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

49882

Vol. 70, No. 164

Thursday, August 25, 2005

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 51

[Docket Number FV–04–310] 

RIN# 0581–AC46

Revision of Fees for the Fresh Fruit 

and Vegetable Terminal Market 

Inspection Services

AGENCY: Agricultural Marketing Service, 

USDA.

ACTION: Proposed rule.

SUMMARY: This proposed rule revises 

regulations governing the inspection 

and certification for fresh fruits, 

vegetables and other products by 

increasing by approximately 15 percent 

certain fees charged for the inspection of 

these products at destination markets. 

These revisions are necessary in order to 

recover, as nearly as practicable, the 

costs of performing inspection services 

at destination markets.

DATES: Comments must be postmarked, 

courier dated, or sent via the Internet on 

or before September 26, 2005.

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this proposal. Comments 

can be sent to: (1) U.S. Department of 

Agriculture, Agricultural Marketing 

Service, Fruit and Vegetable Programs, 

Fresh Products Branch, 1400 

Independence Ave., SW., Room 0640–S, 

Washington, DC 20250–0295; (2) faxed 

to (202) 720–5136; (3) via e-mail to 

FPB.DocketClerk@usda.gov.; or (4) 

Internet: http://www.regulations.gov.

Comments should make reference to the 

date and page number of this issue of 

the Federal Register and will be made 

available for public inspection in the 

above office during regular business 

hours.

FOR FURTHER INFORMATION CONTACT: Rita 

Bibbs-Booth, USDA, 1400 Independence 

Ave., SW., Room 0640–S, Washington, 

DC 20250–0295, or call (202) 720–0391.

SUPPLEMENTARY INFORMATION: 

Executive Order 12866 and Regulatory 

Flexibility Act 

This rule has been determined to be 

‘‘non-significant’’ for the purposes of 

Executive Order 12866, and therefore, 

has not been reviewed by the Office of 

Management and Budget. 

Also, pursuant to the requirement set 

forth in the Regulatory Flexibility Act 

(RFA), AMS has considered the 

economic impact of this action on small 

entities. Accordingly, AMS proposes 

this initial regulatory flexibility 

analysis. 

The purpose of the RFA is to fit 

regulatory actions to the scale of 

businesses subject to such actions in 

order that small businesses will not be 

unduly or disproportionately burdened. 

The proposed action described herein is 

being taken for several reasons, 

including that additional user fee 

revenues are needed to cover the costs 

or: (1) Providing current program 

operations and services: (2) improving 

the timeliness in which inspection 

services are provided; and (3) improving 

the work environment. 

AMS regularly reviews its user-fee 

financed programs to determine if the 

fees are adequate. The Fresh Products 

Branch (FPB) has and will continue to 

seek out cost saving opportunities and 

implement appropriate changes to 

reduce its costs. Such actions can 

provide alternatives to fee increases. 

However, even with these efforts, FPB’s 

existing fee schedule will not generate 

sufficient revenue to cover program 

costs while maintaining the Agency 

mandated reserve balance. Current 

revenue projections for FPB’s 

destination market inspection work 

during FY 2005 are $14.6 million with 

costs projected at $20.9 million and an 

end-of-year reserve balance of $16.4 

million. However, this reserve balance 

is due to appropriated funding received 

in October 2001, for infrastructure, 

workplace, and technological 

improvements. FPB’s costs of operating 

the destination market program are 

expected to increase to approximately 

$22.4 million during FY–06 and $23.1 

million during FY–07. The current fee 

structure with the infusion of the 

appropriated funding is expected to 

fund the terminal market inspection 

program until FY–2008, when FPB will 

fall below the Agency’s mandated fourmonth reserve level. 

This proposed fee increase should 

result in an estimated $1.8 million in 

additional revenues per year (effective 

in FY–2006, if the fees are implemented 

by October 1, 2005). This will not cover 

all of FPB’s costs. FPB will need to 

continue to increase fees in order to 

cover the program’s operating cost and 

maintain the required reserve balance. 

