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/ Wednesday, June 26, 2002
[Federal Register: June 26, 2002 (Volume 67, Number 123)]
[Proposed Rules]
[Page 43045-43056]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jn02-16]
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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[[Page 43045]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 983
[Docket No. AO-F&V-983-2; FV02-983-01]
Pistachios Grown in California; Hearing on Proposed Marketing
Agreement and Order No. 983
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Notice of public hearing on proposed marketing agreement and
order.
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SUMMARY: Notice is hereby given of a public hearing to consider a
proposed marketing agreement and order under the Agricultural Marketing
Agreement Act of 1937 to cover pistachios grown in California. The
proposal was submitted on behalf of the California pistachio industry
by the Proponents Committee for a Federal Marketing Order for
Pistachios. The proposed order would set standards for the quality of
pistachios produced and handled in California by establishing a maximum
aflatoxin tolerance level, maximum limits for defects, a minimum size
requirement, and mandatory inspection and certification. The program
would be financed by assessments on pistachio handlers and would be
administered by a committee of growers and handlers nominated by the
industry and appointed by the Department of Agriculture (USDA).
DATES: The hearing will be held in Fresno, California, from July 23 to
July 25, 2002. The hearing session on Tuesday, July 23, will begin at
8:00 a.m. and end at 5:00 p.m. The hearing session on Wednesday, July
25, will begin at 8:00 a.m. and end at 4:00 p.m. If an additional
hearing session is necessary, the hearing will continue at 8:00 a.m. on
Thursday, July 25, 2002.
ADDRESSES: The hearing location is: The Fresno Metropolitan Flood
Control District, Board of Directors' Chambers, 5469 East Olive Street,
Fresno, California, 93727.
FOR FURTHER INFORMATION CONTACT: Melissa Schmaedick, Marketing Order
Administration Branch, Fruit and Vegetable Programs, Agricultural
Marketing Service (AMS), USDA, Post Office Box 1035, Moab, UT 84532,
telephone: (435) 259-7988, fax: (435) 259-4945; or Anne M. Dec,
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. Small
businesses may request information on this proceeding 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.
SUPPLEMENTARY INFORMATION: This administrative action is instituted
pursuant to the Agricultural Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.''
This action is governed by the provisions of sections 556 and 557 of
title 5 of the United States Code and, therefore, is excluded from the
requirements of Executive Order 12866.
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) seeks to
ensure that within the statutory authority of a program, the regulatory
and informational requirements are tailored to the size and nature of
small businesses. Interested persons are invited to present evidence at
the hearing on the possible regulatory and informational impacts of the
proposal on small businesses.
The marketing agreement and order proposed herein have been
reviewed under Executive Order 12988, Civil Justice Reform. They are
not intended to have retroactive effect. If issued, the proposed
amendments would 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 the Secretary 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. 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 the
Secretary's ruling on the petition, provided an action is filed not
later than 20 days after the date of the entry of the ruling.
The hearing is called pursuant to the provisions of the Act and the
applicable rules of practice and procedure governing the formulation of
marketing agreements and orders (7 CFR part 900).
This proposal is the result of nearly three years of efforts
undertaken by the Proponents Committee (committee), a committee
representing producers and handlers of pistachios in California. The
committee was established in 2000 as a result of renewed industry
interest in a Federal marketing order. An earlier attempt to establish
a Federal marketing order in 1996 on behalf of the pistachio industry
by the California Pistachio Commission (Commission) and the Western
Pistachio Association (Association) was terminated in 2000 due to lack
of industry support for certain proposed provisions. The current
proposal is different from that which was previously proposed since
many controversial issues have either been removed or resolved through
more exacting specification in the proposed regulations. The Proponents
Committee is independent of the Commission and the Association.
The proponent group contends that the proposed marketing order
program would ensure consistency in the quality of California
pistachios, thereby increasing consumer demand and confidence in the
product, and enhancing producer returns.
Presently, industry quality control practices are limited to
voluntary testing for aflatoxin and other quality requirements under a
California Pistachio Marketing Agreement (agreement) entered into by a
number of pistachio handlers under authority of the California
Department of Food and Agriculture. The agreement is limited to issues
relating to the blending of artificially opened pistachios with those
naturally opened, and the bleaching of pistachios. Aflatoxin testing
and
[[Page 43046]]
sampling guidelines are only for exports to specified countries.
The proposal for an order has been widely discussed within the
California pistachio industry for at least 10 years, including
discussions related to the 1996 proposal. None of the recommendations
or proposals discussed herein have received approval by the Secretary
of Agriculture.
Testimony is invited at the hearing on the proposed marketing
agreement and order (hereinafter referred to as the order) and all of
its provisions, as well as any appropriate modifications or
alternatives.
The public hearing is held for the purpose of:
(a) Receiving evidence about the economic and marketing conditions
that relate to the proposed order and to appropriate modifications
thereof;
(b) Determining whether the handling of pistachios produced in the
production area is in the current of interstate commerce or directly
burdens, obstructs, or affects interstate commerce and foreign
commerce;
(c) Determining whether there is a need for a marketing agreement
and order for pistachios;
(d) Determining the economic impact of the proposed order on the
industry in the proposed production area and on the public affected by
such program; and
(e) Determining whether the proposed order or any appropriate
modification thereof would tend to effectuate the declared policy of
the Act.
All persons wishing to submit written material as evidence at the
hearing should be prepared to submit four copies of such material at
the hearing and should have prepared testimony available for
presentation at the hearing.
From the time the notice of hearing is issued and until the
issuance of a final decision in this proceeding, USDA employees
involved in the decisional process are prohibited from discussing the
merits of the hearing issues on an ex-parte basis with any person
having an interest in the proceeding. The prohibition applies to
employees in the following organizational units: Office of the
Secretary of Agriculture; Office of the Administrator, AMS; Office of
the General Counsel; and the Fruit and Vegetable Programs, AMS.
Procedural matters are not subject to the above prohibition and may
be discussed at any time.
Provisions of the proposed marketing agreement and order follow.
Those sections identified with an asterisk (*) apply only to the
proposed marketing agreement.
List of Subjects in Proposed 7 CFR Part 983
Marketing agreements, Pistachios, Reporting and recordkeeping
requirements.
The marketing agreement and order proposed by the Proponents
Committee for a Federal Marketing Order for Pistachios Grown in
California would add a new part 983 to read as follows:
PART 983--PISTACHIOS GROWN IN CALIFORNIA
Subpart--Order Regulating Handling
Definitions
Sec.
