Onions Grown in South Texas; Increased Assessment Rate, 21023-21026 [08-1149]
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Federal Register / Vol. 73, No. 76 / Friday, April 18, 2008 / Rules and Regulations
9701.706(k)(3)(iii), the Board must
consider requests for additional
discovery under the ‘‘necessity and
good cause’’ standard.
Suggestion 4: The language regarding
the right to a hearing set out in 5 CFR
1210.19(b) should be modified to make
it clear that, absent summary judgment,
a hearing must be held.
MSPB’s Response to Suggestion 4:
Read together, subparts (a) and (b) of 5
CFR 1210.19 make it clear that, absent
summary judgment, there is a right to a
hearing but that the form of hearing to
be held is within the administrative
judge’s discretion.
Suggestion 5: The summary judgment
provision, at 5 CFR 1210.20, should be
stricken in its entirety or, in the
alternative, subsection (d), which
provides that an administrative judge
may initiate summary judgment sua
sponte if he or she determines that
material facts may not be in dispute,
should be stricken.
MSPB’s Response to Suggestion 5: In
order to reconcile its regulations with
DHS’s regulations, at 5 CFR
9701.706(k)(5), MSPB’s regulations must
require an administrative judge to
render summary judgment on the law
without a hearing when there are no
material facts in dispute. That is the
case whether summary judgment is
initiated by a party or by the judge.
Suggestion 6: The mitigation of
penalty standard in 5 CFR 1210.21(b)
should be stricken in its entirety.
MSPB’s Response to Suggestion 6: In
order to reconcile its regulations with
DHS’s regulations, at 5 CFR
9701.706(k)(6), MSPB’s regulations must
contain DHS’s standard for mitigation of
penalties.
Suggestion 7: All references to
mandatory removal offenses should be
stricken from 5 CFR Part 1210.
MSPB’s Response to Suggestion 7: The
Board lacks authority to revoke the
appeals process for mandatory removal
offenses established by DHS. However,
as explained above, the Board is
adopting the suggestion of NTEU that 5
CFR 1210.41(a) be clarified to reflect
that a de novo standard of review
applies to allegations of discrimination
contained in mixed case appeals of MRP
decisions.
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List of Subjects in 5 CFR Parts 1201,
1210, and 1215
Administrative practice and
procedure, Civil rights, Government
employees.
I For reasons set forth in the preamble,
the interim rule published October 5,
2007 (72 FR 56883) is adopted as final
with the following changes:
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15:26 Apr 17, 2008
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PART 1201—PRACTICES AND
PROCEDURES
1. The authority citation for part 1201
continues to read as follows:
I
Authority: 5 U.S.C. 1204, 1305, and 7701,
and 38 U.S.C. 4331, unless otherwise noted.
2. Section 1201.11 is amended by
adding a new sentence at the end of the
section to read as follows:
I
§ 1201.11
Scope and policy.
* * * It is the Board’s policy that
these rules will be applied in a manner
that ensures the fair and efficient
processing of each case.
PART 1210—DEPARTMENT OF
HOMELAND SECURITY HUMAN
RESOURCES MANAGEMENT SYSTEM
3. The authority citation for part 1210
continues to read as follows:
I
Authority: 5 U.S.C. 1204 and 7701.
4. Section 1210.10(a)(4) is revised to
read as follows:
I
§ 1210.10
Notice of appeal rights.
(a) * * *
(4) Notice of any right the employee
has to file a grievance, including notice
that the election of any applicable
grievance procedure may result in a
waiver of the employee’s right to file an
appeal with the Board and as to whether
there is any right to request Board
review of a final decision on a grievance
in accordance with § 1201.154(d); and
*
*
*
*
*
I 5. Section 1210.14 is amended by
revising paragraphs (a)(1)(ii) and
(a)(2)(ii) to read as follows:
§ 1210.14 Initial disclosures; scope of
discovery.
(a) * * *
(1) * * *
(ii) The name, work address and work
telephone number, if known, of each
individual likely to have discoverable
information that the Department may
use in support of its claims or defenses,
identifying the subjects of such
information.
