Lime Research, Promotion, and Consumer Information Order; Proposed Amendments

SUMMARY: This rule gives notice of proposed amendments to the Lime

Research, Promotion, and Consumer Information Order. These amendments

would revise the definition of the term ``lime'' in order to cover

seedless rather than seeded limes; increase the exemption level from

less than 35,000 pounds annually to less than 200,000; alter the size,

composition, and term of office of the Lime Board; and make necessary

conforming changes. This action is necessary to implement amendments to

the Lime Research, Promotion, and Consumer Information Act of 1990.

DATES: Comments must be received by May 9, 1994.

ADDRESSES: Interested persons are invited to submit written comments

concerning this proposed rule to: Docket Clerk, Fruit and Vegetable

Division, AMS, USDA, P.O. Box 96456, room 2535-S, Washington, DC 20090-

6456. Three copies of all written materials should be submitted, and

they will be made available for public inspection in the Office of the

Docket Clerk during regular working hours. All comments should

reference the docket number of this issue of the Federal Register.

All comments concerning the new information collection requirement

contained in this action (importer reimbursement application) should be

sent to the Office of Information and Regulatory Affairs, Office of

Management and Budget, Washington, DC 20503. Attn: Desk Officer for the

Agricultural Marketing Service.

FOR FURTHER INFORMATION CONTACT: Richard Schultz at the above address

or telephone (202) 720-5976.

SUPPLEMENTARY INFORMATION: This proposed rule would amend the Lime

Research, Promotion, and Consumer Information Order (7 CFR part 1212),

herein referred to as the Order. The Order is effective under the Lime

Research, Promotion, and Consumer Information Act of 1990 (1990 Act)

(Pub. L. 101-624, 7 U.S.C. 6201-6212), as amended by the Lime Research,

Promotion, and Consumer Information Improvement Act (1993 Act) (Pub. L.

103-194, Dec. 14, 1993).

This rule has been determined to be non-significant for the

purposes of Executive Order 12866 and therefore has not been reviewed

by the Office of Management and Budget (OMB).

This rule has been reviewed under Executive Order 12778, Civil

Justice Reform. It is not intended to have retroactive effect. This

rule would 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 1957 of the Act, a

person subject to the Order may file a petition with the Secretary of

Agriculture (Secretary) stating that the Order or 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 an

exemption from the Order. The petitioner is afforded the opportunity

for a hearing on the petition. After such hearing, the Secretary will

make a ruling on the petition. The Act provides that the district

courts of the United States in any district in which a person who is a

petitioner resides or carries on business are vested with jurisdiction

to review the Secretary's ruling on the petition, if a complaint for

that purpose is filed within 20 days after the date of the entry of the

ruling.

Regulatory Impact Analysis

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.

The 1990 Act exempted lime producers who produce less than 35,000

pounds annually for the fresh market from being subject to the Order.

When the 1990 Act was enacted, there were an estimated 325 producers

who produced at least 35,000 pounds annually and were subject to the

Order. When the 1993 Act was enacted, the exemption level was increased

to less than 200,000 pounds annually. At this exemption level, there

are an estimated 50 producers who produce at least 200,000 pounds and

would be subject to the Order. Despite this increase in exemption

level, the majority of producers subject to the Order would still be

classified as small entities. Small agricultural producers have been

defined by the Small Business Administration (SBA) (13 CFR 121.601) as

those having annual receipts of less than $500,000.

The increase in exemption level is not expected to significantly

affect the number of first handlers who are responsible for collecting

and remitting producer assessments to the Lime Board (Board). The

number of first handlers remains at approximately 25. The increase in

exemption level, which also applies to imports, is not expected to

significantly affect the number of importers of fresh market limes. The

number of importers subject to the Order would increase from 5 to 35.

However, this increase in importers is not primarily due to the

increase in the exemption level but rather to the changing character of

the lime industry. As in the case of producers, the majority of first

handlers and importers subject to the Order would still be classified

as small entities. Small agricultural service firms, which include

handlers and importers, have been defined by the SBA as those having

annual receipts of less than $3,500,000.

