable the committee to obtain
better information on the total available
supply of pistachios grown in California
and to contact pistachio producers. The
order requires the committee to prepare
an annual marketing policy statement,
pursuant to § 983.37. Several elements
are required for an acceptable marketing
policy statement: production,
harvesting, processing, and storage
conditions data. The committee is also
required to hold annual nominations for
seats on the committee, and USDA is
required to conduct periodic
continuance referenda. The committee
needs producer and production data to
fulfill order requirements.
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Currently on the ACP Form 7, all
handlers must report their beginning
inventory, grower deliveries, shipments
of pistachios to the domestic market,
interhandler transfers, non-handler
purchases of California product,
inventory adjustments on split and
shelled pistachios, and ending
inventory on a monthly basis. This final
rule will remove the requirement to
report inventory adjustments to split
and shelled pistachios, as the committee
believes that this information is no
longer needed. This final rule will also
require handlers to report their export
shipments. Export data was previously
collected by the CPC and provided by
some handlers voluntarily to the
committee.
On the new form, ACP Form 8,
‘‘Producer Delivery Report,’’ handlers
will be required to annually provide the
names of the producers who deliver
pistachios to them, the producers’
mailing addresses and other contact
information (telephone and facsimile
numbers and e-mail addresses), the
producers’ employer identification
numbers, total receipts of pistachios
from each producer, and the counties in
which the pistachios were grown. These
reports will allow the committee to
identify all authorized voters for
committee selections and referenda in
which each business entity is entitled to
cast one vote. Individual producers may
produce and deliver pistachios under
more than one business entity. The
information collected on this report will
also allow the committee to determine
whether individual producers are
eligible to represent more than one
business entity, based upon Federal Tax
Identification numbers.
The information on producer
deliveries will also allow the committee
to track deliveries to handlers and verify
that handlers pay the appropriate
assessments on pistachios they receive.
This information will also streamline
handler audits for committee staff.
Pursuant to § 983.147(c), handlers
who handle less than 5,000 pounds
annually will be exempt from filing ACP
Form 8. These small handlers tend to be
producers who handle their own
production only and are known to the
committee in their producer, as well as
their handler, capacity. Therefore, the
committee already has business entity,
production, and contact information on
the producers that are also exempt
handlers.
Such information will provide the
committee with production and
producer data to enhance the
administration of the order. An
electronic version of the form will be
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available to those handlers who file
electronically.
Since the addition of ACP Form 8 will
require changes to the order’s rules and
regulations, § 983.147 will be modified
to add a new paragraph (g), and to
redesignate current paragraphs (g) and
(h) as paragraphs (h) and (i).
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 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.
There are approximately 740
producers in the production area and
approximately 50 handlers of California
pistachios subject to regulation under
the order. 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 final rule will change § 983.147
of the order’s regulations, and revise a
currently-approved information
collection. The committee determined
that production data the CPC previously
collected and made available to the
committee was still necessary for the
efficient operation of the program.
Therefore, the committee agreed that it
should require handlers to report
production and shipment data directly
to the committee. In order to receive this
data, the committee unanimously
recommended that current ACP Form 7,
‘‘Monthly Report of Inventory/
Shipments,’’ be revised and that a new
form, ACP Form 8, ‘‘Producer Delivery
Report,’’ be developed. Authority for
these changes is provided in § 983.47.
On April 2, 2007, the committee
deliberated on the value of revising the
current form and requiring the new
form, and discussed alternatives. It
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Federal Register / Vol. 73, No. 67 / Monday, April 7, 2008 / Rules and Regulations
determined that the only alternative
would be to not collect such industry
data. However, the order requires the
committee to prepare an annual
marketing policy statement. Several
elements are required for an acceptable
marketing policy statement: Production,
harvesting, processing, and storage
conditions data. The committee is also
required to hold annual nominations for
seats on the committee, and USDA is
required to conduct periodic
continuance referenda. Thus, the
committee needs this data to fulfill
order requirements. The revised ACP
Form 7 and the new ACP Form 8 have
been approved by the Office of
Management and Budget (OMB) under
OMB No. 0581–0215, ‘‘Pistachios
Grown in California.’’
