[Federal Register Volume 63, Number 61 (Tuesday, March 31, 1998)]
[Rules and Regulations]
[Pages 15278-15281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8392]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 911 and 915

[Docket No. FV98-911-1 FR]


Limes and Avocados Grown in Florida; Establishment of a 
Continuing Assessment Rate for Limes and a Decrease in the Continuing 
Assessment Rate for Avocados

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule establishes an assessment rate for the Lime 
Administrative Committee (LAC) under Marketing Order No. 911 for the 
1998-99 and subsequent fiscal years and decreases the assessment rate 
established for the Avocado Administrative Committee (AAC) under 
Marketing Order No. 915 for the 1998-99 and subsequent fiscal years. 
The Lime and Avocado Administrative Committees (Committees) are 
responsible for local administration of the marketing orders which 
regulate the handling of limes and avocados grown in Florida. 
Authorization to assess lime and avocado handlers enables the 
Committees to incur expenses that are reasonable and necessary to 
administer the programs. The fiscal years begin April 1 and end March 
31. The assessment rates will remain in effect indefinitely unless 
modified, suspended, or terminated.

EFFECTIVE DATE: April 1, 1998.

FOR FURTHER INFORMATION CONTACT: Doris Jamieson, Southeast Marketing 
Field Office, Fruit and Vegetable Programs, AMS, USDA, PO Box 2276, 
Winter Haven, FL 33883-2276; telephone: (941) 299-4770, Fax: (941) 299-
5169; or George Kelhart, Technical Advisor, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room 
2525-S, PO Box 96456, Washington, DC 20090-6456; telephone: (202) 720-
2491, Fax: (202) 205-6632. Small businesses may request information on 
compliance with this regulation by contacting Jay Guerber, Marketing 
Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 
room 2525-S, PO Box 96456, Washington, DC 20090-6456; telephone: (202) 
720-2491, Fax: (202) 205-6632.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement No. 126 and Marketing Order No. 911, both as amended (7 CFR 
part 911), regulating the handling of limes grown in Florida, and 
Marketing Agreement No. 121 and Marketing Order No. 915, both as 
amended (7 CFR part 915), regulating the handling of avocados grown in 
Florida, hereinafter referred to as the ``orders.'' The marketing 
agreements and orders 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 orders now in effect, Florida lime 
and avocado handlers are subject to assessments. Funds to administer 
the orders are derived from such assessments. It is intended that the 
assessment rates as issued herein will be applicable to all assessable 
limes and avocados beginning April 1, 1998, and continue 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

