[Federal Register: December 10, 2004 (Volume 69, Number 237)]
[Proposed Rules]
[Page 71749-71753]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10de04-24]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 983
[Docket No. FV04-983-2 PR]
Pistachios Grown in California; Establishment of Continuing
Assessment Rate and Reporting Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This rule would establish a continuing assessment rate for the
Administrative Committee for Pistachios (Committee) for the 2004-05 and
subsequent fiscal periods of $0.0014 per pound of pistachios received
for processing and would establish reporting requirements under the
California pistachio marketing order (order). The order regulates the
handling of pistachios grown in California and is administered by the
Committee. Authorization to assess pistachio handlers enables the
Committee to incur expenses that are reasonable and necessary to
administer the program. The fiscal period begins September 1 and ends
August 31. The assessment rate would remain in effect indefinitely
unless modified, suspended, or terminated. Requiring handlers to file
annual reports with the Committee would facilitate the Committee's
collection of handler assessments.
DATES: Comments must be received by February 8, 2005.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent to the Docket Clerk,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC
20250-0237; Fax: (202) 720-8938; E-mail: moab.docketclerk@usda.gov; or
Internet: http://www.regulations.gov. Comments should reference the
docket number and the date and page number of this issue of the Federal
Register and will be available for public inspection in the Office of
the Docket Clerk during regular business hours, or can be viewed at:
http://www.ams.usda.gov/fv/moab.html.
FOR FURTHER INFORMATION CONTACT: Toni Sasselli, Program Analyst, or
Rose Aguayo, Marketing Specialist, California Marketing Field Office,
Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey Street, suite
102B, Fresno, California 93721; 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.
[[Page 71750]]
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement and Order No. 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 rule has been reviewed under Executive Order 12988, Civil
Justice Reform. Under the marketing order now in effect, pistachio
handlers are subject to assessments. Funds to administer the order are
derived from such assessments. It is intended that the assessment rate
as proposed herein would be applicable to all assessable pistachios
beginning September 1, 2004, and continue until amended, suspended, or
terminated. This rule 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. Such
handler is afforded the opportunity for a hearing on the petition.
After the hearing USDA would rule on the petition. The Act provides
that the district court of the United States in any district in which
the handler is an inhabitant, or has his or her principal place of
business, has jurisdiction to review USDA's ruling on the petition,
provided an action is filed not later than 20 days after the date of
the entry of the ruling.
This rule would establish a continuing assessment rate for the
Committee for the 2004-05 and subsequent fiscal periods of $0.0014 per
pound of pistachios received for processing and would establish
reporting requirements under the California pistachio order. The
quantity of pistachios received by the handler for processing is
converted to an assessed weight pursuant to Sec. 983.6 and the
assessment rate is applied to that weight in determining a handler's
assessment obligation for the fiscal period. Requiring handlers to file
annual Receipts/Assessment Reports with the Committee would facilitate
the Committee's collection of handler assessments.
Continuing Assessment Rate
Sections 983.52 and 983.53 of the pistachio order provide authority
for the Committee, with the approval of USDA, to formulate an annual
budget of expenses and to collect assessments from handlers to
administer the marketing order. Each handler who receives pistachios
for processing in each production year (fiscal year) is required to pay
an assessment based on the pro rata share of the expenses authorized by
USDA which are reasonable and likely to be incurred by the Committee
during that year. The assessment obligation for each handler is
computed by applying the assessment rate set by USDA to each handler's
assessed weight computed pursuant to Sec. 983.6 of the pistachio
order.
The members of the Committee are producers and handlers of
California pistachios. They are familiar with the Committee needs and
with the costs for goods and services in their local area, and are,
thus, in a position to formulate an appropriate budget and assessment
rate. The assessment rate is formulated and discussed in a public
meeting. Thus, all directly affected persons have an opportunity to
participate and provide input.
The Committee met on August 17, 2004, and unanimously recommended
2004-05 expenditures of $271,499 and an assessment rate of $0.0014 per
pound of pistachios received for processing. This was the first public
meeting of the newly formed Committee since the pistachio marketing
order became effective on April 6, 2004 (69 FR 17944). The major
expenditures recommended by the Committee for the 2004-05 fiscal period
include $ 110,249 for administrative expenses; $34,500 for compliance
expenses; $101,750 for salaries; and $25,000 for a contingency reserve.
