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

65411 

Vol. 76, No. 204 

Friday, October 21, 2011 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 999 

[Doc. No. AMS–FV–09–0064; FV09–999–1 

PR] 

Specialty Crops; Import Regulations; 

Proposed Pistachio Import 

Requirements 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule invites 

comments on the establishment of a 

minimum quality regulation for lots of 

pistachios imported into the United 

States. The regulation would specify 

maximum aflatoxin tolerance levels as 

well as mandatory aflatoxin testing and 

certification requirements. The 

proposed import quality requirements 

would be the same as or comparable to 

those in effect for the domestically 

produced commodity. Under this 

proposal, aflatoxin levels in imported 

pistachios could not exceed 15 parts per 

billion (ppb), as certified by aflatoxin 

inspection certificates issued by an 

accredited laboratory. This action is 

intended to assure consumers that all 

pistachios offered for sale in the United 

States meet the same aflatoxin 

standards, thus promoting high quality 

product in the market place and 

fostering consumer satisfaction. This 

rule also announces the Agricultural 

Marketing Service’s (AMS) intention to 

request approval by the Office of 

Management and Budget (OMB) of a 

new information collection requirement, 

including two new forms that would be 

completed by either laboratories or 

pistachio importers. 

DATES: Comments must be received by 

December 20, 2011. Pursuant to the 

Paperwork Reduction Act, comments on 

the forms and information collection 

burden must be received by December 

20, 2011. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this proposal. Comments 

should be sent to the Docket Clerk, 

Marketing Order and Agreement 

Division, 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. All 

comments should reference the 

document 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: 

Laurel May or Kathleen Finn, Marketing 

Order and Agreement Division, Fruit 

and Vegetable Programs, AMS, USDA, 

1400 Independence Avenue, SW., STOP 

0237, Washington, DC 20250–0237; 

Telephone: (202) 720–2491, Fax: (202) 

720–8938, or E-mail: 

Laurel.May@ams.usda.gov or 

Kathy.Finn@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Laurel May at 

the above mentioned address. 

SUPPLEMENTARY INFORMATION: This 

proposed rule is issued under section 8e 

of the Agricultural Marketing 

Agreement Act of 1937, as amended (7 

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

as the ‘‘Act,’’ which provides that 

whenever the grade, size, quality, or 

maturity of certain specified 

commodities, including pistachios, are 

regulated under a Federal marketing 

order, imports of these commodities 

into the United States are prohibited 

unless they meet the same or 

comparable grade, size, quality, and 

maturity requirements as those in effect 

for the domestically produced 

commodities. To ensure that these 

requirements are met, the Act also 

authorizes the Department of 

Agriculture (USDA) to perform 

inspections and related functions such 

as commodity sampling, and to issue 

inspection certificates for such imported 

commodities. 

USDA is issuing this rule in 

conformance with Executive Order 

12866. 

There are no administrative 

procedures that must be exhausted prior 

to any judicial challenge to the 

provisions of import regulations issued 

under section 8e of the Act. 

This proposed rule would add a new 

§ 999.600 under 7 CFR part 999— 

Specialty Crops; Import Regulations, 

and would establish quality 

requirements for maximum aflatoxin 

tolerance levels and mandatory testing 

and certification requirements for 

pistachios offered for importation into 

the United States. The proposed quality 

requirements for imported pistachios 

are the same as or comparable to those 

established for pistachios grown in 

California, Arizona, and New Mexico 

under Marketing Agreement and Order 

No. 983 (7 CFR part 983) (order), both 

as amended. 

This proposed rule would also revise 

§ 999.500, which currently specifies 

safeguard procedures for the 

importation of walnuts and dates that 

are exempt from § 8e regulations. This 

section would be revised to include 

safeguard procedures for the 

importation of pistachios intended for 

exempted purposes. 

The order prohibits the shipping of 

pistachios for domestic human 

consumption that do not meet the 

quality requirements for aflatoxin levels 

in the nuts. Such quality requirements 

specify that aflatoxin levels may not 

exceed the maximum tolerance of 15 

ppb. Pistachios that fail to meet these 

requirements must be reworked and 

retested, or disposed of as specified in 

the order. These regulations were 

designed to ensure that only high 

quality pistachios containing low levels 

of aflatoxin are shipped, thus promoting 

high quality product in the market place 

and fostering consumer satisfaction. 

The order, which was established for 

California pistachios in 2004, was 

recently amended to include the states 

of Arizona and New Mexico. Pistachios 

grown in California, Arizona, and New 

Mexico represent over 99 percent of the 

U.S. domestic production, and 98 

percent of the domestic consumption. 

Thus, almost all domestically produced 

pistachios are regulated under 

Marketing Order No. 983. There is no 


jlentini on DSK4TPTVN1PROD with PROPOSALS
65412 Federal Register / Vol. 76, No. 204 / Friday, October 21, 2011 / Proposed Rules 

1 Gibbons, Jeff; 2002. Testimony in Pistachios 

Grown in California; Hearing on Proposed 

Marketing Agreement and Order No. 983. Pages 

326–359. 

2Sumner, Daniel A; 2002. Testimony in 

Pistachios Grown in California; Hearing on 

Proposed Marketing Agreement and Order No. 983. 

2002. Pages 698–735 and 747–820. 

3Reinecke, Karen; 2002. Testimony in Pistachios 

Grown in California; Hearing on Proposed 

Marketing Agreement and Order No. 983. Pages 

152–183. 

4 Gibbons, Jeff; 2002. Testimony in Pistachios 

Grown in California; Hearing on Proposed 

Marketing Agreement and Order No. 983. 2002. 

Pages 326–359. 

5Eaton, David L.; Jennifer E. Hobden; and Bruce 

J. Kelman. 2002. Aflatoxin in Pistachios: 

Establishing a Regulatory Action Level in Support 

of a Proposed Federal Marketing Order. 11 pages. 

6 7 CFR part 996—Minimum Quality and 

Handling Standards for Domestic and Imported 

Peanuts Marketed in the United States. 

other Federal marketing order in effect 

for pistachios produced in the United 

States. 

According to USDA’s Foreign 

Agricultural Service (FAS), Iran is 

typically the world’s largest pistachio 

producer, followed by the U.S. and 

Turkey, although Syria’s production has 

increased in recent years. During the 

three most recent crop years (September 

through August) for which complete 

data is available, 2007–08 through 

2009–10, the production averages in 

millions of pounds (inshell basis) for 

Iran, the U.S., Turkey, and Syria were 

approximately 386, 350, 120, and 141, 

respectively. 

