[Federal Register Volume 76, Number 179 (Thursday, September 15, 2011)]
[Proposed Rules]
[Pages 57001-57006]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-23629]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 76, No. 179 / Thursday, September 15, 2011 /
Proposed Rules
[[Page 57001]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 983
[Doc. No. AMS-FV-10-0099; FV11-983-1 PR]
Pistachios Grown in California, Arizona, and New Mexico; Proposed
Amendment of Marketing Order No. 983 and Referendum Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule and referendum order.
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SUMMARY: This rule proposes four amendments to Marketing Agreement and
Order No. 983 (order), which regulates the handling of pistachios grown
in California, Arizona, and New Mexico, and provides growers with the
opportunity to vote in a referendum to determine if they favor the
changes. The amendments are based on proposals by the Administrative
Committee for Pistachios (Committee), which is responsible for local
administration of the order. The amendments would provide authority to
establish aflatoxin and quality regulations for pistachios shipped to
export markets, including authority to establish different regulations
for different markets. These amendments are intended to provide
authority to ensure uniform and consistent aflatoxin and quality
regulations in the domestic and various export markets.
DATES: The referendum will be conducted from October 3 through October
14, 2011. The representative period for the purpose of the referendum
is September 1, 2010, through August 31, 2011.
FOR FURTHER INFORMATION CONTACT: Martin Engeler, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA; 2202
Monterey Street, Fresno, California 93721; Telephone: (559)487-5110,
Fax: (559) 487-5906, or Kathleen M. Finn, 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:
Martin.Engeler@ams.usda.gov or Kathy.Finn@ams.usda.gov.
Small businesses may request information on complying with this
regulation by contacting Laurel May, 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: Laurel.May@ams.usda.gov.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement and Order No. 983, both as amended (7 CFR part 983),
regulating the handling of pistachios produced 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
applicable rules of practice and procedure governing the formulation of
marketing agreements and orders (7 CFR part 900) authorize amendment of
the order through this informal rulemaking action.
The Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Order 12866.
This proposal 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, any provision of the order, or any obligation
imposed in connection with the order is not in accordance with law and
request a modification of the order or to be exempted therefrom. A
handler is afforded the opportunity for a hearing on the petition.
After the hearing, USDA would rule on the petition. The Act provides
that the district court of the United States in any district in which
the handler is an inhabitant, or has his or her principal place of
business, has jurisdiction to review USDA's ruling on the petition,
provided an action is filed not later than 20 days after the date of
the entry of the ruling.
Section 1504 of the Food, Conservation, and Energy Act of 2008
(2008 Farm Bill) (Pub. L. 110-246) made changes to section 18c(17) of
the Act, which in turn required the addition of supplemental rules of
practice to 7 CFR part 900 (73 FR 49307; August, 21, 2008). The changes
to section 18c(17) of the Act and additional supplemental rules of
practice authorize the use of informal rulemaking (5 U.S.C. 553) to
amend federal fruit, vegetable, and nut marketing agreements and orders
if certain criteria are met.
AMS has considered the nature and complexity of the proposed
amendments, the potential regulatory and economic impacts on affected
entities, and other relevant matters, and has determined that amending
the order as proposed by the committee could appropriately be
accomplished through informal rulemaking.
The proposed amendments were unanimously recommended by the
Committee following deliberations at a public meeting on July 9, 2010.
A proposed rule soliciting comments on the proposed amendments was
issued on June 5, 2011, and published in the Federal Register on June
13, 2011 (76 FR 34181). One comment was received in support of the
proposed amendments. AMS will conduct a producer referendum to
determine support for the proposed amendments. If appropriate, a final
rule will then be issued to effectuate the amendments favored by
producers in the referendum.
The Committee's proposed amendments would: (1) Provide authority to
establish aflatoxin sampling, analysis, and inspection requirements for
shipments of pistachios to export markets, including authority to
establish different regulations for different markets; (2) Provide
authority to establish quality and inspection requirements for
shipments of pistachios to export markets, including authority to
establish different regulations for different markets; (3) Change a
related section of the order concerning substandard pistachios to
conform to the proposed addition of export authority; and (4) Correct
an erroneous cross-reference to another section of the order.