Because this is a new order and there is no carry-in income, the
Committee is borrowing funds from the California Pistachio Commission
(Commission) until assessments are collected in March 2005. The
Committee discussed the necessity of setting a relatively high
assessment rate for the 2004-05 fiscal period because it is necessary
to generate sufficient funds to reimburse the Commission, to cover the
Committee's 2004-05 expenditures, and to build an adequate reserve to
cover Committee expenditures until the 2005-06 fiscal period's
assessments are available in December 2005.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses plus funds to establish a reserve by
expected receipts (the assessed weight) of pistachios grown in
California during 2004-05 ($271,499 plus $190,501 divided by
330,000,000 pounds = $0.0014. With pistachio receipts for the year
estimated at 330,000,000 pounds, assessment income is expected to total
of $462,000.
The Committee may carry over excess funds into subsequent
production years (fiscal years) as a reserve, provided that funds
already in the reserve do not exceed approximately two production
years' budgeted expenses. In the event that funds exceed two production
years' budgeted expenses, future assessments would be reduced to bring
the reserves to an amount that is less than or equal to two production
years' budgeted expenses (Sec. 983.56). Funds in the reserve would be
kept within the maximum permitted by the order.
Under Sec. 983.53 the Committee, prior to the beginning of each
production year, shall recommend and the Secretary shall set the
assessment for the following production year, which shall not exceed
one-half of one percent of the average price received by producers in
the preceding production year. According to the Commission's Annual
Report for the 2003-04 crop year, the average price received by
producers was $1.15 per pound. One half of one percent equals $0.005.
Taking ($0.005) x ($1.15) = $0.00575 for the maximum assessment rate
allowed. The rates considered by the Committee ranged from $0.001 to
$0.0014. The recommended assessment rate of $0.0014 is less than the
maximum provided for in the order.
The proposed assessment rate would continue in effect indefinitely
unless modified, suspended, or terminated by USDA upon recommendation
and information submitted by the Committee or other available
information.
Although this assessment rate would be in effect for an indefinite
period, the Committee would continue to meet prior to or during each
fiscal period to recommend a budget of expenses and consider
recommendations for modification of the assessment rate. The dates and
times of Committee meetings are available from the Committee or USDA.
Committee meetings are open to the public and interested persons may
express their views at these meetings. USDA would evaluate Committee
recommendations and other available information to determine whether
modification of the assessment rate is needed. Further rulemaking would
be undertaken as necessary. The Committee's 2004-05 budget and those
[[Page 71751]]
for subsequent fiscal periods would be reviewed and, as appropriate,
approved by USDA.
Reporting Requirements
Section 983.47 of the pistachio order provides authority for
establishing reporting requirements. Under the order, the Committee
may, with the approval of the Secretary, establish reporting
requirements to collect necessary information or data.
At its first meeting, the Committee also unanimously recommended
that handlers file a Receipts/Assessment Report with the Committee to
facilitate the Committee's collection of handler assessments.
Handlers, including custom hullers, who receive pistachios for
processing (removal of green hulls and drying pistachios to 5 percent
moisture), would be required to pay an assessment attributable to the
assessed weight of pistachios received by that handler and to report
that assessed weight to the Committee on the Receipts/Assessment Form.
Pursuant to Sec. 983.6 of the order, the term ``assessed weight''
means the pounds of inshell pistachios, free of internal defects as
defined in Sec. 983.39(b)(4) and (5), with the weight computed at 5
percent moisture, received for processing by a handler within each
production year: Provided, That for loose kernels, the actual weight
shall be multiplied by two to obtain an inshell weight.
A final order published on July 26, 2004, (69 FR 44460), delayed
the implementation date for Sec. 983.39(b)(4) and (5), of the order
until February 1, 2005. Therefore, for the 2004-05 fiscal period, each
handler who receives pistachios for processing would be required to
furnish the Receipts/Assessment Report to the Committee and pay all due
assessments to the Committee by March 15, 2005. For subsequent fiscal
periods, each handler who receives pistachios for processing would be
required to furnish the Receipts/Assessment Report and pay all due
assessments to the Committee by December 15 of the applicable fiscal
period.