(2) * * *
(ii) The name, address and telephone
number, if known, of each individual
likely to have discoverable information
that the appellant may use in support of
his or her claims or defenses,
identifying the subjects of the
information. Each party must make its
initial disclosure based on the
information then reasonably available to
the party. Each party has an ongoing
obligation to supplement and update its
initial disclosure as relevant documents
and information are discovered or
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become available. A party is not
excused from making its disclosures
because it has not fully completed the
investigation of its case, because it
challenges the sufficiency of the other
party’s disclosures or because the other
party has not made its disclosures.
I 6. Section 1210.21 is amended by
adding a new sentence to the end of
paragraph (a) to read as follows:
§ 1210.21 Initial decision by the
adjudicating official.
(a) General. * * * For purposes of
this subsection only, a document that is
filed with a Board office by personal
delivery is considered filed on the date
on which the Board office receives it.
*
*
*
*
*
I 7. Section 1210.41is amended by
adding a sentence to paragraph (a)(3) to
read as follows:
§ 1210.41
Decision of the Board.
(a) * * *
(3) * * * The Board will apply a de
novo standard of review to allegations of
discrimination contained in mandatory
removal appeal actions.
*
*
*
*
*
Dated: April 10, 2008.
William D. Spencer,
Clerk of the Board.
[FR Doc. E8–8092 Filed 4–17–08; 8:45 am]
BILLING CODE 7400–01–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 959
[Docket No. AMS–FV–07–0151; FV08–959–
1 FR]
Onions Grown in South Texas;
Increased Assessment Rate
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
SUMMARY: This rule increases the
assessment rate established for the
South Texas Onion Committee
(Committee) for the 2007–08 and
subsequent fiscal periods from $0.02 to
$0.03 per 50-pound equivalent of onions
handled. The Committee locally
administers the marketing order which
regulates the handling of onions grown
in South Texas. Assessments upon
onion handlers are used by the
Committee to fund reasonable and
necessary expenses of the program. The
fiscal period begins August 1 and ends
July 31. The assessment rate will remain
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Federal Register / Vol. 73, No. 76 / Friday, April 18, 2008 / Rules and Regulations
in effect indefinitely unless modified,
suspended, or terminated.
DATES: Effective Date: April 21, 2008.
FOR FURTHER INFORMATION CONTACT:
Belinda G. Garza, Regional Manager,
Texas Marketing Field Office, Marketing
Order Administration Branch, Fruit and
Vegetable Programs, AMS, USDA;
Telephone: (956) 682–2833, Fax: (956)
682–5942, or E-mail:
Belinda.Garza@usda.gov.
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.
959, as amended (7 CFR part 959),
regulating the handling of onions grown
in South 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, South Texas onion handlers
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 onions
beginning on August 1, 2007, 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
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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 increases the assessment
rate established for the Committee for
the 2007–08 and subsequent fiscal
periods from $0.02 to $0.03 per 50pound equivalent of onions handled.
The South Texas onion 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 South Texas
onions. 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 2004–05 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 November 16,
2007, and unanimously recommended
2007–08 expenditures of $202,315 and
an assessment rate of $0.03 per 50pound equivalent of onions. In
comparison, last year’s budgeted
expenditures were $193,315. The
assessment rate of $0.03 is $0.01 higher
than the rate currently in effect. The
Committee recommended the increased
rate to continue to support the increased
budget for research started last season,
while reducing the amount of funds
drawn from the Committee’s authorized
reserve. Without the increase, the
Committee’s reserve funds would drop
to $114,728. The Committee believes a
reserve that low is not adequate for its
operations.
The major expenditures
recommended by the Committee for the
2007–08 fiscal period include $64,315
for personnel and office expenses,
$45,000 for compliance, $25,000 for
promotion, and $30,000 for research.
Budgeted expenses for these items in
2006–07 were $62,315, $43,000,
$25,000, and $25,000, respectively.
The assessment rate recommended by
the Committee was derived by dividing
anticipated expenses by expected
shipments of South Texas onions.
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Onion shipments for the fiscal period
are estimated at 5,775,000 fifty-pound
equivalents, which should provide
$173,250 in assessment income. Income
derived from handler assessments, along
with interest income and funds from the
Committee’s authorized reserve, will be
adequate to cover budgeted expenses.
Funds in the reserve (currently
$196,543) will be kept within the
maximum permitted by the order
(approximately two fiscal periods’
expenses, § 959.43).
