[Federal Register Volume 60, Number 26 (Wednesday, February 8, 1995)]
[Rules and Regulations]
[Pages 7435-7439]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3144]



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DEPARTMENT OF AGRICULTURE
7 CFR Part 1212

[FV-93-707FR]
RIN 0581-AB19


Lime Research, Promotion, and Consumer Information Order; 
Amendments

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule amends the Lime Research, Promotion, and Consumer 
Information Order. These amendments 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 document is 
necessary to implement amendments to the Lime Research, Promotion, and 
Consumer Information Act of 1990.

EFFECTIVE DATE: February 8, 1995.

ADDRESSES: Richard Schultz, Research and Promotion Branch, Fruit and 
Vegetable Division, AMS, USDA, P.O. Box 96456, Room 2535-S, Washington, 
DC 20090-6456.

[[Page 7436]] FOR FURTHER INFORMATION CONTACT: Richard Schultz at the 
above address or telephone (202) 720-5976.

SUPPLEMENTARY INFORMATION: This final rule amends the Lime Research, 
Promotion, and Consumer Information Order [7 CFR 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].
    The Department of Agriculture (Department) is issuing this rule in 
conformance with Executive Order 12866.
    This rule has been reviewed under Executive Order 12778, Civil 
Justice Reform. It is not intended to have retroactive effect. This 
rule will not preempt any State or local laws, regulations, or 
policies, unless they present an irreconcilable conflict with this 
rule.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under Sec. 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 
will be subject to the Order. Despite this increase in exemption level, 
the majority of producers subject to the Order will 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 will 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 will 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 $5,000,000.
    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, 1994, through 
December 31, 1994, indicate truck shipments of 11.32 million pounds 
from Florida and 4.23 million pounds from California, for a total of 
15.55 million pounds. Shipment reports of imported limes for the most 
recent 12 month period, November 1, 1993, through October 31, 1994, 
indicate truck shipments of 240.46 million pounds from Mexico plus an 
additional 8.02 million pounds from 13 other countries. Imports 
currently represent roughly 94 percent of lime shipments in the United 
States.
    The Order, prior to this action, required 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 action limits assessment obligations to 
producers, producer-handlers, and importers who produce or import 
200,000 pounds or more annually. The expected results of this action 
will significantly decrease the number of persons subject to the Order 
and decrease the amount of assessments collected.
    This action also alters the size and composition of the Board, the 
administrative body appointed by the Secretary to operate the Order, 
from 11 members to seven. Further, it reduces the number of producer 
members serving on the Board from seven to three. The number of 
importer members will remain at three. The seventh member will 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 will 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 will 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. The estimated number of respondents required to complete 
this report is 25, each submitting a maximum of 12 responses per year, 
with an estimated average reporting burden of 30 minutes per response. 
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 is 35, each [[Page 7437]] submitting a maximum 
of 12 responses per year, with an estimated average reporting burden of 
15 minutes per response;
    (3) A refund application form for persons who desire a refund of 
their assessments. The estimated number of respondents completing this 
application is five, each submitting two responses per year, with an 
estimated average reporting burden of 15 minutes per response;
    (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 is 20, each submitting one 
response per year, with an estimated average reporting burden of 15 
minutes per response;
    (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 is 600, each submitting one 
response per year, with an estimated average burden of 15 minutes per 
response;
    (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 is 
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;
    (7) A nominee background statement form for Board member and 
alternate positions. Two nominees will be nominated for each open 
position on the Board. The estimated number of respondents completing 
this form is 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; 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 is 70, each of whom will have an estimated 
annual burden of seven minutes.

