[Federal Register Volume 60, Number 196 (Wednesday, October 11, 1995)]
[Rules and Regulations]
[Pages 52834-52835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25131]



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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service

7 CFR Part 920

[Docket No. FV95-920-2FIR]


Expenses and Assessment Rate for Marketing Order Covering 
Kiwifruit Grown in California

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (Department) is adopting as a 
final rule, without change, the provisions of an interim final rule 
authorizing expenditures and establishing an assessment rate under 
Marketing Order No. 920 for the 1995-96 fiscal year. Authorization of 
this budget enables the Kiwifruit Administrative Committee (Committee) 
to incur expenses that are reasonable and necessary to administer the 
program. Funds to administer this program are derived from assessments 
on handlers.

DATES: Effective beginning August 1, 1995, through July 31, 1996.

FOR FURTHER INFORMATION CONTACT: Rose M. Aguayo, Marketing Specialist, 
California Marketing Field Office, Fruit and Vegetable Division, AMS, 
USDA, 2202 Monterey Street, suite 102B, Fresno, California 93721, 
telephone (209) 487-5901, Fax # (209) 487-5906; or Charles Rush, 
Marketing Specialist, Marketing Order Administration Branch, F&V, AMS, 
USDA, P.O. Box 96456, room 2522-S, Washington, DC 20090-6456; telephone 
(202) 690-3670, Fax # (202) 720-5698.

SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing 
Order No. 920 (7 CFR part 920), as amended, regulating the handling of 
kiwifruit grown in California, 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 (Department) is issuing this rule in 
conformance with Executive Order 12866.
    This final rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. Under the marketing order provisions now in 
effect, California kiwifruit are subject to assessments. It is intended 
that the assessment rate as issued herein will be applicable to all 
assessable California kiwifruit during the 1995-96 fiscal year 
beginning August 1, 1995, through July 31, 1996. 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 the Secretary 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. A handler 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 any 
district in which the handler is an inhabitant, or has his or her 
principal place of business, has jurisdiction in equity to review the 
Secretary's ruling on the petition, provided a bill in equity is filed 
not later than 20 days after date of the entry of the ruling.
    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. Marketing orders issued 
pursuant to the Act, and rules issued thereunder, are unique in that 
they are brought about through group action of essentially small 
entities acting on their own behalf. Thus, both statutes have small 
entity orientation and compatibility.
    There are approximately 65 handlers of kiwifruit grown in 
California who are subject to regulation under the kiwifruit marketing 
order and approximately 600 producers of kiwifruit in the regulated 
area. Small agricultural producers have been defined by the Small 
Business Administration (13 CFR 121.601) as those having annual 
receipts of less than $500,000, and small agricultural service firms 
are defined as those whose annual receipts are less than $5,000,000. 
The majority of kiwifruit producers and handlers may be classified as 
small entities.
    The kiwifruit marketing order, administered by the Department, 
requires that the assessment rate for a particular fiscal year apply to 
all assessable kiwifruit handled from the beginning of such year. The 
budget of expenses for the 1995-96 fiscal year was prepared by the 
Committee, the agency responsible for local administration of this 
marketing order, and submitted to the Department for approval. The 
members of the Committee are producers of California kiwifruit and one 
non-industry member. They are familiar with the Committee's needs and 
with the costs for goods, services, and personnel in their local area 
and are thus in a position to formulate an appropriate budget. The 
budget was formulated and discussed in public meetings. Thus, all 
directly affected persons have an opportunity to participate and 
provide input.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of kiwifruit. 
Because that rate is applied to actual shipments, it must be 
established at a rate which will produce sufficient income to pay the 
Committee's expected expenses. The recommended budget and rate of 
assessment are usually acted upon by the Committee shortly before a 
season starts, and expenses are incurred on a continuous basis. 
Therefore, the budget and assessment rate approval must be expedited so 
that the Committee will have funds to pay its expenses.
    The Committee met on June 14, 1995, and unanimously recommended 
1995-96 marketing order expenditures of $172,683 and an assessment rate 
of 1.5 cents per tray or tray equivalent of 

[[Page 52835]]
kiwifruit. In comparison, 1994-95 marketing year budgeted expenditures 
were $169,157, which is $3,526 less than the $172,683 recommended for 
this fiscal year. The assessment rate of 1.5 cents per tray or tray 
equivalent is .5 cents more than last year's assessment rate of 1.0 
cents. The major budget category for 1995-96 is $102,850 for 
administrative, staff and field salaries.
    Assessment income for 1995-96 is estimated to total $135,000 based 
on anticipated fresh domestic shipments of 9 million trays or tray 
equivalents of kiwifruit. The assessment income will have to be 
augmented by $37,683 from the Committee's reserves to provide adequate 
funds to cover budgeted expenses. Funds in the reserve at the end of 
the 1995-96 fiscal year are estimated to be $40,245. These reserve 
funds will be within the maximum permitted by the order of one fiscal 
year's expenses.
    An interim final rule regarding this action was published in the 
July 13, 1995, issue of the Federal Register (60 FR 36032). That rule 
provided for a 30-day comment period. No comments were received.
    While this action will impose some additional costs on handlers, 
the costs are in the form of uniform assessments on all handlers. Some 
of the additional costs may be passed on to producers. However, these 
costs will be offset by the benefits derived from the operation of the 
marketing order. Therefore, the Administrator of the AMS has determined 
that this action will not have a significant economic impact on a 
substantial number of small entities.
    After consideration of all relevant material presented, including 
the Committee's recommendation, and other available information, it is 
found that this final rule, as hereinafter set forth, will tend to 
effectuate the declared policy of the Act.
    Pursuant to 5 U.S.C. 553, it is 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: (1) The 
Committee needs to have sufficient funds to pay its expenses which are 
incurred on a continuous basis; (2) the 1995-96 fiscal year began on 
August 1, 1995, and the marketing order requires that the rate of 
assessment for the fiscal year apply to all assessable kiwifruit 
handled during the fiscal year; (3) handlers are aware of this rule 
which was recommended by the Committee at a public meeting; and (4) an 
interim final rule was published on this action and provided for a 30-
day comment period; no comments were received.

List of Subjects in 7 CFR Part 920

    Kiwifruit, Marketing agreements, Reporting and recordkeeping 
requirements.

PART 920--KIWIFRUIT GROWN IN CALIFORNIA

    Accordingly, the interim final rule amending 7 CFR part 920 which 
was published at 60 FR 36032 on July 13, 1995, is adopted as a final 
rule without change.

    Dated: September 27, 1995.
Sharon Bomer Lauritsen,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 95-25131 Filed 10-10-95; 8:45 am]
BILLING CODE 3410-02-P