Pistachios Grown in California; Changes to Handling Regulations, 56526-56532 [E9-26148]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 74, Number 210 (Monday, November 2, 2009)]
[Rules and Regulations]
[Pages 56526-56532]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-26148]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 983

[Doc. No. AMS-FV-09-0031; FV09-983-1 FR]


Pistachios Grown in California; Changes to Handling Regulations

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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[[Page 56527]]

SUMMARY: This rule changes the handling regulations prescribed under 
Marketing Agreement and Order No. 983 (order), which regulate the 
handling of pistachios grown in California, Arizona, and New Mexico. 
The changes were recommended by the Administrative Committee for 
Pistachios (committee), which is responsible for local administration 
of the order. The changes bring the handling regulations into 
conformance with amendments to the order by including certain 
regulatory language previously contained in the order's provisions in 
the order's administrative rules and regulations, lifting the 
suspension of certain language, removing obsolete language, and 
revising references to renumbered order provisions.

DATES: Effective Date: November 3, 2009.

FOR FURTHER INFORMATION CONTACT: Martin Engeler, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 
Monterey Street, Suite 102-B, Fresno, California 93721; Telephone: 
(559) 487-5110, Fax: (559) 487-5906, or E-mail: 
Martin.Engeler@ams.usda.gov; or Laurel May, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 
Independence Avenue, SW., Stop 0237, Washington, DC 20250-0237; 
Telephone: (202) 205-2830, Fax: (202) 720-8938, or E-mail: 
Laurel.May@ams.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, E-mail: Jay.Guerber@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing 
Agreement and Order No. 983, both as amended (7 CFR part 983), 
regulating the handling of pistachios grown in California, Arizona, and 
New Mexico. 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.
    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, or any obligation imposed in connection with 
the order, is not in accordance with law and may request a modification 
of the order or to be exempted therefrom. A handler is afforded the 
opportunity for a hearing on the petition. After the hearing, USDA 
would rule on the petition. The Act provides that the district court of 
the United States in any district in which the handler is an 
inhabitant, or has his or her principal place of business, has 
jurisdiction to review USDA's ruling on the petition, provided an 
action is filed not later than 20 days after the date of the entry of 
the ruling.
    This final rule makes changes to the administrative rules and 
regulations contained in the order. The changes will bring the current 
handling regulations into conformance with amendments to the order by 
including certain regulatory language previously contained in the 
order's provisions in the order's administrative rules and regulations, 
lifting the suspension of certain language, removing obsolete language, 
and revising references to renumbered order provisions. These changes 
were recommended by the committee and submitted to USDA on May 28, 
2008.
    A Secretary's decision, which describes the proposed amendments to 
the order, was published in the Federal Register on August 6, 2009 (74 
FR 39230). A copy of the Secretary's decision may be viewed at: https://www.regulations.gov/search/Regs/home.html#documentDetail?R=0900006480a02766. An order amending the 
order implementing the amendments is also scheduled to be published in 
the Federal Register on the date this rule is published.
    Amendments to the order's provisions will expand the production 
area subject to regulation under the order to include the States of 
Arizona and New Mexico in addition to California. Additional amendments 
to the order will modify existing provisions regarding aflatoxin and 
quality regulations, revise various administrative procedures under the 
order, authorize the committee to recommend research projects, and make 
other related changes. The amendments were approved by producers 
participating in a referendum conducted during the period August 10 
through August 22, 2009; thus, conforming changes to the order's 
administrative rules and regulations are necessary.
    Among other things, specific regulatory language contained in the 
order's aflatoxin and quality provisions is being removed. To avoid a 
lapse in regulation, the committee recommended that specific order 
provisions concerning aflatoxin tolerance levels and testing procedures 
be added to the order's administrative rules and regulations section at 
the same time the amendments are effectuated. This will provide a 
seamless transition and will assure that pistachios continue to be 
handled under the same regulations previously in place for California 
pistachios under the order. This rule implements those conforming 
changes. It is intended that finalization of this rule correspond with 
the issuance of the order amending the order upon publication in the 
Federal Register.
    Section 983.38 of the order previously specified the maximum 
aflatoxin tolerance level for domestic shipments of pistachios for 
human consumption. This section also specified aflatoxin testing and 
certification procedures. Section 983.39 of the order, which was 
suspended on December 10, 2007 (72 FR 69141), specified minimum quality 
levels for domestic shipments of pistachios for human consumption. 
Testing and certification procedures to verify pistachio quality were 
also specified in this section. Section 983.46(c) of the order 
authorized the committee to recommend administrative rules and 
regulations implementing the provisions of Sec. Sec.  983.38 and 
983.39.
    The order as amended includes amendments to Sec. Sec.  983.38 and 
983.39 that removes specific regulatory language from those provisions 
and replaces it with general authority to recommend and establish 
aflatoxin and quality regulations through the informal rulemaking 
process. Sections 983.38 and 983.39 are also being redesignated as 
Sec. Sec.  983.50 and 983.51, respectively. Such changes require the 
addition of new regulatory sections to the order's administrative rules 
and regulations, render certain other sections obsolete, and require 
the revision of other sections to reflect changes to the order 
provisions, including references to renumbered sections.
    As a result of the amendment of Sec.  983.38, certain specific 
handling requirements concerning aflatoxin levels and testing 
procedures previously provided in that section are being moved to a new 
Sec.  983.150--Aflatoxin Regulations, which is added to the order's 
rules and regulations. Section 983.150 specifies an aflatoxin tolerance 
level of 15 ppb, which is the aflatoxin tolerance previously provided 
under the order. Section 983.150 also specifies the same aflatoxin 
sampling, testing, and certification procedures previously contained in 
the order, with some

