37930 Federal Register / Vol. 79, No. 128 / Thursday, July 3, 2014 / Rules and Regulations 

After consideration of all relevant 

material presented, it is found that 

finalizing the interim rule, without 

change, as published in the Federal 

Register (79 FR 11295, February 28, 

2014) will tend to effectuate the 

declared policy of the Act. 

List of Subjects in 7 CFR Part 906 

Grapefruit, Marketing agreements, 

Oranges, Reporting and recordkeeping 

requirements. 

Accordingly, the interim rule that 

amended 7 CFR part 906 and was 

published at 79 FR 11295 on February 

28, 2014, is adopted as a final rule, 

without change. 

Dated: June 27, 2014. 

Rex A. Barnes, 

Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2014–15594 Filed 7–2–14; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 983 

[Doc. No. AMS–FV–12–0068; FV13–983–1 

FR] 

Pistachios Grown in California, 

Arizona, and New Mexico; Modification 

of Aflatoxin Regulations 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule revises the aflatoxin 

sampling regulations currently 

prescribed under the California, 

Arizona, and New Mexico pistachio 

marketing order (order). The order 

regulates the handling of pistachios 

grown in California, Arizona, and New 

Mexico, and is administered locally by 

the Administrative Committee for 

Pistachios (Committee). This rule allows 

the use of mechanical samplers (autosamplers) for in-line sampling as a 

method to obtain samples for aflatoxin 

analysis. The use of auto-samplers is 

expected to reduce handler costs by 

providing a more efficient and costeffective process. 

DATES: Effective Date: August 4, 2014. 

FOR FURTHER INFORMATION CONTACT: 

Andrea Ricci, Marketing Specialist, or 

Martin Engeler, Regional Director, 

California Marketing Field Office, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Program, 

AMS, USDA; Telephone: (559) 487– 

5901, Fax: (559) 487–5906, or Email: 

Andrea.Ricci@ams.usda.gov or 

Martin.Engeler@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Jeffrey Smutny, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Program, 

AMS, USDA, 1400 Independence 

Avenue SW., STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, or Email: 

Jeffrey.Smutny@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This final 

rule is issued under Marketing 

Agreement and Order No. 983, both as 

amended (7 CFR part 983), regulating 

the handling of pistachios grown in 

California, Arizona, and New Mexico, 

hereinafter referred to as the ‘‘order.’’ 

The order is effective under the 

Agricultural Marketing Agreement Act 

of 1937, as amended (7 U.S.C. 601–674), 

hereinafter referred to as the ‘‘Act.’’ 

The Department of Agriculture 

(USDA) is issuing this rule in 

conformance with Executive Orders 

12866, 13175, and 13563. 

This final rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This rule is not intended 

to have retroactive effect. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 608c(15)(A) of the Act, any 

handler subject to an order may file 

with USDA a petition stating that the 

order, 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. 

This final rule revises the aflatoxin 

sampling regulations currently 

prescribed under the order. This rule 

allows the use of mechanical samplers 

(auto-samplers) as an additional method 

to obtain lot samples for aflatoxin 

analysis. All auto-samplers will need to 

be approved by and be subject to 

procedures and requirements 

established by the USDA Federal-State 

Inspection Service prior to their use. 

This rule will be in effect indefinitely 

until amended, suspended, or 

terminated, and was unanimously 

recommended by the Committee at its 

meeting held on August 19, 2013. 

Section 983.50 of the order provides 

authority for aflatoxin regulations that 

establish aflatoxin sampling, analysis, 

and inspection requirements applicable 

to pistachios to be shipped for human 

consumption in domestic and export 

markets. Aflatoxin regulations are 

currently in effect for pistachios 

shipped to domestic markets. 

Section 983.150 of the order’s rules 

and regulations contains specific 

requirements regarding sampling and 

testing of pistachios for aflatoxin. 

Paragraph (d)(1) of that section provides 

that a sample shall be drawn from each 

lot of pistachios and such samples shall 

meet specific weight requirements 

according to the size of the lot. 