As with other marketing order
programs, reports and forms are
periodically reviewed to reduce
information requirements and
duplication by industry and public
sector agencies.
This final rule will impose additional
reporting and recordkeeping burdens on
handlers. However, any additional
burden is expected to be offset by the
efficient operation of the order.
Handlers will continue to file the ACP
Form 7 monthly and will file the ACP
Form 8 annually, but the data collected
will serve multiple purposes and
streamline committee operations. 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.
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.
Further, the committee’s meeting was
widely publicized throughout the
pistachio industry and all interested
persons were encouraged to attend the
meeting and participate in the
committee’s deliberations. Like all
committee meetings, the April 2, 2007,
meeting was a public meeting, and
entities of all sizes were encouraged to
express their views on these issues.
A proposed rule was published in the
Federal Register on September 7, 2007
(72 FR 173). Copies of the proposed rule
were mailed or sent via facsimile to all
committee members and handlers.
Finally, the proposed rule was made
available through the Internet, USDA
and the Office of the Federal Register. A
60-day comment period ending
November 6, 2007, was provided to
allow interested persons to respond to
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the proposal. One opposing comment
was received.
The commenter was opposed to the
committee collecting and disseminating
monthly export shipment and inventory
data from handlers. According to the
commenter, this data, when collected by
the CPC in the past, proved valuable in
evaluating market conditions and
measuring the effectiveness of
marketing efforts by the industry.
However, the commenter stated that the
export data is no longer necessary
because the Federal order only regulates
domestically shipped product and not
exports. The commenter also expressed
concern with the accuracy of the
inventory data, and contends that such
discrepancies are deliberate or
accidental errors in the reporting to the
committee. The commenter stated a
preference for standardized inventory
reporting practices because there are no
standards for determining inventory
levels. The commenter argues that,
without set procedures, handlers could
easily manipulate their reported
inventory to seek competitive advantage
in the marketplace.
Regarding the concerns about export
shipments, the order provides authority
for the collection of information from
handlers, which includes shipment
data. The committee believes that this
information is valuable to the industry,
and unanimously voted to collect this
information under the Federal order.
Regarding the concerns about the
accuracy of the monthly inventory data,
the ACP–7 requires handlers to report
an ‘‘inventory adjustment’’ figure,
which is an adjustment to inventory due
to issues including splitting, shelling,
shrink, and loss of product. According
to committee staff, there is variability in
the way handlers store and manage their
pistachios, which creates differences in
how handlers report inventory
adjustments. The committee is
exploring ways to improve the accuracy
of this information.
Accordingly, no changes will be made
to this rule based on the comment
received.
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.
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,
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18705
will tend to effectuate the declared
policy of the Act.
Pursuant to 5 U.S.C. 553, it is also
found and determined that good cause
exists for not postponing the effective
date of this rule until 30 days after
publication in the Federal Register
because the data required through this
rule is no longer available from the CPC,
and the committee needs this
information to ensure proper
administration of the Federal order.
Further, handlers are aware of this rule,
which was unanimously recommended
by the committee at a public meeting.
Also, a 60-day comment period was
provided for the proposed rule.
List of Subjects in 7 CFR Part 983
Pistachios, Marketing agreements and
orders, Reporting and recordkeeping
requirements.
For the reasons set forth in the
preamble, 7 CFR part 983 is amended as
follows:
I
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 § 983.147, current paragraphs (g)
and (h) are redesignated as paragraphs
(h) and (i), and a new paragraph (g) is
added to read as follows:
I
§ 983.147
Reports.
*
*
*
*
*
(g) ACP–8, Producer Delivery Report.