[[Page 56528]]

modifications. For instance, the regulation requires that at least 
eight members of the committee recommend, and the Secretary approve, 
any alternative aflatoxin analysis methods. The regulation also 
requires accredited laboratories performing aflatoxin testing to 
certify that every lot of production area pistachios shipped 
domestically does not exceed the maximum aflatoxin tolerance level 
specified under the regulations. Additionally, handlers are required to 
maintain testing and shipping records for three years beyond the 
production year of their applicability. Finally, section references 
throughout the section are updated to reflect renumbered order 
provisions.
    Section 983.138 of the order's administrative rules and regulations 
concerns the drawing of samples for aflatoxin testing in accordance 
with requirements in Sec.  983.38. Because updated sampling procedures 
are contained in new Sec.  983.150, this section would be obsolete 
under the amended order. Therefore, the committee recommended removing 
this section.
    Due to amendment of Sec.  983.39, the order will no longer contain 
specific regulations regarding minimal pistachio quality or testing. 
The committee will have general authority to consider and recommend 
minimal quality regulations and testing procedures. Certain references 
to the provisions of Sec.  983.39 will also be obsolete. Therefore, the 
committee recommended that affected sections be revised to reflect 
proposed amendments to that section.
    Section 983.141 outlines procedures for exempting handlers from 
minimum quality testing. This section has been suspended since December 
10, 2007 (72 FR 69141), when the minimum quality provision of the order 
was also suspended. This section will be obsolete under the amended 
order. Therefore, the committee recommended lifting the suspension of 
Sec.  983.141 and removing the section.
    The order amendments include a change to Sec.  983.40 that removes 
specific regulations regarding rework procedures for lots of pistachios 
failing aflatoxin and minimum quality testing. Those regulations are 
being replaced with general authority to recommend rework procedures 
for failed lots. Specific regulations describing rework provisions for 
lots failing aflatoxin testing are being moved to a new Sec.  983.152--
Failed lots/rework procedure. Conforming changes to the text of the 
current regulations are being made in Sec.  983.152 to reference 
aflatoxin regulations in the amended order provisions, and references 
to renumbered sections are also being changed.
    The order amendments include a change to Sec.  983.41 that removes 
a quality testing exemption for handlers handling fewer than 1,000,000 
pounds of pistachios annually and replaces it with general authority to 
recommend testing procedures for minimum quantities. Section 983.41 is 
also being redesignated as Sec.  983.53. Section 983.47 previously 
provided for the collection of necessary reports from regulated 
handlers. As a result of the amendments, Sec.  983.47 is being 
redesignated as Sec.  983.64. Paragraph (d) of Sec.  983.147 describes 
Form ACP-5--``Minimal Testing Form,'' for use by handlers handling 
fewer than 1,000,000 pounds of pistachios annually. That paragraph has 
been suspended since December 10, 2007 (72 FR 69141), when the minimum 
quality provision of the order was also suspended. The committee 
recommended revising that paragraph to specify that handlers may use 
Form ACP-5 to request permission to handle minimum quantities of 
pistachios according to the provisions of redesignated Sec.  983.53. To 
