This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

39755

Vol. 63, No. 142

Friday, July 24, 1998

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 981

[Docket No. FV98–981–2 PR]

Almonds Grown in California;

Increased Assessment Rate

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Proposed rule.

SUMMARY: This rule would increase the

assessment rate from $0.02 to $0.025 per

pound established for the Almond

Board of California (Board) under

Marketing Order No. 981 for the 1998–

99 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.

The fiscal period begins August 1 and

ends July 31. The assessment rate would

remain in effect indefinitely unless

modified, suspended, or terminated.

DATES: Comments must be received by

August 24, 1998.

ADDRESSES: Interested persons are

invited to submit written comments

concerning this rule. Comments must be

sent to the Docket Clerk, Fruit and

Vegetable Programs, AMS, USDA, room

2525–S, P.O. Box 96456, Washington,

DC 20090–6456; Fax: (202) 205–6632.

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:

Diane Purvis, Marketing Assistant, and

Martin J. Engeler, Marketing Specialist,

California Marketing Field Office, Fruit

and Vegetable Programs, AMS, USDA,

2202 Monterey Street, Suite 102B,

Fresno, CA 93721; telephone: (209) 487–

5901, Fax: (209) 487–5906; or George

Kelhart, Technical Advisor, 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) 205–6632. 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) 205–6632.

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 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 on August 1, 1998, 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 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 would increase the

assessment rate established for the

Board for the 1998–99 and subsequent

crop years from $0.02 per pound to

$0.025 per pound.

The California 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.

For the 1997–98 and subsequent crop

years, the Board recommended, and the

Department approved, an assessment

rate that would continue in effect from

crop year to crop year unless modified,

suspended, or terminated by the

Secretary upon recommendation and

information submitted by the Board or

other information available to the

Secretary.

The Board met on June 4, 1998, and

unanimously recommended 1998–99

expenditures of $13,049,437 and an

assessment rate of $0.025 per pound of

almonds. In comparison, last year’s

budgeted expenditures were

$11,333,876. The assessment rate of

$0.025 is $.005 higher than the rate

currently in effect. The higher rate is

needed primarily because of a smaller

crop this year. The 1997–98 crop was

initially estimated at 681,600,000

pounds compared to 528,000,000

pounds estimated for the 1998–99 crop

year. The higher assessment rate, when

combined with other revenue sources,

would generate adequate revenue to

fund the recommended programs. The

Board also recommended to continue

the credit-back program whereby

handlers could receive credit for their

own promotional activities of up to

$0.0125 per pound against their

assessment obligation. Handlers not
39756 Federal Register / Vol. 63, No. 142 / Friday, July 24, 1998 / Proposed Rules

participating in this program would

remit the entire $0.025 to the Board.

The major expenditures

recommended by the Board for the

1998–99 crop year include $4,500,000

for paid generic advertising, $2,500,000

for other domestic promotion programs,

$1,495,000 for international promotion,

$1,144,842 for salaries, $700,000 for

nutrition research, $548,207 for

production research, $155,000 for

market research, $125,000 for travel,

$124,700 for quality control programs,

$100,700 for crop estimates, and

$100,000 for compliance audits.

Comparable expenditures

recommended by the Board for the

1997–98 crop year were $3,408,000 for

paid generic advertising, $3,174,000 for

other domestic promotion programs,

$794,043 for international promotion,

$881,534 for salaries, $695,000 for

nutrition research, $568,679 for

production research, $125,000 for

market research, $90,000 for travel,

$152,175 for quality control programs,

$95,400 for crop estimates, and $92,500

for compliance audits.

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 an

estimate of 528,000,000 pounds of

assessable almonds for the 1998–99 crop

year. If realized, this would provide

estimated assessment revenue of

$6,600,000 from all handlers, and an

additional $3,630,000 from those

handlers who do not participate in the

credit-back program, for a total of

$10,230,000. In addition, it is

anticipated that $2,819,437 would be

provided by other sources, including

interest income, Market Access Program

reimbursement from the Department for

international promotion activities,

revenue generated from the Board’s

annual research conference,

miscellaneous income, funds derived

from the Board’s authorized monetary

reserve, and a grant from the State of

California. When combined, revenue

from these sources would be adequate to

cover budgeted expenses. Any

unexpended funds from the 1998–99

crop year may be carried over to cover

expenses during the succeeding crop

year. Funds in the reserve at the end of

the 1998–99 crop year are estimated to

be approximately $3,500,000, which is

within the maximum of approximately

six months budgeted expenses as

permitted by the order.

The proposed assessment rate would

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 would

be in effect for an indefinite period, the

Board would continue to meet prior to

or during each crop year to recommend

a budget of expenses and consider

recommendations for modification of

the assessment rate. The dates and times

of Board meetings are available from the

Board or the Department. Board

meetings are open to the public and

interested persons may express their

views at these meetings. The

Department would evaluate Board

recommendations and other available

information to determine whether

modification of the assessment rate is

needed. Further rulemaking would be

undertaken as necessary. The Board’s

1998–99 budget and those for

subsequent crop years would 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 7,000

producers of almonds in the production

area and approximately 102 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.

Currently, about 57 percent of the

handlers ship under $5,000,000 worth

of almonds and 43 percent ship over

$5,000,000 worth of almonds on an

annual basis. In addition, based on

reported acreage, production, and

grower prices, and the total number of

almond growers, the average annual

grower revenue is estimated to be

approximately $160,000. 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 rule would increase the

assessment rate established for the

Board and collected from handlers for

the 1998–99 and subsequent crop years

from $0.02 per pound to $0.025 per

pound. The Board unanimously

recommended the increased assessment

rate, and 1998–99 expenditures of

$13,049,437. The proposed assessment

rate of $0.025 is $0.005 higher than the

current rate. The quantity of assessable

almonds for the 1998–99 crop year is

estimated at 528,000,000 pounds.

