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

57001 

Vol. 76, No. 179 

Thursday, September 15, 2011 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 983 

[Doc. No. AMS–FV–10–0099; FV11–983–1 

PR] 

Pistachios Grown in California, 

Arizona, and New Mexico; Proposed 

Amendment of Marketing Order No. 

983 and Referendum Order 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule and referendum 

order. 

SUMMARY: This rule proposes four 

amendments to Marketing Agreement 

and Order No. 983 (order), which 

regulates the handling of pistachios 

grown in California, Arizona, and New 

Mexico, and provides growers with the 

opportunity to vote in a referendum to 

determine if they favor the changes. The 

amendments are based on proposals by 

the Administrative Committee for 

Pistachios (Committee), which is 

responsible for local administration of 

the order. The amendments would 

provide authority to establish aflatoxin 

and quality regulations for pistachios 

shipped to export markets, including 

authority to establish different 

regulations for different markets. These 

amendments are intended to provide 

authority to ensure uniform and 

consistent aflatoxin and quality 

regulations in the domestic and various 

export markets. 

DATES: The referendum will be 

conducted from October 3 through 

October 14, 2011. The representative 

period for the purpose of the 

referendum is September 1, 2010, 

through August 31, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Martin Engeler, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA; 2202 

Monterey Street, Fresno, California 

93721; Telephone: (559)487–5110, Fax: 

(559) 487–5906, or Kathleen M. Finn, 

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: 

Martin.Engeler@ams.usda.gov or 

Kathy.Finn@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 produced 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 applicable 

rules of practice and procedure 

governing the formulation of marketing 

agreements and orders (7 CFR part 900) 

authorize amendment of the order 

through this informal rulemaking 

action. 

The Department of Agriculture 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

This proposal has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This rule is not intended 

to have retroactive effect. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

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

handler subject to an order may file 

with USDA a petition stating that the 

order, any provision of the order, or any 

obligation imposed in connection with 

the order is not in accordance with law 

and request a modification of the order 

or to be exempted therefrom. A handler 

is afforded the opportunity for a hearing 

on the petition. After the hearing, USDA 

would rule on the petition. The Act 

provides that the district court of the 

United States in any district in which 

the handler is an inhabitant, or has his 

or her principal place of business, has 

jurisdiction to review USDA’s ruling on 

the petition, provided an action is filed 

not later than 20 days after the date of 

the entry of the ruling. 

Section 1504 of the Food, 

Conservation, and Energy Act of 2008 

(2008 Farm Bill) (Pub. L. 110–246) made 

changes to section 18c(17) of the Act, 

which in turn required the addition of 

supplemental rules of practice to 7 CFR 

part 900 (73 FR 49307; August, 21, 

2008). The changes to section 18c(17) of 

the Act and additional supplemental 

rules of practice authorize the use of 

informal rulemaking (5 U.S.C. 553) to 

amend federal fruit, vegetable, and nut 

marketing agreements and orders if 

certain criteria are met. 

AMS has considered the nature and 

complexity of the proposed 

amendments, the potential regulatory 

and economic impacts on affected 

entities, and other relevant matters, and 

has determined that amending the order 

as proposed by the committee could 

appropriately be accomplished through 

informal rulemaking. 

The proposed amendments were 

unanimously recommended by the 

Committee following deliberations at a 

public meeting on July 9, 2010. A 

proposed rule soliciting comments on 

the proposed amendments was issued 

on June 5, 2011, and published in the 

Federal Register on June 13, 2011 (76 

FR 34181). One comment was received 

in support of the proposed amendments. 

AMS will conduct a producer 

referendum to determine support for the 

proposed amendments. If appropriate, a 

final rule will then be issued to 

effectuate the amendments favored by 

producers in the referendum. 

The Committee’s proposed 

amendments would: (1) Provide 

authority to establish aflatoxin 

sampling, analysis, and inspection 

requirements for shipments of 

pistachios to export markets, including 

authority to establish different 

regulations for different markets; (2) 

Provide authority to establish quality 

and inspection requirements for 

shipments of pistachios to export 

markets, including authority to establish 

different regulations for different 

markets; (3) Change a related section of 

the order concerning substandard 

pistachios to conform to the proposed 

addition of export authority; and (4) 

Correct an erroneous cross-reference to 

another section of the order. 


