[Federal Register Volume 59, Number 67 (Thursday, April 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8293]
[[Page Unknown]]
[Federal Register: April 7, 1994]
VOL. 59, NO. 67
Thursday, April 7, 1994
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1212
[FV-93-707PR]
RIN 0581-AB19
Lime Research, Promotion, and Consumer Information Order;
Proposed Amendments
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This rule gives notice of proposed amendments to the Lime
Research, Promotion, and Consumer Information Order. These amendments
would revise the definition of the term ``lime'' in order to cover
seedless rather than seeded limes; increase the exemption level from
less than 35,000 pounds annually to less than 200,000; alter the size,
composition, and term of office of the Lime Board; and make necessary
conforming changes. This action is necessary to implement amendments to
the Lime Research, Promotion, and Consumer Information Act of 1990.
DATES: Comments must be received by May 9, 1994.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposed rule to: Docket Clerk, Fruit and Vegetable
Division, AMS, USDA, P.O. Box 96456, room 2535-S, Washington, DC 20090-
6456. Three copies of all written materials should be submitted, and
they will be made available for public inspection in the Office of the
Docket Clerk during regular working hours. All comments should
reference the docket number of this issue of the Federal Register.
All comments concerning the new information collection requirement
contained in this action (importer reimbursement application) should be
sent to the Office of Information and Regulatory Affairs, Office of
Management and Budget, Washington, DC 20503. Attn: Desk Officer for the
Agricultural Marketing Service.
FOR FURTHER INFORMATION CONTACT: Richard Schultz at the above address
or telephone (202) 720-5976.
SUPPLEMENTARY INFORMATION: This proposed rule would amend the Lime
Research, Promotion, and Consumer Information Order (7 CFR part 1212),
herein referred to as the Order. The Order is effective under the Lime
Research, Promotion, and Consumer Information Act of 1990 (1990 Act)
(Pub. L. 101-624, 7 U.S.C. 6201-6212), as amended by the Lime Research,
Promotion, and Consumer Information Improvement Act (1993 Act) (Pub. L.
103-194, Dec. 14, 1993).
This rule has been determined to be non-significant for the
purposes of Executive Order 12866 and therefore has not been reviewed
by the Office of Management and Budget (OMB).
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. It is not intended to have retroactive effect. This
rule would 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 1957 of the Act, a
person subject to the Order may file a petition with the Secretary of
Agriculture (Secretary) stating that the Order or any provision of the
Order, or any obligation imposed in connection with the Order, is not
in accordance with law and requesting a modification of the Order or an
exemption from the Order. The petitioner is afforded the opportunity
for a hearing on the petition. After such hearing, the Secretary will
make a ruling on the petition. The Act provides that the district
courts of the United States in any district in which a person who is a
petitioner resides or carries on business are vested with jurisdiction
to review the Secretary's ruling on the petition, if a complaint for
that purpose is filed within 20 days after the date of the entry of the
ruling.
Regulatory Impact Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Administrator of the Agricultural Marketing Service
(AMS) has considered the economic impact of this rule on small
entities.
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.
The 1990 Act exempted lime producers who produce less than 35,000
pounds annually for the fresh market from being subject to the Order.
When the 1990 Act was enacted, there were an estimated 325 producers
who produced at least 35,000 pounds annually and were subject to the
Order. When the 1993 Act was enacted, the exemption level was increased
to less than 200,000 pounds annually. At this exemption level, there
are an estimated 50 producers who produce at least 200,000 pounds and
would be subject to the Order. Despite this increase in exemption
level, the majority of producers subject to the Order would still be
classified as small entities. Small agricultural producers have been
defined by the Small Business Administration (SBA) (13 CFR 121.601) as
those having annual receipts of less than $500,000.
The increase in exemption level is not expected to significantly
affect the number of first handlers who are responsible for collecting
and remitting producer assessments to the Lime Board (Board). The
number of first handlers remains at approximately 25. The increase in
exemption level, which also applies to imports, is not expected to
significantly affect the number of importers of fresh market limes. The
number of importers subject to the Order would increase from 5 to 35.