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 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 
increasing the exemption level from less than 35,000 pounds annually to 
less than 200,000; terminating the initial Board; changing the size and 
composition of the Board; and delaying the initial referendum date.
    A proposed rule published in the April 7, 1994, issue of the 
Federal Register [58 FR 3446] invited comments on amending the Order to 
reflect the provisions of the 1993 Act. The Act, as amended, revises 
the definition of the term ``lime'' from citrus aurantifolia to citrus 
latifolia; increases the exemption level from less than 35,000 pounds 
annually to less than 200,000; alters the size, composition, and term 
of office of the Board; and makes conforming changes.
    The Department received one comment on the April 7 proposed rule. 
This comment was received from the California Association of 
Limegrowers. The commenter requested clarification on whether producers 
and importers subject to the Order will be required to pay an 
assessment on their total annual production or importation, or on the 
portion of their volume surpassing the exemption level of less than 
200,000 pounds annually. In response to this comment, producers and 
importers of 200,000 pounds or more of limes annually will be required 
to pay assessments on their total annual production or importation.
    This rule changes the definition of ``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 
Act applied only to seeded limes.
    This rule increases 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 changes 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 changes the size of the Board from 11 members 
to seven. The Board, prior to this action, was composed of seven 
producer members, three importer members, and their alternates. The 
public member position was vacant. This action decreases the number of 
producer members from seven to three, which more fairly reflects the 
current structure of the lime industry. Therefore, Secs. 1212.30, 
1212.32, and 1212.34 of the Order have been either amended or revised 
to make these changes in the Board's composition.
    This rule also changes 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. Prior to this action, the Order provided 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 reduces the number of producer 
members from District 1 from six to two by amending and revising 
Sec. 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 
is no longer necessary. Such realignment or reapportionment is 
inconsistent with the 1993 Act. Therefore, any references to such 
realignment or reapportionment have been removed from Secs. 1212.18, 
1212.30, and 1212.40 of the Order.
    Reducing the size of the Board affects the requirements for a 
quorum and the number of trustees which will be designated if the 
program were to be terminated. Therefore, this action 
[[Page 7438]] amends Sec. 1212.37 of the Order by decreasing from six 
to four the number of members needed to constitute a quorum at Board 
meetings and by changing the number of trustees designated in 
Sec. 1212.84 of the Order from five to four.
    The 1993 Act requires that appointments of the Board members made 
under the 1990 Act be terminated. Such appointments will be terminated 
on the effective date of this rule and, when practicable, new 
appointments will be made by the Secretary. The 1993 Act also specifies 
that the initial Board members under the amended Order will 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. A conforming 
change in Sec. 1212.67 of the Order pursuant to the 1993 provision has 
also been made.
    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 also revises Sec. 1212.34 of 
the Order.
    In addition, a technical change is made to Sec. 1212.64 of the 
Order to add the code number for limes from the Harmonized Tariff 
Schedule of the United States.
    After consideration of all relevant material presented, it is found 
that the amendments to the Order herein tend to effectuate the declared 
policy of the Act, as amended.
    Pursuant to the provisions of 5 U.S.C. 553, it is found and 
determined that good cause exists for not postponing the effective date 
of this action until 30 days after publication in the Federal Register 
because (1) this action is required by the 1993 Act; (2) the proposed 
rule provided a 30-day period to allow interested parties to comment 
prior to this action; (3) the amended Order cannot be fully implemented 
until this rule becomes effective and the initial Board is appointed; 
and (4) no useful purpose would be served by a delay of the effective 
date.
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 
amended as follows:
PART 1212--LIME RESEARCH, PROMOTION, AND CONSUMER INFORMATION
    1. The authority citation for 7 CFR Part 1212 is 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''; paragraph (b) is revised; 
and paragraph (c) and the undesignated concluding text are removed 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.
Sec. 1212.31  [Amended]

    6. Section 1212.31 is amended by revising the section heading and 
paragraph (a), designating the existing text of paragraph (k) as 
paragraph (k)(1) and revising it, and 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 
February 8, 1995. 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; [[Page 7439]] 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.
    11. Section 1212.64 is amended by adding a new paragraph (j) to 
read as follows:


Sec. 1212.64  Assessments.

* * * * *
    (j) The import assessment shall be uniformly applied to imported 
limes that are identified by the number 0805.90.0010 in the Harmonized 
Tariff Schedule of the United States or any other number used to 
identify limes as defined in Sec. 1212.5.


Sec. 1212.65  [Amended]

    12. In Sec. 1212.65 paragraph (c)(2)(viii) is amended by removing 
the number ``35,000'' and adding in its place ``200,000''.
    13. 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:
* * * * *


Sec. 1212.68  [Amended]

    14. In Sec. 1212.68 paragraph (a) is amended by removing the number 
``35,000'' wherever it appears 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]

    15. Section 1212.69 is amended by removing the number ``35,000'' 
and adding in its place ``200,000''.


Sec. 1212.84  [Amended]

    16. In Sec. 1212.84 paragraph (a) is amended by removing the word 
``five'' and adding in its place ``four''.

    Dated: February 2, 1995.
Patricia Jensen,
Acting Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 95-3144 Filed 2-7-95; 8:45 am]
BILLING CODE 3410-02-P