The current method of collecting 

samples of pistachios to be tested 

requires hand sampling of static lots by, 

or under the supervision of, an 

inspector of the Federal-State Inspection 

Service (inspector). This process 

requires handler personnel to stage the 

lots to be sampled, which requires 

moving large containers around with a 

forklift. This process utilizes a 

considerable amount of time and 

warehouse space. Inspectors are then 

required to manually conduct the 

sampling by drawing samples from the 

containers, which is very labor 

intensive. Once the lot sample is 

collected, the inspector prepares test 

samples for aflatoxin analysis. 

Since the order’s promulgation in 

2004, the volume of open inshell 

pistachios processed annually has 

increased significantly, from 165 

million pounds to 385 million pounds 

in the 2012–13 production year. This 

change in volume has significantly 

increased the amount of warehouse 

space and handler labor needed to stage 

lots for sampling. It has also driven up 

the total labor costs associated with 

sampling, as the number of lots to be 

sampled has increased significantly. 

With the implementation of this rule, 

handlers will have the option of using 

mechanized sampling instead of manual 

sampling. Automatic samplers in 

handlers’ processing facilities will 

mechanically draw samples of 

pistachios as they are being processed. 

This will make the sampling process 

more efficient by eliminating the extra 

warehouse space and handler labor 

needed for staging static lots for 

sampling. In addition, the labor costs of 

manual sampling will be eliminated, 

further reducing handler costs. A 

discussion of the costs is included in 

the Final Regulatory Flexibility Analysis 

section of this document. 

Final Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) (5 

U.S.C. 601–612), the Agricultural 


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Federal Register / Vol. 79, No. 128 / Thursday, July 3, 2014 / Rules and Regulations 37931 

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 

businesses 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 20 handlers 

of California, Arizona, and New Mexico 

pistachios subject to regulation under 

the order and approximately 1,040 

pistachio producers in the regulated 

area. Small agricultural service firms are 

defined by the Small Business 

Administration (SBA) (13 CFR 121.201) 

as those having annual receipts of less 

than $7,000,000, and small agricultural 

producers are defined as those having 

annual receipts of less than $750,000. 

Currently, about 70 percent of 

handlers ship less than $7,000,000 

worth of pistachios on an annual basis 

and would be considered small 

businesses under the SBA definition. 

Data provided by the Committee 

regarding the 2013 crop indicates that 

approximately 80 percent of producers 

delivered less than 300,000 pounds of 

assessable dry weight pistachios. Using 

an estimated price of $2.50 per pound 

of pistachios, this would equate to less 

than $750,000 in receipts; thus, 80 

percent of producers would be 

considered small businesses according 

to the SBA definition. 

This final rule modifies the aflatoxin 

sampling regulations currently 

prescribed under § 983.150(d) of the 

order’s rules and regulations. This rule 

allows the use of auto-samplers as a 

method to obtain samples for aflatoxin 

analysis. Previously, only manual handdrawn sampling from static lots was 

permitted. Allowing the use of autosamplers for in-line sampling will 

streamline the sampling process for 

pistachios. It is expected to make the 

sampling process more efficient by 

eliminating the time and space needed 

for staging and inspecting static lots, 

reducing the amount of labor, and 

therefore reducing handler costs. 

Authority for this action is provided in 

§ 983.50 of the order. 

The Committee estimates the current 

method of sampling to range in cost 

from $135 to $170 per lot. This expense 

includes the warehouse space and 

employee labor needed to stage a lot for 

inspection and the costs of the 

inspection. The initial expense of 

purchasing an auto-sampler ranges from 

as low as $1,000 to as high as $5,000. 

The cost of collecting samples with the 

auto-sampler is estimated at about $5 

per lot, which is significantly lower 

than the static lot sampling method, 

which ranges from $135 to $170 per lot. 