Since the enactment of the 1990 Act, the character of the lime

industry has significantly changed. As a result of the extensive damage

to lime orchards in Florida by Hurricane Andrew in August 1992,

domestic production has plummeted and the volume of imports has

increased dramatically. Domestic production is not expected to reach

pre-Hurricane Andrew levels for possibly two to three years because

Florida accounted for a majority of domestic production.

Shipment reports of domestic limes, from January 1, 1993, through

December 31, 1993, indicate truck shipments of 8.71 million pounds from

Florida and 8.24 million pounds from California, for a total of 16.95

million pounds. In contrast, shipment reports of imported limes for

this period indicate truck shipments of 248.22 million pounds from

Mexico plus an additional 8.78 million pounds from 12 other countries.

Imports currently represent roughly 93 percent of lime shipments in the

United States.

The Order currently requires lime producers, producer-handlers, and

importers who produce or import 35,000 pounds or more annually for

fresh market to pay an assessment not to exceed one cent per pound of

limes. This proposal would limit assessment obligations to producers,

producer-handlers, and importers of 200,000 pounds or more annually.

The expected results of this amendment would significantly decrease the

number of persons subject to the Order and decrease the amount of

assessments collected.

This proposal would also alter the size and composition of the

Board, the administrative body appointed by the Secretary to operate

the Order, from 11 members to seven. Further, this proposal would

reduce the number of producer members serving on the Board from seven

to three. The number of importer members would remain at three. The

seventh member would be the public member. These changes to the Board's

size and membership are reflective of the current structure of the lime

industry.

Accordingly, the Administrator of the AMS has determined that the

changes reflected in this action would not have a significant economic

impact on a substantial number of small entities.

Paperwork Reduction

In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C.

chapter 35) the information collection requirements contained in the

Order have been approved by the OMB and were assigned OMB number 0581-

0093, except for the Board nominee background statement form which was

assigned OMB number 0505-0001. This action would generally reduce the

number of information collections, and hence the reporting burden. The

information collection requirements of the Order are as follows:

(1) A periodic report by each first handler who handles limes for

fresh market. When the amended Order is implemented, the estimated

number of respondents required to complete this report would be 25,

each submitting a maximum of 12 responses per year, with an estimated

average reporting burden of 30 minutes per response. The change in

exemption level, from less than 35,000 pounds to less than 200,000

pounds, should not affect the number of first handlers. However, this

change could reduce their reporting burden because less information may

be required from persons who previously would not be exempt from the

Order. First handlers may alternatively prepay assessments annually,

requiring only an initial report of anticipated assessments and a final

annual report of actual handling;

(2) A periodic report by each importer who imports 200,000 or more

pounds annually for fresh market. The estimated number of respondents

completing this report would be 35, each submitting a maximum of 12

responses per year, with an estimated average reporting burden of 15

minutes per response. The change in character of the lime industry due

to increased imports since 1992 would raise the number of respondents

filing this report from 5 to 35;

(3) A refund application form for persons who desire a refund of

their assessments. The estimated number of respondents completing this

application would be five, each submitting two responses per year, with

an estimated average reporting burden of 15 minutes per response. The

change in exemption level would reduce the number of respondents filing

this application from 200 to 5;

(4) An importer reimbursement application for persons who import

less than 200,000 pounds annually and desire to be reimbursed for

assessments collected by the U.S. Customs Service. The estimated number

of respondents completing this application would be 20, each submitting

one response per year, with an estimated average reporting burden of 15

minutes per response. Because this is a new form, no comparative data

regarding an increase or decrease in reporting burden is available;

(5) An exemption application for persons who produce or import less

than 200,000 pounds annually for fresh market to be exempt from

assessments and recordkeeping requirements. The estimated number of

respondents completing this application would be 600, each submitting

one response per year, with an estimated average burden of 15 minutes

per response. The changes in exemption level and character of the lime

industry would reduce the number of respondents filing this application

from 680 to 600;