Historically, the bulk of U.S. pistachio 

imports have come from Turkey and 

Iran, although Iranian imports have 

been prohibited since July 2010. The 

remainder comes from other countries, 

including Italy, China, Switzerland, 

France, Australia, Hong Kong, and 

Israel. Imported pistachios may be 

inshell or shelled. According to FAS, 

the U.S. imported an average of 

approximately 1.7 million pounds of 

pistachios (inshell basis) annually 

during the three crop years from 2007– 

08 through 2009–10. Average U.S. 

consumption of pistachios during that 

same period was approximately 100 

million pounds (inshell basis) annually. 

Imports, therefore, represent 

approximately two percent of U.S. 

pistachio consumption. 

Proposed Requirements 

Definitions 

The proposed regulations would 

include definitions of terms used in the 

import regulation. Such terms are the 

same as or comparable to those defined 

in the marketing order for domestic 

pistachios as established at 69 FR 17844 

(April 5, 2004) and amended at 74 FR 

56532 (November 2, 2009). 

Under the proposed regulations, 

‘‘pistachio’’ would mean the nut of the 

pistachio tree, Pistachia vera, whether 

inshell or shelled. ‘‘Importer’’ would be 

defined as a person who imports 

pistachios into the United States. 

‘‘Aflatoxin’’ would be defined as a 

mycotoxin that can be found in nuts, 

dried fruits, and grains. ‘‘Aflatoxin 

inspection certificate’’ would mean a 

certificate issued by a USDA or USDAaccredited laboratory. ‘‘USDA 

laboratory’’ and ‘‘USDA-accredited 

laboratory’’ would be defined as 

laboratories authorized to test imported 

pistachios for aflatoxin content. 

‘‘Inspector’’ would mean any inspector 

authorized by USDA to draw and 

prepare pistachio samples for testing. 

‘‘Lot’’ would mean any quantity of 

pistachios submitted for testing. Other 

terms useful in the administration of the 

import regulation would also be 

defined. 

Maximum Aflatoxin Tolerance 

The presence or absence of aflatoxin 

is considered a quality characteristic in 

pistachios 1 because concerns about 

aflatoxin contamination can impact 

consumers’ perception of the quality of 

pistachios, and therefore negatively 

impact demand. According to research 

provided by the industry, poor quality 

pistachios impact demand and the 

potential growth of demand for 

pistachios.2 Moreover, any market 

disturbances related to aflatoxin in 

pistachios, regardless of the origin of 

those pistachios, could have a 

detrimental effect on the pistachio 

industry.3

The proposed regulations would 

establish a maximum aflatoxin tolerance 

level of 15 ppb for lots of pistachios 

imported into the U.S. for human 

consumption. As required under section 

8e of the Act, this is the same level 

currently prescribed for domestic 

pistachios regulated under the order. 

Establishing a 15 ppb limit for aflatoxin 

in all pistachios marketed for human 

consumption in the United States is 

expected to bolster overall consumer 

confidence in pistachio quality and 

strengthen the demand for pistachios. 

Comparatively, the international Codex 

Alimentarius Commission’s (Codex) 

maximum aflatoxin tolerance for 

pistachios is 10 ppb. The domestic 

pistachio industry believes that 15 ppb 

is appropriate to ensure the quality of 

pistachios sold in U.S. markets,4

Research also supports the 15 ppb 

tolerance.5 Additionally, a 15 ppb 

tolerance for aflatoxin in domestic and 

imported pistachios is consistent with 

existing regulations for all domestic and 

imported peanuts marketed in the 

United States, for which USDA has 

established a 15 ppb aflatoxin 

tolerance.6

Aflatoxin Sampling and Testing 

Procedures 

The proposed regulations provide for 

aflatoxin sampling procedures based on 

lot size. Such sampling procedures are 

the same as or comparable to those 

established for domestic shipments, and 

mirror the sampling procedures 

prescribed for pistachio shipments to 

the European Union. At the discretion 

of the importer, pistachio lots arriving at 

a U.S. port of entry would be 

warehoused near the port or shipped 

inland to a pistachio handling facility to 

await aflatoxin sampling and testing. 

Importers would be responsible for any 

transportation or storage fees incurred. 

Depending on the size of the lot, a 

specified number of incremental 

samples would be pulled and combined 

to form a lot sample. The lot sample 

would then be divided into smaller test 

samples, depending upon the size of the 

lot to be tested. The required weight of 

lot samples and test samples differs 

between inshell pistachios and shelled 

kernels because of the additional weight 

of the shells for inshell pistachios. The 

drawing and dividing of all samples 

must be conducted by or under the 

supervision of a Federal or Federal-State 

inspector. 

Following the drawing and dividing 

of samples, each sample would be 

properly identified and submitted to a 

USDA or USDA-accredited laboratory 

for analysis. Test samples would be 

prepared and analyzed using High 

Pressure Liquid Chromatography 

(HPLC) or the Vicam Method (Aflatest). 

The aflatoxin level would be calculated 

on a kernel weight basis. 

For lots of up to 4,400 lbs, one test 

sample would be analyzed. If the 

sample has an aflatoxin level at or 

below 15 ppb, the lot could be certified 

as negative for aflatoxin on the aflatoxin 

inspection certificate, which would be 

completed by the laboratory. If the 

aflatoxin level is greater than 15 ppb, 

the lot fails, and the laboratory would 

fill out a failed lot notification report for 

submission to the importer, the U.S. 

Customs and Border Protection 

(Customs), and USDA. 

For lots of more than 4,400 lbs, two 

test samples would be prepared. If the 

first sample has an aflatoxin level at or 

below 10 ppb, the lot could be certified 

as negative for aflatoxin on the aflatoxin 

inspection certificate. Analysis of the 

other test sample would be unnecessary. 


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Federal Register / Vol. 76, No. 204 / Friday, October 21, 2011 / Proposed Rules 65413 

If the aflatoxin level of the first test 

sample is above 20 ppb, the lot fails, 

and the laboratory would fill out a failed 

lot notification report for submission to 

the importer, Customs, and USDA. If the 

aflatoxin level of the first test sample is 

higher than 10 ppb and at or below 20 

ppb, the importer could elect to test the 

second sample or rework the lot and 

resubmit it for testing. If the importer 

chooses to proceed with testing the 

second sample, the results from testing 

both samples would be averaged. If the 

average results are at or below 15 ppb, 

the lot may be certified negative for 

aflatoxin. If the average results are 

higher than 15 ppb, the lot fails and the 

accredited lab would submit a failed lot 

notification report to the importer, 

Customs, and USDA. If the importer 

chooses to rework the lot after the first 

sample is analyzed, the lot would again 

be subject to sampling and testing as if 

it were a new lot. 

If an aflatoxin inspection certificate is 

issued certifying that a lot is negative for 

aflatoxin at any stage of the sequential 

testing (meaning that the lot’s aflatoxin 

content is below the maximum 

threshold), the certification would state 

that the lot meets the § 8e import 

aflatoxin requirements. The certification 

would expire after 12 months. 