FPB believes that increasing fees 

incrementally is appropriate at this 

time. Additional fee increases beyond 

FY–2006 will be needed to sustain the 

program in the future. 

Employee salaries and benefits are 

major program costs that account for 

approximately 80 percent of FPB’s total 

operating budget. A general and locality 

salary increase for Federal employees, 

ranging from 3.71 to 4.87 percent 

depending on locality, effective January 

2005, has significantly increased 

program costs. In addition, general and 

locality salary increases for Federal 

employees ranging from 3.90% to 4.92% 

depending on locality, effective from 

January 2004, also significantly 

increased program costs. This salary 

adjustment will increase FPB’s costs by 

over $700,000 per year. Increases in 

health and life insurance premiums, 

along with workers compensation will 

also increase program costs. In addition, 

inflation also impacts FPB’s non-salary 

costs. These factors have increased 

FPB’s costs of operating this program by 

over $600,000 per year. 

Additional funds of approximately 

$155,000 are necessary in order for FPB 

to continue to cover the costs associated 

with additional staff and to maintain 

office space and equipment. Additional 

revenues are also necessary to improve 

the work environment by providing 

training and purchasing needed 

equipment. In addition, FPB began in 

2001, developing (with appropriated 

funds) the Fresh Electronic Inspection 

Reporting/Resource System (FEIRS) to 

replace its manual paper and pen 

inspection reporting process. FEIRS was 

implemented in 2004. This system has 

been put in place to enhance and 

streamline FPB’s fruit and vegetable 

inspection process, however additional 

revenue is required to maintain FEIRS. 

This proposed rule should increase 

user fee revenue generated under the 

destination market program by 

approximately 15 percent. This action is 

authorized under the Agricultural 

Marketing Act of 1946 (AMA of 1946) 

Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules 49883

1Section 8e of the Agriculture Marketing 

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

674), requires that whatever the Secretary of 

Agriculture issues grade, size, quality or maturity 

regulations under domestic marketing orders for 

certain commodities, the same or comparable 

regulations on imports of those commodities must 

be issued. Import regulations apply during those 

periods when domestic marketing order 

commodities must be issued. Import regulations 

apply during those periods when domestic 

marketing order regulations are in effect. Section 

1308 of the Farm Security and Rural Investment Act 

of 2002 (Pub. L. 107–171), 7 U.S.C. 7958, requires 

USDA among other things to develop new peanut 

quality and handling standards for imported 

peanuts marketing in the United States. 

Currently, there are 14 commodities subject to 8e 

import regulations: avocados, dates (other than 

dates for processing), filberts, grapefruits, kiwifruit, 

olives (other than Spanish-style green olives), 

onions, oranges, potatoes, prunes, raisins, table 

grapes, tomatoes and walnuts. A current listing of 

the regulated commodities can be found under 7 

CFR parts 944, 980, 996, and 999.

(See 7 U.S.C. 1622(h)), which provides 

that the Secretary of Agriculture may 

assess and collect ‘‘such fees as will be 

reasonable and as nearly as may be to 

cover the costs of services rendered 

* * *’’ There are more than 2,000 users 

of FPB’s destination market grading 

services (including applicants who must 

meet import requirements 1—

inspections which amount to under 2.5 

percent of all lot inspections 

performed). A small portion of these 

users are small entities under the 

criteria established by the Small 

Business Administration (13 CFR 

121.201). There would be no additional 

reporting, recordkeeping, or other 

compliance requirements imposed upon 

small entities as a result of this 

proposed rule. In compliance with the 

Paperwork Reduction Act of 1995 (44 

U.S.C. Chapter 35), the information 

collection and recordkeeping 

requirements in part 51 have been 

approved previously by OMB and 

assigned OMB No. 0581–0125. FPB has 

not identified any other Federal rules 

which may duplicate, overlap or 

conflict with this proposed rule.

