45146 Federal Register / Vol. 62, No. 165 / Tuesday, August 26, 1997 / Rules and Regulations

PART 911—LIMES GROWN IN

FLORIDA

PART 944—FRUITS, IMPORT

REGULATIONS

Accordingly, the interim final rule

amending 7 CFR parts 911 and 944

which was published at 62 FR 30429 on

June 4, 1997, is adopted as a final rule

without change.

Dated: August 18, 1997.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 97–22580 Filed 8–25–97; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 920

[Docket No. FV97–920–3 IFR]

Kiwifruit Grown in California;

Assessment Rate

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Interim final rule with request

for comments.

SUMMARY: This rule increases the

assessment rate established for the

Kiwifruit Administrative Committee

(Committee) under Marketing Order No.

920 for the 1997–98 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. The assessment rate will

remain in effect indefinitely unless

modified, suspended, or terminated.

DATES: August 27, 1997. Comments

received by September 25, 1997, 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, room 2525–S, P.O. Box 96456,

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: Rose

Aguayo, Marketing Specialist, California

Marketing Field Office, Fruit and

Vegetable Division, AMS, USDA, 2202

Monterey Street, suite 102B, Fresno,

California 93721; telephone: (209) 487–

5901, Fax: (209) 487–5906, or George

Kelhart, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, room

2525–S, P.O. Box 96456, Washington,

DC 20090–6456; telephone: (202) 690–

3919, Fax: (202) 720–5698. Small

businesses may request information on

compliance with this regulation by

contacting Jay Guerber, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, room

2525–S, P.O. Box 96456, 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, 1997, 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.

This rule increases the assessment

rate for the Committee for the 1997–98

and subsequent fiscal periods from

$0.0175 to $0.0225 per tray or tray

equivalent.

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. Section

920.41 also authorizes the Committee to

borrow funds. The members of the

Committee consist of producers of

California kiwifruit and one nonindustry 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.

For 1996–1997 and subsequent fiscal

periods, the Committee recommended,

and the Department approved, an

assessment rate that would continue in

effect from season to season indefinitely

unless modified, suspended, or

terminated by the Secretary upon

recommendation and information

submitted by the Committee or other

available information available to the

Secretary.

The Committee met on June 25, 1997,

and unanimously recommended 1997–

98 expenditures of $161,286 and an

assessment rate of $0.0225 per tray or

tray equivalent of kiwifruit. In

comparison, last year’s budgeted

expenditures were $178,598. The

assessment rate of $0.0225 cents per tray

or tray equivalent is $0.0050 cents

higher than the rate currently in effect.

The 1996–97 kiwifruit crop was short

3.3 million trays or tray equivalents of

the projected crop estimate. The

Committee met in February, 1997, and

approved the borrowing of funds to

cover expenses for the remainder of the

1996–97 season. The Committee has

borrowed $11,052 as of May 31, 1997,

and estimates that an additional $22,401

may be needed to cover expenses

through the end of the fiscal period. As

the Committee’s reserve is depleted, the

Committee voted to increase its

assessment rate to cover the budgeted

expenses, to reimburse the borrowed

funds, and to begin to establish an

adequate reserve. The order provides for

a maximum reserve equal to
Federal Register / Vol. 62, No. 165 / Tuesday, August 26, 1997 / Rules and Regulations 45147

approximately one fiscal period’s

expenses.

The Committee discussed alternatives

to this rule, including alternative

expenditure levels and alternative

assessment rates. An assessment rate of

$0.0200 was considered but not

recommended because it would not

generate the income necessary to

administer the program with an

adequate reserve. The Committee

recommended that the major

expenditures for the 1997–98 year

should include $102,200 for

administrative staff and field salaries,

$13,825 for travel, food, and lodging;

and $12,200 for accident and health

insurance. Budgeted expenses for these

items in 1996–97 were $108,500,

$20,398, and $13,000, respectively.

The assessment rate recommended by

the Committee was derived by

considering anticipated expenses,

expected shipments of California

kiwifruit, and additional pertinent

factors. Kiwifruit shipments for the year

are estimated at 10 million trays or tray

equivalents of kiwifruit which should

provide $225,000 in assessment income.

