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.

Proposed Rules Federal Register

45772 

Vol. 74, No. 171 

Friday, September 4, 2009 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 983 

[Doc. No. AMS–FV–09–0031; FV09–983–1 

PR] 

Pistachios Grown in California; 

Changes to Handling Regulations 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This rule invites comments 

on changes to the handling regulations 

prescribed under Marketing Agreement 

and Order No. 983 (order), which 

regulates the handling of pistachios. The 

changes were recommended by the 

Administrative Committee for 

Pistachios (committee), which is 

responsible for local administration of 

the order. The changes would bring the 

current handling regulations into 

conformance with proposed 

amendments to the order by including 

certain regulatory language currently 

contained in the order’s provisions in 

the order’s administrative rules and 

regulations, lifting the suspension of 

certain language, removing obsolete 

language, and revising references to 

renumbered order provisions. 

DATES: Comments must be received by 

September 14, 2009. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this proposed rule. 

Comments must be sent to the Docket 

Clerk, Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., Stop 0237, Washington, 

DC 20250–0237; Fax: (202) 720–8938, or 

Internet: http://www.regulations.gov. 

Comments should reference the docket 

number and the date and page number 

of this issue of the Federal Register, and 

will be available for public inspection in 

the Office of the Docket Clerk during 

regular business hours, or can be viewed 

at: http://www.regulations.gov. All 

comments submitted in response to this 

rule will be included in the record and 

will be made available to the public. 

Please be advised that the identity of the 

individuals or entities submitting the 

comments will be made public on the 

Internet at the address provided above. 

FOR FURTHER INFORMATION CONTACT: 

Martin Engeler, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 2202 

Monterey Street, Suite 102–B, Fresno, 

California 93721; Telephone: (559) 487– 

5110, Fax: (559) 487–5906, or E-mail: 

Martin.Engeler@ams.usda.gov; or Laurel 

May, Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., Stop 0237, Washington, 

DC 20250–0237; Telephone: (202) 205– 

2830, Fax: (202) 720–8938, or E-mail: 

Laurel.May@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Jay Guerber, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., Stop 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, E-mail: 

Jay.Guerber@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This 

proposal is issued under Marketing 

Agreement and Order No. 983, both as 

amended (7 CFR part 987), regulating 

the handling of pistachios. The order is 

effective under the Agricultural 

Marketing Agreement Act of 1937, as 

amended (7 U.S.C. 601–674), hereinafter 

referred to as the ‘‘Act.’’ 

The Department of Agriculture 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. This rule is not intended to 

have retroactive effect. This proposal 

will 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 USDA a petition stating that the 

order, or any obligation imposed in 

connection with the order, is not in 

accordance with law and may request a 

modification of the order or to be 

exempted therefrom. A handler is 

afforded the opportunity for a hearing 

on the petition. After the hearing, USDA 

would rule on the petition. The Act 

provides that the district court of the 

United States in any district in which 

the handler is an inhabitant, or has his 

or her principal place of business, has 

jurisdiction to review USDA’s ruling on 

the petition, provided an action is filed 

not later than 20 days after the date of 

the entry of the ruling. 

This rule invites comments on 

proposed changes to the administrative 

rules and regulations contained in the 

order. The changes would bring the 

current handling regulations into 

conformance with proposed 

amendments to the order by including 

certain regulatory language currently 

contained in the order’s provisions in 

the order’s administrative rules and 

regulations, lifting the suspension of 

certain language, removing obsolete 

language, and revising references to 

renumbered order provisions. These 

changes were recommended by the 

committee and submitted to USDA on 

May 28, 2008. 

A Secretary’s decision, which 

describes the proposed amendments to 

the order, was published in the Federal 

Register on August 6, 2009 (74 FR 

39230). A copy of the Secretary’s 

decision may be viewed at: http://www.

regulations.gov/search/Regs/home.

html#documentDetail?R=0900006480

a02766. 

Proposed amendments to the order’s 

provisions would expand the 

production area subject to regulation 

under the order to include the states of 

California, Arizona, and New Mexico. 

Additional amendments to the order 

would modify existing provisions 

regarding aflatoxin and quality 

regulations, revise various 

administrative procedures under the 

order, authorize the committee to 

recommend research projects, and make 

other related changes. A referendum of 

pistachio producers who would be 

affected by the amended order will be 

conducted to determine support for 

such changes. If the amendments are 

approved by producers participating in 

the referendum, conforming changes to 

the order’s administrative rules and 

regulations would be necessary. 

