Marketing Order Regulating the Handling of Spearmint Oil Produced in the Far West; Revision of the Salable Quantity and Allotment Percentage for Class 3 (Native) Spearmint Oil for the 2004-2005 Marketing Year, 15557-15560 [05-6081]
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Federal Register / Vol. 70, No. 58 / Monday, March 28, 2005 / Rules and Regulations
Done in Washington, DC, this 22nd day of
March 2005.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant
Health Inspection Service.
[FR Doc. 05–6029 Filed 3–25–05; 8:45 am]
BILLING CODE 3410–34–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 985
[Docket No. FV04–985–2 IFR–A2]
Marketing Order Regulating the
Handling of Spearmint Oil Produced in
the Far West; Revision of the Salable
Quantity and Allotment Percentage for
Class 3 (Native) Spearmint Oil for the
2004–2005 Marketing Year
Agricultural Marketing Service,
USDA.
ACTION: Interim final rule with request
for comments.
AGENCY:
SUMMARY: This rule further amends
prior interim final rules that increased
the quantity of Class 3 (Native)
spearmint oil produced in the Far West
that handlers may purchase from, or
handle for, producers during the 2004–
2005 marketing year. This rule increases
the Native spearmint oil salable quantity
by an additional 85,936 pounds from
1,267,562 pounds to 1,353,498 pounds,
and the allotment percentage by an
additional 4 percent from 59 percent to
63 percent. The Spearmint Oil
Administrative Committee (Committee),
the agency responsible for local
administration of the marketing order
for spearmint oil produced in the Far
West, unanimously recommended this
rule to avoid extreme fluctuations in
supplies and prices and to help
maintain stability in the Far West
spearmint oil market.
DATES: Effective June 1, 2004, through
May 31, 2005; comments received by
April 25, 2005, will be considered prior
to issuance of a final rule.
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:
https://www.regulations.gov. All
comments should reference the docket
number and the date and page number
of this issue of the Federal Register and
will be made available for public
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inspection in the Office of the Docket
Clerk during regular business hours, or
can be viewed at: https://
www.ams.usda.gov/fv/moab.html.
FOR FURTHER INFORMATION CONTACT:
Susan M. Hiller, Northwest Marketing
Field Office, Marketing Order
Administration Branch, Fruit and
Vegetable Programs, AMS, USDA, 1220
SW Third Avenue, Suite 385, Portland,
Oregon 97204; Telephone: (503) 326–
2724, Fax: (503) 326–7440; 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 Order No.
985, as amended (7 CFR part 985),
regulating the handling of spearmint oil
produced in the Far West (Washington,
Idaho, Oregon, and designated parts of
Nevada and Utah), 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. This rule is not intended to
have retroactive effect. This rule will
not preempt any State or local laws,
regulations, or policies, unless they
present an irreconcilable conflict with
this rule.
The Act provides that administrative
proceedings must be exhausted before
parties may file suit in court. Under
section 608c(15)(A) of the Act, any
handler subject to an order may file
with USDA a petition stating that the
order, any provision of the order, or any
obligation imposed in connection with
the order is not in accordance with law
and request a modification of the order
or to be exempted therefrom. A handler
is afforded the opportunity for a hearing
on the petition. After the hearing USDA
would rule on the petition. The Act
provides that the district court of the
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15557
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.
The initial salable quantity and
allotment percentages for Scotch and
Native spearmint oils for the 2004–2005
marketing year were recommended by
the Committee at its October 8, 2003,
meeting. The Committee recommended
salable quantities of 766,880 pounds
and 773,474 pounds, and allotment
percentages of 40 percent and 36
percent, respectively, for Scotch and
Native spearmint oils. A proposed rule
was published in the Federal Register
on January 23, 2004 (69 FR 3272).
Comments on the proposed rule were
solicited from interested persons until
February 23, 2004. No comments were
received. Subsequently, a final rule
establishing the salable quantities and
allotment percentages for Scotch and
Native spearmint oils for the 2004–2005
marketing year was published in the
Federal Register on March 22, 2004 (69
FR 13213).
Pursuant to authority contained in
§§ 985.50, 985.51, and 985.52 of the
order, the Committee has made
unanimous Committee
recommendations to increase the
quantity of Native spearmint oil that
handlers may purchase from, or handle
for, producers during the 2004–2005
marketing year, which ends on May 31,
2005. An interim final rule was
published in the Federal Register on
October 21, 2004 (69 FR 61755), which
increased the salable quantity from
773,474 pounds to 1,095,689 pounds,
and the allotment percentage from 36
percent to 51 percent. Comments on the
interim final rule were solicited from
interested persons until December 20,
2004. No comments were received. In
addition, an amended interim final rule
was published in the Federal Register
on February 23, 2005 (70 FR 8712),
which further increased the salable
quantity by 171,873 pounds to
1,267,562 pounds, and the allotment
percentage by 8 percent to 59 percent.
Comments on the amended interim final
rule are being solicited from interested
persons through April 25, 2005.
This rule further amends the interim
final rule published on February 23,
2005, and is based on a unanimous
Committee recommendation made at a
meeting on February 23, 2005, to
increase the salable quantity an
additional 85,936 pounds from
1,267,562 pounds to 1,353,498 pounds,
and the allotment percentage an
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additional 4 percent from 59 percent to
63 percent.