remain consistent with the redesignation of Sec.  983.47 as Sec.  
983.64, this rule redesignates Sec.  983.147 as Sec.  983.164.
    The order amendments include a change to Sec.  983.70, which 
previously provided an exemption from certain handling regulations 
under the order for handlers of fewer than 1,000 pounds of pistachios 
and authorized the committee to recommend revised exemption levels. The 
amendment raises the exemption level to 5,000 pounds. The section is 
also being redesignated as Sec.  983.92. As authorized under Sec.  
983.70, Sec.  983.170 of the order's administrative rules and 
regulations previously provided an exemption for handlers of fewer than 
5,000 pounds. As a result of the amendment to Sec.  983.70, Sec.  
983.170 is redundant. Therefore, the committee recommended that Sec.  
983.170 be removed. Additionally, a reference to Sec.  983.170 in Sec.  
983.143 is revised to reference the exemption level in redesignated 
Sec.  983.92. Finally, amendments to Sec.  983.43 redesignate that 
section as Sec.  983.55. To remain consistent with that redesignation, 
this rule also redesignates Sec.  983.143 as Sec.  983.155.
    Section 983.53 of the order authorizes the collection of 
assessments from handlers on receipts of pistachios. Such assessments 
are used to fund expenses of the committee. Section 983.253 specifies 
the current assessment rate established for California pistachios. As 
explained above, the order amendments include expanding the production 
area to include the States of Arizona and New Mexico, in addition to 
California. Therefore, the committee recommended that paragraph (b) of 
Sec.  983.253 be revised to establish an assessment rate applicable to 
all production area pistachios. To conform to the definition of the 
committee's ``production year'' contained in the order, the language of 
paragraph (b) of Sec.  983.253 is also being revised to specify that 
assessments are due to the committee by December 15 of the applicable 
production year.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), the 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 will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and rules issued thereunder, are unique in that 
they are brought about through group action of essentially small 
entities acting on their own behalf.
    Small business firms, which include handlers regulated under the 
order, have been defined by the Small Business Administration (SBA) (13 
CFR 121.201) as those having annual receipts of less than $7,000,000. 
Small agricultural producers have been defined as those with annual 
receipts of less than $750,000.
    There are approximately 29 handlers and 875 producers of pistachios 
in California, Arizona, and New Mexico. The committee has estimated 
that approximately 50 per cent of California handlers would be 
considered small businesses, as defined by SBA. The industry has 
estimated that one of the Arizona handlers and all three New Mexico 
handlers would also be considered small businesses.
    Data provided by the committee regarding the size of the 2007 crop, 
as well as data reported by the National Agricultural Statistics 
Service (NASS), suggests that the average California producer revenue 
for the 2007 crop was $733,200. It is estimated that 85 percent of 
California producers had receipts of less than $750,000 and would thus 
be considered small businesses according to the SBA definition. 
Although there is no official data available, the industry estimates 
that the majority of producers in Arizona and New Mexico would also be 
considered small businesses.