The destination market grading 

services are voluntary (except when 

required for imported commodities) and 

the fees charged to users of these 

services vary with usage. However, the 

impact on all businesses, including 

small entities, is very similar. Further, 

even though fees will be raised, the 

increase is not excessive and should not 

significantly affect these entities. 

Finally, except for those persons who 

are required to obtain inspections, most 

of these businesses are typically under 

no obligation to use these inspection 

services, and, therefore, any decision on 

their part to discontinue the use of the 

services should not prevent them from 

marketing their products.

Executive Order 12988

This proposed rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This action is not 

intended to have retroactive effect. This 

rule will not preempt any state or local 

laws, regulations or policies, unless they 

present an irreconcilable conflict with 

this rule. There are no administrative 

procedures which must be exhausted 

prior to any judicial challenge to the 

provisions of this rule. 

Proposed Action 

The AMA of 1946 authorizes official 

inspection, grading, and certification, on 

a user-fee basis, of fresh fruits, 

vegetables and other products such as 

raw nuts, Christmas trees and flowers. 

The AMA of 1946 provides that 

reasonable fees be collected from the 

users of the services to cover, as nearly 

as practicable, the cost of the services 

rendered. This proposed rule would 

amend the schedule for fees and charges 

for inspection services rendered to the 

fresh fruit and vegetable industry to 

reflect the costs necessary to operate the 

program. 

The Agricultural Marketing Service 

(AMS) regularly reviews its user-fee 

programs to determine if the fees are 

adequate. While the Fresh Products 

Branch (FPB) of the Fruit and Vegetable 

Programs, AMS, continues to search for 

opportunities to reduce its costs, the 

existing fee schedule will not generate 

sufficient revenues to cover program 

costs while maintaining the Agency 

mandated reserve balance. Current 

revenue projections for destination 

market inspection work during FY–05 

are $14.6 million with costs projected at 

$20.9 million and an end-of-year reserve 

of $17.9 million. However, this reserve 

balance is due to appropriated funding 

received from Congress in October of 

2001. These funds were established to 

build up the terminal market inspection 

reserve fund and for infrastructure 

improvements including development 

and maintenance of the inspector 

training center, workplace and 

technological improvements, including 

digital imaging and automation of the 

inspection process. However, by FY–08, 

without increasing fees, FPB’s trust fund 

balance for this program will be below 

the agency mandated four-months of 

operating reserve (approximately $4.6 

million) deemed necessary to provide 

an adequate reserve balance in light of 

increasing program costs. Further, FPB’s 

costs of operating the destination market 

program are expected to increase to 

approximately $22 million in FY–06 

and to approximately $22.8 million 

during FY–07. These cost increases 

(which are outlined below) will result 

from inflationary increases with regard 

to current FPB operations and services 

(primarily salaries and benefit), 

increased inspection demands, and the 

acquisition and maintenance of 

computer technology (i.e. FEIRS). 

Employee salaries and benefits are 

major program costs that account for 

approximately 80 percent of FPB’s total 

operating budget. A general and locality 

salary increase for Federal employees, 

ranging from 3.71 to 4.87 percent 

depending on locality, effective January 

2005, has significantly increased 

program costs. In addition, general and 

locality salary increases for Federal 

employees ranging from 3.90% to 4.92% 

depending on locality, effective from 

January 2004, also significantly 

increased program costs. This salary 

adjustment will increase FPB’s costs by 

over $700,000 per year. Increases in 

health and life insurance premiums, 

along with workers compensation will 

also increase program costs. In addition, 

inflation also impacts FPB’s non-costs. 

These factors have increased FPB’s costs 

of operating this program by over 

$600,000 per year. 