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57002 Federal Register / Vol. 76, No. 179 / Thursday, September 15, 2011 / Proposed Rules 

Proposal Number 1—Aflatoxin 

Regulation Authority 

Section 983.50 of the order provides 

authority to establish aflatoxin 

sampling, analysis, and inspection 

requirements applicable to pistachios 

shipped for domestic human 

consumption. Section 983.150 of the 

order’s administrative rules and 

regulations establishes such 

requirements. These regulations 

prohibit the shipment of pistachios for 

domestic human consumption unless 

they have been sampled and tested 

according to specific procedures and 

protocols, and certified that they do not 

contain traces of aflatoxin exceeding a 

tolerance level of 15 parts per billion 

(ppb). The aflatoxin regulations under 

the order are intended to help assure 

consumers of a good quality product 

and to reduce the risk of potential 

aflatoxin contamination. While 

authority exists to establish aflatoxin 

regulations for domestic shipments of 

pistachios, no such authority exists 

under the order for export shipments. 

This proposed amendment would add 

authority to establish aflatoxin 

regulations for shipments of pistachios 

to export markets. 

When the order was promulgated in 

2004, a State of California marketing 

agreement was in effect that provided 

aflatoxin testing and certification for 

export shipments to designated markets. 

Under that program, handlers tested and 

certified export shipments according to 

the methods and protocols acceptable to 

the export destination. Thus, the 

authority to regulate export shipments 

was not included in the order to avoid 

duplication. The State program served 

the needs of the industry for several 

years, but was terminated in 2010. 

Although handlers continue to test and 

certify product prior to shipping into 

export markets, there is currently no 

program in place to establish uniform 

and consistent procedures. 

The export market is becoming 

increasingly important to the U.S. 

pistachio industry to market its 

continually increasing production. 

Pistachio acreage and production in the 

U.S. has been increasing steadily since 

the crop became commercially 

significant in the 1970’s. This upward 

trend has continued since the order was 

promulgated, and is expected to 

continue into the foreseeable future. 

According to information reported by 

the Committee, in 2004 pistachio 

bearing acreage in California was 93,000 

acres and non-bearing acreage was 

24,733 acres, for a total of 117,773 acres. 

In 2010, bearing acreage was 137,102 

acres and non-bearing acreage was 

78,234, for a total of 215,336 acres. This 

represents an 83 percent increase in 

total acreage in just six years. The 

increased plantings are a response to the 

growing demand for U.S. pistachios, 

especially in export markets. A review 

of Committee shipment data indicates a 

substantial increase in shipments to 

export markets has occurred in recent 

years. Export shipments of open inshell 

pistachios increased from 95,761,666 

pounds in the 2004–05 shipping season 

to 192,436,136 pounds in the 2009–10 

season. Exports represented 

approximately 63 percent of total U.S. 

pistachio shipments during the 2009–10 

season, underscoring the importance of 

the export market to the industry. 

In view of the new plantings of 

pistachios as represented by the nonbearing acreage data, it is readily 

apparent that the production of U.S. 

pistachios will increase significantly in 

coming years. Successful marketing of 

the crop in the future will be dependent 

not only on sustaining current markets, 

but increasing the global demand to 

absorb the increased production. In 

order to accomplish this, it is important 

to reduce the risk of an aflatoxin 

incident involving U.S. pistachios. 

In the mid-1990’s, heightened 

consumer concern about aflatoxin 

occurred in Europe which resulted in a 

significant drop in pistachio 

consumption in those markets. Issues 

involving other commodities have also 

occurred in recent years, with adverse 

impacts. The pistachio industry thus 

believes it would be prudent to avail 

itself of an additional tool that could be 

used to reduce the risk of potential 

aflatoxin incidence in U.S. pistachios 

and the associated negative impacts. 

Although pistachios destined for 

export markets are currently being 

tested and certified based on the 

requirements in those markets and 

customer’s needs, there is currently no 

program in place with government 

oversight to ensure all handlers are 

following specific established protocols 

and procedures. Adding authority to the 

order to allow issuance of rules and 

regulations for aflatoxin testing and 

certification for export shipments would 

provide a mechanism to establish 

uniform and consistent aflatoxin 

sampling, analysis, and inspection 

requirements for shipments of 

domestically produced pistachios to 

export markets. A program with 

consistent and uniform procedures, 

with Federal oversight, would help 

instill confidence with foreign 

customers and government officials that 

the U.S. pistachio industry is committed 

to providing a good quality product to 

its markets that match or exceed the 

standards of the importing country. 

