Pistachios Grown in California, Arizona, and New Mexico; Modification of the Aflatoxin Regulations, 68681-68682 [2010-28240]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 75, Number 216 (Tuesday, November 9, 2010)]
[Rules and Regulations]
[Pages 68681-68682]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-28240]



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Federal Register / Vol. 75, No. 216 / Tuesday, November 9, 2010 / 
Rules and Regulations

[[Page 68681]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 983

[Doc. No. AMS-FV-10-0031; FV10-983-1 FIR]


Pistachios Grown in California, Arizona, and New Mexico; 
Modification of the Aflatoxin Regulations

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Affirmation of interim rule as final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim rule that modified the aflatoxin 
sampling and testing regulations prescribed under the California, 
Arizona, and New Mexico pistachio marketing order (order). The interim 
rule streamlined the aflatoxin sampling and testing procedures under 
the order's rules and regulations for pistachios to be shipped for 
domestic human consumption while maintaining sufficient aflatoxin 
controls. These changes are expected to reduce handler operating costs 
by providing a uniform and consistent aflatoxin sampling and testing 
procedure for pistachios shipped to all market destinations.

DATES: Effective Date: November 10, 2010.

FOR FURTHER INFORMATION CONTACT: Andrea Ricci, 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: 
Andrea.Ricci@ams.usda.gov or Kurt.Kimmel@ams.usda.gov.
    Small businesses may obtain information on complying with this and 
other marketing order regulations by viewing a guide at the following 
Web site: https://www.ams.usda.gov/MarketingOrdersSmallBusinessGuide; or 
by contacting Antoinette Carter, 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: Antoinette.Carter@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement and Order No. 983, as amended (7 CFR part 983), regulating 
the handling of pistachios grown in California, Arizona, and New 
Mexico, 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.
    The handling of pistachios grown in California, Arizona, and New 
Mexico is regulated by 7 CFR part 983. Prior to this change, pistachios 
for shipment to domestic markets were subject to different aflatoxin 
sampling and testing procedures than pistachios for shipment to certain 
export markets. This rule continues in effect an interim rule modifying 
the aflatoxin sampling and testing procedures to provide consistent and 
uniform procedures for pistachios regardless of market destination. 
These changes are intended to streamline handler operating procedures 
and reduce operating costs.
    The specific changes modify the sampling procedure detailing how 
the samples will be created and analyzed, depending on the size of the 
pistachio lots. They also specify how the lots are certified based upon 
the aflatoxin levels found in the samples. Finally, the term 
``Chromatograph'' is changed to ``Chromatography'' and unnecessary 
language was removed.
    In an interim rule published in the Federal Register on July 23, 
2010, and effective on July 24, 2010, (75 FR 43045, Doc. No. AMS-FV-10-
0031, FV10-983-1 IR), Sec.  983.150 (a), (d)(2), (d)(3), (d)(4), and 
(d)(6) were amended by removing unnecessary language from Sec.  
983.150(a), changing the creation and analysis of test samples in 
paragraph (d)(2), changing the term ``Chromatograph'' to 
``Chromatography'' in paragraph (d)(3), changing the certification of 
lots based on aflatoxin levels in the samples in paragraph (d)(5), and 
removing the reference to sample 3 in paragraph (d)(6).

Final 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 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 29 handlers and 875 producers of pistachios 
in California, Arizona and New Mexico. 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.
    Currently, about 72 percent of the California handlers ship less 
than $7,000,000 worth of pistachios on an annual basis and would 
therefore be considered small business firms under the SBA definition. 
Based on acreage, production, and grower prices reported by the 
Committee, the average annual revenue for small handlers is 
approximately $1,721,911. 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 2009 
California crop indicates that approximately 630 California growers had 
350,000 pounds or less of assessable dry weight of pistachios. Using 
the most recent grower price of $2.04 per pound for pistachios, it is 
estimated that 81 percent of California producers had receipts of

[[Page 68682]]

approximately $714,000, which is less than $750,000, and thus would be 
considered small business according to the SBA definition. Although 
there is no official data available to date, as these states were 
recently added to the order and have not completed one full crop year 
for reporting purposes, the industry estimates that the majority of 
producers in Arizona and New Mexico would also be considered small 
businesses.
    This rule continues in effect the action that modified the 
aflatoxin sampling and testing regulations currently prescribed under 
the California, Arizona and New Mexico pistachio order, as well as 
removed unnecessary language and corrected terminology. The changes to 
Sec.  983.150 are expected to reduce handler operating costs by 
providing a uniform and consistent aflatoxin sampling and testing 
procedure for pistachios shipped to all market destinations. Authority 
for the change in the order's rules and regulations is provided in 
Sec.  983.50.
    This action is expected to benefit producers and handlers, 
regardless of size and regardless of the market they ship into, as it 
streamlines handler operations and increases marketing flexibility. 
Reducing the number of required samples, the number of aflatoxin 
analyses, and the total weight of the lot samples, while increasing the 
weight of the test samples for each lot is expected to result in an 
estimated annual savings to the industry of approximately $18,000, 
including reductions of $900 for sampling, $1,400 for testing, $12,750 
for labor, and $3,750 in shipping costs for those small handlers that 
do not do testing on site.
    This action will not impose any additional reporting or 
recordkeeping requirements on either small or large pistachio handlers. 
As with all Federal marketing order programs, reports and forms are 
periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies. In addition, USDA 
has not identified any relevant Federal rules that duplicate, overlap 
or conflict with this rule.
    Further, the Committee's meeting was widely publicized throughout 
the pistachio industry and all interested persons were invited to 
attend the meeting and participate in Committee deliberations. Like all 
Committee meetings, the meeting was a public meeting and all entities, 
both large and small, were able to express their views on this issue.
    Comments on the interim rule were required to be received on or 
before September 21, 2010. No comments were received. Therefore, for 
the reasons given in the interim rule, we are adopting the interim rule 
as a final rule, without change.
    To view the interim rule, go to: http: //www.regulations.gov and 
type the following docket number into the keyword search section: FV10-
983-1 IR. Follow the link provided in the ``Results'' section of this 
page.
    This action also affirms information contained in the interim rule 
concerning Executive Orders 12866 and 12988, Paperwork Reduction Act 
(44 U.S.C. chapter 35), and the E-Gov Act (44 U.S.C. 101).
    After consideration of all relevant material presented, it is found 
that finalizing the interim rule, without change, as published in the 
Federal Register (75 FR 43045, July 23, 2010) will tend to effectuate 
the declared policy of the Act.

List of Subjects in 7 CFR Part 983

    Marketing agreements and orders, Pistachios, Reporting and 
recordkeeping requirements.

PART 983--[AMENDED]

0
Accordingly, the interim rule that amended 7 CFR part 983 that was 
published at 75 FR 43045 on July 23, 2010, is adopted as a final rule, 
without change.

    Dated: November 3, 2010.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2010-28240 Filed 11-8-10; 8:45 am]
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