[Federal Register Volume 73, Number 105 (Friday, May 30, 2008)]
[Rules and Regulations]
[Pages 31015-31017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-12130]



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  Federal Register / Vol. 73, No. 105 / Friday, May 30, 2008 / Rules 
and Regulations  

[[Page 31015]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 47

[Docket Number AMS-FV-06-0217; FV07-376]
RIN 0581-AC72


Amendments to Rules of Practice Regulations Under the Perishable 
Agricultural Commodities Act (PACA) To Increase Reparation Complaint 
Filing and Handling Fees

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Agriculture (USDA) is amending the Rules of 
Practice under the Perishable Agricultural Commodities Act (PACA) to 
increase from $60 to $100 the fee for filing an informal complaint; and 
to increase from $300 to $500 the fee for handling a formal complaint.

DATES: Effective Date: June 30, 2008.

FOR FURTHER INFORMATION CONTACT: John Koller, Director, Dispute 
Resolution Section, 202-720-1442.

SUPPLEMENTARY INFORMATION: This final rule is issued under authority of 
Section 15 of the PACA (7 U.S.C. 499o).
    The Perishable Agricultural Commodities Act (PACA or Act) 
establishes a code of fair trade practices covering the marketing of 
fresh and frozen fruits and vegetables in interstate and foreign 
commerce. The PACA protects growers, shippers, distributors, and 
retailers dealing in those commodities by prohibiting unfair and 
fraudulent trade practices. In this way, the law fosters an efficient 
nationwide distribution system for fresh and frozen fruits and 
vegetables, benefiting the whole marketing chain from farmer to 
consumer. USDA's Agricultural Marketing Service (AMS) administers and 
enforces the PACA.
    The PACA program is financed by license and user fees and has an 
annual operating budget of approximately $10 million. Currently, annual 
expenses exceed revenue by $3 million, a disparity that is projected to 
increase each year by another 3 to 5 percent. Greater than half of the 
program's expenditures are payroll and related expenses, followed at a 
distant second by the cost of maintaining office space through rent, 
communications, and utility expenses. The PACA license and complaint 
filing fees have remained unchanged since 1995, in part due to a one-
time Congressional appropriation of $30.45 million deposited into the 
PACA reserve fund on October 1, 2000.
    One of the most important functions of the Act is to require that 
PACA licensees fulfill their contractual obligations, and the Act 
provides a forum, before the Secretary, where firms that buy and sell 
fruits and vegetables can settle commercial disputes outside of the 
civil court system and recover damages for losses they have suffered. 
These cases are called ``reparation cases.'' In 1995, Section 6 of the 
PACA (7 U.S.C. 499f) was amended to require a $60 filing fee for filing 
an informal reparation complaint and a $300 handling fee for filing a 
formal reparation complaint with USDA under the PACA. Section 6 of the 
PACA also authorized the Secretary of Agriculture to alter the filing 
and handling fees by rulemaking. During its January 2007 meeting, the 
Fruit and Vegetable Industry Advisory Committee (Committee) recommended 
to the Secretary that the fee for filing an informal reparation 
complaint be increased to $100, and the handling fee for filing a 
formal reparation complaint be increased to $500. The Secretary 
accepted the Committee's recommendation. This final rule implements the 
recommendation by increasing from $60 to $100 the fee for filing an 
informal reparation complaint; and increasing from $300 to $500 the fee 
for handling a formal reparation complaint.
    PACA Rules of Practice applicable to reparation complaint 
proceedings inform the industry of USDA's procedures and requirements 
for the handling of informal and formal complaints under the Act (7 CFR 
part 47). Section 47.3(a) of the current Rules of Practice (7 CFR 
47.3(a)) requires that a $60 filing fee accompany any written 
correspondence and related documents pertaining to the transaction(s) 
involved in the dispute before AMS can process and open an informal 
reparation complaint on behalf of the complainant.
    When an informal reparation complaint is filed, AMS makes every 
effort to assist the parties in reaching a settlement of their dispute 
while gathering documents as part of its investigation. Mediation 
services are also offered to the parties throughout the informal 
handling of the complaint. If an informal settlement cannot be reached, 
however, the complainant is given the opportunity to file a formal 
reparation complaint. Section 47.6(c) of the current Rules of Practice 
(7 CFR 47.6(c)) requires that a complainant filing a formal reparation 
complaint pay a $300 handling fee to AMS to initiate formal complaint 
proceedings. Under formal complaint procedures, USDA's Judicial Officer 
issues a binding decision in the case.
    In Fiscal Year 2007, there were 1575 informal reparation complaints 
and 347 formal reparation complaints filed with AMS under the PACA. 
Over 91 percent of the informal complaints filed under the Act were 
resolved informally within 4 months. These complaints involved produce 
transactions valued at over $18.4 million. USDA issued formal decision 
and orders in 347 cases involving award amounts totaling approximately 
$5.8 million. The largest award issued by USDA in Fiscal Year 2007 
ordered payment of over $257,000 to a fruit and vegetable dealer.
    In Fiscal Year 2006, AMS received 1483 informal reparation 
complaints of which 92 percent were resolved informally within a 4-
month timeframe. In Fiscal Year 2006, informal settlements exceeded 
$18.7 million. There were 300 formal reparation complaints filed under 
the Act that year.
    AMS does not expect this final rule to raise a significant amount 
of revenue for the PACA program (estimated at $144,000 annually), but 
by increasing the fees for filing informal and formal reparation 
complaints, AMS believes that the burden for financing the PACA program 
will be shifted more towards those who benefit directly from using PACA 
program services.