The intent of the proposed 

amendments authorizing aflatoxin 

regulation for exports is to provide an 

additional tool under the order to aid in 

successful marketing of future crops. 

The various export markets to which 

pistachios are shipped often have 

different requirements, such as 

allowable aflatoxin tolerance levels. 

Thus, the Committee also recommended 

adding authority to the order to 

establish different aflatoxin regulations 

for different markets. The proposed 

amendment would therefore authorize 

different regulations for different 

markets. 

If the order is amended to include 

authority to establish aflatoxin 

regulations for shipments to export 

markets, specific regulations would 

need to be added to the order’s rules 

and regulations through the informal 

rulemaking process. If the industry 

chooses to pursue such regulations, the 

Committee would meet to consider and 

analyze the available information in 

developing any recommendation to 

AMS. Any recommendation of the 

Committee concerning potential 

aflatoxin regulations would require a 

unanimous vote of 12 Committee 

members or alternate members acting in 

their stead according to the voting 

requirements in § 983.43 of the order. 

For the reasons stated above, it is 

proposed that § 983.50, Aflatoxin 

regulations, be amended to authorize 

the Committee, with approval of the 

Secretary, to establish aflatoxin 

sampling, analysis, and inspection 

requirements for pistachios to be 

shipped for human consumption in 

export markets. It is also proposed that 

§ 983.50 of the order be amended to 

authorize the Committee, with approval 

of the Secretary, to establish different 

aflatoxin requirements for different 

markets. 

Proposal Number 2—Quality 

Regulation Authority 

Section 983.51 of the order provides 

authority for the Committee, with 

approval of the Secretary, to establish 

quality and inspection requirements for 

pistachios shipped for domestic human 

consumption. There are currently no 

such requirements in effect under the 

order. 

When the order was promulgated in 

2004, specific requirements pertaining 

to quality levels were contained in the 

provisions of the order. These 

provisions were in effect from 2004 

through 2007. In December 2007, the 

requirements were suspended because 

they were no longer meeting the 


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Federal Register / Vol. 76, No. 179 / Thursday, September 15, 2011 / Proposed Rules 57003 

industry’s needs. In November 2009, the 

order was amended and the suspended 

quality requirements were removed 

from the order and replaced with broad 

authority for quality regulation. At that 

time, there was no desire by the 

industry to reinstate the specific quality 

regulations previously in effect or any 

intent to recommend any form of quality 

regulation. However, the industry 

desired to retain authority to implement 

some form of quality regulation in the 

future if circumstances warrant. 

Informal rulemaking would be required 

to reinstate quality regulations. 

Applying similar logic, the Committee 

recommended at its July 2010 meeting 

to amend the broad quality authority 

under the order to include the authority 

to establish requirements for export 

shipments, in addition to domestic 

shipments. No quality regulations are 

currently being contemplated by the 

industry; however, the Committee 

believes it would be prudent to expand 

the current authority for quality 

regulations to include export shipments. 

Adding broad authority for quality 

regulations for exports would provide 

flexibility in the order by increasing the 

industry’s ability to respond to quality 

issues related to exports, if they arise. 

Exports are becoming an increasingly 

important market for the industry and 

currently account for the marketing of 

nearly two-thirds of domestically 

produced pistachios. 

The Committee also recommended 

adding authority to the order to 

establish different quality requirements 

for different markets. Similar to the 

discussion under Proposal Number 1, 

different markets to which pistachios 

are shipped may have different quality 

requirements or concerns. The proposed 

amendment would therefore authorize 

different quality regulations for different 

markets. This would provide additional 

flexibility to the order to address 

different market needs. 

If the order is amended to include 

authority to establish quality regulations 

for shipments to export markets, 

specific regulations would need to be 

added to the order’s rules and 

regulations through the informal 

rulemaking process. If the industry 

chooses to pursue such regulations, the 

Committee would meet to consider and 

analyze the available information in 

developing a recommendation to AMS. 

Any recommendation of the Committee 

concerning potential quality regulations 

would require a unanimous vote of 12 

Committee members or alternate 

members acting in their stead according 

to the voting requirements in § 983.43 of 

the order. 