Income derived from handler

assessments, along with interest income

will be adequate to cover budgeted

expenses, reimbursement of borrowed

funds, and to fund an adequate reserve.

Future reserve funds will be kept within

the maximum permitted by the order.

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 1997–98 budget and those

for subsequent fiscal periods 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 initial 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 450

producers of kiwifruit 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. One of the 60 handlers

subject to regulation has annual

kiwifruit sales of at least $5,000,000,

and the remaining 59 handlers have

sales less than $5,000,000, excluding

receipts from any other sources. Ten of

the 450 producers subject to regulation

have annual sales of at least $500,000,

and the remaining 440 producers have

sales less than $500,000, excluding

receipts from any other sources.

Therefore, a majority of handlers and

producers of California kiwifruit may be

classified as small entities.

This rule increases the assessment

rate established for the Committee and

collected from handlers for the 1997–98

and subsequent fiscal periods from

$0.0175 to $0.0225 per tray or tray

equivalent. The Committee

unanimously recommended 1997–98

expenditures of $161,286 and an

assessment rate of $0.0225 per tray or

tray equivalent of kiwifruit. The

assessment rate of $0.0225 is $0.0050

more than the rate currently in effect.

The 1996–97 kiwifruit crop was short

3.3 million trays or tray equivalents of

the estimated crop. The Committee met

in February, 1997, and approved

borrowing funds to cover expenses for

the remainder of the 1996–97 season.

The Committee has borrowed $11,052 as

of May 31, 1997, and estimates that an

additional $22,401 may be needed to

cover expenses through the end of the

fiscal period. As the Committee’s

reserve is depleted and funds have been

borrowed to meet the remaining 1996–

97 expenses, the Committee voted to

increase its assessment rate to cover the

budgeted expenses, to reimburse the

borrowed funds, and to establish an

adequate reserve.

The Committee discussed alternatives

to this rule, including alternative

expenditure levels and alternative

assessment rates. An assessment rate of

$0.0200 was considered but not

recommended because it would not

generate the income necessary to

administer the program with an

adequate reserve. The Committee also

considered reducing the compliance

staff by two personnel, but determined

that one part-time position would be

eliminated. The Committee

recommended that the major

expenditures for the 1997–98 fiscal

period should include $102,200 for

administrative staff and field salaries,

$13,825 for travel, food, and lodging;

and $12,200 for accident and health

insurance. Budgeted expenses for these

items in 1996–97 were $108,500,

$20,398, and $13,000, respectively.

Kiwifruit shipments for the year are

estimated at 10 million trays or tray

equivalents which should provide

$225,000 in assessment income. Income

derived from handler assessments, along

with interest income, will be adequate

to cover budgeted expenses and the

shortage of funds resulting from the

1996–97 crop shortage. As the

Committee’s reserve is depleted, the

Committee voted to increase its

assessment rate to cover the budgeted

expenses, to reimburse the borrowed

funds, and to establish an adequate

reserve. Funds in the reserve will be

kept within the maximum permitted by

the order.

A review of historical information and

preliminary information pertaining to

the upcoming crop year indicates that

the grower price for the 1997–98 season

is estimated to be approximately $1.62

per tray or tray equivalent of kiwifruit.

Therefore, the estimated assessment

revenue for the 1997–98 crop year

period as a percentage of total grower

revenue would be approximately 1.4

percent.

This action will increase the

assessment obligation imposed on

handlers. While this rule will impose

some additional costs on handlers, the

costs are minimal and 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. In addition, the

Committee’s meeting was widely

publicized throughout California and

the kiwifruit industry and all interested

persons were invited to attend the

meeting and participate in Committee

deliberations on all issues. Like all
45148 Federal Register / Vol. 62, No. 165 / Tuesday, August 26, 1997 / Rules and Regulations

Committee meetings, the June 25, 1997,

meeting was a public meeting and all

entities, both large and small, were able

to express views on this issue. Finally,

interested persons are invited to submit

information on the regulatory and

informational impacts of this action on

small businesses.

This action will not impose any

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.

The Department has not identified

any relevant Federal rules that

duplicate, overlap, or conflict with this

rule.