Additional revenues (approximately 

$155,000) are necessary in order for FPB 

to continue to cover the costs associated 

with additional staff and to maintain 

office space and equipment. Additional 

revenues are also necessary to continue 

to improve the work environment by 

providing training and purchasing 

needed equipment. In addition, FPB 

began in 2001, developing (with 

appropriate funds) an automated system 

known as FEIRS, to replace its manual 

paper and pen inspection reporting 

process. Approximately $10,000 in 

additional revenue per month will be 

needed to maintain the system. This 

system has been put in place to enhance 

FPB’s fruit and vegetable inspection 

processes. 

Based on the aforementioned analysis 

of this program’s increasing costs, AMS 

proposes to increase the fees for 

destination market inspection services. 

The following table compares current 

fees and charges with the proposed fees 

and charges for fresh fruit and vegetable 

inspection as found in 7 CFR 51.38. 

Unless otherwise provided for by 

regulation or written agreement between 

the applicant and the Administrator, the 

charge in the schedule of fees as found 

in § 51.38 are:

49884 Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules 

Service Current Proposed 

Quality and condition inspections of products each in quantities of 51 or more packages and unloaded from 

the same land or air conveyance: 

—Over a half carlot equivalent of each product .......................................................................................... $99.00 $114.00

—Half carlot equivalent or less of each product .......................................................................................... 83.00 95.00

—For each additional lot of the same product ............................................................................................. 45.00 52.00

Condition only inspections of products each in quantities of 51 or more packages and unloaded from the 

same land or air conveyance: 

—Over a half carlot equivalent of each product .......................................................................................... 83.00 95.00

—Half carlot equivalent or less of each product .......................................................................................... 76.00 87.00

—For each additional lot of the same product ............................................................................................. 45.00 52.00

Quality and condition and condition only inspections of products each in quantities of 50 or less packages 

unloaded from the same land or air conveyance: 

—For each product ....................................................................................................................................... 45.00 52.00

—For each additional lot of any of the same product ................................................................................. 45.00 52.00

—Lots in excess of carlot equivalents will be charged proportionally by the quarter carlot ....................... .......................... ..........................

Dock side inspections of an individual product unloaded directly from the same ship: 

—For each package weighing less than 30 pounds .................................................................................... 1 2.5 1 2.9 

—For each package weighing 30 or more pounds ...................................................................................... 1 3.8 1 4.4 

—Minimum charge per individual product .................................................................................................... 99.00 114.00

—Minimum charge for each additional lot of the same product .................................................................. 45.00 52.00

Hourly rate for inspections performed for other purposes during the grader’s regularly scheduled work week 49.00 56.00

—Hourly rate for other work performed during the grader’s regular scheduled work week will be 

charged at a reasonable rate ................................................................................................................... .......................... ..........................

Audit based services ........................................................................................................................................... .......................... 75.00

Overtime or holiday premium rate (per hour additional) for all inspections performed outside the grader’s 

regularly scheduled work week ........................................................................................................................ 25.00 29.00

Hourly rate for inspections performed under 40 hour contracts during the grader’s regularly scheduled work 

week ................................................................................................................................................................. 49.00 56.00

Rate for billable mileage ...................................................................................................................................... 1.00 1.00

1 Cents. 

A thirty day comment period is 

provided for interested persons to 

comment on this proposed action. 

Thirty days is deemed appropriate 

because it is preferable to have any fee 

increase, if adopted, to be in place as 

close as possible to the beginning of the 

fiscal year, October 1, 2005.

List of Subjects in 7 CFR Part 51

Agricultural commodities, Food 

grades and standards, Fruits, Nuts, 

Reporting and record keeping 

requirements, Trees, Vegetables.

For reasons set forth in the preamble, 

7 CFR part 51 is proposed to be 

amended as follows:

PART 51—[AMENDED] 

1. The authority citation for 7 CFR 

part 51 continues to read as follows:

Authority: 7 U.S.C. 1621–1627.

2. Section 51.38 is revised to read as 

follows:

§ 51.38 Basis for fees and rates. 