For the reasons stated above, it is 

proposed that § 983.51, Quality 

regulations, be amended to authorize 

the Committee, with approval of the 

Secretary, to establish quality and 

inspection requirements for pistachios 

to be shipped for human consumption 

in export markets. It is also proposed 

that § 983.51 of the order be amended to 

authorize the Committee, with approval 

of the Secretary, to establish different 

quality requirements for different 

markets. 

Proposal Number 3—Conforming 

Change 

Section 983.57 of the order provides 

authority to establish reporting and 

disposition procedures for pistachios 

that do not meet aflatoxin or quality 

requirements (substandard product) to 

ensure they are not shipped for 

domestic human consumption. Since 

the order currently authorizes regulation 

of the domestic market only, § 983.57 

does not reference the utilization of 

reporting and disposition procedures to 

ensure that substandard pistachios are 

not shipped to other markets besides the 

domestic market. Therefore, if Proposal 

Numbers 1 and 2 are adopted to include 

authority to regulate other markets, a 

conforming change should be made to 

§ 983.57 to reference the utilization of 

reporting and disposition procedures to 

ensure substandard pistachios are not 

shipped to any market for which 

regulations exist. 

It is therefore proposed that § 983.57, 

Substandard pistachios, be amended to 

authorize reporting and disposition 

procedures for substandard pistachios to 

ensure they are not shipped for human 

consumption in any market for which 

aflatoxin and/or quality requirements 

exist pursuant to § 983.50 and/or 

§ 983.51. 

Proposal Number 4—Correction 

Section 983.53 of the order pertains to 

aflatoxin testing of minimal quantities 

of pistachios and provides, in part, that 

lots of pistachios exceeding the 

maximum tolerance level for aflatoxin 

may be tested again after being 

reworked as specified in § 983.50. The 

reference to § 983.50 is incorrect. The 

correct section, which pertains to 

rework procedures, is § 983.52. This 

proposed amendment recommended by 

the Committee would correct the 

erroneous reference. 

It is therefore proposed to amend 

§ 983.53 by removing the reference to 

§ 983.50 in paragraph (a)(2) and 

replacing it with the correct reference to 

§ 983.52. 

Final Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) (5 

U.S.C. 601–612), the Agricultural 

Marketing Service (AMS) has 

considered the economic impact of this 

action on small entities. Accordingly, 

AMS has prepared this final 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. 

There are approximately 850 

producers and 29 handlers of pistachios 

in the production area encompassing 

California, Arizona, and New Mexico. 

The Small Business Administration 

(SBA) (13 CFR 121.201) defines small 

agricultural producers as those having 

annual receipts of less than $750,000, 

and small agricultural service firms are 

defined as those having annual receipts 

of 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. 

The amendments proposed by the 

Committee would provide authority to 

establish aflatoxin sampling, analysis, 

and inspection requirements for 

shipments of pistachios to export 

markets, including authority to establish 

different regulations for different 

markets; provide authority to establish 

quality and inspection requirements for 

shipments of pistachios to export 

markets, including authority to establish 

different regulations for different 

markets; change a related section of the 

order concerning substandard pistachios 

to conform to the proposed addition of 

export authority; and correct an 

erroneous cross-reference to another 

section of the order. 

These proposed amendments were 

unanimously recommended at a public 

meeting of the Committee held on July 

10, 2010. None of the proposed 

amendments would have an immediate 

impact on handlers or producers if they 

are approved because they would not 

establish any requirements or 


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57004 Federal Register / Vol. 76, No. 179 / Thursday, September 15, 2011 / Proposed Rules 

regulations on handlers. However, the 

proposed amendments that would add 

authority to the order to regulate exports 

could impact growers and handlers in 

the industry if the authority is 

implemented. Therefore, the potential 

costs that may be associated with future 

regulation of exports is discussed below. 

In the event implementing regulations 

are subsequently recommended by the 

Committee if the proposed amendments 

are approved, additional analysis of the 

potential costs and benefits would be 

conducted as part of the informal 

rulemaking process. 

Under § 983.50 of the order and 

§ 983.150 of the administrative rules 

and regulations, sampling, analysis, and 

inspection of pistachios for aflatoxin is 

required prior to shipment to domestic 

markets. Specific procedures and 

requirements for handlers to follow are 

prescribed. It is anticipated that any 

requirements recommended for export 

shipments would be similar to those in 

effect for domestic shipments. Thus, the 

associated costs would be similar. 