[[Page 57002]]
Proposal Number 1--Aflatoxin Regulation Authority
Section 983.50 of the order provides authority to establish
aflatoxin sampling, analysis, and inspection requirements applicable to
pistachios shipped for domestic human consumption. Section 983.150 of
the order's administrative rules and regulations establishes such
requirements. These regulations prohibit the shipment of pistachios for
domestic human consumption unless they have been sampled and tested
according to specific procedures and protocols, and certified that they
do not contain traces of aflatoxin exceeding a tolerance level of 15
parts per billion (ppb). The aflatoxin regulations under the order are
intended to help assure consumers of a good quality product and to
reduce the risk of potential aflatoxin contamination. While authority
exists to establish aflatoxin regulations for domestic shipments of
pistachios, no such authority exists under the order for export
shipments. This proposed amendment would add authority to establish
aflatoxin regulations for shipments of pistachios to export markets.
When the order was promulgated in 2004, a State of California
marketing agreement was in effect that provided aflatoxin testing and
certification for export shipments to designated markets. Under that
program, handlers tested and certified export shipments according to
the methods and protocols acceptable to the export destination. Thus,
the authority to regulate export shipments was not included in the
order to avoid duplication. The State program served the needs of the
industry for several years, but was terminated in 2010. Although
handlers continue to test and certify product prior to shipping into
export markets, there is currently no program in place to establish
uniform and consistent procedures.
The export market is becoming increasingly important to the U.S.
pistachio industry to market its continually increasing production.
Pistachio acreage and production in the U.S. has been increasing
steadily since the crop became commercially significant in the 1970's.
This upward trend has continued since the order was promulgated, and is
expected to continue into the foreseeable future. According to
information reported by the Committee, in 2004 pistachio bearing
acreage in California was 93,000 acres and non-bearing acreage was
24,733 acres, for a total of 117,773 acres. In 2010, bearing acreage
was 137,102 acres and non-bearing acreage was 78,234, for a total of
215,336 acres. This represents an 83 percent increase in total acreage
in just six years. The increased plantings are a response to the
growing demand for U.S. pistachios, especially in export markets. A
review of Committee shipment data indicates a substantial increase in
shipments to export markets has occurred in recent years. Export
shipments of open inshell pistachios increased from 95,761,666 pounds
in the 2004-05 shipping season to 192,436,136 pounds in the 2009-10
season. Exports represented approximately 63 percent of total U.S.
pistachio shipments during the 2009-10 season, underscoring the
importance of the export market to the industry.
In view of the new plantings of pistachios as represented by the
non-bearing acreage data, it is readily apparent that the production of
U.S. pistachios will increase significantly in coming years. Successful
marketing of the crop in the future will be dependent not only on
sustaining current markets, but increasing the global demand to absorb
the increased production. In order to accomplish this, it is important
to reduce the risk of an aflatoxin incident involving U.S. pistachios.
In the mid-1990's, heightened consumer concern about aflatoxin
occurred in Europe which resulted in a significant drop in pistachio
consumption in those markets. Issues involving other commodities have
also occurred in recent years, with adverse impacts. The pistachio
industry thus believes it would be prudent to avail itself of an
additional tool that could be used to reduce the risk of potential
aflatoxin incidence in U.S. pistachios and the associated negative
impacts.
Although pistachios destined for export markets are currently being
tested and certified based on the requirements in those markets and
customer's needs, there is currently no program in place with
government oversight to ensure all handlers are following specific
established protocols and procedures. Adding authority to the order to
allow issuance of rules and regulations for aflatoxin testing and
certification for export shipments would provide a mechanism to
establish uniform and consistent aflatoxin sampling, analysis, and
inspection requirements for shipments of domestically produced
pistachios to export markets. A program with consistent and uniform
procedures, with Federal oversight, would help instill confidence with
foreign customers and government officials that the U.S. pistachio
industry is committed to providing a good quality product to its
markets that match or exceed the standards of the importing country.
The intent of the proposed amendments authorizing aflatoxin
regulation for exports is to provide an additional tool under the order
to aid in successful marketing of future crops.
