This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

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new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

41805

Vol. 62, No. 149

Monday, August 4, 1997

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 922, 923, and 924

[Docket No. FV97–922–2 IFR]

Reduced Assessment Rates for

Specified Marketing Orders

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Interim final rule with request

for comments.

SUMMARY: This interim final rule

decreases the assessment rates

established under Marketing Order Nos.

922, 923, and 924 for the 1997–98, and

subsequent fiscal periods. The

Washington Apricot Marketing

Committee, Washington Cherry

Marketing Committee, and WashingtonOregon Fresh Prune Committee

(Committees) are responsible for local

administration of the marketing orders

which regulate the handling of apricots

and cherries grown in designated

counties in Washington, and prunes

grown in designated counties in

Washington and in Umatilla County,

Oregon. Authorization to assess apricot,

cherry, and prune handlers enables the

Committees to incur expenses that are

reasonable and necessary to administer

the programs. The 1997–98 fiscal

periods for these marketing orders cover

the period April 1 through March 31.

The assessment rates will continue in

effect indefinitely until amended,

suspended, or terminated.

DATES: Effective on August 5, 1997.

Comments received by September 3,

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:

Teresa L. Hutchinson, Northwest

Marketing Field Office, Fruit and

Vegetable Division, AMS, USDA, 1220

SW Third Avenue, Room 369, Portland,

OR 97204; telephone: (503) 326–2724,

Fax: (503) 326–7440 or George J.

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 Agreements

and Order No. 922 (7 CFR 922),

regulating the handling of apricots

grown in designated counties in

Washington; Marketing Order No. 923 (7

CFR 923) regulating the handling of

sweet cherries grown in designated

counties in Washington; and Marketing

Order No. 924 (7 CFR 924) regulating

the handling of fresh prunes grown in

designated counties in Washington and

Umatilla County, Oregon, hereinafter

referred to as the ‘‘orders.’’ The

marketing agreements and orders 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 orders

now in effect, handlers in the

designated areas are subject to

assessments. Funds to administer the

orders are derived from such

assessments. It is intended that the

assessment rates as issued herein will be

applicable to all assessable Washington

apricots, Washington sweet cherries,

and Washington-Oregon fresh prunes

beginning April 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 decreases the assessment

rates established for the Committees for

the 1997–98 and subsequent fiscal

periods from $3.00 to $2.00 per ton for

Washington apricots, from $1.00 to

$0.75 per ton for Washington sweet

cherries, and from $1.00 to $0.75 per ton

for Washington-Oregon fresh prunes.

The orders provide authority for the

Committees, with the approval of the

Department, to formulate an annual

budget of expenses and collect

assessments from handlers to administer

the programs. The members of the

Committees are producers and handlers

in designated counties in Washington

and in Umatilla County, Oregon. They

are familiar with the Committees’ needs

and with the costs for goods and

services in their local area and are thus

in a position to formulate appropriate

budgets and assessment rates. The

assessment rates are formulated and

discussed in public meetings. Thus, all

directly affected persons have an

opportunity to participate and provide

input.

For the 1996–97 and subsequent fiscal

periods, the Committees recommended,

and the Department approved, an

assessment rate that would continue in

effect from fiscal period to fiscal period
41806 Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Rules and Regulations

indefinitely unless modified,

suspended, or terminated by the

Secretary upon recommendation and

information submitted by the

Committee or other information

available to the Secretary.

The Washington Apricot Marketing

Committee met on May 13, 1997, and

unanimously recommended 1997–98

expenditures of $9,917 and an

assessment rate of $2.00 per ton of

apricots. In comparison, last year’s

budgeted expenditures were $9,385. The

assessment rate of $2.00 is $1.00 less

than the rate currently in effect. At the

current rate of $3.00 per ton and an

estimated 1997 fresh apricot production

of 5,300 tons, the projected reserve on

March 31, 1998, would exceed the

maximum level authorized by the order

of one fiscal period’s operational

expenses. The Committee discussed

assessment rates of $1.00 and $1.50, but

decided that an assessment rate of less

than $2.00 would not generate the

income necessary to administer the

program with an adequate reserve.

The assessment rate recommended by

the committee was derived by dividing

anticipated expenses by expected

shipments of apricots grown in

designated counties in Washington.