(6) A referendum ballot to be used not later than 30 months after

assessments begin under the amended Order and periodically thereafter

to indicate whether producers and importers favor continuance of the

Order. The estimated number of respondents completing this ballot would

be 85, each submitting one response approximately every five years, or

an annual average of 10 respondents, with an estimated average

reporting burden of 15 minutes per response. The change in exemption

level would reduce the number of respondents completing this ballot

from 325 to 85;

(7) A nominee background statement form for Board member and

alternate positions. Two nominees would be nominated for each open

position on the Board. The estimated number of respondents completing

this form would be 28 during the first year of Order operations, and

approximately eight per year thereafter, with an estimated average

reporting burden of 30 minutes per response. The change in the

composition of the Board would reduce the number of respondents

completing this form from 44 to 28; and

(8) A requirement to maintain records sufficient to verify reports

submitted under the Order. The estimated number of persons required to

comply with this requirement would be 70, each of whom will have an

estimated annual burden of seven minutes. The change in exemption level

would reduce the number of recordkeepers from 350 to 70.

Background

The 1990 Act was enacted on November 28, 1990, for the purpose of

establishing an orderly procedure for the development and financing of

an effective and coordinated program of research, promotion, and

consumer information to strengthen the domestic and foreign markets for

limes. The Order required by the 1990 Act became effective on January

27, 1992 (57 FR 2985), after notice and comment rulemaking.

In March 1992 the Department of Agriculture (Department) conducted

nomination meetings to nominate lime producers and importers for

appointment to the Board. The Board members were appointed by the

Secretary in September 1992, and the Board conducted its first meeting

at the Department in Washington, DC in October 1992. During the course

of this meeting, the Board and the Department concluded that a

technical amendment was needed to cover seedless rather than seeded

limes. Consequently, full implementation of the Order was delayed until

the enactment of such technical amendment.

The 1993 Act contained the necessary technical amendment to cover

seedless limes (citrus latifolia) rather than seeded limes (citrus

aurantifolia) under the Order. The 1993 Act also provided for (1)

increasing the exemption level from less than 35,000 pounds annually to

less than 200,000; (2) terminating the initial Board; (3) changing the

size and composition of the Board; and (4) delaying the initial

referendum date.

This proposed rule invites comments on amending the Order to

reflect the provisions of the 1993 Act. The Act, as amended, will (1)

revise the definition of the term ``lime'' from citrus aurantifolia to

citrus latifolia; (2) increase the exemption level from less than

35,000 pounds annually to less than 200,000; (3) alter the size,

composition, and term of office of the Board; and (4) make conforming

changes.

This rule would change the definition of the ``lime'' from citrus

aurantifolia (seeded lime) to citrus latifolia (seedless lime) in

Sec. 1212.5 of the Order. Although the intent of the Act was to cover

seedless limes, the definition of ``lime'' in Sec. 1953(6) of the 1990

applied only to seeded limes.

This rule would increase the producer and importer exemption level

from less than 35,000 pounds annually to less than 200,000 pounds

annually. This revised exemption level was reached through industry

consensus. Therefore, this rule would change references to 35,000

pounds in Secs. 1212.65, 1212.68, and 1212.69 of the Order to 200,000

pounds. In addition, a new paragraph (d) has been added to Sec. 1212.68

of the Order whereby exempt importers may obtain a refund of

assessments collected by the U.S. Customs Service.

Moreover, this rule would change the size of the Board from 11

members to seven. The Board is currently composed of seven producer

members, three importer members, and their alternates. The public

member position is currently vacant. This action would decrease the

number of producer members from seven to three, which would more fairly

reflect the current structure of the lime industry. Therefore,

Secs. 1212.30, 1212.32, and 1212.34 of the Order would be revised to

make these changes in the Board's composition.

This rule would also change the Board's composition in

Sec. 1212.30(b) relative to representation of producer and importer

members within the two districts established under the Order. District

1 includes the States east of the Mississippi River, Puerto Rico, and

the District of Columbia. District 2 includes the States west of the

Mississippi River. Currently, the Order provides for six producer

members and one importer member and their alternates from District 1,

and one producer member and two importer members and their alternates

from District 2. This action would reduce the number of producer

members from District 1 from six to two by revising section 1212.30 of

the Order.