The assessment rate established in
this rule 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 will be
in effect 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 2007–08 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 (5 U.S.C.
601–612) (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.
There are approximately 118
producers of onions in the production
area and approximately 34 handlers
subject to regulation under the
marketing order. Small agricultural
producers are defined by the Small
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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 $6,500,000.
Most of the handlers are vertically
integrated corporations involved in
producing, shipping, and marketing
onions. For the 2006–07 marketing year,
the industry’s 34 handlers shipped
onions produced on 12,460 acres with
the average and median volume handled
being 179,457 and 171,537 fifty-pound
equivalents, respectively. In terms of
production value, total revenues for the
34 handlers were estimated to be $86.7
million, with average and median
revenues being $2.55 million and $2.35
million, respectively.
The South Texas onion industry is
characterized by producers and
handlers whose farming operations
generally involve more than one
commodity, and whose income from
farming operations is not exclusively
dependent on the production of onions.
Alternative crops provide an
opportunity to utilize many of the same
facilities and equipment not in use
when the onion production season is
complete. For this reason, typical onion
producers and handlers either produce
multiple crops or alternate crops within
a single year.
Based on the SBA’s definition of
small entities, the Committee estimates
that 32 of the 34 (94 percent) handlers
regulated by the order would be
considered small entities if only their
spring onion revenues are considered.
However, revenues from other
productive enterprises would likely
push a large number of these handlers
above the $6,500,000 annual receipt
threshold. All of the 118 producers may
be classified as small entities based on
the SBA definition if only their revenue
from spring onions is considered. When
revenues from all sources are
considered, a majority of the producers
would not be considered small entities
because receipts would exceed
$750,000.
This rule increases the assessment
rate established for the Committee and
collected from handlers for the 2007–08
and subsequent fiscal periods from
$0.02 to $0.03 per 50-pound equivalent.
The Committee unanimously
recommended 2007–08 expenditures of
$202,315 and an assessment rate of
$0.03 per 50-pound equivalent. The
assessment rate of $0.03 is $0.01 higher
than the current rate. The quantity of
assessable onions for the 2007–08 fiscal
period is estimated at 5,775,000 fiftypound equivalents. Thus, the $0.03 rate
should provide $173,250 in assessment
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15:26 Apr 17, 2008
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income. Income derived from handler
assessments, along with interest income
and funds from the Committee’s
authorized reserve, will be more than
adequate to cover budgeted expenses.
The major expenditures
recommended by the Committee for the
2007–08 fiscal period include $64,315
for personnel and office expenses,
$45,000 for compliance, $25,000 for
promotion, and $30,000 for research.
Budgeted expenses for these items in
2006–07 were $62,315, $43,000,
$25,000, and $25,000, respectively.
The Committee recommended the
increased rate to continue funding a
research project begun last year without
having to draw a large amount from
reserves. Without the increase, the
Committee’s reserve funds would drop
to $114,728. The Committee believes a
reserve that low is not adequate for its
operations.
The Committee reviewed and
unanimously recommended 2007–08
expenditures of $202,315, which
included increases in the management
fee, compliance, and research.
Numerous alternative expenditure
levels were discussed based upon the
relative value of the research project to
the onion industry. The assessment rate
of $0.03 per 50-pound equivalent of
assessable onions was then determined
by dividing the total recommended
budget by the quantity of assessable
onions, estimated at 5,775,000 fiftypound equivalents for the 2007–08
fiscal period. The assessment rate
should generate $173,250 in income.
Considering income from interest and
assessments, total income will be
approximately $24,065 below the
anticipated expenses, which the
Committee determined to be acceptable.
A review of historical information and
preliminary information pertaining to
the upcoming fiscal period indicates
that the grower price for the 2007–08
fiscal period could range between
$10.00 and $28.00 per 50-pound
equivalent of onions. Therefore, the
estimated assessment revenue for the
2007–08 fiscal period as a percentage of
total grower revenue could range
between .11 and .30 percent.
This action increases the assessment
obligation imposed on handlers. 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 are
offset by the benefits derived by the
operation of the marketing order. In
addition, the Committee’s meeting was
widely publicized throughout the South
Texas onion industry and all interested
persons were invited to attend the
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21025
meeting and participate in Committee
deliberations on all issues. Like all
Committee meetings, the November 16,
2007, meeting was a public meeting and
all entities, both large and small, were
able to express views on this issue.
