60156 Federal Register / Vol. 62, No. 216 / Friday, November 7, 1997 / Rules and Regulations

marketplace. Compliance with this rule

will not impose substantial direct

economic cost, recordkeeping, or

personnel workload changes on small

entities, and will not alter the market

share or competitive positions of small

entities relative to the large entities and

will no way affect normal competition

in the marketplace.

In addition, under 5 U.S.C. 553, good

cause has been found to make this rule

effective less than 30 days after

publication because it is necessary that

the regulation be effective at the

beginning of the marketing season

which begins in November. Therefore,

in order to treat all marketing areas on

an equal basis, this final rule is made

effective the day following the date of

publication in the Federal Register.

List of Subjects in 7 CFR Part 29

Administrative practice and

procedure, Advisory committees,

Government publications, Imports,

Pesticides and pests, Reporting and

recordkeeping requirements, Tobacco.

For the reasons set forth in the

preamble, 7 CFR part 29 is amended as

follows:

PART 29—TOBACCO INSPECTION

1. The authority citation for 7 CFR

part 29, subpart C, continues to read as

follows:

Authority: 7 U.S.C. 511b, 511m, and 511r.

Subpart C—Standards

2. In § 29.3053, paragraph (b) is

revised to read as follows:

§ 29.3053 Rework.

* * * * *

(b) Tobacco not properly tied in

hands, not packed in bales

approximately 1 x 2 x 3 feet, not

oriented, not packed straight, bales not

opened for inspection when chosen by

a grader, or otherwise not properly

prepared for market.

Dated: November 4, 1997.

Thomas A. O’Brien,

Acting Administrator, Agricultural Marketing

Service.

[FR Doc. 97–29498 Filed 11–6–97; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 920

[Docket No. FV97–920–3 FIR]

Kiwifruit Grown in California;

Increased Assessment Rate

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: The Department of

Agriculture (Department) is adopting, as

a final rule, without change, the

provisions of an interim final rule

which increased the assessment rate 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 1997–98 fiscal period

covers the period August 1 through July

31. The assessment rate will continue in

effect indefinitely unless modified,

suspended, or terminated.

EFFECTIVE DATE: December 8, 1997.

FOR FURTHER INFORMATION CONTACT:

Diane Purvis, Marketing Assistant, or

Rose Aguayo, Marketing Specialist,

California Marketing Field Office, Fruit

and Vegetable Programs, 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 Programs, AMS, USDA, Room

2525–S, P.O. Box 96456, Washington,

DC 20090–6456; telephone: (202) 720–

2491, 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 Programs, 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 is issuing this rule in

conformance with Executive Order

12866.

This final rule was 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 continues in effect the

assessment rate of $0.0225 per tray or

tray equivalents of assessable kiwifruit

for the Committee for the 1997–98 and

subsequent fiscal periods.

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 authorizes the Committee to

borrow funds. The members of the

Committee are producers of California

kiwifruit and one non-industry 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 the 1996–97 and subsequent fiscal

periods, the Committee recommended,
Federal Register / Vol. 62, No. 216 / Friday, November 7, 1997 / Rules and Regulations 60157

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

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 per tray or

tray equivalent is $0.0050 higher than

last year’s established rate. The 1996–97

kiwifruit crop was short 3.3 million

trays or tray equivalents of the quantity

projected in the 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

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

and estimated that an additional

$22,401 might be needed to cover

expenses through the end of the fiscal

period. Because the Committee’s reserve

has been 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. The order provides

authority for a maximum reserve equal

to 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 major

expenditure levels recommended by the

Committee for the 1997–98 year 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 was

approved by the Department on August

18, 1997; 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 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 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 California

kiwifruit producers and handlers may

be classified as small entities.

This rule continues the assessment

rate of $0.0225 per tray or tray

equivalents of assessable kiwifruit for

the 1997–98 and subsequent fiscal

periods. 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 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 major expenditure

levels recommended by the Committee

for the 1997–98 year 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 the 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
60158 Federal Register / Vol. 62, No. 216 / Friday, November 7, 1997 / Rules and Regulations

assessment rate to cover the budgeted

expenses, to reimburse the borrowed

funds, and to establish an adequate

reserve. Reserve funds will be kept

within the maximum permitted by the

order.

A review of historical information and

preliminary information pertaining to

the 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 as a

percentage of total grower revenue will

be approximately 1.4 percent.

This rule continues in effect the

assessment obligation imposed on

handlers. While the assessment rate this

fiscal period is higher than that of last

year, the additional costs upon handlers

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

California kiwifruit industry and all

interested persons were invited to

attend the meeting and participate in

Committee deliberations on all issues.

Like all 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.

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

final rule.

An interim final rule concerning this

action was published in the Federal

Register on August 26, 1997 (62 FR

45146). Copies of the rule were mailed

or sent via facsimile to all Committee

members and kiwifruit handlers.

Finally, the rule was made available

through the Internet by the Office of the

Federal Register. A 30-day comment

period was provided. No comments

were received.

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 920

Kiwifruit, Marketing agreements.

PART 920—KIWIFRUIT GROWN IN

CALIFORNIA

Accordingly, the interim final rule

amending 7 CFR part 920 which was

published at 62 FR 45146 on August 26,

1997, is adopted as a final rule without

change.

Dated: November 3, 1997.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable

Programs.

[FR Doc. 97–29479 Filed 11–6–97; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 922, 923, and 924

[Docket No. FV97–922–2 FIR]

Reduced Assessment Rates for

Specified Marketing Orders

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: The Department of

Agriculture (Department) is adopting as

a final rule, without change, the

provisions of an interim final rule

which decreased the assessment rates

established for the Washington Apricot

Marketing Committee, Washington

Cherry Marketing Committee, and

Washington-Oregon Fresh Prune

Committee (Committees) under

Marketing Orders Nos. 922, 923, and

924 for the 1997–98, and subsequent

fiscal periods. Authorization to assess

apricot, cherry, and prune handlers

enables the Committees to incur

expenses that are reasonable and

necessary to administer the program.

The 1997–98 fiscal periods for these

marketing orders began April 1 and end

March 31. The assessment rates will

continue in effect indefinitely unless

modified, suspended, or terminated.

EFFECTIVE DATE: December 8, 1997.

FOR FURTHER INFORMATION CONTACT:

Jadean L. Williams, Northwest

Marketing Field Office, Fruit and

Vegetable Programs, 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 Programs, AMS, USDA, Room

2525–S, P.O. Box 96456, Washington,

DC 20090–6456; telephone: (202) 720–

2491, 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 Programs, 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 part 922),

regulating the handling of apricots

grown in designated counties in

Washington; Marketing Order No. 923 (7

CFR part 923) regulating the handling of

sweet cherries grown in designated

counties in Washington; and Marketing

Order No. 924 (7 CFR part 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 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