Among other things, specific 

regulatory language currently contained 


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Federal Register / Vol. 74, No. 171 / Friday, September 4, 2009 / Proposed Rules 45773 

in the order’s aflatoxin and quality 

provisions would be removed if the 

amendments are approved. To avoid a 

lapse in regulation, the committee 

recommended that specific order 

provisions concerning aflatoxin 

tolerance levels and testing procedures 

be added to the order’s administrative 

rules and regulations section at the same 

time the amendments are effectuated. 

This would provide a seamless 

transition and would assure that 

pistachios continue to be handled under 

the same regulations currently in place 

under the order. This rule addresses 

those conforming changes. If the 

proposed amendments are not approved 

by producers, this rule regarding 

conforming changes to the order’s 

administrative rules and regulations 

would be withdrawn. It is intended that 

finalization of this rule would 

correspond with the issuance of the 

order amending order, both of which 

would be published in a future issue of 

the Federal Register, as appropriate. 

Section 983.38 of the order currently 

specifies the maximum aflatoxin 

tolerance level for domestic shipments 

of pistachios for human consumption. 

This section also specifies aflatoxin 

testing and certification procedures. 

Section 983.39 of the order, which was 

suspended on December 10, 2007 (72 FR 

69141), specifies minimum quality 

levels for domestic shipments of 

pistachios for human consumption. 

Testing and certification procedures to 

verify pistachio quality are also 

specified in this section. Section 

983.46(c) of the order authorizes the 

committee to recommend administrative 

rules and regulations implementing the 

provisions of §§ 983.38 and 983.39. 

The formal rulemaking proceeding 

includes amendments to §§ 983.38 and 

983.39 that would remove specific 

regulatory language from those 

provisions and replace it with general 

authority to recommend and establish 

aflatoxin and quality regulations 

through the informal rulemaking 

process. Sections 983.38 and 983.39 

would also be redesignated as §§ 983.50 

and 983.51, respectively. Such changes 

would require the addition of new 

regulatory sections to the order’s current 

administrative rules and regulations, 

render certain other sections obsolete, 

and require the revision of other 

sections to reflect changes to the order 

provisions, including references to 

renumbered sections. 

If § 983.38 is amended, certain 

specific handling requirements 

concerning aflatoxin levels and testing 

procedures currently provided in that 

section would be moved to a new 

§ 983.150—Aflatoxin Regulations, 

which would be added to the order’s 

rules and regulations. Section 983.150 

would specify an aflatoxin tolerance 

level of 15 ppb, which is the aflatoxin 

tolerance currently provided under the 

order. Section 983.150 would also 

specify the same aflatoxin sampling, 

testing, and certification procedures 

currently contained in the order, with 

some modifications. For instance, the 

regulation would require that at least 

eight members of the committee 

recommend, and the Secretary approve, 

any alternative aflatoxin analysis 

methods. The regulation would also 

require accredited laboratories 

performing aflatoxin testing to certify 

that every lot of production area 

pistachios shipped domestically does 

not exceed the maximum aflatoxin 

tolerance level specified under the 

order. Additionally, handlers would be 

required to maintain testing and 

shipping records for three years beyond 

the production year of their 

applicability. Finally, section references 

throughout the section would be 

updated to reflect renumbered order 

provisions. 

Section 983.138 of the order’s 

administrative rules and regulations 

concerns the drawing of samples for 

aflatoxin testing in accordance with 

requirements in § 983.38. Because 

updated sampling procedures would be 

contained in new § 983.150, this section 

would be obsolete under the amended 

order. Therefore, the committee 

recommended removing this section. 

If § 983.39 is amended, the order 

would no longer contain specific 

regulations regarding minimal pistachio 

quality or testing. The committee would 

have general authority to consider and 

recommend minimal quality regulations 

and testing procedures. Certain 

references to the provisions of § 983.39 

would be obsolete. Therefore, the 

committee recommended that affected 

sections be revised to reflect proposed 

amendments to that section. 

Section 983.141 outlines procedures 

for exempting handlers from minimum 

quality testing. This section has been 

suspended since December 10, 2007 (72 

FR 69141), when the minimum quality 

provision of the order was also 

suspended. This section would be 

obsolete under the amended order. 

Therefore, the committee recommended 

lifting the suspension of § 983.141 and 

removing the section. 