The salable quantity is the total
quantity of each class of oil that
handlers may purchase from, or handle
for, producers during a marketing year.
The total salable quantity is divided by
the total industry allotment base to
determine an allotment percentage.
Each producer is allotted a share of the
salable quantity by applying the
allotment percentage to the producer’s
individual allotment base for the
applicable class of spearmint oil.
Taking into consideration the
following discussion on adjustments to
the Native spearmint oil salable
quantity, the 2004–2005 marketing year
salable quantity of 1,267,562 pounds is
increased to 1,353,498 pounds.
The original total industry allotment
base for Native spearmint oil for the
2004–2005 marketing year was
established at 2,148,539 pounds and
was revised at the beginning of the
2004–2005 marketing year to 2,148,410
pounds to reflect a 2003–2004
marketing year loss of 129 pounds of
base due to non-production of some
producers’ total annual allotments.
When the revised total allotment base of
2,148,410 pounds is applied to the
originally established allotment
percentage of 36 percent, the 2004–2005
marketing year salable quantity of
773,474 pounds was effectively
modified to 773,428 pounds.
By increasing the salable quantity and
allotment percentage, this further
amended interim final rule makes an
additional amount of Native spearmint
oil available by releasing oil from the
reserve pool. When applied to each
individual producer, the 4 percent
allotment percentage increase allows
each producer to take up to an amount
equal to 4 percent of their allotment
base from their Native spearmint oil
reserve. This action makes an additional
51,971 pounds of Native spearmint oil
available to the market. This figure is
less than the salable quantity increase
because not all producers have enough
native spearmint oil left in their reserves
to take full advantage of this release.
The following table summarizes the
Committee recommendation:
Native Spearmint Oil Recommendation
(A) Estimated 2004–2005 Allotment
Base—2,148,539 pounds. This is the
estimate that the original 2004–2005
Native spearmint oil salable quantity
and allotment percentage was based on.
(B) Revised 2004–2005 Allotment
Base—2,148,410 pounds. This is 129
pounds less than the estimated
allotment base of 2,148,539 pounds.
This is less because some producers
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failed to produce all of their 2003–2004
allotment.
(C) Initial 2004–2005 Allotment
Percentage—36 percent. This was
recommended by the Committee on
October 8, 2003.
(D) Initial 2004–2005 Salable
Quantity—773,474. This figure is 36
percent of 2,148,539 pounds.
(E) Revised 2004–2005 Salable
Quantity—773,428 pounds. This figure
reflects the salable quantity initially
available after the beginning of the
2004–2005 marketing year due to the
129 pound reduction in the industry
allotment base to 2,148,410 pounds.
(F) First Revision to the 2004–2005
Salable Quantity and Allotment
Percentage
(1) Increase in Allotment Percentage—
15 percent. The Committee
recommended a 12 percent increase at
its September 13, 2004, meeting and an
additional 3 percent increase at its
October 6, 2004, meeting, for a total
increase of 15 percent, which was
effective on October 21, 2004.
(2) 2004–2005 Allotment Percentage—
51 percent. This figure was derived by
adding the first revised increase of 15
percent to the initial 2004–2005
allotment percentage of 36 percent.
(3) Calculated 2004–2005 Salable
Quantity—1,095,689 pounds. This
figure is 51 percent of the revised 2004–
2005 allotment base of 2,148,410
pounds.
(4) Computed Increase in the 2004–
2005 Salable Quantity—322,262
pounds. This figure is 15 percent of the
revised 2004–2005 allotment base of
2,148,410 pounds.
(G) Second Revision to the 2004–2005
Salable Quantity and Allotment
Percentage
(1) Increase in Allotment Percentage—
8 percent. The Committee
recommended an 8 percent increase at
its meeting on January 20, 2005, which
was effective on February 23, 2005.
(2) 2004–2005 Allotment Percentage—
59 percent. This figure was derived by
adding the 8 percent to the first revised
2004–2005 allotment percentage of 51
percent.
(3) Calculated 2004–2005 Salable
Quantity—1,267,562 pounds. This
figure is 59 percent of the revised 2004–
2005 allotment base of 2,148,410
pounds.
(4) Computed Increase in the 2004–
2005 Salable Quantity—171,873
pounds. This figure is 8 percent of the
revised 2004–2005 allotment base of
2,148,410 pounds.
(H) Third Revision to the 2004–2005
Salable Quantity and Allotment
Percentage
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(1) Increase in Allotment Percentage—
4 percent. This was recommended by
the Committee on February 23, 2005.
(2) 2004–2005 Allotment Percentage—
63 percent. This figure was derived by
adding the 4 percent to the second
revised 2004–2005 allotment percentage
of 59 percent.
(3) Calculated 2004–2005 Salable
Quantity—1,353,498 pounds. This
figure is 63 percent of the revised 2004–
2005 allotment base of 2,148,410
pounds.
(4) Computed Increase in the 2004–
2005 Salable Quantity—85,936 pounds.
This figure is 4 percent of the revised
2004–2005 allotment base of 2,148,410
pounds.
