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[Federal Register Volume 76, Number 189 (Thursday, September 29, 2011)]
[Rules and Regulations]
[Pages 60361-60363]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25038]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 983

[Doc. No. AMS-FV-11-0077; FV-983-2 IR]

Pistachios Grown in California, Arizona, and New Mexico; 
Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule decreases the assessment rate established for the 
Administrative Committee for Pistachios (Committee) for the 2011-12 and 
subsequent production years from $0.0007 to $0.0005 per pound of 
assessed weight pistachios. The Committee locally administers the 
marketing order which regulates the handling of pistachios grown in 
California, Arizona, and New Mexico. Assessments upon pistachio 
handlers are used by the Committee to fund reasonable and necessary 
expenses of the program. The production year begins September 1 and 
ends August 31. The assessment rate will remain in effect indefinitely 
unless modified, suspended, or terminated.

DATES: Effective September 30, 2011. Comments received by November 28, 
2011, will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this 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 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: Andrea Ricci, Marketing Specialist or 
Kurt J. Kimmel, Regional Manager, California Marketing Field Office, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or E-mail: 
Andrea.Ricci@ams.usda.gov or Kurt.Kimmel@ams.usda.gov.
    Small businesses may request information on complying with this 
regulation by contacting Laurel May, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 
720-2491, Fax: (202) 720-8938, or E-mail: Laurel.May@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement and Order No. 983, both as amended (7 CFR part 983), 
regulating the handling of pistachios grown in California, Arizona, and 
New Mexico hereinafter referred to as the ``order.'' The order is 
effective under the Agricultural Marketing Agreement Act of 1937, as 
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.''
    The Department of Agriculture (USDA) is issuing this rule in

[[Page 60362]]

conformance with Executive Order 12866.
    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. Under the marketing order now in effect, California, 
Arizona, and New Mexico pistachio handlers are subject to assessments. 
Funds to administer the order are derived from such assessments. It is 
intended that the assessment rate as issued herein will be applicable 
to all assessable pistachios beginning September 1, 2011, and continue 
until amended, suspended, or terminated.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with USDA a petition 
stating that the order, any provision of the order, or any obligation 
imposed in connection with the order is not in accordance with law and 
request a modification of the order or to be exempted therefrom. Such 
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 decreases the assessment rate established for the 
Committee for the 2011-12 and subsequent production years from $0.0007 
to $0.0005 per pound of assessed weight pistachios.
    The California, Arizona, and New Mexico pistachio marketing order 
provides authority for the Committee, with the approval of USDA, to 
formulate an annual budget of expenses and collect assessments from 
handlers to administer the program. The members of the Committee are 
producers and handlers of California, Arizona, and New Mexico 
pistachios. They are familiar with the Committee's needs and with the 
costs for goods and services in their local area and are thus in a 
position to formulate an appropriate budget and assessment rate. The 
assessment rate is formulated and discussed in a public meeting. Thus, 
all directly affected persons have an opportunity to participate and 
provide input.
    For the 2006-07 production year, the Committee recommended, and 
USDA approved, an assessment rate that would continue in effect from 
production year to production year unless modified, suspended, or 
terminated by USDA upon recommendation and information submitted by the 
Committee or other information available to USDA.
    The Committee met on July 21, 2011, and unanimously recommended 
2011-12 expenditures of $681,850 and an assessment rate of $0.0005 per 
pound of pistachios. In comparison, last year's budgeted expenditures 
were $803,400. The assessment rate of $0.0005 is $0.0002 lower than the 
rate currently in effect. This action will allow the Committee to 
provide sufficient revenue to meet its expenses while maintaining a 
financial reserve within the limit authorized under the order.
    The major expenditures recommended by the Committee for the 2011-12 
year include $115,850 for administrative expenses, $10,000 for 
compliance expenses, $281,000 for salaries, $125,000 for research, and 
$150,000 for a contingency fund. Budgeted expenses for these items in 
2010-11 were $112,400 for administrative expenses, $10,000 for 
compliance expenses, and $281,000 for salaries, $250,000 for a new 
research and food quality line item budget and $150,000 for a 
contingency reserve.
    The assessment rate recommended by the Committee was derived by 
considering anticipated expenses and production levels of pistachios 
grown in California, Arizona, and New Mexico, and additional pertinent 
factors. In its recommendation, the Committee utilized an estimate of 
400 million pounds of assessable pistachios for the 2011-12 production 
year. If realized, this would provide estimated assessment revenue of 
$200,000. Additional anticipated revenue will be provided by other 
sources, including the financial reserve ($369,234), estimated interest 
income ($2,000), and funds received from the California Pistachio 
Research Board (CPRB) ($110,616). When combined, revenue from these 
sources would be adequate to cover budgeted expenses. Any unexpended 
funds from the 2011-12 production year may be carried over to cover 
expenses during the succeeding production year. Funds in the reserve at 
the end of 2011-12 production year are estimated to be approximately 
$228,037 which would be within the amount permitted in the order.
    The assessment rate established in this rule will continue in 
effect indefinitely unless modified, suspended, or terminated by USDA 
upon recommendation and information submitted by the Committee or other 
available information.
    Although this assessment rate is effective for an indefinite 
period, the Committee will continue to meet prior to or during each 
production year to recommend a budget of expenses and consider 
recommendations for modification of the assessment rate. The dates and 
times of Committee meetings are available from the Committee or USDA. 
Committee meetings are open to the public and interested persons may 
express their views at these meetings. USDA will evaluate Committee 
recommendations and other available information to determine whether 
modification of the assessment rate is needed. Further rulemaking will 
be undertaken as necessary. The Committee's 2011-12 budget and those 
for subsequent production years will be reviewed and, as appropriate, 
approved by USDA.

