[Federal Register Volume 61, Number 149 (Thursday, August 1, 1996)]
[Rules and Regulations]
[Pages 40146-40147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19520]


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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service

7 CFR Part 928

[Docket No. FV96-928-1 FIR]


Papayas Grown in Hawaii; Assessment Rate

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 
establishing an assessment rate for the Papaya Administrative Committee 
(Committee) under Marketing Order No. 928 for the 1996-97 and 
subsequent fiscal periods. The Committee is responsible for local 
administration of the marketing order which regulates the handling of 
papayas grown in Hawaii. Authorization to assess papaya handlers 
enables the Committee to incur expenses that are reasonable and 
necessary to administer the program.

EFFECTIVE DATE: July 1, 1996.

FOR FURTHER INFORMATION CONTACT: Mary Kate Nelson, Marketing Assistant, 
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 L. Rush, 
Marketing Specialist, Marketing Order Administration Branch, Fruit and 
Vegetable Division, AMS, USDA, P.O. Box 96456, room 2523-S, Washington, 
DC 20090-6456, telephone (202) 720-5127, FAX (202) 720-5698. Small 
businesses may request information on compliance with this regulation 
by contacting: Jay Guerber, Marketing Order Administration Branch, 
Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room 2523-S, 
Washington, DC 20090-6456, telephone (202) 720-2491, FAX (202) 720-
5698.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement No. 928 and Order No. 928, both as amended (7 CFR part 928), 
regulating the handling of papayas grown in Hawaii, hereinafter 
referred to as the ``order.'' The marketing agreement and order are 
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 rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. Under the marketing order now in effect, handlers of 
papayas grown in Hawaii are subject to assessments. Funds to administer 
the order are derived from such assessments. It is intended that the 
assessment rate as issued herein will be applicable to all assessable 
papayas beginning July 1, 1996, and continuing until amended, 
suspended, or terminated. 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. Such 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 to review the 
Secretary's ruling on the petition, provided an action is filed not 
later than 20 days after the date of the entry of the ruling.
    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), 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 the 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 400 producers of papayas in the production 
area and approximately 60 handlers subject to regulation under the 
marketing order. Small agricultural producers have been defined by the 
Small Business Administration (13 CFR 121.601) as those having annual 
receipts 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 papaya producers and handlers may be classified as small 
entities.
    The papaya marketing order provides authority for the Committee, 
with the approval of the Department, to formulate an annual budget of 
expenses and collect assessments from handlers to administer the 
program. The members of the Committee are producers and handlers of 
papayas grown in Hawaii. They are familiar with the Committee's needs 
and with the costs for goods and services in their local area and are 
thus in a position to formulate an appropriate budget and assessment 
rate. The assessment rate is formulated and discussed in a public 
meeting. Thus, all directly affected persons have an opportunity to 
participate and provide input.
    The Committee met on April 26, 1996, and unanimously recommended 
1996-97 expenditures of $485,300 and an assessment rate of $0.0059 per 
pound of papayas. In comparison, last year's budgeted expenditures were 
$435,800. The assessment rate of $0.0059 is the same as last year's 
established rate. Major expenditures recommended by the Committee for 
the 1996-97 year include $160,000 for marketing and promotion 
activities, $130,000 for research and development, and $67,000 for 
salaries. Budgeted expenses for these items in 1995-96 were $165,500, 
$115,000, and $67,000 respectively.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of papayas grown in 
Hawaii. Papaya shipments for the year are estimated at 30 million 
pounds which should provide $177,000 in assessment income. Income 
derived from handler assessments, the Hawaii Department of Agriculture, 
the USDA's Foreign Agricultural Service, the County of Hawaii, and the 
Japanese Inspection program, along with interest income and funds from 
the Committee's authorized reserve, will be adequate to cover budgeted 
expenses. Funds in the reserve will be kept within the maximum 
permitted by the order.
    An interim final rule regarding this action was published in the 
June 4, 1996, issue of the Federal Register (61 FR 28000). That rule 
provided for a 30-day comment period. No comments were received.
    While this rule will impose some costs on handlers, the costs are 
in the form of uniform assessments on all handlers. Some of the costs 
may be

[[Page 40147]]

passed on to producers. However, these costs should be offset by the 
benefits derived by the operation of the marketing order. Therefore, 
the Agricultural Marketing Service has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities.
    The assessment rate established in this rule will continue in 
effect indefinitely unless modified, suspended, or terminated by the 
Secretary upon recommendation and information submitted by the 
Committee or other available information.
    Although this assessment rate is effective for an indefinite 
period, the Committee will continue to meet prior to or during each 
fiscal period to recommend a budget of expenses and consider 
recommendations for modification of the assessment rate. The dates and 
times of Committee meetings are available from the Committee or the 
Department. Committee meetings are open to the public and interested 
persons may express their views at these meetings. The Department will 
evaluate Committee recommendations and other available information to 
determine whether modification of the assessment rate is needed. The 
Committee's 1996-97 budget and those for subsequent fiscal periods will 
be reviewed and, as appropriate, approved by the Department.
    After consideration of all relevant material presented, including 
the information and recommendation submitted by the Committee and other 
available information, it is hereby found that this 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 1996-97 fiscal period began on 
July 1, 1996, and the marketing order requires that the rate of 
assessment for each fiscal period apply to all assessable papayas 
handled during such fiscal period; (3) handlers are aware of this 
action which was unanimously recommended by the Committee at a public 
meeting and is similar to other assessment rate actions issued in past 
years; 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 928

    Marketing agreements, Papayas, Reporting and recordkeeping 
requirements.

PART 928--PAPAYAS GROWN IN HAWAII

    Accordingly, the interim rule amending 7 CFR part 928 which was 
published at 61 FR 28000 on June 4, 1996, is adopted as a final rule 
without change.

    Dated: July 25, 1996.
Sharon Bomer Lauritsen,
Acting Director, Fruit and Vegetable Division.
[FR Doc. 96-19520 Filed 7-31-96; 8:45 am]
BILLING CODE 3410-02-P