The various export markets to which pistachios are shipped often
have different requirements, such as allowable aflatoxin tolerance
levels. Thus, the Committee also recommended adding authority to the
order to establish different aflatoxin regulations for different
markets. The proposed amendment would therefore authorize different
regulations for different markets.
If the order is amended to include authority to establish aflatoxin
regulations for shipments to export markets, specific regulations would
need to be added to the order's rules and regulations through the
informal rulemaking process. If the industry chooses to pursue such
regulations, the Committee would meet to consider and analyze the
available information in developing any recommendation to AMS. Any
recommendation of the Committee concerning potential aflatoxin
regulations would require a unanimous vote of 12 Committee members or
alternate members acting in their stead according to the voting
requirements in Sec. 983.43 of the order.
For the reasons stated above, it is proposed that Sec. 983.50,
Aflatoxin regulations, be amended to authorize the Committee, with
approval of the Secretary, to establish aflatoxin sampling, analysis,
and inspection requirements for pistachios to be shipped for human
consumption in export markets. It is also proposed that Sec. 983.50 of
the order be amended to authorize the Committee, with approval of the
Secretary, to establish different aflatoxin requirements for different
markets.
Proposal Number 2--Quality Regulation Authority
Section 983.51 of the order provides authority for the Committee,
with approval of the Secretary, to establish quality and inspection
requirements for pistachios shipped for domestic human consumption.
There are currently no such requirements in effect under the order.
When the order was promulgated in 2004, specific requirements
pertaining to quality levels were contained in the provisions of the
order. These provisions were in effect from 2004 through 2007. In
December 2007, the requirements were suspended because they were no
longer meeting the
[[Page 57003]]
industry's needs. In November 2009, the order was amended and the
suspended quality requirements were removed from the order and replaced
with broad authority for quality regulation. At that time, there was no
desire by the industry to reinstate the specific quality regulations
previously in effect or any intent to recommend any form of quality
regulation. However, the industry desired to retain authority to
implement some form of quality regulation in the future if
circumstances warrant. Informal rulemaking would be required to
reinstate quality regulations.
Applying similar logic, the Committee recommended at its July 2010
meeting to amend the broad quality authority under the order to include
the authority to establish requirements for export shipments, in
addition to domestic shipments. No quality regulations are currently
being contemplated by the industry; however, the Committee believes it
would be prudent to expand the current authority for quality
regulations to include export shipments. Adding broad authority for
quality regulations for exports would provide flexibility in the order
by increasing the industry's ability to respond to quality issues
related to exports, if they arise. Exports are becoming an increasingly
important market for the industry and currently account for the
marketing of nearly two-thirds of domestically produced pistachios.
The Committee also recommended adding authority to the order to
establish different quality requirements for different markets. Similar
to the discussion under Proposal Number 1, different markets to which
pistachios are shipped may have different quality requirements or
concerns. The proposed amendment would therefore authorize different
quality regulations for different markets. This would provide
additional flexibility to the order to address different market needs.
If the order is amended to include authority to establish quality
regulations for shipments to export markets, specific regulations would
need to be added to the order's rules and regulations through the
informal rulemaking process. If the industry chooses to pursue such
regulations, the Committee would meet to consider and analyze the
available information in developing a recommendation to AMS. Any
recommendation of the Committee concerning potential quality
regulations would require a unanimous vote of 12 Committee members or
alternate members acting in their stead according to the voting
requirements in Sec. 983.43 of the order.
For the reasons stated above, it is proposed that Sec. 983.51,
Quality regulations, be amended to authorize the Committee, with
approval of the Secretary, to establish quality and inspection
requirements for pistachios to be shipped for human consumption in
export markets. It is also proposed that Sec. 983.51 of the order be
amended to authorize the Committee, with approval of the Secretary, to
establish different quality requirements for different markets.
Proposal Number 3--Conforming Change
Section 983.57 of the order provides authority to establish
reporting and disposition procedures for pistachios that do not meet
aflatoxin or quality requirements (substandard product) to ensure they
are not shipped for domestic human consumption. Since the order
currently authorizes regulation of the domestic market only, Sec.