Each handler of pistachios shall file this
report with the committee by the 15th
day of December of each production
year: Provided, That for the 2007–08
production year, handlers must file this
report with the committee by April 17,
2008, to report his/her receipts of
pistachios during the current
production year, the names of the
handlers’ producing entities, business
type, and the following information
concerning each producing entity:
Federal Tax Identification number;
mailing and e-mail address; telephone
and fax number; total bearing acres;
county of production; and for the
current production year, the total
receipts of open inshell, closed shell,
shelling stock of each producing entity;
and total pounds of processed
pistachios produced by each producing
entity.
*
*
*
*
*
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18706
Federal Register / Vol. 73, No. 67 / Monday, April 7, 2008 / Rules and Regulations
Dated: April 2, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing
Service.
[FR Doc. 08–1109 Filed 4–3–08; 1:02 pm]
BILLING CODE 3410–02–P
DEPARTMENT OF TRANSPORATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2008–0392; Directorate
Identifier 2008–CE–022–AD; Amendment
39–15451; AD 2008–07–10]
2120–AA64
Airworthiness Directives; Hawker
Beechcraft Corporation Models B200,
B200GT, B300, and B300C Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule; request for
comments.
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AGENCY:
Discussion
SUMMARY: The FAA is adopting a new
airworthiness directive (AD) for certain
Hawker Beechcraft Corporation (HBC)
Models B200, B200GT, B300, and
B300C airplanes. This AD requires you
to fabricate and install a placard
incorporating information that limits
operation when there is known or
forecast icing and requires you to
replace a section of the pneumatic
supply tube for the tail deice system
with a new tube of a different material.
This AD results from reports of
collapsed tail deice boot pneumatic
supply tubes. We are issuing this AD to
prevent collapsed pneumatic supply
tubes, which could result in failure of
the tail deice boots to operate. This
failure could lead to loss of control in
icing conditions.
DATES: This AD becomes effective on
April 10, 2008.
On April 10, 2008 the Director of the
Federal Register approved the
incorporation by reference of certain
publications listed in this AD.
We must receive any comments on
this AD by June 6, 2008.
ADDRESSES: Use one of the following
addresses to comment on this AD.
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: (202) 493–2251.
• Mail: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue, SE.,
Washington, DC 20590.
• Hand Delivery: U.S. Department of
Transportation, Docket Operations, M–
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15:06 Apr 04, 2008
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30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays.
To get the service information
identified in this AD, contact Hawker
Beechcraft Corporation, P.O. Box 85,
Wichita, Kansas 67201–0085; telephone:
(800) 429–5372 or (316) 676–3140.
To view the comments to this AD, go
to https://www.regulations.gov. The
docket number is FAA–2008–0392;
Directorate Identifier 2008–CE–022–AD.
FOR FURTHER INFORMATION CONTACT: Don
Ristow, Aerospace Engineer, Wichita
Aircraft Certification Office, 1801
Airport Road, Room 100, Wichita,
Kansas 67209; telephone: (316) 946–
4120; fax: (316) 946–4107.
SUPPLEMENTARY INFORMATION:
We received information of reports of
collapsed pneumatic tubes, which
supply pressure and vacuum to the
horizontal stabilizer deice boots. With
the introduction of an improved
environmental control system, a section
of the pneumatic deice tube located in
the aft evaporator bay is subject to
higher than normal temperature. This
high heat in the aft evaporator bay may
cause the tubing to soften and collapse
undetected and permanently block flow
to and from the deice boots.
The pilot’s operating handbook
specifies to visually check deicing
boots, where possible, for inflation and
hold down function when ice protection
equipment is required. However, the tail
deice boots are not visible from the
cockpit during the check.
Since the collapse of the pneumatic
deice supply tube is caused by the use
of cabin heat, there is the possibility
that the condition could occur after preflight verification of operation. Icing
conditions and the use of cabin heat
would be a normal operational mode.
In February 2008, HBC issued a safety
communique to inform flight crews of
the potential for collapsed pneumatic
supply tubes and recommended flight
crews avoid flight into icing conditions.