983.1 Accredited laboratory.
983.2 Act.
983.3 Affiliation.
983.4 Aflatoxin.
983.5 Aflatoxin inspection certificate.
983.6 Assessed weight.
983.7 Certified pistachios.
983.8 Committee.
983.9 Confidential data or information.
983.10 Department or USDA.
983.11 Districts.
983.12 Domestic shipments.
983.13 Edible pistachios.
983.14 Handle.
983.15 Handler.
983.16 Inshell pistachios.
983.17 Inspector.
983.18 Lot.
983.19 Minimum quality requirements.
983.20 Minimum quality certificate.
983.21 Part and subpart.
983.22 Person.
983.23 Pistachios.
983.24 Processing.
983.25 Producer.
983.26 Production area.
983.27 Production year.
983.28 Proprietary capacity.
983.29 Secretary.
983.30 Shelled pistachios.
983.31 Substandard pistachios.
Administrative Committee
983.32 Establishment and membership.
983.33 Initial members and nomination of successor members.
983.34 Procedure.
983.35 Powers.
983.36 Duties.
Marketing Policy
983.37 Marketing policy.
Regulation
983.38 Aflatoxin levels.
983.39 Minimum quality levels.
983.40 Failed lots/rework procedure.
983.41 Testing of minimal quantities.
983.42 Commingling.
983.43 Reinspection.
983.44 Inspection, certification and identification.
983.45 Substandard pistachios.
983.46 Modification or suspension of regulations.
Reports, Books and Records
983.47 Reports.
983.48 Confidential information.
983.49 Records.
983.50 Verification of reports.
983.51 Random verification audits.
Expenses and Assessments
983.52 Expenses.
983.53 Assessments.
983.54 Contributions.
983.55 Delinquent assessments.
983.56 Accounting.
Miscellaneous Provisions
983.57 Compliance.
983.58 Rights of the Secretary.
983.59 Personal liability.
983.60 Separability.
983.61 Derogation.
983.62 Duration of immunities.
983.63 Agents.
983.64 Effective time.
983.65 Suspension or termination.
983.66 Referendum.
983.67 Procedure upon termination.
983.68 Effect of termination or amendment.
983.69 Non-commercial exemption.
983.70 Relationship with the California Pistachio Commission.
*983.90 Counterparts.
*983.91 Additional parties.
*983.92 Order with marketing agreement.
Authority: 7 U.S.C. 601-674
Definitions
Sec. 983.1 Accredited laboratory.
An accredited laboratory is a laboratory that has been approved or
accredited by the U.S. Department of Agriculture for testing aflatoxin.
Sec. 983.2 Act.
Act means Public Act No. 10, 73rd Congress (May 12, 1933), as
amended and as re-enacted and amended by the Agricultural Marketing
Order Act of 1937, as amended (48 Stat. 31, as amended; 7 U.S.C. 601 et
seq.).
Sec. 983.3 Affiliation.
Affiliation. This term normally appears as ``affiliate of'', or
``affiliated with'', and means a person such as a producer or handler
who is: a producer or handler that directly, or indirectly through one
or more intermediaries, owns or controls, or is controlled by, or is
under common control with the producer or handler specified; or a
producer or handler that directly, or indirectly through one or more
intermediaries, is connected in a proprietary capacity, or shares the
ownership or control of the specified producer or handler with one or
more other producers or handlers. As used in this part, the term
``control'' (including the terms ``controlling'', ``controlled by'',
and ``under the common control with'') means the possession, direct or
indirect, of the power to direct or cause
[[Page 43047]]
the direction of the management and policies of a handler or a
producer, whether through voting securities, membership in a
cooperative, by contract or otherwise.
Sec. 983.4 Aflatoxin.
Aflatoxins are a group of mycotoxins produced by the molds
Aspergillus flavus and Aspergillus parasiticus. Aflatoxins are
naturally occurring compounds produced by molds, which can be spread in
improperly processed and stored nuts, dried fruits and grains.
Sec. 983.5 Aflatoxin inspection certificate.
Aflatoxin inspection certificate is a certificate issued by an
accredited laboratory or by a USDA laboratory.
Sec. 983.6 Assessed weight.
Assessed weight means pounds of edible inshell pistachios received
for processing by a handler within each production year with the weight
computed at 5 percent moisture: Provided, That for loose kernels, the
actual weight shall be multiplied by two to obtain an inshell weight;
or based on such other elements as may be recommended by the committee
and approved by the Secretary.
Sec. 983.7 Certified pistachios.
Certified pistachios are those for which aflatoxin inspection and
minimum quality certificates have been issued.
Sec. 983.8 Committee.
Committee means the administrative committee for pistachios
established pursuant to Sec. 983.32.
Sec. 983.9 Confidential data or information.
Confidential data or information submitted to the committee
consists of data or information constituting a trade secret or
disclosure of the trade position, financial condition, or business
operations of a particular entity or its customers.
Sec. 983.10 Department or USDA.
Department or USDA means the United States Department of
Agriculture.
Sec. 983.11 Districts.
(a) Districts shall consist of the following:
(1) District 1 consists of Tulare, Kern, San Bernardino, San Luis
Obispo, Santa Barbara, Ventura, Los Angeles, Orange, Riverside, San
Diego, and Imperial Counties of California.
(2) District 2 consists of Kings, Fresno, Madera, and Merced
Counties of California.
(3) District 3 consists of all counties in California where
pistachios are produced that are not included in Districts 1 and 2.
(b) With the approval of the Secretary, the boundaries of any
district may be changed by a two-thirds vote of the committee, to
ensure proper representation. The boundaries need not coincide with
county lines. In addition, the boundaries in the production area may be
adjusted to conform to changes to the boundaries of the districts
established for those of the California Pistachio Commission upon the
recommendation of the committee and approval of the Secretary.
Sec. 983.12 Domestic shipments.
Domestic shipments means shipments to the fifty states of the
United States or to territories of the United States.
Sec. 983.13 Edible pistachios.
Edible pistachios are those which do not exceed the level of
defects under Sec. 983.38 and Sec. 983.39.
Sec. 983.14 Handle.
Handle means to engage in:
(a) Receiving pistachios;
(b) Hulling and drying pistachios; and/or
(c) Further preparing pistachios by sorting, sizing, shelling,
roasting, cleaning, salting, and/or packaging for marketing in or
transporting to any and all markets in the current of interstate or
foreign commerce: Provided, however, That transportation within the
production area between handlers and from the orchard to the processing
facility is not handling.
Sec. 983.15 Handler.
Handler means any person who handles pistachios.
Sec. 983.16 Inshell pistachios.
Inshell pistachios means pistachios that have a shell that has not
been removed.
Sec. 983.17 Inspector.
Inspector means any inspector authorized by the USDA to inspect
pistachios.
Sec. 983.18 Lot.
Lot means any quantity of pistachios that is submitted for testing
purposes under this part.
Sec. 983.19 Minimum quality requirements.
Minimum quality requirements are permissible maximum defects and
minimum size levels for inshell pistachios and kernels specified in
Sec. 983.39.
Sec. 983.20 Minimum quality certificate.
Minimum quality certificate is a certificate issued by the USDA or
Federal/State Inspection Service.
Sec. 983.21 Part and subpart.
Part means the order regulating the handling of pistachios grown in
the State of California, and all rules, regulations and supplementary
orders issued thereunder. The aforesaid order regulating the handling
of pistachios grown in California shall be a subpart of such part.
Sec. 983.22 Person.
Person means an individual, partnership, limited liability
corporation, corporation, trust, association, or any other business
unit.
Sec. 983.23 Pistachios.
Pistachios means the nuts of the pistachio tree of the genus
Pistacia vera grown in the production area whether inshell or shelled.
Sec. 983.24 Processing.
Processing means hulling and drying pistachios in preparation for
market.
Sec. 983.25 Producer.