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 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 the rules issued thereunder, are unique in 
that they are brought about through group action of essentially small 
entities acting on their own behalf.
    There are approximately 900 producers of pistachios in the 
production area and approximately 25 handlers subject to regulation 
under the marketing order. Small agricultural producers are defined by 
the Small Business Administration (13 CFR 121.201) as those having 
annual receipts less than $750,000, and small agricultural service 
firms are defined as those whose annual receipts are less than 
$7,000,000. Based on Committee data, it is estimated that over 70 
percent of the handlers ship less than $7,000,000 worth of pistachios 
and would thus be considered small business under the SBA definition. 
It is also estimated that over 80 percent of the growers in the 
production area produce less than $750,000 worth of pistachios and 
would thus be considered small businesses under the SBA definition.
    This rule decreases the assessment rate established for the 
Committee and collected from handlers for the 2011-12 and subsequent 
production years from $0.0007 to $0.0005 per pound of assessed weight 
pistachios. The

[[Page 60363]]

Committee unanimously recommended 2011-12 expenditures of $681,850 and 
an assessment rate of $0.0005 per pound of assessed weight pistachios. 
The assessment rate of $0.0005 is $0.0002 lower than the 2010-11 rate. 
The quantity of assessable pistachios for the 2011-12 production year 
is estimated at 400,000,000 pounds. Thus, the $0.0005 rate should 
provide $200,000 in assessment income. Income derived from handler 
assessments combined with the 2010-11 financial reserve, estimated 
interest income, and funds received from the CPRB is expected to 
provide sufficient revenues for the Committee to meet its expenses 
while maintaining a financial reserve within the limit authorized under 
the order.
    The major expenditures recommended by the Committee for the 2011-12 
year include $115,850 for administrative expenses, $10,000 for 
compliance expenses, $281,000 for salaries, $125,000 for research, and 
$150,000 for a contingency fund. Budgeted expenses for these items in 
2010-11 were $112,400 for administrative expenses, $10,000 for 
compliance expenses, and $281,000 for salaries, $250,000 for a new 
research and food quality line item budget and $150,000 for a 
contingency reserve.
    The recommended 2011-12 expenditures of $681,850 include a 
substantial decrease in research expenses and a slight increase in 
administrative expenses. The Committee discussed alternative 
expenditure levels, including continuing with the current assessment 
rate, but determined the lower assessment rate will better allow the 
Committee to provide sufficient revenue to meet its expenses while 
maintaining a financial reserve within the limit authorized under the 
order.
    According to NASS, the season average producer price was $1.67 in 
2009 and $2.22 per pound of assessed weight pistachios in 2010. A 
review of historical information and preliminary information pertaining 
to the upcoming production year indicates that the grower price for the 
2011-12 production year could range between $1.67 and $2.22 per pound 
of assessed weight pistachios. Therefore, the estimated assessment 
revenue for the 2011-12 production year as a percentage of total 
producer revenue during the 2011-12 production year could range between 
0.030 and 0.023 percent
    This action decreases the assessment obligation imposed on 