Upon notification of any failed lot, the 

importer would work with Customs to 

determine the appropriate disposition of 

the pistachios. Pistachios that fail to 

meet the aflatoxin requirements would 

be required to be sold for non-human 

consumption, exported to another 

destination with a higher aflatoxin 

tolerance, or disposed of under the 

supervision of Customs, and the Federal 

or Federal-State Inspection Programs 

could be called upon to verify disposals. 

Any costs associated with certifying a 

disposal would be paid by the importer. 

Rework Procedures 

Although reworking and retesting of a 

failed lot would not be required, 

importers could opt to take those steps, 

which would provide them with an 

opportunity to secure a return for their 

imported product while maintaining the 

integrity of the aflatoxin requirements. 

The alternative would be to dispose of 

the lot through proper channels as 

described above. The rework procedures 

described below are the same as or 

comparable to those required for 

domestic pistachios under the order. 

Inshell pistachios. Rework procedures 

for inshell pistachios failing to meet 

aflatoxin requirements would require 

importers to remove 100 percent of the 

failing lot from its bulk or retail 

packaging. These pistachios would be 

required to pass through the sorting 

stages of the handling process in order 

to remove those nuts having the 

characteristics most susceptible to 

harboring aflatoxin. After reworking the 

lot, the importer would report the 

weight of the total accepted and rejected 

product to Customs and USDA on a 

rework and failed lot disposition report, 

and the acceptable portion of the 

reworked lot would be resampled and 

tested for aflatoxin. In the case of a 

reworked lot, the lot sample size and the 

test sample size would be doubled from 

that specified in the initial testing. If, 

after having been reworked, the lot fails 

aflatoxin testing for a second time, the 

lot could be shelled and the kernels 

reworked, sampled, and tested in the 

manner required for an original lot of 

pistachio kernels. If the importer 

decides not to pursue further reworking 

of the failed lot, those pistachios would 

be prohibited from entering the stream 

of commerce for domestic human 

consumption. The lot must be exported, 

sold for domestic non-human 

consumption purposes, or disposed of 

as described above. The importer would 

report the lot’s final disposition to 

Customs and USDA on a rework and 

failed lot disposition report. 

Shelled pistachios. Rework 

procedures proposed for pistachio 

kernels failing to test negative for 

aflatoxin would also require a 

reprocessing of 100 percent of the 

volume of the failing lot. As with inshell 

pistachios, after reworking, the total 

weight of the accepted product and the 

total weight of the rejected product 

would be reported by the importer to 

Customs and USDA on the rework and 

failed lot disposition report. The 

reworked lot of kernels would be 

resampled and retested for aflatoxin 

content as previously described. 

Comingling 

Importers could comingle certified 

lots with other certified lots of 

pistachios. However, to maintain the 

integrity of certified lots, the comingling 

of certified and uncertified lots of 

pistachios would cause the loss of 

certification for the comingled lots. 

Exemptions 

Section 983.70 of the marketing order 

provides that domestic handlers may 

handle pistachios free of the regulatory 

and assessment provisions of the order 

if such pistachios are handled in 

quantities not exceeding 5,000 dried 

pounds during any production year. The 

purpose of this provision is to provide 

an exemption from the requirements of 

the order for small quantities of 

pistachios such as those that are grown 

for home or personal use. Further, this 

exemption is applied on a production 

year basis. Accordingly, under the 

proposed import regulation, a 

comparable 5,000-pound exemption 

would apply to all shipments of 

pistachios imported for human 

consumption. Also, substandard 

pistachios imported for use in nonhuman consumption outlets would not 

be subject to the proposed aflatoxin 

regulations. 

Compliance 

Any importer who violates any 

provision of the proposed import 

regulations would be subject to a 

forfeiture in the amount prescribed in 

section 608a(5) of the Act (7 U.S.C. 601– 

674), or, upon conviction, penalties in 

the amounts prescribed in section 

608c(14) of the Act, or to both forfeiture 

and penalty. False representation to any 

agency of the United States on any 

matter within its jurisdiction, knowing 

it to be false, is a violation of 18 U.S.C. 

1001, which provides for a fine or 

imprisonment or both. 

Safeguards 

Safeguard procedures in the form of 

importer and receiver reporting 

requirements would be used to ensure 

that substandard pistachios imported for 

purposes other than human 

consumption would be used only in 

authorized outlets exempt from the 

proposed aflatoxin regulations. The 

safeguard procedures would be 

comparable to those currently specified 

for the importation of other exempted 

commodities. Under the proposed 

regulations, importers and receivers of 

pistachios for other than human 

consumption purposes would be 

required to complete and submit to 

USDA an Importer’s Exempt 

Commodity Form (Form FV–6), the 

generic form used by importers and 

receivers of other exempted 

commodities. The information provided 

on Form FV–6 would be used by USDA 

to track pistachios marketed for 

exempted uses. 

The provisions of this proposed rule 

would establish maximum aflatoxin 

tolerance levels and mandatory testing 

and certification requirements for lots of 

pistachios offered for importation into 

the United States. The proposed import 

quality requirements would be 

implemented in accordance with 

section 8e of the Act. These provisions 

are intended to ensure that pistachios 

imported into the United States for the 

purposes of domestic human 

consumption are of a quality 

comparable to those pistachios 

regulated under Marketing Order No. 


jlentini on DSK4TPTVN1PROD with PROPOSALS
65414 Federal Register / Vol. 76, No. 204 / Friday, October 21, 2011 / Proposed Rules 

983 and contain no more than 15 ppb 

of aflatoxin. 

Initial Regulatory Flexibility Analysis 

Pursuant to the 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 

proposed rule 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. Import regulations issued under 

the Act are based on those established 

under Federal marketing orders. 

Small agricultural service firms, 

which include importers and receivers, 

have been defined by the Small 

Business Administration (SBA) (13 CFR 

121.201) as those having annual receipts 

of less than $7,000,000. 

AMS estimates that the there are 

approximately 50 importers and 

receivers who handled shipments of 

pistachios into the United States 

between 2007 and 2009. About 10 of the 

50 firms are also substantially engaged 

in the marketing of U.S. grown 

pistachios, and are large firms according 

to the SBA definition. Most of the 

remaining 40 firms import a number of 

different food products, and most are 

also likely to be large firms under the 

SBA definition, even though they 

generally import only small quantities 

of pistachios. There are also nine USDAaccredited laboratories in California that 

perform aflatoxin testing for pistachios. 

AMS estimates that four of the nine 

laboratories would be considered small 

firms according to the SBA definition. 

Turkey and Iran have historically 

been the source of most pistachios 

imported into the U.S. Turkish 

pistachios are imported predominantly 

in the shell, while Iranian pistachios are 

typically imported shelled. Imported 

pistachios also come from Italy, China, 

Switzerland, France, Australia, Hong 

Kong, and Italy. Most pistachios 

imported from other nations are also 

shelled. The proposed import 

regulations would establish protocols 

for aflatoxin analysis for both inshell 

and shelled pistachios. 

