[Federal Register Volume 61, Number 151 (Monday, August 5, 1996)]
[Rules and Regulations]
[Pages 40506-40507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19853]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 920

[Docket No. FV96-920-1 IFR]


Kiwifruit Grown in California; Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule establishes an assessment rate for the 
Kiwifruit Administrative Committee (Committee) under Marketing Order 
No. 920 for the 1996-97 and subsequent fiscal periods. The Committee is 
responsible for local administration of the marketing order which 
regulates the handling of kiwifruit grown in California. Authorization 
to assess kiwifruit handlers enables the Committee to incur expenses 
that are reasonable and necessary to administer the program.

DATES: Effective on August 1, 1996. Comments received by September 4, 
1996, will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent in triplicate to the Docket 
Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room 
2523-S, Washington, DC 20090-6456, FAX (202) 720-5698. Comments should 
reference the docket number and the date and page number of this issue 
of the Federal Register and will be available for public inspection in 
the Office of the Docket Clerk during regular business hours.

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, (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 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 Order 
No. 920, as amended (7 CFR part 920), regulating the handling of 
kiwifruit grown in California, hereinafter referred to as the 
``order.'' The marketing 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 rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. Under the marketing order now in effect, California 
kiwifruit handlers 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 
kiwifruit beginning August 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.

[[Page 40507]]

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 500 producers of kiwifruit in the 
production area and approximately 65 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 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. Interested persons are invited to submit 
information on the regulatory and informational impacts of this action 
on small businesses.
    The kiwifruit 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 of California 
kiwifruit and one non-industry member. 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 June 12, 1996, and unanimously recommended 
1996-97 expenditures of $178,598 and an assessment rate of $0.0175 per 
tray or tray equivalent of kiwifruit. In comparison, last year's 
budgeted expenditures were $172,683. The assessment rate of $0.0175 per 
tray or tray equivalent is $0.0025 higher than last year's established 
rate. Major expenditures recommended by the Committee for the 1996-97 
year include $108,500 for administrative staff and field salaries, 
$19,748 for travel, food and lodging and $13,000 for insurance/health 
and accident. Budgeted expenses for these items in 1995-96 were 
$102,850 for administrative staff and field salaries, $19,798 for 
travel, food and lodging and $13,050 for insurance/health and accident.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of California 
kiwifruit. Kiwifruit shipments for the year are estimated at 10.5 
million trays or tray equivalents of kiwifruit which should provide 
$183,750 in assessment income. Income derived from handler assessments, 
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.
    While this rule 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 by the operation of the 
marketing order. Therefore, the AMS 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. 
Further rulemaking will be undertaken as necessary. 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 upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect, 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 begins on August 1, 1996, and the marketing order 
requires that the rate of assessment for each fiscal period apply to 
all assessable kiwifruit 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) this interim final rule 
provides a 30-day comment period, and all comments timely received will 
be considered prior to finalization of this rule.

List of Subjects in 7 CFR Part 920

    Kiwifruit, Marketing agreements.

    For the reasons set forth in the preamble, 7 CFR part 920 is 
amended as follows:

PART 920--KIWIFRUIT GROWN IN CALIFORNIA

    1. The authority citation for 7 CFR part 920 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.

    2. A new Sec. 920.213 is added to read as follows:

    Note: This section will appear in the Code of Federal 
Regulations.


Sec. 920.213  Assessment rate.

    On and after August 1, 1996, an assessment rate of $0.0175 per tray 
or tray equivalent is established for California kiwifruit.

    Dated: July 31, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-19853 Filed 8-2-96; 8:45 am]
BILLING CODE 3410-02-P