In making this recommendation, the
Committee considered all available
information on price, supply, and
demand. The Committee also
considered reports and other
information from handlers and
producers in attendance at the meeting
and the report given by the Committee
manager from handlers and producers
who were not in attendance. The 2004–
2005 marketing year began on June 1,
2004. Handlers have reported purchases
of 1,070,801 pounds of Native spearmint
oil for the period of June 1, 2004,
through February 15, 2005. This amount
exceeds the five-year average of 899,979
pounds for this period by 170,822
pounds. On average, handlers indicated
that the estimated total demand for the
2004–2005 marketing year could range
from a minimum of 1,269,000 pounds to
as much as 1,279,000 pounds. This
amount exceeds the five-year average for
an entire marketing year of 973,456
pounds by as little as 295,544 pounds
and as much as 305,544 pounds.
Therefore, based on past history, the
industry may not be able to meet market
demand without this increase. When the
Committee made its initial
recommendation for the establishment
of the Native spearmint oil salable
quantity and allotment percentage for
the 2004–2005 marketing year, it had
anticipated that the year would end
with an ample available supply.
Based on its analysis of available
information, USDA has determined that
the salable quantity and allotment
percentage for Native spearmint oil for
the 2004–2005 marketing year should be
increased to 1,353,498 pounds and 63
percent, respectively.
This amended rule further relaxes the
regulation of Native spearmint oil and
will allow for market needs and
improve producer returns. In
conjunction with the issuance of this
rule, the Committee’s revised marketing
policy statement for the 2004–2005
marketing year has been reviewed by
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USDA. The Committee’s marketing
policy statement, a requirement
whenever the Committee recommends
implementing volume regulations or
recommends revisions to existing
volume regulations, meets the intent of
§ 985.50 of the order. During its
discussion of revising the 2004–2005
salable quantities and allotment
percentages, the Committee considered:
(1) The estimated quantity of salable oil
of each class held by producers and
handlers; (2) the estimated demand for
each class of oil; (3) prospective
production of each class of oil; (4) total
of allotment bases of each class of oil for
the current marketing year and the
estimated total of allotment bases of
each class for the ensuing marketing
year; (5) the quantity of reserve oil, by
class, in storage; (6) producer prices of
oil, including prices for each class of oil;
and (7) general market conditions for
each class of oil, including whether the
estimated season average price to
producers is likely to exceed parity.
Conformity with USDA’s ‘‘Guidelines
for Fruit, Vegetable, and Specialty Crop
Marketing Orders’’ has also been
reviewed and confirmed.
The increase in the Native spearmint
oil salable quantity and allotment
percentage allows for anticipated market
needs for this class of oil. In
determining anticipated market needs,
consideration by the Committee was
given to historical sales, and changes
and trends in production and demand.
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 action 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 currently 8 handlers of
spearmint oil who are subject to
regulation under the marketing order
and 98 producers of Class 3 (Native)
spearmint oil in the regulated area.
Small agricultural service firms are
defined by the Small Business
Administration (SBA) (13 CFR 121.201)
as those having annual receipts of less
than $5,000,000, and small agricultural
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producers are defined as those having
annual receipts of less than $750,000.
Based on SBA’s definition of small
entities, the Committee estimates that 2
of the 8 handlers regulated by the order
could be considered small entities. Most
of the handlers are large corporations
involved in the international trading of
essential oils and the products of
essential oils. In addition, the
Committee estimates that 15 of the 98
Native spearmint oil producers could be
classified as small entities under the
SBA definition. Thus, a majority of
handlers and producers of Far West
spearmint oil may not be classified as
small entities.
The Far West spearmint oil industry
is characterized by producers whose
farming operations generally involve
more than one commodity, and whose
income from farming operations is not
exclusively dependent on the
production of spearmint oil. A typical
spearmint oil-producing operation has
enough acreage for rotation such that
the total acreage required to produce the
crop is about one-third spearmint and
two-thirds rotational crops. Thus, the
typical spearmint oil producer has to
have considerably more acreage than is
planted to spearmint during any given
season. Crop rotation is an essential
cultural practice in the production of
spearmint oil for weed, insect, and
disease control. To remain economically
viable with the added costs associated
with spearmint oil production, most
spearmint oil-producing farms fall into
the SBA category of large businesses.
Small spearmint oil producers
generally are not as extensively
diversified as larger ones and as such
are more at risk to market fluctuations.
Such small producers generally need to
market their entire annual crop and do
not have the luxury of having other
crops to cushion seasons with poor
spearmint oil returns. Conversely, large
diversified producers have the potential
to endure one or more seasons of poor
spearmint oil markets because income
from alternate crops could support the
operation for a period of time. Being
reasonably assured of a stable price and
market provides small producing
entities with the ability to maintain
proper cash flow and to meet annual
expenses. Thus, the market and price
stability provided by the order
potentially benefit the small producer
more than such provisions benefit large
producers. Even though a majority of
handlers and producers of spearmint oil
may not be classified as small entities,
the volume control feature of this order
has small entity orientation.
This rule further amends an interim
final rule that was published in the
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15559
Federal Register on October 21, 2004
(69 FR 61755) and amended on
February 23, 2005 (70 FR 8712).
Specifically, the rule published on
October 21, 2004, increased the salable
quantity from 773,474 pounds to
1,095,689 pounds, and the allotment
percentage from 36 percent to 51
percent for Native spearmint oil for the
2004–2005 marketing year. The rule that
subsequently amended the interim final
rule was published on February 23,
2005, and increased the salable quantity
an additional 171,873 pounds to
1,267,562 pounds, and the allotment
percentage an additional 8 percent to 59
percent. This rule further amends that
interim final rule to increase the salable
quantity an additional 85,936 pounds to
1,353,498 pounds, and the allotment
percentage an additional 4 percent to 63
percent. This rule relaxes the regulation
of Native spearmint oil and will allow
producers to meet market needs and
improve returns.