However, this increase in importers is not primarily due to the
increase in the exemption level but rather to the changing character of
the lime industry. As in the case of producers, the majority of first
handlers and importers subject to the Order would still be classified
as small entities. Small agricultural service firms, which include
handlers and importers, have been defined by the SBA as those having
annual receipts of less than $3,500,000.
Since the enactment of the 1990 Act, the character of the lime
industry has significantly changed. As a result of the extensive damage
to lime orchards in Florida by Hurricane Andrew in August 1992,
domestic production has plummeted and the volume of imports has
increased dramatically. Domestic production is not expected to reach
pre-Hurricane Andrew levels for possibly two to three years because
Florida accounted for a majority of domestic production.
Shipment reports of domestic limes, from January 1, 1993, through
December 31, 1993, indicate truck shipments of 8.71 million pounds from
Florida and 8.24 million pounds from California, for a total of 16.95
million pounds. In contrast, shipment reports of imported limes for
this period indicate truck shipments of 248.22 million pounds from
Mexico plus an additional 8.78 million pounds from 12 other countries.
Imports currently represent roughly 93 percent of lime shipments in the
United States.
The Order currently requires lime producers, producer-handlers, and
importers who produce or import 35,000 pounds or more annually for
fresh market to pay an assessment not to exceed one cent per pound of
limes. This proposal would limit assessment obligations to producers,
producer-handlers, and importers of 200,000 pounds or more annually.
The expected results of this amendment would significantly decrease the
number of persons subject to the Order and decrease the amount of
assessments collected.
This proposal would also alter the size and composition of the
Board, the administrative body appointed by the Secretary to operate
the Order, from 11 members to seven. Further, this proposal would
reduce the number of producer members serving on the Board from seven
to three. The number of importer members would remain at three. The
seventh member would be the public member. These changes to the Board's
size and membership are reflective of the current structure of the lime
industry.
Accordingly, the Administrator of the AMS has determined that the
changes reflected in this action would not have a significant economic
impact on a substantial number of small entities.
Paperwork Reduction
In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C.
chapter 35) the information collection requirements contained in the
Order have been approved by the OMB and were assigned OMB number 0581-
0093, except for the Board nominee background statement form which was
assigned OMB number 0505-0001. This action would generally reduce the
number of information collections, and hence the reporting burden. The
information collection requirements of the Order are as follows:
(1) A periodic report by each first handler who handles limes for
fresh market. When the amended Order is implemented, the estimated
number of respondents required to complete this report would be 25,
each submitting a maximum of 12 responses per year, with an estimated
average reporting burden of 30 minutes per response. The change in
exemption level, from less than 35,000 pounds to less than 200,000
pounds, should not affect the number of first handlers. However, this
change could reduce their reporting burden because less information may
be required from persons who previously would not be exempt from the
Order. First handlers may alternatively prepay assessments annually,
requiring only an initial report of anticipated assessments and a final
annual report of actual handling;
(2) A periodic report by each importer who imports 200,000 or more
pounds annually for fresh market. The estimated number of respondents
completing this report would be 35, each submitting a maximum of 12
responses per year, with an estimated average reporting burden of 15
minutes per response. The change in character of the lime industry due
to increased imports since 1992 would raise the number of respondents
filing this report from 5 to 35;
(3) A refund application form for persons who desire a refund of
their assessments. The estimated number of respondents completing this
application would be five, each submitting two responses per year, with
an estimated average reporting burden of 15 minutes per response. The
change in exemption level would reduce the number of respondents filing
this application from 200 to 5;
(4) An importer reimbursement application for persons who import
less than 200,000 pounds annually and desire to be reimbursed for
assessments collected by the U.S. Customs Service. The estimated number
of respondents completing this application would be 20, each submitting
one response per year, with an estimated average reporting burden of 15
minutes per response. Because this is a new form, no comparative data
regarding an increase or decrease in reporting burden is available;
(5) An exemption application for persons who produce or import less
than 200,000 pounds annually for fresh market to be exempt from
assessments and recordkeeping requirements. The estimated number of
respondents completing this application would be 600, each submitting
one response per year, with an estimated average burden of 15 minutes
per response. The changes in exemption level and character of the lime
industry would reduce the number of respondents filing this application
from 680 to 600;
(6) A referendum ballot to be used not later than 30 months after
assessments begin under the amended Order and periodically thereafter
to indicate whether producers and importers favor continuance of the
Order. The estimated number of respondents completing this ballot would
be 85, each submitting one response approximately every five years, or
an annual average of 10 respondents, with an estimated average
reporting burden of 15 minutes per response. The change in exemption
level would reduce the number of respondents completing this ballot
from 325 to 85;
(7) A nominee background statement form for Board member and
alternate positions. Two nominees would be nominated for each open
position on the Board. The estimated number of respondents completing
this form would be 28 during the first year of Order operations, and
approximately eight per year thereafter, with an estimated average
reporting burden of 30 minutes per response. The change in the
composition of the Board would reduce the number of respondents
completing this form from 44 to 28; and
(8) A requirement to maintain records sufficient to verify reports
submitted under the Order. The estimated number of persons required to
comply with this requirement would be 70, each of whom will have an
estimated annual burden of seven minutes. The change in exemption level
would reduce the number of recordkeepers from 350 to 70.
