Celery Grown in Florida; Decreased Expenses and Assessment Rate

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 967

[Docket No. FV93-967-1FIR]

Celery Grown in Florida; Decreased Expenses and 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 amended interim final

rule that decreased the level of authorized expenses and reduced the

assessment rate that generates funds to pay those expenses.

Authorization of this budget enables the Florida Celery Committee

(Committee) to incur expenses that are reasonable and necessary to

administer the program. Funds to administer this program are derived

from assessments on handlers.

EFFECTIVE DATE: August 1, 1993, through July 31, 1994.

FOR FURTHER INFORMATION CONTACT: Martha Sue Clark, Marketing Order

Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.

Box 96456, room 2523-S, Washington, DC 20090-6456, telephone 202-720-

9918, or William G. Pimental, Southeast Marketing Field Office, Fruit

and Vegetable Division, AMS, USDA, P.O. Box 2276, Winter Haven, FL

33883-2276, telephone 813-299-4770.

SUPPLEMENTARY INFORMATION: This rule is effective under Marketing

Agreement No. 149 and Order No. 967, both as amended (7 CFR part 967),

regulating the handling of celery grown in Florida. 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 is issuing this rule in conformance with Executive

Order 12866.

This rule has been reviewed under Executive Order 12778, Civil

Justice Reform. Under the marketing order provisions now in effect,

Florida celery is subject to assessments. It is intended that the

assessment rate as issued herein will be applicable to all assessable

celery handled during the 1993-94 fiscal year, from August 1, 1993,

through July 31, 1994. 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 requesting a modification of the order or to be exempted

therefrom. A 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 in equity to review the

Secretary's ruling on the petition, provided a bill in equity 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 Administrator of 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 seven producers of Florida celery under

this marketing order, and approximately seven handlers. 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 $3,500,000. The majority of

Florida celery producers and handlers may be classified as small

entities.

The budget of expenses for the 1993-94 fiscal year was prepared by

the Committee, the agency responsible for local administration of the

marketing order, and submitted to the Department for approval. The

members of the Committee are producers and handlers of Florida celery.

They are familiar with the Committee's needs and with the costs of

goods and services in their local area and are thus in a position to

formulate an appropriate budget. The budget was formulated and

discussed in a public meeting. Thus, all directly affected persons have

had an opportunity to participate and provide input.

The assessment rate recommended by the Committee was derived by

dividing anticipated expenses by expected shipments of Florida celery.

Because that rate will be applied to actual shipments, it must be

established at a rate that will provide sufficient income to pay the

Committee's expenses.

The Committee met June 9, 1993, and unanimously recommended a 1993-

94 budget of $90,000 and an assessment rate of $0.02 per crate. The

expenses and assessment rate were published in the Federal Register as

an interim final rule July 16, 1993 (58 FR 38277). That interim final

rule added Sec. 967.228, authorizing expenses and establishing an

assessment rate for the Committee, and provided that interested persons

could file comments through August 16, 1993. No comments were filed.

The Committee budgeted $45,000 to the American Celery Council for

promotional and merchandising activities. However, the Council is no

longer in business. The Committee subsequently met on October 6, 1993,

and unanimously recommended a decrease of $45,000 for promotion,

merchandising, and public relations; reducing funding for the category

to $15,000. This action reduces the total Committee budget for fiscal

year 1993-94 to $45,000.

The Committee also unanimously recommended reducing the assessment

rate by $0.01, for a total of $0.01. This rate, when applied to

anticipated shipments of 4,500,000 crates, will yield $45,000 in

assessment income. Funds in the Committee's authorized reserve as of

July 31, 1992, were $27,853, which is within the maximum permitted by

the order of one marketing year's expenses.

An amended interim final rule was published in the Federal Register

on November 24, 1993 (58 FR 62033). That interim final rule amended

Sec. 967.228 to decrease the level of authorized expenses and reduce

the assessment rate for the Committee. That rule provided that

interested persons could file comments through December 27, 1993. No

comments were received.

While this action will impose some additional costs on handlers,

the costs are in the form of uniform assessments on 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 Administrator of the AMS has determined

that this action will not have a significant economic impact on a

substantial number of small entities.

After consideration of all relevant matter presented, including the

information and recommendations 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.

It is further found that good cause exists for not postponing the

effective date of this action until 30 days after publication in the

Federal Register (5 U.S.C. 553) because the Committee needs to have

sufficient funds to pay its expenses which are incurred on a continuous

basis. The 1993-94 fiscal year began on August 1, 1993. The marketing

order requires that the rate of assessment for the fiscal period apply

to all assessable celery handled during the fiscal year. In addition,

handlers are aware of this action which was recommended by the

Committee at a public meeting and published in the Federal Register as

an amended interim final rule.

List of Subjects in 7 CFR Part 967

Celery, Marketing agreements, Reporting and recordkeeping

requirements.

For the reasons set forth in the preamble, 7 CFR part 967 is

amended as follows:

PART 967--CELERY GROWN IN FLORIDA

1. The authority citation for 7 CFR Part 967 continues to read as

follows:

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

Note: This section will not appear in the annual Code of Federal

Regulations.

Accordingly, the amended interim rule revising Sec. 967.228 which

was published at 58 FR 62033 on November 24, 1993, is adopted as a

final rule without change.

Dated: February 7, 1994.

Robert C. Keeney,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-3326 Filed 2-11-94; 8:45 am]

BILLING CODE 3410-02-P