This rule imposes no additional
reporting or recordkeeping requirements
on either small or large South Texas
onion 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.
AMS is committed to complying with
the E-Government Act, to promote the
use of the Internet and other
information technologies to provide
increased opportunities for citizen
access to Government information and
services, and for other purposes.
USDA has not identified any relevant
Federal rules that duplicate, overlap, or
conflict with this rule.
A proposed rule concerning this
action was published in the Federal
Register on February 29, 2008 (73 FR
11060). Committee staff mailed copies
of the proposed rule to all South Texas
onion handlers and producers. In
addition, the proposal was made
available through the Internet by USDA
and the Office of the Federal Register. A
15-day comment period ending March
17, 2008, was provided for interested
persons to respond to the proposal. Two
comments were received. One
supported the proposed increase and
one opposed the proposal.
The commenter in support of the
assessment rate increase stated that the
proposed increase is very modest in
light of constantly increasing costs. The
commenter noted that planted South
Texas onion acreage remains volatile,
but has shown an overall decline, which
further impacts on the Committee’s
revenues.
The commenter opposing the increase
did not state the reason why he was not
in favor of the increase, only that it
should remain the same. However, we
believe that the assessment increase, as
recommended by the Committee, is
reasonable and necessary.
Accordingly, no changes will be made
to the rule as proposed.
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
Guerber at the previously mentioned
address in the FOR FURTHER INFORMATION
CONTACT section.
After consideration of all relevant
material presented, including the
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Federal Register / Vol. 73, No. 76 / Friday, April 18, 2008 / Rules and Regulations
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.
Pursuant to 5 U.S.C. 553, it also found
and determined that good cause exists
for not postponing the effective date of
this rule until 30 days after publication
in the Federal Register because the
2007–08 fiscal period began on August
1, 2007, and the marketing order
requires that the rate of assessment for
each fiscal period apply to all onions
handled during such fiscal period. In
addition, the Committee needs to have
sufficient funds to pay its expenses
which are incurred on a continuous
basis. Further, handlers are aware of this
action which was unanimously
recommended at a public meeting and
is similar to other assessment rate
actions issued in past fiscal periods.
Also, a 15-day comment period was
provided for in the proposed rule.
List of Subjects in 7 CFR Part 959
Marketing agreements, Onions,
Reporting and recordkeeping
requirements.
For the reasons set forth in the
preamble, 7 CFR part 959 is amended as
follows:
I
PART 959—ONIONS GROWN IN
SOUTH TEXAS
1. The authority citation for 7 CFR
part 959 continues to read as follows:
I
Authority: 7 U.S.C. 601–674.
2. Section 959.237 is revised to read
as follows:
I
§ 959.237
Assessment rate.
On and after August 1, 2007, an
assessment rate of $0.03 per 50-pound
equivalent is established for South
Texas onions.
Dated: April 15, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing
Service.
[FR Doc. 08–1149 Filed 4–15–08; 12:13 pm]
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BILLING CODE 3410–02–P
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Part 250
[Docket No. DOT–OST–01–9325]
RIN No. 2105–AD63
Oversales and Denied Boarding
Compensation
Office of the Secretary (OST),
Department of Transportation (DOT).
ACTION: Final rule.
AGENCY:
SUMMARY: The Department of
Transportation (DOT or Department) is
amending its rules relating to oversales
and denied boarding compensation to
increase the limits on the compensation
paid to ‘‘bumped’’ passengers, to cover
flights by certain U.S. and foreign air
carriers operated with aircraft seating 30
through 60 passengers, which are
currently exempt from the rule, and to
make other changes. These changes are
intended to maintain consumer
protection commensurate with
developments in the aviation industry.
This action is taken on the Department’s
initiative and in response to a petition
from the Air Transport Association.
DATES: This rule is effective May 19,
2008.
FOR FURTHER INFORMATION CONTACT: Tim
Kelly, Aviation Consumer Protection
Division, Office of the General Counsel,
Department of Transportation, 1200
New Jersey Ave., SE., Washington, DC
20590, 202–366–5952 (voice), 202–366–
5944 (fax), tim.kelly@dot.gov (e-mail).