Background
The 1990 Act was enacted on November 28, 1990, for the purpose of
establishing an orderly procedure for the development and financing of
an effective and coordinated program of research, promotion, and
consumer information to strengthen the domestic and foreign markets for
limes. The Order required by the 1990 Act became effective on January
27, 1992 (57 FR 2985), after notice and comment rulemaking.
In March 1992 the Department of Agriculture (Department) conducted
nomination meetings to nominate lime producers and importers for
appointment to the Board. The Board members were appointed by the
Secretary in September 1992, and the Board conducted its first meeting
at the Department in Washington, DC in October 1992. During the course
of this meeting, the Board and the Department concluded that a
technical amendment was needed to cover seedless rather than seeded
limes. Consequently, full implementation of the Order was delayed until
the enactment of such technical amendment.
The 1993 Act contained the necessary technical amendment to cover
seedless limes (citrus latifolia) rather than seeded limes (citrus
aurantifolia) under the Order. The 1993 Act also provided for (1)
increasing the exemption level from less than 35,000 pounds annually to
less than 200,000; (2) terminating the initial Board; (3) changing the
size and composition of the Board; and (4) delaying the initial
referendum date.
This proposed rule invites comments on amending the Order to
reflect the provisions of the 1993 Act. The Act, as amended, will (1)
revise the definition of the term ``lime'' from citrus aurantifolia to
citrus latifolia; (2) increase the exemption level from less than
35,000 pounds annually to less than 200,000; (3) alter the size,
composition, and term of office of the Board; and (4) make conforming
changes.
This rule would change the definition of the ``lime'' from citrus
aurantifolia (seeded lime) to citrus latifolia (seedless lime) in
Sec. 1212.5 of the Order. Although the intent of the Act was to cover
seedless limes, the definition of ``lime'' in Sec. 1953(6) of the 1990
applied only to seeded limes.
This rule would increase the producer and importer exemption level
from less than 35,000 pounds annually to less than 200,000 pounds
annually. This revised exemption level was reached through industry
consensus. Therefore, this rule would change references to 35,000
pounds in Secs. 1212.65, 1212.68, and 1212.69 of the Order to 200,000
pounds. In addition, a new paragraph (d) has been added to Sec. 1212.68
of the Order whereby exempt importers may obtain a refund of
assessments collected by the U.S. Customs Service.
Moreover, this rule would change the size of the Board from 11
members to seven. The Board is currently composed of seven producer
members, three importer members, and their alternates. The public
member position is currently vacant. This action would decrease the
number of producer members from seven to three, which would more fairly
reflect the current structure of the lime industry. Therefore,
Secs. 1212.30, 1212.32, and 1212.34 of the Order would be revised to
make these changes in the Board's composition.