[[Page 56529]]

    The order previously regulated only pistachios produced in 
California. As a result of amendments to the order, the production area 
is being expanded to include Arizona and New Mexico. Additional 
amendments to the order will remove specific aflatoxin and quality 
regulations and testing procedures from the order's provisions and 
replace them with general authority for the committee to recommend 
aflatoxin and quality regulations. This rule makes changes to the 
order's administrative rules and regulations by adding the specific 
aflatoxin regulations previously found in the order's provisions and 
clarifying that the regulations pertain to handlers throughout the 
expanded production area. Certain language in the administrative rules 
and regulations section that is currently suspended, or that is 
redundant or obsolete due to enactment of the amendments, is being 
removed or revised. References to order sections that have been 
redesignated are also revised to reference the renumbered sections. 
These changes were recommended by the committee to ensure a seamless 
transition in aflatoxin regulation when the amendments are approved and 
to conform to various changes to the order's provisions.
    Specifically, this rule removes Sec.  983.138--Samples for testing, 
Sec.  983.141--Procedures for exempting handlers from minimum quality 
testing, and Sec.  983.170--Handler exemption, from the order's 
administrative rules and regulations. Conforming changes are being made 
to the language and references in Sec. Sec.  983.143, 983.147, 983.253 
to reflect amendments to the order, such as the expansion of the 
production area to include Arizona and New Mexico and the redesignation 
of several order sections. Sections 983.143 and 983.147 are being 
redesignated as Sec. Sec.  983.155 and 983.164, respectively. Finally, 
two new sections, Sec.  983.150--Aflatoxin regulations, and Sec.  
983.152--Failed lots/rework procedure, are being added to incorporate 
specific regulations concerning aflatoxin tolerance levels and testing 
procedures that are removed from the order's provisions as a result of 
the amendments.
    The impact of the amendments to the order on producers and handlers 
has been analyzed in the Secretary's Decision published in the Federal 
Register on August 6, 2009, at 74 FR 39230. It may be generally 
concluded from the final regulatory impact analysis that the order 
amendments will improve the operation and functioning of the marketing 
order program and that all producers and handlers will benefit 
regardless of size. The analysis examined the benefits and costs to 
producers and handlers as a result of the expansion of the production 
area to include Arizona and New Mexico and the regulation of handlers 
under the marketing order program, including aflatoxin certification 
requirements.
    Many of the amendments in this rule simply change the location of 
the regulatory provisions concerning aflatoxin levels and testing from 
the order provisions to the regulations. Therefore, these changes 
should have no effect upon California pistachio handlers of any size 
since they are currently required to comply with those requirements. 
With regard to application of aflatoxin certification requirements on 
Arizona and New Mexico handlers, that impact is fully considered in the 
previously referenced final regulatory flexibility analysis. The 
minimum quality provisions of the order have been suspended since 
December 10, 2007 (72 FR 69141), so there will be no effect on handlers 
as a result of removing those provisions. The revision of certain 
language, redesignation of some sections, and references to 
redesignated sections of the order that will be made to conform to the 
amended order are administrative in nature and will have no effect on 
producers or handlers of any size.
    The changes in this rule are necessary to conform to amendments to 
the order. With regard to alternatives, if the amendments had not been 
approved by producers voting in the referendum, these changes would not 
be made and the proposed rule would have been withdrawn.
    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.
    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.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap or conflict with this rule.
    These changes were recommended by the committee on March 6, 2008, 
and submitted to AMS on May 28, 2008. The committee's meeting was 
widely publicized throughout the pistachio industry and all interested 
persons were invited to attend and participate. All entities, both 
large and small, were able to express their views on the effects of the 
amendments contained herein.
    A proposed rule concerning this action was published in the Federal 
Register on September 4, 2009 (74 FR 45772). Copies of the rule were 
provided to interested parties. The rule was also made available 
through the Internet by USDA and the Office of the Federal Register. A 
10-day comment period ending on September 14, 2009, was provided to 
allow interested persons to respond to the proposal.
    One comment was received during the comment period. The comment was 
submitted by the manager of the committee. The commenter requested that 
the implementation of the aflatoxin regulations be delayed for handlers 
in the States of Arizona and New Mexico (District 4). The commenter 
points out that these States will be added to the production area and 
subject to regulation as a result of amendments to the order. The 
commenter states that handlers in Arizona and New Mexico have not 
previously been subject to marketing order requirements and have not 
had access to the necessary inspection services and forms needed to 
comply with the marketing order requirements. In addition, the 
committee will need time to consider implementation of rules and 
regulations that could provide reimbursement to District 4 handlers for 
additional costs associated with aflatoxin testing and certification.
    USDA agrees that it may take a period of time for the handlers in 
Arizona and New Mexico to be in a position to meet these marketing 
order requirements. California handlers have been operating under the 
requirements since 2005; however, the Arizona and New Mexico handlers 
will need some time to transition into the program.
    USDA believes it is reasonable to implement the aflatoxin sampling, 
testing, and certification requirements for Arizona and New Mexico 
handlers in District 4. Therefore, a change is made in this final rule 
that will implement the aflatoxin regulations for Arizona and New 
Mexico handlers on or after October 30, 2009.
    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/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to 
Jay Guerber at the previously mentioned address in the FOR FURTHER 
INFORMATION CONTACT section.

