[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Proposed Rules]
[Pages 39911-39918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19550]
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Proposed Rules
Federal Register
________________________________________________________________________
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.
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Federal Register / Vol. 61, No. 148 / Wednesday, July 31, 1996 /
Proposed Rules
[[Page 39911]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 983
[Docket No. FV96-983-1 PR; AO F&V-983-1]
Pistachios Grown in California, Arizona, Nevada, New Mexico, and
Utah; Hearing on Proposed Marketing Agreement and Order No. 983
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Notice of public hearing on proposed marketing agreement and
order.
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SUMMARY: Notice is hereby given of a public hearing to be held to
consider a proposed marketing agreement and order to cover pistachios
grown in California, Arizona, Nevada, New Mexico, and Utah. The
proposed program would include authority for mandatory inspection, and
grade, pack, container and labeling requirements. A proposal for a
marketing order was submitted on behalf of the pistachio industry by
the California Pistachio Commission (Commission) and the Western
Pistachio Association (Association), which purport to represent nearly
all of the industry. The program would be financed by assessments on
handlers of pistachios grown in the production area. Assessment rates
would be established by the Secretary of Agriculture (Secretary), based
on the recommendations of a committee appointed by the Secretary to
administer the program. The committee would consist of 10 members and
their alternates.
DATES: The hearing will be held in Fresno, California, beginning on
August 20, 1996, at 9:00 a.m. If necessary, additional sessions will be
held in Fresno on August 21-23.
ADDRESSES: The hearing will be held in the State Building's room 1036,
2550 Mariposa Mall, at the corner of Tulare and ``O'' Street, Fresno,
California, 93721.
FOR FURTHER INFORMATION CONTACT: Copies of this notice of hearing may
be obtained from:
(1) Maureen T. Pello, Marketing Specialist, California Marketing
Field Office, USDA, AMS, 2202 Monterey Street, suite 102B, Fresno,
California 93721, telephone (209) 487-5901, Fax (209) 487-5906; or
(2) James B. Wendland, Marketing Specialist, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.
Box 96456, room 2523-S, Washington, DC 20090-6456, telephone (202) 720-
2170, Fax (202) 720-5698.
(3) Small businesses may request information on compliance with
this proposal by contacting: Jay Guerber, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.
Box 96456, room 2523-S, Washington, DC 20090-6456; telephone (202) 720-
2491; Fax # (202) 720-5698.
SUPPLEMENTARY INFORMATION: This action is governed by the provisions of
sections 556 and 557 of title 5 of the United States Code and is
therefore excluded from the requirements of Executive Order 12866. The
hearing is called pursuant to the provisions of the Agricultural
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674),
hereinafter referred to as the ``Act.''
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) seeks to
ensure that within the statutory authority of a program, the regulatory
and informational requirements are tailored to the size and nature of
small businesses. Interested persons are invited to present evidence at
the hearing on the possible regulatory and informational impacts of the
proposal on small businesses.
The marketing agreement and order proposed herein have been
reviewed under Executive Order 12988, Civil Justice Reform. They are
not intended to have retroactive effect. If issued, the proposed
agreement and order would 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 the Secretary 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, the Secretary 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 the Secretary's
ruling on the petition, provided an action is filed not later than 20
days after the date of the entry of the ruling.
Over the last five years, the Commission and the Association have
facilitated discussions within the pistachio industry regarding the
merits of establishing a Federal marketing order program. Industry
members have concluded that a marketing order program, with authority
for mandatory inspection, and grade, pack, and container requirements,
is needed to enable the pistachio industry to improve returns to
growers. The industry believes that an effective quality control
program can be implemented to expand its markets, improve grower
returns, and increase consumer satisfaction.
The proposal for an order has been widely discussed within the
pistachio industry for at least five years, but has not yet received
the approval of the Secretary of Agriculture.
Testimony is invited at the hearing on the proposed marketing
agreement and order (hereinafter referred to as the order) and on all
the recommendations and proposals contained in this notice, as well as
any appropriate modifications or alternatives.
The hearing will be held for the purposes of:
(a) Receiving evidence about the economic and marketing conditions
which relate to the proposed marketing agreement and order and to any
appropriate modifications thereof;
(b) Determining whether the handling of pistachios produced in the
production area is in the current of interstate or foreign commerce or
directly burdens, obstructs, or affects interstate or foreign commerce;
(c) Determining whether there is a need for a marketing agreement
and order for pistachios;
[[Page 39912]]
(d) Determining the economic impact of the proposed marketing
agreement and order on the industry in the proposed production area and
on the public affected by such a program; and
(e) Determining whether the proposed marketing agreement and order
or any appropriate modification thereof would tend to effectuate the
declared policy of the Act.
All persons wishing to submit written material as evidence at the
hearing should be prepared to submit four copies of such material at
the hearing and should have prepared testimony available for
presentation at the hearing.
From the time this notice of hearing is issued and until the
issuance of a final decision in this proceeding, U.S. Department of
Agriculture (Department) employees involved in the decisional process
are prohibited from discussing the merits of the hearing issues on an
ex-parte basis with anyone having an interest in the proceeding. The
prohibition applies to employees in the following organizational units:
Office of the Secretary of Agriculture; Office of the Administrator,
Agricultural Marketing Service; Office of the General Counsel; and the
Fruit and Vegetable Division, Agricultural Marketing Service.