983.57 does not reference the utilization of reporting and disposition
procedures to ensure that substandard pistachios are not shipped to
other markets besides the domestic market. Therefore, if Proposal
Numbers 1 and 2 are adopted to include authority to regulate other
markets, a conforming change should be made to Sec. 983.57 to
reference the utilization of reporting and disposition procedures to
ensure substandard pistachios are not shipped to any market for which
regulations exist.
It is therefore proposed that Sec. 983.57, Substandard pistachios,
be amended to authorize reporting and disposition procedures for
substandard pistachios to ensure they are not shipped for human
consumption in any market for which aflatoxin and/or quality
requirements exist pursuant to Sec. 983.50 and/or Sec. 983.51.
Proposal Number 4--Correction
Section 983.53 of the order pertains to aflatoxin testing of
minimal quantities of pistachios and provides, in part, that lots of
pistachios exceeding the maximum tolerance level for aflatoxin may be
tested again after being reworked as specified in Sec. 983.50. The
reference to Sec. 983.50 is incorrect. The correct section, which
pertains to rework procedures, is Sec. 983.52. This proposed amendment
recommended by the Committee would correct the erroneous reference.
It is therefore proposed to amend Sec. 983.53 by removing the
reference to Sec. 983.50 in paragraph (a)(2) and replacing it with the
correct reference to Sec. 983.52.
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 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 850 producers and 29 handlers of pistachios
in the production area encompassing California, Arizona, and New
Mexico. The Small Business Administration (SBA) (13 CFR 121.201)
defines small agricultural producers as those having annual receipts of
less than $750,000, and small agricultural service firms are defined as
those having annual receipts of less than $7,000,000.
Based on Committee data, it is estimated that over 70 percent of
the handlers ship less than $7,000,000 worth of pistachios and would
thus be considered small business under the SBA definition. It is also
estimated that over 80 percent of the growers in the production area
produce less than $750,000 worth of pistachios and would thus be
considered small businesses under the SBA definition.
The amendments proposed by the Committee would provide authority to
establish aflatoxin sampling, analysis, and inspection requirements for
shipments of pistachios to export markets, including authority to
establish different regulations for different markets; provide
authority to establish quality and inspection requirements for
shipments of pistachios to export markets, including authority to
establish different regulations for different markets; change a related
section of the order concerning substandard pistachios to conform to
the proposed addition of export authority; and correct an erroneous
cross-reference to another section of the order.
These proposed amendments were unanimously recommended at a public
meeting of the Committee held on July 10, 2010. None of the proposed
amendments would have an immediate impact on handlers or producers if
they are approved because they would not establish any requirements or
[[Page 57004]]
regulations on handlers. However, the proposed amendments that would
add authority to the order to regulate exports could impact growers and
handlers in the industry if the authority is implemented. Therefore,
the potential costs that may be associated with future regulation of
exports is discussed below. In the event implementing regulations are
subsequently recommended by the Committee if the proposed amendments
are approved, additional analysis of the potential costs and benefits
would be conducted as part of the informal rulemaking process.
Under Sec. 983.50 of the order and Sec. 983.150 of the
administrative rules and regulations, sampling, analysis, and
inspection of pistachios for aflatoxin is required prior to shipment to
domestic markets. Specific procedures and requirements for handlers to
follow are prescribed. It is anticipated that any requirements
recommended for export shipments would be similar to those in effect
for domestic shipments. Thus, the associated costs would be similar.
The costs of complying with aflatoxin regulations can be broken
into three basic elements: sampling of the product, the market value of
the product samples that are used in testing, and the cost of the
aflatoxin analysis performed by laboratories. These costs can vary
among handlers depending on their particular operations. In recognition
of this, the Committee provided estimates of the various cost elements
for purposes of this discussion.
The cost of drawing samples from lots is estimated to range from
$50.00 to $75.00 per lot. The variation in this cost can be attributed
to factors such as the type of inspection program utilized by handlers.