[[Page 56530]]

    After consideration of all relevant matters presented, including 
the information and recommendation submitted by the committee and other 
available information, it is hereby found that this rule, as 
hereinafter set forth, will tend to effectuate the declared policy of 
the Act.
    It is further found that good cause exists for not postponing the 
effective date of this rule until 30 days after publication in the 
Federal Register (5 U.S.C. 553) because, as stated in the final rule 
amending the current order, the new production year began on September 
1, and these regulations, which implement the order as amended, should 
be in place as soon as possible. Further, the effective date of this 
final rule corresponds to the effective date of the amended order.

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 proposed 
to be 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.


Sec.  983.138  [Removed]

0
2. Section 983.138 is removed.


Sec.  983.141  [Removed]

0
3. Lift the December 10, 2007, suspension of Sec.  983.141, and remove 
the section.


Sec.  983.143  [Redesignated as Sec.  983.155 and Amended]

0
4. Redesignate Sec.  983.143 as Sec.  983.155, and amend paragraph (b) 
of that section by removing the words ``Sec.  983.170'' and adding in 
their place the words ``Sec.  983.92.''


Sec.  983.147  [Redesignated as Sec.  983.164]

0
5. Lift the December 10, 2007, suspension of Sec.  983.147(d), 
redesignate Sec.  983.147 as Sec.  983.164.

0
6. Amend newly redesignated Sec.  983.164 by revising paragraph (d) to 
read as follows:


Sec.  983.164  Reports.

* * * * *
    (d) ACP-5, Minimal Testing Form. Each handler who handles less than 
1,000,000 pounds of dried weight pistachios in a production year and 
who wishes to request permission to handle under the minimal quantities 
provisions (Sec.  983.53) of the order shall furnish this report to the 
committee office no later than August 1 of each production year.
* * * * *

0
7. Add new Sec.  983.150 to read as follows:


Sec.  983.150  Aflatoxin regulations.

    (a) Maximum level. No handler shall ship for domestic human 
consumption, pistachios that exceed an aflatoxin level of 15 ppb; 
Provided, That the provisions of this section pertaining to aflatoxin 
levels, sampling, testing, and certification shall apply to handlers in 
District 4 on or after October 30, 2009. All shipments must also be 
covered by an aflatoxin inspection certificate. Pistachios that fail to 
meet the aflatoxin requirements shall be disposed in such manner as 
described in the Failed Lots/Rework Procedure of this part (Sec.  
983.152).
    (b) Change in level. The committee may recommend to the Secretary 
changes in the aflatoxin level specified in this section. If the 
Secretary finds, on the basis of such recommendation or other 
information, that such an adjustment of the aflatoxin level would tend 
to effectuate the declared policy of the Act, such change shall be made 
accordingly.
    (c) Transfers between handlers. Transfers between handlers within 
the production area are exempt from the aflatoxin regulation of this 
section.
    (d) Aflatoxin testing procedures. To obtain an aflatoxin inspection 
certificate, each lot to be certified shall be uniquely identified, be 
traceable from testing through shipment by the handler, and be 
subjected to the following:
    (1) Samples for testing. Prior to testing, a sample shall be drawn 
from each lot (``lot samples'') of sufficient weight to comply with 
Table 1 and Table 2 of this section.
    (2) Test samples for aflatoxin. Prior to submission of samples to 
an accredited laboratory for aflatoxin analysis, three samples shall be 
created equally from the pistachios designated for aflatoxin testing in 
compliance with the requirements of Tables 1 and 2 of this paragraph 
(``test samples''). The test samples shall be prepared by, or under the 
supervision of, an inspector, or as approved under an alternative USDA-
recognized inspection program. The test samples shall be designated by 
an inspector as Test Sample 1, Test Sample 2, and 
Test Sample 3. Each sample shall be placed in a suitable 
container, with the lot number clearly identified, and then submitted 
to an accredited laboratory. The gross weight of the inshell lot sample 
for aflatoxin testing and the number of incremental samples required 
are shown in Table 1. The gross weight of the kernel (shelled) lot 
sample for aflatoxin testing and the number of incremental samples 
required is shown in Table 2.