Section 8e of the Act provides that 

when certain domestically produced 

commodities, including pistachios, are 

regulated under a Federal marketing 

order, imports of that commodity must 

meet the same or comparable grade, 

quality, size, and maturity requirements. 

This rule would establish a minimum 

quality requirement for lots of imported 

pistachios by specifying a maximum 

aflatoxin tolerance level as well as 

aflatoxin testing and certification 

requirements. Importers would be 

responsible for arranging for the 

required transportation, storage, 

sampling, testing, and certification of 

such pistachios prior to importation. 

Sampling would be conducted by the 

Federal or Federal-State inspection 

services, and aflatoxin testing and 

certification would be performed by 

USDA or USDA-accredited laboratories. 

The proposed import aflatoxin testing 

and certification requirements are the 

same as or comparable to those 

implemented under the order regulating 

the handling of pistachios grown in 

California, Arizona, and New Mexico. 

Pistachios failing to meet the aflatoxin 

requirements on initial analysis could 

be reworked and retested, exported to 

another destination with a higher 

aflatoxin tolerance, or disposed of in 

authorized outlets under the 

supervision of Customs, with assistance 

from the inspection service if necessary, 

to verify proper disposal of substandard 

nuts. Procedures for these activities also 

are proposed. Lots of imported 

pistachios that fail aflatoxin testing 

could be diverted to certain non-human 

consumption outlets and would be 

subject to the safeguard provisions of 

§ 999.500. Some reporting and 

recordkeeping requirements also are 

proposed in the pistachio import 

regulation. These requirements also are 

the same as or comparable to those 

implemented under the order. 

The cost of testing pistachios for 

aflatoxin would vary, depending on 

such factors as the location of the port 

of entry and the size of the lot to be 

tested. For purposes of estimating an 

average per-pound testing expense for 

imported pistachios, this analysis 

assumes an average lot equal to one 

container load weighing 16,000 pounds 

of inshell pistachios arriving at the Port 

of San Francisco and being tested for 

aflatoxin by an accredited laboratory in 

Fresno, California. 

In the following example computation 

of testing costs, there are four elements: 

(1) A fee (at an hourly rate) charged by 

the inspection fee to draw the sample, 

(2) overnight shipping, (3) a fee charged 

by the laboratory to determine the level 

of aflatoxin, and (4) the ‘‘unit value’’ of 

the quantity of pistachios drawn for the 

sample. The unit value used in this 

example computation is the average for 

the last 3 complete marketing years for 

which import data are available, 2007/ 

08–2009/10. The unit value for the 3- 

year period ($1.68 per pound) is 

computed by dividing the average 3- 

year import value ($2,900,000) by the 

average import quantity (1,725,000 

pounds). Data are from FAS. 

The inspection service fee of $74 per 

hour is multiplied by the estimated time 

of 2 hours to draw a sample, for a cost 

of $148. The overnight shipping cost 

and laboratory fee are estimated at $200 

and $100, respectively. 

The next step in the example 

computation is value of pistachios 

drawn for the sample. Under the new 

proposed section 996.600, in section (d) 

Sampling, the weight of a lot sample is 

16 kilograms (equivalent to 35.3 

pounds) for a lot weighing between 

11,001 and 22,000 pounds. Multiplying 

35.3 pounds times the unit value of 

imported pistachios ($1.68) yields a 

value of the tested sample of 

approximately $59. Assuming that 

aflatoxin certification of the 16,000- 

pound lot requires the testing of only 

one sample, the sum of the four cost 

elements would be $507, or 

approximately 3.2 cents per pound 

(approximately two percent of the unit 

value of imported pistachios). 

It is likely that a pistachio lot arriving 

at the Port of San Francisco would be 

transported to an inland handling 

facility to await sampling and testing 

and would incur no additional storage 

costs. However, if the lot is stored at a 

Customs warehouse near the port, 

storage fees ranging between $100 and 

$500 per day could be incurred while 

the samples are analyzed. Analysis and 

certification is estimated to require 

between two to five days. Assuming a 

three day turnaround for a lot incurring 

$200 per day storage fees, 

approximately $600, or 3.75 cents per 

pound of pistachios could be added to 

the testing expense described above. 

Regarding the impact of this proposed 

rule on affected entities, this proposal 

would establish an import regulation for 

pistachios as provided in section 8e of 

the Act. The proposed import regulation 

would require importers to arrange for 

the testing and certification of all 

imports of pistachios for human 

consumption prior to importation. 

There would be some increased costs to 

importers associated with the testing 

and certification of imported product. 

However, it is expected that consumer 

satisfaction, and therefore demand, 

would be increased by regulating 

imports and domestic product 

uniformly. The additional costs are 

expected to be offset by the benefits of 

supplying the U.S. marketplace with 

only high quality pistachios. As 


jlentini on DSK4TPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 204 / Friday, October 21, 2011 / Proposed Rules 65415 

mentioned above, the proposed import 

regulations are the same as or 

comparable to those established for U.S. 

domestic pistachio shipments. The 

domestic industry recently adopted 

aflatoxin sampling and testing 

procedures that align with the Codex 

Alimentarius Commission’s (Codex) 

sampling plan (75 FR 43045; July 23, 

2010). The Codex sampling plan is used 

by the European Commission as its 

regulation for the importation of tree 

nuts into the European Union. Thus, the 

proposed import regulations are 

comparable to those widely recognized 

by international pistachio markets. 

Industry information suggests that 

when aflatoxin levels in imported lots of 

pistachios exceed the FDA maximum 

tolerance of 20 ppb, the levels are 

generally significantly higher than 20 

ppb. Very few lots test between 15 ppb 

and 20 ppb. It is anticipated that most 

imported lots will test below the 

proposed 15 ppb tolerance. Thus, 

establishing a maximum aflatoxin 

tolerance of 15 ppb for imported 

pistachios is not expected to have a 

significant impact on trade. 

The alternative to this action is to 

continue to allow pistachios to be 

imported without having to meet 

aflatoxin requirements the same as or 

comparable to those established for 

domestic pistachios. However, the 

import regulations are necessary to 

ensure that imported and domestic 

pistachios for human consumption in 

the United States are of uniformly high 

quality. Further, the Act requires that 

import regulations be issued whenever 

marketing order regulations are 

established for pistachios. Therefore, 

this alternative is not appropriate. 

The additional reporting and 

recordkeeping requirements that would 

be imposed under this proposed rule are 

discussed in more detail below. Reports 

and forms required under the pistachio 

import regulation will be periodically 

reviewed to reduce information 

requirements and duplication by 

industry and public sector agencies. 

Additionally, except for the 

applicable domestic regulations, USDA 

has not identified any relevant Federal 

rules that duplicate, overlap, or conflict 

with this proposed rule. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: http://www.ams.usda.gov/ 

MarketingOrdersSmallBusinessGuide. 