This condition, if not corrected, could
result in failure of the tail deice boots
to operate. This failure could lead to
loss of control in icing conditions.
Relevant Service Information
We reviewed Hawker Beechcraft
Mandatory Service Bulletin SB 30–3889,
Issued: March 2008. The service
information describes procedures for
replacement of tail deice boot
pneumatic supply tubes.
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FAA’s Determination and Requirements
of This AD
We are issuing this AD because we
evaluated all the information and
determined the unsafe condition
described previously is likely to exist or
develop on other products of the same
type design. This AD requires you to
fabricate and install a placard
incorporating information that limits
operation when there is known or
forecast icing and requires you to
replace a section of the pneumatic
supply tube for the tail deice system
with a new tube of a different material.
The replacement of the tail deice boot
pneumatic supply tubes is terminating
action for the operation limitations in
known or forecast icing.
In preparing this rule, we contacted
type clubs and aircraft operators to get
technical information and information
on operational and economic impacts.
We did not receive any information
through these contacts. If received, we
would have included a discussion of
any information that may have
influenced this action in the rulemaking
docket.
FAA’s Determination of the Effective
Date
An unsafe condition exists that
requires the immediate adoption of this
AD. The FAA has found that the risk to
the flying public justifies waiving notice
and comment prior to adoption of this
rule because this condition could result
in failure of the tail deice boots to
operate. This failure could lead to loss
of control in icing conditions. Therefore,
we determined that notice and
opportunity for public comment before
issuing this AD are impracticable and
that good cause exists for making this
amendment effective in fewer than 30
days.
Comments Invited
This AD is a final rule that involves
requirements affecting flight safety, and
we did not precede it by notice and an
opportunity for public comment. We
invite you to send any written relevant
data, views, or arguments regarding this
AD. Send your comments to an address
listed under the ADDRESSES section.
Include the docket number ‘‘FAA–
2008–0392; Directorate Identifier 2008–
CE–022–AD’’ at the beginning of your
comments. We specifically invite
comments on the overall regulatory,
economic, environmental, and energy
aspects of the AD. We will consider all
comments received by the closing date
and may amend the AD in light of those
comments.
We will post all comments we
receive, without change, to https://
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]]>Agencies
[Federal Register Volume 73, Number 67 (Monday, April 7, 2008)]
[Rules and Regulations]
[Pages 18703-18706]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 08-1109]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 983
[Docket No. AMS-FV-07-0095; FV07-983-2 FR]
Pistachios Grown in California; Change in Reporting Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule changes the current reporting requirements
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 changes will modify one existing committee form and
add a new form to a currently-approved information collection. The
information collected will require handlers to report production and
producer data, enabling the committee to obtain better information for
preparing its annual marketing policy statement and conducting
committee nominations and periodic referenda under the order.
DATES: Effective Date: April 8, 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 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
[[Page 18704]]
not later than 20 days after the date of the entry of the ruling.
This final rule changes the reporting requirements prescribed under
the order. These changes will modify one committee form and add a new
form to the currently-approved information collection. The new form
will require handlers to report production and producer data. This new
data will enable the committee to obtain better information for
preparing its annual marketing policy statement and for conducting
committee nominations and periodic referenda for pistachio producers.
These changes were unanimously recommended by the committee on April 2,
2007.
Under Sec. 983.47 handlers are required to furnish such reports as
the committee, with the approval of the Secretary, needs to enable the
Secretary and the committee to perform their functions.
As a result of a producer referendum, the California Pistachio
Commission (CPC), a California State marketing program, was terminated
in the spring of 2007. Data historically collected by the CPC and
shared with the committee is no longer available. Such data includes
information on the total available supply of pistachios grown in
California and on the producers who produced the pistachios.
Thus, the committee unanimously recommended changes to its
reporting requirements to capture information necessary for the
effective administration of the Federal order that is no longer
available through the CPC. Specifically, the committee recommended
revising its current ACP Form 7, ``Monthly Report of Inventory/
Shipments,'' and creating a new form, ACP Form 8, ``Producer Delivery
Report.'' These forms will allow the committee to collect production,
producer, inventory, and shipment data from handlers.