Procedural matters are not subject to the above prohibition and may
be discussed at any time.
Provisions of the proposed marketing agreement and order follow.
Those sections identified with an asterisk (*) apply only to the
proposed marketing agreement and are proposed by the Agricultural
Marketing Service.
List of Subjects in 7 CFR Part 983
Marketing agreements, Pistachios, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, it is proposed that
Title 7 of the CFR, Chapter IX be amended as follows:
1. Part 983 is proposed to be added as follows:
PART 983--PISTACHIOS GROWN IN CALIFORNIA, ARIZONA, NEVADA, NEW
MEXICO, AND UTAH
Subpart--Order Regulating Handling
Definitions
Sec.
983.1 Secretary.
983.2 Act.
983.3 Person.
983.4 Production area.
983.5 Pistachios.
983.6 Varieties.
983.7 Shelled pistachio.
983.8 Kernel weight.
983.9 Inshell pistachio.
983.10 Naturally opened pistachios.
983.11 Artificially opened pistachios.
983.12 Merchantable pistachios.
983.13 Substandard pistachios.
983.14 Bleaching.
983.15 Blending.
983.16 Grower.
983.17 To process.
983.18 Handler.
983.19 To handle.
983.20 Production year.
983.21 Committee.
983.22 District.
983.23 Books and records.
983.24 Pack.
983.25 Container.
983.26 Part and subpart.
Administrative Committee
983.30 Establishment and membership.
983.31 Term of office.
983.32 Nomination procedures.
983.33 Selection.
983.34 Failure to nominate.
983.35 Acceptance.
983.36 Vacancies.
983.37 Alternate members.
983.38 Procedure.
983.39 Powers.
983.40 Duties.
983.41 Compensation and expenses.
983.42 Annual report.
Expenses and Assessments
983.50 Expenses.
983.51 Assessments.
983.53 Accounting.
Regulations
983.60 Marketing policy.
983.61 Recommendation for regulations.
983.62 Issuance of regulations.
983.63 Modification, suspension, or termination of regulations.
983.64 Inspection and certification.
983.65 Substandard pistachios.
983.66 Exemptions.
Reports
983.70 Reports and recordkeeping.
983.71 Confidential information.
983.72 Other reports.
Miscellaneous Provisions
983.80 Compliance.
983.81 Right of the Secretary.
983.82 Termination or suspension of order.
983.83 Procedure upon termination.
983.84 Effect of termination or amendment.
983.85 Personal liability.
983.86 Separability.
983.87 Derogation.
983.88 Duration of immunities.
983.89 Agents.
983.90* Counterparts.
983.91* Additional parties.
983.92* Order with marketing agreement.
Authority: 7 U.S.C. 601-674.
Definitions
Sec. 983.1 Secretary.
Secretary means the Secretary of Agriculture of the United States
or any officer or employee of the Department of Agriculture who has
been delegated, or to whom authority may hereafter be delegated, the
authority to act for the Secretary.
Sec. 983.2 Act.
Act means Public Act No. 10, 73d Congress (May 12, 1933), as
amended and as reenacted and amended by the Agricultural Marketing
Agreement Act of 1937, as amended (48 Stat. 31, as amended; 7 U.S.C.
601 et seq.).
Sec. 983.3 Person.
Person means an individual, partnership, corporation, trust,
association, or any other business unit.
Sec. 983.4 Production area.
Production area includes the following States: California, Arizona,
Nevada, New Mexico, and Utah.
Sec. 983.5 Pistachios.
Pistachios means the nut of the pistachio tree of the genus
Pistacia vera grown in the production area.
Sec. 983.6 Varieties.
Varieties means and includes all classifications, subdivisions, or
other types of pistachios according to those definitive characteristics
now or hereafter recognized by the United States Department of
Agriculture or recommended by the Committee and approved by the
Secretary. The Committee, with the approval of the Secretary, may
exempt any individual variety from any or all regulations issued under
this part.
Sec. 983.7 Shelled pistachio.
Shelled pistachio means a pistachio kernel, or portion of a kernel,
after the pistachio shell has been removed.
Sec. 983.8 Kernel weight.
Kernel weight means the weight of the kernels, without shells, in a
quantity or lot of pistachios. The term does not include inedible
pieces or particles of pistachio kernels.
Sec. 983.9 Inshell pistachio.
Inshell pistachio means a pistachio that has a shell that has not
been removed.
Sec. 983.10 Naturally opened pistachios.
Naturally opened pistachios means pistachios that are inshell and
have opened naturally on the tree. This definition may be modified
based on a recommendation made by the Committee and approved by the
Secretary.
Sec. 983.11 Artificially opened pistachios.
Artificially opened pistachios means pistachios that are inshell
and have not opened naturally on the tree but have
[[Page 39913]]
been opened by hand, mechanical, or other means. This definition may be
modified based on a recommendation made by the Committee and approved
by the Secretary.
Sec. 983.12 Merchantable pistachios.
Merchantable pistachios means inshell and shelled pistachios that
meet the minimum grade regulations in effect pursuant to Sec. 983.62.
Sec. 983.13 Substandard pistachios.
Substandard pistachios means pistachios, inshell or shelled, that
do not meet the minimum grade regulations in effect pursuant to
Sec. 983.62.
Sec. 983.14 Bleaching.