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, 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 1997–98 fiscal period

begins on August 1, 1997, 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.

§ 920.213 [Amended]

2. Section 920.213 is amended by

removing ‘‘August 1, 1996,’’ and adding

in its place ‘‘August 1, 1997,’’ and by

removing ‘‘$0.0175 and adding in its

place ‘‘$0.0225.’’

Dated: August 18, 1997.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 97–22579 Filed 8–25–97; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3, 103, and 240

[EOIR No. 114F; A.G. Order No. 2106–97]

RIN 1125–AA15

Fees for Motions to Reopen or

Reconsider

AGENCY: Department of Justice.

ACTION: Final rule.

SUMMARY: This final rule clarifies when

and how fees must be paid when a

motion to reopen or reconsider is filed

concurrently with any application for

relief under the immigration laws for

which a fee is chargeable. This final rule

applies to motions to reopen or

reconsider that are filed in all types of

immigration proceedings, including

those over which the Immigration and

Naturalization Service (the ‘‘Service’’)

and the Board of Immigration Appeals

(the ‘‘Board’’) have appellate

jurisdiction, respectively.

DATES: This final rule is effective

September 25, 1997.

FOR FURTHER INFORMATION CONTACT:

Margaret M. Philbin, General Counsel,

Executive Office for Immigration

Review, Suite 2400, 5107 Leesburg Pike,

Falls Church, Virginia 22041, telephone

(703) 305–0470, or Ernest B. Duarte,

Branch Chief, Immigration and

Naturalization Service, Office of

Examinations, Benefits Division, 425 I

Street NW., Suite 3214, Washington, DC

20536, telephone (202) 307–3587.

SUPPLEMENTARY INFORMATION: On

September 3, 1996, the Executive Office

for Immigration Review (EOIR) and the

Immigration and Naturalization Service

(the Service) published an interim rule

with request for comments in the

Federal Register (61 FR 46373)

amending 8 CFR parts 3, 103, and 242.

The amendments clarified when the

required fees must be paid when a

motion to reopen or reconsider is filed

concurrently with any application for

relief under the immigration laws for

which a fee is chargeable. This final rule

applies to motions to reopen or

reconsider that are filed in all types of

immigration proceedings, including

those over which the Service and the

Board of Immigration Appeals have

appellate jurisdiction. This rule is

necessary to eliminate questions that

have arisen regarding the payment of

fees for applications for relief that

require their own separate fees when

filed concurrently with motions to

reopen or reconsider.

Neither the Service nor EOIR received

any public comments to the September

3, 1996 interim rule. However, upon

further review by both agencies, the

following changes have been made to

the interim rule.

In § 103.7(b)(1), language has been

added to reflect two additional

situations in which an individual filing

a motion to reopen or reconsider need

not pay the required fee for the motion.

The first situation involves an

individual who is filing a motion to

reopen or reconsider concurrently with

an initial application for relief under the

immigration laws for which no fee is

chargeable. Without this change, the

language in the interim rule only covers

a situation in which an individual is

filing a motion to reopen or reconsider

a decision on a previous application for

relief for which no fee is chargeable.

The second situation involves an

individual who is filing a motion to

reopen pursuant to 8 U.S.C.

1252b(c)(3)(B) as it existed prior to April

1, 1997, or section 240b(5)(C)(ii) of the

Immigration and Nationality Act, as

amended. These sections pertain to

aliens who demonstrate that they did

not receive notice of their immigration

proceedings, or aliens who demonstrate

that they were in Federal or State

custody and did not appear through no

fault of their own. This second situation

is limited to motions to reopen or

reconsider immigration proceedings

over which the Immigration Court has

jurisdiction.

EOIR and the Service have concluded

that individuals in these situations

should not be required to pay a fee for

the motion to reopen or reconsider. As

an example in the first instance, an alien

filing a motion to reopen to initially

apply for asylum for which no fee is

chargeable should not be in a different

position than an alien who is filing a

motion to reopen a previously

adjudicated asylum application. As an

example in the second instance, an alien

should not be required to pay a fee to

reopen a proceeding for which he or she

never received notice.

This rule provides a fair and equitable

fee structure for motions to reopen or