Requiring handlers to report such data will enable the committee to
obtain better information on the total available supply of pistachios
grown in California and to contact pistachio producers. The order
requires the committee to prepare an annual marketing policy statement,
pursuant to Sec. 983.37. Several elements are required for an
acceptable marketing policy statement: production, harvesting,
processing, and storage conditions data. The committee is also required
to hold annual nominations for seats on the committee, and USDA is
required to conduct periodic continuance referenda. The committee needs
producer and production data to fulfill order requirements.
Currently on the ACP Form 7, all handlers must report their
beginning inventory, grower deliveries, shipments of pistachios to the
domestic market, interhandler transfers, non-handler purchases of
California product, inventory adjustments on split and shelled
pistachios, and ending inventory on a monthly basis. This final rule
will remove the requirement to report inventory adjustments to split
and shelled pistachios, as the committee believes that this information
is no longer needed. This final rule will also require handlers to
report their export shipments. Export data was previously collected by
the CPC and provided by some handlers voluntarily to the committee.
On the new form, ACP Form 8, ``Producer Delivery Report,'' handlers
will be required to annually provide the names of the producers who
deliver pistachios to them, the producers' mailing addresses and other
contact information (telephone and facsimile numbers and e-mail
addresses), the producers' employer identification numbers, total
receipts of pistachios from each producer, and the counties in which
the pistachios were grown. These reports will allow the committee to
identify all authorized voters for committee selections and referenda
in which each business entity is entitled to cast one vote. Individual
producers may produce and deliver pistachios under more than one
business entity. The information collected on this report will also
allow the committee to determine whether individual producers are
eligible to represent more than one business entity, based upon Federal
Tax Identification numbers.
The information on producer deliveries will also allow the
committee to track deliveries to handlers and verify that handlers pay
the appropriate assessments on pistachios they receive. This
information will also streamline handler audits for committee staff.
Pursuant to Sec. 983.147(c), handlers who handle less than 5,000
pounds annually will be exempt from filing ACP Form 8. These small
handlers tend to be producers who handle their own production only and
are known to the committee in their producer, as well as their handler,
capacity. Therefore, the committee already has business entity,
production, and contact information on the producers that are also
exempt handlers.
Such information will provide the committee with production and
producer data to enhance the administration of the order. An electronic
version of the form will be available to those handlers who file
electronically.
Since the addition of ACP Form 8 will require changes to the
order's rules and regulations, Sec. 983.147 will be modified to add a
new paragraph (g), and to redesignate current paragraphs (g) and (h) as
paragraphs (h) and (i).
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 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.
There are approximately 740 producers in the production area and
approximately 50 handlers of California pistachios subject to
regulation under the order. 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 final rule will change Sec. 983.147 of the order's
regulations, and revise a currently-approved information collection.
The committee determined that production data the CPC previously
collected and made available to the committee was still necessary for
the efficient operation of the program. Therefore, the committee agreed
that it should require handlers to report production and shipment data
directly to the committee. In order to receive this data, the committee
unanimously recommended that current ACP Form 7, ``Monthly Report of
Inventory/Shipments,'' be revised and that a new form, ACP Form 8,
``Producer Delivery Report,'' be developed. Authority for these changes
is provided in Sec. 983.47.
On April 2, 2007, the committee deliberated on the value of
revising the current form and requiring the new form, and discussed
alternatives. It
[[Page 18705]]
determined that the only alternative would be to not collect such
industry data. However, the order requires the committee to prepare an
annual marketing policy statement. Several elements are required for an
acceptable marketing policy statement: Production, harvesting,
processing, and storage conditions data. The committee is also required
to hold annual nominations for seats on the committee, and USDA is
required to conduct periodic continuance referenda. Thus, the committee
needs this data to fulfill order requirements. The revised ACP Form 7
and the new ACP Form 8 have been approved by the Office of Management
and Budget (OMB) under OMB No. 0581-0215, ``Pistachios Grown in
California.''
