51686 Federal Register / Vol. 77, No. 166 / Monday, August 27, 2012 / Rules and Regulations 

for not postponing the effective date of 

this rule until 30 days after publication 

in the Federal Register because 

handlers have already received the 2012 

fiscal year olive crop from growers, the 

fiscal year began January 1, 2012, and 

the assessment rate applies to all 

California olives handled during the 

2012 fiscal year and subsequent fiscal 

years. Further, handlers are aware of 

this rule which was recommended at a 

public meeting. Also, a 30-day comment 

period was provided for in the proposed 

rule. 

List of Subjects in 7 CFR Part 932 

Olives, Marketing agreements, 

Reporting and recordkeeping 

requirements. 

For the reasons set forth in the 

preamble, 7 CFR part 932 is amended as 

follows: 

PART 932—OLIVES GROWN IN 

CALIFORNIA 

■ 1. The authority citation for 7 CFR 

part 932 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Section 932.230 is revised to read 

as follows: 

§ 932.230 Assessment rate. 

On and after January 1, 2012, an 

assessment rate of $31.32 per ton is 

established for California olives. 

Dated: August 21, 2012. 

Ruihong Guo, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2012–21036 Filed 8–24–12; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 999 

[Doc. No. AMS–FV–09–0064; FV09–999–1 

FR] 

Specialty Crops; Import Regulations; 

New Pistachio Import Requirements 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule establishes a 

minimum quality regulation for lots of 

pistachios imported into the United 

States. The regulation specifies 

maximum aflatoxin tolerance levels as 

well as mandatory aflatoxin testing and 

certification requirements. These import 

quality requirements are the same as or 

comparable to those in effect for the 

domestically produced commodity. 

Under this regulation, aflatoxin levels in 

imported pistachios may 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. 

DATES: Effective Date: September 26, 

2012. 

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 Email: 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 final 

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 final rule adds a new § 999.600 

under 7 CFR part 999—Specialty Crops; 

Import Regulations, and establishes 

quality requirements for maximum 

aflatoxin tolerance levels and 

mandatory testing and certification 

requirements for pistachios offered for 

importation into the United States. 

These 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 final rule also revises § 999.500, 

which specifies safeguard procedures 

for the importation of walnuts and dates 

that are exempt from § 8e regulations. 

This section is 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. This regulation was 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 

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 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 77, No. 166 / Monday, August 27, 2012 / Rules and Regulations 51687 

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. 

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. 

Requirements 

Definitions 

The new regulation includes 

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 new regulation, ‘‘pistachio’’ 

means the nut of the pistachio tree, 

Pistachia vera, whether inshell or 

shelled. ‘‘Importer’’ is defined as a 

person who imports pistachios into the 

United States. ‘‘Aflatoxin’’ is defined as 

a mycotoxin that can be found in nuts, 

dried fruits, and grains. ‘‘Aflatoxin 

inspection certificate’’ means a 

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

laboratory’’ and ‘‘USDA-accredited 

laboratory’’ are defined as laboratories 

authorized to test imported pistachios 

for aflatoxin content. ‘‘Inspector’’ means 

any inspector authorized by USDA to 

draw and prepare pistachio samples for 

testing. ‘‘Lot’’ means any quantity of 

pistachios submitted for testing. Other 

terms useful in the administration of the 

import regulation are also 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 new regulation establishes 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 new regulation provides 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 will be warehoused 

near the port or shipped inland to a 

pistachio handling facility to await 

aflatoxin sampling and testing. 

Importers will be responsible for any 

transportation or storage fees incurred. 

Depending on the size of the lot, a 

specified number of incremental 

samples will be pulled and combined to 

form a lot sample. The lot sample will 

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 must be 

properly identified and submitted to a 

USDA or USDA-accredited laboratory 

for analysis. Test samples will be 

prepared and analyzed using High 

Pressure Liquid Chromatography 

(HPLC) or the immunoaffinity column 

with direct flourometry method as 

approved by the Association of Official 

Analytical Chemists (AOAC). The 

aflatoxin level will be calculated on a 

kernel weight basis. 

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

sample will be analyzed. If the sample 

has an aflatoxin level at or below 15 

ppb, the lot may be certified as negative 

for aflatoxin on the aflatoxin inspection 

certificate, which will be completed by 

the laboratory. If the aflatoxin level is 

greater than 15 ppb, the lot fails, and the 

laboratory will 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 will be prepared. If the first 

sample has an aflatoxin level at or 

below 10 ppb, the lot may be certified 

as negative for aflatoxin on the aflatoxin 

inspection certificate. Analysis of the 

other test sample would be unnecessary. 

If the aflatoxin level of the first test 

sample is above 20 ppb, the lot fails, 

and the laboratory will 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 may 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 will 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 will 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 will 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 will state that the lot meets 

the § 8e import aflatoxin requirements. 