An econometric model was used to
assess the impact that volume control
has on the prices producers receive for
their commodity. Without volume
control, spearmint oil markets would
likely be over-supplied, resulting in low
producer prices and a large volume of
oil stored and carried over to the next
crop year. The model estimates how
much lower producer prices would
likely be in the absence of volume
controls.
The recommended salable
percentages, upon which 2004–2005
producer allotments are based, are 40
percent for Scotch and 63 percent for
Native (a 27 percentage point increase
from the original salable percentage of
36 percent). Without volume controls,
producers would not be limited to these
allotment levels, and could produce and
sell additional spearmint. The
econometric model estimated a $1.30
per pound decline in the season average
producer price (for both classes of
spearmint oil) resulting from the higher
quantities that would be produced and
marketed if volume controls were not
used (i.e., if the salable percentages were
set at 100 percent). A previous price
decline estimate of $1.71 per pound was
based on the 2004–2005 salable
percentages (40 percent for Scotch and
36 percent for Native) published in the
Federal Register on March 22, 2004 (69
FR 13213).
The 2003 Far West producer price for
both classes of spearmint oil was $9.50
per pound, which is below the average
of $11.33 for the period of 1980 through
2002, based on National Agricultural
Statistics Service data. The surplus
situation for the spearmint oil market
that would exist without volume
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controls in 2004–2005 also would likely
dampen prospects for improved
producer prices in future years because
of the buildup in stocks.
The use of volume controls allows the
industry to fully supply spearmint oil
markets while avoiding the negative
consequences of over-supplying these
markets. The use of volume controls is
believed to have little or no effect on
consumer prices of products containing
spearmint oil and will not result in
fewer retail sales of such products.
Based on projections available at the
meetings, the Committee considered
alternatives to the 4 percent increase.
The Committee not only considered
leaving the Native spearmint oil salable
quantity and allotment percentage
unchanged, but also looked at various
increases ranging from 3 percent to 5
percent. The Committee reached its
recommendation to again increase the
salable quantity and allotment
percentage for Native spearmint oil after
careful consideration of all available
information, and believes that the level
recommended will achieve the
objectives sought. Without the increase,
the Committee believes the industry
would not be able to meet market needs.
This rule will not impose any
additional reporting or recordkeeping
requirements on either small or large
spearmint oil 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.
In addition, USDA has not identified
any relevant Federal rules that
duplicate, overlap or conflict with this
rule.
Further, the Committee meetings were
widely publicized throughout the
spearmint oil industry and all interested
persons were invited to attend the
meetings and participate in Committee
deliberations. Like all Committee
meetings, the September 13, 2004,
October 6, 2004, January 20, 2005, and
the February 23, 2005, meetings were
public meetings and all entities, both
large and small, were able to express
their views on each of the recommended
increases in the 2004–2005 Native
spearmint oil salable quantity and
allotment percentage.
Finally, interested persons are invited
to submit information on the regulatory
and informational 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: https://www.ams.usda.gov/
fv/moab.html. Any questions about the
compliance guide should be sent to Jay
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Guerber at the previously mentioned
address in the FOR FURTHER INFORMATION
CONTACT section.
This rule invites comments on a
revision to the salable quantity and
allotment percentage for Native
spearmint oil for the 2004–2005
marketing year. Comments must be
received by April 25, 2005. This closing
date is deemed appropriate to receive
comments in a timely manner and this
date corresponds to the ending date of
the comment period for the amended
interim final rule. Any comments
received will be considered prior to
finalization of this rule.
After consideration of all relevant
material presented, including the
Committee’s recommendation, and
other information, it is found that this
further amended interim final rule, as
hereinafter set forth, will tend to
effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also
found and determined upon good cause
that it is impracticable, unnecessary,
and contrary to the public interest to
give preliminary notice prior to putting
this rule into effect and that good cause
exists for not postponing the effective
date of this rule until 30 days after
publication in the Federal Register
because: (1) This rule increases the
quantity of Native spearmint oil that
may be marketed during the marketing
year which ends on May 31, 2005; (2)
the current quantity of Native spearmint
oil may be inadequate to meet demand
for the remainder of the marketing year,
thus making the additional oil available
as soon as is practicable is beneficial to
both handlers and producers; (3) the
Committee unanimously recommended
this change at a public meeting and
interested parties had an opportunity to
provide input; and (4) this rule provides
an appropriate comment period and any
comments received will be considered
prior to finalization of this rule.
List of Subjects in 7 CFR Part 985
Marketing agreements, Oils and fats,
Reporting and recordkeeping
requirements, Spearmint oil.
I For the reasons set forth in the
preamble, 7 CFR part 985 is amended as
follows:
PART 985—MARKETING ORDER
REGULATING THE HANDLING OF
SPEARMINT OIL PRODUCED IN THE
FAR WEST
1. The authority citation for 7 CFR part
985 continues to read as follows:
I
Authority: 7 U.S.C. 601–674.
2. In § 985.223, paragraph (b) is revised
to read as follows:
I
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[Note: This section will not appear in the
annual Code of Federal Regulations.]
§ 985.223 Salable quantities and allotment
percentages—2004–2005 marketing year.
