[Federal Register Volume 60, Number 26 (Wednesday, February 8, 1995)]
[Rules and Regulations]
[Pages 7435-7439]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3144]
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DEPARTMENT OF AGRICULTURE
7 CFR Part 1212
[FV-93-707FR]
RIN 0581-AB19
Lime Research, Promotion, and Consumer Information Order;
Amendments
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule amends the Lime Research, Promotion, and Consumer
Information Order. These amendments 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 document is
necessary to implement amendments to the Lime Research, Promotion, and
Consumer Information Act of 1990.
EFFECTIVE DATE: February 8, 1995.
ADDRESSES: Richard Schultz, Research and Promotion Branch, Fruit and
Vegetable Division, AMS, USDA, P.O. Box 96456, Room 2535-S, Washington,
DC 20090-6456.
[[Page 7436]] FOR FURTHER INFORMATION CONTACT: Richard Schultz at the
above address or telephone (202) 720-5976.
SUPPLEMENTARY INFORMATION: This final rule amends the Lime Research,
Promotion, and Consumer Information Order [7 CFR 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].
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. It is not intended to have retroactive effect. 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 Sec. 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
will be subject to the Order. Despite this increase in exemption level,
the majority of producers subject to the Order will 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 will 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 will 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 $5,000,000.
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, 1994, through
December 31, 1994, indicate truck shipments of 11.32 million pounds
from Florida and 4.23 million pounds from California, for a total of
15.55 million pounds. Shipment reports of imported limes for the most
recent 12 month period, November 1, 1993, through October 31, 1994,
indicate truck shipments of 240.46 million pounds from Mexico plus an
additional 8.02 million pounds from 13 other countries. Imports
currently represent roughly 94 percent of lime shipments in the United
States.
The Order, prior to this action, required 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 action limits assessment obligations to
producers, producer-handlers, and importers who produce or import
200,000 pounds or more annually. The expected results of this action
will significantly decrease the number of persons subject to the Order
and decrease the amount of assessments collected.
This action also alters the size and composition of the Board, the
administrative body appointed by the Secretary to operate the Order,
from 11 members to seven. Further, it reduces the number of producer
members serving on the Board from seven to three. The number of
importer members will remain at three. The seventh member will 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 will 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 will 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. The estimated number of respondents required to complete
this report is 25, each submitting a maximum of 12 responses per year,
with an estimated average reporting burden of 30 minutes per response.
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 is 35, each [[Page 7437]] submitting a maximum
of 12 responses per year, with an estimated average reporting burden of
15 minutes per response;
(3) A refund application form for persons who desire a refund of
their assessments. The estimated number of respondents completing this
application is five, each submitting two responses per year, with an
estimated average reporting burden of 15 minutes per response;
(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 is 20, each submitting one
response per year, with an estimated average reporting burden of 15
minutes per response;
(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 is 600, each submitting one
response per year, with an estimated average burden of 15 minutes per
response;
(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 is
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;
(7) A nominee background statement form for Board member and
alternate positions. Two nominees will be nominated for each open
position on the Board. The estimated number of respondents completing
this form is 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; 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 is 70, each of whom will have an estimated
annual burden of seven minutes.
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 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
increasing the exemption level from less than 35,000 pounds annually to
less than 200,000; terminating the initial Board; changing the size and
composition of the Board; and delaying the initial referendum date.
A proposed rule published in the April 7, 1994, issue of the
Federal Register [58 FR 3446] invited comments on amending the Order to
reflect the provisions of the 1993 Act. The Act, as amended, revises
the definition of the term ``lime'' from citrus aurantifolia to citrus
latifolia; increases the exemption level from less than 35,000 pounds
annually to less than 200,000; alters the size, composition, and term
of office of the Board; and makes conforming changes.
The Department received one comment on the April 7 proposed rule.
This comment was received from the California Association of
Limegrowers. The commenter requested clarification on whether producers
and importers subject to the Order will be required to pay an
assessment on their total annual production or importation, or on the
portion of their volume surpassing the exemption level of less than
200,000 pounds annually. In response to this comment, producers and
importers of 200,000 pounds or more of limes annually will be required
to pay assessments on their total annual production or importation.