Producer means any person engaged within the production area in a
proprietary capacity in the production of pistachios for sale.
Sec. 983.26 Production area.
Production area means the State of California.
Sec. 983.27 Production year.
Production year is synonymous with ``fiscal period'' and means the
period beginning on September 1 and ending on August 31 of each year or
such other period as may be recommended by the committee and approved
by the Secretary.
Sec. 983.28 Proprietary capacity.
Proprietary capacity means the capacity or interest of a producer
or handler that, either directly or through one or more intermediaries,
is a property owner together with all the appurtenant rights of an
owner including the right to vote the interest in that capacity as an
individual, a shareholder, member of a cooperative, partner, trustee or
in any other capacity with respect to any other business unit.
Sec. 983.29 Secretary.
Secretary means the Secretary of Agriculture of the United States
or any officer or employee of the United States Department of
Agriculture who is, or who may hereafter be, authorized to act in his/
her stead.
[[Page 43048]]
Sec. 983.30 Shelled pistachios.
Shelled pistachios means pistachio kernels, or portions of kernels,
after the pistachio shells have been removed.
Sec. 983.31 Substandard pistachios.
Substandard pistachios means pistachios, inshell or shelled, which
do not comply with the maximum aflatoxin and/or minimum quality
regulations of this part.
Administrative Committee
Sec. 983.32 Establishment and membership.
There is hereby established an administrative committee for
pistachios to administer the terms and provisions of this part. This
committee, consisting of eleven (11) member positions, each of whom
shall have an alternate, shall be allocated as follows:
(a) Handlers. Two of the members shall represent handlers, as
follows:
(1) One handler member nominated by one vote for each handler; and
(2) One handler member nominated by voting based on each handler
casting one vote for each ton of the assessed weight of pistachios
processed by such handler during the two production years preceding the
production year in which the nominations are made.
(b) Producers. Eight members shall represent producers. Producers
within the respective districts shall nominate four producers from
District 1, three producers from District 2 and one producer from
District 3.
(c) Public member. One member shall be a public member who is
neither a producer nor a handler and shall have all the powers, rights
and privileges of any other member of the committee. The public member
and alternate public member shall be nominated by the committee and
selected by the Secretary.
Sec. 983.33 Initial members and nomination of successor members.
Nomination of committee members and alternates shall follow the
procedure set forth in this section or as may be changed as recommended
by the committee and approved by the Secretary.
(a) Initial members. Nominations for initial members shall be
conducted by the Secretary by either holding meetings of handlers and
producers, or by mail.
(b) Successor producer members. Subsequent to the first nomination
of committee members under this part, persons to be nominated to serve
on the committee as producer members shall be selected pursuant to
nomination procedures that shall be established by the committee with
the approval of the Secretary: Provided, That any qualified individuals
who seek nomination shall submit to the committee an intent to seek
office in one designated district on such form and with such
information as the committee shall designate; ballots, accompanied by
the names of all such candidates, with spaces to indicate voters'
choices and spaces for write-in candidates, together with voting
instructions, shall be mailed to all producers who are on record with
the committee within the respective districts; the person receiving the
highest number of votes shall be the member nominee for that district,
and the person receiving the second highest number of votes shall be
the alternate member nominee. In case of a tie vote, the nominee shall
be selected by a drawing.
(c) Handlers. Only handlers, including duly authorized officers or
employees of handlers, may participate in the nomination of the two
handler member nominees and their alternates. Nomination of the two
handler members and their alternates shall be as follows:
(1) For one handler member nomination, each handler entity shall be
entitled to one vote;
(2) For the second handler member nomination, each handler entity
shall be entitled to cast one vote respectively for each ton of
assessed weight of pistachios processed by that handler during the two
production years preceding the production year in which the nominations
are made. For the purposes of nominating handler members and alternates
by volume, the assessed weight of pistachios shall be credited to the
handler responsible under the order for the payment of assessments of
those pistachios. The committee with the approval of the Secretary, may
revise the handler representation on the committee if the committee
ceases to be representative of the industry.
(d) Producers. Only producers, including duly authorized officers
or employees of producers, may participate in the nomination of
nominees for producer members and their alternates. Each producer shall
be entitled to cast only one vote, whether directly or through an
authorized officer or employee, for each position to be filled in the
district in which the producer produces pistachios. If a producer is
engaged in producing pistachios in more than one district, such
producer shall select the district in which to participate in the
nomination. If a person is both a producer and a handler of pistachios,
such person may participate in both producer and handler nominations,
provided, however, that a single member may not hold concurrent seats
as both a producer and handler.
(e) Member's affiliation. Not more than two members and not more
than two alternate members shall be persons employed by or affiliated
with producers or handlers that are affiliated with the same handler
and/or producer. Additionally, only one member and one alternate in any
one district representing producers and only one member and one
alternate representing handlers shall be employed by, or affiliated
with the same handler and/or producer. No handler, and all of its
affiliated handlers, can be represented by more than one handler
member.
(f) Cooperative affiliation. In the case of a producer cooperative,
a producer shall not be deemed to be connected in a proprietary
capacity with the cooperative notwithstanding any outstanding retains,
contributions or financial indebtedness owed by the cooperative to a
producer if the producer has not marketed pistachios through the
cooperative during the current and one preceding production year. A
cooperative that has as its members one or more other cooperatives that
are handlers shall not be considered as a handler for the purpose of
nominating or voting under this part.
(g) Alternate members. Each member of the committee shall have an
alternate member to be nominated in the same manner as the member. Any
alternate serving in the same district as a member where both are
employed by, or connected in a proprietary capacity with the same
corporation, firm, partnership, association, or business organization,
shall serve as the alternate to that member. An alternate member, in
the absence of the member for whom that alternate is selected shall
serve in place of that member on the committee, and shall have and be
able to exercise all the rights, privileges, and powers of the member
when serving on the committee. In the event of death, removal,
resignation, or the disqualification of a member, the alternate shall
act as a member on the committee until a successor member is selected
and has been qualified.
(h) Selection by Secretary. Nominations under paragraph (g) of this
section received by the committee for all handler and producer members
and alternate member positions shall be certified and sent to the
Secretary at least 60 days prior to the beginning of each two-year term
of office, together with all necessary data and other information
deemed by the committee to be pertinent or requested by the Secretary.
From those nominations, the Secretary shall select the ten members
[[Page 43049]]
of the committee and an alternate for each member.
(i) Acceptance. Each person to be selected by the Secretary as a
member or as an alternate member of the committee shall, prior to such
selection, qualify by advising the Secretary that if selected, such
person agrees to serve in the position for which that nomination has
been made.
(j) Failure to nominate. If nominations are not made within the
time and manner specified in this part, the Secretary may, without
regard to nominations, select the committee members and alternates
qualified to serve on the basis of the representation provided for in
Sec. 983.32.
(k) Term of office. Selected producer members and producer
alternate members of the committee shall serve for terms of two years:
Provided that four of the initially selected producer members and one
handler member and their alternates shall, by a drawing, be seated for
terms of one year so that approximately half of the memberships' terms
expire each year. Each member and alternate member shall continue to
serve until a successor is selected and has qualified. The term of
office shall begin on July 1st of each year. Committee members and
alternates may serve up to four consecutive, two-year terms of office.