Bleaching means to cause pistachios to be treated, directly or
indirectly, with hydrogen peroxide, or other chemicals or products to
remove shell stains.
Sec. 983.15 Blending.
Blending means to commingle or cause to be commingled, artificially
opened pistachios with naturally opened pistachios.
Sec. 983.16 Grower.
Grower is synonymous with producer and means any person engaged in
a proprietary capacity in the commercial production of pistachios.
Sec. 983.17 To process.
To process means to hull and dry, in preparation for market,
pistachios from one's own production or pistachios received from
another producer.
Sec. 983.18 Handler.
Handler means any person engaged in the activities defined in
Sec. 983.19. For purposes of this part, there are two types of
handlers, processing and non-processing. A processing handler is a
handler who engages in the activities defined in Sec. 983.19(a). A non-
processing handler is a handler who engages in the activities defined
in Sec. 983.19(b).
Sec. 983.19 To handle.
(a) By a processing handler.
(1) To handle means to process pistachios; or
(2) To process pistachios and further prepare them for market by
sorting, sizing, shelling, roasting, cleaning, salting, packaging, or
cause such pistachios to be placed in the current of commerce by
marketing, distributing, selling, consigning or shipping.
(b) By a non-processing handler.
(1) To handle means to receive pistachios after they have been
processed and further prepare them for market by sorting, sizing,
shelling, roasting, cleaning, salting or packaging; or
(2) To receive pistachios after they have been processed and
further prepare them for market as described in paragraph (b)(1) of
this section and cause such pistachios to be placed in the current of
commerce by marketing, distributing, selling, consigning or shipping.
(c) To handle shall not include the transportation of pistachios by
a common or contract carrier owned by another person or the
transportation of pistachios within the production area from the
orchard to the processing facility.
Sec. 983.20 Production year.
Production year is synonymous with fiscal period and marketing
season and means the period beginning on September 1 and ending on
August 31 of each year or such other period as may be recommended by
the Committee and approved by the Secretary.
Sec. 983.21 Committee.
Committee means the Pistachio Administrative Committee established
pursuant to Sec. 983.30.
Sec. 983.22 District.
District means any of the following geographical areas within the
production area:
(a) District 1 shall include the California counties of Tulare,
Kern, San Bernardino, San Luis Obispo, Santa Barbara, Ventura, Los
Angeles, Orange, Riverside, San Diego, and Imperial;
(b) District 2 shall include the California counties of Kings,
Fresno, Madera, and Merced;
(c) District 3 shall consist of all counties in the State of
California which are not included in Districts 1 and 2; and
(d) District 4 shall consist of all counties in the States of
Arizona, Nevada, New Mexico, and Utah.
Sec. 983.23 Books and records.
Books and records means books, papers, records, copies of income-
tax reports, accounts, correspondence, contracts, documents, memoranda,
or other data pertaining to matters relating to the activities subject
to the provisions of this part.
Sec. 983.24 Pack.
Pack means the specific arrangement, weight, count, or grade of a
quantity of pistachios in a particular type and size of container, or
any combination thereof.
Sec. 983.25 Container.
Container means a jar, box, bag, bin, carton, case, package, or any
other type of receptacle used in the packaging or handling of
pistachios.
Sec. 983.26 Part and subpart.
Part means the order regulating the handling of pistachios grown in
the States of California, Arizona, Nevada, New Mexico, and Utah, and
all rules, regulations, and supplementary orders issued thereunder, and
the aforesaid order shall be a subpart of such part.
Administrative Committee
Sec. 983.30 Establishment and membership.
A Pistachio Administrative Committee, consisting of 10 members and
alternates, is hereby established. Each member shall have an alternate
member who shall have the same qualifications as the member for whom he
or she is an alternate. Seven grower members shall be from Districts 1,
2, and 3. An additional grower member shall be an at-large member and
shall be the grower who has produced the largest quantity of pistachios
from any district during the production year prior to nomination. Of
the seven growers from Districts 1, 2, and 3, three members shall be
from District 1, three shall be from District 2, and one shall be from
District 3. One processing handler member shall be an at-large member
and shall have processed the largest quantity of assessed pistachios
from any district during the year prior to nomination. The tenth member
shall be from District 4 and can be either a processing handler or
grower.
Sec. 983.31 Term of office.
Elected grower members and grower alternate members of the
Committee shall serve for terms of two years, but initial elected
grower members and alternates shall, through a lottery, be seated for
terms of 1 or 2 years so that approximately half of the memberships'
terms expire each year. Initial terms for members and alternate members
filling mandated seats shall be as follows: District 4 member--2 years,
largest grower member--1 year, largest processing handler member--1
year. Each member and alternate member shall continue to serve until
his or her successor is selected and has qualified. The term of office
shall begin on July 1st of each year, or as soon thereafter as
possible, or such other date as recommended by the Committee and
approved by the Secretary. Committee members and alternates may serve
up to four consecutive, two-year terms of office.
[[Page 39914]]
Sec. 983.32 Nomination procedures.