For purposes of this evaluation a cost factor of $70.00 per lot is
utilized. The cost of the product used in sampling and testing varies
depending upon the market price for pistachios. For purposes of this
evaluation a value of $3.00 per pound as estimated by the Committee is
utilized. At $3.00 per pound and a 44-pound sample, the cost of product
used in sampling is $132.00 per lot. Laboratory costs for analyzing
aflatoxin content are estimated to be $100.00 per test; with two tests
per lot, the cost is $200.00 per lot.
Pistachio lots tested for aflatoxin can vary in size, but for
purposes of this evaluation, a lot size of 50,000 pounds is used as
that is a reasonable representative size for a typical handler
operation. Applying the above cost estimates to a lot size of 50,000
pounds results in the following cost estimates on a per pound basis:
1. Sampling cost: $0.0014 per pound ($70.00 per lot divided by 50,000
pounds)
2. Value of product used in sampling: $0.0026 per pound ($132.00 per
lot divided by 50,000 pounds)
3. Analytical cost of aflatoxin testing: $0.0040 per pound ($200 per
sample divided by 50,000 pounds)
This results in a total estimated per pound cost of $0.0060 ($0.0014 +
$0.0026 + $0.0040), or 0.8 cents per pound.
When compared to the market price for pistachios, the direct costs
associated with an aflatoxin program are proportionately small.
Utilizing a market price of $3.00 per pound as used in the above cost
estimates, the costs of aflatoxin sampling and testing represent 0.27
percent of the market price. Even if the market price for pistachios
was $1.00 per pound, the aflatoxin sampling and testing costs would be
well below one percent of the price.
Most handlers who shipped pistachios to export markets in the past
were signatories to a state marketing agreement that required aflatoxin
sampling and analysis. That program was terminated in 2010. Since then,
most handlers reportedly conduct aflatoxin testing and certification on
export shipments to satisfy the requirements of the various markets.
Therefore, the costs discussed above are already being borne by
handlers.
While difficult to quantify, one of the primary benefits of an
aflatoxin program is the reduced risk of a potential food incident. For
example, in the late 1990's, high aflatoxin levels were detected in
pistachios in European markets. This led to a 60 percent decrease in
pistachio imports in Europe, and it took several years for the market
to return to more normal levels. The U.S was not dominant in the
European market at that time, but in recent years, Europe has become an
increasingly significant market for U.S. pistachios. Regardless of the
location of the market, this example demonstrates the devastating
effect a food quality or food safety issue can have on the marketing of
a product.
Another benefit of an aflatoxin testing program is the resulting
reduction in the incidence of rejected shipments at their destination.
Many countries test product prior to allowing its importation. Product
that does not meet the importing country's standards can be rejected
and returned to the shipper. It is estimated that the cost of handling
or returning a rejected lot is between $12,000 and $15,000 per lot.
Product that has been tested prior to shipment based on the
requirements of its market destination is less likely to be rejected
and would not incur the associated costs.
Avoiding a disruption in the marketing of pistachios in export
markets is important in maintaining the viability of the industry.
Shipments of open inshell pistachios increased dramatically in recent
years; from 95,761,666 pounds in the 2004-05 shipping season to
192,436,136 pounds in the 2009-10 season, according to Committee data.
Exports represented approximately 63 percent of total U.S. pistachio
shipments during the 2009-10 season. According to statistics reported
by the Committee, total acreage increased from 117,773 acres in 2004 to
215,336 acres in 2010, representing an 83 percent increase. Much of
this acreage is non-bearing and will come into production in the near
future. These statistics demonstrate that domestic production of
pistachios will continue to increase in the future, and export markets
must be maintained to accommodate the increased supplies.
Expanding order authority to include establishing aflatoxin
requirements applicable to export shipments will provide an additional
tool to aid in the marketing of pistachios covered under the order. In
the event the authority is implemented, the potential costs associated
with a mandatory aflatoxin program for exports are expected to be more
than offset by the potential benefits discussed above.
An analysis of the potential costs of adding authority to the order
to establish quality regulations is not possible because no quality
regulations are currently in effect under the order, and none are being
contemplated. Quality regulations were in effect for domestic shipments
from 2004 through 2007, but were suspended because they were no longer
meeting the industry's needs. However, the order still contains broad
authority for domestic quality regulations and the industry may desire
to reinstate them if circumstances warrant. As a result of the
increasing importance of the export market as demonstrated above, the
Committee recommended adding authority to the order for quality
regulation for export shipments in the event circumstances in the
future warrant their implementation.