The costs of complying with aflatoxin 

regulations can be broken into three 

basic elements: sampling of the product, 

the market value of the product samples 

that are used in testing, and the cost of 

the aflatoxin analysis performed by 

laboratories. These costs can vary 

among handlers depending on their 

particular operations. In recognition of 

this, the Committee provided estimates 

of the various cost elements for 

purposes of this discussion. 

The cost of drawing samples from lots 

is estimated to range from $50.00 to 

$75.00 per lot. The variation in this cost 

can be attributed to factors such as the 

type of inspection program utilized by 

handlers. For purposes of this 

evaluation a cost factor of $70.00 per lot 

is utilized. The cost of the product used 

in sampling and testing varies 

depending upon the market price for 

pistachios. For purposes of this 

evaluation a value of $3.00 per pound 

as estimated by the Committee is 

utilized. At $3.00 per pound and a 44- 

pound sample, the cost of product used 

in sampling is $132.00 per lot. 

Laboratory costs for analyzing aflatoxin 

content are estimated to be $100.00 per 

test; with two tests per lot, the cost is 

$200.00 per lot. 

Pistachio lots tested for aflatoxin can 

vary in size, but for purposes of this 

evaluation, a lot size of 50,000 pounds 

is used as that is a reasonable 

representative size for a typical handler 

operation. Applying the above cost 

estimates to a lot size of 50,000 pounds 

results in the following cost estimates 

on a per pound basis: 

1. Sampling cost: $0.0014 per pound 

($70.00 per lot divided by 50,000 

pounds) 

2. Value of product used in sampling: 

$0.0026 per pound ($132.00 per lot 

divided by 50,000 pounds) 

3. Analytical cost of aflatoxin testing: 

$0.0040 per pound ($200 per 

sample divided by 50,000 pounds) 

This results in a total estimated per 

pound cost of $0.0060 ($0.0014 + 

$0.0026 + $0.0040), or 0.8 cents per 

pound. 

When compared to the market price 

for pistachios, the direct costs 

associated with an aflatoxin program are 

proportionately small. Utilizing a 

market price of $3.00 per pound as used 

in the above cost estimates, the costs of 

aflatoxin sampling and testing represent 

0.27 percent of the market price. Even 

if the market price for pistachios was 

$1.00 per pound, the aflatoxin sampling 

and testing costs would be well below 

one percent of the price. 

Most handlers who shipped 

pistachios to export markets in the past 

were signatories to a state marketing 

agreement that required aflatoxin 

sampling and analysis. That program 

was terminated in 2010. Since then, 

most handlers reportedly conduct 

aflatoxin testing and certification on 

export shipments to satisfy the 

requirements of the various markets. 

Therefore, the costs discussed above are 

already being borne by handlers. 

While difficult to quantify, one of the 

primary benefits of an aflatoxin program 

is the reduced risk of a potential food 

incident. For example, in the late 

1990’s, high aflatoxin levels were 

detected in pistachios in European 

markets. This led to a 60 percent 

decrease in pistachio imports in Europe, 

and it took several years for the market 

to return to more normal levels. The U.S 

was not dominant in the European 

market at that time, but in recent years, 

Europe has become an increasingly 

significant market for U.S. pistachios. 

Regardless of the location of the market, 

this example demonstrates the 

devastating effect a food quality or food 

safety issue can have on the marketing 

of a product. 

Another benefit of an aflatoxin testing 

program is the resulting reduction in the 

incidence of rejected shipments at their 

destination. Many countries test product 

prior to allowing its importation. 

Product that does not meet the 

importing country’s standards can be 

rejected and returned to the shipper. It 

is estimated that the cost of handling or 

returning a rejected lot is between 

$12,000 and $15,000 per lot. Product 

that has been tested prior to shipment 

based on the requirements of its market 

destination is less likely to be rejected 

and would not incur the associated 

costs. 

Avoiding a disruption in the 

marketing of pistachios in export 

markets is important in maintaining the 

viability of the industry. Shipments of 

open inshell pistachios increased 

dramatically in recent years; from 

95,761,666 pounds in the 2004–05 

shipping season to 192,436,136 pounds 

in the 2009–10 season, according to 

Committee data. Exports represented 

approximately 63 percent of total U.S. 

pistachio shipments during the 2009–10 

season. According to statistics reported 

by the Committee, total acreage 

increased from 117,773 acres in 2004 to 

215,336 acres in 2010, representing an 

83 percent increase. Much of this 

acreage is non-bearing and will come 

into production in the near future. 