As with other marketing order programs, reports and forms are
periodically reviewed to reduce information requirements and
duplication by industry and public sector agencies.
This final rule will impose additional reporting and recordkeeping
burdens on handlers. However, any additional burden is expected to be
offset by the efficient operation of the order. Handlers will continue
to file the ACP Form 7 monthly and will file the ACP Form 8 annually,
but the data collected will serve multiple purposes and streamline
committee operations. 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.
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.
Further, the committee's meeting was widely publicized throughout
the pistachio industry and all interested persons were encouraged to
attend the meeting and participate in the committee's deliberations.
Like all committee meetings, the April 2, 2007, meeting was a public
meeting, and entities of all sizes were encouraged to express their
views on these issues.
A proposed rule was published in the Federal Register on September
7, 2007 (72 FR 173). Copies of the proposed rule were mailed or sent
via facsimile to all committee members and handlers. Finally, the
proposed rule was made available through the Internet, USDA and the
Office of the Federal Register. A 60-day comment period ending November
6, 2007, was provided to allow interested persons to respond to the
proposal. One opposing comment was received.
The commenter was opposed to the committee collecting and
disseminating monthly export shipment and inventory data from handlers.
According to the commenter, this data, when collected by the CPC in the
past, proved valuable in evaluating market conditions and measuring the
effectiveness of marketing efforts by the industry. However, the
commenter stated that the export data is no longer necessary because
the Federal order only regulates domestically shipped product and not
exports. The commenter also expressed concern with the accuracy of the
inventory data, and contends that such discrepancies are deliberate or
accidental errors in the reporting to the committee. The commenter
stated a preference for standardized inventory reporting practices
because there are no standards for determining inventory levels. The
commenter argues that, without set procedures, handlers could easily
manipulate their reported inventory to seek competitive advantage in
the marketplace.
Regarding the concerns about export shipments, the order provides
authority for the collection of information from handlers, which
includes shipment data. The committee believes that this information is
valuable to the industry, and unanimously voted to collect this
information under the Federal order.
Regarding the concerns about the accuracy of the monthly inventory
data, the ACP-7 requires handlers to report an ``inventory adjustment''
figure, which is an adjustment to inventory due to issues including
splitting, shelling, shrink, and loss of product. According to
committee staff, there is variability in the way handlers store and
manage their pistachios, which creates differences in how handlers
report inventory adjustments. The committee is exploring ways to
improve the accuracy of this information.
Accordingly, no changes will be made to this rule based on the
comment 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.
Pursuant to 5 U.S.C. 553, it is also found and determined that good
cause exists for not postponing the effective date of this rule until
30 days after publication in the Federal Register because the data
required through this rule is no longer available from the CPC, and the
committee needs this information to ensure proper administration of the
Federal order. Further, handlers are aware of this rule, which was
unanimously recommended by the committee at a public meeting. Also, a
60-day comment period was provided for the proposed 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 Sec. 983.147, current paragraphs (g) and (h) are redesignated as
paragraphs (h) and (i), and a new paragraph (g) is added to read as
follows:
Sec. 983.147 Reports.
* * * * *
(g) ACP-8, Producer Delivery Report. Each handler of pistachios
shall file this report with the committee by the 15th day of December
of each production year: Provided, That for the 2007-08 production
year, handlers must file this report with the committee by April 17,
2008, to report his/her receipts of pistachios during the current
production year, the names of the handlers' producing entities,
business type, and the following information concerning each producing
entity: Federal Tax Identification number; mailing and e-mail address;
telephone and fax number; total bearing acres; county of production;
and for the current production year, the total receipts of open
inshell, closed shell, shelling stock of each producing entity; and
total pounds of processed pistachios produced by each producing entity.
* * * * *
[[Page 18706]]
Dated: April 2, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 08-1109 Filed 4-3-08; 1:02 pm]
BILLING CODE 3410-02-P
