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Rules and Regulations Federal Register

62175

Vol. 69, No. 205

Monday, October 25, 2004

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 906 

[Docket No. FV04–906–2 FIR] 

Oranges and Grapefruit Grown in 

Lower Rio Grande Valley in Texas; 

Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, 

USDA.

ACTION: Final rule.

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

final rule which decreased the 

assessment rate established for the 

Texas Valley Citrus Committee 

(Committee) for the 2004–05 and 

subsequent fiscal periods from $0.14 to 

$0.12 per 7⁄10-bushel carton or 

equivalent of oranges and grapefruit 

handled. The Committee locally 

administers the marketing order which 

regulates the handling of oranges and 

grapefruit grown in the Rio Grande 

Valley in Texas. Authorization to assess 

orange and grapefruit handlers enables 

the Committee to incur expenses that 

are reasonable and necessary to 

administer the program. The fiscal 

period began on August 1 and ends July 

31. The assessment rate will remain in 

effect indefinitely unless modified, 

suspended, or terminated.

DATES: November 24, 2004.

FOR FURTHER INFORMATION CONTACT:

Belinda G. Garza, Regional Manager, 

McAllen Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1313 E. Hackberry, 

McAllen, TX 78501; telephone: (956) 

682–2833, Fax: (956) 682–5942; 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 rule 

is issued under Marketing Agreement 

and Order No. 906, as amended (7 CFR 

part 906), regulating the handling of 

oranges and grapefruit grown in the 

Lower Rio Grande Valley in Texas, 

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, orange and grapefruit handlers 

in the Lower Rio Grande Valley are 

subject to assessments. Funds to 

administer the order are derived from 

such assessments. It is intended that the 

assessment rate as issued herein will be 

applicable to all assessable oranges and 

grapefruit beginning August 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 continues in effect the 

action that decreased the assessment 

rate established for the Committee for 

the 2004–05 and subsequent fiscal 

periods from $0.14 to $0.12 per 7⁄10

bushel carton or equivalent of oranges 

and grapefruit handled. 

The Texas orange and grapefruit 

marketing 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 Texas 

oranges and grapefruit. They are 

familiar with the Committee’s 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. 

For the 2003–04 and subsequent fiscal 

periods, the Committee recommended, 

and USDA approved, an assessment rate 

that would continue in effect from fiscal 

period to fiscal period unless modified, 

suspended, or terminated by USDA 

upon recommendation and information 

submitted by the Committee or other 

information available to USDA.

The Committee met on May 21, 2004, 

and recommended 2004–05 

expenditures of $1,005,956 and an 

assessment rate of $0.12 per 7⁄10-bushel 

carton or equivalent of oranges and 

grapefruit. Thirteen of the 14 Committee 

members and alternates acting as 

members voted in support of the $0.02 

decrease per 7⁄10-bushel carton or 

equivalent. One Committee member 

voted against the recommendation 

because he wanted the decrease to be 

larger. In comparison, last year’s 

budgeted expenditures were $1,322,506. 

The assessment rate of $0.12 is $0.02 

lower than the rate previously in effect. 

The decrease in the assessment rate and 

budget is primarily due to lower 

promotion and Mexican Fruit Fly 

program budgets. The reduced 

assessment rate and budget will lower 

62176 Federal Register / Vol. 69, No. 205 / Monday, October 25, 2004 / Rules and Regulations 

handler costs by about $180,000 and 

will keep the Committee’s operating 

reserve at an acceptable level. 

The major expenditures 

recommended by the Committee for the 

2004–05 fiscal period include $550,000 

for promotion, $204,000 for the Mexican 

Fruit Fly Support Program, $123,679 for 

management and administration of the 

program, and $72,777 for compliance. 

Budgeted expenses for these items in 

2003–04 were $800,000, $279,000, 

$119,929, and $72,777, respectively. 

The assessment rate recommended by 

the Committee was derived by dividing 

anticipated expenses by expected 

shipments of Texas oranges and 

grapefruit. Texas orange and grapefruit 

shipments for the fiscal period are 

estimated at 9 million 7⁄10-bushel 

cartons or equivalents, which should 

provide $1,080,000 in assessment 

income. Income derived from handler 

assessments will be more than adequate 

to cover budgeted expenses. Funds in 

the reserve (currently $175,000) will be 

kept within the maximum of one fiscal 

period’s expenses permitted by the 

order (§ 906.35). 

The assessment rate will 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 is 

effective for an indefinite period, the 

Committee will 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 will evaluate Committee 

recommendations and other available 

information to determine whether 

modification of the assessment rate is 

needed. Further rulemaking will be 

undertaken as necessary. The 

Committee’s 2004–05 budget and those 

for subsequent fiscal periods will be 

reviewed and, as appropriate, approved 

by USDA. 