Nomination of Committee members and alternates shall follow the
procedures set forth below:
(a) For purposes of nominating the members and alternates of the
initial Committee, the Secretary shall conduct nominations by mail;
(b) Except as provided in paragraph (c) of this section, the
Committee shall hold, or cause to be held, not later than March 1st of
each year, or such other date as may be specified by the Secretary, a
meeting or meetings of growers in each district for the purpose of
designating nominees to serve as grower members and alternates on the
Committee. Any such meetings shall be supervised by the Committee,
which shall prescribe such procedures as shall be reasonable and fair
to all persons concerned;
(c) Nominations in any or all districts may be conducted by mail in
a manner recommended by the Committee and approved by the Secretary;
(d) If a nomination meeting is held, only persons present at
nomination meetings may participate in nominations. Growers who
commercially produce pistachios during the current production year will
be eligible to vote. Any person nominated by growers shall certify that
he or she is engaged in the business of producing pistachios for market
as an owner, director or employee of a producing entity. Each grower
shall be entitled to cast only one vote for each position to be filled
in the district in which such grower produces. No grower shall
participate in the nomination of members in more than one district. If
a grower grows pistachios in more than one district, such grower shall
select the district in which such grower will so participate and notify
the Committee of such choice. Proxy voting shall not be permitted;
(e) Nominees shall provide background information for the purpose
of informing voters about their qualifications. Candidates for
nomination shall, upon the request of the Committee, submit all
necessary documents in order to establish qualifications for
nomination; and
(f) Not more than three members and three alternates on the
Committee shall be persons employed by, or connected in a proprietary
capacity with, the same corporation, firm, partnership, association, or
business organization. In addition, only one elected member and one
elected alternate in any one district shall be employed by, or
connected in a proprietary capacity with, the same corporation, firm,
partnership, association, or business organization, exclusive of the
at-large members. Any alternate serving in the same district as a
member where both are employed by, or connected in a proprietary
capacity with the same corporation, firm, partnership, association, or
business organization, shall serve as the alternate to that member. In
the case of a producer cooperative, a person will not be deemed to be
connected in a proprietary capacity with the cooperative,
notwithstanding any outstanding retains, contributions, or other
financial indebtedness owed by the cooperative to the person, if the
person has not marketed pistachios through the cooperative pursuant to
a membership agreement during the current and the preceding marketing
season. The qualifications of a member or alternate must continue
throughout the entire term of office.
(g) For the at-large grower member position, the Committee shall
notify the grower who has produced the largest quantity of pistachios
from any district during the production year prior to nomination. Such
grower shall provide the Committee with the names of the member and
alternate who he or she nominates to serve on the Committee. The
Committee shall then provide those names to the Secretary.
(h) For the at-large handler member position, the Committee shall
notify the processing handler who processed the largest quantity of
assessed pistachios from any district during the year prior to
nomination. Such handler shall provide the Committee with the names of
the member and alternate who he or she nominates to serve on the
Committee. The Committee shall then provide those names to the
Secretary.
(i) For the District 4 position, which can be filled by a grower or
handler, only growers will be eligible to nominate and vote for persons
to fill that member and alternate position.
Sec. 983.33 Selection.
From the nominations made pursuant to Sec. 983.32 or from other
qualified persons, the Secretary shall select the 10 members of the
Committee and an alternate for each such member.
Sec. 983.34 Failure to nominate.
If nominations are not made within the time and in the manner
prescribed in Sec. 983.32, the Secretary may, without regard to
nominations, select the members and alternate members of the Committee
on the basis of the representation provided for in Sec. 983.30.
Sec. 983.35 Acceptance.
Each person to be selected by the Secretary as a member or as an
alternate member of the Committee shall, prior to such selection,
qualify by advising the Secretary that he/she agrees to serve in the
position for which nominated for selection.
Sec. 983.36 Vacancies.
To fill any vacancy occasioned by the failure of any person
selected as a member or as an alternate member of the Committee to
qualify, or in the event of the death, removal, resignation, or
disqualification of any member or alternate member of the Committee, a
successor for the unexpired term of such member or alternate member of
the Committee shall be nominated and selected, in the manner specified
in Secs. 983.32 and 983.33. If the names of nominees to fill any such
vacancy are not made available to the Secretary within a reasonable
time after such vacancy occurs, the Secretary may fill such vacancy
without regard to nominations, which selection shall be made on the
basis of representation provided for in Sec. 983.30.
Sec. 983.37 Alternate members.
An alternate member of the Committee, during the absence of the
member for whom that individual is an alternate, shall act in the place
and stead of such member and perform such other duties as assigned. In
the event of the death, removal, resignation, or disqualification of a
member, the alternate of such member shall act for him or her until a
successor for such member is selected and has qualified.
Sec. 983.38 Procedure.
(a) Six members of the Committee or alternate members acting for
members, shall constitute a quorum at an assembled meeting of the
Committee, and any action of the Committee shall require the concurring
vote of at least six members: Provided, That actions of the Committee
with respect to the following issues shall require at least eight
concurring votes regarding any recommendation for adoption or change
in:
(1) Minimum grade and quality regulations;
(2) Packaging regulations;
(3) Aflatoxin regulations;
(4) Either a food chemical regulation or a regulation regarding the
blending of artificially and naturally opened pistachios;
(5) Any change caused by establishment or changes in inspection
programs;
(6) Any change in bylaws, administrative or nomination procedures;
[[Page 39915]]
(7) Approval of an annual budget exceeding \1/2\ of one percent
(.5%) of the farm gate crop value; and
(8) Approval to borrow funds as necessary.