     Table 1 to Sec.   983.150(d)(2)--Inshell Pistachio Lot Sampling Increments for Aflatoxin Certification
----------------------------------------------------------------------------------------------------------------
                                                                     Number of
                                                                    incremental    Total weight    Weight of the
                        Lot weight (lbs)                            samples for    of lot sample    test sample
                                                                  the lot sample    (kilograms)     (kilograms)
----------------------------------------------------------------------------------------------------------------
220 or less.....................................................              10             3.0             1.0
221-440.........................................................              15             4.5             1.5
441-1,100.......................................................              20             6.0             2.0
1,101-2,200.....................................................              30             9.0             3.0
2,201-4,400.....................................................              40            12.0             4.0
4,401-11,000....................................................              60            18.0             6.0
11,001-22,000...................................................              80            24.0             8.0
22,001-150,000..................................................             100            30.0            10.0
----------------------------------------------------------------------------------------------------------------


[[Page 56531]]


  Table 2 to Sec.   983.150(d)(2)--Shelled Pistachio Kernel Lot Sampling Increments for Aflatoxin Certification
----------------------------------------------------------------------------------------------------------------
                                                                     Number of
                                                                    incremental    Total weight    Weight of the
                        Lot weight (lbs)                            samples for    of lot sample    test sample
                                                                  the lot sample    (kilograms)     (kilograms)
----------------------------------------------------------------------------------------------------------------
220 or less.....................................................              10             1.5            0.5
221-440.........................................................              15             2.3            0.75
441-1,100.......................................................              20             3.0            1.0
1,101-2,200.....................................................              30             4.5            1.5
2,201-4,400.....................................................              40             6.0            2.0
4,401-11,000....................................................              60             9.0            3.0
11,001-22,000...................................................              80            12.0            4.0
22,001-150,000..................................................             100            15.0            5.0
----------------------------------------------------------------------------------------------------------------