Further, as a result of this allocation of Board membership, the

realignment of districts or reapportionment of membership between

Districts 1 and 2 on the basis of changes in production and importation

would no longer be necessary. Such realignment or reapportionment would

be inconsistent with the 1993 Act. Therefore, any references to such

realignment or reapportionment would be removed from Secs. 1212.18,

1212.30, and 1212.40 of the Order.

Reducing the size of the Board affects the current requirements for

a quorum and the number of trustees which would be designated if the

program were to be terminated. Therefore, this action would revise

Sec. 1212.37 of the Order to decrease from six to four the number of

members needed to constitute a quorum at Board meetings and change the

number of trustees designated in Sec. 1212.84 of the Order from five to

four.

The 1993 Act requires the appointments of the current Board members

to be terminated. New appointments would then be made by the Secretary.

The 1993 Act also specifies that the initial Board members under the

amended Order would serve initial terms of office of 30 months. This

change is directly related to the provision of the 1993 Act which

delays the deadline for the initial referendum until 30 months after

the date on which the collection of assessments begin under the amended

Order. We are also proposing a conforming change in Sec. 1212.67 of the

Order pursuant to the 1993 provision.

In order to provide administrative continuity during the 30 months

prior to the initial continuance referendum, the 1993 Act provides that

the initial Board members under the amended Order serve 30-month

concurrent terms of office. The 1990 Act provided for the staggering of

the terms of office of the initial Board members. Although staggered

terms of office are generally desirable, this created a situation where

30 percent or more of the Board's membership could change prior to the

initial referendum. In contrast, the 1993 Act provides that the initial

Board members under the amended Order serve 30-month concurrent terms

of office and that staggered terms be reinstituted after the referendum

if the program continues. The purpose of this change is to minimize the

organizational uncertainties associated with Board member turnover and

to facilitate organizational continuity during the period prior to the

initial referendum. Therefore, this action would also amend section

1212.34 of the Order.

All written comments received in response to this publication by

the date specified herein will be considered prior to any finalization

of the proposed amendments.

List of Subjects in 7 CFR Part 1212

Administrative practice and procedure, Advertising, Limes,

Marketing agreements, Reporting and recordkeeping requirements.

For the reasons set forth in the preamble, 7 CFR part 1212 is

proposed to be amended as follows:

PART 1212--LIME RESEARCH, PROMOTION, AND CONSUMER INFORMATION

1. The authority citation for 7 CFR part 1212 revised to read as

follows:

Authority: 7 U.S.C. 6201-6212.

Subpart A--Lime Research, Promotion, and Consumer Information Order

Sec. 1212.2 [Amended]

2. Section 1212.2 is amended by removing the phrase ``and any

amendments thereto'' and adding in its place ``as amended''.

Sec. 1212.5 [Amended]

3. Section 1212.5 is amended by removing the word ``aurantifolia''

and adding in its place ``latifolia''.

Sec. 1212.18 [Amended]

4. Section 1212.18 is amended by removing the phrase ``or other

subdivisions as may be prescribed pursuant to Sec. 1212.40(o)''.

5. In Sec. 1212.30 paragraph (a) is amended by removing the word

``Seven'' and adding in its place ``Three''; by revising paragraph (b);

and by removing paragraph (c) to read as follows:

Sec. 1212.30 Establishment and membership.

* * * * *

(b) Two of the three producer members shall be producers of limes

in District 1, and one producer member shall be a producer of limes in

District 2. One of the three importer members shall be an importer of

limes in District 1, and two importer members shall be importers of

limes in District 2. The public member shall be selected at large.

6. Section 1212.31 is amended by revising the section heading and

paragraph (a), by designating the existing text of paragraph (k) as

paragraph (k)(1) and revising it, and by designating the concluding

text at the end of the section as paragraph (k)(2), to read as follows:

Sec. 1212.31 Nominations.