If such authority is added to the order, a unanimous action of the
Committee would be required to recommend the establishment of any
export quality regulations. In addition, informal rulemaking would be
required for implementation, and an analysis of the potential costs and
benefits would be conducted during that process.
[[Page 57005]]
The remaining proposed amendments are administrative in nature and
would have no economic impact on growers or handlers. One of the
proposed amendments would add conforming language to another section of
the order if other amendments are approved, and another proposed
amendment would correct an incorrect section reference in the order.
Alternatives to these proposals include making no changes at this
time. However, the Committee believes it would be beneficial to have
the means necessary to apply regulations to the export markets if
circumstances warrant.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
chapter 35), the order's information collection requirements have been
previously approved by the Office of Management and Budget (OMB) and
assigned OMB No. 0581-0215, ``Pistachios Grown in California''. No
changes in those requirements as a result of this proceeding are
anticipated. Should any changes become necessary, they would be
submitted to OMB for approval.
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.
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.
The Committee's meeting, at which these proposals were discussed,
was widely publicized throughout the pistachio industry. All interested
persons were invited to attend the meeting and encouraged to
participate in Committee deliberations on all issues. Like all
Committee meetings, the meeting was public, and all entities, both
large and small, were encouraged to express their views on these
proposals.
A proposed rule concerning this action was published in the Federal
Register on June 13, 2011 (76 FR 34181). Copies of the rule were mailed
or sent via facsimile to all Committee members and pistachio handlers.
Finally, the rule was made available through the Internet by USDA and
the Office of the Federal Register. A 30-day comment period ending July
13, 2011, was provided to allow interested persons to respond to the
proposal.
One comment was received in response to the proposal. The comment,
submitted on behalf of a pistachio trade association, was supportive of
the proposed amendments. Accordingly, no changes have been made to the
proposed amendments, 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/MarketingOrdersSmallBusinessGuide. Any questions
about the compliance guide should be sent to Laurel May at the
previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
Findings and Conclusions
The findings and conclusions and general findings and
determinations included in the proposed rule set forth in the June 13,
2011, issue of the Federal Register are hereby approved and adopted.
Marketing Order
Annexed hereto and made a part hereof is the document entitled
``Order Amending the Order Regulating the Handling of Pistachios Grown
in California, Arizona, and New Mexico.'' This document has been
decided upon as the detailed and appropriate means of effectuating the
foregoing findings and conclusions. It is hereby ordered, That this
entire rule be published in the Federal Register.
Referendum Order
It is hereby directed that a referendum be conducted in accordance
with the procedure for the conduct of referenda (7 CFR 900.400-900.407)
to determine whether the annexed order amending the order regulating
the handling of pistachios grown in California, Arizona, and New Mexico
is approved by growers, as defined under the terms of the order, who
during the representative period were engaged in the production of
pistachios in the production area.
The representative period for the conduct of such referendum is
hereby determined to be September 1, 2010 through August 31, 2011.
The agents of the Secretary to conduct such referendum are
designated to be Rose M. Aguayo and Andrea Ricci, California Marketing
Field Office, Marketing Order Administration Branch, Fruit and
Vegetable Programs, AMS, USDA; Telephone: (559) 487-5901, or E-mail:
Rose M. Aguayo@ams.usda.gov or Andrea.Ricci@ams.usda.gov, respectively.
List of Subjects in 7 CFR Part 983
Marketing agreements, Pistachios, Reporting and recordkeeping
requirements.
Dated: September 12, 2011.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
Order Amending the Order Regulating the Handling of Pistachios Grown in
California, Arizona, and New Mexico \1\
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\1\ This order shall not become effective unless and until the
requirements of Sec. 900.14 of the rules of practice and procedure
governing proceedings to formulate marketing agreements and
marketing orders have been met.