The formal rulemaking proceeding 

includes amendments to § 983.40 that 

would remove specific regulations 

regarding rework procedures for lots of 

pistachios failing aflatoxin and 

minimum quality testing. Those 

regulations would be replaced with 

general authority to recommend rework 

procedures for failed lots. Specific 

regulations describing rework 

provisions for lots failing aflatoxin 

testing would be moved to a new 

§ 983.152—Failed lots/rework 

procedure. Conforming changes to the 

text of the current regulations would be 

made in § 983.152 to reference aflatoxin 

regulations in the amended order 

provisions, and would revise references 

to renumbered sections. 

The formal rulemaking proceeding 

includes an amendment to § 983.41 that 

would remove a quality testing 

exemption for handlers handling fewer 

than 1,000,000 pounds of pistachios 

annually and replace it with general 

authority to recommend testing 

procedures for minimum quantities. 

Section 983.41 would also be 

redesignated as § 983.53. Section 983.47 

currently provides for the collection of 

necessary reports from regulated 

handlers. If the proposed amendments 

are approved by producers, § 983.47 

would be redesignated as § 983.64. 

Paragraph (d) of § 983.147 describes 

Form ACP–5—‘‘Minimal Testing Form,’’ 

for use by handlers handling fewer than 

1,000,000 pounds of pistachios 

annually. That paragraph has been 

suspended since December 10, 2007 (72 

FR 69141), when the minimum quality 

provision of the order was also 

suspended. The committee 

recommended revising that paragraph to 

specify that handlers may use Form 

ACP–5 to request permission to handle 

minimum quantities of pistachios 

according to the provisions of 

redesignated § 983.53. To remain 

consistent with the redesignation of 

§ 983.47 as § 983.64, this rule would 

redesignate § 983.147 as § 983.164. 

The formal rulemaking proceeding 

includes amendments to § 983.70, 

which currently provides an exemption 

from certain handling regulations under 

the order for handlers of fewer than 

1,000 pounds of pistachios and 

authorizes the committee to recommend 

revised exemption levels. The 

amendment would raise the exemption 

level to 5,000 pounds. The section 

would also be redesignated as § 983.92. 

As authorized under § 983.70, § 983.170 

of the order’s administrative rules and 

regulations currently provides an 

exemption for handlers of fewer than 

5,000 pounds. If the proposed 

amendment to § 983.70 is approved by 

producers, § 983.170 would be 

redundant. Therefore, the committee 

recommended that § 983.170 be 

removed. Additionally, a reference to 

§ 983.170 in § 983.143 would be revised 

to reference the exemption level in 

redesignated § 983.92. Finally, proposed 


pwalker on DSK8KYBLC1PROD with PROPOSALS
45774 Federal Register / Vol. 74, No. 171 / Friday, September 4, 2009 / Proposed Rules 

amendments to § 983.43 would 

redesignate that section as § 983.55. To 

remain consistent with that 

redesignation, this rule would 

redesignate § 983.143 as § 983.155. 

Section 983.53 of the order authorizes 

the collection of assessments from 

handlers on receipts of pistachios. Such 

assessments are used to fund expenses 

of the committee. Section 983.253 

specifies the current assessment rate 

established for California pistachios. As 

explained above, the formal rulemaking 

proceeding includes an amendment to 

the order that would expand the 

production area to include California, 

Arizona, and New Mexico. Therefore, 

the committee recommended that 

paragraph (b) of § 983.253 be revised to 

establish an assessment rate applicable 

to all production area pistachios. To 

conform to the definition of the 

committee’s ‘‘production year’’ 

contained in the order, the language of 

paragraph (b) of § 983.253 would also be 

revised to specify that assessments are 

due to the committee by December 15 of 

the applicable production year. 

Initial Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) (5 

U.S.C. 601–612), the Agricultural 

Marketing Service (AMS) has 

considered the economic impact of this 

action on small entities. Accordingly, 

AMS has prepared this initial regulatory 

flexibility analysis. 

The purpose of the RFA is to fit 

regulatory actions to the scale of 

business subject to such actions in order 

that small businesses will not be unduly 

or disproportionately burdened. 

Marketing orders issued pursuant to the 

Act, and rules issued thereunder, are 

unique in that they are brought about 

through group action of essentially 

small entities acting on their own 

behalf. 