*
*
*
*
*
(b) Class 3 (Native) oil—a salable
quantity of 1,353,498 pounds and an
allotment percentage of 63 percent.
Dated: March 23, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing
Service.
[FR Doc. 05–6081 Filed 3–23–05; 3:55 pm]
BILLING CODE 3410–02–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 993
[Docket No. FV05–993–1 FR]
Dried Prunes Produced in California;
Increased Assessment Rate
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
SUMMARY: This rule increases the
assessment rate established for the
Prune Marketing Committee
(committee) under Marketing Order No.
993 for the 2004–05 and subsequent
crop years from $4.00 to $6.00 per ton
of salable dried prunes. The committee
locally administers the marketing order
which regulates the handling of dried
prunes grown in California.
Authorization to assess dried prune
handlers enables the committee to incur
expenses that are reasonable and
necessary to administer the program.
The committee recommended a higher
assessment rate because the 2004–05
crop is very small, and the higher
assessment rate is needed to generate
funds to meet program expenses and
provide an adequate financial reserve.
The crop year began August 1 and ends
July 31. The assessment rate will remain
in effect indefinitely unless modified,
suspended, or terminated.
EFFECTIVE DATE: March 29, 2005.
FOR FURTHER INFORMATION CONTACT: Toni
Sasselli, Program Analyst, or Terry
Vawter, 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;
E:\FR\FM\28MRR1.SGM
28MRR1
]]>Agencies
[Federal Register Volume 70, Number 58 (Monday, March 28, 2005)]
[Rules and Regulations]
[Pages 15557-15560]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-6081]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 985
[Docket No. FV04-985-2 IFR-A2]
Marketing Order Regulating the Handling of Spearmint Oil Produced
in the Far West; Revision of the Salable Quantity and Allotment
Percentage for Class 3 (Native) Spearmint Oil for the 2004-2005
Marketing Year
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This rule further amends prior interim final rules that
increased the quantity of Class 3 (Native) spearmint oil produced in
the Far West that handlers may purchase from, or handle for, producers
during the 2004-2005 marketing year. This rule increases the Native
spearmint oil salable quantity by an additional 85,936 pounds from
1,267,562 pounds to 1,353,498 pounds, and the allotment percentage by
an additional 4 percent from 59 percent to 63 percent. The Spearmint
Oil Administrative Committee (Committee), the agency responsible for
local administration of the marketing order for spearmint oil produced
in the Far West, unanimously recommended this rule to avoid extreme
fluctuations in supplies and prices and to help maintain stability in
the Far West spearmint oil market.
DATES: Effective June 1, 2004, through May 31, 2005; comments received
by April 25, 2005, will be considered prior to issuance of a final
rule.
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: https://www.regulations.gov. All comments should reference the
docket number and the date and page number of this issue of the Federal
Register and will be made available for public inspection in the Office
of the Docket Clerk during regular business hours, or can be viewed at:
https://www.ams.usda.gov/fv/moab.html.
FOR FURTHER INFORMATION CONTACT: Susan M. Hiller, Northwest Marketing
Field Office, Marketing Order Administration Branch, Fruit and
Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, Suite 385,
Portland, Oregon 97204; Telephone: (503) 326-2724, Fax: (503) 326-7440;
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 Order
No. 985, as amended (7 CFR part 985), regulating the handling of
spearmint oil produced in the Far West (Washington, Idaho, Oregon, and
designated parts of Nevada and Utah), 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. This rule is not intended to have retroactive effect.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with USDA a petition
stating that the order, any provision of the order, or any obligation
imposed in connection with the order is not in accordance with law and
request a modification of the order or to be exempted therefrom. A
handler is afforded the opportunity for a hearing on the petition.
After the hearing USDA would rule on the petition. The Act provides
that the district court of the United States in any district in which
the handler is an inhabitant, or has his or her principal place of
business, has jurisdiction to review USDA's ruling on the petition,
provided an action is filed not later than 20 days after the date of
the entry of the ruling.
The initial salable quantity and allotment percentages for Scotch
and Native spearmint oils for the 2004-2005 marketing year were
recommended by the Committee at its October 8, 2003, meeting. The
Committee recommended salable quantities of 766,880 pounds and 773,474
pounds, and allotment percentages of 40 percent and 36 percent,
respectively, for Scotch and Native spearmint oils. A proposed rule was
published in the Federal Register on January 23, 2004 (69 FR 3272).
Comments on the proposed rule were solicited from interested persons
until February 23, 2004. No comments were received. Subsequently, a
final rule establishing the salable quantities and allotment
percentages for Scotch and Native spearmint oils for the 2004-2005
marketing year was published in the Federal Register on March 22, 2004
(69 FR 13213).
Pursuant to authority contained in Sec. Sec. 985.50, 985.51, and
985.52 of the order, the Committee has made unanimous Committee
recommendations to increase the quantity of Native spearmint oil that
handlers may purchase from, or handle for, producers during the 2004-
2005 marketing year, which ends on May 31, 2005. An interim final rule
was published in the Federal Register on October 21, 2004 (69 FR
61755), which increased the salable quantity from 773,474 pounds to
1,095,689 pounds, and the allotment percentage from 36 percent to 51
percent. Comments on the interim final rule were solicited from
interested persons until December 20, 2004. No comments were received.