Comments

    A proposed rule was published in the Federal Register on November 
1, 2007

[[Page 31016]]

(72 FR 61820) seeking to amend the PACA Rules of Practice (7 CFR part 
47) to increase informal complaint filing fees from $60 to $100 and 
formal complaint handling fees from $300 to $500. Before the comment 
period ended on December 31, 2007, we received three timely comments on 
the proposed rule.
    One negative comment was received via e-mail from Mr. Tom O'Brien, 
a Florida vegetable grower. Mr. O'Brien stated his belief that the PACA 
program is just another government program losing money and already 
over charges for its services. While he would preserve the PACA as law, 
his advice would be to abolish the PACA Branch. His suggestion would 
leave an already overburdened court system as the produce industry's 
only forum in which to resolve commercial disputes. AMS believes that 
the PACA reparation program is generally well received within the 
produce industry since many produce traders rely on the program for 
assistance in resolving commercial disputes. Given the overall industry 
support of the program's commercial dispute resolution services, AMS is 
making no change to the final rule based on Mr. O'Brien's comment.
    An e-mail comment was received from Jennifer Jambor, a staff 
attorney for Farmers' Legal Action Group, Inc. (FLAG), of Saint Paul, 
Minnesota, on behalf of the Farmworker Association of Florida, Inc., 
which represents more than 6,330 farmer worker families from 
predominately Mexican, Haitian, African American, Guatemalan, and 
Salvadorian communities. FLAG works with beginning fruit and vegetable 
farmers from these and other communities in Florida to assist them in 
understanding their legal rights under the PACA. Ms. Jambor urged that 
as USDA considers increasing the PACA filing fees, it also implement a 
provision waiving the filing fee for lower-income farmers who cannot 
afford to pay the fees to ensure that PACA services are available to 
all. It is important to point out that farmers that sell and ship 
produce of their own raising (regardless of their income level) are not 
required to be licensed and are therefore exempt from paying a license 
fee.
    As stated in the proposed rule, Congress amended Section 6 of the 
PACA (7 U.S.C. 499f) in 1995 to require that complaint filing and 
handling fees be paid. While the statute authorizes the Secretary to 
alter such fees, AMS does not believe that the Secretary has the 
statutory authority to waive the fees in total. We continue to believe 
that the proposed increase in the current filing and handling fees are 
insignificant as indicated in the proposed rule and therefore no change 
is being made to the final rule based on Ms. Jambor's comment.
    A third comment was received from Thomas R. Oliveri, Director of 
Trade Practices and Commodity Services, Western Growers Association 
(WGA), Irvine, California. WGA is an agricultural trade association 
whose nearly 3,000 members grow, pack, and ship approximately 90 
percent of the fresh vegetables and nearly 70 percent of the fresh 
fruits grown in California, which accounts for more than 50 percent of 
U.S. fresh produce production. In his comments, Mr. Oliveri states that 
WGA is a strong advocate of the PACA program and considers its forum 
for dispute resolution to be fundamental in expediting disputed 
contract matters outside of the court system. Mr. Oliveri also noted 
that the PACA program has undertaken endeavors to minimize program 
costs and stated WGA's belief that financing of the PACA program needs 
to be shared by all those who benefit directly from utilizing the 
program's services. Mr. Oliveri's comment on behalf of WGA was in 
support of the increase in filing and handling fees as outlined in the 
proposed rule.
    Again, based upon the above comments, AMS is making no change to 
the final rule.
    However, there is one change that will be made to the final rule. 
In the proposal, we proposed to revise the authority citation for part 
47, by adding reference to 5 U.S.C. 553 and 7 U.S.C. 499f, and by 
removing reference to 7 U.S.C. 499o. This was an error. The proposal 
should have sought to revise the authority citation to include 7 U.S.C. 
499f, not substitute it for 7 U.S.C. 499o. The correct authority 
citation should include both 7 U.S.C. 499f and 7 U.S.C. 499o. Since the 
wording of the proposal contained an error, and correction of the error 
does not affect the substance of the regulations, public comment on 
this change is unnecessary. We revise the authority citation to read: 5 
U.S.C. 553; 7 U.S.C. 499f; 7 U.S.C. 499o; 7 CFR 2.22(a)(1)(vii)(L), 
2.79(a)(8)(xiii).