The recommended reporting requirements are similar to those
required by the Commission. Because the Commission is prohibited from
sharing confidential handler information, the Committee recommended
that a Receipt/Assessment Report be developed for Committee use and
that the receipts information already compiled for the Commission be
attached to the newly developed Committee form. Thus, handlers would
not be duplicating their efforts and both agencies would receive
necessary receipts/assessment data. The Committee estimates this action
would affect 20 handlers of pistachios and further estimates that, on
average, handlers would expend approximately 4 minutes per year to
prepare and submit this report to the Committee. These actions are in
the interest of producers and handlers. Detailed information on these
burdens is contained in the Paperwork Reduction Act section of this
document.
Assessment Collection
To facilitate assessment collections under the order, the Committee
unanimously recommended establishing Sec. 983.253. This section sets
the continuing assessment rate and establishes the reporting
requirements necessary to verify that each handler has paid the correct
assessment. Section 925.253 would read as follows: ``Sec. 983.253
Assessment rate. (a) On and after September 1, 2004, an assessment rate
of $0.0014 per pound of pistachios received for processing is
established for California Pistachios. The assessment obligation of
each handler would be computed by applying the assessment rate to the
assessed weight computed pursuant to Sec. 983.6. (b) For the 2004-05
fiscal period each handler who receives pistachios for processing shall
furnish the Receipts/Assessment Report to the Committee and pay all due
assessments to the Committee by March 15, 2005. For subsequent fiscal
periods, each handler who receives pistachios for processing shall
furnish the Receipts/Assessment Report and pay all due assessments to
the Committee by December 15 of the applicable fiscal period.''
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this rule on small entities. Accordingly, AMS has
prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 20 handlers of California pistachios
subject to regulation under the order and approximately 741 producers
in the production area. Small agricultural producers are defined by the
Small Business Administration (13 CFR 121.201) as those having annual
receipts less than $750,000, and small agricultural service firms are
defined as those whose annual receipts are less than $5,000,000. Eight
of the 20 handlers subject to regulation have annual pistachio receipts
of at least $5,000,000. In addition, 722 producers have annual receipts
less than $750,000. Thus, the majority of handlers and producers of
California pistachios may be classified as small entities.
This rule would establish a continuing assessment rate for the
Committee and collected from handlers for the 2004-05 and subsequent
fiscal periods of $0.0014 per pound of pistachios received for
processing and would establish reporting requirements under the
California pistachio order. Requiring handlers to file annual Receipts/
Assessment Reports with the Committee would facilitate the Committee's
collection of handler assessments. Pistachios harvested and received in
August of any year shall be applied to the subsequent production year
for order purposes.
Continuing Assessment Rate
The California pistachio order provides authority for the
Committee, with the approval of USDA, to formulate an annual budget of
expenses and collect assessments from handlers to administer the
program. The members of the Committee are producers and handlers of
California pistachios. They are familiar with the Committee needs and
with the costs for goods and services in their local area, and are thus
in a position to formulate an appropriate budget and assessment rate.
The assessment rate is formulated and discussed in a public meeting.
Thus, all directly affected persons have an opportunity to participate
and provide input.
The Committee met on August 17, 2004, and unanimously recommended
2004-05 expenditures of $271,499 and an assessment rate of $0.0014 per
pound of pistachios received for processing. This was the first public
meeting of the newly formed Committee since the pistachio marketing
order became effective on April 6, 2004 (69 FR 17944). The major
expenditures recommended by the Committee for the 2004-05 fiscal period
include $110,249 for administrative expenses; $34,500 for compliance
expenses; $101,750 for salaries; and $25,000 for a contingency reserve.