Small business firms, which include 

handlers regulated under the order, 

have been defined by the Small 

Business Administration (SBA) (13 CFR 

121.201) as those having annual receipts 

of less than $7,000,000. Small 

agricultural producers have been 

defined as those with annual receipts of 

less than $750,000. 

There are approximately 24 handlers 

and 800 producers of pistachios in 

California, the production area currently 

regulated under the order. If proposed 

amendments to the order are approved 

by producers, the production area could 

expand to include the states of Arizona 

and New Mexico. According to 

information provided by the industry, 

there are two handlers and 

approximately 45 pistachio producers in 

Arizona, and there are three handlers 

and approximately 30 producers in New 

Mexico. 

The committee has estimated that 

approximately 50 per cent of California 

handlers would be considered small 

businesses, as defined by SBA. The 

industry has estimated that one of the 

Arizona handlers and all three New 

Mexico handlers would also be 

considered small businesses. 

Data provided by the committee 

regarding the size of the 2007 crop, as 

well as data reported by the National 

Agricultural Statistics Service (NASS), 

suggests that the average California 

producer revenue for the 2007 crop was 

$733,200. It is estimated that 85 percent 

of California producers had receipts of 

less than $750,000 and would thus be 

considered small businesses according 

to the SBA definition. Although there is 

no official data available, the industry 

estimates that the majority of producers 

in Arizona and New Mexico would also 

be considered small businesses. 

Currently, the order regulates 

pistachios produced in California. The 

formal rulemaking proceeding includes 

amendments to the order that would 

expand the regulated production area to 

include Arizona and New Mexico, at the 

request of producers in those two states. 

Additional proposed amendments to the 

order would remove specific aflatoxin 

and quality regulations and testing 

procedures from the order’s provisions 

and replace them with general authority 

for the committee to recommend 

aflatoxin and quality regulations. This 

proposed rule would make changes to 

the order’s administrative rules and 

regulations by adding the specific 

aflatoxin regulations currently found in 

the order’s provisions and clarifying 

that the regulations pertain to handlers 

throughout the expanded production 

area. Certain language in the 

administrative rules and regulations 

section that is currently suspended, or 

that would be redundant or obsolete if 

the amendments are approved, would 

be removed or revised. References to 

order sections that have been 

redesignated would be revised to 

reference the renumbered sections. 

These changes were recommended by 

the committee to ensure a seamless 

transition in aflatoxin regulation if the 

amendments are approved and to 

conform to various changes to the 

order’s provisions. If the proposed 

amendments to the order are not 

approved by pistachio producers, this 

proposed rule would be withdrawn. 

Specifically, this proposed rule would 

remove § 983.138—Samples for testing, 

§ 983.141—Procedures for exempting 

handlers from minimum quality testing, 

and § 983.170—Handler exemption, 

from the order’s administrative rules 

and regulations. Conforming changes 

would be made to the language and 

references in §§ 983.143, 983.147, 

983.253 to reflect amendments to the 

order, such as the expansion of the 

production area to include Arizona and 

New Mexico and the redesignation of 

several order sections. Sections 983.143 

and 983.147 would be redesignated as 

§§ 983.155 and 983.164, respectively. 

Finally, two new sections, § 983.150— 

Aflatoxin regulations, and § 983.152— 

Failed lots/rework procedure, would be 

added to incorporate specific 

regulations concerning aflatoxin 

tolerance levels and testing procedures 

that would be removed from the order’s 

provisions if the amendments are 

approved. 

The impact of proposed amendments 

to the order on producers and handlers 

has been analyzed in the Secretary’s 

Decision published in the Federal 

Register on August 6, 2009, at 74 FR 

39230. It may be generally concluded 

from the final regulatory impact analysis 

that the order amendments would 

improve the operation and functioning 

of the marketing order program and that 

all producers and handlers would 

benefit regardless of size. The analysis 

examined the benefits and costs to 

producers and handlers as a result of the 

expansion of the production area to 

include Arizona and New Mexico and 

the regulation of handlers under the 

marketing order program, including 

aflatoxin certification requirements. 

Many of the amendments proposed in 

this rule simply change the location of 

the regulatory provisions concerning 

aflatoxin levels and testing from the 

order provisions to the regulations. 