Any questions about the compliance 

guide should be sent to Laurel May at 

the previously mentioned address in the 

FOR FURTHER INFORMATION CONTACT

section. 

In accordance with section 8e of the 

Act, the United States Trade 

Representative has concurred with the 

issuance of this proposed rule. 

Interested persons are invited to 

comment on this initial regulatory 

flexibility analysis and submit 

information on the regulatory and 

informational impacts this proposed 

action would likely have on small 

businesses. A 60-day period for 

comments is provided. All written 

comments received within the comment 

period will be considered before a final 

determination is made on this matter. 

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. 

Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

chapter 35), this notice announces that 

AMS is requesting OMB approval of a 

new information collection under OMB 

No. 0581–NEW. Upon approval of this 

new information collection by OMB, a 

request will be made to merge this 

collection with the forms currently 

approved for use under OMB No. 0581– 

0215, Pistachios Grown in California, 

Arizona, and New Mexico. 

Title: Pistachios Imported Into the 

United States. 

OMB Number: 0581–New. 

Type of Request: New information 

collection. 

Abstract: The information collection 

requirements contained in this request 

are necessary in the administration of 

proposed regulations for pistachios 

imported into the United States. Such 

regulations are authorized under 

Section 8e of the Agricultural Marketing 

Agreement Act of 1937 (Act), as 

amended (7 U.S.C. 601–674), which 

requires that whenever the Secretary of 

Agriculture issues grade, size, quality, 

or maturity regulations under domestic 

marketing orders for certain 

commodities, the same or comparable 

regulations on imports of those 

commodities must be issued. 

The proposed rule would establish 

mandatory aflatoxin testing and 

certification requirements for pistachios 

offered for importation into the United 

States. These requirements would be the 

same as or comparable to those 

established under Marketing Order No. 

983 regulating the handling of 

pistachios grown in California, Arizona, 

and New Mexico. 

Under the proposed regulation, 

laboratories that perform chemical 

analysis of aflatoxin content for 

imported pistachios would be required 

to report any lots that fail aflatoxin 

testing. The Imported Pistachios— 

Failed Lot Notification Report (FV–249) 

would be completed by the laboratory 

and submitted to the importer, Customs, 

and USDA within 10 days of the failed 

test. This report would contain 

information about the failed lot, 

including its identity and the aflatoxin 

level determined during analysis of the 

lot. 

Under the proposed regulations, 

importers would be required to report 

the disposition of any failed lots, 

including those that are reworked to 

meet the aflatoxin requirements, on the 

Imported Pistachios—Rework and 

Failed Lot Disposition Report (FV–251). 

This report would contain information 

about the quantity of nuts that were 

accepted and rejected during rework, 

and would be used to report the 

disposition of any pistachios failing 

aflatoxin testing. Importers would be 

required to complete and submit the 

form to Customs and USDA within 10 

days of reworking the lot. 

USDA and Customs would use the 

two reports described above to track 

pistachio lots being offered for 

importation into the United States and 

follow up on the disposition of failing 

lots to ensure that pistachios with 

aflatoxin levels exceeding the maximum 

tolerance of 15 ppb are not shipped to 

domestic human consumption markets. 

Safeguard procedures in the form of 

importer and receiver reporting 

requirements would be used to ensure 

that shipments of pistachios exempt 

from the import regulations are 

disposed of only in authorized exempt 

outlets. Under the proposed import 

regulations, importers of exempt 

imported pistachios would be required 

to complete and submit, prior to 

importation, an Importer’s Exempt 

Commodity Form (FV–6). Form FV–6 

would be used for tracking pistachios 

marketed for exempted uses that do not 

meet requirements for human 

consumption. Form FV–6 is an 

electronic form available through AMS, 

is used by importers of other 

commodities to report imports of 

exempted products, and is already 

approved by OMB through December 

31, 2011 (OMB Control Number 0581– 

0167—Specified Commodities Imported 

into the United States Exempt From 

Import Regulations). Importers and 

receivers register as users of the 

electronic form and then are granted 

access to the reporting system. Receivers 

use the same system to certify that the 

commodity has been received and that 


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it will be utilized for authorized exempt 

purposes. 

The two new forms require the 

minimum amount of information 

necessary to effectively carry out the 

requirements of the Act, and their use 

is necessary to fulfill the intent of the 

Act and to administer section 8e 

compliance activities. These reports and 

the safeguard procedures outlined above 

are the same as or comparable to the 

reports and procedures currently 

required by other domestic marketing 

orders and import regulations. 

The information collected on these 

forms is used primarily by authorized 

representatives of USDA, including 

AMS, Fruit and Vegetable Programs’ 

regional and headquarters staff. AMS is 

the primary user of the information. 

The proposed request for a new 

information collection under the 

pistachio import regulations is as 

follows: 

Imported Pistachios—Failed Lot 

Notification—Form FV–New 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 12 minutes per 

response. 

Respondents: USDA and USDAaccredited Laboratories. 

Estimated Number of Respondents: 7. 

Estimated Number of Responses per 

Respondent: 4. 

Estimated Total Annual Burden on 

Respondents: 5.6 hours. 

Imported Pistachios—Rework and 

Failed Lot Disposition Report—Form 

FV–New 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 12 minutes per 

response. 

Respondents: Importers of pistachios 

failing aflatoxin testing. 

Estimated Number of Respondents: 

10. 

Estimated Number of Responses per 

Respondent: 3. 

Estimated Total Annual Burden on 

Respondents: 6.0 hours. 

Comments are invited on: (1) Whether 

the proposed collection of information 

is necessary for the proper performance 

of the functions of the agency, including 

whether the information will have 

practical utility; (2) the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information 

including the validity of the 

methodology and assumptions used; (3) 

ways to enhance the quality, utility, and 

clarity of the information to be 

collected; and (4) ways to minimize the 

burden of the collection of information 

on those who are to respond, including 

through the use of appropriate 

automated, electronic, mechanical, or 

other technological collection 

techniques or other forms of information 

technology. Comments should reference 

OMB No. 0581–NEW and the pistachio 

import regulations, and be sent to USDA 

in care of the Docket Clerk at the 

previously mentioned address. All 

comments received will be available for 

public inspection during regular 

business hours at the same address. 

List of Subjects in 7 CFR Part 999 

Dates, Filberts, Food grades and 

standards, Imports, Nuts, Prunes, 

Raisins, Reporting and recordkeeping 

requirements, Walnuts. 

For the reasons set forth above, 7 CFR 

Part 999 is proposed to be amended as 

follows: 

PART 999—SPECIALTY CROPS; 

IMPORT REGULATIONS 

1. The authority citation for 7 CFR 

Part 999 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

2. Amend § 999.500 by revising the 

section heading and paragraphs (a) and 

(d) to read as follows: 

§ 999.500 Safeguard procedures for 

walnuts, certain dates, and pistachios 

exempt from grade, size, quality, and 

maturity requirements. 

