[Federal Register Volume 67, Number 91 (Friday, May 10, 2002)]
[Rules and Regulations]
[Pages 31715-31717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11676]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 67, No. 91 / Friday, May 10, 2002 / Rules and 
Regulations  

[[Page 31715]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 915

[Docket No. FV02-915-2 FR]


Avocados Grown in South Florida; Increased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule increases the assessment rate established for the 
Avocado Administrative Committee (Committee) for the 2002-03 and 
subsequent fiscal periods from $0.19 to $0.20 per 55-pound bushel 
container or equivalent of avocados handled. The Committee locally 
administers the marketing order which regulates the handling of 
avocados grown in South Florida. Authorization to assess avocado 
handlers enables the Committee to incur expenses that are reasonable 
and necessary to administer the program. The fiscal period began April 
1 and ends March 31. The assessment rate will remain in effect 
indefinitely unless modified, suspended, or terminated.

EFFECTIVE DATE: May 13, 2002.

FOR FURTHER INFORMATION CONTACT: Doris Jamieson, Marketing Specialist, 
Southeast Marketing Field Office, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 799 Overlook Drive, 
Suite A, Winter Haven, Florida 33884; telephone: (863) 324-3375, Fax: 
(863) 325-8793; or George Kelhart, Technical Advisor, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 
Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; 
telephone: (202) 720-2491, Fax: (202) 720-8938.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-
2491, Fax: (202) 720-8938, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement No. 121 and Order No. 915, both as amended (7 CFR part 915), 
regulating the handling of avocados grown in South Florida, 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 (USDA) 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, Florida 
avocado 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 
avocados beginning April 1, 2002, 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 USDA 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 USDA 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 USDA'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 2002-03 and subsequent fiscal periods from $0.19 to 
$0.20 per 55-pound bushel container or equivalent of avocados handled.
    The Florida avocado marketing order provides authority for the 
Committee, with the approval of USDA, 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 
Florida avocados. 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 2000-01 and subsequent fiscal periods, the Committee 
recommended, and USDA approved, an assessment rate that would continue 
in effect from fiscal period to fiscal period unless modified, 
suspended, or terminated by USDA upon recommendation and information 
submitted by the Committee or other information available to USDA.
    The Committee met on January 9, 2002, and unanimously recommended 
2002-03 expenditures of $211,082 and an assessment rate of $0.20 per 
55-pound bushel container or equivalent of avocados. In comparison, 
last year's budgeted expenditures were $187,384. The assessment rate of 
$0.20 is $0.01 higher than the rate currently in effect.
    The Florida Lime Administrative Committee and the Avocado 
Administrative Committee have shared certain costs (staff, office 
space, and equipment) for economy and efficiency. Each Committee's 
share of these costs was based upon the amount of work and time devoted 
to their particular programs. In April 2001, the Lime Administrative 
Committee voted to suspend its regulations, including assessment 
collection. The suspension runs from February 19, 2002, to February 24, 
2003 (67 FR 6837). They will not need an administrative staff, office 
space, or equipment during the suspension period. Therefore, the 
Avocado Administrative Committee must assume increased costs. The 
increased assessment is needed to generate more assessment funds to 
cover the increased expenses, and to reduce

[[Page 31716]]

the amount of reserve funds the avocado committee has to use to pay 
those expenses. Without the assessment rate increase, the Avocado 
Administrative Committee would have had to use $26,582 of its operating 
reserve to cover the estimated expenses. With the increase, the 
Committee only has to use $17,082 of its operating reserve to cover 
expenses.
    The major expenditures recommended by the Committee for the 2002-03 
year include $76,800 for salaries, $39,850 for local & national 
enforcement, $20,000 for research, $19,499 for insurance and bonds, and 
$17,958 for employee benefits. Budgeted expenses for these items in 
2001-02 were $60,000, $45,615, $17,000, $14,336, and $15,180, 
respectively.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of Florida 
avocados. Avocado shipments for the year are estimated at 950,000 
bushels which should provide $190,000 in assessment income. Income 
derived from handler assessments, along with interest income and funds 
from the Committee's authorized reserve, should be adequate to cover 
budgeted expenses. Funds in the reserve (currently $96,633) will be 
kept within the maximum permitted by the order (approximately three 
fiscal periods' expenses).
    The assessment rate established in this rule will continue in 
effect indefinitely unless modified, suspended, or terminated by USDA 
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 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 USDA. 
Committee meetings are open to the public and interested persons may 
express their views at these meetings. USDA 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 2002-03 budget and those 
for subsequent fiscal periods would be reviewed and, as appropriate, 
approved by USDA.

