[Federal Register Volume 64, Number 212 (Wednesday, November 3, 1999)]
[Rules and Regulations]
[Pages 59604-59606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28751]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 928
[Docket No. FV99-928-1 FR]
Papayas Grown in Hawaii; Increased Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule increases the assessment rate from $0.0063 to $0.008
per pound of assessable papayas established for the Papaya
Administrative Committee (Committee) under Marketing Order No. 928 for
the 1999-2000 and subsequent fiscal years. 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. The fiscal year began on July
1 and ends June 30. The assessment rate will remain in effect
indefinitely unless modified, suspended, or terminated.
EFFECTIVE DATE: November 4, 1999.
FOR FURTHER INFORMATION CONTACT: Terry Vawter, Marketing Specialist,
California Marketing Field Office, Fruit and Vegetable Programs, AMS,
USDA, 2202 Monterey Street, Suite 102B, Fresno, California 93721;
telephone: (559) 487-5901; Fax: (559) 487-5906; or George Kelhart,
Technical Advisor, Marketing Order Administration Branch, Fruit and
Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456, Washington,
DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 720-5698. Small
businesses may request information on complying with this regulation by
contacting Jay Guerber, Marketing Order Administration Branch, Fruit
and Vegetable Programs, AMS, USDA, P.O. Box 96456, room 2525-S,
Washington, DC 20090-6456; telephone (202) 720-2491, Fax: (202) 720-
5698, or E-mail: Jay.G[email protected].
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 155 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, papaya
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 papayas beginning
July 1, 1999, 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 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 increases the assessment rate established for the
Committee for the 1999-2000 and subsequent fiscal years from $0.0063
per pound to $0.008 per pound of assessable papayas.
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. 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.
For the 1998-1999 and subsequent fiscal years, the Committee
recommended, and the Department approved, an assessment rate that would
continue in effect from fiscal year to fiscal year unless modified,
suspended, or terminated by the Secretary upon recommendation and
information submitted by the Committee or other information available
to the Secretary.
The Committee met on April 22, 1999, to discuss the crop estimate,
budget, and assessment rate for the 1999-2000 fiscal year. On July 15,
1999, the Committee completed a mail ballot on the crop estimate and
assessment rate, and on an eight-to-one vote, adopted a crop estimate
of 40 million pounds of
[[Page 59605]]
assessable papayas and an assessment rate of $0.008 per pound for the
1999-2000 and subsequent fiscal years. The person who voted no objected
to the higher assessment rate. The Committee unanimously recommended a
1999-2000 fiscal year budget of $522,500.
The assessment rate of $0.008 is $0.0017 higher than the rate
currently in effect. The budgeted expenses are $39,000 less than the
$561,500 budgeted for last year. The Committee determined that a higher
assessment rate was necessary to meet the recommended expenses and
maintain a reserve fund for the 1999-2000 fiscal year. For several
fiscal years, money from the reserve fund has been used to meet a
portion of budgeted expenses in an effort to keep the assessment rate
as low as possible. The Committee believes a further reduction of the
reserve fund would not be prudent.
The Committee is authorized to maintain reserve funds in an amount
not to exceed approximately one fiscal year's operational expenses.
Last year, the reserve fund was $25,200. This year it is expected to be
$25,000, which is approximately one percent lower than the previous
year and considered adequate by the Committee. After consideration of
the estimated crop size and anticipated expenses for the 1999-2000
fiscal year, it was determined that increasing the assessment rate by
approximately 27 percent will provide sufficient funds to meet
anticipated expenses and maintain an adequate reserve fund.
The major expenditures recommended by the Committee for the 1999-
2000 year include $230,000 for marketing and promotion, $90,500 for
research and development, and $98,000 for salaries. Budgeted expenses
for these items in 1998-99 were $183,000 for marketing and promotion,
$171,500 for research and development, and $98,000 for salaries,
respectively.
The assessment rate recommended by the Committee was derived by
dividing assessment income needed by expected shipments of papayas.
Papaya shipments for the year are estimated at 40 million pounds which
should provide $320,000 in assessment income. Income derived from
handler assessments, when combined with income from the Hawaii
Department of Agriculture, State of Hawaii (Research), USDA's Foreign
Agricultural Service, County of Hawaii, and the Japanese Inspection
program, along with interest income of $16,000, will be adequate to
cover budgeted expenses. Funds in the reserve (estimated to be $25,000
at the end of the 1999-2000 fiscal year) will be kept within the
maximum permitted in Sec. 928.42(a)(2) of the order. The order
authorizes approximately one fiscal year's expenses for the reserve.
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 will be in effect for an indefinite
period, the Committee will continue to meet prior to or during each
fiscal year 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
1999-2000 budget and those for subsequent fiscal years would 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 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.
