Kiwifruit Grown in California; Assessment Rate

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 920

[Docket No. FV96-920-1 IFR]

Kiwifruit Grown in California; 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

Kiwifruit Administrative Committee (Committee) under Marketing Order

No. 920 for the 1996-97 and subsequent fiscal periods. The Committee is

responsible for local administration of the marketing order which

regulates the handling of kiwifruit grown in California. Authorization

to assess kiwifruit handlers enables the Committee to incur expenses

that are reasonable and necessary to administer the program.

DATES: Effective on August 1, 1996. Comments received by September 4,

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, (209)

487-5901, FAX (209) 487-5906, 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. Small businesses may

request information on compliance with this regulation by contacting:

Jay Guerber, Marketing Administration Branch, Fruit and Vegetable

Division, AMS, USDA, P.O. Box 96456, Room 2523-S, Washington, DC 20090-

6456; telephone: (202) 720-2491, Fax # (202) 720-5698.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order

No. 920, as amended (7 CFR part 920), regulating the handling of

kiwifruit grown in California, hereinafter referred to as the

``order.'' The marketing order is 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 12988, Civil

Justice Reform. Under the marketing order now in effect, California

kiwifruit 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

kiwifruit beginning August 1, 1996, and continuing until amended,

suspended, or terminated. 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 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.

[[Page 40507]]

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 500 producers of kiwifruit in the

production area and approximately 65 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 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 kiwifruit producers and handlers may be

classified as small entities. Interested persons are invited to submit

information on the regulatory and informational impacts of this action

on small businesses.

The kiwifruit 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 of California

kiwifruit and one non-industry member. 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 June 12, 1996, and unanimously recommended

1996-97 expenditures of $178,598 and an assessment rate of $0.0175 per

tray or tray equivalent of kiwifruit. In comparison, last year's

budgeted expenditures were $172,683. The assessment rate of $0.0175 per

tray or tray equivalent is $0.0025 higher than last year's established

rate. Major expenditures recommended by the Committee for the 1996-97

year include $108,500 for administrative staff and field salaries,

$19,748 for travel, food and lodging and $13,000 for insurance/health

and accident. Budgeted expenses for these items in 1995-96 were

$102,850 for administrative staff and field salaries, $19,798 for

travel, food and lodging and $13,050 for insurance/health and accident.

The assessment rate recommended by the Committee was derived by

dividing anticipated expenses by expected shipments of California

kiwifruit. Kiwifruit shipments for the year are estimated at 10.5

million trays or tray equivalents of kiwifruit which should provide

$183,750 in assessment income. Income derived from handler assessments,

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 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 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 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 August 1, 1996, and the marketing order

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

all assessable kiwifruit 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 920

Kiwifruit, Marketing agreements.

For the reasons set forth in the preamble, 7 CFR part 920 is

amended as follows:

PART 920--KIWIFRUIT GROWN IN CALIFORNIA

1. The authority citation for 7 CFR part 920 continues to read as

follows:

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

2. A new Sec. 920.213 is added to read as follows:

Note: This section will appear in the Code of Federal

Regulations.

Sec. 920.213 Assessment rate.

On and after August 1, 1996, an assessment rate of $0.0175 per tray

or tray equivalent is established for California kiwifruit.

Dated: July 31, 1996.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 96-19853 Filed 8-2-96; 8:45 am]

BILLING CODE 3410-02-P