[Federal Register Volume 71, Number 184 (Friday, September 22, 2006)]
[Rules and Regulations]
[Pages 55281-55283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7866]



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Rules and Regulations
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Federal Register / Vol. 71, No. 184 / Friday, September 22, 2006 / 
Rules and Regulations

[[Page 55281]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 923

[Docket No. FV06-923-2 FIR]


Sweet Cherries Grown in Designated Counties in Washington; 
Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim final rule which decreased the 
assessment rate established for the Washington Cherry Marketing 
Committee (Committee) for the 2006-2007 and subsequent fiscal periods 
from $0.75 to $0.50 per ton for Washington sweet cherries handled. The 
Committee locally administers the marketing order regulating the 
handling of sweet cherries grown in designated counties in Washington. 
Assessments upon sweet cherry handlers are used by the Committee to 
fund reasonable and necessary expenses of the program. The fiscal 
period begins April 1 and ends March 31. The assessment rate will 
remain in effect indefinitely unless modified, suspended or terminated.

DATES: Effective Date: October 23, 2006.

FOR FURTHER INFORMATION CONTACT: Robert J. Curry or Gary D. Olson, 
Northwest Marketing Field Office, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, 
Suite 385, Portland, OR 97204; telephone number (503) 326-2724, fax 
number (503) 326-7440, or e-mail address <a href="/cdn-cgi/l/email-protection#c89aa7aaadbabce68bbdbabab188bdbbaca9e6afa7be"><span class="__cf_email__" data-cfemail="683a070a0d1a1c462b1d1a1a11281d1b0c09460f071e">[email protected]</span></a> or 
<a href="/cdn-cgi/l/email-protection#0f486e7d764b2140637c60614f7a7c6b6e21686079"><span class="__cf_email__" data-cfemail="eaad8b9893aec4a586998584aa9f998e8bc48d859c">[email protected]</span></a>.
    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 number 
(202) 720-2491, fax number (202) 720-8938, or e-mail: 
<a href="/cdn-cgi/l/email-protection#4c062d35620b39293e2e293e0c393f282d622b233a"><span class="__cf_email__" data-cfemail="9cd6fde5b2dbe9f9eefef9eedce9eff8fdb2fbf3ea">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order 
No. 923 (7 CFR part 923), as amended, regulating the handling of sweet 
cherries grown in designated counties in Washington, 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.''
    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, cherry 
handlers in designated counties in Washington 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 Washington sweet cherries 
beginning April 1, 2006, 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 continues in effect the action that decreased the 
assessment rate established for the Committee for the 2006-2007 and 
subsequent fiscal periods from $0.75 to $0.50 per ton for Washington 
sweet cherries handled under the order.
    The order provides authority for the Committee, with the approval 
of USDA, to formulate an annual budget of expense and collect 
assessments from handlers to administer the program. The members of the 
Committee are producers and handlers of sweet cherries in designated 
counties in Washington. 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 at a public 
meeting. All directly affected persons have an opportunity to 
participate and provide input.
    For the 2004-2005 and subsequent fiscal periods, the Committee 
recommended, and the USDA approved, an assessment rate of $0.75 per ton 
of sweet cherries handled. This rate continued in effect until modified 
herein based on the recommendation and supporting information submitted 
by the Committee.
    The Committee met on May 3, 2006, and unanimously recommended 2006-
2007 expenditures of $49,800 and a decreased assessment rate of $0.50 
per ton of cherries. In comparison, last year's budgeted expenditures 
were $72,297. The assessment rate of $0.50 is $0.25 lower than the rate 
previously in effect. Due to an anticipated decrease in operating 
expenses this year, the Committee recommended the assessment rate 
decrease to maintain the level of income near the level of expenses.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of Washington sweet 
cherries. Applying the $0.50 per ton rate of assessment to the 
Committee's 110,000 ton crop estimate should provide $55,000 in 
assessment income. Thus, income derived from handler assessments will 
be adequate to cover the recommended 2006-2007 budget of $49,800.
    The Committee's budget of expenditures for the 2006-2007 period