Final Regulatory Flexibility Analysis

    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 150 producers of avocados in the production 
area and approximately 33 handlers subject to regulation under the 
marketing order. Small agricultural producers are defined by the Small 
Business Administration (13 CFR 121.201) as those having annual 
receipts less than $750,000, and small agricultural service firms are 
defined as those whose annual receipts are less than $5,000,000.
    According to the Florida Agricultural Statistics Service, the 
average f.o.b. price for fresh avocados during the 2000-01 season was 
$14.60 per 55-pound bushel container or equivalent for all domestic 
shipments and total shipments were 1,005,000 bushels. Using these 
prices, virtually all avocado handlers could be considered small 
businesses under the SBA definition. The majority of Florida avocado 
handlers and producers may be classified as small entities.
    This rule increases the assessment rate established for the 
Committee and collected from handlers for the 2002-03 and subsequent 
fiscal periods from $0.19 to $0.20 per 55-pound bushel container or 
equivalent of avocados. The Committee unanimously recommended 2002-03 
expenditures of $211,082 and an assessment rate of $0.20 per 55-pound 
bushel container. The assessment rate of $0.20 is $0.01 higher than the 
2001-02 rate. The quantity of assessable avocados for the 2002-03 
season is estimated at 950,000. Thus, the $0.20 rate should provide 
$190,000 in assessment income. Income derived from handler assessments, 
along with interest income and funds from the Committee's authorized 
reserve, should be adequate to cover budgeted expenses.
    The major expenditures recommended by the Committee for the 2002-03 
fiscal year include $76,800 for salaries, $39,850 for local & national 
enforcement, $20,000 for research, $19,499 for insurance and bonds, and 
$17,958 for employee benefits. Budgeted expenses for these items in 
2001-02 were $60,000, $45,615, $17,000, $14,336, and $15,180, 
respectively.
    The Florida Lime Administrative Committee and the Avocado 
Administrative Committee shared certain costs (staff, office space, and 
equipment) for economy and efficiency. Each Committee's share of these 
costs was based upon the amount of work and time devoted to their 
particular programs. In April 2001, the Lime Administrative Committee 
voted to suspend its regulations, including assessment collection. The 
suspension runs from February 19, 2002, to February 24, 2003 (67 FR 
6837). They will not need an administrative staff, office space, or 
equipment during the suspension period. Therefore, the Avocado 
Administrative Committee must assume increased costs. The increased 
assessment is needed to cover the increased costs and to keep its 
operating reserve at an acceptable level.
    The Committee reviewed and unanimously recommended 2002-03 
expenditures of $211,082 which included increases in administrative and 
office salaries, and research programs. Prior to arriving at this 
budget, the Committee considered information from various sources, such 
as the Committee's Budget Subcommittee. These groups discussed 
alternative expenditure levels. The assessment rate of $0.20 per 55-
pound bushel container of assessable avocados was then determined by 
dividing the total recommended budget by the quantity of assessable 
avocados, estimated at 950,000 55-pound bushel containers or 
equivalents for the 2002-03 fiscal year. This is approximately $21,000 
below the anticipated expenses, which the Committee determined to be 
acceptable.
    A review of historical information and preliminary information 
pertaining to the upcoming fiscal year indicates that the average 
grower price for the 2002-03 season could range between $10.00 and 
$60.00 per 55-pound bushel container or equivalent of avocados. 
Therefore, the estimated assessment revenue for the 2002-03 fiscal year 
as a percentage of total grower revenue could range between .3 and 2 
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 Florida avocado industry and all

[[Page 31717]]

interested persons were invited to attend the meeting and participate 
in Committee deliberations on all issues. Like all Committee meetings, 
the January 9, 2002, 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 Florida 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.
    USDA 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 March 15, 2002 (67 FR 11614). Copies of the proposed rule 
were also mailed or sent via facsimile to all avocado handlers. 
Finally, the proposal was made available through the Internet by the 
Office of the Federal Register and USDA. A 30-day comment period ending 
April 15, 2002, was provided for interested persons to respond to the 
proposal. No comments were received.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 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 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 handlers are 
already receiving 2002-03 crop avocados from growers. Moreover, the 
crop year began on April 1, 2002, and the assessment rate applies to 
all avocados handled during the 2002-03 and subsequent seasons. 
Further, the Committee needs sufficient funds to pay its expenses, and 
handlers are aware of this rule which was recommended at a public 
meeting. Also, a 30-day comment period was provided for in the proposed 
rule and no comments were received.

List of Subjects in 7 CFR Part 915

    Avocados, Marketing agreements, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR part 915 is 
amended as follows:

PART 915--AVOCADOS GROWN IN SOUTH FLORIDA

    1. The authority citation for 7 CFR part 915 continues to read as 
follows:

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

    2. Section 915.235 is revised to read as follows:


Sec. 915.235  Assessment rate.

    On and after April 1, 2002, an assessment rate of $0.20 per 55-
pound container or equivalent is established for avocados grown in 
South Florida.

    Dated: May 3, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-11676 Filed 5-9-02; 8:45 am]
BILLING CODE 3410-02-P