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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.
    This rule establishes an assessment rate for the LAC for the 1998-
99 and subsequent fiscal years of $0.16 per bushel container. This rule 
also deceases the assessment rate established for the AAC for the 1998-
99 and subsequent fiscal years from $0.16 per bushel container to $0.08 
per bushel container.
    The Florida lime and avocado marketing orders provide authority for 
the Committees, with the approval of the Department, to formulate an 
annual budget of expenses and collect assessments from handlers to 
administer the programs. The members of the Committees are producers 
and handlers of Florida limes and avocados. They are familiar with the 
Committees' needs and with the costs for goods and services in their 
local area and are thus in a position to formulate appropriate budgets 
and assessment rates. The assessment rates are formulated and discussed 
in public meetings. Thus, all directly affected persons have an 
opportunity to participate and provide input.
    For the 1996-97 and subsequent fiscal years, the AAC recommended, 
and the Department approved, an assessment rate that would continue in 
effect from fiscal year to fiscal year indefinitely unless modified, 
suspended, or terminated by the Secretary upon recommendation and 
information submitted by the Committee or other information available 
to the Secretary. The LAC has not assessed handlers since the 1995-96 
fiscal year. It has used reserve funds to cover authorized expenses.
    The Committees met on December 10, 1997, and the LAC unanimously 
recommended 1998-99 expenditures of $130,785 and an assessment rate of 
$0.16 per bushel container of limes. The AAC also met on December 10, 
1997, and unanimously recommended 1998-99 expenditures of $166,844 and 
an assessment rate of $0.08 per bushel container of avocados.
    In comparison, last year's budgeted expenditures were $101,630 for 
the LAC and $123,000 for the AAC. The assessment rate for the LAC of 
$0.16 is the same as the rate established for the 1995-96 fiscal year, 
the last year handlers were assessed. The assessment rate for the AAC 
of $0.08 is $0.08 lower than the rate currently in effect.
    In an effort to reduce industry costs and assist with the recovery 
from Hurricane Andrew which hit southern Florida in August of 1992, the 
LAC has been operating from its reserve funds for the past two years. 
With the lime industry beginning to recover and reserve funds reduced, 
the LAC voted to establish an assessment rate to cover operating 
expenses.
    The AAC has excess reserve funds. They voted to decrease the 
assessment rate and use reserve funds to cover operating expenses and 
reduce reserve levels.
    The major expenditures recommended by the LAC for the 1998-99 year 
include $46,000 for salaries, $25,000 for local and national 
enforcement, $9,448 for employee benefits, $9,000 for research, $8,287 
for insurance and bonds, and $4,500 for travel. The LAC budgeted 
expenses for these items in 1997-98 were $40,000, $15,595, $5,500, 
$5,000, $0, and $3,000, respectively.
    The major expenditures recommended by the AAC for the 1998-99 year 
include $46,000 for salaries, $34,000 for research, $32,000 for local 
and national enforcement, $9,778 for employee benefits, $8,516 for 
insurance and bonds, and $7,000 for travel. The AAC budgeted expenses 
for these items in 1997-98 were $40,000, $7,000, $26,595, $6,380, 
$7,937, and $7,000, respectively.
    The assessment rates recommended by the Committees were derived by 
dividing anticipated expenses by expected shipments of Florida limes 
and avocados. Lime shipments for the year are estimated at 600,000 
bushel containers which should provide $96,000 in assessment income. 
Avocado shipments for the year are estimated at 900,000 bushel 
containers which should provide $72,000 in assessment income. Income 
derived from handler assessments, along with interest income and funds 
from the Committees' authorized reserves, should be adequate to cover 
budgeted expenses. Funds in the reserves will be kept within the 
maximum permitted by the orders (Secs. 911.42 and 915.42--three fiscal 
years' operational expenses, permissible reserves of approximately 
$392,000 for limes and $501,000 for avocados). Reserves for limes are 
currently around $100,000, and reserves for avocados stand at around 
$250,000.
    The assessment rates established in this rule will continue in 
effect indefinitely unless modified, suspended, or terminated by the 
Secretary upon recommendation and information submitted by the 
Committees or other available information.
    Although these assessment rates will be in effect for an indefinite 
period, the Committees will continue to meet prior to or during each 
fiscal year to recommend budgets of expenses and consider 
recommendations for modification of the assessment rates. The dates and 
times of Committee meetings are available from the Committees 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 rates is needed. 
Further rulemaking will be undertaken as necessary. The Committees' 
1998-99 budgets and those for subsequent fiscal years will be reviewed 
and, as appropriate, approved by the Department.
    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. Accordingly, AMS has 
prepared this final regulatory flexibility analysis.
    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 111 producers of limes and 141 producers of 
avocados in the production area and approximately 33 lime handlers and 
49 avocado handlers subject to regulation under the marketing orders. 
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.
    Based on the Florida Agricultural Statistical Service and Committee 
data, the average price for fresh limes during the 1995-96 season was 
$8.05 per 88 pound box equivalent and total shipments were 371,413 
bushels. Approximately 20 percent of all handlers handled 86 percent of 
Florida lime shipments. The average price for fresh avocados during the 
1996-97 season was $13.20 per 55 pound bushel box equivalent for all 
domestic