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Findings and Determinations
The findings hereinafter set forth are supplementary to the
findings and determinations which were previously made in connection
with the issuance of the marketing agreement and order; and all said
previous findings and determinations are hereby ratified and affirmed,
except insofar as such findings and determinations may be in conflict
with the findings and determinations set forth herein.
1. The marketing agreement and order, as amended, and as hereby
proposed to be further amended, and all of the terms and conditions
thereof, would tend to effectuate the declared policy of the Act;
2. The marketing agreement and order, as amended, and as hereby
proposed to be further amended, regulate the handling of pistachios
grown in California, Arizona, and New Mexico in the same manner as, and
are applicable only to, persons in the respective classes of commercial
and industrial activity specified in the marketing agreement and order;
3. The marketing agreement and order, as amended, and as hereby
proposed to be further amended, are limited in application to the
smallest regional production area which is practicable, consistent with
carrying out the declared policy of the Act, and the issuance of
several orders applicable to subdivisions of the production area would
not effectively carry out the declared policy of the Act;
4. The marketing agreement and order, as amended, and as hereby
proposed to be further amended, prescribe, insofar as practicable, such
different terms applicable to different parts of the production area as
are necessary to give due recognition to the differences in the
production and
[[Page 57006]]
marketing of pistachios produced or packed in the production area; and
5. All handling of pistachios produced in the production area as
defined in the marketing agreement and order is in the current of
interstate or foreign commerce or directly burdens, obstructs, or
affects such commerce.
Order Relative to Handling
It is therefore ordered, That on and after the effective date
hereof, all handling of pistachios grown in California, Arizona, and
New Mexico shall be in conformity to, and in compliance with, the terms
and conditions of the said order as hereby proposed to be amended as
follows:
The provisions of the proposed marketing order amending the order
contained in the proposed rule issued by the Administrator on June 5,
2011, and published in the Federal Register (76 FR 34181) on June 13,
2011, will be and are the terms and provisions of this order amending
the order and are set forth in full herein.
PART 983--PISTACHIOS GROWN IN CALIFORNIA, ARIZONA, AND NEW MEXICO
1. The authority citation for 7 CFR part 983 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Revise Sec. 983.50 to read as follows:
Sec. 983.50 Aflatoxin regulations.
The committee shall establish, with the approval of the Secretary,
such aflatoxin sampling, analysis, and inspection requirements
applicable to pistachios to be shipped for domestic human consumption
as will contribute to orderly marketing or be in the public interest.
The committee may also establish, with the approval of the Secretary,
such requirements for pistachios to be shipped for human consumption in
export markets. No handler shall ship, for human consumption in
domestic, or if applicable, export markets, pistachios that exceed an
aflatoxin level established by the committee and approved by the
Secretary. All shipments to markets for which requirements have been
established must be covered by an aflatoxin inspection certificate. The
committee may, with the approval of the Secretary, establish different
sampling, analysis, and inspection requirements, and different
aflatoxin level requirements, for different markets.
3. Revise Sec. 983.51 to read as follows:
Sec. 983.51 Quality regulations.
For any production year, the committee may establish, with the
approval of the Secretary, such quality and inspection requirements
applicable to pistachios shipped for human consumption in domestic or
export markets as will contribute to orderly marketing or be in the
public interest. In such production year, no handler shall ship
pistachios for human consumption in domestic, or if applicable, export
markets unless they meet the applicable requirements as evidenced by
certification acceptable to the committee. The committee may, with the
approval of the Secretary, establish different quality and inspection
requirements for different markets.
Sec. 983.53 [Amended]
4. Amend Sec. 983.53 by removing the reference to ``Sec. 983.50''
and adding in its place ``Sec. 983.52'' in paragraph (a)(2).
5. Revise Sec. 983.57 to read as follows:
Sec. 983.57 Substandard pistachios.
The committee shall, with the approval of the Secretary, establish
such reporting and disposition procedures as it deems necessary to
ensure that pistachios which do not meet aflatoxin and quality
requirements are not shipped for human consumption in those markets for
which such requirements exist pursuant to Sec. 983.50 and Sec.
983.51.
[FR Doc. 2011-23629 Filed 9-14-11; 8:45 am]
BILLING CODE 3410-02-P