(a) When performing inspections of 

product unloaded directly from land or 

air transportation, the charges shall be 

determined on the following basis: 

(1) Quality and condition inspections 

of products in quantities of 51 or more 

packages and unloaded from the same 

air or land conveyance: 

(i) $114 for over a half carlot 

equivalent of an individual product; 

(ii) $95 for a half carlot equivalent or 

less of an individual product; 

(iii) $52 for each additional lot of the 

same product. 

(2) Condition only inspection of 

products each in quantities of 51 or 

more packages and unloaded from the 

same land or air conveyance: 

(i) $95 for over a half carlot equivalent 

of an individual product; 

(ii) $87 for a half carlot equivalent or 

less of an individual product; 

(iii) $52 for each additional lot of the 

same product. 

(3) For quality and condition 

inspection and condition only 

inspection of products in quantities of 

50 or less packages unloaded from the 

same conveyance: 

(i) $52 for each individual product; 

(ii) $52 for each additional lot of any 

of the same product. Lots in excess of 

carlot equivalents will be charged 

proportionally by the quarter carlot. 

(b) When performing inspections of 

palletized products unloaded directly 

from sea transportation or when 

palletized product is first offered for 

inspection before being transported 

from the dock-side facility, charges shall 

be determined on the following basis: 

(1) Dock side inspections of an 

individual product unloaded directly 

from the same ship: 

(i) 2.9 cents per package weighing less 

than 30 pounds; 

(ii) 4.4 cents per package weighing 30 

or more pounds; 

(iii) Minimum charge of $114 per 

individual product; 

(iv) Minimum charge of $52 for each 

additional lot of the same product. 

(2) [Reserved]. 

(c) When performing inspections of 

products from sea containers unloaded 

directly from sea transportation or when 

palletized products unloaded directly 

from sea transportation are not offered 

for inspection at dock-side, the carlot 

fees in paragraph (a) of this section shall 

apply. 

(d) When performing inspections for 

Government agencies, or for purposes 

other than those prescribed in 

paragraphs (a) through (c) of this 

section, including weight-only and 

freezing-only inspections, fees for 

inspections shall be based on the time 

consumed by the grader in connection 

with such inspections, computed at a 

rate of $56 per hour: Provided, That: 

(1) Charges for time shall be rounded 

to the nearest half hour. 

(2) The minimum fee shall be two 

hours for weight-only inspections, and 

one-half hour for other inspections. 

(3) When weight certification is 

provided in addition to quality and/or 

condition inspection, a one hour charge 

shall be added to the carlot fee. 

(4) When inspections are performed to 

certify product compliance for Defense 

Personnel Support Centers, the daily or 

weekly charge shall be determined by 

multiplying the total hours consumed to 

Federal Register / Vol. 70, No. 164 / Thursday, August 25, 2005 / Proposed Rules 49885

conduct inspections by the hourly rate. 

The daily or weekly charge shall be 

prorated among applicants by 

multiplying the daily or weekly charge 

by the percentage of product passed 

and/or failed for each applicant during 

that day or week. Waiting time and 

overtime charges shall be charged 

directly to the applicant responsible for 

their incurrence. 

(e) When performing inspections at 

the request of the applicant during 

periods which are outside the grader’s 

regularly scheduled work week, a 

charge for overtime or holiday work 

shall be made at the rate of $29.00 per 

hour or portion thereof in addition to 

the carlot equivalent fee, package 

charge, or hourly charge specified in 

this subpart. Overtime or holiday 

charges for time shall be rounded to the 

nearest half hour. 

(f) When an inspection is delayed 

because product is not available or 

readily accessible, a charge for waiting 

time shall be made at the prevailing 

hourly rate in addition to the carlot 

equivalent fee, package charge, or 

hourly charge specified in this subpart. 

Waiting time shall be rounded to the 

nearest half hour.

Dated: August 18, 2005. 

Kenneth C. Clayton, 

Associate Administrator, Agricultural 

Marketing Service.