Executive Orders 12866 and 12988

    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866, and therefore, has not been reviewed 
by the Office of Management and Budget.
    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform, and is not intended to have retroactive effect. 
This final rule will not preempt any State or local laws, regulations, 
or policies, unless they present an irreconcilable conflict with this 
rule. There are no administrative procedures that must be exhausted 
prior to any judicial challenge to the provisions of this final rule.

Effects on Small Businesses

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601 et seq.), USDA has considered the economic 
impact of this final rule on small entities. The purpose of the RFA is 
to fit regulatory actions to the scale of businesses subject to such 
actions in order that small businesses will not be unduly or 
disproportionately burdened. The Small Business Administration defines, 
in 13 CFR part 121, small agricultural producers as those having annual 
receipts of no more than $750,000 and small agricultural service firms 
(handlers and importers) as those having annual receipts of no more 
than $6.5 million. The PACA requires all businesses that operate 
subject to its provisions maintain a license issued by USDA. There are 
approximately 14,500 PACA licensees, a majority of which may be 
classified as small entities.
    Over the past 4 years, the number of informal and formal reparation 
complaints filed with AMS under the PACA has gradually decreased. AMS 
believes that this decrease is due in part to enhanced PACA customer 
service focused on educating members of the produce industry of their 
rights and responsibilities under the PACA, as well as increased 
efforts to settle informal reparation complaints through mediation.
    It is doubtful that any barrier to the use of USDA's PACA 
reparation procedure will be created by raising the filing and handling 
fees for informal and formal reparation complaints. Most complaints 
involve produce transactions valued in the thousands of dollars, making 
the increase from $60 to $100 for filing an informal reparation 
complaint insignificant by comparison. In addition, the handling fee 
for filing a formal reparation complaint is recoverable as part of the 
amount awarded by USDA if the complainant prevails in the case. AMS 
believes that those who wish to initiate formal proceedings in a 
reparation case will consider the increase in the formal reparation 
complaint handling fee from $300 to $500 to be insignificant as well.
    Given the preceding discussion, AMS has determined that the 
provisions of the final rule would not have a significant economic 
impact on a substantial number of small entities.

[[Page 31017]]

Paperwork Reduction Act

    In accordance with OMB regulations (5 CFR part 1320) that implement 
the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the 
information collection and record keeping requirements that are covered 
by this final rule were approved under OMB number 0581-0031 on December 
7, 2007, and expire on December 31, 2010.

E-Government Act Compliance

    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.

List of Subjects in 7 CFR Part 47

    Administrative practice and procedure, Agricultural commodities, 
Brokers.

0
For the reasons set forth in the preamble, AMS amends 7 CFR part 47 as 
follows:

PART 47--[AMENDED]

0
1. The authority citation for part 47 is revised to read as follows:

    Authority: 5 U.S.C 553; 7 U.S.C. 499f; 7 U.S.C. 499o; 7 CFR 
2.22(a)(1)(viii)(L), 2.79(a)(8)(xiii).


0
2. In Sec.  47.3, paragraph (a)(4) is revised to read as follows.


Sec.  46.3  Institution of proceedings.

    (a) * * *
    (4) The informal complaint shall be accompanied by a filing fee of 
$100 as authorized by the Act.
* * * * *


0
3. In Sec.  47.6, paragraph (c) is revised to read as follows.


Sec.  47.6  Formal complaints.

* * * * *
    (c) Service upon respondent; proof of service. Upon receipt by the 
Fruit and Vegetable Programs of the formal complaint, the accompanying 
papers and the $500 handling fee authorized by the Act, a copy thereof 
shall be served by the Fruit and Vegetable Programs upon the respondent 
in accordance with Sec.  47.4 of this part. If the complaint is not in 
the proper form, the Fruit and Vegetable Programs shall return it and 
inform the complainant of the deficiencies therein.
* * * * *

    Dated: May 27, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E8-12130 Filed 5-29-08; 8:45 am]
BILLING CODE 3410-02-P