(a) Each person who imports or 

receives any of the commodities listed 

in paragraphs (a)(1) through (3) of this 

section shall file an ‘‘Importer’s Exempt 

Commodity Form’’ (FV–6) with the 

Marketing Order and Agreement 

Division, Fruit and Vegetable Programs, 

AMS, USDA, and shall provide a 

printed copy of the completed Form 

FV–6 to the U.S. Customs and Border 

Protection Regional Director or District 

Director, as applicable, at the port at 

which the customs entry is filed. A 

printed copy shall accompany the lot to 

the exempt outlet specified on the form. 

Any lot of any commodity offered for 

inspection or aflatoxin testing and, all or 

a portion thereof, subsequently 

imported as exempt under this 

provision shall also be reported on an 

‘‘Importer’s Exempt Commodity Form.’’ 

Such form, accompanied by a copy of 

the applicable inspection certificate, 

shall be provided to the Marketing 

Order and Agreement Division. The 

applicable commodities are: 

(1) Dates which are donated to needy 

persons, prisoners or Native Americans 

on reservations; 

(2) Walnuts which are: Green walnuts 

(so immature that they cannot be used 

for drying and sale as dried walnuts); 

walnuts used in non-competitive outlets 

such as use by charitable institutions, 

relief agencies, governmental agencies 

for school lunch programs, and 

diversion to animal feed or oil 

manufacture; or 

(3) Substandard pistachios which are 

for non-human consumption purposes. 

* * * * * 

(d) All FV–6 forms and other 

correspondence regarding entry of 8e 

commodities must be submitted online, 

mailed or faxed to the Marketing Order 

and Agreement Division, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue SW., STOP 0237, 

Washington, DC 20250–0237; 

Telephone (202) 720–4607; or Fax (202) 

720–5698. FV–6 forms submitted by 

FAX must be followed by a mailed, 

original copy of the FV–6. 

3. Add § 999.600 to read as follows: 

§ 999.600 Regulation governing the 

importation of pistachios. 

(a) Definitions. (1) Aflatoxin is one of 

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. 

(2) Aflatoxin inspection certificate 

means a certificate issued by a USDA or 

USDA-accredited laboratory. 

(3) Certified lots of pistachios are 

those for which aflatoxin inspection 

certificates have been issued. 

(4) Customs means the U.S. Customs 

and Border Protection. 

(5) Importation of pistachios means 

the release of pistachios from the 

custody of U.S. Customs and Border 

Protection. 

(6) Importer means a person who 

engages in the importation of pistachios 

into the United States. 

(7) Inshell pistachios means 

pistachios that have shells that have not 

been removed. 

(8) Inspection Service means the 

Federal Inspection Service, Fruit and 

Vegetable Programs, Agricultural 

Marketing Service, USDA, or the 

Federal-State Inspection Programs. 

(9) Inspector means any inspector 

authorized by USDA to draw and 

prepare pistachio samples. 

(10) Lot means any quantity of 

pistachios that is submitted for testing 

purposes under this part. 

(11) Person means an individual, 

partnership, limited-liability 

corporation, corporation, trust, 

association, or any other business unit. 

(12) Pistachio means the nut of the 

pistachio tree, Pistachia vera, whether 

inshell or shelled. 

(13) Secretary means the Secretary of 

Agriculture of the United States or any 


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officer or employee of the United States 

Department of Agriculture who is, or 

who may hereafter be, authorized to act 

in his/her stead. 

(14) Shelled pistachios means 

pistachio kernels, or portions of kernels, 

after the pistachio shells have been 

removed. 

(15) Substandard pistachios means 

pistachios, inshell or shelled, that do 

not comply with the aflatoxin 

regulations of this section. 

(16) USDA means the United States 

Department of Agriculture, including 

any officer, employee, service, program, 

or branch of the Department of 

Agriculture, or any other person acting 

as the Secretary’s agent or representative 

in connection with any provisions of 

this section. 

(17) USDA laboratory means 

laboratories of the Science and 

Technology Programs, Agricultural 

Marketing Service, USDA, that perform 

chemical analyses of pistachios for 

aflatoxin content. 

(18) USDA-accredited laboratory 

means a laboratory that has been 

approved or accredited by the U.S. 

Department of Agriculture to perform 

chemical analyses of pistachios for 

aflatoxin content. 

(b) Importation requirements. The 

importation of any lot of pistachios for 

human consumption is prohibited 

unless it meets the requirements 

contained in this section, which are 

determined to be the same as or 

comparable to those imposed upon 

domestic pistachios handled pursuant 

to Order No. 983, as amended (part 983 

of this chapter). 

(c) Maximum aflatoxin tolerance. No 

importer shall ship for domestic human 

consumption lots of pistachios that 

exceed an aflatoxin level of 15 ppb. 

Compliance with the aflatoxin 

requirements of this section shall be 

determined upon the basis of sampling 

by a USDA-authorized inspector and 

testing by a USDA or USDA-accredited 

laboratory. All shipments must be 

covered by an aflatoxin inspection 

certificate issued by the laboratory. 

Testing and certification must be 

completed prior to the importation of 

pistachios. 

(d) Sampling. (1) Prior to, or upon, 

arrival of a pistachio lot at a port of 

entry, the importer shall provide a copy 

of the Customs entry documentation for 

the pistachio lot or lots to the Inspection 

Service office that will draw and 

prepare samples of the pistachio 

shipment. More than one lot may be 

listed on one entry document. The 

documentation shall include: The 

Customs entry number; the container 

number(s) or other identification of the 

lot(s); the weight of the pistachios in 

each lot being imported, the location 

where the lot will be made available for 

sampling; and a contact name or 

telephone number at the testing 

location. The Inspection Service shall 

sign, stamp, and return the entry 

document to the importer. The importer 

shall provide a copy of the relevant 

entry documentation and such other 

identifying information as may be 

requested for each pistachio lot to the 

inspector at the time samples are drawn 

and prepared. 

(2) All sampling for aflatoxin testing 

shall be performed by USDA-authorized 

inspectors in accordance with USDA 

rules and regulations governing the 

inspection and certification of fresh 

fruits, vegetables, and other products (7 

CFR part 51). The cost of each such 

sampling and related certification shall 

be borne by the applicant. Whenever 

pistachios are offered for sampling and 

testing, the applicant shall furnish any 

labor and pay any costs incurred for 

storing, moving, and opening containers 

as may be necessary for proper sampling 

and testing. The applicant should make 

advance arrangements with the 

Inspection Service to avoid delay in 

scheduling sampling. Importers may 

make arrangements for required 

sampling by contacting the Inspection 

Service office closest to where the 

pistachios will be made available for 

sampling. For questions regarding 

inspection services, a list of Federal or 

Federal-State Inspection Program 

offices, or for further assistance, 

importers may contact: Fresh Products 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., Room 1536–S, 

Washington, DC, 20250; Telephone: 

(202) 720–5870; Fax: (202) 720–0393. 