Based on a reported average f.o.b. price of $1.30 per pound of
papayas, a handler would have to ship in excess of 3.85 million pounds
of papayas to have annual receipts of $5,000,000. Last year, a majority
of the handlers shipped less than 3.85 million pounds of papayas, and,
therefore, could be considered small businesses under SBA's definition.
Based on a reported average grower price of $0.45 per pound and
industry shipments of 36 million pounds, total grower revenues would be
$16.2 million. Average grower revenue would thus be $40,500. Based on
the foregoing, the majority of producers of papayas may be classified
as small entities.
This rule increases the assessment rate established for the
Committee and collected from handlers for the 1999-2000 and subsequent
fiscal years from $0.0063 per pound to $0.008 per pound of assessable
papayas. The Committee recommended 1999-2000 expenditures for $522,500
and the $0.008 per pound assessment rate. The assessment rate of $0.008
is $0.0017 higher than the 1998-99 rate. The quantity of assessable
papayas for the 1999-2000 fiscal year is estimated at 40 million
pounds. Thus, the $0.008 rate should provide $320,000 in assessment
income. Income derived from handler assessments, the Hawaii Department
of Agriculture, State of Hawaii (Research), USDA's Foreign Agricultural
Service, County of Hawaii, and the Japanese Inspection program, along
with interest income of $16,000, will be adequate to cover budgeted
expenses. Funds in the reserve (estimated to be about $25,000 at the
end of the 1999-2000 fiscal year) will be kept within the maximum
permitted in Sec. 928.42(a)(2) of the order. The order authorizes
approximately one fiscal year's expenses for the reserve.
The Committee recommended 1999-2000 expenditures of $522,500. The
major expenditures recommended for the 1999-2000 year include $230,000
for marketing and promotion, $90,500 for research and development, and
$98,000 for salaries. Budgeted expenses for these items in 1998-99 were
$183,000 for marketing and promotion, $171,500 for research and
development, and $98,000 for salaries, respectively.
The Committee discussed the alternative of decreasing expenditure
levels for marketing and promotion and further reducing research and
development expenditures. It determined that the programs should be
funded at the recommended levels. The assessment rate of $0.008 per
pound of assessable papayas was determined by dividing the assessment
income needed by the quantity of assessable papayas, estimated at 40
million pounds for the 1999-2000 fiscal year. This estimate would
generate $320,000 in assessment income. When combined with $208,800 in
anticipated income from the
[[Page 59606]]
previously mentioned sources, and $16,000 in interest income, the
Committee will have adequate funds to meet its 1999-2000 expenses.
A review of historical information and preliminary information
pertaining to the 1999-2000 fiscal year indicates that the grower price
for the season could range between $.30 and $.45 per pound of papayas.
Therefore, the estimated assessment revenue for the 1999-2000 fiscal
year as a percentage of total grower revenue could range between 1.8
and 2.7 percent.
This action increases the assessment obligation imposed on
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
are offset by the benefits derived by the operation of the marketing
order. In addition, the Committee's meeting was widely publicized
throughout the Hawaii papaya industry and all interested persons were
invited to attend the meeting and participate in Committee
deliberations on all issues. Like all Committee meetings, the April 22,
1999, meeting was a public meeting and all entities, both large and
small, were able to express views on this issue.
This rule imposes no additional reporting or recordkeeping
requirements on either small or large Hawaii papaya 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 September 2, 1999 (64 FR 48115). Copies of the proposed
rule were also mailed or sent via facsimile to all papaya handlers.
Finally, the proposal was made available through the Internet by the
Office of the Federal Register. The period of comments ended October 4,
1999. No comments were received.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at the
following web site: http://www.ams.usda.gov/fv/moab.html. Any questions
about the compliance guide should be sent to Jay Guerber at the
previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
After consideration of all relevant material presented, including
the information and recommendation submitted by the Committee and other
available information, it 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: (1) Handlers
are already receiving 1999-2000 crop papayas from growers; (2) the
1999-2000 fiscal year began on July 1 and the order requires that the
assessment rate apply to all papayas received during that fiscal year;
(3) the Committee needs to have sufficient funds to pay its expenses
which are incurred on a continuous basis; (4) handlers are aware of
this action which was recommended at a public meeting, and is similar
to other assessment rate actions issued in past years; (5) a 30-day
comment period was provided for in the proposed rule, and no comments
were received.
List of Subjects in 7 CFR Part 928
Marketing agreements, Papayas, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 928 is
amended as follows:
PART 928--PAPAYAS GROWN IN HAWAII
1. The authority citation for 7 CFR part 928 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 928.226 is revised to read as follows:
Sec. 928.226 Assessment rate.
On and after July 1, 1999, an assessment rate of $0.008 per pound
is established for Hawaii papayas.
Dated: October 28, 1999.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-28751 Filed 11-2-99; 8:45 am]
BILLING CODE 3410-02-P