# Pork Promotion, Research, and Consumer Information Order-Decrease in Importer Assessments

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A03-31074

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** December 17, 2003
- **Citation:** 68 FR 70201

## Text

DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1230
[No. LS-03-08]
Pork Promotion, Research, and Consumer Information Order—Decrease in Importer Assessments

AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Proposed rule.

SUMMARY:

Pursuant to the Pork Promotion, Research, and Consumer Information Act of 1985 (Act) and the Pork Promotion, Research, and Consumer Information Order (Order) issued thereunder, this proposed rule would decrease by five-hundredths to seven-hundredths of a cent per pound the amount of the assessment per pound due on imported pork and pork products to reflect a decrease in the 2002 average price for domestic barrows and gilts. This proposed action would bring the equivalent market value of the live animals from which such imported pork and pork products were derived in line with the market values of domestic porcine animals. In addition, this rule deletes two live porcine animal Harmonized Tariff Schedule (HTS) numbers—0103.91.0000 and 0103.92.0000—and adds five new live porcine animal HTS numbers 0103.91.0010, 0103.91.0020, 0103.91.0030, 0103.92.0010, and 0103.92.0090—to the table in § 1230.110(a) in order to update the HTS numbers used for live porcine animals.

DATES:

Comments must be received by January 16, 2004.

ADDRESSES:

Send comments to Kenneth R. Payne, Chief; Marketing Programs Branch, Room 2638-S; Livestock and Seed Program; Agricultural Marketing Service (AMS), USDA; STOP 0251; 1400 Independence Avenue, SW., Washington, DC 20250-0251. Comments may also be submitted electonrically to
PorkComments@usda.gov
or by fax at (202) 720-1125. All comments should reference the document number (LS-03-08), the date, and the page number of this issue of the
Federal Register
. Comments will be available for public inspection via the Internet at
http://www.ams.usda.gov/lsg/mpb/rp-pork.htm
or during regular business hours, 8 a.m. to 4:30 p.m. eastern time, Monday through Friday, at the above address.

FOR FURTHER INFORMATION CONTACT:

Kenneth R. Payne, Chief, Marketing Programs Branch, (202) 720-1115.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

The Office of Management and Budget (OMB) has waived the review process required by Executive Order 12866 for this action.

Executive Order 12988

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposal is not intended to have a retroactive effect. The Act states that the statute is intended to occupy the field of promotion and consumer education involving pork and pork products and of obtaining funds thereof from pork producers and that the regulation of such activity (other than a regulation or requirement relating to a matter of public health or the provision of State or local funds for such activity) that is in addition to or different from the Act may not be imposed by a State.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 1625 of the Act, a person subject to an order may file a petition with the Secretary stating that such order, a provision of such order or an obligation imposed in connection with such order is not in accordance with the law; and requesting a modification of the order or an exemption from the order. Such person is afforded the opportunity for a hearing on the petition. After the hearing, the Secretary would rule on the petition. The Act provides that the district court of the United States in the district in which a person resides or

does business has jurisdiction to review the Secretary's determination, if a complaint is filed not later than 20 days after the date such person receives notice of such determination.

Regulatory Flexibility Act

This action also was reviewed under the Regulatory Flexibility Act (RFA) (5 United States Code (U.S.C.) 601
et seq.
). The effect of the Order upon small entities initially was discussed in the September 5, 1986, issue of the
Federal Register
(51 FR 31898). It was determined at that time that the Order would not have a significant effect upon a substantial number of small entities. Many of the estimated 500 importers may be classified as small entities under the Small Business Administration definition (13 CFR 121.201).

This proposed rule would decrease the amount of assessments on imported pork and pork products subject to assessment by five-hundredths to seven-hundredths of a cent per pound, or as expressed in cents per kilogram, eleven-hundredths to fifteen-hundredths of a cent per kilogram. This decrease is consistent with the decrease in the annual average price of domestic barrows and gilts for calendar year 2002. The average annual market price decreased from $45.87 in 2001 to $37.09 in 2002, a decrease of about 20 percent. Adjusting the assessments on imported pork and pork products would result in an estimated decrease in assessments of approximately $562,000 over a 12-month period. Assessments collected on imported hogs, pork, and pork products for 2002 were $4,250,578. Accordingly, the Administrator of AMS has determined that this action would not have a significant economic impact on a substantial number of small entities.

The Act (7 U.S.C. 4801-4819) approved December 23, 1985, authorized the establishment of a national pork promotion, research, and consumer information program. The program was funded by an initial assessment rate of 0.25 percent of the market value of all porcine animals marketed in the United States and on imported porcine animals with an equivalent assessment on pork and pork products. However, that rate was increased to 0.35 percent in 1991 (56 FR 51635), to 0.45 percent effective September 3, 1995 (60 FR 29963), and then decreased to 0.40 percent effective September 30, 2002 (67 FR 58320). The final Order establishing a pork promotion, research, and consumer information program was published in the September 5, 1986, issue of the
Federal Register
(51 FR 31898; as corrected, at 51 FR 36383 and amended at 53 FR 1909, 53 FR 30243, 56 FR 4, 56 FR 51635, 60 FR 29963, 61 FR 29002, 62 FR 26205, 63 FR 45936, 64 FR 44643, 66 FR 67071, and 67 FR 58320) and assessments began on November 1, 1986.