* * * * *

(a) Except for the member and alternate member who represent the

general public, nominations of initial members to the Board shall be

submitted to the Secretary for selection as soon as practicable after

[the effective date of the amendment of this subpart]. In subsequent

years, nominations of members to the Board shall be submitted to the

Secretary by the Board by August 1. Nominations may be made by means of

group meetings for producer and importer members or by mail ballot.

* * * * *

(k)(1) In the event of a mail ballot, all qualified persons

interested in serving on the Board or who are interested in nominating

another person to serve on the Board shall submit to the Board in

writing such information as name, mailing address, number of pounds

produced, marketed, handled, or imported, or other information as may

be required, in order to place that person on the ballot: Provided,

That in the case of nominating the initial Board under the amended Act,

the Secretary shall mail out the ballots and cause press releases

concerning the distribution of ballots and pertinent information on

balloting to be distributed to the media in the lime producing and

importing areas. These ballots shall be returned to the Secretary.

* * * * *

Sec. 1212.32 [Amended]

7. Section 1212.32 is amended by removing the word ``seven'' and

adding in its place ``three''.

8. Section 1212.34 is revised to read as follows:

Sec. 1212.34 Term of office.

(a) The initial members of the Board and their respective

alternates shall serve 30-month concurrent terms of office.

(b) The term of office for the initial Board shall begin

immediately following appointment by the Secretary. In subsequent

years, the term of office shall begin on January 1 or such other period

which may be approved by the Secretary.

(c) Subsequent appointments to the Board will be for a term of 3

years, except that during the initial 3-year appointments, members and

their alternates shall serve terms as follows: One producer member from

District 1 and one importer member from District 2 shall be appointed

for a term of 1 year; the importer member from District 1 and the

producer member from District 2 shall be appointed for a term of 2

years; and one producer member from District 1 and one importer member

from District 2 shall be appointed for a term of 3 years.

(d) Board members and alternates shall serve during the term of

office for which they are selected and have qualified, and until their

successors are selected and have qualified.

(e) No member or alternate shall serve more than two successive

terms. However, members and alternates serving a term of 1 year, after

having served a 30-month concurrent term, may serve a third successive

term.

Sec. 1212.37 [Amended]

9. In Sec. 1212.37 paragraph (a) is amended by removing the word

``Six'' and adding in its place ``Four''.

Sec. 1212.40 [Amended]

10. Section 1212.40 is amended by removing paragraph (o) and

redesignating paragraphs (p), (q), and (r) as paragraphs (o), (p), and

(q) respectively.

Sec. 1212.65 [Amended]

11. In Sec. 1212.65 paragraph (c)(2)(viii) is amended by removing

the number ``35,000'' and adding in its place ``200,000''.

12. Section 1212.67 is amended by revising the introductory text of

paragraph (a) to read as follows:

Sec. 1212.67 Refunds.

(a) Subject to the provisions of this section any producer,

producer-handler, or importer shall have the right to personally demand

and receive from the Board a refund of assessments paid by or on behalf

of such producer, producer-handler, or importer for any calendar month

during the period beginning on the date on which the collection of

assessments begins under this Order and ending on the effective date of

the referendum mandated by section 1960(a) of the Act; Provided, That:

* * * * *

13. In Sec. 1212.68 paragraph (a) is amended by removing the number

``35,000'' and adding in its place ``200,000''; and by adding a new

paragraph (d) to read as follows:

Sec. 1212.68 Exemption from assessment.

* * * * *

(d) Importers who are exempt from assessment shall be entitled to

reimbursement of assessments collected by the U.S. Customs Service and

shall apply to the Board for reimbursement of such assessments paid on

a marketing year basis. The Board shall reimburse such assessments

within 30 days of receiving an importer's application.

Sec. 1212.69 [Amended]

14. Section 1212.69 is amended by removing the number ``35,000''

and adding in its place ``200,000''.

Sec. 1212.84 [Amended]

15. In Sec. 1212.84 paragraph (a) is amended by removing the word

``five'' and adding in its place ``four''.

Dated: March 31, 1994.

Lon Hatamiya,

Administrator.

[FR Doc. 94-8293 Filed 4-6-94; 8:45 am]

BILLING CODE 3410-02-P