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shipments and the total shipments were 917,861 bushels. Approximately 
10 percent of all handlers handled 90 percent of Florida avocado 
shipments. Many lime and avocado handlers ship other tropical fruit and 
vegetable products which are not included in the Committee data but 
would contribute further to handler receipts.
    Using the average prices, about 90 percent of lime and avocado 
handlers could be considered small businesses under SBA's definition 
and about 10 percent of the handlers could be considered large 
businesses. The majority of Florida lime and avocado handlers and 
producers may be classified as small entities.
    This rule establishes an assessment rate for the LAC and collected 
from handlers for the 1998-99 and subsequent fiscal years of $0.16 per 
bushel container. The LAC unanimously recommended 1998-99 expenditures 
of $130,785 and an assessment rate of $0.16 per bushel container for 
1998-99 and subsequent fiscal years. The assessment rate of $0.16 is 
the same as the rate established for the 1995-96 fiscal year, the last 
year handlers were assessed. The quantity of assessable limes for the 
1998-99 fiscal year is estimated at 600,000 containers. Thus, the $0.16 
rate for limes should provide $96,000 in assessment income. The 
assessment income, along with interest income and funds from the 
Committee's authorized reserve, will be adequate to cover budgeted 
expenses for 1998-99.
    This rule also decreases the assessment rate established for the 
AAC and collected from handlers for the 1998-99 and subsequent fiscal 
years from $0.16 per bushel container to $0.08 per bushel container. 
The AAC unanimously recommended 1998-99 expenditures of $166,844 and an 
assessment rate of $0.08 per bushel container of avocados. The 
assessment rate of $0.08 is $0.08 lower than the 1997-98 rate. The 
quantity of assessable avocados for the 1998-99 fiscal year is 
estimated at 900,000 containers. Thus, the $0.08 rate for avocados 
should provide $72,000 in assessment income. The assessment income, 
along with interest income and funds from the Committee's authorized 
reserve, will be adequate to cover budgeted expenses.
    Due to the devastation of Hurricane Andrew in August of 1992, the 
LAC has been operating from its reserve funds for the past two years. 
The industry has now adequately recovered from the loss. In order not 
to deplete reserve funds further, the LAC voted to establish an 
assessment rate for 1998-99 and subsequent fiscal years. The 
assessments, along with interest income and reserves, will cover 
committee operating expenses.
    The AAC has a surplus in its reserve fund. The AAC voted to 
decrease the assessment rate and use funds from the reserves. The 
assessments, along with interest income and reserves, will cover 
committee operating expenses.
    The LAC reviewed and unanimously recommended 1998-99 expenditures 
of $130,785 which include increases in salaries, office space, aerial 
photo/tree count, and office equipment. The AAC reviewed and 
unanimously recommended 1998-99 expenditures of $166,844 which include 
increases in salaries, office space, and aerial photo/tree count. Prior 
to arriving at this budget, the Committees considered information from 
various sources, such as the Committees' Budget Subcommittees. 
Alternative expenditure levels were discussed by these groups, based 
upon the relative value of various research projects to the lime and 
avocado industries. The LAC budgeted $9,000 and the AAC budgeted 
$34,000 for research.
    The assessment rate of $0.16 per bushel container of assessable 
limes was then determined by dividing the total recommended budget by 
the quantity of assessable limes, estimated at 600,000 bushel 
containers for the 1998-99 fiscal year. This is approximately $35,000 
below the anticipated expenses, which the LAC determined to be 
acceptable. The assessment rate of $0.08 per bushel container of 
assessable avocados was then determined by dividing the total 
recommended budget by the quantity of assessable avocados, estimated at 
900,000 bushel containers for the 1998-99 fiscal year. This is 
approximately $171,000 below the anticipated expenses, which the AAC 
determined to be acceptable.
    A review of historical information indicates that the grower price 
for the 1998-99 season could range between $4.16 and $9.50 per 
container of limes. Therefore, the estimated assessment revenue for the 
1998-99 crop year as a percentage of total grower revenue could range 
between 1.6 and 3.8 percent.
    A review of historical information indicates that the grower price 
for the 1998-99 season could range between $13.20 and $14.90 per 
container of avocados. Therefore, the estimated assessment revenue for 
the 1998-99 crop year as a percentage of total grower revenue could 
range between .5 and .6 percent.
    This action increases the assessment obligation imposed on lime 
handlers and decreases the assessment obligation imposed on avocado 
handlers. While assessments impose some additional costs on handlers, 
the costs are minimal and uniform 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 orders. In addition, the Committees' meetings were widely 
publicized throughout the Florida lime and avocado industries and all 
interested persons were invited to attend the meetings and participate 
in deliberations on all issues. Like all LAC and AAC meetings, the 
December 10, 1997, meetings were public meetings and all entities, both 
large and small, were able to express views on this issue. In addition, 
interested persons were invited to submit information on the regulatory 
and information impacts of this action on small businesses.
    This rule imposes no additional reporting or recordkeeping 
requirements on either small or large Florida lime and avocado 
handlers. As with all Federal marketing order programs, reports and 
forms are periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies.
    The Department has not identified any relevant Federal rules that 
duplicate, overlap, or conflict with this rule.
    A proposed rule concerning this action was published in the Federal 
Register on February 10, 1998 (63 FR 6679). Copies of the proposed rule 
were also mailed or sent via facsimile to all Florida lime and avocado 
handlers. Finally, the proposal was made available through the Internet 
by the Office of the Federal Register.
    A 30-day comment period ending March 12, 1998, was provided for 
interested persons to respond to the proposal. No comments were 
received in response to the proposal.
    After consideration of all relevant material presented, including 
the information and recommendation submitted by the Committees 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 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 the crop year 
begins on April 1, 1998, and the assessment rate applies to all limes 
and avocados received during the 1998-99 and subsequent seasons. 
Further, handlers are aware of this rule which was recommended at 
public meetings. Also, a 30-day comment period was

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provided for in the proposed rule, and no comments were received.

List of Subjects

7 CFR Part 911

    Limes, Marketing agreements, Reporting and recordkeeping 
requirements.

7 CFR Part 915

    Avocados, Marketing agreements, Reporting and recordkeeping 
requirements.
    For the reasons set forth in the preamble, 7 CFR parts 911 and 915 
are amended as follows:
    1. The authority citation for both 7 CFR parts 911 and 915 
continues to read as follows:

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

PART 911--LIMES GROWN IN FLORIDA

    2. A new subpart titled ``Assessment Rates'' and a new Sec. 911.234 
are added to read as follows:

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

Subpart--Assessment Rates


Sec. 911.234  Assessment rate.

    On and after April 1, 1998, an assessment rate of $0.16 per bushel 
container is established for Florida limes.

PART 915--AVOCADOS GROWN IN SOUTH FLORIDA

    3. A new subpart titled ``Assessment Rates'' is added and 
Sec. 915.235 is revised to read as follows:

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

Subpart--Assessment Rates


Sec. 915.235  Assessment rate.

    On and after April 1, 1998, an assessment rate of $0.08 per bushel 
container is established for South Florida avocados.

    Dated: March 25, 1998.
Sharon Bomer Lauritsen,
Acting Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 98-8392 Filed 3-30-98; 8:45 am]
BILLING CODE 3410-02-P