These statistics demonstrate that 

domestic production of pistachios will 

continue to increase in the future, and 

export markets must be maintained to 

accommodate the increased supplies. 

Expanding order authority to include 

establishing aflatoxin requirements 

applicable to export shipments will 

provide an additional tool to aid in the 

marketing of pistachios covered under 

the order. In the event the authority is 

implemented, the potential costs 

associated with a mandatory aflatoxin 

program for exports are expected to be 

more than offset by the potential 

benefits discussed above. 

An analysis of the potential costs of 

adding authority to the order to 

establish quality regulations is not 

possible because no quality regulations 

are currently in effect under the order, 

and none are being contemplated. 

Quality regulations were in effect for 

domestic shipments from 2004 through 

2007, but were suspended because they 

were no longer meeting the industry’s 

needs. However, the order still contains 

broad authority for domestic quality 

regulations and the industry may desire 

to reinstate them if circumstances 

warrant. As a result of the increasing 

importance of the export market as 

demonstrated above, the Committee 

recommended adding authority to the 

order for quality regulation for export 

shipments in the event circumstances in 

the future warrant their implementation. 

If such authority is added to the order, 

a unanimous action of the Committee 

would be required to recommend the 

establishment of any export quality 

regulations. In addition, informal 

rulemaking would be required for 

implementation, and an analysis of the 

potential costs and benefits would be 

conducted during that process. 


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1This order shall not become effective unless and 

until the requirements of § 900.14 of the rules of 

practice and procedure governing proceedings to 

formulate marketing agreements and marketing 

orders have been met. 

The remaining proposed amendments 

are administrative in nature and would 

have no economic impact on growers or 

handlers. One of the proposed 

amendments would add conforming 

language to another section of the order 

if other amendments are approved, and 

another proposed amendment would 

correct an incorrect section reference in 

the order. 

Alternatives to these proposals 

include making no changes at this time. 

However, the Committee believes it 

would be beneficial to have the means 

necessary to apply regulations to the 

export markets if circumstances 

warrant. 

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 proceeding are anticipated. 

Should any changes become necessary, 

they would be submitted to OMB for 

approval. 

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. 

In addition, USDA has not identified 

any relevant Federal rules that 

duplicate, overlap, or conflict with this 

rule. 

AMS is committed to complying with 

the E-Government Act, to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

The Committee’s meeting, at which 

these proposals were discussed, was 

widely publicized throughout the 

pistachio industry. All interested 

persons were invited to attend the 

meeting and encouraged to participate 

in Committee deliberations on all 

issues. Like all Committee meetings, the 

meeting was public, and all entities, 

both large and small, were encouraged 

to express their views on these 

proposals. 

A proposed rule concerning this 

action was published in the Federal 

Register on June 13, 2011 (76 FR 34181). 

Copies of the rule were mailed or sent 

via facsimile to all Committee members 

and pistachio handlers. Finally, the rule 

was made available through the Internet 

by USDA and the Office of the Federal 

Register. A 30-day comment period 

ending July 13, 2011, was provided to 

allow interested persons to respond to 

the proposal. 

One comment was received in 

response to the proposal. The comment, 

submitted on behalf of a pistachio trade 

association, was supportive of the 

proposed amendments. Accordingly, no 

changes have been made to the 

proposed amendments, based on the 

comment received. 

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. 

Findings and Conclusions 

The findings and conclusions and 

general findings and determinations 

included in the proposed rule set forth 

in the June 13, 2011, issue of the 

Federal Register are hereby approved 

and adopted. 

Marketing Order 

Annexed hereto and made a part 

hereof is the document entitled ‘‘Order 

Amending the Order Regulating the 

Handling of Pistachios Grown in 

California, Arizona, and New Mexico.’’ 

This document has been decided upon 

as the detailed and appropriate means of 

effectuating the foregoing findings and 

conclusions. It is hereby ordered, That 

this entire rule be published in the 

Federal Register. 