This rule would also change the Board's composition in
Sec. 1212.30(b) relative to representation of producer and importer
members within the two districts established under the Order. District
1 includes the States east of the Mississippi River, Puerto Rico, and
the District of Columbia. District 2 includes the States west of the
Mississippi River. Currently, the Order provides for six producer
members and one importer member and their alternates from District 1,
and one producer member and two importer members and their alternates
from District 2. This action would reduce the number of producer
members from District 1 from six to two by revising section 1212.30 of
the Order.
Further, as a result of this allocation of Board membership, the
realignment of districts or reapportionment of membership between
Districts 1 and 2 on the basis of changes in production and importation
would no longer be necessary. Such realignment or reapportionment would
be inconsistent with the 1993 Act. Therefore, any references to such
realignment or reapportionment would be removed from Secs. 1212.18,
1212.30, and 1212.40 of the Order.
Reducing the size of the Board affects the current requirements for
a quorum and the number of trustees which would be designated if the
program were to be terminated. Therefore, this action would revise
Sec. 1212.37 of the Order to decrease from six to four the number of
members needed to constitute a quorum at Board meetings and change the
number of trustees designated in Sec. 1212.84 of the Order from five to
four.
The 1993 Act requires the appointments of the current Board members
to be terminated. New appointments would then be made by the Secretary.
The 1993 Act also specifies that the initial Board members under the
amended Order would serve initial terms of office of 30 months. This
change is directly related to the provision of the 1993 Act which
delays the deadline for the initial referendum until 30 months after
the date on which the collection of assessments begin under the amended
Order. We are also proposing a conforming change in Sec. 1212.67 of the
Order pursuant to the 1993 provision.
In order to provide administrative continuity during the 30 months
prior to the initial continuance referendum, the 1993 Act provides that
the initial Board members under the amended Order serve 30-month
concurrent terms of office. The 1990 Act provided for the staggering of
the terms of office of the initial Board members. Although staggered
terms of office are generally desirable, this created a situation where
30 percent or more of the Board's membership could change prior to the
initial referendum. In contrast, the 1993 Act provides that the initial
Board members under the amended Order serve 30-month concurrent terms
of office and that staggered terms be reinstituted after the referendum
if the program continues. The purpose of this change is to minimize the
organizational uncertainties associated with Board member turnover and
to facilitate organizational continuity during the period prior to the
initial referendum. Therefore, this action would also amend section
1212.34 of the Order.
All written comments received in response to this publication by
the date specified herein will be considered prior to any finalization
of the proposed amendments.
List of Subjects in 7 CFR Part 1212
Administrative practice and procedure, Advertising, Limes,
Marketing agreements, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 1212 is
proposed to be amended as follows:
PART 1212--LIME RESEARCH, PROMOTION, AND CONSUMER INFORMATION
1. The authority citation for 7 CFR part 1212 revised to read as
follows:
Authority: 7 U.S.C. 6201-6212.
Subpart A--Lime Research, Promotion, and Consumer Information Order
Sec. 1212.2 [Amended]
2. Section 1212.2 is amended by removing the phrase ``and any
amendments thereto'' and adding in its place ``as amended''.
Sec. 1212.5 [Amended]
3. Section 1212.5 is amended by removing the word ``aurantifolia''
and adding in its place ``latifolia''.
Sec. 1212.18 [Amended]
4. Section 1212.18 is amended by removing the phrase ``or other
subdivisions as may be prescribed pursuant to Sec. 1212.40(o)''.
5. In Sec. 1212.30 paragraph (a) is amended by removing the word
``Seven'' and adding in its place ``Three''; by revising paragraph (b);
and by removing paragraph (c) to read as follows:
Sec. 1212.30 Establishment and membership.
* * * * *
(b) Two of the three producer members shall be producers of limes
in District 1, and one producer member shall be a producer of limes in
District 2. One of the three importer members shall be an importer of
limes in District 1, and two importer members shall be importers of
limes in District 2. The public member shall be selected at large.
6. Section 1212.31 is amended by revising the section heading and
paragraph (a), by designating the existing text of paragraph (k) as
paragraph (k)(1) and revising it, and by designating the concluding
text at the end of the section as paragraph (k)(2), to read as follows:
Sec. 1212.31 Nominations.
