[Federal Register Volume 63, Number 158 (Monday, August 17, 1998)]
[Rules and Regulations]
[Pages 43868-43870]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22024]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 928
[Docket No. FV98-928-1 FR]
Papayas Grown in Hawaii; Increased Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule increases the assessment rate established for the
Papaya Administrative Committee (Committee) under Marketing Order No.
928 for the 1998-99 and subsequent fiscal years from $0.0059 to $0.0063
per pound of papayas handled. 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. The fiscal year began July 1 and
ends June 30. The assessment rate will remain in effect indefinitely
unless modified, suspended, or terminated.
EFFECTIVE DATE: August 18, 1998.
FOR FURTHER INFORMATION CONTACT: Diane Purvis, Marketing Assistant, or
Terry Vawter, Marketing Specialist, California Marketing Field Office,
Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey Street, Suite
102B, Fresno, California 93721; telephone: (209) 487-5901, Fax: (209)
487-5906; or George Kelhart, Technical Advisor, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room
2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202)
720-2491, Fax: (202) 205-6632. Small businesses may request information
on compliance with this regulation by contacting Jay Guerber, Marketing
Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA,
room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone:
(202) 720-2491, Fax: (202) 205-6632.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 155 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 12988, Civil
Justice Reform. Under the marketing order now in effect, papaya
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 papayas beginning
on July 1, 1998, and continue 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.
This rule increases the assessment rate established for the
Committee for the 1998-99 and subsequent fiscal years from $0.0059 per
pound to $0.0063 per pound of papayas handled.
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. 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.
For the 1996-97 and subsequent fiscal years, the Committee
recommended, and the Department approved, an assessment rate that would
continue in effect from fiscal year to fiscal year unless modified,
suspended, or terminated by the Secretary upon recommendation and
information submitted by the Committee or other information available
to the Secretary.
The Committee met on May 7, 1998, and recommended 1998-99
expenditures of $561,500 and an assessment rate of $0.0063 per pound of
papayas. In comparison, last year's budgeted expenditures were
$623,000. The assessment rate of $0.0063 per pound is $0.0004 higher
than the rate currently in effect. The Committee determined that the
present assessment rate would be inadequate to fund its anticipated
expenses and maintain a sufficient reserve fund for the 1998-99 fiscal
year. The Committee is authorized to maintain an operating reserve in
an amount not to exceed approximately one fiscal year's operational
expenses. Last year, the reserve fund was $110,000. At the end of the
1998-99 fiscal year the operating reserve is expected to be $25,200,
which is considered adequate by the Committee. After consideration of
anticipated expenses for the 1998-99 fiscal year, it was determined
that assessment income, interest, and income from other sources would
provide sufficient funds to meet anticipated expenses and maintain an
adequate reserve fund.
The major expenditures recommended by the Committee for the 1998-99
fiscal year include $183,000 for marketing and promotion, $171,500 for
research and development, and $98,000 for salaries. Budgeted expenses
for these items in 1997-98 were $200,000 for marketing and promotion,
$225,000 for research and development, and $81,000 for salaries.
The assessment rate recommended by the Committee was derived by
dividing assessment income needed by expected shipments of papayas.
Papaya shipments for 1998-99 are estimated at 38 million pounds which
should provide $239,400 in assessment income. Income derived from
handler assessments, when combined with income from the Hawaii
Department of Agriculture, State of Hawaii (Research), USDA's Foreign
Agricultural Service, County of Hawaii, and the Japanese Inspection
program, along with interest income and $84,800 from the Committee's
authorized reserve, will be adequate to cover budgeted expenses. Funds
in the reserve (estimated to be $25,200 at the end of the 1998-99
fiscal year) will be kept within the maximum permitted in
Sec. 928.42(a)(2) of the order. The order authorizes approximately one
fiscal year's expenses for the reserve.
The assessment rate will continue in effect indefinitely unless
modified, suspended, or terminated by the
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Secretary upon recommendation and information submitted by the
Committee or other available information.
Although this assessment rate will be in effect for an indefinite
period, the Committee will continue to meet prior to or during each
fiscal year 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 are encouraged to 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 1998-99 budget and those for subsequent fiscal years will
be reviewed and, as appropriate, approved by the Department.
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. Accordingly, AMS has
prepared this final regulatory flexibility analysis.
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.
Last year, as a percentage, four handlers each shipped in excess of
3.85 million pounds of papayas, and the remaining handlers each shipped
less than 3.85 million pounds of papayas. Using an average f.o.b. price
of $1.30 per pound, the four handlers shipping in excess of 3.85
million pounds of papayas each could be considered large businesses and
the remaining handlers could thus be considered small businesses under
SBA's definition. Using an average grower price of $0.45 per pound and
industry shipments of 36 million pounds, grower revenues would be $16.2
million. Average revenue per grower would thus be $40,500. Based on the
foregoing, the majority of handlers and producers of papayas may be
classified as small entities.