Referendum Order 

It is hereby directed that a referendum 

be conducted in accordance with the 

procedure for the conduct of referenda 

(7 CFR 900.400–900.407) to determine 

whether the annexed order amending 

the order regulating the handling of 

pistachios grown in California, Arizona, 

and New Mexico is approved by 

growers, as defined under the terms of 

the order, who during the representative 

period were engaged in the production 

of pistachios in the production area. 

The representative period for the 

conduct of such referendum is hereby 

determined to be September 1, 2010 

through August 31, 2011. 

The agents of the Secretary to conduct 

such referendum are designated to be 

Rose M. Aguayo and Andrea Ricci, 

California Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (559) 487– 

5901, or E-mail: Rose M. 

Aguayo@ams.usda.gov or 

Andrea.Ricci@ams.usda.gov, 

respectively. 

List of Subjects in 7 CFR Part 983 

Marketing agreements, Pistachios, 

Reporting and recordkeeping 

requirements. 

Dated: September 12, 2011. 

David R. Shipman, 

Acting Administrator, Agricultural Marketing 

Service. 

Order Amending the Order Regulating 

the Handling of Pistachios Grown in 

California, Arizona, and New Mexico 1

Findings and Determinations 

The findings hereinafter set forth are 

supplementary to the findings and 

determinations which were previously 

made in connection with the issuance of 

the marketing agreement and order; and 

all said previous findings and 

determinations are hereby ratified and 

affirmed, except insofar as such findings 

and determinations may be in conflict 

with the findings and determinations set 

forth herein. 

1. The marketing agreement and 

order, as amended, and as hereby 

proposed to be further amended, and all 

of the terms and conditions thereof, 

would tend to effectuate the declared 

policy of the Act; 

2. The marketing agreement and 

order, as amended, and as hereby 

proposed to be further amended, 

regulate the handling of pistachios 

grown in California, Arizona, and New 

Mexico in the same manner as, and are 

applicable only to, persons in the 

respective classes of commercial and 

industrial activity specified in the 

marketing agreement and order; 

3. The marketing agreement and 

order, as amended, and as hereby 

proposed to be further amended, are 

limited in application to the smallest 

regional production area which is 

practicable, consistent with carrying out 

the declared policy of the Act, and the 

issuance of several orders applicable to 

subdivisions of the production area 

would not effectively carry out the 

declared policy of the Act; 

4. The marketing agreement and 

order, as amended, and as hereby 

proposed to be further amended, 

prescribe, insofar as practicable, such 

different terms applicable to different 

parts of the production area as are 

necessary to give due recognition to the 

differences in the production and 


wreier-aviles on DSKGBLS3C1PROD with PROPOSALS
57006 Federal Register / Vol. 76, No. 179 / Thursday, September 15, 2011 / Proposed Rules 

marketing of pistachios produced or 

packed in the production area; and 

5. All handling of pistachios 

produced in the production area as 

defined in the marketing agreement and 

order is in the current of interstate or 

foreign commerce or directly burdens, 

obstructs, or affects such commerce. 

Order Relative to Handling 

It is therefore ordered, That on and 

after the effective date hereof, all 

handling of pistachios grown in 

California, Arizona, and New Mexico 

shall be in conformity to, and in 

compliance with, the terms and 

conditions of the said order as hereby 

proposed to be amended as follows: 

The provisions of the proposed 

marketing order amending the order 

contained in the proposed rule issued 

by the Administrator on June 5, 2011, 

and published in the Federal Register 

(76 FR 34181) on June 13, 2011, will be 

and are the terms and provisions of this 

order amending the order and are set 

forth in full herein. 

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. Revise § 983.50 to read as follows: 

§ 983.50 Aflatoxin regulations. 

The committee shall establish, with 

the approval of the Secretary, such 

aflatoxin sampling, analysis, and 

inspection requirements applicable to 

pistachios to be shipped for domestic 

human consumption as will contribute 

to orderly marketing or be in the public 

interest. The committee may also 

establish, with the approval of the 

Secretary, such requirements for 

pistachios to be shipped for human 

consumption in export markets. No 

handler shall ship, for human 

consumption in domestic, or if 

applicable, export markets, pistachios 

that exceed an aflatoxin level 

established by the committee and 

approved by the Secretary. All 

shipments to markets for which 

requirements have been established 

must be covered by an aflatoxin 

inspection certificate. The committee 

may, with the approval of the Secretary, 

establish different sampling, analysis, 

and inspection requirements, and 

different aflatoxin level requirements, 

for different markets. 