The following example is used to 

illustrate potential savings for a handler 

that processes 3,000,000 pounds of 

pistachios per year. Assuming a lot size 

of 50,000 pounds, this handler would 

require inspection on 60 lots of 

pistachios (3,000,000 / 50,000). Under 

the current manual sampling method, 

this would result in a total sampling 

cost of $8,100 (60 × $135). If this 

handler purchased an automatic 

sampler for $5,000, the total sampling 

cost (including equipment) would be 

$5,300 ($5,000 + $5 cost per lot to pull 

the samples). Thus, in this example the 

handler would save $2,800 in the first 

year of operation. After the first year, 

the savings would increase because 

there would be no additional equipment 

cost. Applying this on an industry-wide 

basis, the aggregate cost savings could 

be significant, considering recent 

shipment levels have exceeded 

300,000,000 pounds of pistachios. 

Based on these cost estimates and the 

example provided, use of automatic 

samplers can provide a significant cost 

saving to the industry. The potential 

cost savings for individual handlers will 

vary, depending on the size and 

structure of their operation. Each 

handler will need to evaluate their 

operation to determine which method of 

sampling best fits their needs. This rule 

will provide an additional option for 

sampling that does not currently exist 

for handlers. 

The Committee discussed alternatives 

to this change, including continuing to 

operate under the current aflatoxin 

sampling procedures. However, the 

Committee unanimously agreed that 

adding the option to use mechanical 

sampling equipment will provide 

handlers with a more efficient and costeffective sampling alternative to the 

manual sampling process. 

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, Arizona, 

and New Mexico. No changes in those 

requirements as a result of this action 

are necessary. Should any changes 

become necessary, they would be 

submitted to OMB for approval. 

This final rule modifies aflatoxin 

sampling regulations currently 

prescribed under the California, 

Arizona, and New Mexico pistachio 

marketing order. Accordingly, this 

action will not impose any additional 

reporting or recordkeeping requirements 

on either small or large pistachios 

handlers. As with all Federal marketing 

order programs, reports and forms are 

periodically reviewed to reduce 

information requirements and 

duplication by industry and public 

sector agencies. 

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. 

In addition, the Committee’s meeting 

was widely publicized throughout the 

pistachio industry and all interested 

persons were invited to attend the 

meeting and participate in Committee 

deliberations on all issues. Like all 

Committee meetings, the August 19, 

2013, meeting was a public meeting and 

all entities, both large and small, were 

able to express views on this issue. 

A proposed rule concerning this 

action was published in the Federal 

Register on March 18, 2014 (79 FR 

15050). Copies of the rule were emailed 

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 April 

17, 2014, was provided to allow 

interested persons to respond to the 

proposal. One comment was received 

after the designated comment period 

closed. Accordingly, no changes were 

made to the rule as proposed. 

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 Jeffrey Smutny 

at the previously mentioned address in 

the FOR FURTHER INFORMATION CONTACT

section. 

After consideration of all relevant 

matter presented, including the 

information and recommendation 

submitted by the Committee and other 

available information, it is hereby found 

that this rule, as hereinafter set forth, 

will tend to effectuate the declared 

policy of the Act. 


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37932 Federal Register / Vol. 79, No. 128 / Thursday, July 3, 2014 / Rules and Regulations 

List of Subjects in 7 CFR Part 983 

Marketing agreements and orders, 

Pistachios, Reporting and recordkeeping 

requirements. 

For the reasons set forth in the 

preamble, 7 CFR part 983 is amended as 

follows: 

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. Section 983.150 is amended by 

revising paragraph (d)(1) to read as 

follows: 

§ 983.150 Aflatoxin regulations. 

* * * * * 

(d)* * * 

(1) Samples for testing. Prior to 

testing, each handler shall cause a 

representative sample to be drawn from 

each lot (‘‘lot samples’’) of sufficient 

weight to comply with Tables 1 and 2 

of this section. 

(i) At premises with mechanical 

sampling equipment (auto-samplers) 

approved by the USDA Federal-State 

Inspection Service, samples shall be 

drawn by the handler in a manner 

acceptable to the Committee and the 

USDA Federal-State Inspection Service. 