Therefore, these proposed changes 

should have no effect upon California 

pistachio handlers of any size since they 

are currently required to comply with 

those requirements. With regard to 

application of aflatoxin certification 

requirements on Arizona and New 

Mexico handlers, that impact is fully 

considered in the previously referenced 

final regulatory flexibility analysis. The 

minimum quality provisions of the 

order have been suspended since 

December 10, 2007 (72 FR 69141), so 

there would be no effect on handlers if 

those provisions are removed. The 

revision of certain language, 

redesignation of some sections, and 

references to redesignated sections of 

the order that would be made to 

conform to the amended order are 

administrative in nature and would 

have no effect on producers or handlers 

of any size. 


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The changes in this proposed rule are 

necessary to conform to proposed 

amendments to the order. With regard to 

alternatives, if the amendments are 

approved by producers voting in the 

referendum, these changes should be 

made. As explained above, if the 

amendments are not approved by voters, 

this proposed rule would be withdrawn. 

This action would not impose any 

additional reporting or recordkeeping 

requirements on either small or large 

date handlers. As with all Federal 

marketing order programs, reports and 

forms are periodically reviewed to 

reduce information requirements and 

duplication by industry and public 

sector agencies. 

AMS is committed to complying with 

the E-Government Act, to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

USDA has not identified any relevant 

Federal rules that duplicate, overlap or 

conflict with this proposed rule. 

These proposed changes in this action 

were recommended by the committee 

on March 6, 2008, and submitted to 

AMS on May 28, 2008. The committee’s 

meeting was widely publicized 

throughout the pistachio industry and 

all interested persons were invited to 

attend and participate. All entities, both 

large and small, were able to express 

their views on the effects of the 

proposed amendments contained 

herein. 

Finally, interested persons are invited 

to submit comments on this proposed 

rule, including the regulatory and 

informational impacts of this action on 

small businesses. 

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/ 

AMSv1.0/ams.fetchTemplateData.do?

template=TemplateN&page=Marketing

OrdersSmallBusinessGuide. Any 

questions about the compliance guide 

should be sent to Jay Guerber at the 

previously mentioned address in the 

FOR FURTHER INFORMATION CONTACT

section. 

A 10-day comment period is provided 

to allow interested persons to respond 

to this proposal. Ten days is deemed 

appropriate because the proposed 

changes need to be made concurrently 

with any amendments made to the order 

itself. All written comments timely 

received will be considered before a 

final determination is made on this 

matter. 

A referendum is to be conducted on 

proposed amendments to the order on 

August 10–22, 2009. 

List of Subjects in 7 CFR Part 983 

Pistachios, Marketing agreements and 

orders, Reporting and recordkeeping 

requirements. 

For the reasons set forth in the 

preamble, 7 CFR part 983 is proposed to 

be amended as follows: 

PART 983—PISTACHIOS GROWN IN 

CALIFORNIA 

1. The authority citation for 7 CFR 

part 983 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

§ 983.138 [Removed] 

2. Section 983.138 is removed. 

§ 983.141 [Removed] 

3. Lift the December 10, 2007 

(published on Dec. 7, 2007, 72 FR 

69141), suspension of § 983.141, and 

remove the section. 

§ 983.143 [Redesignated as § 983.155 and 

Amended] 

4. Redesignate § 983.143 as § 983.155, 

and amend paragraph (b) by removing 

the reference ‘‘§ 983.170’’ and adding in 

their place the reference ‘‘§ 983.92.’’ 

§ 983.147 [Redesignated as § 983.164] 

5. Lift the December 10, 2007 

(published on Dec. 7, 2007, 72 FR 

69142), suspension of § 983.147(d), 

redesignate § 983.147 as § 983.164, and 

revise paragraph (d) of that section to 

read as follows: 

§ 983.164 Reports. 

* * * * * 

(d) ACP–5, Minimal Testing Form. 

Each handler who handles less than 

1,000,000 pounds of dried weight 

pistachios in a production year and who 

wishes to request permission to handle 

under the minimal quantities provisions 

(§ 983.53) of the order shall furnish this 

report to the committee office no later 

than August 1 of each production year. 

* * * * * 

6. Add new § 983.150 to read as 

follows: 

§ 983.150 Aflatoxin regulations. 

(a) Maximum level. No handler shall 

ship for domestic human consumption, 

pistachios that exceed an aflatoxin level 

of 15 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 the Failed Lots/Rework Procedure of 

this part (§ 983.152). 

(b) Change in level. The committee 

may recommend to the Secretary 

changes in the aflatoxin level specified 

in this section. If the Secretary finds, on 

the basis of such recommendation or 

other information, that such an 

adjustment of the aflatoxin level would 

tend to effectuate the declared policy of 

the Act, such change shall be made 

accordingly. 