Applying the $2.00 per ton rate of

assessment to the Committee’s 5,300 ton

shipment estimate should provide

$10,600 in assessment income. Income

derived from handler assessments, along

with interest income and funds from the

Committee’s authorized reserve, will be

adequate to cover budgeted expenses.

Funds in the reserve will be kept

withint he maximum permitted by the

order.

The Washington Cherry Marketing

Committee met on May 12, 1997, and

unanimously recommended 1997–98

expenditures of $57,545 and an

assessment rate of $0.75 per ton of

cherries. In comparison, Last year’s

budgeted expenditures were $56,665.

The assessment rate of $0.75 is $0.25

less than the rate currently in effect. At

the current rate of $1.00 perton and an

estimated 1997 sweet cherry production

of 54,000 tons, the projected reserve on

March 31, 1998, would exceed the

maximum level authorized by the order

of one fiscal period’s operational

expenses. The Committee discussed an

assessment rate of $0.50, but decided

that an assessment rate of less than

$0.75 would not generate the income

necessary to administer the program

with an adequate reserve.

The assessment rate recommended by

the Committee was derived by dividing

anticipated expenses by expected

shipments of sweet cherries grown in

designated counties in Washington.

With cherry shipments for the year

estimated at 54,000 tons, the assessment

rate of $0.75 should provide $40,500 in

assessment income. Income derived

from handler assessments, along with

interest income and funds from the

Committee’s authorized reserve, will be

adequate to cover budgeted expenses.

Funds in the reserve will be kept within

the maximum permitted by the order.

The Oregon-Washington Fresh Prune

Marketing Committee met on May 28,

1997, and unanimously recommended

1997–98 expenditures of $7,233 and an

assessment rate of $0.75 per ton of

prunes. In comparison, last year’s

budgeted expenditures were $6,645. The

assessment rate of $0.75 is $0.25 less

than the rate currently in effect. At the

current rate of $1.00 per ton and an

estimated 1997 fresh prune production

of 6,000 tons, the projected reserve on

March 31, 1998, would exceed the

maximum level authorized by the order

of one fiscal period’s operational

expenses. The Committee discussed an

assessment rate of $0.50, but decided

that an assessment rate of less than

$0.75 would not generate the income

necessary to administer the program

with an adequate reserve.

The assessment rate recommended by

the Committee was derived by dividing

anticipated expenses by expected

shipments of fresh prunes grown in

designated counties in Washington, and

Umatilla County, Oregon. With fresh

prune shipments for the year estimated

at 6,000 tons, the $0.75 per ton

assessment rate should provide $4,500

in assessment income. Income derived

from handler assessments, along with

interest income and funds from the

Committee’s authorized reserve, will be

adequate to cover budgeted expenses.

Funds in the reserve will be kept within

the maximum permitted by the order.

Major expenses recommended by the

Committees for the 1997–98 year

include manager’s salary, office rent and

maintenance, Committee travel, and

compliance officer.

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 undertake 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 190

Washington apricot producers, 1,100

Washington sweet cherry producers,

and 350 Washington-Oregon fresh prune

producers in the respective production

areas. In addition, there are

approximately 55 Washington apricot

handlers, 55 Washington sweet cherry

handlers, and 30 Washington-Oregon

fresh prune handlers subject to

regulation under the respective

marketing orders. 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. The majority of

Washington apricot, Washington sweet

cherry, and Washington-Oregon fresh

prune producers and handlers may be

classified as small entities.

This rule decreases the assessment

rates established for the Committees and

collected from handlers for the 1997–98

and subsequent fiscal periods. The

Committees unanimously recommended

1997–98 expenditures of $9,917 for

apricots, $57,545 for cherries, and

$7,233 for prunes and an assessment

rate of $2.00 per ton of apricots, $0.75

per ton for cherries, and $0.75 per ton

for prunes. The assessment rate of $2.00

for apricots is $1.00 less than the rate

currently in effect. The assessment rates

of $0.75 for cherries and prunes are
Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Rules and Regulations 41807

$0.25 less than the rates currently in

effect. At current assessment rates, the

Committees’ reserves were projected to

exceed the amount authorized in the

orders of approximately one fiscal

period’s operational expenses.

Therefore, the Committees voted to

lower their respective assessment rates

and use more of their reserves to cover

expenses.