[[Page 55282]]

reflect a significant reduction in overall cost from previous years. 
This occurred, in part, because the Committee hired an outside 
management services agency to more efficiently handle the Committee's 
administrative matters. Major expenses recommended by the Committee for 
the 2006-2007 year include administration and data management fees 
totaling $25,000, Committee expenses of $16,200 (which includes travel, 
accounting and compliance), and office expenses--including bonds, 
insurance, telephone, office equipment and supplies--of $7,100.
    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 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 the Committee's meetings are available from the Committee or 
USDA. The Committee's meetings are open to the public and interested 
persons may express their views at these meetings. USDA will evaluate 
the Committee's 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 
2006-2007 budget has been reviewed and approved by USDA; those for 
subsequent fiscal periods will also 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 1,500 cherry producers within the regulated 
production area and approximately 53 regulated handlers. Small 
agricultural producers are defined by the Small Business Administration 
(13 CFR 121.201) as those having annual receipts of less than $750,000, 
and small agricultural service firms are defined as those whose annual 
receipts are less than $6,500,000.
    The Washington Agricultural Statistics Service prepared a 
preliminary report for the 2005 shipping season showing that the total 
113,000 ton fresh market sweet cherry utilization sold for an average 
of $2,830 per ton. Based on 1,500 producers in the production area, the 
average producer revenue from the sale of sweet cherries in 2005 is 
estimated at approximately $213,200 per year. In addition, the 
Committee reports that most of the industry's 53 handlers would have 
each averaged gross receipts of less than $6,500,000 from the sale of 
fresh sweet cherries last season. Thus, the majority of producers and 
handlers of Washington sweet cherries may be classified as small 
entities.
    This rule continues in effect the action that decreased the 
assessment rate established for the Committee and collected from 
handlers for the 2006-2007 and subsequent fiscal periods from $0.75 to 
$0.50 per ton for sweet cherries. The Committee unanimously recommended 
2006-2007 expenditures of $49,800. With the 2006-2007 crop estimate of 
110,000 tons for fresh sweet cherries, the Committee anticipates 
assessment income of $55,000.
    The Committee discussed alternatives to this rule, including 
alternative expenditure levels. Lower assessment rates were considered, 
but not recommended because of the uncertainty of the crop size 
estimate.
    A review of historical information and preliminary information 
pertaining to the upcoming crop year indicates that the producer price 
for the 2006-2007 season could average about $2,830 per ton for fresh 
Washington sweet cherries. Therefore, the estimated assessment revenue 
for the 2006-2007 fiscal period as a percentage of total producer 
revenue is 0.018 percent for Washington sweet cherries.
    This rule continues in effect the action that decreased the 
assessment obligation imposed on handlers. Assessments are applied 
uniformly on all handlers, and some of the costs may be passed on to 
producers. However, decreasing the assessment rate reduces the burden 
on handlers, and may reduce the burden on producers.
    In addition, the Committee's meeting was widely publicized 
throughout the Washington sweet cherry industry and all interested 
persons were invited to attend and participate in Committee 
deliberations on all issues. Like all Committee meetings, the May 3, 
2006, meeting was a public meeting and all entities, both large and 
small, were able to express views on the issues.
    This action imposes no additional reporting or recordkeeping 
requirements on either small or large Washington sweet cherry 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.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this rule.
    An interim final rule regarding this action was published in the 
Federal Register on June 19, 2006 (71 FR 35145). Copies of that rule 
were made available to handlers and other interested parties by the 
Committee. The interim final rule was also made available through the 
Internet by USDA and the Office of the Federal Register. A 60-day 
comment period was provided for interested persons to respond to the 
interim final rule. The comment period ended on August 18, 2006, and 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 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.

List of Subjects in 7 CFR Part 923

    Cherries, Marketing agreements, Reporting and recordkeeping 
requirements.

PART 923--SWEET CHERRIES GROWN IN DESIGNATED COUNTIES IN WASHINGTON

0
Accordingly, the interim final rule amending 7 CFR part 923 which was

[[Page 55283]]

published at 71 FR 35145 on June 19, 2006, is adopted as a final rule 
without change.

    Dated: September 15, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 06-7866 Filed 9-21-06; 8:45 am]
BILLING CODE 3410-02-P


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