95-17196. Expenses and Assessment Rate for Marketing Order Covering Kiwifruit Grown in California

[Federal Register Volume 60, Number 134 (Thursday, July 13, 1995)]
[Rules and Regulations]
[Pages 36031-36033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17196]



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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service

7 CFR Part 920

[Docket No. FV95-920-2IFR]


Expenses and Assessment Rate for Marketing Order Covering 
Kiwifruit Grown in California

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule authorizes expenses and establishes an 
assessment rate for the Kiwifruit Administrative Committee (Committee) 
under Marketing Order No. 920 for the 1995-96 fiscal year. The 
Committee is responsible for local administration of the marketing 
order which regulates the handling of California kiwifruit. 
Authorization of this budget enables the Committee to incur expenses 
that are reasonable and necessary to administer the program. Funds to 
administer this program are derived from assessments on handlers.

DATES: Effective beginning August 1, 1995, through July 31, 1996. 
Comments received by August 14, 1995, will be considered prior to 
issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this interim final 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 # [phone]. 
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 [phone], Fax # [phone]; or Charles Rush, 
Marketing Specialist, Marketing Order Administration Branch, F&V, AMS, 
USDA, P.O. Box 96456, room 2522-S, Washington, DC 20090-6456; telephone 
[phone], Fax # [phone].

SUPPLEMENTARY INFORMATION: This interim final rule is issued under 
Marketing Order No. 920 (7 CFR part 920), as amended, regulating the 
handling of kiwifruit grown in California, hereinafter referred to as 
the ``order.'' The 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 interim final rule has been reviewed under Executive Order 
12778, Civil Justice Reform. Under the marketing order provisions now 
in effect, California kiwifruit are subject to assessments. It is 
intended that the assessment rate as issued herein will be applicable 
to all assessable California kiwifruit during the 1995-96 fiscal year 
beginning August 1, 1995, through July 31, 1996. 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. A 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 in equity to review the 
Secretary's ruling on the petition, provided a bill in equity is filed 
not later than 20 days after 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 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 65 handlers of kiwifruit grown in California who are 
subject to regulation under the kiwifruit marketing order and 600 
producers of kiwifruit in the regulated area. 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.
    The kiwifruit marketing order, administered by the Department, 
requires that the assessment rate for a particular fiscal year apply to 
all assessable kiwifruit handled from the beginning of such year. The 
budget of expenses for the 1995-96 fiscal year was prepared by the 
Committee and submitted to the Department for approval. The Committee 
consists of producers and a non-industry member. They are familiar with 
the Committee's needs and with the costs for goods, services, and 
personnel in their local area and are thus in a position to formulate 
an appropriate budget. The budget was formulated and discussed in 
public meetings. Thus, all directly affected persons have an 
opportunity to participate and provide input.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of kiwifruit. 
Because that rate is applied to actual shipments, it must be 
established at a rate which will produce sufficient income to pay the 
Committee's expected expenses. The recommended budget and rate of 
assessment are usually acted upon by the Committee shortly before a 
season starts, and expenses are incurred on a continuous basis. 
Therefore, the budget and assessment rate approval must be expedited so 
that the Committee will have funds to pay its expenses.
    The Committee met on June 14, 1995, and unanimously recommended 
1995-96 marketing order expenditures of $172,683 and an assessment rate 
of 1.5 cents per tray or tray equivalent of kiwifruit. In comparison, 
1994-95 marketing year budgeted expenditures were $169,157, which is 
$3,526 less than the $172,683 recommended for this fiscal year. The 
assessment rate of 1.5 cents per tray or tray equivalent is .5 cents 
more than last year's assessment rate of 1.0 cents. The major budget 
category for 1995-96 is $102,850 for administrative, staff and field 
salaries.
    Assessment income for 1995-96 is estimated to total $135,000 based 
on anticipated fresh domestic shipments of 9 million trays or tray 
equivalents of kiwifruit. The assessment income will have to be 
augmented by $37,683 from the Committee's reserves to provide adequate 
funds to cover budgeted expenses. Funds in the reserve at the end of 
the 1995-96 fiscal year are 

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estimated to be $40,245. These reserve funds will be within the maximum 
permitted by the order of one fiscal year's expenses.
    While this action 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 from the operation of the 
marketing order. Therefore, the Administrator of the AMS has determined 
that this action will not have a significant economic impact on a 
substantial number of small entities.
    After consideration of all relevant material presented, including 
the Committee's recommendation, and other available information, it is 
found that this interim final 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 and that good cause exists for not postponing the effective date 
of this rule 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 1995-96 
fiscal year begins on August 1, 1995, and the marketing order requires 
that the rate of assessment for the fiscal year apply to all assessable 
kiwifruit handled during the fiscal year; (3) handlers are aware of 
this rule which was recommended by the Committee at a public meeting; 
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.

    Note: This section will not appear in the Code of Federal 
Regulations.

    2. A new Sec. 920.212 is added to read as follows:


Sec. 920.212  Expenses and assessment rate.

    Expenses of $172,683 by the Kiwifruit Administrative Committee are 
authorized, and an assessment rate of 1.5 cents per tray or tray 
equivalent of assessable kiwifruit is established for the 1995-96 
fiscal year ending on July 31, 1996. Unexpended funds may be carried 
over as a reserve.

    Dated: July 7, 1995
Sharon Bomer Lauritsen,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 95-17196 Filed 7-12-95; 8:45 am]
BILLING CODE 3410-02-P