This rule changes the definition of ``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
Act applied only to seeded limes.
This rule increases 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 changes 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 changes the size of the Board from 11 members
to seven. The Board, prior to this action, was composed of seven
producer members, three importer members, and their alternates. The
public member position was vacant. This action decreases the number of
producer members from seven to three, which more fairly reflects the
current structure of the lime industry. Therefore, Secs. 1212.30,
1212.32, and 1212.34 of the Order have been either amended or revised
to make these changes in the Board's composition.
This rule also changes 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. Prior to this action, the Order provided 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 reduces the number of producer
members from District 1 from six to two by amending and revising
Sec. 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
is no longer necessary. Such realignment or reapportionment is
inconsistent with the 1993 Act. Therefore, any references to such
realignment or reapportionment have been removed from Secs. 1212.18,
1212.30, and 1212.40 of the Order.
Reducing the size of the Board affects the requirements for a
quorum and the number of trustees which will be designated if the
program were to be terminated. Therefore, this action
[[Page 7438]] amends Sec. 1212.37 of the Order by decreasing from six
to four the number of members needed to constitute a quorum at Board
meetings and by changing the number of trustees designated in
Sec. 1212.84 of the Order from five to four.
The 1993 Act requires that appointments of the Board members made
under the 1990 Act be terminated. Such appointments will be terminated
on the effective date of this rule and, when practicable, new
appointments will be made by the Secretary. The 1993 Act also specifies
that the initial Board members under the amended Order will 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. A conforming
change in Sec. 1212.67 of the Order pursuant to the 1993 provision has
also been made.
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 also revises Sec. 1212.34 of
the Order.
In addition, a technical change is made to Sec. 1212.64 of the
Order to add the code number for limes from the Harmonized Tariff
Schedule of the United States.
After consideration of all relevant material presented, it is found
that the amendments to the Order herein tend to effectuate the declared
policy of the Act, as amended.
Pursuant to the provisions of 5 U.S.C. 553, it is found and
determined that good cause exists for not postponing the effective date
of this action until 30 days after publication in the Federal Register
because (1) this action is required by the 1993 Act; (2) the proposed
rule provided a 30-day period to allow interested parties to comment
prior to this action; (3) the amended Order cannot be fully implemented
until this rule becomes effective and the initial Board is appointed;
and (4) no useful purpose would be served by a delay of the effective
date.
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
amended as follows:
PART 1212--LIME RESEARCH, PROMOTION, AND CONSUMER INFORMATION
1. The authority citation for 7 CFR Part 1212 is 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''; paragraph (b) is revised;
and paragraph (c) and the undesignated concluding text are removed 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.
Sec. 1212.31 [Amended]
6. Section 1212.31 is amended by revising the section heading and
paragraph (a), designating the existing text of paragraph (k) as
paragraph (k)(1) and revising it, and 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
February 8, 1995. 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; [[Page 7439]] 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.
11. Section 1212.64 is amended by adding a new paragraph (j) to
read as follows:
Sec. 1212.64 Assessments.
* * * * *
(j) The import assessment shall be uniformly applied to imported
limes that are identified by the number 0805.90.0010 in the Harmonized
Tariff Schedule of the United States or any other number used to
identify limes as defined in Sec. 1212.5.
Sec. 1212.65 [Amended]
12. In Sec. 1212.65 paragraph (c)(2)(viii) is amended by removing
the number ``35,000'' and adding in its place ``200,000''.
13. 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:
* * * * *
Sec. 1212.68 [Amended]
14. In Sec. 1212.68 paragraph (a) is amended by removing the number
``35,000'' wherever it appears 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]
15. Section 1212.69 is amended by removing the number ``35,000''
and adding in its place ``200,000''.
Sec. 1212.84 [Amended]
16. In Sec. 1212.84 paragraph (a) is amended by removing the word
``five'' and adding in its place ``four''.
Dated: February 2, 1995.
Patricia Jensen,
Acting Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 95-3144 Filed 2-7-95; 8:45 am]
BILLING CODE 3410-02-P