[[Page 71752]]
Because this is a new order and there is no carry-in income, the
Committee is borrowing funds from the Commission until assessments are
collected in March 2005. The Committee discussed the necessity of
setting a relatively high assessment rate for the 2004-05 fiscal period
because it is necessary to generate sufficient funds to reimburse the
Commission, to cover the Committee's 2004-05 expenditures, and to build
an adequate reserve to cover Committee expenditures until the 2005-06
fiscal period's assessments are available in December 2005.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses plus funds to establish a reserve by
expected receipts of pistachios grown in California ($271,499 plus
$190,501 divided by 330,000,000 pounds = $0.0014. With pistachio
receipts for the year estimated at 330,000,000 pounds, assessment
income should total $462,000.
The Committee 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 years' budgeted expenses. In the
event that funds exceed two productions years' budgeted expenses,
future assessments would be reduced to bring the reserves to an amount
that is less than or equal to two production years' budgeted expenses.
Funds in the reserve would be kept within the maximum permitted by the
order (Sec. 983.56).
The proposed assessment rate would continue in effect indefinitely
unless modified, suspended, or terminated by USDA upon recommendation
and information submitted by the Committee or other available
information.
Although this assessment rate would be in effect for an indefinite
period, the Committee would continue to meet prior to or during each
fiscal period to recommend a budget of expenses and consider
recommendations for modification of the assessment rate. The dates and
times of Committee meetings are available from the Committee or USDA.
Committee meetings are open to the public and interested persons may
express their views at these meetings. USDA would evaluate Committee
recommendations and other available information to determine whether
modification of the assessment rate is needed. Further rulemaking would
be undertaken as necessary. The Committee's 2004-05 budget and those
for subsequent fiscal periods would be reviewed and, as appropriate,
approved by USDA.
The Committee discussed alternative 2004-05 expenditures of
$246,499, which did not include $25,000 for a contingency reserve.
However, the Committee believes that it is important to establish a
contingency reserve for unforeseen expenditures, and, thus, unanimously
recommended expenditures in the amount of $271,499.
A review of historical information and preliminary information
pertaining to the upcoming fiscal period indicates that the grower
price for the 2004-05 season could range between $1.30 and $1.40 per
pound of assessed weight pistachios. Therefore, the estimated
assessment revenue for the 2004-05 fiscal period as a percentage of
total grower revenue could range between .11 and .10 percent.
Reporting Requirements
Section 983.47 of the pistachio order provides authority for
establishing reporting requirements. Under the order, the Committee
may, with the approval of the Secretary, establish reporting
requirements to collect necessary information or data.
To facilitate the collection of handler assessments, the Committee
also unanimously recommended that handlers file a Receipts/Assessment
Report with the Committee. Both small and large handlers would be
required to file the report and to pay assessments. The report would be
filed by handlers (including custom hullers) who receive pistachios for
processing (removal of green hulls and drying pistachios to 5 percent
moisture).
Handlers who receive pistachios for processing, would be required
to pay an assessment attributable to the assessed weight of pistachios
received by that handler and to report that assessed weight to the
Committee on the Receipts/Assessment Form. The term ``assessed weight''
is defined in Sec. 983.6 of the pistachio order.
Assessment Obligations
The computation of assessed weight involves requirements specified
in Sec. Sec. 983.39(b)(4) and (5). A final order published on July 26,
2004, (69 FR 44460), delayed the implementation date of those sections
until February 1, 2005. Therefore, for the 2004-05 fiscal period, each
handler who receives pistachios for processing would be required to
furnish the Receipts/Assessment Report to the Committee and pay all due
assessments to the Committee by March 15, 2005. For subsequent fiscal
periods, each handler who receives pistachios for processing would be
required to furnish the Receipts/Assessment Report and pay all due
assessments to the Committee by December 15 of the applicable fiscal
period.
While assessments impose some additional costs on handlers, the
costs are minimal and uniform on all handlers. Some of the additional
costs may be passed on to producers. However, these costs would be
offset by the benefits derived by the operation of the marketing order.
In addition, the Committee's meeting was widely publicized throughout
the production area commodity industry and all interested persons were
invited to attend the meeting and participate in Committee
deliberations on all issues. Like all Committee meetings, the August
17, 2004, meeting was a public meeting and all entities, both large and
small, were able to express views on this issue.
