Finalization of Interim Final Rules for Specified Marketing Orders (Oranges, Grapefruit, and Papayas)

DEPARTMENT OF AGRICULTURE

7 CFR Parts 906 and 928

[Docket Nos. FV93-906-1, Amendment 1; and FV93-928-2, Amendment 1]

Finalization of Interim Final Rules for Specified Marketing

Orders (Oranges, Grapefruit, and Papayas)

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 the interim final rules

that authorized expenses and established assessment rates for the Texas

Valley Citrus Committee and the Papaya Administrative Committee

(Committees) under Marketing Order Nos. 906 and 928, respectively.

Authorization of these budgets enables the Committees to incur expenses

that are reasonable and necessary to administer their respective

programs. Funds to administer these programs are derived from

assessments on handlers.

EFFECTIVE DATE: Section 906.233 is effective August 1, 1993, through

July 31, 1994; Sec. 928.233 is effective July 1, 1993, through June 30,

1994.

FOR FURTHER INFORMATION CONTACT: Britthany E. Beadle, Marketing Order

Administration Branch, F&V, AMS, USDA, P.O. Box 96456, room 2524-S,

Washington, DC 20090-6456; telephone: (202) 720-5127; Belinda Garza

(Sec. 906.233), McAllen Marketing Field Office, Marketing Order

Administration Branch, Fruit and Vegetable Division, AMS, USDA, 1313 E.

Hackberry, McAllen, TX 78501, telephone: (512) 682-2833; or Kurt J.

Kimmel (Sec. 928.233), California Marketing Field Office, Marketing

Order Administration Branch, Fruit and Vegetable Division, AMS, USDA,

2202 Monterey Street, suite 102 B, Fresno, CA 93721, telephone: (209)

487-5901.

SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing

Agreement and Marketing Order No. 906 [7 CFR part 906] regulating the

handling of oranges and grapefruit grown in the lower Rio Grande Valley

in Texas; and Marketing Agreement and Marketing Order No. 928, as

amended [7 CFR part 928] regulating the handling of papayas grown in

Hawaii. The marketing 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 is issuing this rule in conformance with Executive

Order 12866.

This final rule has been reviewed under Executive Order 12778,

Civil Justice Reform. Under the marketing order provisions now in

effect, oranges and grapefruit grown in Texas and papayas grown in

Hawaii are subject to assessments. It is intended that the assessment

rates specified herein will be applicable to all assessable oranges,

grapefruit, and papayas handled during the 1993-94 fiscal year,

beginning August 1, 1993, through July 31, 1994 (M.O. 906), and July 1,

1993, through June 30, 1994 (M.O. 928). This final 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. 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 in equity to review

the Secretary's ruling on the petition, provided a bill in equity is

filed not later than 20 days after 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 action 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 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 135 handlers of oranges and grapefruit, and

120 handlers of papayas subject to regulation under their respective

marketing orders each season. In addition, there are approximately

2,500 orange and grapefruit producers in Texas, and 300 papaya

producers in Hawaii. 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 the orange, grapefruit, and papaya

producers and handlers may be classified as small entities.

The respective marketing orders require that the assessment rates

for a particular fiscal year shall apply to all assessable oranges,

grapefruit, and papayas handled from the beginning of such year. An

annual budget of expenses is prepared by each Committee and submitted

to the Department for approval. The members of the Committees are

handlers and producers of the regulated commodities. They are familiar

with the Committees' needs and with the costs for goods, services, and

personnel in their local areas and are thus in a position to formulate

appropriate budgets. The budgets are formulated and discussed in public

meetings. Thus, all directly affected persons have an opportunity to

participate and provide input.

The assessment rates recommended by the Committees are derived by

dividing anticipated expenses by expected shipments of oranges,

grapefruit, and papayas. Because these rates are applied to actual

shipments, they must be established at rates which will produce

sufficient income to pay the Committees' expected expenses. The

recommended budgets and rates of assessment are usually acted upon by

the Committees shortly before a season starts, and expenses are

incurred on a continuous basis. Therefore, the budget and assessment

rate approval must be expedited so that the Committees will have funds

to pay their expenses.

An interim final rule was issued for the Texas Valley Citrus

Committee (TVCC), on July 7, 1993, and published in the Federal

Register [58 FR 37635, July 13, 1993] effective for the period August

1, 1993, through July 31, 1994, with a 30-day comment period ending

August 12, 1993. The interim final rule authorized expenses of $984,319

and an assessment rate of $0.15 per \7/10\ bushel carton for the 1993-

94 fiscal year. No comments were filed on the expenses and assessment

rate in the interim final rule.

The TVCC met again on August 3, 1993, and unanimously recommended

increasing authorized expenses to $1,180,925, a $196,606 increase from

the previously authorized amount. The TVCC also unanimously recommended

increasing the assessment rate from $0.15 per \7/10\ bushel carton to

$0.18 per \7/10\ bushel carton, a $0.03 increase per \7/10\ bushel

carton from the previously established assessment rate.

