Federal Register / Vol. 62, No. 157 / Thursday, August 14, 1997 / Rules and Regulations 43459

potatoes. Therefore, the estimated

assessment revenue for the 1997–98

fiscal period as a percentage of total

grower revenue will range between .100

and .057 percent.

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 order. In addition, the

Committee’s meeting was widely

publicized throughout the OregonCalifornia potato industry and all

interested persons were invited to

attend the meeting and participate in

Committee deliberations on all issues.

Like all Committee meetings, the March

5, 1997, meeting was a public meeting

and all entities, both large and small,

were able to express views on this issue.

This action will not impose any

additional reporting or recordkeeping

requirements on either small or large

Oregon-California potato 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.

In the interim final rule published in

the Federal Register (62 FR 27169) on

May 19, 1997, interested persons were

invited to submit information on the

regulatory and informational impacts of

this action on small businesses. A copy

of the interim final rule was also made

available on the Internet by the U.S.

Government Printing Office. The

comment period ended June 18, 1997,

and no comments were received

concerning the impacts of this action on

small businesses.

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.

Pursuant to 5 U.S.C. 553, it is also

found and determined 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 rate; (2) the 1997–98

fiscal period began on July 1, 1997, and

the marketing order requires that the

rate of assessment for each fiscal period

apply to all assessable potatoes 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) an interim

final rule was published on this action

and provided a 30-day comment period;

no comments were received.

List of Subjects in 7 CFR Part 947

Marketing agreements, Potatoes,

Reporting and recordkeeping

requirements.

PART 947—IRISH POTATOES GROWN

IN MODOC AND SISKIYOU COUNTIES,

CALIFORNIA, AND IN ALL COUNTIES

IN OREGON, EXCEPT MALHEUR

COUNTY

Accordingly, the interim final rule

amending 7 CFR part 947 which was

published at 62 FR 27169 on May 19,

1997, is adopted as a final rule without

change.

Dated: August 8, 1997.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 97–21526 Filed 8–13–97; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 981

[Docket No. FV97–981–4 FR]

Almonds Grown in California;

Amended Assessment Rate

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: This final rule increases the

assessment rate for the Almond Board of

California (Board) under Marketing

Order No. 981 for the 1997–98 and

subsequent crop years. The Board is

responsible for local administration of

the marketing order which regulates the

handling of almonds grown in

California. Authorization to assess

almond handlers enables the Board to

incur expenses that are reasonable and

necessary to administer the program.

EFFECTIVE DATE: August 1, 1997.

FOR FURTHER INFORMATION CONTACT:

Martin Engeler, Assistant Regional

Manager, 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.

981, as amended (7 CFR part 981),

regulating the handling of almonds

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 final rule has been reviewed

under Executive Order 12988, Civil

Justice Reform. Under the marketing

order now in effect, California almond

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 almonds 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.
43460 Federal Register / Vol. 62, No. 157 / Thursday, August 14, 1997 / Rules and Regulations

This final rule increases the

assessment rate established for the

Board for the 1997–98 and subsequent

crop years from 1 cent to 2 cents per

pound of almonds received by handlers.

The almond marketing order provides

authority for the Board, with the

approval of the Department, to

formulate an annual budget of expenses

and collect assessments from handlers

to administer the program. The

members of the Board are producers and

handlers of California almonds.

They are familiar with the Board’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.

The Board met on May 9, 1997, and

recommended 1997–98 expenditures of

$11,333,876.49 and an assessment rate

of 2 cents per pound of almonds

received by handlers. In comparison,

last year’s budgeted expenditures were

$6,426,500. The primary reason for the

increase for the upcoming crop year is

the inclusion of funding for a generic

paid advertising program. The

assessment rate is higher than last year’s

established rate of 1 cent per pound;

however, the Board also recommended

a credit-back program whereby handlers

can receive credit for their own

promotional activities of up to 1 cent

per pound against their assessment

obligation. Handlers not participating in

this program will remit the entire 2

cents to the Board. For administrative

purposes, the Board will separate the

assessment into two portions when

billing handlers; an administrative

portion of 1 cent per pound and an

advertising portion of 1 cent per pound.