Income from assessments and other

sources is expected to generate

sufficient revenue to fund this year’s

expenses. Any unexpended funds from

the 1998–99 crop year may be carried

over to cover expenses during the

succeeding crop year.

The higher assessment rate is needed

primarily because of a smaller crop this

year. The 1997–98 assessable crop was

initially estimated at 681,600,000

pounds, compared to 528,000,000 for

the 1998–99 crop year. The higher

assessment rate would help generate

adequate revenue to fund the

recommended programs.

The Board reviewed and unanimously

recommended 1998–99 expenditures of

$13,049,437, compared to $11,333,876

budgeted for the 1997–98 crop year. The

major expenditures recommended by

the Board for the 1998–99 crop year

include $4,500,000 for paid generic

advertising, $2,500,000 for other

domestic promotion programs,

$1,495,000 for international promotion,

$1,144,842 for salaries, $700,000 for

nutrition research, $548,207 for

production research, $155,000 for

market research, $125,000 for travel,

$124,700 for quality control programs,

$100,700 for crop estimates, and

$100,000 for compliance audits.

Comparable expenditures

recommended by the Board for the

1997–98 crop year were $3,408,000 for

paid generic advertising, $3,174,000 for

other domestic promotion programs,

$794,043 for international promotion,

$881,534 for salaries, $695,000 for

nutrition research, $568,679 for

production research, $125,000 for

market research, $90,000 for travel,

$152,175 for quality control programs,

$95,400 for crop estimates, and $92,500

for compliance audits.

Prior to arriving at the recommended

expenditure level and assessment rate,

the Board considered alternatives and

ultimately concurred on the

recommended programs and

expenditure level, and determined a rate

of $0.025 would be necessary to

generate adequate revenue to fund the

recommended programs.
Federal Register / Vol. 63, No. 142 / Friday, July 24, 1998 / Proposed Rules 39757

A review of historical information and

preliminary information pertaining to

the upcoming crop year indicates that

the grower price for the 1998–99 season

could range between $1.50 and $2.00

per pound of almonds. Therefore, the

estimated assessment revenue for the

1998–99 crop year as a percentage of

total grower revenue could range

between .97 and 1.3 percent.

This action would increase the

assessment obligation imposed on

handlers. While assessments impose

some additional costs on handlers, the

costs are minimal and uniform on all

handlers. Some of the additional costs

may be passed on to producers.

However, these costs would 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 June

4, 1998, 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 proposed rule would impose no

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 30-day comment period is provided

to allow interested persons to respond

to this proposed rule. Thirty days is

deemed appropriate because: (1) The

Board needs to have sufficient funds to

pay its expenses which are incurred on

a continuous basis; (2) the 1998–99 crop

year begins on August 1, 1998, and the

marketing order requires that the rate of

assessment for each crop year apply to

all assessable almonds handled in such

crop year; and (3) handlers are aware of

this action which was unanimously

recommended by the Board at a public

meeting.

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 proposed to

be 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.

2. Section 981.343 is proposed to be

revised to read as follows:

§ 981.343 Assessment rate.

On and after June 4, 1998, an

assessment rate of $0.025 per pound is

established for California almonds. Of

the $0.025 assessment rate, $0.0125 per

assessable pound is available for

handler credit-back.

Dated: July 21, 1998.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable

Programs.

[FR Doc. 98–19888 Filed 7–23–98; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 987

[Docket No. FV98–987–1 PR]

Domestic Dates Produced or Packed in

Riverside County, CA; Increased

Assessment Rate

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Proposed rule.

SUMMARY: This rule would increase the

assessment rate from $0.0556 to $0.10

per hundredweight established for the

California Date Administrative

Committee (Committee) under

Marketing Order No. 987 for the 1998–

99 and subsequent crop years. The

Committee is responsible for local

administration of the marketing order

which regulates the handling of dates

produced or packed in Riverside

County, California. Authorization to

assess date handlers enables the

Committee to incur expenses that are

reasonable and necessary to administer

the program. The fiscal period begins

October 1 and ends September 30. The

assessment rate would remain in effect

indefinitely unless modified,

suspended, or terminated.

DATES: Comments must be received by

September 22, 1998.

ADDRESSES: Interested persons are

invited to submit written comments

concerning this rule. Comments must be

sent to the Docket Clerk, Fruit and

Vegetable Programs, AMS, USDA, room

2525–S, P.O. Box 96456, Washington,

DC 20090–6456; Fax: (202) 205–6632.

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:

Diane Purvis, Marketing Assistant, or

Richard P. Van Diest, Marketing

Specialist, California Marketing Field

Office, Fruit and Vegetable Programs,

AMS, USDA, 2202 Monterey St., suite

102B, Fresno, CA 93721; telephone:

(209) 487–5901; Fax: (209) 487–5906; or

George Kelhart, Technical Advisor,

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)

205–6632. 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)

205–6632.

SUPPLEMENTARY INFORMATION: This rule

is issued under Marketing Agreement

and Order No. 987, both as amended (7

CFR part 987), regulating the handling

of domestic dates produced or packed in

Riverside County, California, hereinafter

referred to as the ‘‘order.’’ The

marketing agreement and order 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 order now

in effect, California date 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 dates

beginning on October 1, 1998, 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 the Secretary a petition stating that

the order, any provision of the order, or

any obligation imposed in connection