     (3) Testing of pistachios. Test samples shall be received and 
logged by an accredited laboratory and each test sample shall be 
prepared and analyzed using High Pressure Liquid Chromatograph (HPLC), 
Vicam Method (Aflatest), or other methods as recommended by not fewer 
than eight members of the committee and approved by the Secretary. The 
aflatoxin level shall be calculated on a kernel weight basis.
    (4) Certification of lots ``negative'' as to aflatoxin. Lots will 
be certified as ``negative'' on the aflatoxin inspection certificate if 
Test Sample 1 has an aflatoxin level at or below 5 ppb. If the 
aflatoxin level of Test Sample 1 is above 25 ppb, the lot 
fails and the accredited laboratory shall fill out a failed lot 
notification report as specified in Sec.  983.52. If the aflatoxin 
level of Test Sample 1 is above 5 ppb and below 25 ppb, the 
accredited laboratory may at the handler's discretion analyze Test 
Sample 2, and the test results of Test Samples 1 and 
2 will be averaged. Alternatively, the handler may elect to 
withdraw the lot from testing, rework the lot, and resubmit it for 
testing after reworking. If the handler directs the laboratory to 
proceed with the analysis of Test Sample 2, the lot will be 
certified as negative to aflatoxin and the laboratory shall issue an 
aflatoxin inspection certificate if the averaged results of Test Sample 
1 and Test Sample 2 are at or below 10 ppb. If the 
averaged aflatoxin level of Test Samples 1 and 2 is 
at or above 20 ppb, the lot fails and the accredited laboratory shall 
fill out a failed lot notification report as specified in Sec.  983.52. 
If the averaged aflatoxin level of Test Samples 1 and 
2 is above 10 ppb and below 20 ppb, the accredited laboratory 
may, at the handler's discretion, analyze Test Sample 3, and 
the results of Test Samples 1, 2, and 3 will 
be averaged. Alternatively, the handler may elect to withdraw the lot 
from testing, rework the lot, and resubmit it for testing after 
reworking. If the handler directs the laboratory to proceed with the 
analysis of Test Sample 3, a lot will be certified as negative 
to aflatoxin and the laboratory shall issue an aflatoxin inspection 
certificate if the averaged results of Test Samples 1, 
2, and 3 are at or below 15 ppb. If the averaged 
aflatoxin results of Test Samples 1, 2, and 
3 are above 15 ppb, the lot fails and the accredited 
laboratory shall fill out a failed lot notification report as specified 
in Sec.  983.52. The accredited laboratory shall send a copy of the 
failed lot notification report to the committee and to the failed lot's 
owner within 10 working days of any failure described in this section. 
If the lot is certified as negative as described in this section, the 
aflatoxin inspection certificate shall certify the lot using a 
certification form identifying each lot by weight and date. The 
certification expires for the lot or remainder of the lot after 12 
months.
    (5) Certification of aflatoxin levels. Each accredited laboratory 
shall complete aflatoxin testing and reporting and shall certify that 
every lot of pistachios shipped domestically does not exceed the 
aflatoxin levels as required in paragraph (a) of this section or as 
provided under Sec.  983.50. Each handler shall keep a record of each 
test, along with a record of final shipping disposition. These records 
must be maintained for three years beyond the production year of their 
applicability, and are subject to audit by the Secretary or the 
committee at any time.
    (6) Test samples that are not used for analysis. If a handler does 
not elect to use Test Samples 2 or 3 for 
certification purposes, the handler may request that the laboratory 
return them to the handler.

0
8. Add new Sec.  983.152 to read as follows:


Sec.  983.152  Failed lots/rework procedure.

    (a) Inshell rework procedure for aflatoxin. If inshell rework is 
selected as a remedy to meet the aflatoxin regulations of this part, 
then 100% of the product within that lot shall be removed from the bulk 
and/or retail packaging containers and reworked to remove the portion 
of the lot that caused the failure. Reworking shall consist of 
mechanical, electronic, or manual procedures normally used in the 
handling of pistachios. After the rework procedure has been completed, 
the total weight of the accepted product and the total weight of the 
rejected product shall be reported to the committee. The reworked lot 
shall be sampled and tested for aflatoxin as specified in Sec.  
983.150, except that the lot sample size and the test sample size shall 
be doubled. If, after the lot has been reworked and tested, it fails 
the aflatoxin test for a second time, the lot may be shelled and the 
kernels reworked, sampled, and tested in the manner specified for an 
original lot of kernels, or the failed lot may be used for non-human 
consumption or otherwise disposed of.
    (b) Kernel rework procedure for aflatoxin. If pistachio kernel 
rework is selected as a remedy to meet the aflatoxin regulations in 
Sec.  983.150, then 100% of the product within that lot shall be 
removed from the bulk and/or retail packaging containers and reworked 
to remove the portion of the lot that caused the failure. Reworking 
shall consist of mechanical, electronic, or manual procedures normally 
used in the handling of pistachios. After the rework procedure has been 
completed, the total weight of the accepted product and the total 
weight of the rejected product shall be reported to the committee. The 
reworked lot shall be sampled and tested for aflatoxin as specified in 
Sec.  983.150.


Sec.  983.170  [Removed]

0
9. Sec.  983.170 is removed.

0
10. Amend Sec.  983.253 by removing the word ``California'' in 
paragraph (a), and by revising paragraph (b) to read as follows:


Sec.  983.253  Assessment rate.

    (a) * * *

[[Page 56532]]

    (b) Each handler who receives pistachios for processing shall 
furnish the Receipts/Assessment Report and pay all due assessments to 
the committee by December 15 of the applicable production year.

    Dated: October 26, 2009.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. E9-26148 Filed 10-30-09; 8:45 am]
BILLING CODE 3410-02-P