In no event shall any member or alternate serve more than eight
consecutive years on the Commission. For purposes of determining when a
member or alternate has served four consecutive terms, the accrual of
terms shall begin following any period of at least twelve consecutive
months out of office.
(l) Qualifications. (1) Each producer member and alternate shall
be, at the time of selection and during the term of office, a producer
or an officer, or employee, of a producer in the district for which
nominated.
(2) Each handler member and alternate shall be, at the time of
selection and during the term of office, a handler or an officer,
employee, or agent of a handler.
(3) Any member or alternate member who at the time of selection was
employed by or an agent of a person or affiliated with the person who
is nominated, that member shall, upon termination of that relationship,
become disqualified to serve further as a member and that position
shall be deemed vacant.
(4) No person nominated to serve as a public member or alternate
public member shall have a financial interest in any pistachio growing
or handling operation.
(5) The committee, with the approval of the Secretary, may issue
rules and regulations covering the qualifications for members or
alternate members.
(m) Vacancy. Any vacancy on the committee occurring by the failure
of any person selected to the committee as a member or alternate member
due to a change in status making the member ineligible to serve, or due
to death, removal, or resignation, shall be filled, by a majority vote
of the committee for the unexpired portion of the term. However, that
person shall fulfill all the qualifications set forth in this part as
required for the member whose office that person is to fill. The
qualifications of any person to fill a vacancy on the committee shall
be certified in writing to the Secretary. The Secretary shall notify
the committee if the Secretary determines that any such person is not
qualified.
Sec. 983.34 Procedure.
(a) Quorum. A quorum of the committee shall be any seven voting
committee members. The vote of a majority of members present at a
meeting at which there is quorum shall constitute the act of the
committee: Provided, That actions of the committee with respect to the
following issues shall require at least seven concurring votes of the
voting members regarding any recommendation to the Secretary for
adoption or change in:
(1) Minimum quality levels;
(2) Aflatoxin levels;
(3) Inspection programs;
(4) The establishment of the committee.
(b) Voting. Members of the committee may participate in a meeting
by attendance in person or through the use of a conference telephone or
similar communication equipment, as long as all members participating
in such a meeting can communicate with one another. An action required
or permitted to be taken by the committee may be taken without a
meeting, if all members of the committee shall consent in writing to
that action.
(c) Compensation. The members of the committee and their alternates
shall serve without compensation, but members and alternates acting as
members shall be allowed their necessary expenses: Provided, That the
committee may request the attendance of one or more alternates not
acting as members at any meeting of the committee, and such alternates
may be allowed their necessary expenses; and, Provided further, That
the public member and the alternate for the public member may be paid
reasonable compensation in addition to necessary expenses.
Sec. 983.35 Powers.
The committee shall have the following powers:
(a) To administer the provisions of this part in accordance with
its terms;
(b) To make and adopt bylaws, rules and regulations to effectuate
the terms and provisions of this part with the approval of the
Secretary;
(c) To receive, investigate, and report to the Secretary complaints
of violations of this part; and
(d) To recommend to the Secretary amendments to this part.
Sec. 983.36 Duties.
The committee shall have, among others, the following duties:
(a) To adopt bylaws and rules for the conduct of its meetings and
the selection of such officers from among its membership, including a
chairperson and vice-chairperson, as may be necessary, and define the
duties of such officers; and adopt such other bylaws, regulations and
rules as may be necessary to accomplish the purposes of the Act and the
efficient administration of this part;
(b) To employ or contract with such persons or agents as the
committee deems necessary and to determine the duties and compensation
of such persons or agents;
(c) To select such subcommittees as may be necessary;
(d) To submit to the Secretary a budget for each fiscal period,
prior to the beginning of such period, including a report explaining
the items appearing therein and a recommendation as to the rates of
assessments for such period;
(e) To keep minutes, books, and records which will reflect all of
the acts and transactions of the committee and which shall be subject
to examination by the Secretary;
(f) To prepare periodic statements of the financial operations of
the committee and to make copies of each statement available to
producers and handlers for examination at the office of the committee;
(g) To cause its financial statements to be audited by a certified
public accountant at least once each fiscal year and at such times as
the Secretary may request. Such audit shall include an examination of
the receipt of assessments and the disbursement of all funds. The
committee shall provide the Secretary with a copy of all audits and
shall make copies of such audits, after the removal of any confidential
individual or handler information that may be contained in them,
available for
[[Page 43050]]
examination at the offices of the committee;
(h) To act as intermediary between the Secretary and any producer
or handler with respect to the operations of this part;
(i) To investigate and assemble data on the growing, handling,
shipping and marketing conditions with respect to pistachios;
(j) To apprize the Secretary of all committee meetings in a timely
manner;
(k) To submit to the Secretary such available information as the
Secretary may request;
(l) To investigate compliance with the provisions of this part;
(m) To provide, through communication to producers and handlers,
information regarding the activities of the committee and to respond to
industry inquiries about committee activities;
(n) To oversee the collection of assessments levied under this
part;
(o) To borrow such funds, subject to the approval of the Secretary
and not to exceed the expected expenses of one fiscal year, as are
necessary for administering its responsibilities and obligations under
this part.
Marketing Policy
Sec. 983.37 Marketing policy.
Prior to August 1st each year, the committee shall prepare and
submit to the Secretary a report setting forth its recommended
marketing policy covering quality regulations for the pending crop. In
the event it becomes advisable to modify such policy, because of
changed crop conditions, the committee shall formulate a new policy and
shall submit a report thereon to the Secretary. In developing the
marketing policy, the committee shall give consideration to the
production, harvesting, processing and storage conditions of that crop.
The committee may also give consideration to current prices being
received and the probable general level of prices to be received for
pistachios by producers and handlers. Notice of the committee's
marketing policy, and of any modifications thereof, shall be given
promptly by reasonable publicity, to producers and handlers.
Regulations
Sec. 983.38 Aflatoxin levels.
(a) Maximum level. No handler shall ship for domestic human
consumption, pistachios that exceed an aflatoxin level of more than
15.0 ppb. 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 Failed lots/rework
procedure of this part.
(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 and divided between those pistachios for aflatoxin
testing and those for minimum quality testing (``lot samples'') in
sufficient weight to comply with Table 1, Table 2 and Table 4 of this
part.
(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 the following Tables 1 and 2
(``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 samplings required are shown in
the following Table 1. The gross weight of the kernel lot sample for
aflatoxin testing and the number of incremental samples required is
shown in the following Table 2.
