Papayas Grown in Hawaii; Assessment Rate

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 928

[Docket No. FV96-928-1-IFR]

Papayas Grown in Hawaii; 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 for the

Papaya Administrative Committee (Committee) under Marketing Order No.

928 for the 1996-97 and subsequent fiscal periods. The Committee is

responsible for local administration of the marketing order which

regulates the handling of papayas grown in Hawaii. Authorization to

assess papaya handlers enables the Committee to incur expenses that are

reasonable and necessary to administer the program.

DATES: Effective on July 1, 1996. Comments received by July 5, 1996,

will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments

concerning this rule. 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: Mary Kate Nelson, Marketing Assistant,

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

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

telephone (209) 487-5901, FAX (209) 487-5901, or Charles L. Rush,

Marketing Specialist, Marketing Order Administration Branch, Fruit and

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

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

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement No. 928 and Order No. 928, both as amended (7 CFR part 928),

regulating the handling of papayas grown in Hawaii, 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 rule has been reviewed under Executive Order 12778, Civil

Justice Reform. Under the marketing order now in effect, handlers of

papayas grown in Hawaii 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

papayas beginning July 1, 1996, and continuing until amended,

suspended, or terminated. This rule will not preempt any State or local

laws,

[[Page 28001]]

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 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 400 producers of papayas in the production

area and approximately 60 handlers subject to regulation under the

marketing order. Small agricultural producers have been defined by the

Small Business Administration (13 CFR 121.601) as those having annual

receipts 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 papaya producers and handlers may be classified as small

entities.

The papaya marketing order provides authority for the Committee,

with the approval of the Department, to formulate an annual budget of

expenses and collect assessments from handlers to administer the

program. The members of the Committee are producers and handlers of

papayas grown in Hawaii. 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 is formulated and discussed in a public

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

participate and provide input.

The Committee met on April 26, 1996, and unanimously recommended

1996-97 expenditures of $485,300 and an assessment rate of $0.0059 per

pound of papayas. In comparison, last year's budgeted expenditures were

$435,800.

The assessment rate of $0.0059 is the same as last year's

established rate. Major expenditures recommended by the Committee for

the 1996-97 year include $160,000 for the marketing and promotion

program, $130,000 for research and development, and $67,000 for

salaries. Budgeted expenses for these items in 1995-96 were $165,500,

$115,000, and $67,000 respectively.

The assessment rate recommended by the Committee was derived by

dividing anticipated expenses by expected shipments of papayas grown in

Hawaii. Papaya shipments for the year are estimated at 30 million

pounds which should provide $177,000 in assessment income. Income

derived from handler assessments, the Hawaii Department of Agriculture,

the USDA's Foreign Agricultural Service, the County of Hawaii, and the

Japanese Inspection program, 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.

While this rule will impose some costs on handlers, the costs are

in the form of uniform assessments on all handlers. Some of the costs

may be passed on to producers.

However, these costs should be offset by the benefits derived by

the operation of the marketing order.

Based on available information, the Agricultural Marketing Service

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 rule will continue in

effect indefinitely unless modified, suspended, or terminated by the

Secretary upon recommendation and information submitted by the

Committee or other available information.

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 of expenses and consider

recommendations for modification of the assessment rate. The dates and

times of Committee meetings are available from the Committee or the

Department. Committee meetings are open to the public and interested

persons may express their views at these meetings. The Department will

evaluate Committee recommendations and other available information to

determine whether modification of the assessment rate is needed.

Further rulemaking will be undertaken as necessary. The Committee's

1996-97 budget and those for subsequent fiscal periods will be reviewed

and, as appropriate, approved by the Department.

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, and contrary to the public

interest to give preliminary notice prior to putting this rule into

effect, 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 July 1, 1996, and the marketing order

requires that the rate of assessment for each fiscal period apply to

all assessable papayas 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 rule.

List of Subjects in 7 CFR Part 928

Marketing agreements, Papayas, Reporting and recordkeeping

requirements.

For the reasons set forth in the preamble, 7 CFR part 928 is

amended as follows:

PART 928--PAPAYAS GROWN IN HAWAII

1. The authority citation for 7 CFR part 928 continues to read as

follows:

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

2. Section 928.226 is added to read as follows:

Note: This section will appear in the Code of Federal

Regulations.

Sec. 928.226 Assessment rate.

On and after July 1, 1996, an assessment rate of $0.0059 per pound

is

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established for papayas grown in Hawaii.

Dated: May 29, 1996.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 96-13853 Filed 6-3-96; 8:45 am]

BILLING CODE 3410-02-P