The Board’s initial recommendation

indicated that implementation of the

advertising portion of the assessment

and the generic advertising program

may be impacted by the outcome of

litigation relative to advertising and

promotion conducted under marketing

orders. The Board recommended not

implementing the advertising portion of

the assessment until further action of

the Board is taken. At a meeting held on

July 1, 1997, the Board took action to

implement the advertising portion of the

assessment, after it is established. The

Board also confirmed its intent to

implement a generic paid advertising

program.

The Board recommended that the

major expenditures for the 1997–98

fiscal period should include $4,084,000

for information and research programs,

$3,408,000 for paid generic advertising,

$881,534 for salaries, $794,043 for

international programs, $568,679 for

production research, $95,400 for crop

estimates, and $90,000 for travel.

Budgeted expenses for major items in

1996–97 were $3,333,500 for

information and research, $731,534 for

salaries, $660,500 for international

programs, $558,131 for production

research, $91,160 for crop estimates,

and $97,470 for travel.

The assessment rate recommended by

the Board was derived by considering

anticipated expenses and production

levels of California almonds, and

additional pertinent factors. In its

recommendation, the Board utilized a

production estimate of 681,600,000

pounds of edible almonds for the year.

If realized, this will provide revenue of

$6,816,000 from administrative

assessments (681,600,000 pounds at 1

cent per pound). In addition, it is

anticipated that $3,408,000 will be

derived from the portion of assessments

eligible for credit-back but received by

the Board from handlers who do not

obtain credit for their own promotional

activities. Estimates of marketable

production of almonds have been

revised downward to 652,800,000

pounds since the Board’s

recommendation, which would result in

administrative assessments of

$6,528,000 and estimated credit-back

revenue of $3,264,000. However, if

assessment revenues fall short of initial

projections due to a smaller crop, the

Board maintains sufficient financial

reserves to compensate for any such

shortage. Income derived from handler

assessments, along with interest income,

Market Access Program reimbursement

for international promotion activities,

research conference revenue,

miscellaneous income, and funds

derived from the Board’s authorized

monetary reserve will be adequate to

cover budgeted expenses. Any

unexpended funds from the 1997–98

crop year may be carried over to cover

expenses during the first four months of

the 1998–99 crop year.

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 Board or

other available information.

Although this assessment rate is

effective for an indefinite period, the

Board 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 Board meetings are open to the public

and interested persons may express

their views at these meetings. The

Department will evaluate Board

recommendations and other available

information to determine whether

modification of the assessment rate is

needed. Further rulemaking will be

undertaken as necessary. The Board’s

1997–98 budget and those for

subsequent crop years 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 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 97 handlers

of California almonds who are subject to

regulation under the marketing order

and approximately 7,000 almond

producers in the regulated area. Small

agricultural service firms have been

defined by the Small Business

Administration (13 CFR 121.601) as

those having annual receipts of less than

$5,000,000, and small agricultural

producers are defined as those having

annual receipts of less than $500,000.

Currently, about 58 percent of the

handlers ship under $5,000,000 worth

of almonds and 42 percent ship over

$5,000,000 worth of almonds on an

annual basis. In addition, based on

acreage, production, and grower prices

reported by the National Agricultural

Statistics Service, and the total number

of almond growers, the average annual

grower revenue is approximately

$156,000. In view of the foregoing, it

can be concluded that the majority of

handlers and producers of California

almonds may be classified as small

entities.

This final rule will increase the

assessment rate established for the

Board for the 1997–98 and subsequent

crop years from 1 cent to 2 cents per

pound of almonds, of which up to 1

cent will be credited to handlers for

their own promotional activities. The

Board unanimously recommended

1997–98 expenditures of $11,333,876.49

and an assessment rate of 2 cents per

pound of almonds. The assessment rate
Federal Register / Vol. 62, No. 157 / Thursday, August 14, 1997 / Rules and Regulations 43461

of 2 cents is 1 cent more than the rate

currently in effect. The primary reason

for the increase for the upcoming crop

year is the inclusion of funding for a

generic paid advertising program.

The Board recommended that the

major expenditures for the 1997–98 crop

year should include $4,084,000 for

information and research programs,

$3,408,000 for paid generic advertising,

$881,534 for salaries, $794,043 for

international programs, $568,679 for

production research, $95,400 for crop

estimates, and $90,000 for travel.