Table 1.--Inshell Pistachio Lot Sampling Increments for Aflatoxin Certification
----------------------------------------------------------------------------------------------------------------
Number of
incremental Total weight of Weight of test
Lot weight (lbs.) samples for the lot sample sample
lot sample (kilograms) (kilograms)
----------------------------------------------------------------------------------------------------------------
220 or less............................................... 10 3.0 1.0
221-440................................................... 15 4.5 1.5
441-1100.................................................. 20 6.0 2.0
1101-2200................................................. 30 9.0 3.0
2201-4400................................................. 40 12.0 4.0
4401-11,000............................................... 60 18.0 6.0
11,001-22,000............................................. 80 24.0 8.0
22,001-150,000............................................ 100 30.0 10.0
----------------------------------------------------------------------------------------------------------------
Table 2.--Shelled Pistachio Kernel Lot Sampling Increments for Aflatoxin Certification
----------------------------------------------------------------------------------------------------------------
Number of
incremental Total weight of Weight of test
Lot weight (lbs.) samples for the lot sample sample
lot sample (kilograms) (kilograms)
----------------------------------------------------------------------------------------------------------------
220 or less............................................... 10 1.5 .5
221-440................................................... 15 2.3 .75
441-1100.................................................. 20 3.0 1.0
1101-2200................................................. 30 4.5 1.5
2201-4400................................................. 40 6.0 2.0
4401-11,000............................................... 60 9.0 3.0
11,001-22,000............................................. 80 12.0 4.0
[[Page 43051]]
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
analyzed and prepared as described in the applicable provisions of the
official methods of analysis of the Association of Analytical
Communities (AOAC). A portion of the ground composite shall be analyzed
chemically for total aflatoxin using High Pressure Liquid Chromatograph
(HPLC), Vicam method (Aflatest) or other methods as described in the
applicable provisions of Official Methods of Analysis of the AOAC. The
aflatoxin level shall be calculated on a kernel weight basis. For
inshell tests where shell and kernels are ground together, it shall be
assumed the shell accounts for 50% of the lot weight so aflatoxin
results shall be doubled.
(4) Certification of lots ``negative'' as to aflatoxin. Lots shall
be certified as ``negative'' on the aflatoxin inspection certificate,
if Test Sample 1 has an aflatoxin level at or below 5.0 ppb.
If the aflatoxin level of Test Sample 1 is above 5.0 ppb, the
accredited laboratory shall analyze Test Sample 2 and results
of Test Samples 1 and 2 shall be averaged. A lot will be certified as
negative as to aflatoxin and the laboratory shall issue an aflatoxin
inspection certificate if the averaged results are at or below 10.0
ppb. If the averaged results are above 10.0 ppb, Test Sample 3
shall be analyzed and all three test sample results shall be averaged.
If all three results average 15.0 ppb or less the lot will be certified
as negative as to aflatoxin and the laboratory shall issue an aflatoxin
inspection certificate. If any sample analyzed results in an aflatoxin
level over 15.0 ppb, the lot shall fail regardless of which test sample
number it may be. If the lot fails, the accredited laboratory shall
fill out a failed lot notification report as specified in Sec. 983.40.
The accredited laboratory shall send a copy of this report to the
committee and to the failed lot's owner within 10 working days of
failure. The aflatoxin inspection certificate shall certify each lot
using a certification form identifying each lot by weight and date.
This 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 California pistachios shipped domestically does not exceed
the aflatoxin levels as required in Sec. 983.38(d)(4). 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, 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 the laboratory to return
them to the handler.
Sec. 983.39 Minimum quality levels.
(a) Maximum defect and minimum size. No handler shall ship for
domestic human consumption, pistachios that exceed permissible maximum
defect and minimum size levels shown in the following Table 3:
Table 3.--Maximum Defect and Minimum Size Levels
------------------------------------------------------------------------
Maximum permissible
defects (percent by
Factor weight)
---------------------
Inshell Kernels
------------------------------------------------------------------------
EXTERNAL (SHELL) DEFECTS
a. Non-splits & not split on suture............... 10.0 .........
(1) Maximum non-splits allowed................ 4.0 .........
b. Adhering hull material......................... 2.0 .........
c. Dark stain..................................... 3.0 .........
d. Damage by other means, other than a, b and c 10.0 .........
above, which materially detracts from the
appearance or the edible or marketing quality of
the individual shell or the lot..................
------------------------------------------------------------------------
INTERNAL (KERNEL) DEFECTS
------------------------------------------------------------------------
a. Damage......................................... 6.0 3.0
Immature kernel (Fills <75%--50% of
the shell)
Kernel spotting (Affects 1/8 aggregate
surface)
b. Serious damage................................. 4.0 2.5
Minor insect or vertebrate injury/insect
damage, insect evidence, mold, rancidity,
decay
(1) Maximum insect damage allowed............. 2.0 0.5
------------------------------------------------------------------------
Total external or internal defects allowed 9.0 .........
------------------------------------------------------------------------
OTHER DEFECTS
------------------------------------------------------------------------
a. Shell pieces and blanks (Fills <50% of the 2.0 .........
shell)...........................................
(1) Maximum blanks allowed.................... 1.0 .........
b. Foreign material............................... 0.25 0.1
No glass, metal or live insects permitted
[[Page 43052]]
c. Particles and dust............................. 0.25 .........
d. Loose kernels.................................. 6.0 .........
------------------------------------------------------------------------
Minimum permissible
size
(percent by weight)
------------------------------------------------------------------------
a. Maximum allowable inshell pistachios that will 5.0 .........
pass through a 30/64ths inch round hole screen...
------------------------------------------------------------------------
(b) Definitions applicable to permissible maximum defect and
minimum size levels: The following definitions shall apply to inshell
pistachio and pistachio kernel maximum defect and minimum size:
(1) ``Loose kernels'' means edible kernels or kernel portions that
are out of the shell and which cannot be considered particles and dust.
(2) ``External (shell) defects'' means any abnormal condition
affecting the hard covering around the kernel. Such defects include,
but are not limited to, non-split shells, shells not split on suture,
adhering hull material or dark stains.
(3) Damage by external (shell) defects shall also include any
specific defect described in paragraphs (b)(3)(i) through (iv) of this
section or an equally objectionable variation of any one of these
defects, any other defect or any combination of defects which
materially detracts from the appearance or the edibility or the
marketing quality of the individual shell or the lot.
(i) Non-split shells means shells are not opened or are partially
opened and will not allow an \18/1000\ (.018) inch thick by \1/4\ (.25)
inch wide gauge to slip into the opening.
(ii) Not split on suture means shells are split other than on the
suture and will allow an \18/1000\ (.018) inch thick by \1/4\ (.25)
inch wide gauge to slip into the opening.
(iii) Adhering hull material means an aggregate amount of hull
covers more than one-eighth (\1/8\) of the total shell surface, or when
readily noticeable on dyed shells.
(iv) Dark stain on raw or roasted nuts means an aggregate amount of
dark brown, dark gray or black discoloration affects more than one-
eighth of the total shell surface or, on dyed nuts, when readily
noticeable. Speckled discoloration on the stem end, bottom quarter of
the nut is not considered damage.
(4) Internal (kernel) defects means any damage affecting the
kernel. Such damage includes, but is not limited to evidence of
insects, immature kernels, rancid kernels, mold or decay.
(i) Damage by internal (kernel) defects shall also include any
specific defect described in paragraphs (b)(4)(i)(A) and (B) of this
section, or an equally objectionable variation of any one of these
defects, any other defect, or any combination of defects, which
materially detracts from the appearance or the edibility or the
marketing quality of the individual kernel or of the lot.