In addition, an amended interim final rule was published in the Federal
Register on February 23, 2005 (70 FR 8712), which further increased the
salable quantity by 171,873 pounds to 1,267,562 pounds, and the
allotment percentage by 8 percent to 59 percent. Comments on the
amended interim final rule are being solicited from interested persons
through April 25, 2005.
This rule further amends the interim final rule published on
February 23, 2005, and is based on a unanimous Committee recommendation
made at a meeting on February 23, 2005, to increase the salable
quantity an additional 85,936 pounds from 1,267,562 pounds to 1,353,498
pounds, and the allotment percentage an
[[Page 15558]]
additional 4 percent from 59 percent to 63 percent.
The salable quantity is the total quantity of each class of oil
that handlers may purchase from, or handle for, producers during a
marketing year. The total salable quantity is divided by the total
industry allotment base to determine an allotment percentage. Each
producer is allotted a share of the salable quantity by applying the
allotment percentage to the producer's individual allotment base for
the applicable class of spearmint oil.
Taking into consideration the following discussion on adjustments
to the Native spearmint oil salable quantity, the 2004-2005 marketing
year salable quantity of 1,267,562 pounds is increased to 1,353,498
pounds.
The original total industry allotment base for Native spearmint oil
for the 2004-2005 marketing year was established at 2,148,539 pounds
and was revised at the beginning of the 2004-2005 marketing year to
2,148,410 pounds to reflect a 2003-2004 marketing year loss of 129
pounds of base due to non-production of some producers' total annual
allotments. When the revised total allotment base of 2,148,410 pounds
is applied to the originally established allotment percentage of 36
percent, the 2004-2005 marketing year salable quantity of 773,474
pounds was effectively modified to 773,428 pounds.
By increasing the salable quantity and allotment percentage, this
further amended interim final rule makes an additional amount of Native
spearmint oil available by releasing oil from the reserve pool. When
applied to each individual producer, the 4 percent allotment percentage
increase allows each producer to take up to an amount equal to 4
percent of their allotment base from their Native spearmint oil
reserve. This action makes an additional 51,971 pounds of Native
spearmint oil available to the market. This figure is less than the
salable quantity increase because not all producers have enough native
spearmint oil left in their reserves to take full advantage of this
release.
The following table summarizes the Committee recommendation:
Native Spearmint Oil Recommendation
(A) Estimated 2004-2005 Allotment Base--2,148,539 pounds. This is
the estimate that the original 2004-2005 Native spearmint oil salable
quantity and allotment percentage was based on.
(B) Revised 2004-2005 Allotment Base--2,148,410 pounds. This is 129
pounds less than the estimated allotment base of 2,148,539 pounds. This
is less because some producers failed to produce all of their 2003-2004
allotment.
(C) Initial 2004-2005 Allotment Percentage--36 percent. This was
recommended by the Committee on October 8, 2003.
(D) Initial 2004-2005 Salable Quantity--773,474. This figure is 36
percent of 2,148,539 pounds.
(E) Revised 2004-2005 Salable Quantity--773,428 pounds. This figure
reflects the salable quantity initially available after the beginning
of the 2004-2005 marketing year due to the 129 pound reduction in the
industry allotment base to 2,148,410 pounds.
(F) First Revision to the 2004-2005 Salable Quantity and Allotment
Percentage
(1) Increase in Allotment Percentage--15 percent. The Committee
recommended a 12 percent increase at its September 13, 2004, meeting
and an additional 3 percent increase at its October 6, 2004, meeting,
for a total increase of 15 percent, which was effective on October 21,
2004.
(2) 2004-2005 Allotment Percentage--51 percent. This figure was
derived by adding the first revised increase of 15 percent to the
initial 2004-2005 allotment percentage of 36 percent.
(3) Calculated 2004-2005 Salable Quantity--1,095,689 pounds. This
figure is 51 percent of the revised 2004-2005 allotment base of
2,148,410 pounds.
(4) Computed Increase in the 2004-2005 Salable Quantity--322,262
pounds. This figure is 15 percent of the revised 2004-2005 allotment
base of 2,148,410 pounds.
(G) Second Revision to the 2004-2005 Salable Quantity and Allotment
Percentage
(1) Increase in Allotment Percentage--8 percent. The Committee
recommended an 8 percent increase at its meeting on January 20, 2005,
which was effective on February 23, 2005.
(2) 2004-2005 Allotment Percentage--59 percent. This figure was
derived by adding the 8 percent to the first revised 2004-2005
allotment percentage of 51 percent.
(3) Calculated 2004-2005 Salable Quantity--1,267,562 pounds. This
figure is 59 percent of the revised 2004-2005 allotment base of
2,148,410 pounds.
(4) Computed Increase in the 2004-2005 Salable Quantity--171,873
pounds. This figure is 8 percent of the revised 2004-2005 allotment
base of 2,148,410 pounds.
(H) Third Revision to the 2004-2005 Salable Quantity and Allotment
Percentage
(1) Increase in Allotment Percentage--4 percent. This was
recommended by the Committee on February 23, 2005.
(2) 2004-2005 Allotment Percentage--63 percent. This figure was
derived by adding the 4 percent to the second revised 2004-2005
allotment percentage of 59 percent.
(3) Calculated 2004-2005 Salable Quantity--1,353,498 pounds. This
figure is 63 percent of the revised 2004-2005 allotment base of
2,148,410 pounds.
