Federal Register / Vol. 76, No. 189 / Thursday, September 29, 2011 / Rules and Regulations 60361 

§ 305.3 Processes for adding, revising, or 

removing treatment schedules in the PPQ 

Treatment Manual. 

* * * * * 

§ 305.5 [Amended] 

■ 5. Section 305.5 is amended as 

follows: 

■ a. In paragraph (a)(1), by adding the 

words ‘‘or in another treatment schedule 

approved in accordance with § 305.2’’ 

after the word ‘‘Manual’’. 

■ b. In paragraph (c)(1), in the first 

sentence, by adding the words ‘‘or in 

another treatment schedule approved in 

accordance with § 305.2’’ after the word 

‘‘Manual’’; and, in the second sentence, 

by adding the words ‘‘or approved in 

accordance with § 305.2’’ after the word 

‘‘Manual’’. 

■ c. In paragraph (c)(3), in the first 

sentence, by adding the words ‘‘or in 

another approved treatment schedule’’ 

after the word ‘‘Manual’’. 

§ 305.6 [Amended] 

■ 6. Section 305.6 is amended as 

follows: 

■ a. In paragraph (a) introductory text, 

by adding the words ‘‘or in another 

treatment schedule approved in 

accordance with § 305.2’’ after the word 

‘‘Manual’’. 

■ b. In paragraph (c)(1), by adding the 

words ‘‘or in another approved 

treatment schedule’’ after the word 

‘‘Manual’’. 

■ c. In paragraph (d)(14), by adding the 

words ‘‘or in accordance with another 

approved treatment schedule’’ after the 

word ‘‘Manual’’. 

■ 7. Section 305.7 is amended as 

follows: 

■ a. In the second sentence, by removing 

the word ‘‘the’’ before the word ‘‘fruits’’. 

■ b. By adding a new sentence at the 

end of the section to read as set forth 

below. 

§ 305.7 Quick freeze treatment 

requirements. 

* * * Requests to authorize quick 

freeze as a treatment for other fruits and 

vegetables may be made in accordance 

with § 305.2(c). 

§ 305.8 [Amended] 

■ 8. In § 305.8, paragraph (a)(1) is 

amended by adding the words ‘‘or in 

another treatment schedule approved in 

accordance with § 305.2’’ after the word 

‘‘Manual’’. 

■ 9. Section 305.9 is amended as 

follows: 

■ a. In paragraph (d)(1), by adding the 

words ‘‘or in another treatment schedule 

approved in accordance with § 305.2’’ 

after the word ‘‘Manual’’. 

■ b. In paragraph (i), by adding the 

words ‘‘or in another approved 

treatment schedule’’ after the word 

‘‘Manual’’. 

■ c. In paragraph (j)(2), by adding the 

words ‘‘or by another approved 

treatment schedule’’ after the word 

‘‘Manual’’. 

■ d. In paragraph (n), by adding the 

words ‘‘or the plant pests for which 

another treatment schedule is approved 

in accordance with § 305.2’’ after the 

word ‘‘Manual’’. 

■ e. By adding a new paragraph (o) to 

read as set forth below. 

§ 305.9 Irradiation treatment requirements. 

* * * * * 

(o) Substitution of irradiation for 

other treatments. Treatment of fruits 

and vegetables that are from foreign 

localities, from Hawaii, Puerto Rico, and 

the U.S. Virgin Islands, or from 

domestic areas under quarantine with 

irradiation in accordance with this 

section may be substituted for other 

approved treatments if the target pests 

of the other approved treatments are 

approved for treatment with irradiation 

in the PPQ Treatment Manual or 

approved for treatment with irradiation 

in accordance with § 305.2. 

* * * * * 

Done in Washington, DC, this 23rd day of 

September 2011. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. 2011–25097 Filed 9–28–11; 8:45 am] 

BILLING CODE 3410–34–P 

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. 

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 


tkelley on DSKG8SOYB1PROD with RULES
60362 Federal Register / Vol. 76, No. 189 / Thursday, September 29, 2011 / Rules and Regulations 

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 


tkelley on DSKG8SOYB1PROD with RULES
Federal Register / Vol. 76, No. 189 / Thursday, September 29, 2011 / Rules and Regulations 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 

■ 1. The authority citation for 7 CFR 

part 983 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. In § 983.253, paragraph (a) is 

revised to read as follows: 

§ 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 


tkelley on DSKG8SOYB1PROD with RULES