The Order requires importers of porcine animals to pay U.S. Customs Service (USCS), upon importation, the assessment of 0.40 percent of the animal's declared value and importers of pork and pork products to pay USCS, upon importation, the assessment of 0.40 percent of the market value of the live porcine animals from which such pork and pork products were produced. This proposed rule would decrease the assessments on all imported pork and pork products subject to assessment as published in the
Federal Register
as a final rule September 16, 2002, and effective on September 30, 2002 (67 FR 58320). This decrease is consistent with the decrease in the annual average price of domestic barrows and gilts for calendar year 2002 as calculated by the Department of Agriculture's (Department), AMS, Livestock and Grain Market News (LGMN) Branch. This decrease in assessments would make the equivalent market value of the live porcine animal from which the imported pork and pork products were derived reflect the recent decrease in the market value of domestic porcine animals, thereby promoting comparability between importer and domestic assessments. This proposed rule would not change the current assessment rate of 0.40 percent of the market value.

The methodology for determining the per pound amounts for imported pork and pork products was described in the Supplementary Information accompanying the Order and published in the September 5, 1986,
Federal Register
at 51 FR 31901. The weight of imported pork and pork products is converted to a carcass weight equivalent by utilizing conversion factors that are published in the Department's Agricultural Handbook No. 697 “Conversion Factors and Weights and Measures.” These conversion factors take into account the removal of bone, weight lost in cooking or other processing, and the nonpork components of pork products. Secondly, the carcass weight equivalent is converted to a live animal equivalent weight by dividing the carcass weight equivalent by 74 percent, which is the average dressing percentage of porcine animals in the United States as recognized by the industry. Thirdly, the equivalent value of the live porcine animals is determined by multiplying the live animal equivalent weight by an annual average market price for barrows and gilts as calculated by LGMN Branch. Finally, the equivalent value is multiplied by the applicable assessment rate of 0.40 percent due on imported pork and pork products. The end result is expressed in an amount per pound for each type of pork or pork product. To determine the amount per kilogram for pork and pork products subject to assessment under the Act and Order, the cent per pound assessments are multiplied by a metric conversion factor 2.2046 and carried to the sixth decimal.

Since 2001, there has been a change in the way LGMN Branch reports hog prices. Due to the implementation of the Livestock Mandatory Price Reporting program, LGMN no longer report hogs on a live basis because most of the industry buys hogs on a carcass basis. Therefore, the annual average market price for barrows and gilts is now derived from the National Daily Direct Hog Price Report (Slaughtered). To convert this figure to a live basis it must be multiplied by 74 percent, the average dressing percentage of porcine animals.

The formula in the preamble for the Order at 51 FR 31901 contemplated that it would be necessary to recalculate the equivalent live animal value of imported pork and pork products to reflect changes in the rate of assessment or changes in the annual average price of domestic barrows and gilts to maintain equity of assessments between domestic and porcine animals and imported pork and pork products.

The average annual market price decreased from $45.87 per hundredweight in 2001 to $37.09 per hundredweight in 2002, a decrease of about 20 percent. This decrease would result in a corresponding decrease in assessments for all HTS numbers listed in the table in § 1230.110(b), 67 FR 58320; September 16, 2002, of an amount equal to five-hundredths to seven-hundredths of a cent per pound, or as expressed in cents per kilogram, eleven-hundredths to fifteen-hundredths of a cent per kilogram. Based on the most recent available Department of Commerce, Bureau of Census, data on the volume of imported pork and pork products imported during 2002, the proposed decrease in assessment amounts would result in an estimated $562,000 decrease in assessments over a 12-month period. The assessment rate for imported live hogs is not affected by the change in the cents per pound assessment rate for imported pork and pork products.

In addition, this rule deletes two live porcine animal Harmonized Tariff Schedule (HTS) numbers—0103.91.0000 and 0103.92.0000—and adds five new

live porcine animal HTS numbers 0103.91.0010, 0103.91.0020, 0103.91.0030, 0103.92.0010, and 0103.92.0090—to the table in § 1230.110(a) to reflect current USCS HTS numbers used for live porcine animals.

This proposed rule provides for a 30-day comment period. This comment period is deemed appropriate because the proposed rule simply provides for a decrease in the per pound assessment levels on imported pork and pork products to reflect changes in live hog prices which occurred during 2002. These live hog prices form the basis for the assessments. This adjustment, if adopted, should be made effective as soon as possible to bring the equivalent market value of live animals from which such imported pork and pork products were derived in line with the market values of domestic porcine animals.

List of Subjects in 7 CFR part 1230

Administrative practice and procedure, Advertising, Agricultural research, Marketing agreement, Meat and meat products, Pork and pork products.

