South Texas Onions; Increased Expenses and Establishment of Assessment Rate

DEPARTMENT OF AGRICULTURE

7 CFR Part 959

[Docket No. FV93-959-1IFR; Amendment 1]

South Texas Onions; Increased Expenses and Establishment of

Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Amended interim final rule with request for comments.

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SUMMARY: This interim final rule amends a previous interim final rule

which authorized administrative expenses for the South Texas Onion

Committee (Committee) under M.O. No. 959. This interim final rule

increases the level of authorized expenses and establishes an increased

assessment rate to generate funds to pay those expenses. Authorization

of this increased budget enables the Committee to incur expenses that

are reasonable and necessary to administer the program. Funds to

administer this program are derived from assessments on handlers.

DATES: Effective August 1, 1993, through July 31, 1994. Comments

received by February 10, 1994, will be considered prior to issuance of

a final rule.

ADDRESSES: Interested persons are invited to submit written comments

concerning this action. Comments must be sent in triplicate to the

Docket Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456,

Room 2523-S, Washington, DC 20090-6456, FAX 202-720-5698. Comments

should reference the docket number and the date and page number of this

issue of the Federal Register and will be available for public

inspection in the office of the Docket Clerk during regular business

hours.

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 Belinda G. Garza, McAllen

Marketing Field Office, Fruit and Vegetable Division, AMS, USDA, 1313

East Hackberry, McAllen, TX 78501, telephone 210-682-2833.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement No. 143 and Order No. 959, both as amended (7 CFR part 959),

regulating the handling of onions grown in South Texas. 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 interim final rule has been reviewed under Executive Order

12778, Civil Justice Reform. Under the marketing order provisions now

in effect, South Texas onions are subject to assessments. It is

intended that the assessment rate as issued herein will be applicable

to all assessable onions handled during the 1993-94 fiscal period,

which began August 1, 1993, and ends July 31, 1994. This interim 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 the date of the entry of the ruling.

Pursuant to the 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 47 producers of South Texas onions under

this marketing order, and approximately 34 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 South Texas onion

producers and handlers may be classified as small entities.

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

by the South Texas Onion Committee, the agency responsible for local

administration of the marketing order, and submitted to the Department

of Agriculture for approval. The members of the Committee are producers

and handlers of South Texas onions. 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 South Texas

onions. 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.

Committee administrative expenses of $80,000 for personnel, office,

and compliance expenses were recommended in a mail vote completed

August 4, 1993. The assessment rate and funding for the research and

promotion projects were to be recommended at a later Committee meeting.

The Committee administrative expenses of $80,000 were published in the

Federal Register as an interim final rule September 28, 1993 (58 FR

50509). That interim final rule added Sec. 959.234, authorizing

expenses for the Committee, and provided that interested persons could

file comments through October 28, 1993. No comments were filed.

The Committee subsequently met on November 9, 1993, and unanimously

recommended increases of $2,500 for personnel expenses and $125,000 for

compliance activities in the recently approved 1993-94 budget. The

compliance increase will provide for funds to operate road guard

stations surrounding the production area. The Committee also

unanimously recommended $210,000 in market development activities and

$105,600 in production research. These expenditures represent increases

over last year's budget of $65,000 for market development and $11,412

for production research. Under this amended budget, expense items for

the 1993-94 fiscal period are as follows: $37,472 for personnel,

$29,028 for office expenses, $141,000 for compliance activities,

$210,000 for market development, and $105,600 for production research.

The initial 1994 budget, published on September 28, 1993, did not

establish an assessment rate. Therefore, the Committee also unanimously

recommended an assessment rate of $0.10 per 50-pound container or

equivalent of onions, $0.03 more than last year's assessment rate. This

rate, when applied to anticipated shipments of approximately 5 million

50-pound containers or equivalents, will yield $500,000 in assessment

income, which, along with $23,100 from the reserve, will be adequate to

cover budgeted expenses. Funds in the reserve as of September 30, 1993,

were $346,415, which is within the maximum permitted by the order of

two fiscal periods' expenses.

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 from 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.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good

cause that it is impracticable, unnecessary, and contrary to the public

interest to give preliminary notice prior to putting this rule into

effect and that good cause exists for not postponing the effective date

of this action until 30 days after publication in the Federal Register

because: (1) The Committee needs to have sufficient funds to pay its

expenses which are incurred on a continuous basis; (2) the fiscal

period began on August 1, 1993, and the marketing order requires that

the rate of assessment for the fiscal period apply to all assessable

onions handled during the fiscal period; (3) handlers are aware of this

action which was unanimously recommended by the Committee at a public

meeting and is similar to that taken for the 1992-93 fiscal period; and

(4) this interim final rule provides a 30-day comment period, and all

comments timely received will be considered prior to finalization of

this action.

List of Subjects in 7 CFR Part 959

Marketing agreements, Onions, Reporting and recordkeeping

requirements.

For the reasons set forth in the preamble, 7 CFR part 959 is

amended as follows:

PART 959--ONIONS GROWN IN SOUTH TEXAS

1. The authority citation for 7 CFR part 959 is revised to read as

follows:

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

2. Section 959.234 is revised to read as follows:

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

Regulations.

Sec. 959.234 Expenses and assessment rate.

Expenses of $523,100 by the South Texas Onion Committee are

authorized and an assessment rate of $0.10 per 50-pound container or

equivalent of onions is established for the fiscal period ending July

31, 1994. Unexpended funds may be carried over as a reserve.

Dated: January 5, 1994.

Robert C. Keeney,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-607 Filed 1-10-94; 8:45 am]

BILLING CODE 3410-02-P