(A) Immature kernels in inshell are excessively thin kernels, or
when a kernel fills less than three-fourths, but not less than one-half
of the shell cavity. ``Immature kernels'' in shelled pistachios are
excessively thin kernels and can have black, brown or gray surface with
a dark interior color and the immaturity has adversely affected the
flavor of the kernel.
(B) Kernel spotting refers to dark brown or dark gray spots
aggregating more than one-eighth of the surface of the kernel.
(ii) Serious damage by internal (kernel) defects means any specific
defect described in paragraphs (b)(4)(ii)(A) through (E) of this
section, or an equally objectionable variation of any one of these
defects, which seriously detracts from the appearance or the edibility
or the marketing quality of the individual kernel or of the lot.
(A) Minor insect or vertebrate injury means the kernel shows
conspicuous evidence of feeding.
(B) Insect damage means an insect, insect fragment, web or frass
attached to the kernel. No live insects shall be permitted.
(C) Mold which is readily visible on the shell or kernel.
(D) Rancidity means the kernel is distinctly rancid to taste.
Staleness of flavor shall not be classed as rancidity.
(E) Decay means \1/16\th or more of the kernel surface is
decomposed.
(5) Other defects means defects that cannot be considered internal
defects or external defects. Such defects include, but are not limited
to shell pieces, blanks, foreign materials or particles and dust. The
following shall be considered other defects:
(i) Shell pieces means open inshell without a kernel, half shells
or pieces of shell which are loose in the sample.
(ii) Blanks means a non-split shell not containing a kernel or
containing a kernel that fills less than one-half of the shell cavity.
(iii) Foreign material means leaves, sticks, loose hulls or hull
pieces, dirt, rocks, insects or insect fragments not attached to nuts,
or any substance other than pistachio shells or kernels. Glass, metal
or live insects shall not be permitted.
(iv) Particles and dust means pieces of nut kernels that will pass
through \5/64\ inch round opening.
(v) Undersized means inshell pistachios that fall through a \30/
64\-inch round hole screen.
(c) Minimum quality certificate. Each shipment for domestic human
consumption must be covered by a USDA certificate certifying a minimum
quality or higher. Pistachios that fail to meet the minimum quality
specifications shall be disposed of in such manner as described in
Sec. 983.40.
(d) Transfers between handlers. Transfers between handlers within
the production area are exempt from the minimum quality regulation of
this section.
(e) Minimum quality testing procedures. To obtain a minimum quality
certificate, each lot to be certified shall be uniquely identified,
shall be traceable from testing through shipment by the handler and
shall be subjected to the following procedure:
(1) Sampling of pistachios for maximum defects and minimum size.
The gross weight of the inshell and kernel sample, and number of
samplings required to meet the minimum quality regulation, is shown in
the following Table 4. These samples shall be drawn from the lot that
is to be certified pursuant to Sec. 983.38(d)(1) under the
[[Page 43053]]
supervision of an inspector or as approved under an alternative USDA
recognized inspection program.
Table 4.--Inshell and Kernel Pistachio Lot Sampling Increments for Minimum Quality Certification
----------------------------------------------------------------------------------------------------------------
Number of
incremental Total weight of Weight of Weight of kernel
Lot weight (lbs.) samples for the lot sample inshell test test sample
lot sample (grams) sample (grams) (grams)
----------------------------------------------------------------------------------------------------------------
220 or less............................. 10 500 500 100
221-440................................. 15 500 500 100
441-1100................................ 20 600 500 100
1101-2200............................... 30 900 500 100
2201-4400............................... 40 1200 500 100
4401-11,000............................. 60 1800 500 100
11,001-22,000........................... 80 2400 1000 200
22,001-150,000.......................... 100 3000 1000 200
----------------------------------------------------------------------------------------------------------------
(2) Testing of pistachios for maximum defect and minimum size. The
sample shall be analyzed according to USDA protocol to insure that the
lot does not exceed maximum defects and meets at least the minimum size
levels as specified in Table 3 of this part. For inshell pistachios,
those nuts with dark stain, adhering hull, and those exhibiting
apparent serious defects shall be shelled for internal kernel analysis.
The USDA protocol appears in USDA inspection instruction manual
``Pistachios in the Shell, Shipping Point and Market Inspection
Instructions,'' June 1994: revised September 1994, HU-125-9(b). Copies
may be obtained from the Fresh Products Branch, Agricultural Marketing
Service, USDA. Contact information may be found at http://
www.ams.usda.gov/fv/fvstand.htm.
(f) Certification of minimum quality. Each inspector shall complete
minimum quality testing and reporting and shall certify that every lot
of California pistachios or portion thereof shipped domestically meets
minimum quality levels as required in paragraph (a)(1) of this section.
A record of each test, along with a record of final shipping
disposition, shall be kept by each handler. These records must be
maintained for three years, and are subject to audit by the committee
at any time.
Sec. 983.40 Failed lots/rework procedure.
(a) Substandard pistachios. Each lot of substandard pistachios may
be reworked to meet minimum quality requirements.
(b) Failed lot reporting. If a lot fails to meet the aflatoxin and/
or the minimum quality requirements of this part, a failed lot
notification report shall be completed and sent to the committee within
10 working days of the test failure. This form must be completed and
submitted to the committee each time a lot fails either aflatoxin or
the minimum quality testing. The accredited laboratories shall send the
failed lot notification reports for aflatoxin tests to the committee,
and the handler under the supervision of an inspector, shall send the
failed lot notification reports for the lots that do not meet the
minimum quality requirements to the committee.
(c) Inshell rework procedure for aflatoxin. If inshell rework is
selected as a remedy to meet the aflatoxin requirements 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. 983.38
except that the lot sample size and the test sample size shall be
doubled. The reworked lot shall also be sampled and tested for the
minimum quality requirements. 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.
(d) Kernel rework procedure for aflatoxin. If pistachio kernel
rework is selected as a remedy to meet the aflatoxin requirements of
Sec. 983.38, 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. 983.38.
(e) Minimum quality rework procedure for inshell pistachios and
kernels. If rework is selected as a remedy to meet the minimum quality
requirements of Sec. 983.39, then 100% of the product within that lot
shall be removed from the bulk and/or retail packaging containers and
processed 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. The reworked lot shall be
sampled and tested for the minimum quality requirements as specified in
the minimum quality regulations of Sec. 983.39.
Sec. 983.41 Testing of minimal quantities.
(a) Aflatoxin. Handlers who handle less than 1 million pounds of
assessed weight per year, have the option of utilizing one of two
following methods for testing for aflatoxin:
(1) The handler may have an inspector sample and test all of the
hulled and dried pistachios before testing for aflatoxin certification.
(2) The handler may segregate receipts into various lots at the
handler's discretion and have an inspector sample and test specific
lots. Any lots that have less than 15.0 ppb aflatoxin can be certified
by an inspector to be negative as to aflatoxin. Any lots that are found
to be above 15.0 ppb may be tested after reworking in the same manner
as specified in Sec. 983.40.
(b) Minimum quality. Handlers who handle less than 1 million pounds
of assessed weight can apply to the committee for an exception from
minimum quality testing. If the
[[Page 43054]]
committee grants an exception, then the handler must pull and retain
samples of the lots and make samples available for review by the
committee. The handler shall maintain the samples for 90 days.