(3) Lot samples shall be drawn from 

each lot of pistachios designated for 

aflatoxin testing, and individual test 

samples shall be prepared by, or under 

the supervision of, an inspector. Each 

sample shall be drawn and prepared in 

accordance with the sample size 

requirements outlined in Tables 1 and 2 

below. The gross weight of the inshell 

lot and test samples for aflatoxin testing 

and the minimum number of 

incremental samples required are shown 

in Table 1. The gross weight of the 

kernel lot and test samples for aflatoxin 

testing and the minimum number of 

incremental samples required is shown 

in Table 2. If more than one test sample 

is necessary, the test samples shall be 

designated by the inspector as Test 

Sample #1 and Test Sample #2. Each 

sample shall be placed in a suitable 

container, with the lot number clearly 

identified, and the importer shall 

submit it, along with a copy of the 

customs entry documentation, to a 

USDA or USDA-accredited laboratory. 

The importer shall assume all costs for 

shipping samples to the laboratory. 

TABLE 1—INSHELL PISTACHIO LOT SAMPLING INCREMENTS FOR AFLATOXIN CERTIFICATION

Lot weight (lbs.) 

Minimum number 

of incremental 

samples for 

the lot sample 

Total weight 

of lot sample 

(kilograms) 

Weight of 

test sample 

(kilograms) 

220 or less ....................................................................................................................... 10 2.0 2.0 

221–440 ........................................................................................................................... 15 3.0 3.0 

441–1,100 ........................................................................................................................ 20 4.0 4.0 

1,101–2,200 ..................................................................................................................... 30 6.0 6.0 

2,201–4,400 ..................................................................................................................... 40 8.0 8.0 

4,401–11,000 ................................................................................................................... 60 12.0 6.0 

11,001–22,000 ................................................................................................................. 80 16.0 8.0 

22,001–150,000 ............................................................................................................... 100 20.0 10.0 


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

Lot weight (lbs.) 

Minimum number 

of incremental 

samples for the 

lot sample 

Total weight 

of lot sample 

(kilograms) 

Weight of 

test sample 

(kilograms) 

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

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

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

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

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

4,401–11,000 ................................................................................................................... 60 6.0 3.0 

11,001–22,000 ................................................................................................................. 80 8.0 4.0 

22,001–150,000 ............................................................................................................... 100 10.0 5.0 

(e) Aflatoxin testing. Importers may 

make arrangements for required 

chemical analysis for aflatoxin content 

at the nearest USDA or USDAaccredited laboratory. For further 

information concerning chemical 

analysis and a list of laboratories 

authorized to conduct such analysis 

contact: Science and Technology 

Programs, AMS, USDA, 1400 

Independence Avenue, SW., STOP 

0270, Washington, DC 20250–0270; 

Telephone: (202) 720–5231; Fax: (202) 

720–6496. 

(1) Aflatoxin test samples shall be 

received and logged by a USDA or 

USDA-accredited laboratory, and each 

test sample shall be prepared and 

analyzed using High Pressure Liquid 

Chromatography (HPLC) or the Vicam 

Method (Aflatest). The aflatoxin level 

shall be calculated on a kernel weight 

basis. 

(2) Lots that require a single test 

sample will be certified as ‘‘negative’’ 

on the aflatoxin inspection certificate if 

the sample has an aflatoxin level at or 

below 15 ppb. If the aflatoxin level is 

above 15 ppb, the lot fails and the 

laboratory shall fill out an Imported 

Pistachios—Failed Lot Notification 

report (Form FV–249) as described in 

paragraph (h)(1) of this section. 

(3) Lots that require two test samples 

will be certified as ‘‘negative’’ on the 

aflatoxin inspection certificate if Test 

Sample #1 has an aflatoxin level at or 

below 10 ppb. If the aflatoxin level of 

Test Sample #1 is above 20 ppb, the lot 

fails and the laboratory shall fill out an 

Imported Pistachios—Failed Lot 

Notification report (Form FV–249). If 

the aflatoxin level of Test Sample #1 is 

above 10 ppb and at or below 20 ppb, 

the laboratory may, at the importer’s 

discretion, analyze Test Sample #2 and 

average the test results of Test Samples 

#1 and #2. Alternately, the importer 

may elect to withdraw the lot from 

testing, rework the lot, and resubmit it 

for testing after reworking. If the 

importer directs the laboratory to 

proceed with the analysis of Test 

Sample #2, a lot will be certified as 

negative to aflatoxin and the laboratory 

shall issue an aflatoxin inspection 

certificate if the averaged result of Test 

Samples #1 and #2 is at or below 15 

ppb. If the average aflatoxin level of Test 

Samples #1 and #2 is above 15 ppb, the 

lot fails and the laboratory shall fill out 

an Imported Pistachios—Failed Lot 

Notification report (Form FV–249). 

(4) If an importer does not elect to use 

Test Sample #2 for certification 

purposes, the importer may request that 

the laboratory return the sample to the 

importer. 

(f) Certification. Each lot of pistachios 

sampled and tested in accordance with 

paragraphs (d) and (e) of this section 

shall be covered by an aflatoxin 

inspection certificate completed by the 

laboratory. The certification expires for 

the lot or remainder of the lot after 12 

months. Each such certificate shall set 

forth the following: 

(1) The date and place of sampling 

and testing. 

(2) The name of the applicant. 

(3) The Customs entry number 

pertaining to the lot or shipment 

covered by the certificate. 

(4) The quantity and identifying 

marks of the lot tested. 

(5) The aflatoxin level of the lot, 

stated on a kernel weight basis. 

(6) The statement, if applicable: 

‘‘Meets U.S. import requirements under 

section 8e of the AMA Act of 1937.’’ 

(7) If the lot fails to meet the import 

requirements, a statement to that effect 

and the reasons therefore. 

(g) Failed lots/rework procedure. Any 

lot or portion thereof that fails to meet 

the import requirements prior to or after 

reconditioning may be exported, sold 

for non-human consumption, or 

disposed of under the supervision of 

Customs and, if necessary for 

verification purposes, the Federal or 

Federal-State Inspection Programs, with 

the costs of certifying the disposal of 

such lot paid by the importer. 

(1) Inshell rework procedure for 

aflatoxin. If inshell rework is selected as 

a remedy to meet the aflatoxin 

requirements of this part, then 100 

percent 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 by the 

importer to Customs and USDA on an 

Imported Pistachios—Rework and 

Failed Lot Disposition report (Form FV– 

251) as described in paragraph (h)(2) of 

this section. The reworked lot shall be 

sampled and tested for aflatoxin as 

specified in paragraphs (d) and (e) of 

this section, 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 

exported, used for non-human 

consumption, or otherwise disposed of. 