(b) The Committee may provide for meetings by telephone, telegraph,
facsimile, or other means of communication, and any vote cast at such
meetings shall be confirmed promptly in writing: Provided: That if an
assembled meeting is held, all votes shall be cast in person.
Sec. 983.39 Powers.
The Committee shall have the following powers:
(a) To administer the provisions of this part in accordance with
its terms;
(b) To make and adopt rules and regulations to effectuate the terms
and provisions of this part;
(c) To receive, investigate, and report to the Secretary complaints
of violations of this part; and
(d) To recommend to the Secretary amendments to this part.
Sec. 983.40 Duties.
The Committee shall have among others, the following duties:
(a) To select from among its members such officers and adopt bylaws
and rules for the conduct of its meetings as it deems advisable, and to
define the duties of such officers;
(b) To submit to the Secretary prior to the beginning of each
fiscal period a budget for such fiscal period, including a report and
explanation of the items appearing therein and a recommendation as to
the rate of assessment for such period;
(c) To act as intermediary between the Secretary and any processing
handler and grower;
(d) To investigate and assemble data on the growing, handling and
marketing conditions with respect to pistachios;
(e) To keep minutes, books and records which will clearly reflect
all of its acts and transactions, and such minutes, books and records
shall be available for examination by the Secretary at any time;
(f) To furnish to the Secretary such available information as
requested;
(g) To appoint such employees as it deems necessary and determine
their salaries, define their duties and fix the bonds of the Committee;
(h) To cause the books of the Committee to be audited by one or
more certified public accountants approved by the Committee at least
once for each marketing year and at such other times as the Committee
deems necessary or as the Secretary may request, and to file with the
Secretary reports of all audits, including quarterly financial reports
made, and to make available to the industry, such audits that do not
contain confidential data;
(i) To give the Secretary the same notice of the meetings of the
Committee as is given to its members;
(j) To furnish to the Secretary a written report of the proceedings
of each meeting of the Committee;
(k) To follow the Secretary's guidelines in considering and
recommending regulatory actions;
(l) To investigate compliance with the provisions of this part; and
(m) With the approval of the Secretary, to redefine the districts
into which the production area is divided and to reapportion the
representation of any district on the Committee: Provided, That any
such changes shall reflect, insofar as practicable, shifts in pistachio
production within the districts and the production area.
Sec. 983.41 Compensation and expenses.
The members of the Committee, and the alternate members when acting
as members, shall serve without compensation but shall be allowed their
necessary actual expenses, as approved by the Committee: Provided, That
the Committee may request the attendance of one or more alternates not
acting as members at any meeting of the Committee, and such alternates
may be allowed their necessary expenses.
Sec. 983.42 Annual report.
The Committee shall, as soon as is practicable after the close of
each marketing season, prepare and mail an annual report to the
Secretary and make a copy available to each grower and handler who
requests a copy of the report.
Expenses and Assessments
Sec. 983.50 Expenses.
The Committee is authorized to incur such expenses as the Secretary
finds are reasonable and likely to be incurred during each production
year for the maintenance and functioning of the Committee and for such
other purposes as the Secretary may, pursuant to the provisions of this
part, determine to be appropriate. The funds to cover such expenses
shall be acquired in the manner prescribed in Sec. 983.51.
Sec. 983.51 Assessments.
(a) As his or her pro rata share of the expenses which the
Secretary finds are reasonable and likely to be incurred by the
Committee during a production year, each processing handler during such
period shall pay to the Committee, upon demand, assessments on all
pistachios so processed. Assessments shall be based on pounds of
edible, inshell pistachios processed. The payment of assessments for
the maintenance and functioning of the Committee may be required under
this part throughout the period it is in effect, irrespective of
whether particular provisions thereof are suspended or become
inoperative.
(b) The Secretary shall fix the rate of assessment to be paid by
each such person during a production year in an amount designed to
secure sufficient funds to cover the expenses which may be incurred
during such period. Such expenses may include an item for accumulation
and maintenance of an operating reserve fund not to exceed
approximately two production years' budgeted expenses. At any time
during or after the production year, the Secretary may increase the
rate of assessment in order to secure sufficient funds to cover any
later finding by the Secretary relative to the expenses which may be
incurred: Provided, That any assessment, excluding any amount collected
pursuant to Sec. 983.64(e), must be limited to a maximum assessment of
\1/2\ of one percent (.5%) of the latest farm-gate crop value unless
the annual budget exceeding that amount has been approved in accordance
with the super majority required in Sec. 983.38(a). The Committee may
accept the payment of assessments in advance, and may also borrow money
for such purposes.
(c) Any processing handler who fails to pay an assessment within
the time required by the Committee shall pay to the Committee a late
charge of 10 percent of the amount of the assessment determined to be
past due and, in addition, interest on the unpaid balance at the rate
of 1\1/2\ percent per month or such other figures as recommended by the
Committee and approved by the Secretary.
Sec. 983.53 Accounting.