SUPPLEMENTARY INFORMATION:
Background
Part 250 establishes minimum
standards for the treatment of airline
passengers holding confirmed
reservations on certain U.S. and foreign
carriers who are involuntarily denied
boarding (‘‘bumped’’) from flights that
are oversold. In most cases, bumped
passengers are entitled to compensation.
Part 250 sets the minimum amount of
compensation that is required to be
provided to passengers who are bumped
involuntarily. Until now the rule has
not applied to flights operated with
aircraft with a design capacity of 60 or
fewer passenger seats.
In adopting the original rule in the
1960s, the Civil Aeronautics Board
(CAB), the Department’s predecessor in
aviation economic regulation,
recognized the inherent unfairness in
carriers selling more ‘‘confirmed’’
reservations for a flight than they have
seats. Therefore, the CAB sought to
reduce the number of passengers
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involuntarily denied boarding to the
smallest practicable number without
prohibiting deliberate overbooking or
interfering unnecessarily with the
carriers’ reservations practices. Air
travelers receive some benefit from
controlled overbooking because it
allows flexibility in making and
canceling reservations as well as buying
and refunding tickets. Overbooking
makes possible a system of confirmed
reservations that can almost always be
honored. It allows airlines to fill more
seats, reducing the pressure for higher
fares, and makes it easier for people to
obtain reservations on the flights of their
choice. On the other hand, overbooking
is the major cause of oversales, and the
people who are inconvenienced are not
those who do not show up for their
flights, but passengers who have
conformed to all carrier rules. The
current rule allocates the risk of being
denied boarding among travelers by
requiring airlines to solicit volunteers
and use a boarding priority procedure
that is not unjustly discriminatory.
In 1981, the CAB amended the
oversales rule to exclude from the rule
all operations using aircraft with 60 or
fewer passenger seats. (ER–1237, 46 FR
42442, August 21, 1981.) At the time of
that proceeding, the impact of the rule
on carriers operating small aircraft was
found to be significant. If a passenger
was denied boarding on a typical smallaircraft short-haul flight and
subsequently missed a connection to a
long-haul flight, the short-haul carrier
usually had to compensate the
passenger in an amount equal to twice
the value of the passenger’s remaining
ticket coupons to his or her destination,
subject to a maximum limitation. For
example, if the short-haul fare was $50
and the connecting long-haul fare was
$500, the first carrier often had to pay
the passenger denied boarding
compensation in an amount far greater
than $50, depending on whether
alternate transportation could be
arranged to arrive within a short time,
despite the minimal fare that the first
carrier received for its flight. The
problem was exacerbated by the fact
that most commuter airline flights at the
time were on small turboprop and
piston engine aircraft which were
affected by weight limitations in high
temperature/humidity conditions to a
greater extent than jets and, therefore,
might require bumping even when the
carrier did not book beyond the seating
capacity of the aircraft.
Part 250 has tended to reduce
passenger inconvenience and financial
loss occasioned by overbooking without
imposing heavy burdens on the airlines
or significant costs on the traveling
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]]>Agencies
[Federal Register Volume 73, Number 76 (Friday, April 18, 2008)]
[Rules and Regulations]
[Pages 21023-21026]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 08-1149]
=======================================================================
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 959
[Docket No. AMS-FV-07-0151; FV08-959-1 FR]
Onions Grown in South Texas; Increased Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule increases the assessment rate established for the
South Texas Onion Committee (Committee) for the 2007-08 and subsequent
fiscal periods from $0.02 to $0.03 per 50-pound equivalent of onions
handled. The Committee locally administers the marketing order which
regulates the handling of onions grown in South Texas. Assessments upon
onion handlers are used by the Committee to fund reasonable and
necessary expenses of the program. The fiscal period begins August 1
and ends July 31. The assessment rate will remain
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in effect indefinitely unless modified, suspended, or terminated.
DATES: Effective Date: April 21, 2008.
FOR FURTHER INFORMATION CONTACT: Belinda G. Garza, Regional Manager,
Texas Marketing Field Office, Marketing Order Administration Branch,
Fruit and Vegetable Programs, AMS, USDA; Telephone: (956) 682-2833,
Fax: (956) 682-5942, or E-mail: Belinda.Garza@usda.gov.