Sec. 983.42 Commingling.
After a lot is issued an aflatoxin inspection certificate and
minimum quality certificate, it may be commingled with other certified
lots.
Sec. 983.43 Reinspection.
Whenever the committee has reason to believe that pistachios may
have been damaged or deteriorated while in storage, the committee may
reject the then effective inspection certificate and require the owner
of the pistachios to have a reinspection to establish whether or not
such pistachios may be shipped for human consumption.
Sec. 983.44 Inspection, certification and identification.
Upon recommendation of the committee and approval of the Secretary,
all pistachios that are required to be inspected and certified in
accordance with this part, shall be identified by appropriate seals,
stamps, tags, or other identification to be furnished by the committee
and affixed to the containers by the handler under the direction and
supervision of an inspector. All inspections shall be at the expense of
the handler.
Sec. 983.45 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 the outgoing maximum aflatoxin
tolerance and minimum quality requirements prescribed by Sec. 983.39
shall not be shipped for domestic human consumption.
Sec. 983.46 Modification or suspension of regulations.
(a) In the event that the committee, at any time, finds that, by
reason of changed conditions, the regulations contained in Sec. 983.38
through Sec. 983.45 should be modified or suspended, it shall, by a
vote of at least seven members, so recommend to the Secretary.
(b) Whenever the Secretary finds from the recommendations and
information submitted by the committee or from other available
information, that the aflatoxin or minimum quality regulations
(Sec. 983.38 or Sec. 983.39) should be modified, suspended, or
terminated with respect to any or all shipments of pistachios in order
to effectuate the declared policy of the Act, the Secretary shall
modify or suspend such regulation. If the Secretary finds that a
regulation obstructs or does not tend to effectuate the declared policy
of the Act, the Secretary shall suspend or terminate such regulation.
Reports, Books and Records
Sec. 983.47 Reports.
Upon the request of the committee, with the approval of the
Secretary, each handler shall furnish such reports and information on
such forms as are needed to enable the Secretary and the committee to
perform their functions and enforce the regulations under this part.
The committee shall provide a uniform report format for the handlers.
Sec. 983.48 Confidential information.
All reports and records furnished or submitted by handlers to the
committee which include confidential data or information constituting a
trade secret or disclosing the trade position, financial condition, or
business operations of the particular handler or their customers shall
be received by, and at all times kept in the custody and under the
control of, one or more employees of the committee, who shall disclose
such data and information to no person except the Secretary. However,
such data or information may be disclosed only with the approval of the
Secretary, to the committee when reasonably necessary to enable the
committee to carry out its functions under this part.
Sec. 983.49 Records.
Each handler shall maintain such records of pistachios received,
held and shipped by him, as will substantiate any required reports and
will show performance under this part. With the exception of records
required to be retained under Sec. 983.38(d)(5), such records shall be
retained for at least 2 years beyond the crop year of their
applicability.
Sec. 983.50 Random verification audits.
(a) All handlers' pistachio inventory shall be subject to random
verification audits by the committee to ensure compliance with the
terms of the order, and regulations adopted pursuant thereto.
(b) Committee staff or agents of the committee, based on
information from the industry or knowledge of possible violations, may
make buys of handler product in retail locations. If it is determined
that violations of the order have occurred as a result of the buys, the
matter will be referred to the Secretary for appropriate action.
Sec. 983.51 Verification of reports.
For the purpose of checking and verifying reports filed by handlers
or the operation of handlers under the provisions of this part, the
Secretary and the committee, through their duly authorized agents,
shall have access to any premises where pistachios and records relating
thereto may be held by any handler and at any time during reasonable
business hours, shall be permitted to inspect any pistachios so held by
such handler and any and all records of such handler with respect to
the acquisition, holding, or disposition of all pistachios which may be
held or which may have been shipped by him.
Expenses and Assessments
Sec. 983.52 Expenses.
The committee is authorized to incur such expenses as the Secretary
finds are reasonable and likely to be incurred by it during each
production year for the maintenance and functioning of the committee
and for such other purposes as the Secretary may, pursuant to the
provisions of this part, determine to be appropriate.
Sec. 983.53 Assessments.
(a) Each handler who receives pistachios for processing in each
production year shall pay the committee on demand, an assessment based
on the pro rata share of the expenses authorized by the Secretary for
that year attributable to the assessed weight of pistachios received by
that handler in that year.
(b) The committee, prior to the beginning of each production year,
shall recommend and the Secretary shall set the assessment for the
following production year, which shall not exceed one-half of one
percent of the average price received by producers in the preceding
production year. The committee, with the approval of the Secretary, may
revise the assessment established prior to October 1 of each year if it
determines, based on information including crop volume, that the action
is necessary, and if the revision does not exceed the assessment
limitations specified in this section and the modification is made
prior to the date established for payment of the assessment.
Sec. 983.54 Contributions.
The committee may accept voluntary contributions but these shall
only be used to pay for committee expenses.
Sec. 983.55 Delinquent assessments.
(a) Any handler who fails to file a return or pay any assessment
within the time required by the committee shall
[[Page 43055]]
pay to the committee a penalty of 10 percent of the amount of the
assessment determined to be past due and, in addition, interest on the
unpaid balance at the rate of one and one-half percent per month. If
delinquent for more than 60 days, then the committee can request that
USDA stop providing certificates to the delinquent handler. The amount
of the assessment may be changed by the Secretary upon recommendation
of the committee.
(b) In addition to any other penalty imposed, the committee may
require any person who fails to pay any assessment or related charge
pursuant to this section to furnish and maintain a surety bond in a
form and amount and for a period of time specified by the committee as
assurance that all payments to the committee will be made when due.
Sec. 983.56 Accounting.
(a) If, at the end of a production year, the assessments collected
are in excess of expenses incurred, such excess shall be accounted for
in accordance with one of the following:
(1) If such excess is not retained in a reserve, as provided in
paragraph (a)(2) of this section, it shall be refunded proportionately
to the persons from whom it was collected in accordance with
Sec. 983.53: Provided, That any sum paid by a person in excess of his/
her pro rata share or the expenses during any production year may be
applied by the committee at the end of such production year as credit
for such person, toward the committee's fiscal operations of the
following production year;
(2) The committee, with the approval of the Secretary, may carry
over such excess into subsequent production years as a reserve:
Provided, That funds already in the reserve do not exceed approximately
two production years' budgeted expenses. In the event that funds exceed
two production years' budgeted expenses, future assessments will be
reduced to bring the reserves to an amount that is less than or equal
to two production years' budgeted expenses. Such reserve funds may be
used:
(i) To defray expenses, during any production year, prior to the
time assessment income is sufficient to cover such expenses;
(ii) To cover deficits incurred during any production year when
assessment income is less than expenses;
(iii) To defray expenses incurred during any period when any or all
provisions of this part are suspended or are inoperative; and
(iv) To cover necessary expenses of liquidation in the event of
termination of this part. Upon such termination, any funds not required
to defray the necessary expenses of liquidation shall be disposed of in
such manner as the Secretary may determine to be appropriate: Provided,
That to the extent practical, such funds shall be returned pro rata to
the persons from whom such funds were collected;
(b) All funds received by the committee pursuant to the provisions
of this part shall be used solely for the purpose specified in this
part and shall be accounted for in the manner provided in this part.