The Committees discussed

alternatives to this rule, including

alternative expenditure levels. Lower

assessment rates were considered, but

not recommended because they would

not generate the income necessary to

administer the programs with adequate

reserves. Major expenses recommended

by the Committees for the 1997–98 year

include manager’s salary, office rent and

maintenance, Committee travel, and

compliance officer.

Apricot shipments for 1997 are

estimated at 5,300 tons, which should

provide $10,600 in assessment income.

Income derived from handler

assessments, along with funds from the

authorized reserve will be adequate to

cover budgeted expenses. Funds in the

reserve will be kept within the

maximum permitted by the order.

Sweet cherry shipments for 1997 are

estimated at 54,000 tons, which should

provide $40,500 in assessment income.

Income derived from handler

assessments, along with funds from the

authorized reserve will be adequate to

cover budgeted expenses. Funds in the

reserve will be kept within the

maximum permitted by the order.

Fresh prune shipments for 1997 are

estimated at 6,000 tons, which should

provide $4,500 in assessment income.

Income derived from handler

assessments, along with funds from the

authorized reserve will be adequate to

cover budgeted expenses. Funds in the

reserve will be kept within the

maximum permitted by the order.

Recent price information indicates

that the grower price for the 1997–98

season will range between $600 and

$1,400 per ton for Washington apricots,

between $1,500 and $2,200 per ton for

Washington sweet cherries, and

between $200 and $500 per ton for

Washington-Oregon fresh prunes.

Therefore, the estimated assessment

revenue for the 1997–98 fiscal period as

a percentage of total grower revenue

will range between 0.14 and 0.33

percent for Washington apricots,

between 0.03 and 0.05 percent for

Washington sweet cherries, and

between 0.15 and 0.38 percent for

Washington-Oregon fresh prunes.

This action will reduce 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 orders. In addition, the

Committees’ meetings were widely

publicized throughout the Washington

apricot, Washington sweet cherry, and

Washington-Oregon fresh prune

industries and all interested persons

were invited to attend and participate in

the Committees’ deliberations on all

issues. Like all meetings of these

Committees, the May 12, 13, and 28

meetings were public meetings 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

Washington apricot, Washington sweet

cherry, or Washington-Oregon fresh

prune 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 recommendations

submitted by the Committees 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) This action reduces the

current assessment rates for Washington

apricots and cherries, and WashingtonOregon fresh prunes; (2) the 1997–98

fiscal period began on April 1, and the

marketing orders require that the rate of

assessment for each fiscal period apply

to all assessable Washington apricots,

Washington sweet cherries, and

Washington-Oregon fresh prunes

handled during such fiscal period; (3)

handlers are aware of this action which

was unanimously recommended by the

Committees at public meetings 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

7 CFR Part 922

Apricots, Marketing agreements,

Reporting and recordkeeping

requirements.

7 CFR Part 923

Cherries, Marketing agreements,

Reporting and recordkeeping

requirements.

7 CFR Part 924

Plums, Prunes, Marketing agreements,

Reporting and recordkeeping

requirements.

For the reasons set forth in the

preamble, 7 CFR parts 922, 923, and 924

are amended as follows:

1. The authority citation for 7 CFR

parts 922, 923, and 924 continue to read

as follows:

Authority: 7 U.S.C. 601–674.

PART 922—APRICOTS GROWN IN

DESIGNATED COUNTIES IN

WASHINGTON

2. Section 922.235 is amended by

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

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

removing ‘‘$3.00’’ and adding in its

place ‘‘$2.00.’’

PART 923—SWEET CHERRIES

GROWN IN DESIGNATED COUNTIES

IN WASHINGTON

3. Section 923.236 is amended by

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

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

removing ‘‘$1.00’’ and adding in its

place ‘‘$0.75.’’

PART 924—FRESH PRUNES GROWN

IN DESIGNATED COUNTIES IN

WASHINGTON AND IN UMATILLA

COUNTY, OREGON

4. Section 924.236 is amended by

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

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

removing ‘‘$1.00’’ and adding in its

place ‘‘$0.75.’’

Dated: July 29, 1997.

Ronald L. Cioffi,

Acting Director, Fruit and Vegetable Division.

[FR Doc. 97–20459 Filed 8–1–97; 8:45 am]

BILLING CODE 3410–02–P