(2) Kernel rework procedure for 

aflatoxin. If pistachio kernel rework is 

selected as a remedy to meet the 

aflatoxin requirements of this part, then 

100 percent 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 Customs 

and USDA on an Imported Pistachios— 

Rework and Failed Lot Disposition 

report (Form FV–251). The reworked lot 

shall be sampled and tested for aflatoxin 


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as specified in paragraphs (d) and (e) of 

this section. 

(3) Failed lot reporting. If a lot fails to 

meet the aflatoxin requirements of this 

part, the testing laboratory shall 

complete an Imported Pistachios— 

Failed Lot Notification report (Form FV– 

249) as described in paragraph (h)(1) of 

this section, and shall submit it to 

Customs, the importer, and USDA 

within 10 working days of the test 

failure. This form must be completed 

and submitted each time a lot fails 

aflatoxin testing. 

(h) Reports and recordkeeping. (1) 

Form FV–249 Imported Pistachios— 

Failed Lot Notification. Each USDA or 

USDA-accredited laboratory shall notify 

the importer; Customs; and the 

Marketing Order and Agreement 

Division, Fruit and Vegetable Programs, 

AMS, USDA; of all lots that fail to meet 

the maximum aflatoxin requirements by 

completing this form and submitting it 

within 10 days of failed aflatoxin 

testing. 

(2) Form FV–251 Imported 

Pistachios—Rework and Failed Lot 

Disposition. Each importer who reworks 

a failing lot of pistachios shall complete 

this report and shall forward it to 

Customs and the Marketing Order and 

Agreement Division, Fruit and 

Vegetable Programs, AMS, USDA, no 

later than 10 days after the rework is 

completed. If rework is not selected as 

a remedy, the importer shall complete 

and submit this form within 10 days of 

alternate disposition of the lot. 

(i) Exemptions. Any importer may 

import pistachios free of the 

requirements of this section if such 

importer imports a quantity not 

exceeding a total of 5,000 dried pounds 

between September 1 and August 31 of 

each year. Substandard pistachios 

imported for use in non-human 

consumption outlets shall be subject to 

the safeguard provisions contained in 

§ 999.500. 

(j) Reconditioning prior to 

importation. Nothing contained in this 

section shall be deemed to preclude 

reconditioning pistachios prior to 

importation, in order that such 

pistachios may be made eligible to meet 

the applicable aflatoxin regulations 

prescribed in paragraphs (c) through (f) 

of this section. 

(k) Comingling. Certified lots of 

pistachios may be comingled with other 

certified lots, but the comingling of 

certified lots and uncertified lots shall 

cause the loss of certification for the 

comingled lots. 

(l) Retesting. Whenever USDA has 

reason to believe that imported 

pistachios may have been damaged or 

deteriorated while in storage, USDA 

may reject the then effective inspection 

certificate and may require the owner of 

the pistachios to have them retested to 

establish whether or not such pistachios 

may be shipped for human 

consumption. 

(m) Compliance. Any person who 

violates any provision of this section 

shall be subject to a forfeiture in the 

amount prescribed in section 8a(5) of 

the Agricultural Marketing Agreement 

Act of 1937, as amended; 7 U.S.C. 601– 

674), or, upon conviction, a penalty in 

the amount prescribed in section 8c(14) 

of the said Act, or to both such forfeiture 

and penalty. False representation to any 

agency of the United States on any 

matter within its jurisdiction, knowing 

it to be false, is a violation of 18 U.S.C. 

1001, which provides for a fine or 

imprisonments or both. 

(n) Other import requirements. The 

provisions of this section do not 

supersede any restrictions or 

prohibitions on pistachios under the 

Federal Plant Quarantine Act of 1912, or 

any other applicable laws or regulations 

of city, county, State, or Federal 

Agencies including the Federal Food, 

Drug and Cosmetic Act. 

Dated: October 14, 2011. 

David R. Shipman, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2011–27285 Filed 10–20–11; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2011–1139; Directorate 

Identifier 2011–CE–021–AD] 

RIN 2120–AA64 

Airworthiness Directives; SOCATA 

Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), Department of 

Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: We propose to adopt a new 

airworthiness directive (AD) for 

SOCATA Model TBM 700 airplanes. 

This proposed AD results from 

mandatory continuing airworthiness 

information (MCAI) originated by an 

aviation authority of another country to 

identify and correct an unsafe condition 

on an aviation product. The MCAI 

describes the unsafe condition as: 

A TBM 700 operator reported a case of 

inverted installation of aileron control cables 

in the wing. The shortest cable was found 

installed instead of the longest one on wing 

tip side, with left hand (LH) threaded end in 

upper section. This wrong installation could 

have been caused by mistaken maintenance 

data. 

This condition, if not detected and 

corrected, could lead to restricted movement 

of the aileron, resulting in reduced control of 

the aeroplane, particularly when operating 

under adverse flight conditions on landing 

and during avoidance manoeuvres. 

The proposed AD would require 

actions that are intended to address the 

unsafe condition described in the MCAI. 

DATES: We must receive comments on 

this proposed AD by December 5, 2011. 

ADDRESSES: You may send comments by 

any of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: (202) 493–2251. 

• Mail: U.S. Department of 

Transportation, Docket Operations, 

M–30, West Building Ground Floor, 

Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590. 

• Hand Delivery: U.S. Department of 

Transportation, Docket Operations, 

M–30, West Building Ground Floor, 

Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590, 

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

through Friday, except Federal holidays. 

For service information identified in 

this proposed AD, contact SOCATA— 

Direction des Services—65921 Tarbes 

Cedex 9—France; telephone +33 (0) 62 

41 7300, fax +33 (0) 62 41 76 54, or for 

North America: SOCATA NORTH 

AMERICA, 7501 South Airport Road, 

North Perry Airport (HWO), Pembroke 

Pines, Florida 33023; telephone: (954) 

893–1400; fax: (954) 964–4141; e-mail: 

mysocata@socata.daher.com; Internet: 

http://mysocata.com. You may review 

copies of the referenced service 

information at the FAA, Small Airplane 

Directorate, 901 Locust, Kansas City, 

Missouri 64106. For information on the 

availability of this material at the FAA, 

call (816) 329–4148. 

Examining the AD Docket 

You may examine the AD docket on 

the Internet at http:// 

www.regulations.gov; or in person at the 

Docket Management Facility between 

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

Friday, except Federal holidays. The AD 

docket contains this proposed AD, the 

regulatory evaluation, any comments 

received, and other information. The 

street address for the Docket Office 

(telephone (800) 647–5527) is in the 

ADDRESSES section. Comments will be 

available in the AD docket shortly after 

receipt. 


jlentini on DSK4TPTVN1PROD with PROPOSALS