For the reasons set forth in the preamble, it is proposed that 7 CFR part 1230 be amended as follows:

PART 1230—PORK PROMOTION, RESEARCH, AND CONSUMER INFORMATION

1. The authority citation for 7 CFR part 1230 continues to read as follows:

Authority:

7 U.S.C. 4801-4819.

Subpart B—[Amended]

2. Section 1230.110 is revised to read as follows:

§ 1230.110
Assessments on imported pork and pork products.
(a) The following Harmonized Tariff Schedule (HTS) categories of imported live porcine animals are subject to assessment at the rate specified.

Live porcine animals
Article description
Assessment

0103.10.0000
Purebred breeding animals
0.40 percent Customs Entered Value

0103.91.00
Other: Weighing less than 50 kg each

0103.91.0010
Weighing less than 7 kg each
0.40 percent Customs Entered Value

0103.91.0020
Weighing 7 kg or more but less than 23 kg each
0.40 percent Customs Entered Value

0103.91.0030
Weighing 23 kg or more but less than 50 kg each
0.40 percent each Customs Entered Value

0103.92.00
Weighing 50 kg or more each.

0103.92.0010
Imported for immediate slaughter
0.40 percent Customs Entered Value

0103.92.0090
Other
0.40 percent Customs Entered Value

(b) The following HTS categories of imported pork and pork products are subject to assessment at the rates specified.

Pork and pork products
Article description
Assessment
cents/lb
cents/kg

0203
Meat of swine, fresh, chilled, or frozen: Fresh or chilled:

0203.11.0000
Carcasses and half-carcasses
.20
.440920

0203.12.1010
Processed hams and cuts thereof, with bone in
.20
.440920

0203.12.1020
Processed shoulders and cuts thereof, with bone in
.20
.440920

0203.12.9010
Other hams and cuts thereof, with bone in
.20
.440920

0203.12.9020
Other shoulders and cuts thereof, with bone in
.20
.440920

0203.19.2010
Processed spare ribs
.23
.507058

0203.19.2090
Processed other
.23
.507058

0203.19.4010
Bellies
.20
.440920

0203.19.4090
Other
.20
.440920

0203.21.0000
Frozen carcasses and half-carcasses
.20
.440920

0203.22.1000
Frozen-processed hams, shoulders, and cuts thereof, with bone in
.20
.440920

0203.22.9000
Frozen-other hams, shoulders, and cuts thereof, with bone in
.20
.440920

0203.29.2000
Frozen processed other
.23
.507058

0203.29.4000
Frozen other: Other
.20
.440920

0206
Edible offal of bovine animals, swine, sheep, goats, horses, asses, mules or hinnies, fresh, chilled, or frozen:

0206.30.0000
Of swine, fresh or chilled
.20
.440920

0206.41.0000
Of swine, frozen: Livers
.20
.440920

0206.49.0000
Of swine, frozen: Other
.20
.440920

0210
Meat and edible meat offal, salted, in brine, dried or smoked; edible flours and meals of meat or meat offal:

0210.11.0010
Meat of swine: Hams and cuts thereof, with bone in
.20
.440920

0210.11.0020
Meat of swine: Shoulders and cuts thereof, with bone in
.20
.440920

0210.12.0020
Meat of swine: Bellies (streaky) and cuts thereof, Bacon
.20
.440920

0210.12.0040
Meat of swine: Bellies (streaky) and cuts thereof, Other
.20
.440920

0210.19.0010
Meat of swine: Canadian style bacon
.23
.507058

0210.19.0090
Meat of Swine: Other
.23
.507058

1601
Sausages and similar products, of meat, meat offal or blood; food preparations based on these products:

1601.00.2010
Pork canned
.28
.617288

1601.00.2090
Pork other
.28
.617288

1602
Other prepared or preserved meat, meat offal or blood.

1602.41.2020
Of swine: Boned and cooked and packed in airtight containers holding less than 1 kg
.30
.661380

1602.41.2040
Of swine: Other boned and cooked and packed in airtight containers
.30
.661380

1602.41.9000
Of swine: Other
.20
.440920

1602.42.2020
Of swine: Shoulders and cuts thereof: Boned and cooked and packed in airtight containers holding less than 1 kg
.30
.661380

1602.42.2040
Of swine: Shoulders and cuts thereof: Other boned and cooked and packed in airtight containers
.30
.661380

1602.42.4000
Of swine: Other shoulders and cuts thereof
.20
.440920

1602.49.2000
Of swine: Other, including mixtures: Not containing cereals or vegetables: Boned and cooked and packed in air-tight containers
.28
.617288

1602.49.4000
Of swine: Other, including mixtures: Not containing cereals or vegetables: Other
.23
.507058

1602.49.9000
Of swine: Other, including mixtures: Other
.23
.507058

Dated: December 9, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.

[FR Doc. 03-31074 Filed 12-16-03; 8:45 am]
BILLING CODE 3410-02-P

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A03-31074. Public record. Not legal advice.