(a) If, at the end of a production year, the assessments collected
are in excess of expenses incurred, such excess shall be accounted for
in accordance with one of the following:
(1) If such excess is not retained in a reserve, as provided in
paragraph (a)(2) of this section, it shall be refunded proportionately
to the persons from whom it was collected in accordance with
Sec. 983.51(a): Provided, That any sum paid by a person in excess of
his or her pro rata share of the expenses during any production year
may be applied by the Committee at the end of such production year as
credit for such person, toward the Committee's fiscal
[[Page 39916]]
operations of the following production year;
(2) The Committee, with the approval of the Secretary, may carry
over such excess into subsequent production years as a reserve:
Provided, That funds already in the reserve do not exceed approximately
two production year's budgeted expenses. Such reserve funds may be
used:
(i) To defray expenses, during any production year, prior to the
time assessment income is sufficient to cover such expenses;
(ii) to cover deficits incurred during any production year when
assessment income is less than expenses;
(iii) to defray expenses incurred during any period when any or all
provisions of this part are suspended or are inoperative; and,
(iv) to cover necessary expenses of liquidation in the event of
termination of this part. Upon such termination, any funds not required
to defray the necessary expenses of liquidation shall be disposed of in
such manner as the Secretary may determine to be appropriate: Provided,
That to the extent practical, such funds shall be returned pro rata to
the persons from whom such funds were collected;
(b) All funds received by the Committee pursuant to the provisions
of this part shall be used solely for the purpose specified in this
part and shall be accounted for in the manner provided in this part.
The Secretary may at any time require the Committee and its members to
account for all receipts and disbursements; and
(c) Upon the removal or expiration of the term of office of any
member of the Committee, such member shall account for all receipts and
disbursements and deliver all Committee property and funds in his or
her possession to the Committee, and shall execute such assignments and
other instruments as may be necessary or appropriate to vest in the
Committee full title to all of the Committee property, funds, and
claims vested in such member pursuant to this part.
Regulations
Sec. 983.60 Marketing policy.
Each season prior to making any recommendations pursuant to
Sec. 983.61, the Committee may adopt a report setting forth its
marketing policy for the ensuing season. Such marketing policy report
may contain information relative to:
(a) The estimated total production of pistachios within the
production area;
(b) The expected general quality of pistachios in the production
area and in other areas;
(c) The expected demand conditions for pistachios in different
market outlets;
(d) The expected shipments of pistachios produced in the production
area and in areas outside the production area;
(e) Supplies of competing commodities;
(f) Other factors having a bearing on the marketing of pistachios;
and
(g) The type of regulations expected to be recommended during the
season.
Sec. 983.61 Recommendation for regulations.
(a) Whenever the Committee deems it advisable to regulate the
handling of any variety or varieties of pistachios in the manner
provided in Sec. 983.62, it shall so recommend to the Secretary.
(b) In arriving at its recommendations for regulation pursuant to
paragraph (a) of this section, the Committee shall give consideration
to current information with respect to the factors affecting the supply
and demand for pistachios during the period or periods when it is
proposed that such regulations should be made effective. With each
recommendation for regulation, the Committee shall submit to the
Secretary the data and information on which the recommendation is
predicated and other available information as the Secretary may
request.
Sec. 983.62 Issuance of regulations.
(a) The Secretary shall regulate, in the manner specified in this
section, the handling of pistachios whenever the Secretary finds, from
the recommendations and information submitted by the Committee, or from
other available information, that such regulations will tend to
effectuate the declared policy of the act. Such regulations may:
(1) Limit during any period or periods, the shipment of pistachios
by establishing, in terms of grades, minimum standards of quality,
including standards for aflatoxin, bleaching, and the blending of
artificially and naturally opened pistachios;
(2) Limit during any period or periods, the use of specified
containers for shipment;
(3) Fix the size, capacity, weight, dimensions, markings, labeling,
or pack of the container, or containers, which may be used in the
packaging or processing of pistachios; and
(4) Prescribe different requirements under paragraphs (a)(1)
through (a)(3) of this section for the handling of any variety of
pistachios to destinations within any geographical area or market type
identified and recommended by the Committee and approved by the
Secretary.
(b) The Committee shall be informed immediately of any such
regulation issued by the Secretary and the Committee shall promptly
give notice thereof to processing handlers and non-processing handlers,
each of whom will be bound by any such regulation.
Sec. 983.63 Modification, suspension, or termination of regulations.
(a) In the event the Committee at any time finds that, by reason of
changed conditions, any regulations issued pursuant to Sec. 983.62
should be modified, suspended, or terminated, it shall so recommend to
the Secretary.
(b) Whenever the Secretary finds from the recommendations and
information submitted by the Committee or from other available
information, that a regulation should be modified, suspended, or
terminated with respect to any or all shipments of pistachios in order
to effectuate the declared policy of the act, the Secretary shall
modify, suspend, or terminate such regulation. If the Secretary finds
that a regulation obstructs or does not tend to effectuate the declared
policy of the act, the Secretary shall suspend or terminate such
regulation. On the same basis and in like manner the Secretary may
terminate any such modification or suspension.
Sec. 983.64 Inspection and certification.
(a) Incoming inspection. Whenever the processing of any variety of
pistachios is regulated pursuant to Sec. 983.62, each processing
handler who receives pistachios from a grower to hull and dry may be
required to have such pistachios inspected by the Federal or Federal-
State Inspection Service or such other inspection service as may be
recommended by the Committee and approved by the Secretary. Such
pistachios shall be certified as meeting the applicable requirements of
such regulation.