Final 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 final regulatory 

flexibility analysis. 

The purpose of the RFA is to fit 

regulatory actions to the scale of 

business subject to such actions in order 

that small businesses will not be unduly 

or disproportionately burdened. 

Marketing orders issued pursuant to the 

Act, and 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 215 

producers of oranges and grapefruit in 

the production area and approximately 

13 handlers subject to regulation under 

the marketing order. Small agricultural 

producers are defined by the Small 

Business Administration (SBA) (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.

An updated Texas citrus industry 

profile shows that 2 of the 13 handlers 

(15 percent) could be considered large 

businesses under SBA’s definition, and 

the remaining 11 handlers (85 percent) 

could be considered small businesses. 

Of the approximately 215 producers 

within the production area, few have 

sufficient acreage to generate sales in 

excess of $750,000. Thus, the majority 

of handlers and producers of Texas 

oranges and grapefruit may be classified 

as small entities. 

This rule continues in effect the 

action that decreased the assessment 

rate established for the Committee and 

collected from handlers for the 2004–05 

and subsequent fiscal periods from 

$0.14 to $0.12 per 7⁄10-bushel carton or 

equivalent of oranges and grapefruit. 

The Committee met on May 21, 2004, 

and recommended 2004–05 

expenditures of $1,005,956 and an 

assessment rate of $0.12 per 7⁄10-bushel 

carton or equivalent of oranges and 

grapefruit. The assessment rate of $0.12 

is $0.02 lower than the previous rate. As 

mentioned earlier, the quantity of 

assessable oranges and grapefruit for the 

2004–05 fiscal period is estimated at 9 

million 7⁄10-bushel cartons or 

equivalents. Thus, the $0.12 assessment 

rate should provide $1,080,000 in 

assessment income and be more than 

adequate to cover budgeted expenses. 

The major expenditures 

recommended by the Committee for the 

2004–05 fiscal period include $550,000 

for promotion, $204,000 for the Mexican 

Fruit Fly Support Program, $123,679 for 

management and administration of the 

program, and $72,777 for compliance. 

Budgeted expenses for these items in 

2003–04 were $800,000, $279,000, 

$119,929, and $72,777, respectively. 

The Committee recommended the 

$0.12 assessment rate primarily because 

it reduced its promotion and Mexican 

Fruit Fly programs. At a $0.14 

assessment rate, the Committee 

projected its reserve on July 31, 2005, to 

be $401,160, which it believed was 

more than needed to administer the 

program. It also recommended the 

reduced assessment rate to lower 

handler costs by about $180,000 during 

2004–05. 

The Committee reviewed and 

recommended 2004–05 expenditures of 

$1,005,956, which included decreases 

in the promotion and Mexican Fruit Fly 

programs and an increase in the 

management and administration of the 

marketing order program. In arriving at 

the budget, the Committee considered 

information from various sources, 

including the Executive Committee. 

Alternative expenditure levels were 

discussed, based upon the relative need 

of the Mexican Fruit Fly program to the 

Texas citrus industry. 

The assessment rate recommended by 

the Committee was derived by dividing 

the total recommended budget by the 9-

million 7⁄10-bushel cartons of oranges 

and grapefruit estimated for the 2004–05 

fiscal period. The $0.12 rate will 

provide $1,080,000 in assessment 

income. This is approximately $74,044 

above the anticipated expenses, which 

the Committee determined to be 

acceptable. 

A review of historical information 

from recent seasons (2000–2002) and 

preliminary information pertaining to 

the upcoming fiscal period indicates 

that the season average packinghouse 

door price for the 2004–05 fiscal period 

could likely range from $1.40 to $2.60 

per 7⁄10-bushel carton of Texas oranges, 

and from $2.15 to $2.70 for Texas 

grapefruit. Therefore, the estimated 

assessment revenue for the 2004–05 

fiscal period as a percentage of total 

grower (packinghouse door) revenue 

could range between 8.6 and 4.6 percent 

for oranges and between 5.6 and 4.4 

percent for grapefruit. 

This action continues in effect the 

action that decreased the assessment 

obligation imposed on handlers. 

Assessments are applied uniformly on 

all handlers, and some of the costs may 

be passed on to producers. However, 

decreasing the assessment rate reduces 

the burden on handlers, and may reduce 

the burden on producers. In addition, 

the Committee’s meeting was widely 

publicized throughout the Texas orange 

and grapefruit industry and all 

interested persons were invited to 

attend the meeting and participate in 

Committee deliberations on all issues. 

