[Federal Register Volume 62, Number 149 (Monday, August 4, 1997)]
[Rules and Regulations]
[Pages 41805-41807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-20459]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Rules 
and Regulations

[[Page 41805]]


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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.

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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 Washington-Oregon 
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

[[Page 41806]]

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

[[Page 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 Washington-Oregon 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