Alternative rates of assessment were

considered during the budgeting

process. Keeping the assessment rate at

1 cent was considered but not

recommended because it would not

generate the income necessary to

administer the program. In order to fund

the programs recommended by the

Board for the 1997–98 season, it was

determined that the assessment rate

recommended by the Board, when

applied to the preliminary crop

estimate, would be necessary to generate

sufficient revenue. Costs of various

programs, desired and overall spending

levels, and desired levels of monetary

reserve were considered during the

budgeting process.

Handlers’ receipts of assessable

almonds for the year were originally

estimated at 681,600,000 pounds which

would provide $10,224,000 in

assessment income. The crop estimate

was subsequently reduced to

652,800,000 pounds which if realized,

would provide assessment revenue of

$9,792,000. However, in either scenario,

income derived from handler

assessments, along with interest income,

Market Access Program reimbursement,

research conference revenue,

miscellaneous income, and funds

derived from the Board’s authorized

reserve will be adequate to cover

budgeted expenses. 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

could range between $1.00 and $1.50

per pound of almonds. Therefore, the

estimated assessment revenue for the

1997–98 crop year as a percentage of

total grower revenue could range

between 1 and 1.5 percent.

While this rule will impose some

additional costs on handlers, the costs

would be 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

Board’s meeting was widely publicized

throughout the California almond

industry and all interested persons were

invited to attend the meeting and

participate in Board deliberations on all

issues. Like all Board meetings, the May

9, 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 final rule will not impose any

additional reporting or recordkeeping

requirements on either small or large

California almond 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.

A proposed rule concerning this

action was issued by the Department on

July 3, 1997, and published in the

Federal Register on July 7, 1997 (62 FR

36233). Copies of the proposed rule

were also mailed or sent via facsimile to

all almond handlers. Finally, the

proposal was made available through

the Internet by the Office of the Federal

Register.

A 15-day comment period was

provided to allow interested persons to

respond to the proposal. Fifteen days

was deemed appropriate because: (1)

The Board needs to have sufficient

funds to pay its expenses which are

incurred on a continuous basis; (2) the

1997–98 crop year began on August 1,

1997, and the marketing order requires

that the rate of assessment for the crop

year apply to all assessable California

almonds handled during the crop year;

and (3) handlers are aware of this action

which was unanimously recommended

by the Board at a public meeting and is

similar to other budget actions issued in

past years. No comments to the

proposed rule were received.

After consideration of all relevant

material presented, including the

information and recommendation

submitted by the Board 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 handlers are already

receiving 1997–98 crop almonds from

growers, the crop year began August 1,

and the assessment rate applies to all

almonds received during the 1997–98

and subsequent seasons. Further,

handlers are aware of this rule, which

was recommended at a public meeting.

Also, A 15-day comment period was

provided for in the proposed rule, and

no comments were received.

List of Subjects in 7 CFR Part 981

Almonds, Marketing agreements,

Nuts, Reporting and recordkeeping

requirements.

For the reasons set forth in the

preamble, 7 CFR part 981 is amended as

follows:

PART 981—ALMONDS GROWN IN

CALIFORNIA

1. The authority citation for 7 CFR

part 981 continues to read as follows:

Authority: 7 U.S.C. 601–674.

§ 981.343 [Amended]

2. Section 981.343 is amended by

removing ‘‘July 1, 1996,’’ and adding in

its place ‘‘August 1, 1997,’’, by removing

‘‘$0.01 cent’’ and adding in its place ‘‘2

cents,’’ and by adding as the last

sentence ‘‘Of the 2 cent assessment rate,

1 cent per assessable pound is available

for handler credit-back.’’

Dated: August 8, 1997.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 97–21525 Filed 8–13–97; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 985

[Docket No. FV97–985–1 FR]

Marketing Order Regulating the

Handling of Spearmint Oil Produced in

the Far West; Revision of

Administrative Rules and Regulations

Governing Issuance of Additional

Allotment Base to New and Existing

Producers

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: This final rule reduces the

number of regions established for

issuing additional allotment bases to

new producers from four to three,

revises the procedure used for issuing

additional allotment bases when no

requests are received from a region for

a class of spearmint oil, and eliminates

obsolete language pertaining to the