3. Revise § 983.51 to read as follows: 

§ 983.51 Quality regulations. 

For any production year, the 

committee may establish, with the 

approval of the Secretary, such quality 

and inspection requirements applicable 

to pistachios shipped for human 

consumption in domestic or export 

markets as will contribute to orderly 

marketing or be in the public interest. In 

such production year, no handler shall 

ship pistachios for human consumption 

in domestic, or if applicable, export 

markets unless they meet the applicable 

requirements as evidenced by 

certification acceptable to the 

committee. The committee may, with 

the approval of the Secretary, establish 

different quality and inspection 

requirements for different markets. 

§ 983.53 [Amended] 

4. Amend § 983.53 by removing the 

reference to ‘‘§ 983.50’’ and adding in its 

place ‘‘§ 983.52’’ in paragraph (a)(2). 

5. Revise § 983.57 to read as follows: 

§ 983.57 Substandard pistachios. 

The committee shall, with the 

approval of the Secretary, establish such 

reporting and disposition procedures as 

it deems necessary to ensure that 

pistachios which do not meet aflatoxin 

and quality requirements are not 

shipped for human consumption in 

those markets for which such 

requirements exist pursuant to § 983.50 

and § 983.51. 

[FR Doc. 2011–23629 Filed 9–14–11; 8:45 am] 

BILLING CODE 3410–02–P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Parts 30 and 150 

[NRC–2011–0146] 

Proposed Generic Communications; 

Draft NRC Regulatory Issue Summary 

2011–XX; NRC Regulation of Military 

Operational Radium-226; Reopening of 

Comment Period 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Reopening of comment period. 

SUMMARY: On July 8, 2011, the U.S. 

Nuclear Regulatory Commission (NRC) 

published a draft Regulatory Issue 

Summary (RIS) pertaining to NRC 

regulation of military operational 

Radium-226 for a 60-day public 

comment period that ended on 

September 6, 2011. The NRC has 

decided to reopen the comment period 

for an additional 75 days. 

DATES: The comment period for the 

publication July 8, 2011 at 76 FR 40282, 

has been reopened and now closes on 

November 29, 2011. Comments received 

after this date will be considered if it is 

practical to do so, but the NRC is able 

to assure consideration only for 

comments received on or before this 

date. 

ADDRESSES: Please include Docket ID 

NRC–2011–0146 in the subject line of 

your comments. For additional 

instructions on submitting comments 

and instructions on accessing 

documents related to this action, see 

‘‘Submitting comments and Accessing 

Information:’’ in the SUPPLEMENTARY

INFORMATION section of this document. 

You may submit comments by any one 

of the following methods: 

• Federal Rulemaking Web Site: Go to 

http://www.regulations.gov and search 

for documents filed under Docket ID 

NRC–2011–0146. Address questions 

about NRC dockets to Carol Gallagher, 

telephone: 301–492–3668; e-mail: 

Carol.Gallagher@nrc.gov. 

• Mail comments to: Cindy Bladey, 

Chief, Rules, Announcements, and 

Directives Branch (RADB), Office of 

Administration, Mail Stop: TWB–05– 

B01M, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555– 

0001. 

• Fax comments to: RADB at 301– 

492–3446. 

FOR FURTHER INFORMATION CONTACT: 

Robert L. Johnson, Office of Federal and 

State Materials and Environmental 

Management Programs, Division of 

Waste Management and Environmental 

Protection, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555– 

0001, telephone: 301–415–7282, e-mail: 

Robert.Johnson2@nrc.gov. 

SUPPLEMENTARY INFORMATION: 

Submitting Comments and Accessing 

Information 

Comments submitted in writing or in 

electronic form will be posted on the 

NRC Web site and on the Federal 

rulemaking Web site, http:// 

www.regulations.gov. Because your 

comments will not be edited to remove 

any identifying or contact information, 

the NRC cautions you against including 

any information in your submission that 

you do not want to be publically 

disclosed. 

The NRC requests that any party 

soliciting or aggregating comments 

received from other persons for 

submission to the NRC inform those 

persons that the NRC will not edit their 

comments to remove any identifying or 

contact information, and therefore, they 

should not include any information in 

their comments that they do not want 

publically disclosed. 


wreier-aviles on DSKGBLS3C1PROD with PROPOSALS