* * * * *
(a) Except for the member and alternate member who represent the
general public, nominations of initial members to the Board shall be
submitted to the Secretary for selection as soon as practicable after
[the effective date of the amendment of this subpart]. In subsequent
years, nominations of members to the Board shall be submitted to the
Secretary by the Board by August 1. Nominations may be made by means of
group meetings for producer and importer members or by mail ballot.
* * * * *
(k)(1) In the event of a mail ballot, all qualified persons
interested in serving on the Board or who are interested in nominating
another person to serve on the Board shall submit to the Board in
writing such information as name, mailing address, number of pounds
produced, marketed, handled, or imported, or other information as may
be required, in order to place that person on the ballot: Provided,
That in the case of nominating the initial Board under the amended Act,
the Secretary shall mail out the ballots and cause press releases
concerning the distribution of ballots and pertinent information on
balloting to be distributed to the media in the lime producing and
importing areas. These ballots shall be returned to the Secretary.
* * * * *
Sec. 1212.32 [Amended]
7. Section 1212.32 is amended by removing the word ``seven'' and
adding in its place ``three''.
8. Section 1212.34 is revised to read as follows:
Sec. 1212.34 Term of office.
(a) The initial members of the Board and their respective
alternates shall serve 30-month concurrent terms of office.
(b) The term of office for the initial Board shall begin
immediately following appointment by the Secretary. In subsequent
years, the term of office shall begin on January 1 or such other period
which may be approved by the Secretary.
(c) Subsequent appointments to the Board will be for a term of 3
years, except that during the initial 3-year appointments, members and
their alternates shall serve terms as follows: One producer member from
District 1 and one importer member from District 2 shall be appointed
for a term of 1 year; the importer member from District 1 and the
producer member from District 2 shall be appointed for a term of 2
years; and one producer member from District 1 and one importer member
from District 2 shall be appointed for a term of 3 years.
(d) Board members and alternates shall serve during the term of
office for which they are selected and have qualified, and until their
successors are selected and have qualified.
(e) No member or alternate shall serve more than two successive
terms. However, members and alternates serving a term of 1 year, after
having served a 30-month concurrent term, may serve a third successive
term.
Sec. 1212.37 [Amended]
9. In Sec. 1212.37 paragraph (a) is amended by removing the word
``Six'' and adding in its place ``Four''.
Sec. 1212.40 [Amended]
10. Section 1212.40 is amended by removing paragraph (o) and
redesignating paragraphs (p), (q), and (r) as paragraphs (o), (p), and
(q) respectively.
Sec. 1212.65 [Amended]
11. In Sec. 1212.65 paragraph (c)(2)(viii) is amended by removing
the number ``35,000'' and adding in its place ``200,000''.
12. Section 1212.67 is amended by revising the introductory text of
paragraph (a) to read as follows:
Sec. 1212.67 Refunds.
(a) Subject to the provisions of this section any producer,
producer-handler, or importer shall have the right to personally demand
and receive from the Board a refund of assessments paid by or on behalf
of such producer, producer-handler, or importer for any calendar month
during the period beginning on the date on which the collection of
assessments begins under this Order and ending on the effective date of
the referendum mandated by section 1960(a) of the Act; Provided, That:
* * * * *
13. In Sec. 1212.68 paragraph (a) is amended by removing the number
``35,000'' and adding in its place ``200,000''; and by adding a new
paragraph (d) to read as follows:
Sec. 1212.68 Exemption from assessment.
* * * * *
(d) Importers who are exempt from assessment shall be entitled to
reimbursement of assessments collected by the U.S. Customs Service and
shall apply to the Board for reimbursement of such assessments paid on
a marketing year basis. The Board shall reimburse such assessments
within 30 days of receiving an importer's application.
Sec. 1212.69 [Amended]
14. Section 1212.69 is amended by removing the number ``35,000''
and adding in its place ``200,000''.
Sec. 1212.84 [Amended]
15. In Sec. 1212.84 paragraph (a) is amended by removing the word
``five'' and adding in its place ``four''.
Dated: March 31, 1994.
Lon Hatamiya,
Administrator.
[FR Doc. 94-8293 Filed 4-6-94; 8:45 am]
BILLING CODE 3410-02-P