The Secretary may at any time require the committee and its members to
account for all receipts and disbursements; and
(c) Upon the removal or expiration of the term of office of any
member of the committee, such member shall account for all receipts and
disbursements for which that member was personally responsible, deliver
all committee property and funds in the possession of such member to
the committee, and execute such assignments and other instruments as
may be necessary or appropriate to vest in the committee full title to
all of the committee property, funds, and claims vested in such member
pursuant to this part.
Miscellaneous Provisions
Sec. 983.57 Compliance.
Except as provided in this part, no handler shall handle
pistachios, the handling of which has been prohibited or otherwise
limited by the Secretary in accordance with provisions of this part;
and no handler shall handle pistachios except in conformity to the
provision of this part.
Sec. 983.58 Rights of the Secretary.
The members of the committee (including successors or alternates)
and any agent or employee appointed or employed by the committee, shall
be subject to removal or suspension at the discretion of the Secretary,
at any time. Each and every decision, determination, or other act of
the committee shall be subject to the continuing right of the Secretary
to disapprove of the same at any time, and upon such disapproval, shall
be deemed null and void.
Sec. 983.59 Personal liability.
No member or alternate member of the committee, nor any employee,
representative, or agent of the committee shall be held personally
responsible to any handler, either individually, or jointly with
others, in any way whatsoever, to any person, for errors in judgment,
mistakes, or other acts, either of commission or omission, as such
member, alternate member, employee, representative, or agent, except
for acts of dishonesty, willful misconduct, or gross negligence.
Sec. 983.60 Separability.
If any provision of this part is declared invalid, or the
applicability thereof to any person, circumstance, or thing is held
invalid, the validity of the remainder, or the applicability thereof to
any other person, circumstance, or thing, shall not be affected
thereby.
Sec. 983.61 Derogation.
Nothing contained in this part is, or shall be construed to be, in
derogation or in modification of the rights of the Secretary or of the
United States to exercise any powers granted by the Act or otherwise,
or, in accordance with such powers, to act in the premises whenever
such action is deemed advisable.
Sec. 983.62 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person
by virtue of this part shall cease upon its termination, except with
respect to acts done under and during the existence thereof.
Sec. 983.63 Agent.
The Secretary may, by a designation in writing, name any person,
including any officer or employee of the United States Government, or
name any service, division or branch in the United States Department of
Agriculture, to act as agent or representative of the Secretary in
connection with any of the provisions of this part.
Sec. 983.64 Effective time.
The provisions of this part, as well as any amendments, shall
become effective at such time as the Secretary may declare, and shall
continue in force until terminated or suspended in one of the ways
specified in Sec. 983.66 or Sec. 983.67.
Sec. 983.65 Suspension or termination.
The Secretary shall terminate or suspend the operation of any or
all of the provisions of this part, whenever he finds that such
provisions do not tend to effectuate the declared policy of the Act.
Sec. 983.66 Referendum.
(a) The Secretary may at any time terminate the provisions of this
part.
(b) The Secretary shall terminate or suspend the operations of any
or all of the provisions of this part whenever it is found that such
provisions do not tend to effectuate the declared policy of the act.
[[Page 43056]]
(c) The Secretary shall terminate the provisions of this part at
the end of any fiscal period whenever it is found that such termination
is favored by a majority of producers who, during a representative
period, have been engaged in the production of pistachios: Provided,
That such majority has, during such representative period, produced for
market more than fifty percent of the volume of such pistachios
produced for market, but such termination shall be announced at least
90 days before the end of the current fiscal period.
(d) Within six years of [the effective date of this part] the
Secretary shall conduct a referendum to ascertain whether continuance
of this part is favored by producers. Subsequent referenda to ascertain
continuance shall be conducted every six years thereafter. The
Secretary may terminate the provisions of this part at the end of any
fiscal period in which the Secretary has found that continuance of this
part is not favored by a two thirds (\2/3\) majority of voting
producers, or a two thirds (\2/3\) majority of volume represented
thereby, who, during a representative period determined by the
Secretary, have been engaged in the production for market of pistachios
in the production area. Such termination shall be announced on or
before the end of the production year.
(e) The provisions of this part shall, in any event, terminate
whenever the provisions of the Act authorizing them cease.
Sec. 983.67 Procedure upon termination.
Upon the termination of this part, the members of the committee
then functioning shall continue as joint trustees, for the purpose of
liquidating the affairs of the committee. Action by such trustees shall
require the concurrence of a majority of said trustees. Such trustees
shall continue in such capacity until discharged by the Secretary, and
shall account for all receipts and disbursements and deliver all
property on hand, together with all books and records of the committee
and the joint trustees, to such persons as the Secretary may direct;
and shall upon the request of the Secretary, execute such assignments
or other instruments necessary or appropriate to vest in such person
full title and right to all the funds, properties, and claims vested in
the committee or the joint trustees, pursuant to this part. Any person
to whom funds, property, or claims have been transferred or delivered
by the committee or the joint trustees, pursuant to this section, shall
be subject to the same obligations imposed upon the members of said
committee and upon said joint trustees.
Sec. 983.68 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the
termination of this part or of any regulation issued pursuant thereto,
or the issuance of any amendment to either thereof, shall not:
(a) Affect or waive any right, duty, obligation, or liability which
shall have arisen or which may thereafter arise, in connection with any
provisions of this part or any regulation issued thereunder,
(b) Release or extinguish any violation of this part or any
regulation issued thereunder, or
(c) Affect or impair any rights or remedies of the Secretary, or of
any other persons, with respect to such violation.
Sec. 983.69 Exemption.
Any handler may handle pistachios within the production area free
of the regulatory and assessment provisions of this part if such
pistachios are handled in quantities not exceeding 1,000 dried pounds
during any marketing year. This subpart may be changed as recommended
by the committee and approved by the Secretary.
Sec. 983.70 Relationship with the California Pistachio Commission.
In conducting committee activities and other objectives under this
part, the committee may deliberate, consult, cooperate and exchange
information with the California Pistachio Commission. Any sharing of
information gathered under this subpart shall be kept confidential in
accordance with provisions under section 10(i) of the Act.
Sec. 983.90 Counterparts.
Handlers may sign an agreement with the Secretary indicating their
support for this marketing order. This agreement may be executed in
multiple counterparts by each handler. If more than fifty percent of
the handlers, weighted by the volume of pistachios handled during a
representative period, enter into such an agreement, then a marketing
agreement shall exist for the pistachio marketing order. This marketing
agreement shall not alter the terms of this part. Upon the termination
of this part, the marketing agreement has no further force or effect.
Sec. 983.91 Additional parties.
After this part becomes effective, any handler may become a party
to the marketing agreement if a counterpart is executed by the handler
and delivered to the Secretary.
Sec. 983.92 Order with marketing agreement.
Each signatory handler hereby requests the Secretary to issue,
pursuant to the Act, an order for regulating the handling of pistachios
in the same manner as is provided for in this agreement.
Dated: June 19, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-15917 Filed 6-25-02; 8:45 am]
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