An amended interim final rule was issued on October 7, 1993, and

published in the Federal Register [58 FR 53111, October 14, 1993]

effective for the period August 1, 1993 through July 31, 1994, and

provided a 30-day comment period. This amended interim final rule

increased authorized expenses to $1,180,925, and increased the

assessment rate to $0.18 per \7/10\ bushel carton of assessable oranges

and grapefruit for the 1993-94 fiscal year under the order. The

$196,606 expense increase is necessary to provide additional funds for

order operations, including $172,606 to fund increased administrative

and compliance expenses, primarily for the maintenance of road guard

stations, and $24,000 to cover a shortfall in the Mexican Fruit Fly

support program. The increase in the assessment rate along with the

withdrawal of additional funds from the TVCC's reserves, will

adequately fund the increased expenses.

An amended interim final rule was issued for the Papaya

Administrative Committee (PAC), on June 14, 1993, and published in the

Federal Register [58 FR 33759, June 21, 1993] effective for the period

July 1, 1993, through June 30, 1994, with a 30-day comment period

ending July 21, 1993. The interim final rule authorized expenses of

$700,580 and an assessment rate of $0.0085 per pound of fresh papayas

for the 1993-94 fiscal year. No comments were filed on the expenses and

assessment rate in the interim final rule.

However, the PAC met again on August 13, 1993, and unanimously

recommended decreasing authorized expenses from $700,580 to $597,860, a

$102,720 decrease in expenses from the authorized amount. The PAC also

unanimously recommended decreasing the assessment rate from $0.0085 to

$0.0069, a $0.0016 decrease in the assessment rate, based upon 58

million pounds of fresh papayas, from the previously established

assessment rate.

An amended interim final rule was issued on October 7, 1993, and

published in the Federal Register [58 FR 53117, October 14, 1993]

effective for the period July 1, 1993, through June 30, 1994, and

provided a 30-day comment period. This amended interim final rule

decreased authorized expenses to $597,860, and reduced the assessment

rate to $0.0069 per pound of fresh papayas for the 1993-94 fiscal year

under the order. Program income for the PAC decreased from $701,660 to

$599,356, a $102,304 decrease from the previous estimate. Major program

income reductions come from a $92,800 decrease in assessment income due

to the lower assessment rate and a $9,504 reduction in income from the

Department's Foreign Agricultural Service.

The $102,720 decrease in expenses results from reductions in a

number of expense items. Major expense reductions include expenditures

for salaries and wages, office rent, auto expenses, and Japanese

advertising and promotion. The projected income over expenses has

increased from $1,080 to $1,496, a $416 increase from the previous

amount. The excess funds will be added to the PAC's operational

reserve.

While this action 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 from the operation of the

marketing orders. 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.

The amended interim final rules were published in the Federal

Register [58 FR 53111 October 14, 1993], for 7 CFR part 906, and [58 FR

53117, October 14, 1993], for 7 CFR part 928. Each interim final rule

provided a 30-day comment period for interested persons. No comments

were received.

It is found that the specified expenses for the marketing orders

covered in this rule are reasonable and likely to be incurred and that

such expenses and the specified assessment rates to cover such expenses

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]. The Committees need to have sufficient

funds to pay their expenses which are incurred on a continuous basis.

The 1993-94 fiscal years for the programs began on August 1, 1993, for

Texas citrus and July 1, 1993, for Hawaii papayas. The marketing orders

require that the rates of assessment for the fiscal year apply to all

assessable oranges, grapefruit, and papayas handled during the fiscal

years. In addition, handlers are aware of these actions which were

recommended by the Committees at public meetings and published in the

Federal Register as interim final rules. No comments were received

concerning the two interim final rules that are adopted in this action

as final rules without change.

List of Subjects

7 CFR Part 906

Grapefruit, Marketing agreements, Oranges, Reporting and

recordkeeping requirements.

7 CFR Part 928

Marketing agreements, Papayas, Reporting and recordkeeping

requirements.

For the reasons set forth in the preamble, 7 CFR parts 906 and 928

are hereby amended as follows:

1. The authority citation for 7 CFR parts 906 and 928 continue to

read as follows:

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

PART 906--ORANGES AND GRAPEFRUIT GROWN IN LOWER RIO GRANDE VALLEY

IN TEXAS

2. For the reasons set forth in the preamble, the interim final

rule revising Sec. 906.233 which was published at 58 FR 53111, is

adopted as a final rule without change.

PART 928--PAPAYAS GROWN IN HAWAII

3. For the reasons set forth in the preamble, the interim final

rule revising Sec. 928.233 which was published at 58 FR 53117, is

adopted as a final rule without change.

Dated: January 3, 1994.

Robert C. Keeney,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-421 Filed 1-7-94; 8:45 am]

BILLING CODE 3410-02-P