(b) Outgoing inspection. Whenever the handling of any variety of
pistachios is regulated pursuant to Sec. 983.62, each person who
handles pistachios, prior to the sale, consignment, shipment, marketing
or distribution of such pistachios, may be required to have such
pistachios inspected by the Federal or Federal-State Inspection Service
or such other inspection service as may be recommended by the Committee
and approved by the Secretary. Such pistachios shall be certified as
meeting the applicable requirements of such regulation: Provided, That
inspection and certification shall be required for pistachios which
previously have been
[[Page 39917]]
so inspected and certified, only if such pistachios have been regraded,
resorted, repackaged, or in any other way further prepared for market.
(c) Promptly after inspection and certification as prescribed in
paragraphs (a) or (b) of this section, each such handler shall submit,
or cause to be submitted, to the Committee a copy of the certificate of
inspection issued with respect to such pistachios. The Committee may,
with the approval of the Secretary, prescribe rules and regulations to
waive the inspection requirements of this section where it is
determined that it is not practicable to provide inspection at the time
and place designated: Provided, That all shipments made under such
waiver shall comply with all regulations in effect.
(d) The Committee may, with the approval of the Secretary,
establish a period prior to shipment during which the inspections
required by this section must be performed.
(e) The Committee may enter into an agreement with the Federal and
Federal-State Inspection Services or other approved inspection
services, with respect to the costs of the inspection required by
paragraphs (a) and (b) of this section, and may collect from handlers
their respective pro rata shares of such costs.
(f) The Committee, with the approval of the Secretary, may
prescribe rules and regulations to administer this section.
Sec. 983.65 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 the effective incoming and/or
outgoing minimum standards do not enter normal market outlets for
merchantable pistachios.
Sec. 983.66 Exemptions.
The Committee, with the approval of the Secretary, may prescribe
exemptions based on minimum quantity or other factors for certain
shipments of pistachios from the provisions specified in Secs. 983.51
and 983.64. The Committee, with the approval of the Secretary, may
prescribe safeguards to prevent pistachios handled pursuant to this
section from entering the channels of trade for other than the purpose
authorized.
Reports
Sec. 983.70 Reports and recordkeeping.
(a) Upon request of the Committee, made with the approval of the
Secretary, each handler shall furnish to the Committee, in such manner
and at such time as it may prescribe, such reports and other
information as may be necessary for the Committee to perform its duties
under this part.
(b) Such reports may include, but are not necessarily limited to,
the following:
(1) The name, address, telephone number of the handler, and other
identifying information as appropriate;
(2) The quantities of pistachios, shelled and inshell, received by
such handler;
(3) The quantities of pistachios, shelled and inshell, disposed of
by such handler;
(4) The manner of disposition and disposition dates of such
pistachios;
(5) The quantity of pistachios, shelled and inshell, held in
inventory by such handler;
(6) The quantity of merchantable pistachios processed;
(7) A listing of such handler's growers including name, address,
telephone number and location of grower acreage; and
(8) Identification of the inspection certificate or waiver pursuant
to which the pistachios were processed.
(c) Each handler shall maintain for at least four succeeding years
such records of the pistachios received and disposed of by such handler
as may be necessary to verify reports submitted to the Committee
pursuant to this section.
Sec. 983.71 Confidential information.
All reports and records furnished or submitted by handlers to the
Committee which include data or information constituting a trade secret
or disclosing the trade position, financial condition, or business
operations of the particular handlers or their customers or growers
shall be received by, and at all times kept in the custody and under
the control of, one or more employees of the Committee, who shall
disclose such information to no person except the Secretary.
Compilations of general reports from data submitted by handlers is
authorized, subject to the prohibition of disclosure of individual
handler identity or operations.
Sec. 983.72 Other reports.
Upon the request of the Committee, with the approval of the
Secretary, each handler shall furnish such other reports and
information as are needed to enable the Committee to perform its
functions under this part.
Miscellaneous Provisions
Sec. 983.80 Compliance.
(a) Except as provided in this part, no person shall handle
pistachios, the shipment of which has been prohibited by the Secretary
in accordance with the provisions of this part; and no person shall
handle pistachios except in conformity with the provisions of this part
and the regulations issued under this part.
(b) For the purpose of checking and verifying reports filed by
handlers, the Committee, through its duly authorized representatives,
shall have access to any handler's premises during regular business
hours, and shall be permitted at any such times to inspect such
premises and any pistachios held by such handler, and any and all
records of the handler with respect to his or her acquisition, sales,
uses and shipments of pistachios. Each handler shall furnish all labor
and equipment necessary to make such inspections.
Sec. 983.81 Right of the Secretary.
The members of the Committee (including successors and alternates)
and any agents, employees or representatives appointed or employed by
the Committee thereof, shall be subject to removal or suspension by the
Secretary, in his or her discretion, at any time. Each and every
regulation, decision, determination, or other act of the Committee
shall be subject to the continuing right of the Secretary to disapprove
of the same at any time, and upon such disapproval, the disapproved
action of the Committee shall be deemed void, except as to acts done in
reliance thereon or in accordance therewith prior to such disapproval
by the Secretary.
Sec. 983.82 Termination or suspension of order.
(a) The Secretary shall terminate or suspend the operation of any
or all of the provisions of this part whenever the Secretary finds that
such provisions do not tend to effectuate the declared policy of the
Act.