The certification will expire after 12 

months. 


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Upon notification of any failed lot, the 

importer will work with Customs to 

determine the appropriate disposition of 

the pistachios. Pistachios that fail to 

meet the aflatoxin requirements will 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 will be paid by the importer. 

Rework Procedures 

Although reworking and retesting of a 

failed lot is not required, importers may 

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 require importers 

to remove 100 percent of the failing lot 

from its bulk or retail packaging. These 

pistachios are 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 will 

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 will be 

resampled and tested for aflatoxin. In 

the case of a reworked lot, the lot 

sample size and the test sample size will 

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 may 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 are 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 must 

report the lot’s final disposition to 

Customs and USDA on a rework and 

failed lot disposition report. 

Shelled pistachios. Rework 

procedures for pistachio kernels failing 

to test negative for aflatoxin will 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 

will be reported by the importer to 

Customs and USDA on the rework and 

failed lot disposition report. The 

reworked lot of kernels must be 

resampled and retested for aflatoxin 

content as previously described. 

Comingling 

Importers may 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 will 

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 

import regulation, a comparable 5,000- 

pound annual exemption applies to 

importers of pistachios for human 

consumption. Also, substandard 

pistachios imported for use in nonhuman consumption outlets are not 

subject to the proposed aflatoxin 

regulations. 

Compliance 

Any importer who violates any 

provision of the import regulation may 

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 will be used to ensure that 

substandard pistachios imported for 

purposes other than human 

consumption are used only in 

authorized outlets exempt from the 

aflatoxin regulations. The safeguard 

procedures are comparable to those 

currently specified for the importation 

of other exempted commodities. Under 

the new regulation, importers and 

receivers of pistachios for other than 

human consumption purposes are 

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 will be used by USDA to 

track pistachios marketed for exempted 

uses. 

This rule establishes maximum 

aflatoxin tolerance levels and 

mandatory testing and certification 

requirements for lots of pistachios 

offered for importation into the United 

States. The import quality requirements 

will 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. 

983 and contain no more than 15 ppb 

of aflatoxin. 

Final 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 

final rule 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. 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 there are 

approximately 64 importers and 

receivers who handled shipments of 

pistachios into the United States 

between 2007 and 2009. About 10 of the 

64 firms are also substantially engaged 

in the marketing of U.S. grown 

pistachios, and are large firms according 


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Federal Register / Vol. 77, No. 166 / Monday, August 27, 2012 / Rules and Regulations 51689 

to the SBA definition. Most of the 

remaining 54 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 seven 

USDA-accredited laboratories in 

California that perform aflatoxin testing 

for pistachios. AMS estimates that four 

of the seven 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. This import regulation 

establishes 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 establishes minimum 

quality requirements for lots of 

imported pistachios by specifying a 

maximum aflatoxin tolerance level as 

well as aflatoxin testing and 

certification requirements. Importers are 

responsible for arranging for the 

required transportation, storage, 

sampling, testing, and certification of 

such pistachios prior to importation. 

Sampling is conducted by the Federal or 

Federal-State inspection services, and 

aflatoxin testing and certification is 

performed by USDA or USDAaccredited laboratories. 

These 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 may 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 are 

also described. Lots of imported 

pistachios that fail aflatoxin testing may 

be diverted to certain non-human 

consumption outlets and are subject to 

the safeguard provisions of § 999.500. 

Some reporting and recordkeeping 

requirements also are included 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 varies, 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 service to draw and 

prepare 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 

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 rule on 

affected entities, this final rule 

establishes an import regulation for 

pistachios as provided in section 8e of 

the Act. The import regulation requires 

importers to arrange for the testing and 

certification of all imports of pistachios 

for human consumption prior to 

importation. There are some increased 

costs to importers associated with the 

testing and certification of imported 

product. However, it is expected that 

consumer satisfaction, and therefore 

demand, will 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 

mentioned above, these import 

requirements 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, 

these import requirements 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. 

This import regulation requires 

importers to report any pistachio lots 

that fail aflatoxin testing and any lots 

that are reworked or disposed on two 

new forms. It is estimated that the total 

reporting burden associated with these 

two forms is 11.6 hours for the industry 

as a whole. The new reporting forms 

require the minimum amount of 

information necessary to effectively 


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51690 Federal Register / Vol. 77, No. 166 / Monday, August 27, 2012 / Rules and Regulations 

carry out the requirements and intent of 

the Act and to administer section 8e 

compliance activities. These reports are 

the same as or comparable to the reports 

and procedures currently required by 

other domestic marketing orders and 

import regulations. 

The alternative to this action is to 

continue to allow pistachios to be 

imported without having to meet 

aflatoxin requirements that are the same 

as or comparable to those established for 

domestic pistachios. However, the 

import regulation is 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. 