This rule increases the assessment rate established for the
Committee and collected from handlers for the 1998-99 and subsequent
fiscal years from $0.0059 per pound to $0.0063 per pound of papayas
handled. The Committee recommended 1998-99 expenditures of $561,500 and
an assessment rate of $0.0063 per pound of papayas handled. The
assessment rate of $0.0063 per pound is $0.0004 higher than the 1997-98
rate. The quantity of assessable papayas for the 1998-99 fiscal year is
estimated at 38 million pounds. Thus, the $0.0063 rate should provide
$239,400 in assessment income. Income derived from handler assessments,
the Hawaii Department of Agriculture, State of Hawaii (Research),
USDA's Foreign Agricultural Service, County of Hawaii, and Japanese
Inspection program, along with interest income and $84,800 from the
Committee's authorized reserve, will be adequate to cover budgeted
expenses. Funds in the reserve (estimated to be $25,200 at the end of
the 1998-99 fiscal year) will be kept within the maximum permitted in
Sec. 928.42(a)(2) of the order. The order authorizes approximately one
fiscal year's expenses for the reserve.
The Committee recommended 1998-99 expenditures of $561,500 which
include decreases in marketing and promotion, and research and
development programs. The Committee discussed further decreases in
these budget categories to avoid increasing the assessment rate, but it
decided that the programs should be funded at the recommended levels.
Salary increases were budgeted to cover the costs of a new employee.
The expenditures recommended by the Committee for these items for the
1998-99 fiscal year (with budgeted expenses for 1997-98 in parentheses)
include $183,000 for marketing and promotion ($200,000), $171,500 for
research and development ($225,000), and $98,000 for salaries
($81,000).
The assessment rate of $0.0063 per pound of assessable papayas was
determined by dividing the assessment income needed by the quantity of
assessable papayas, estimated at 38 million pounds for the 1998-99
fiscal year. This estimate will generate $239,400 in assessment income.
When combined with $237,300 in anticipated income from other sources
including $84,800 from the reserve, the Committee will have adequate
funds to meet 1998-99 expenses.
A review of historical information and preliminary information
pertaining to the 1998-99 fiscal year indicates that the grower price
could range between $.30 and $0.45 per pound of papayas. Therefore, the
estimated assessment revenue for the 1998-99 fiscal year as a
percentage of total grower revenue could range between 1.4 and 2.1
percent.
This action increases the assessment obligation imposed on
handlers. While assessments impose some additional costs on handlers,
the costs are minimal and uniform 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. In addition, the Committee's meeting was widely
publicized throughout the papaya industry, and all interested persons
were invited to attend the meeting and participate in Committee
deliberations on all issues. Like all Committee meetings, the May 7,
1998, meeting was a public meeting and all entities, both large and
small, were able to express views on this issue. Finally, interested
persons were invited to submit information on the regulatory and
informational impacts of this action on small businesses.
This final rule will impose no additional reporting or
recordkeeping requirements on either small or large papaya handlers. As
with all Federal marketing order programs, reports and forms are
periodically reviewed to reduce information requirements and
duplication by industry and public sector agencies.
The Department has not identified any relevant Federal rules that
duplicate, overlap, or conflict with this rule.
Notice of this action was published in the Federal Register on June
29, 1998 (63 FR 35164). A 30-day comment period ending July 29, 1998,
was provided to allow interested persons to respond to the proposed
rule. No comments were received.
After consideration of all relevant matter 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.
It is further found that good cause exists for not postponing the
effective date of this rule until 30 days after publication in the
Federal Register (5
[[Page 43870]]
U.S.C. 553) because: (1) The 1998-99 fiscal year began on July 1, 1998,
and the marketing order requires that the rate of assessment for each
fiscal year apply to all assessable papayas handled during such fiscal
year; (2) the Committee needs to have sufficient funds to pay its
expenses which are incurred on a continuous basis; and (3) handlers are
aware of this action which was recommended by the Committee at a public
meeting and is similar to other assessment rate actions issued in past
years.
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 revised to read as follows:
Sec. 928.226 Assessment rate.
On and after July 1, 1998, an assessment rate of $0.0063 per pound
is established for papayas grown in Hawaii.
Dated: August 11, 1998.
Eric M. Forman,
Acting Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 98-22024 Filed 8-14-98; 8:45 am]
BILLING CODE 3410-02-P