(ii) At premises without mechanical 

sampling equipment, sampling shall be 

conducted by or under the supervision 

of an inspector, or as approved under an 

alternative USDA-recognized inspection 

program. 

* * * * * 

Dated: June 27, 2014. 

Rex A. Barnes, 

Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2014–15596 Filed 7–2–14; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 985 

[Doc. No. AMS–FV–13–0088; FV14–985–2 

FR] 

Marketing Order Regulating the 

Handling of Spearmint Oil Produced in 

the Far West; Revision of 

Administrative Rules and Regulations 

Governing Issuance of Additional 

Allotment Base 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This final rule revises the 

procedure currently prescribed for 

issuing additional allotment base for 

Class 1 (Scotch) and Class 3 (Native) 

spearmint oil to new and existing 

producers under the Far West spearmint 

oil marketing order (order). The order 

regulates the handling of spearmint oil 

produced in the Far West and is 

administered locally by the Spearmint 

Oil Administrative Committee 

(Committee). This action reduces the 

number of new producers that are 

issued additional allotment bases each 

year from three to two for each class of 

oil; temporarily changes the method by 

which additional allotment base is 

allocated to existing producers to take 

into account small production 

operations; and amends the 

requirements for eligibility, retention, 

and transfer of additional allotment base 

issued to new and existing producers. 

Revising the procedure for issuing 

additional allotment base will help to 

ensure that new and existing spearmint 

oil producers have sufficient allotment 

base to be economically viable in the 

future. 

DATES: Effective Date: July 7, 2014. 

FOR FURTHER INFORMATION CONTACT: 

Manuel Michel or Gary D. Olson, 

Northwest Marketing Field Office, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Program, 

AMS, USDA; Telephone: (503) 326– 

2724, Fax: (503) 326–7440, or Email: 

Manuel.Michel@ams.usda.gov or 

GaryD.Olson@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Jeffrey Smutny, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Program, 

AMS, USDA, 1400 Independence 

Avenue SW., STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, or Email: 

Jeffrey.Smutny@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This final 

rule is issued under Marketing Order 

No. 985 (7 CFR part 985), as amended, 

regulating the handling of spearmint oil 

produced in the Far West (Washington, 

Idaho, Oregon, and designated parts of 

Nevada and Utah), hereinafter referred 

to as the ‘‘order.’’ The order is effective 

under the Agricultural Marketing 

Agreement Act of 1937, as amended (7 

U.S.C. 601–674), hereinafter referred to 

as the ‘‘Act.’’ 

The Department of Agriculture 

(USDA) is issuing this rule in 

conformance with Executive Orders 

12866, 13563, and 13175. 

This final rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform and 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. 

This final rule revises the procedure 

currently prescribed for issuing 

additional allotment base for Class 1 

(Scotch) and Class 3 (Native) spearmint 

oil to new and existing producers under 

the order’s volume control provisions. 

This rule: (1) Reduces the number of 

allocations of additional allotment base 

issued to new producers each year from 

three to two for each class of oil; (2) 

temporarily changes the method by 

which additional allotment base is 

issued to existing producers to take into 

account producers whose total 

allotment base is below the size of the 

minimum economic enterprise (MEE) 

required to produce each class of 

spearmint oil; (3) provides that 

additional allotment base issued to 

existing producers under the revised 

procedure cannot be used to replace 

allotment base that has been previously 

transferred away; and (4) provides that 

additional allotment base issued under 

the revised procedure cannot be 

transferred to another producer for at 

least five years following issuance. This 

rule was recommended unanimously by 

the Committee at a meeting on 

November 6, 2013. 

Under the order, volume control 

measures are authorized to regulate the 

marketing of spearmint oil. Regulation 

is currently effectuated through the 

issuance of allotment bases to 

producers, the establishment of annual 

salable quantities and allotment 

percentages, and the reserve pooling of 

excess production. Allotment base is 

each producer’s quantified share of the 

spearmint oil market based on a 

statistical representation of past 

spearmint oil production, with 

accommodation for reasonable and 

normal adjustments to such base. The 


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