FR Doc 05-19309

[Federal Register: September 28, 2005 (Volume 70, Number 187)]
[Rules and Regulations]
[Page 56561-56563]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28se05-1]

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Rules and Regulations
Federal Register
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[[Page 56561]]

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 920

[Docket No. FV05-920-2 FR]

Kiwifruit Grown in California; Increased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule increases the assessment rate and changes the
assessable unit established for the Kiwifruit Administrative Committee
(Committee) for the 2005-06 and subsequent fiscal periods from $0.002
per pound of kiwifruit to $0.045 per 9-kilo volume-fill container or
equivalent of kiwifruit. The Committee locally administers the
marketing order which regulates the handling of kiwifruit grown in
California. Assessments upon kiwifruit handlers are used by the
Committee to fund reasonable and necessary expenses of the program. The
fiscal period began on August 1 and ends July 31. The assessment rate
will remain in effect indefinitely unless modified, suspended, or
terminated.

EFFECTIVE DATE: September 29, 2005.

FOR FURTHER INFORMATION CONTACT: Shereen Marino, Marketing Specialist,
California Marketing Field Office, Fruit and Vegetable Programs, AMS,
USDA; Telephone: (559) 487-5901; Fax: (559) 487-5906; or George
Kelhart, Technical Advisor, Marketing Order Administration Branch,
Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW.,
STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax:
(202) 720-8938. Small businesses may request information on complying
with this regulation by contacting Jay Guerber, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400
Independence Avenue SW., STOP 0237, Washington, DC 20250-0237;
Telephone: (202) 720-2491, Fax: (202) 720-8938, or E-mail:
Jay.Guerber@usda.gov.

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 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 (USDA) 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 on August 1, 2005, 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 USDA 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 USDA 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 USDA'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 and changes the assessable
unit established for the Committee for the 2005-06 and subsequent
fiscal periods from $0.002 per pound of kiwifruit to $0.045 per 9-kilo
volume-fill container or equivalent of kiwifruit.
The California kiwifruit marketing order provides authority for the
Committee, with the approval of USDA, 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. They are familiar with the Committee's needs and 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 at a public meeting. Thus, all
directly affected persons have an opportunity to participate and
provide input.
For the 2004-05 and subsequent fiscal periods, the Committee
recommended, and USDA approved, an assessment rate that continued in
effect from fiscal period to fiscal period unless modified, suspended,
or terminated by USDA upon recommendation and information submitted by
the Committee or other information available to USDA.
The Committee met on June 28, 2005, and unanimously recommended
2005-06 expenditures of $91,989 and an assessment rate of $0.045 per 9-
kilo volume-fill container or equivalent of kiwifruit. In comparison,
last year's budgeted expenditures were $91,839. The assessment rate of
$0.045 per 9-kilo volume-fill container or equivalent is about $0.0003
per pound higher than the rate currently in effect. The higher
assessment rate is needed because the 2004-2005 crop was smaller than
expected and assessment income fell short of expenses. Reserve funds
were used to meet the shortfall. The higher assessment rate should
generate sufficient income to cover anticipated 2005-06 expenses and
maintain an adequate reserve.
The following table compares major budget expenditures recommended
by the Committee for the 2004-05 and 2005-06 fiscal periods:

------------------------------------------------------------------------
Budget expense categories 2004-05 2005-06
------------------------------------------------------------------------
Administrative Staff & Field Salaries............... $61,000 $61,000
Travel.............................................. 6,500 6,500
Office Costs/Annual Audit........................... 14,555 14,705

[[Page 56562]]

Vehicle Expense Account............................. 9,784 9,784
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The assessment rate recommended by the Committee was derived by the
following formula: Anticipated expenses ($91,989), plus the desired
2006 ending reserve ($35,010), minus the 2005 beginning reserve
($15,524), divided by the total estimated 2005-06 shipments (2,475,000
9-kilo volume-fill containers). An additional $100 in interest income
is also anticipated, bringing the total projected 2005-06 revenue to
$111,475. This calculation requires the $0.045 per 9-kilo volume-fill
container assessment rate. This rate should provide sufficient funds to
meet the anticipated expenses of $91,839 and result in a July 2006
ending reserve of $35,010, which is within the authorized reserve
permitted by the order. The authorized reserve is approximately one
fiscal period's expenses (Sec. 920.41).
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by USDA
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 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 USDA.
Committee meetings are open to the public and interested persons may
express their views at these meetings. USDA 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 2005-06 budget and those
for subsequent fiscal periods will be reviewed and, as appropriate,
approved by USDA.