(4) Computed Increase in the 2004-2005 Salable Quantity--85,936
pounds. This figure is 4 percent of the revised 2004-2005 allotment
base of 2,148,410 pounds.
In making this recommendation, the Committee considered all
available information on price, supply, and demand. The Committee also
considered reports and other information from handlers and producers in
attendance at the meeting and the report given by the Committee manager
from handlers and producers who were not in attendance. The 2004-2005
marketing year began on June 1, 2004. Handlers have reported purchases
of 1,070,801 pounds of Native spearmint oil for the period of June 1,
2004, through February 15, 2005. This amount exceeds the five-year
average of 899,979 pounds for this period by 170,822 pounds. On
average, handlers indicated that the estimated total demand for the
2004-2005 marketing year could range from a minimum of 1,269,000 pounds
to as much as 1,279,000 pounds. This amount exceeds the five-year
average for an entire marketing year of 973,456 pounds by as little as
295,544 pounds and as much as 305,544 pounds. Therefore, based on past
history, the industry may not be able to meet market demand without
this increase. When the Committee made its initial recommendation for
the establishment of the Native spearmint oil salable quantity and
allotment percentage for the 2004-2005 marketing year, it had
anticipated that the year would end with an ample available supply.
Based on its analysis of available information, USDA has determined
that the salable quantity and allotment percentage for Native spearmint
oil for the 2004-2005 marketing year should be increased to 1,353,498
pounds and 63 percent, respectively.
This amended rule further relaxes the regulation of Native
spearmint oil and will allow for market needs and improve producer
returns. In conjunction with the issuance of this rule, the Committee's
revised marketing policy statement for the 2004-2005 marketing year has
been reviewed by
[[Page 15559]]
USDA. The Committee's marketing policy statement, a requirement
whenever the Committee recommends implementing volume regulations or
recommends revisions to existing volume regulations, meets the intent
of Sec. 985.50 of the order. During its discussion of revising the
2004-2005 salable quantities and allotment percentages, the Committee
considered: (1) The estimated quantity of salable oil of each class
held by producers and handlers; (2) the estimated demand for each class
of oil; (3) prospective production of each class of oil; (4) total of
allotment bases of each class of oil for the current marketing year and
the estimated total of allotment bases of each class for the ensuing
marketing year; (5) the quantity of reserve oil, by class, in storage;
(6) producer prices of oil, including prices for each class of oil; and
(7) general market conditions for each class of oil, including whether
the estimated season average price to producers is likely to exceed
parity. Conformity with USDA's ``Guidelines for Fruit, Vegetable, and
Specialty Crop Marketing Orders'' has also been reviewed and confirmed.
The increase in the Native spearmint oil salable quantity and
allotment percentage allows for anticipated market needs for this class
of oil. In determining anticipated market needs, consideration by the
Committee was given to historical sales, and changes and trends in
production and demand.
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 action 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 currently 8 handlers of spearmint oil who are subject to
regulation under the marketing order and 98 producers of Class 3
(Native) spearmint oil in the regulated area. Small agricultural
service firms are defined by the Small Business Administration (SBA)
(13 CFR 121.201) as those having annual receipts of less than
$5,000,000, and small agricultural producers are defined as those
having annual receipts of less than $750,000.
Based on SBA's definition of small entities, the Committee
estimates that 2 of the 8 handlers regulated by the order could be
considered small entities. Most of the handlers are large corporations
involved in the international trading of essential oils and the
products of essential oils. In addition, the Committee estimates that
15 of the 98 Native spearmint oil producers could be classified as
small entities under the SBA definition. Thus, a majority of handlers
and producers of Far West spearmint oil may not be classified as small
entities.
The Far West spearmint oil industry is characterized by producers
whose farming operations generally involve more than one commodity, and
whose income from farming operations is not exclusively dependent on
the production of spearmint oil. A typical spearmint oil-producing
operation has enough acreage for rotation such that the total acreage
required to produce the crop is about one-third spearmint and two-
thirds rotational crops. Thus, the typical spearmint oil producer has
to have considerably more acreage than is planted to spearmint during
any given season. Crop rotation is an essential cultural practice in
the production of spearmint oil for weed, insect, and disease control.
To remain economically viable with the added costs associated with
spearmint oil production, most spearmint oil-producing farms fall into
the SBA category of large businesses.
Small spearmint oil producers generally are not as extensively
diversified as larger ones and as such are more at risk to market
fluctuations. Such small producers generally need to market their
entire annual crop and do not have the luxury of having other crops to
cushion seasons with poor spearmint oil returns. Conversely, large
diversified producers have the potential to endure one or more seasons
of poor spearmint oil markets because income from alternate crops could
support the operation for a period of time. Being reasonably assured of
a stable price and market provides small producing entities with the
ability to maintain proper cash flow and to meet annual expenses. Thus,
the market and price stability provided by the order potentially
benefit the small producer more than such provisions benefit large
producers. Even though a majority of handlers and producers of
spearmint oil may not be classified as small entities, the volume
control feature of this order has small entity orientation.
