Expenses and Assessment Rates for Specified Marketing Orders (Florida Tomatoes and California Walnuts)

DEPARTMENT OF AGRICULTURE

7 CFR Parts 966 and 984

[Docket Nos. FV93-966-2FIR, FV93-984-1FIR]

Expenses and Assessment Rates for Specified Marketing Orders

(Florida Tomatoes and California Walnuts)

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 two interim final rules

that authorized expenditures and established assessment rates under

Marketing Orders 966 and 984 for the 1993-94 fiscal period.

Authorization of these budgets enables the Florida Tomato Committee and

the Walnut Marketing Board (Committee and Board) to incur expenses that

are reasonable and necessary to administer the programs. Funds to

administer these programs 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; John R. Toth (M.O. 966), Southeast Marketing Field Office, Fruit

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

33883-2276, telephone 813-299-4770; or Richard P. Van Diest (M.O. 984),

California Marketing Field Office, Fruit and Vegetable Division, AMS,

USDA, Suite 102B, 2202 Monterey Street, Fresno, California 93721,

telephone 209-487-5901.

SUPPLEMENTARY INFORMATION: This rule is effective under Marketing

Agreement No. 125 and Order No. 966, both as amended (7 CFR part 966),

regulating the handling of tomatoes grown in Florida; and Marketing

Agreement and Order No. 984, both as amended (7 CFR part 984),

regulating the handling of walnuts grown in California. 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 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 tomatoes and California walnuts are subject to assessments. It

is intended that the assessment rates as issued herein will be

applicable to all assessable tomatoes and walnuts handled during the

1993-94 fiscal period, which began August 1, 1993, and ends 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 250 producers of Florida tomatoes under

Marketing Order 966, and approximately 50 handlers. Also, there are

approximately 5,000 producers of California walnuts under Marketing

Order 984, and approximately 65 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 the producers and handlers

covered under these orders may be classified as small entities.

The budgets of expenses for the 1993-94 fiscal period were prepared

by the Committee and the Board, the agencies responsible for local

administration of their respective orders, and submitted to the

Department for approval. The members of the Florida Tomato Committee

are producers. The members of the California Walnut Board are producers

and handlers. They are familiar with the Committee's and Board's needs

and with the costs for goods and services in their local areas and are

thus in a position to formulate appropriate budgets. The budgets were

formulated and discussed in public meetings. Thus, all directly

affected persons have had an opportunity to participate and provide

input into these processes.

The recommended assessment rates were derived by dividing

anticipated Committee and Board expenses by expected respective

shipments of Florida tomatoes and merchantable California walnuts.

Because these rates will be applied to actual shipments of tomatoes and

of certified merchantable walnuts, the assessment rates must be

established at levels that will provide sufficient income to pay the

Committee's and Board's expenses.

The Florida Tomato Committee met September 9, 1993, and unanimously

recommended a 1993-94 budget of $2,682,000, which is $4,000 less than

the previous year. Increases in expenditures, which include $6,250 for

office rent, $200 for miscellaneous, and $4,000 for research expense,

will be offset by decreases of $7,000 for office salaries and $7,450

for employees' retirement program. Major expense items include $276,000

for office salaries, $200,000 for research expense, and $2,000,000 for

education and promotion expense.

The Committee also unanimously recommended an assessment rate of

$0.04 per 25-pound container, the same as last year. This rate, when

applied to anticipated shipments of 58,000,000 25-pound containers,

will yield $2,320,000 in assessment income. This, along with $20,000 in

interest and other income and $342,000 from the Committee's authorized

reserve, will be adequate to cover budgeted expenses. Funds in the

Committee's authorized reserve at the beginning of the 1993-94 fiscal

period were $1,349,348, which is within the maximum permitted by the

order of one fiscal period's expenses.

The Walnut Marketing Board met September 10, 1993, and unanimously

recommended a 1993-94 budget of $1,941,647, $69,551 more than the

previous year. Increases include $4,511 for administrative salaries,

$171 for general insurance, $200 for audit, $7,649 for group life,

retirement, and medical plan, $835 for office salaries, $7,904 for

office rent, $6,000 for office supplies and miscellaneous, $1,000 for

telephone and FAX, $2,000 for equipment maintenance and warranties,

$9,000 for furniture, fixtures, and automobiles, $7,450 for production

research director, and the addition of a $43,000 acreage survey

category. These increases will be partially offset by decreases of $300

for social security and hospital insurance taxes, $5,000 for domestic

market research and development, and $14,869 for production research.

Major expenses include $101,331 for administrative salaries, $40,771

for office salaries, $875,000 for domestic market research and

development, $490,488 for production research, $91,068 for production

research director, and $43,000 for a walnut acreage survey. A reserve

for contingencies of $50,000 is also included in the 1993-94 budget.

The Board also unanimously recommended an assessment rate of $0.009

per kernelweight pound, $0.001 less than the previous year. This rate,

when applied to anticipated shipments of 2,157,386 kernelweight pounds

of merchantable walnuts, will yield $1,941,647 in assessment income,

which will be adequate to cover budgeted expenses. Unexpended funds may

be used temporarily during the first five months of the subsequent

marketing year, but must be made available to the handlers from whom

collected within that period.

Interim final rules were published in the Federal Register in

October 27, 1993, for 7 CFR part 966 (58 FR 57719); and on October 28,

1993, for 7 CFR Part 984 (58 FR 57959). Those rules added Sec. 966.231

and Sec. 984.344 which authorized expenses, and established assessment

rates for the Committee and Board. Those rules provided that interested

persons could file comments through November 26, 1993, for 7 CFR part

966 and through November 29, 1993, for 7 CFR part 984. 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 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.

It is found that the specified expenses for the marketing orders

covered in this rulemaking 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] because the Committee and Board need to

have sufficient funds to pay their expenses which are incurred on a

continuous basis. The 1993-94 fiscal periods for the programs began on

August 1, 1993. The marketing orders require that the rates of

assessment for the fiscal periods apply to all assessable tomatoes and

walnuts handled during the fiscal periods. In addition, handlers are

aware of these actions which were recommended by the Committee and

Board at public meetings and published in the Federal Register as

interim final rules.

List of Subjects

7 CFR Part 966

Marketing agreements, Reporting and recordkeeping requirements,

Tomatoes.

7 CFR Part 984

Marketing agreements, Nuts, Reporting and recordkeeping

requirements, Walnuts.

For the reasons set forth in the preamble, 7 CFR parts 966 and 984

are amended as follows:

1. The authority citation for 7 CFR parts 966 and 984 is revised to

read as follows:

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

Note: These sections will not appear in the annual Code of

Federal Regulations.

PART 966--TOMATOES GROWN IN FLORIDA

2. Accordingly, the interim rule adding Sec. 966.231 which was

published at 58 FR 57719 on October 27, 1993, is adopted as a final

rule without change.

PART 984--WALNUTS GROWN IN CALIFORNIA

3. Accordingly, the interim rule adding Sec. 984.344 which was

published at 58 FR 57959 on October 28, 1993, is adopted as a final

rule without change.

Dated: January 5, 1994.

Robert C. Keeney,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-604 Filed 1-10-94; 8:45 am]

BILLING CODE 3410-02-P