Final Regulatory Flexibility Analysis

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 45 handlers of California kiwifruit subject
to regulation under the marketing order and approximately 275 growers
in the production area. Small agricultural service firms are defined by
the Small Business Administration (13 CFR 121.201) as those whose
annual receipts are less than $6,000,000, and small agricultural
producers are defined as those whose annual receipts are less than
$750,000.
None of the 45 handlers subject to regulation have annual kiwifruit
sales of at least $6,000,000. In addition, six growers subject to
regulation have annual sales exceeding $750,000. Therefore, a majority
of the kiwifruit handlers and growers may be classified as small
entities.
This rule increases the assessment rate and changes the assessable
unit established for the Committee and collected from handlers for the
2005-06 and subsequent fiscal periods from $0.002 per pound of
kiwifruit to $0.045 per 9-kilo volume-fill container or equivalent of
kiwifruit. The Committee unanimously recommended 2005-06 expenditures
of $91,989 and an assessment rate of $0.045 per 9-kilo volume-fill
container or equivalent of kiwifruit. The assessment rate of $0.045 is
$0.0003 higher than the 2004-05 rate. The quantity of assessable
kiwifruit for the 2005-06 fiscal period is estimated at 2,475,000 9-
kilo volume-fill containers or equivalent of kiwifruit. Thus, the
$0.045 rate should provide $111,375 in assessment income and be
adequate to meet this year's expenses.
The following table compares major budget expenditures recommended
by the Committee for the 2004-05 and 2005-06 fiscal years:

The Committee reviewed and unanimously recommended 2005-06
expenditures of $91,989, which included an increase in audit expenses.
Prior to arriving at this budget, the Committee considered alternative
expenditure levels, but ultimately decided that the recommended levels
were reasonable to properly administer the order. The assessment rate
recommended by the Committee was derived by the following formula:
Anticipated expenses ($91,989), plus the desired 2006 ending reserve
($35,010), minus the 2005 beginning reserve ($15,524), divided by the
total estimated 2005-06 shipments (2,475,000 9-kilo volume-fill
containers). This calculation resulted in the $0.045 per 9-kilo volume-
fill container assessment rate. This rate will provide sufficient funds
to meet the anticipated expenses of $91,989 and result in a July 2006
ending reserve of $35,010, which is within the authorized reserve
permitted by the order. The authorized reserve is approximately one
fiscal period's expenses (Sec. 920.41). An additional $100 in interest
income is also anticipated, bringing the total projected 2005-06
revenue to $111,475.
A review of historical information and preliminary information
pertaining to the upcoming fiscal period indicates that the grower
price for the 2005-06 season could be about $8.09 per 9-kilo volume-
fill container or equivalent of kiwifruit. Therefore, the estimated
assessment revenue for the 2005-06 fiscal period as a percentage of
total grower revenue is estimated at about 0.56 percent.
This action will increase 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 California kiwifruit industry and all
interested persons were invited to attend the meeting and participate
in Committee deliberations on all issues. Like all Committee meetings,
the June 28, 2005, meeting was a public meeting and all entities, both
large and small, were able to express views on this issue.
This final rule imposes no additional reporting or recordkeeping
requirements on either small or large California kiwifruit 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.
USDA has not identified any relevant Federal rules that duplicate,
overlap, or conflict with this rule.

[[Page 56563]]

The proposed rule concerning this action was published in the
Federal Register on August 16, 2005 (70 FR 48082). Copies of the rule
were mailed or sent via facsimile to all Committee members and
kiwifruit handlers. Finally, the rule was made available through the
Internet by USDA and the Office of the Federal Register. A 20-day
comment period ending September 6, 2005, was provided to allow
interested persons to respond to the proposal. No comments were
received.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html.
Any questions about the compliance

guide should be sent to Jay Guerber at the previously mentioned address
in the FOR FURTHER INFORMATION CONTACT section.
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 U.S.C. 553) because: (1) The 2005-06 fiscal period
began on August 1, 2005, and the marketing order requires that the rate
of assessment for each fiscal period apply to all assessable kiwifruit
handled during such fiscal period; (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 unanimously
recommended by the Committee at a public meeting and is similar to
other assessment rate actions issued in past years. In addition, a 20-
day comment period was provided for in the proposed rule.

List of Subjects in 7 CFR Part 920

Kiwifruit, Marketing agreements, Reporting and record keeping
requirements.

0
For the reasons set forth in the preamble, 7 CFR part 920 is amended as
follows:

PART 920--KIWIFRUIT GROWN IN CALIFORNIA

0
1. The authority citation for 7 CFR part 920 continues to read as
follows:

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

0
2. Section 920.213 is revised to read as follows:

Sec. 920.213 Assessment rate.

On and after August 1, 2005, an assessment rate of $0.045 per 9-
kilo volume-fill container or equivalent of kiwifruit is established
for kiwifruit grown in California.

Dated: September 22, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-19309 Filed 9-27-05; 8:45 am]

BILLING CODE 3410-02-P