(c) Transfers between handlers. 

Transfers between handlers within the 

production area are exempt from the 

aflatoxin regulation of this section. 

(d) Aflatoxin testing procedures. To 

obtain an aflatoxin inspection 

certificate, each lot to be certified shall 

be uniquely identified, be traceable from 

testing through shipment by the 

handler, and be subjected to the 

following: 

(1) Samples for testing. Prior to 

testing, a sample shall be drawn from 

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

weight to comply with Table 1 and 

Table 2 of this section. 

(2) Test samples for aflatoxin. Prior to 

submission of samples to an accredited 

laboratory for aflatoxin analysis, three 

samples shall be created equally from 

the pistachios designated for aflatoxin 

testing in compliance with the 

requirements of Tables 1 and 2 of this 

paragraph (‘‘test samples’’). The test 

samples shall be prepared by, or under 

the supervision of, an inspector, or as 

approved under an alternative USDArecognized 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 in-shell lot sample for aflatoxin 

testing and the number of incremental 

samples required are shown in Table 1. 

The gross weight of the kernel (shelled) 

lot sample for aflatoxin testing and the 

number of incremental samples required 

is shown in Table 2. 


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TABLE 1 TO § 983.150—INSHELL PISTACHIO LOT SAMPLING INCREMENTS FOR AFLATOXIN CERTIFICATION

Lot weight (lbs) 

Number of 

incremental 

samples for 

the lot sample 

Total weight of 

lot sample 

(kilograms) 

Weight of the 

test sample 

(kilograms) 

220 or less ................................................................................................................................... 10 3.0 1.0 

221–440 ....................................................................................................................................... 15 4.5 1.5 

441–1,100 .................................................................................................................................... 20 6.0 2.0 

1,101–2,200 ................................................................................................................................. 30 9.0 3.0 

2,201–4,400 ................................................................................................................................. 40 12.0 4.0 

4,401–11,000 ............................................................................................................................... 60 18.0 6.0 

11,001–22,000 ............................................................................................................................. 80 24.0 8.0 

22,001–150,000 ........................................................................................................................... 100 30.0 10.0 

TABLE 2 TO § 983.150—SHELLED PISTACHIO KERNEL LOT SAMPLING INCREMENTS FOR AFLATOXIN CERTIFICATION

Lot weight (lbs) 

Number of 

incremental 

samples for 

the lot sample 

Total weight of 

lot sample 

(kilograms) 

Weight of the 

test sample 

(kilograms) 

220 or less ................................................................................................................................. 10 1.5 0 .5 

221–440 ..................................................................................................................................... 15 2.3 0 .75 

441–1,100 .................................................................................................................................. 20 3.0 1 .0 

1,101–2,200 ............................................................................................................................... 30 4.5 1 .5 

2,201–4,400 ............................................................................................................................... 40 6.0 2 .0 

4,401–11,000 ............................................................................................................................. 60 9.0 3 .0 

11,001–22,000 ........................................................................................................................... 80 12.0 4 .0 

22,001–150,000 ......................................................................................................................... 100 15.0 5 .0 

(3) Testing of pistachios. Test samples 

shall be received and logged by an 

accredited laboratory and each test 

sample shall be prepared and analyzed 

using High Pressure Liquid 

Chromatograph (HPLC), Vicam Method 

(Aflatest), or other methods as 

recommended by not fewer than eight 

members of the committee and 

approved by the Secretary. The aflatoxin 

level shall be calculated on a kernel 

weight basis. 

(4) Certification of lots ‘‘negative’’ as 

to aflatoxin. Lots will be certified as 

‘‘negative’’ on the aflatoxin inspection 

certificate if Test Sample #1 has an 

aflatoxin level at or below 5 ppb. If the 

aflatoxin level of Test Sample #1 is 

above 25 ppb, the lot fails and the 

accredited laboratory shall fill out a 

failed lot notification report as specified 

in § 983.52. If the aflatoxin level of Test 

Sample #1 is above 5 ppb and below 25 

ppb, the accredited laboratory may at 

the handler’s discretion analyze Test 

Sample #2, and the test results of Test 

Samples #1 and #2 will be averaged. 