[FR Doc. 05–16863 Filed 8–24–05; 8:45 am] 

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service 

7 CFR Part 983

[Docket No. FV05–983–2 PR] 

Pistachios Grown in California; 

Establishment of Additional Inspection 

Requirements

AGENCY: Agricultural Marketing Service, 

USDA.

ACTION: Proposed rule.

SUMMARY: This rule invites comments 

on the establishment of additional 

inspection requirements authorized 

under the California pistachio marketing 

order (order). The order regulates the 

handling of pistachios grown in 

California and is administered locally 

by the Administrative Committee for 

Pistachios (Committee). This rule would 

modify sampling procedures for darkstained pistachios which are intended to 

be dyed or color-coated. It would also 

establish reinspection requirements for 

lots of pistachios, which are materially 

changed after meeting initial aflatoxin, 

quality, and size requirements. This 

action is expected to assure the quality 

of pistachios, improve the marketability 

of pistachios, and provide handlers 

more marketing flexibility. The benefits 

of this action are expected to offset the 

increased inspection costs.

DATES: Comments must be received by 

September 1, 2005.

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this proposal. Comments 

must be sent to the Docket Clerk, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue SW, STOP 0237, Washington, 

DC 20250–0237; Fax: (202) 720–8938, or 

E-mail: moab.docketclerk@usda.gov, or 

Internet: http://www.regulations.gov. All 

comments should reference the docket 

number and the date and page number 

of this issue of the Federal Register and 

will be made available for public 

inspection in the Office of the Docket 

Clerk during regular business hours, or 

can be viewed at: http://

www.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Rose 

Aguayo or Terry Vawter, Marketing 

Specialists, California Marketing Field 

Office, Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (559) 487–

5901, Fax: (559) 487–5906; or George 

Kelhart, Technical Advisor, 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. 

Small businesses may request 

information on complying with this 

regulation by contacting Jay Guerber, 

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: 

Jay.Guerber@usda.gov.

SUPPLEMENTARY INFORMATION: This 

proposal is issued under Marketing 

Order No. 983 (7 CFR part 983), 

regulating the handling of pistachios 

grown in California, hereinafter referred 

to as the ‘‘order.’’ The order is effective 

under the Agricultural Marketing 

Agreement Act of 1937, as amended (7 

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

as the ‘‘Act.’’

The Department of Agriculture 

(USDA) is issuing this rule in 

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. This proposal 

will not preempt any State or local laws, 

regulations, or policies, unless they 

present an irreconcilable conflict with 

this rule. 

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. 

This rule would modify sampling 

procedures for dark-stained pistachios 

which are intended to be dyed or colorcoated. It would also establish 

reinspection requirements for lots of 

pistachios, which are materially 

changed after meeting initial aflatoxin, 

quality, and size requirements. This 

action is expected to assure the quality 

of pistachios, provide handlers more 

marketing flexibility, and improve the 

marketability of pistachios. The benefits 

of this action are expected to offset the 

increased inspection costs. For the 

purposes of this proposed rule, the 

terms ‘‘marketing year’’ and 

‘‘production year’’ are synonymous.

Section 983.46 of the order authorizes 

the Committee to recommend that the 

Secretary modify or suspend the order 

provisions contained in §§ 983.38 

through 983.45. These sections took 

effect August 1, 2005. 

Sampling Procedures 

Sections 983.38 and 983.39 of the 

order specify maximum aflatoxin, 

minimum quality and minimum size 

requirements, respectively, that must be 

met prior to the shipment of pistachios. 

Sections 983.38(d)(1) and 983.39(e)(1) 

of the order specify that a sample must 

be drawn from each lot, and that this lot 

sample must be divided into two 

samples—one portion for aflatoxin 

testing and one for minimum quality 

and size testing. 

Section 983.39(b)(3)(iv) of the order 

currently defines dark stain and 

specifies that pistachios that are dyed or 

color-coated to improve their marketing