In compliance with OMB regulations 

(5 CFR part 1320) which implement the 

Paperwork Reduction Act of 1995 (44 

U.S.C. chapter 35), forms FV–249 

Imported Pistachios—Failed Lot 

Notification Report and FV–251 

Imported Pistachios—Rework and 

Failed Lot Disposition Report, were 

approved by OMB and assigned OMB 

Number 0581–0278 on November 23, 

2011. Following the publication of this 

final rule, AMS will submit a request to 

OMB to merge these two forms with the 

forms currently approved under OMB 

No. 0581–0215, Pistachios Grown in 

California, Arizona, and New Mexico. 

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. 

Additionally, except for the 

applicable domestic regulations, USDA 

has not identified any relevant Federal 

rules that duplicate, overlap, or conflict 

with this rule. Reports and forms 

required under the pistachio import 

regulation will be reviewed periodically 

to reduce information requirements and 

duplication by industry and public 

sector agencies. 

A proposed rule regarding this action 

was published in the Federal Register 

on October 21, 2011 (76 FR 65411). 

Copies of the rule were mailed or sent 

via facsimile to all known pistachio 

importers and to the embassies of 

countries from whom pistachios are 

currently imported in significant 

volumes. The rule was made available 

through the Internet by USDA and the 

Office of the Federal Register. A 60-day 

comment period ending December 20, 

2011, was provided to allow interested 

persons to respond to the proposal. 

Four comments were received during 

the comment period in response to the 

proposal. All four commenters were 

supportive of the proposed regulation. 

One commenter, representing the 

domestic pistachio industry, noted that 

the proposed provisions for reworking 

and retesting imported lots that test 

positive for aflatoxin provided a 

safeguard against testing anomalies so 

that shipments are not unfairly rejected 

while ensuring a flow of high quality 

pistachios into the stream of commerce. 

Two private citizen commenters urged 

USDA to facilitate the timely and 

uniform sampling and testing of 

imported lots upon entry to optimize 

product freshness and marketability. 

Import regulations are applied 

uniformly at all U.S. ports of entry, and 

Federal and Federal-state inspection 

protocols are consistent throughout the 

U.S. Similarly, all laboratories 

authorized to participate in aflatoxin 

testing for imported pistachios have 

been approved by USDA and conform to 

uniform analytical standards and 

practices. The sampling and testing of 

imported lots will be handled with the 

same timeliness and integrity applied to 

domestic lots. 

The proposed regulation named a 

commercially available testing kit as one 

option for aflatoxin analysis in imported 

pistachios. One commenter suggested 

that any AOAC-approved method, 

rather than a particular product, be 

specified in the regulation to encourage 

the ongoing development of improved 

technology and ensure its availability to 

the industry. USDA does not intend to 

endorse the use of specific commercial 

products. However, as mentioned above, 

to ensure analytical testing uniformity 

and integrity, USDA has currently 

approved only two methods for 

aflatoxin testing in domestic and 

imported pistachios. Both are included 

in the import regulation. Accordingly, 

§ 999.600(e)(1) of the import regulation 

has been modified by replacing the 

name of the specific testing kit with a 

generic description of the approved 

method. USDA would consider further 

modifications to the regulation as new 

analytical methods are tested and 

approved. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: 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 final rule. 

After consideration of all relevant 

matter presented, including the 

information provided by the industry 

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. 

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 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 (a)(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 


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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 a new § 999.600 to read as 

follows: 

§ 999.600 Regulation governing the 

importation of pistachios. 

(a) Definitions. As used in this part: 

(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 

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 


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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 

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 AOACapproved immunoaffinity column with 

direct fluorometry method. 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 


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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 

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: August 21, 2012. 

David R. Shipman, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2012–20974 Filed 8–24–12; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1033 

[Doc. No. AO–11–0333; AMS–DA–11–0067; 

DA–11–04] 

Milk in the Mideast Marketing Area; 

Order Amending the Order 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This final rule amends the 

Pool Plant provisions of the Mideast 

Federal milk marketing order regulating 

distributing plants physically located 

within the marketing area, with a Class 

I utilization of at least 30 percent and 

with combined route disposition and 

transfers of at least 50 percent 

distributed into Federal milk marketing 

areas, as Pool Distributing Plants under 

the terms of the order. More than the 

required number of producers for the 

Mideast marketing area approved the 

issuance of the final order as amended. 

FOR FURTHER INFORMATION CONTACT: Erin 

C. Taylor, Order Formulation and 

Enforcement Division, USDA/AMS/ 

Dairy Programs, STOP 0231–Room 

2963, 1400 Independence Ave. SW., 

Washington, DC 20250–0231, (202) 720– 

7183, email address: erin.taylor@ams.

usda.gov. 

DATES: Effective Date: October 1, 2012. 

SUPPLEMENTARY INFORMATION: This final 

rule more adequately defines the plants, 

and the producer milk associated with 

those plants, that serve the fluid needs 


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