Alternatively, the handler may elect to 

withdraw the lot from testing, rework 

the lot, and resubmit it for testing after 

reworking. If the handler directs the 

laboratory to proceed with the analysis 

of Test Sample #2, the lot will be 

certified as negative to aflatoxin and the 

laboratory shall issue an aflatoxin 

inspection certificate if the averaged 

results of Test Sample #1 and Test 

Sample #2 are at or below 10 ppb. If the 

averaged aflatoxin level of Test Samples 

#1 and #2 is at or above 20 ppb, the lot 

fails and the accredited laboratory shall 

fill out a failed lot notification report as 

specified in § 983.52. If the averaged 

aflatoxin level of Test Samples #1 and 

#2 is above 10 ppb and below 20 ppb, 

the accredited laboratory may, at the 

handler’s discretion, analyze Test 

Sample #3, and the results of Test 

Samples #1, #2, and #3 will be averaged. 

Alternatively, the handler may elect to 

withdraw the lot from testing, rework 

the lot, and resubmit it for testing after 

reworking. If the handler directs the 

laboratory to proceed with the analysis 

of Test Sample #3, a lot will be certified 

as negative to aflatoxin and the 

laboratory shall issue an aflatoxin 

inspection certificate if the averaged 

results of Test Samples #1, #2, and #3 

are at or below 15 ppb. If the averaged 

aflatoxin results of Test Samples #1, #2, 

and #3 are above 15 ppb, the lot fails 

and the accredited laboratory shall fill 

out a failed lot notification report as 

specified in § 983.52. The accredited 

laboratory shall send a copy of the failed 

lot notification report to the committee 

and to the failed lot’s owner within 10 

working days of any failure described in 

this section. If the lot is certified as 

negative as described in this section, the 

aflatoxin inspection certificate shall 

certify the lot using a certification form 

identifying each lot by weight and date. 

The certification expires for the lot or 

remainder of the lot after 12 months. 

(5) Certification of aflatoxin levels. 

Each accredited laboratory shall 

complete aflatoxin testing and reporting 

and shall certify that every lot of 

pistachios shipped domestically does 

not exceed the aflatoxin levels as 

required in paragraph (a) of this section 

or as provided under § 983.50. Each 

handler shall keep a record of each test, 

along with a record of final shipping 

disposition. These records must be 

maintained for three years beyond the 

production year of their applicability, 

and are subject to audit by the Secretary 

or the committee at any time. 

(6) Test samples that are not used for 

analysis. If a handler does not elect to 

use Test Samples #2 or #3 for 

certification purposes, the handler may 

request that the laboratory return them 

to the handler. 

7. Add new § 983.152 to read as 

follows: 

§ 983.152 Failed lots/rework procedure. 

(a) Inshell rework procedure for 

aflatoxin. If inshell rework is selected as 

a remedy to meet the aflatoxin 

regulations of this part, then 100% of 

the product within that lot shall be 

removed from the bulk and/or retail 

packaging containers and reworked to 

remove the portion of the lot that caused 

the failure. Reworking shall consist of 

mechanical, electronic, or manual 

procedures normally used in the 


pwalker on DSK8KYBLC1PROD with PROPOSALS
Federal Register / Vol. 74, No. 171 / Friday, September 4, 2009 / Proposed Rules 45777 

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 

§ 983.150, except that the lot sample 

size and the test sample size shall be 

doubled. If, after the lot has been 

reworked and tested, it fails the 

aflatoxin test for a second time, the lot 

may be shelled and the kernels 

reworked, sampled, and tested in the 

manner specified for an original lot of 

kernels, or the failed lot may be used for 

non-human consumption or otherwise 

disposed of. 

(b) Kernel rework procedure for 

aflatoxin. If pistachio kernel rework is 

selected as a remedy to meet the 

aflatoxin regulations in § 983.150, then 

100% of the product within that lot 

shall be removed from the bulk and/or 

retail packaging containers and 

reworked to remove the portion of the 

lot that caused the failure. Reworking 

shall consist of mechanical, electronic, 

or manual procedures normally used in 

the handling of pistachios. After the 

rework procedure has been completed, 

the total weight of the accepted product 

and the total weight of the rejected 

product shall be reported to the 

committee. The reworked lot shall be 

sampled and tested for aflatoxin as 

specified in § 983.150. 

§ 983.170 [Removed] 

8. Section 983.170 is removed. 

9. Amend § 983.253 by removing the 

word ‘‘California’’ in paragraph (a), and 

by revising paragraph (b) to read as 

follows: 

§ 983.253 Assessment rate. 