Like all Committee meetings, the May 

21, 2004, meeting was a public meeting 

and all entities, both large and small, 

were able to express views on this issue.

Federal Register / Vol. 69, No. 205 / Monday, October 25, 2004 / Rules and Regulations 62177

This action imposes no additional 

reporting or recordkeeping requirements 

on either small or large Texas orange 

and grapefruit handlers. 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. 

USDA has not identified any relevant 

Federal rules that duplicate, overlap, or 

conflict with this rule. 

An interim final rule concerning this 

action was published in the Federal 

Register on July 29, 2004 (69 FR 45231). 

Copies of that rule were also mailed or 

sent via facsimile to all orange and 

grapefruit handlers. Finally, the interim 

final rule was made available through 

the Internet by USDA and the Office of 

the Federal Register. A 60-day comment 

period was provided for interested 

persons to respond to the interim final 

rule. The comment period ended on 

September 27, 2004, and no comments 

were received. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: http://www.ams.usda.gov/

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. 

After consideration of all relevant 

material presented, including the 

information and recommendation 

submitted by the Committee and other 

available information, it is hereby found 

that this rule, as hereinafter set forth, 

will tend to effectuate the declared 

policy of the Act.

List of Subjects in 7 CFR Part 906 

Grapefruit, Marketing agreements, 

Oranges, Reporting and recordkeeping 

requirements.

PART 906—ORANGES AND 

GRAPEFRUIT GROWN IN LOWER RIO 

GRANDE VALLEY IN TEXAS

■ Accordingly, the interim final rule 

amending 7 CFR part 906 which was 

published at 69 FR 45231 on July 29, 

2004, is adopted as a final rule without 

change.

Dated: October 19, 2004. 

A.J. Yates, 

Administrator, Agricultural Marketing 

Service.

[FR Doc. 04–23827 Filed 10–22–04; 8:45 am] 

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service 

7 CFR Parts 922 and 923 

[Docket No. FV04–922–1 FIR] 

Decreased Assessment Rates for 

Specified Marketing Orders

AGENCY: Agricultural Marketing Service, 

USDA.

ACTION: Final rule.

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

final rule which decreased the 

assessment rates established for the 

Washington Apricot Marketing 

Committee and the Washington Cherry 

Marketing Committee (Committees) for 

the 2004–2005 and subsequent fiscal 

periods. This final rule decreases the 

assessment rates established for the 

Committees from $3.00 to $2.50 per ton 

for Washington apricots and from $1.00 

to $0.75 per ton for Washington sweet 

cherries. The Committees are 

responsible for local administration of 

the marketing orders that regulate the 

handling of apricots and cherries grown 

in designated counties in Washington. 

Authorization to assess apricot and 

cherry handlers enables the Committees 

to incur expenses that are reasonable 

and necessary to administer the 

programs. The fiscal period for both 

marketing orders began April 1 and 

ends March 31. The assessment rates 

will remain in effect indefinitely unless 

modified, suspended, or terminated.

DATES: November 24, 2004.

FOR FURTHER INFORMATION CONTACT:

Teresa L. Hutchinson, Marketing 

Specialist, Northwest Marketing Field 

Office, Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1220 SW., Third Avenue, 

Suite 385, Portland, OR 97204; 

telephone: (503) 326–2724, Fax: (503) 

326–7440; or George J. 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 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 rule 

is issued under Marketing Agreement 

and Order No. 922 (7 CFR part 922) 

regulating the handling of apricots 

grown in designated counties in 

Washington, and Marketing Agreement 

and Order No. 923 (7 CFR part 923) 

regulating the handling of sweet 

cherries grown in designated counties in 

Washington, hereinafter referred to as 

the ‘‘orders.’’ The orders are effective 

under the Agricultural Marketing 

Agreement Act of 1937, as amended (7 

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

as the ‘‘Act.’’

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 orders 

now in effect, handlers in designated 

counties in Washington are subject to 

assessments. Funds to administer the 

orders are derived from such 

assessments. It is intended that the 

assessment rates as issued herein will be 

applicable to all assessable Washington 

apricots and Washington sweet cherries 

beginning April 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 continues to decrease the 

assessment rates established for the 

Committees for the 2004–2005 and 

subsequent fiscal periods from $3.00 to 

$2.50 per ton for Washington apricots 

and from $1.00 to $0.75 per ton for 

Washington sweet cherries. 

The orders provide authority for the 

Committees, with the approval of 

USDA, to formulate annual budgets of 

expenses and collect assessments from