(b) The Secretary shall conduct a referendum within the month of
November of every fifth year after the effective date of this part (but
not during the same year as the California Pistachio Commission's
referendum), to ascertain whether continuance of this part is favored
by the growers. The Secretary shall continue the operation of this part
if either one of the following is found:
(1) Sixty-five percent or more of the growers who vote in the
referendum vote in favor of continuation, and the growers so voting
marketed at least 50 percent or more of the total quantity of
pistachios marketed in the preceding production year by all of the
growers who vote in the referendum; or
[[Page 39918]]
(2) That a majority of growers who vote in the referendum vote in
favor of continuation, and that the growers so voting marketed 65
percent or more of the total quantity of pistachios marketed in the
preceding production year by all of the growers who vote in the
referendum.
(c) The Committee shall consider all petitions from growers
submitted to it for termination of this part. It may recommend that the
Secretary conduct a special referendum upon receipt of a petition
signed by 15 percent of the growers by number who produced not less
than 15 percent of the volume in the immediately preceding season. If a
referendum meets the preceding criteria, then procedures would follow
paragraph (b) of this section.
(d) The Secretary shall terminate the provisions of this part at
the end of any production year whenever the Secretary finds by
referendum or otherwise that such termination is favored by a majority
of the growers of pistachios in the production area: Provided, That
such majority have, during the production year, produced more than 50
percent of the volume of the pistachios produced for market within the
production area. Such termination shall become effective only if
announced by the Secretary on or before June 1.
(e) The provisions of this part, as well as any amendments, shall
become effective at such time as the Secretary may declare, and shall
continue in force until terminated or suspended in one of the ways
specified in this section.
(f) The provisions of this part shall, in any event, terminate
whenever the provisions of the Act authorizing them cease to be in
effect.
Sec. 983.83 Procedure upon termination.
(a) Upon the termination of this part, the members of the Committee
then functioning shall continue as joint trustees, for the purpose of
liquidating the affairs of the Committee, continue as trustee of all
funds, and property then in its possession, and under its control,
including claims for any funds unpaid or property not delivered at the
time of such termination. Action by such trustees shall require the
concurrence of a majority of said trustees.
(b) The said trustees shall:
(1) Continue in such capacity until discharged by the Secretary;
(2) From time to time account for all receipts and disbursements
and deliver all property on hand, together with all books and records
of the Committee and the joint trustees, to such persons as the
Secretary may direct; and
(3) Upon the request of the Secretary, execute such assignments or
other instruments necessary or appropriate to vest in such person full
title and right to all the funds, properties, and claims vested in the
Committee or the joint trustees, pursuant thereto.
(c) Any person to whom funds, property, or claims have been
transferred or delivered by the Committee or the joint trustees,
pursuant to this section, shall be subject to the same obligations
imposed upon the members of said Committee and upon said joint
trustees.
Sec. 983.84 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the
termination of this part or of any regulation issued pursuant thereto,
or the issuance of any amendments to either thereof, shall not:
(a) Affect or waive any right, duty, obligation, or liability which
shall have arisen or which may thereafter arise, in connection with any
provision of this part or any regulation issued thereunder;
(b) Release or extinguish any violation of this part or any
regulation issued thereunder; and
(c) Affect or impair any rights or remedies of the Secretary, or of
any other persons, with respect to any such violations.
Sec. 983.85 Personal liability.
No member or alternate member of the Committee, nor any employee,
representative, or agent of the Committee shall be held personally
responsible, either individually or jointly with others, in any way
whatsoever, to any person, for errors in judgment, mistakes, or other
acts, either of commission or omission, as such member, alternate
member, employee, representative, or agent, except for acts of
dishonesty, willful misconduct, or gross negligence.
Sec. 983.86 Separability.
If any provision of this part is declared invalid, or the
applicability thereof to any person, circumstance, or thing is held
invalid, the validity of the remainder of this part or the
applicability thereof to any other person, circumstance, or thing,
shall not be affected thereby.
Sec. 983.87 Derogation.
Nothing contained in this part is, or shall be construed to be, in
derogation or in modification of the rights of the Secretary or of the
United States (a) to exercise any powers granted by the Act or
otherwise, or (b), in accordance with such powers, to act in the
premise whenever such action is deemed advisable.
Sec. 983.88 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person
by virtue of this part shall cease upon its termination, except with
respect to acts done under and during the existence of this part.
Sec. 983.89 Agents.
The Secretary may, by a designation in writing, name any person,
including any officer or employee of the United States Government, or
name any, division or agency in the United States Department of
Agriculture, to act as the Secretary's agent or representative in
connection with any of the provisions of this part.
* Sec. 983.90 Counterparts.
Handlers may sign an agreement with the Secretary indicating their
support for the marketing order. This agreement may be executed in
multiple counterparts by each handler. If fifty percent of the
handlers, weighted by the volume of pistachios handled during a
representative period, enter into such an agreement, then a marketing
agreement shall exist for the pistachio marketing order.
* Sec. 983.91 Additional parties.
After the marketing order becomes effective, any handler may become
a party to the marketing agreement if a counterpart is executed by him
or her and delivered to the Secretary.
* Sec. 983.92 Order with marketing agreement.
Each signatory handler hereby requests the Secretary to issue,
pursuant to the Act, an order providing for regulating the handling of
pistachios in the same manner as is provided for in this agreement.
Dated: July 26, 1996.
Lon Hatamiya,
Administrator.
[FR Doc. 96-19550 Filed 7-29-96; 9:14 am]
BILLING CODE 3410-02-P