* * * * * 

(b) Each handler who receives 

pistachios for processing shall furnish 

the Receipts/Assessment Report and pay 

all due assessments to the committee by 

December 15 of the applicable 

production year. 

Dated: August 31, 2009. 

Rayne Pegg, 

Administrator. 

[FR Doc. E9–21352 Filed 9–3–09; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 25 

[Docket No. FAA–2009–0810; Notice No. 09– 

10] 

RIN 2120–AJ21 

Design Maneuvering Speed Limitation 

Statement 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: The Federal Aviation 

Administration proposes to amend the 

airworthiness standards applicable to 

transport category airplanes to clarify 

that flying at or below the design 

maneuvering speed does not allow a 

pilot to make multiple large control 

inputs in one airplane axis or single full 

control inputs in more than one airplane 

axis at a time without endangering the 

airplane’s structure. This proposed 

regulation is the result of an accident 

investigation and responds to a National 

Transportation Safety Board 

recommendation. The results of the 

accident investigation indicate that 

many pilots might have a general 

misunderstanding of what the design 

maneuvering speed (VA) is and the 

extent of structural protection that exists 

when an airplane is operated at speeds 

below its VA. This action is being taken 

to prevent this misunderstanding from 

causing or contributing to a future 

accident. 

DATES: 

Send your comments on or before 

November 3, 2009. 

ADDRESSES: You may send comments 

identified by Docket Number [Insert 

docket number, for example, FAA– 

200X–XXXXX] using any of the 

following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and follow 

the online instructions for sending your 

comments electronically. 

• Mail: Send comments to Docket 

Operations, M–30; U.S. Department of 

Transportation, 1200 New Jersey 

Avenue, SE., Room W12–140, West 

Building Ground Floor, Washington, DC 

20590–0001. 

• Hand Delivery or Courier: Bring 

comments to Docket Operations in 

Room W12–140 of the West Building 

Ground Floor at 1200 New Jersey 

Avenue, SE., Washington, DC, between 

9 a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. 

• Fax: Fax comments to Docket 

Operations at 202–493–2251. 

For more information on the 

rulemaking process, see the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Privacy: We will post all comments 

we receive, without change, to http:// 

www.regulations.gov, including any 

personal information you provide. 

Using the search function of our docket 

Web site, anyone can find and read the 

electronic form of all comments 

received into any of our dockets, 

including the name of the individual 

sending the comment (or signing the 

comment for an association, business, 

labor union, etc.). You may review 

DOT’s complete Privacy Act Statement 

in the Federal Register published on 

April 11, 2000 (65 FR 19477–78) or you 

may visit http://DocketsInfo.dot.gov. 

Docket: To read background 

documents or comments received, go to 

http://www.regulations.gov at any time 

and follow the online instructions for 

accessing the docket. Or, go to Docket 

Operations in Room W12–140 of the 

West Building Ground Floor at 1200 

New Jersey Avenue, SE., Washington, 

DC between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Technical Information: Don Stimson, 

FAA, Airplane and Flight Crew 

Interface Branch, ANM–111, Transport 

Airplane Directorate, Aircraft 

Certification Service, 1601 Lind 

Avenue, SW., Renton, WA 98057–3356; 

telephone (425) 227–1129; facsimile 

(425) 227–1149, e-mail 

don.stimson@faa.gov. 

Legal Information: Douglas Anderson, 

FAA, Office of the Regional Counsel, 

ANM–7, Northwest Mountain Region, 

1601 Lind Avenue, SW., Renton, WA 

98057–3356; telephone (425) 227–2166; 

facsimile (425) 227–1007, e-mail 

douglas.anderson@faa.gov. 

SUPPLEMENTARY INFORMATION: Later in 

this preamble under the Additional 

Information section, we discuss how 

you can comment on this proposal and 

how we will handle your comments. 

Included in this discussion is related 

information about the docket, privacy, 

and the handling of proprietary or 

confidential business information. We 

also discuss how you can get a copy of 

this proposal and related rulemaking 

documents. 

Authority for This Rulemaking 

The FAA’s authority to issue rules on 

aviation safety is found in Title 49 of the 

United States Code. Subtitle I, section 

106 describes the authority of the FAA 

Administrator. Subtitle VII, Aviation 


pwalker on DSK8KYBLC1PROD with PROPOSALS