Interested persons are invited to submit comments on the
informational and regulatory impacts of this action on small
businesses. A small business guide on complying with fruit, vegetable,
and specialty crop marketing agreements and orders may be viewed at:
http://www.ams.usda.gov/fv/moab.html. Any questions about the
compliance guide should be sent to Jay Guerber at the previously
mentioned address in the FOR FURTHER INFORMATION CONTACT section.
This rule would impose some additional reporting and recordkeeping
on both small and large pistachio handlers. This action would require
one new Committee form. As with all Federal marketing order programs,
reports and forms are periodically reviewed to reduce information
requirements and duplication by industry and public sector agencies. In
addition, USDA has not identified any relevant Federal rules that
duplicate, overlap, or conflict with this rule.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), AMS is submitting to the Office of Management and Budget a
revision to approved information collection OMB No. 0581-0215,
``Pistachios Grown in California.''
Abstract
These information collection requirements are essential to carry
out the intent of the Act, to provide respondents the type of service
they request, and to administer the California pistachio marketing
order program, which was established in 2004.
Under the order, the committee may, with the approval of the
Secretary, establish reporting requirements to collect necessary
information or data.
[[Page 71753]]
On August 17, 2004, the Committee met and unanimously recommended
establishing a reporting requirement under the order similar to that
applied under the California Pistachio Commission. Because the
Commission is prohibited from sharing confidential handler information,
the committee recommended that a receipt/assessment report be developed
for committee use and that the receipts information already compiled
for the Commission be attached to the newly developed committee form.
Thus, handlers would not be duplicating their efforts and both agencies
would receive necessary receipts/assessment data.
The information collected will be used only by authorized
representatives of the USDA, including AMS, Fruit and Vegetable
Programs regional and headquarters' staff, and authorized Committee
employees. Authorized Committee employees are the primary users of the
information and AMS is the secondary user. The name of the form is the
Administrative Committee for Pistachios (ACP)-1; Receipts/Assessment
Report.
Total Annual Estimated Burden
The total burden for the information collection under the order is
as follows:
Estimate of Burden: 4 minutes per response.
Respondents: Qualified handlers or producers.
Estimated Number of Respondents: 20.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Average Burden on Respondents): 1 hour and
20 minutes.
Comments: Sixty days are provided for comments. Comments are
invited on: (1) Whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information would have practical utility; (2) the
accuracy of the agency's estimate of the burden of the proposed
collection of information, including the validity of the methodology
and assumptions used; (3) ways to enhance the quality, utility, and
clarity of the information to be collected; and (4) ways to minimize
the burden of the collection of information on those who are to
respond, including the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology.
Comments should reference OMB No. 0581-0215 and the marketing order
for pistachios grown in California, and be sent to USDA in care of the
Docket Clerk at the previously mentioned address. All comments received
will be available for public inspection during regular business hours
at the same address. All responses to this notice on informational
impacts will be summarized and included in the request for OMB approval
of the above described form. All comments will become a matter of
public record.
List of Subjects in 7 CFR Part 983
Pistachios, Marketing agreements, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 983 is
proposed to be amended as follows:
PART 983--PISTACHIOS GROWN IN CALIFORNIA
1. The authority citation for 7 CFR part 983 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. In part 983, a new Subpart--Assessment Rate and Sec. 983.253
are added to read as follows:
Subpart--Assessment Rate
Sec. 983.253 Assessment rate.
(a) On and after September 1, 2004, a continuing assessment rate of
$0.0014 per pound of assessed weight pistachios is established for
California Pistachios. The assessment obligation of each handler would
be computed by applying the assessment rate to the assessed weight
computed pursuant to Sec. 983.6.
(b) For the 2004-05 fiscal period each handler who receives
pistachios for processing shall furnish the Receipts/Assessment Report
to the Committee and pay all due assessments to the Committee by March
15, 2005. For subsequent fiscal periods, each handler who receives
pistachios for processing shall furnish the Receipts/Assessment Report
and pay all due assessments to the Committee by December 15 of the
applicable fiscal period.
Dated: December 7, 2004.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 04-27157 Filed 12-7-04; 2:54 pm]
BILLING CODE 3410-02-P