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. 959, as amended (7 CFR part 959), regulating the handling of onions
grown in South 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, South Texas
onion handlers 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
onions beginning on August 1, 2007, 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 increases the assessment rate established for the
Committee for the 2007-08 and subsequent fiscal periods from $0.02 to
$0.03 per 50-pound equivalent of onions handled.
The South Texas onion 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
South Texas onions. 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 2004-05 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 November 16, 2007, and unanimously recommended
2007-08 expenditures of $202,315 and an assessment rate of $0.03 per
50-pound equivalent of onions. In comparison, last year's budgeted
expenditures were $193,315. The assessment rate of $0.03 is $0.01
higher than the rate currently in effect. The Committee recommended the
increased rate to continue to support the increased budget for research
started last season, while reducing the amount of funds drawn from the
Committee's authorized reserve. Without the increase, the Committee's
reserve funds would drop to $114,728. The Committee believes a reserve
that low is not adequate for its operations.
The major expenditures recommended by the Committee for the 2007-08
fiscal period include $64,315 for personnel and office expenses,
$45,000 for compliance, $25,000 for promotion, and $30,000 for
research. Budgeted expenses for these items in 2006-07 were $62,315,
$43,000, $25,000, and $25,000, respectively.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses by expected shipments of South Texas
onions. Onion shipments for the fiscal period are estimated at
5,775,000 fifty-pound equivalents, which should provide $173,250 in
assessment income. Income derived from handler assessments, along with
interest income and funds from the Committee's authorized reserve, will
be adequate to cover budgeted expenses. Funds in the reserve (currently
$196,543) will be kept within the maximum permitted by the order
(approximately two fiscal periods' expenses, Sec. 959.43).
The assessment rate established in this rule 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 will be in effect 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 2007-08 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 (5 U.S.C. 601-612) (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.
There are approximately 118 producers of onions in the production
area and approximately 34 handlers subject to regulation under the
marketing order. Small agricultural producers are defined by the Small
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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 $6,500,000.
Most of the handlers are vertically integrated corporations
involved in producing, shipping, and marketing onions. For the 2006-07
marketing year, the industry's 34 handlers shipped onions produced on
12,460 acres with the average and median volume handled being 179,457
and 171,537 fifty-pound equivalents, respectively. In terms of
production value, total revenues for the 34 handlers were estimated to
be $86.7 million, with average and median revenues being $2.55 million
and $2.35 million, respectively.
The South Texas onion industry is characterized by producers and
handlers whose farming operations generally involve more than one
commodity, and whose income from farming operations is not exclusively
dependent on the production of onions. Alternative crops provide an
opportunity to utilize many of the same facilities and equipment not in
use when the onion production season is complete. For this reason,
typical onion producers and handlers either produce multiple crops or
alternate crops within a single year.
Based on the SBA's definition of small entities, the Committee
estimates that 32 of the 34 (94 percent) handlers regulated by the
order would be considered small entities if only their spring onion
revenues are considered. However, revenues from other productive
enterprises would likely push a large number of these handlers above
the $6,500,000 annual receipt threshold. All of the 118 producers may
be classified as small entities based on the SBA definition if only
their revenue from spring onions is considered. When revenues from all
sources are considered, a majority of the producers would not be
considered small entities because receipts would exceed $750,000.
This rule increases the assessment rate established for the
Committee and collected from handlers for the 2007-08 and subsequent
fiscal periods from $0.02 to $0.03 per 50-pound equivalent. The
Committee unanimously recommended 2007-08 expenditures of $202,315 and
an assessment rate of $0.03 per 50-pound equivalent. The assessment
rate of $0.03 is $0.01 higher than the current rate. The quantity of
assessable onions for the 2007-08 fiscal period is estimated at
5,775,000 fifty-pound equivalents. Thus, the $0.03 rate should provide
$173,250 in assessment income. Income derived from handler assessments,
along with interest income and funds from the Committee's authorized
reserve, will be more than adequate to cover budgeted expenses.
