Avocados Grown in South Florida; Assessment Rate

DEPARTMENT OF AGRICULTURE

7 CFR Part 915

[Docket No. FV96-915-1IFR]

Avocados Grown in South Florida; Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule establishes an assessment rate of

$0.16 per bushel of assessable avocados under Marketing Order No. 915

for the 1996-97 and subsequent fiscal periods. Authorization to assess

avocado handlers enables the Avocado Administrative Committee

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

administer the program.

DATES: Effective April 1, 1996. Comments received by June 3, 1996, 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: Caroline C. Thorpe, Marketing Order

Administration Branch, Fruit and

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Vegetable Division, AMS, USDA, P.O. Box 96456, room 2523-S, Washington,

DC 20090-6456, telephone 202-720-5127, FAX (202) 720-5698, or Alex

Jonas, Marketing Specialist, Southeast Marketing Field Office, Fruit

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

33883-2276, telephone 813 299-4896, FAX (813) 299-5169.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement No. 121 and Order No. 915, both as amended (7 CFR part 915),

regulating the handling of avocados grown in South Florida, hereinafter

referred to as the order. 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 of Agriculture (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 now in effect

Florida avocado handlers are subject to assessments. Funds to

administer the order are derived from such assessments. It is intended

that the assessment rate as issued herein will be applicable to all

assessable avocados beginning April 1, 1996, and continuing until

amended or terminated. 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 request 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 to review the

Secretary's ruling on the petition, provided an action 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 65 producers of avocados under the order

and approximately 95 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

$5,000,000. The majority of avocado producers and handlers may be

classified as small entities.

This continuing rate of assessment, beginning with the 1996-97

fiscal period, 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 South Florida avocados. They are familiar with the

committee's needs and with the costs for goods and services in their

local area and are thus in a position to formulate an appropriate

budget and assessment rate. The assessment rate 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 Florida

Avocados. 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 on December 13, 1995, and unanimously recommended

an assessment rate of $0.16 per bushel, the same as last season. This

rate, when applied to anticipated shipments, should yield sufficient

assessment income. This rate, along with interest income and funds from

the committee's authorized reserve, will be adequate to cover budgeted

expenses. Funds in the reserve will be kept within the maximum

permitted by the order of one fiscal period's expenses.

While this rule 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 by the operation of the

marketing order. Therefore, the Administrator of the AMS has determined

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

substantial number of small entities.

The assessment rate established in this interim final rule,

effective April 1, 1996, will continue in effect from fiscal period to

fiscal period indefinitely unless modified, suspended, or terminated by

the Secretary upon recommendation and information submitted by the

committee or other information available to the Secretary. Heretofore,

assessment rates issued under the marketing order were made effective

for a single fiscal period. The change to issuing assessment rates

which will continue in effect from fiscal period to fiscal period

reflects the fact that assessment rates change infrequently from fiscal

period to fiscal period and it is believed unnecessary to issue them

for only a single fiscal period. In addition, this rule will result in

a reduction in operational costs to the committee and the government.

Although this assessment rate is effective for an indefinite period,

the committee will continue to meet prior to or during each fiscal

period to recommend a budget and consider recommendations for

modification of the assessment rate. The dates and times of committee

meetings are available from the Department at the address listed under

ADDRESSES. Committee meetings are open to the public and interested

persons may express their views at these meetings or may file comments

with the Docket Clerk at the address listed above before April 1, each

year. The Department will evaluate committee recommendations and

information submitted by the committee, comments filed, and other

available information, and determine whether modification of the

assessment rate on assessable shipments of South Florida Avocados would

tend to effectuate the declared policy of the Act.

After consideration of all relevant material presented, including

the information and recommendation 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,

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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 1996-97 fiscal period begins on April 1,

1996, and the marketing order requires that the rate of assessment for

each fiscal period apply to all assessable avocados handled during such

fiscal period; (3) handlers are aware of this action which was

unanimously recommended by the committee at a public meeting and is

similar to other assessment rate actions issued in past years; 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 915

Avocados, Marketing agreements, Reporting and recordkeeping

requirements.

For the reasons set forth in the preamble, 7 CFR part 915 is

amended as follows:

PART 915--AVOCADOS GROWN IN SOUTH FLORIDA

1. The authority citation for 7 CFR part 915 continues to read as

follows:

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

2. A new section 915.235 is added to read as follows:

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

Regulations.

Sec. 915.235 Assessment rate.

On and after April 1, 1996, an assessment rate of $0.16 per bushel

of assessable avocados is established for the Avocado Administrative

Committee.

Dated: April 26, 1996.

Eric M. Forman,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 96-10871 Filed 5-1-96; 8:45 am]

BILLING CODE 3410-02-P