handlers. Assessments are applied uniformly on all handlers, and some 
of the costs may be passed on to producers. However, decreasing the 
assessment rate reduces the burden on handlers, and may reduce the 
burden on producers. In addition, the Committee's meeting was widely 
publicized throughout the California, Arizona, and New Mexico pistachio 
industry and all interested persons were invited to attend the meeting 
and participate in Committee deliberations on all issues. Like all 
Committee meetings, the July 21, 2011, meeting was a public meeting and 
all entities, both large and small, were able to express views on this 
issue. Finally, interested persons are invited to submit comments on 
this interim rule, including the regulatory and informational impacts 
of this action on small businesses.
    In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. 
Chapter 35), the order's information collection requirements have been 
previously approved by the Office of Management and Budget (OMB) and 
assigned OMB No. 0581-0215 Pistachios Grown in California. No changes 
in those requirements as a result of this action are necessary. Should 
any changes become necessary, they would be submitted to OMB for 
approval.
    This action imposes no additional reporting or recordkeeping 
requirements on either small or large California, Arizona, and New 
Mexico 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.
    In addition, USDA has not identified any relevant Federal rules 
that duplicate, overlap, or conflict with this 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.
    After consideration of all relevant material presented, including 
the information and recommendation submitted by the Committee and other 
available information, it is hereby found that this rule, as 
hereinafter set forth, will tend to effectuate the declared policy of 
the Act.
    Pursuant to 5 U.S.C. 553, it is also found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect, and that good cause exists for not postponing the effective 
date of this rule until 30 days after publication in the Federal 
Register because: (1) The 2011-12 production year begins on September 
1, 2011, and the marketing order requires that the rate of assessment 
for each production year apply to all assessable pistachios handled 
during such production year; (2) this action decreases the assessment 
rate for assessable pistachios beginning with 2011-12 production year; 
(3) handlers are aware of this action which unanimously recommended by 
the Committee at a public meeting and is similar to other assessment 
rate actions issued in past years; and (4) this interim rule provides a 
60-day comment period, and all comments timely received will be 
considered prior to finalization of the this rule.

List of Subjects in 7 CFR Part 983

    Marketing agreements, Pistachios, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR part 983 is 
amended as follows:

PART 983--PISTACHIOS GROWN IN CALIFORNIA, ARIZONA, AND NEW MEXICO

0
1. The authority citation for 7 CFR part 983 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.

0
2. In Sec.  983.253, paragraph (a) is revised to read as follows:

Sec.  983.253  Assessment rate.

    (a) On and after September 1, 2011, an assessment rate of $0.0005 
per pound is established for California, Arizona, and New Mexico 
pistachios.
* * * * *

    Dated: September 23, 2011.
Ellen King,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2011-25038 Filed 9-28-11; 8:45 am]
BILLING CODE 3410-02-P
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