The major expenditures recommended by the Committee for the 2007-08
fiscal period include $64,315 for personnel and office expenses,
$45,000 for compliance, $25,000 for promotion, and $30,000 for
research. Budgeted expenses for these items in 2006-07 were $62,315,
$43,000, $25,000, and $25,000, respectively.
The Committee recommended the increased rate to continue funding a
research project begun last year without having to draw a large amount
from reserves. Without the increase, the Committee's reserve funds
would drop to $114,728. The Committee believes a reserve that low is
not adequate for its operations.
The Committee reviewed and unanimously recommended 2007-08
expenditures of $202,315, which included increases in the management
fee, compliance, and research. Numerous alternative expenditure levels
were discussed based upon the relative value of the research project to
the onion industry. The assessment rate of $0.03 per 50-pound
equivalent of assessable onions was then determined by dividing the
total recommended budget by the quantity of assessable onions,
estimated at 5,775,000 fifty-pound equivalents for the 2007-08 fiscal
period. The assessment rate should generate $173,250 in income.
Considering income from interest and assessments, total income will be
approximately $24,065 below the anticipated expenses, which the
Committee determined to be acceptable.
A review of historical information and preliminary information
pertaining to the upcoming fiscal period indicates that the grower
price for the 2007-08 fiscal period could range between $10.00 and
$28.00 per 50-pound equivalent of onions. Therefore, the estimated
assessment revenue for the 2007-08 fiscal period as a percentage of
total grower revenue could range between .11 and .30 percent.
This action increases the assessment obligation imposed on
handlers. 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
are offset by the benefits derived by the operation of the marketing
order. In addition, the Committee's meeting was widely publicized
throughout the South Texas onion industry and all interested persons
were invited to attend the meeting and participate in Committee
deliberations on all issues. Like all Committee meetings, the November
16, 2007, meeting was a public meeting and all entities, both large and
small, were able to express views on this issue.
This rule imposes no additional reporting or recordkeeping
requirements on either small or large South Texas onion 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.
AMS is committed to complying with the E-Government Act, to promote
the use of the Internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes.
USDA has not identified any relevant Federal rules that duplicate,
overlap, or conflict with this rule.
A proposed rule concerning this action was published in the Federal
Register on February 29, 2008 (73 FR 11060). Committee staff mailed
copies of the proposed rule to all South Texas onion handlers and
producers. In addition, the proposal was made available through the
Internet by USDA and the Office of the Federal Register. A 15-day
comment period ending March 17, 2008, was provided for interested
persons to respond to the proposal. Two comments were received. One
supported the proposed increase and one opposed the proposal.
The commenter in support of the assessment rate increase stated
that the proposed increase is very modest in light of constantly
increasing costs. The commenter noted that planted South Texas onion
acreage remains volatile, but has shown an overall decline, which
further impacts on the Committee's revenues.
The commenter opposing the increase did not state the reason why he
was not in favor of the increase, only that it should remain the same.
However, we believe that the assessment increase, as recommended by the
Committee, is reasonable and necessary.
Accordingly, no changes will be made to the rule as proposed.
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
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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.
Pursuant to 5 U.S.C. 553, it also found and determined that good
cause exists for not postponing the effective date of this rule until
30 days after publication in the Federal Register because the 2007-08
fiscal period began on August 1, 2007, and the marketing order requires
that the rate of assessment for each fiscal period apply to all onions
handled during such fiscal period. In addition, the Committee needs to
have sufficient funds to pay its expenses which are incurred on a
continuous basis. Further, handlers are aware of this action which was
unanimously recommended at a public meeting and is similar to other
assessment rate actions issued in past fiscal periods. Also, a 15-day
comment period was provided for in the proposed rule.
List of Subjects in 7 CFR Part 959
Marketing agreements, Onions, Reporting and recordkeeping
requirements.
0
For the reasons set forth in the preamble, 7 CFR part 959 is amended as
follows:
PART 959--ONIONS GROWN IN SOUTH TEXAS
0
1. The authority citation for 7 CFR part 959 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. Section 959.237 is revised to read as follows:
Sec. 959.237 Assessment rate.
On and after August 1, 2007, an assessment rate of $0.03 per 50-
pound equivalent is established for South Texas onions.
Dated: April 15, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 08-1149 Filed 4-15-08; 12:13 pm]
BILLING CODE 3410-02-P