This rule further amends an interim final rule that was published
in the Federal Register on October 21, 2004 (69 FR 61755) and amended
on February 23, 2005 (70 FR 8712). Specifically, the rule published on
October 21, 2004, increased the salable quantity from 773,474 pounds to
1,095,689 pounds, and the allotment percentage from 36 percent to 51
percent for Native spearmint oil for the 2004-2005 marketing year. The
rule that subsequently amended the interim final rule was published on
February 23, 2005, and increased the salable quantity an additional
171,873 pounds to 1,267,562 pounds, and the allotment percentage an
additional 8 percent to 59 percent. This rule further amends that
interim final rule to increase the salable quantity an additional
85,936 pounds to 1,353,498 pounds, and the allotment percentage an
additional 4 percent to 63 percent. This rule relaxes the regulation of
Native spearmint oil and will allow producers to meet market needs and
improve returns.
An econometric model was used to assess the impact that volume
control has on the prices producers receive for their commodity.
Without volume control, spearmint oil markets would likely be over-
supplied, resulting in low producer prices and a large volume of oil
stored and carried over to the next crop year. The model estimates how
much lower producer prices would likely be in the absence of volume
controls.
The recommended salable percentages, upon which 2004-2005 producer
allotments are based, are 40 percent for Scotch and 63 percent for
Native (a 27 percentage point increase from the original salable
percentage of 36 percent). Without volume controls, producers would not
be limited to these allotment levels, and could produce and sell
additional spearmint. The econometric model estimated a $1.30 per pound
decline in the season average producer price (for both classes of
spearmint oil) resulting from the higher quantities that would be
produced and marketed if volume controls were not used (i.e., if the
salable percentages were set at 100 percent). A previous price decline
estimate of $1.71 per pound was based on the 2004-2005 salable
percentages (40 percent for Scotch and 36 percent for Native) published
in the Federal Register on March 22, 2004 (69 FR 13213).
The 2003 Far West producer price for both classes of spearmint oil
was $9.50 per pound, which is below the average of $11.33 for the
period of 1980 through 2002, based on National Agricultural Statistics
Service data. The surplus situation for the spearmint oil market that
would exist without volume
[[Page 15560]]
controls in 2004-2005 also would likely dampen prospects for improved
producer prices in future years because of the buildup in stocks.
The use of volume controls allows the industry to fully supply
spearmint oil markets while avoiding the negative consequences of over-
supplying these markets. The use of volume controls is believed to have
little or no effect on consumer prices of products containing spearmint
oil and will not result in fewer retail sales of such products.
Based on projections available at the meetings, the Committee
considered alternatives to the 4 percent increase. The Committee not
only considered leaving the Native spearmint oil salable quantity and
allotment percentage unchanged, but also looked at various increases
ranging from 3 percent to 5 percent. The Committee reached its
recommendation to again increase the salable quantity and allotment
percentage for Native spearmint oil after careful consideration of all
available information, and believes that the level recommended will
achieve the objectives sought. Without the increase, the Committee
believes the industry would not be able to meet market needs.
This rule will not impose any additional reporting or recordkeeping
requirements on either small or large spearmint oil 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.
In addition, USDA has not identified any relevant Federal rules
that duplicate, overlap or conflict with this rule.
Further, the Committee meetings were widely publicized throughout
the spearmint oil industry and all interested persons were invited to
attend the meetings and participate in Committee deliberations. Like
all Committee meetings, the September 13, 2004, October 6, 2004,
January 20, 2005, and the February 23, 2005, meetings were public
meetings and all entities, both large and small, were able to express
their views on each of the recommended increases in the 2004-2005
Native spearmint oil salable quantity and allotment percentage.
Finally, interested persons are invited to submit information on
the regulatory and informational 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 invites comments on a revision to the salable quantity
and allotment percentage for Native spearmint oil for the 2004-2005
marketing year. Comments must be received by April 25, 2005. This
closing date is deemed appropriate to receive comments in a timely
manner and this date corresponds to the ending date of the comment
period for the amended interim final rule. Any comments received will
be considered prior to finalization of this rule.
After consideration of all relevant material presented, including
the Committee's recommendation, and other information, it is found that
this further amended interim final rule, as hereinafter set forth, will
tend to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect and that good cause exists for not postponing the effective date
of this rule until 30 days after publication in the Federal Register
because: (1) This rule increases the quantity of Native spearmint oil
that may be marketed during the marketing year which ends on May 31,
2005; (2) the current quantity of Native spearmint oil may be
inadequate to meet demand for the remainder of the marketing year, thus
making the additional oil available as soon as is practicable is
beneficial to both handlers and producers; (3) the Committee
unanimously recommended this change at a public meeting and interested
parties had an opportunity to provide input; and (4) this rule provides
an appropriate comment period and any comments received will be
considered prior to finalization of this rule.
List of Subjects in 7 CFR Part 985
Marketing agreements, Oils and fats, Reporting and recordkeeping
requirements, Spearmint oil.
0
For the reasons set forth in the preamble, 7 CFR part 985 is amended as
follows:
PART 985--MARKETING ORDER REGULATING THE HANDLING OF SPEARMINT OIL
PRODUCED IN THE FAR WEST
0
1. The authority citation for 7 CFR part 985 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. In Sec. 985.223, paragraph (b) is revised to read as follows:
[Note: This section will not appear in the annual Code of
Federal Regulations.]
Sec. 985.223 Salable quantities and allotment percentages--2004-2005
marketing year.
* * * * *
(b) Class 3 (Native) oil--a salable quantity of 1,353,498 pounds
and an allotment percentage of 63 percent.
Dated: March 23, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-6081 Filed 3-23-05; 3:55 pm]
BILLING CODE 3410-02-P
