[Federal Register Volume 61, Number 115 (Thursday, June 13, 1996)]
[Rules and Regulations]
[Pages 29924-29926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14985]



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DEPARTMENT OF AGRICULTURE
7 CFR Part 982

[Docket No. FV96-982-1IFR]


Hazelnuts Grown in Oregon and Washington; Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule establishes an assessment rate for the 
Hazelnut Marketing Board (Board) under Marketing Order No. 982 for the 
1996-97 and subsequent marketing years. The Board is responsible for 
local administration of the marketing order which regulates the 
handling of hazelnuts grown in Oregon and Washington. Authorization to 
assess hazelnut handlers enables the Board to incur expenses that are 
reasonable and necessary to administer the program.


[[Page 29925]]


DATES: Effective July 1, 1996. Comments received by July 15, 1996, 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, P.O. Box 96456, room 
2523-S, 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: Martha Sue Clark, Marketing Order 
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O. 
Box 96456, room 2523-S, Washington, DC 20090-6456, telephone 202-720-
9918, FAX 202-720-5698, or Teresa L. Hutchinson, Northwest Marketing 
Field Office, Fruit and Vegetable Division, AMS, USDA, Green-Wyatt 
Federal Building, room 369, 1220 Southwest Third Avenue, Portland, OR 
97204, telephone 503-326-2724, FAX 503-326-7440.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement and Order No. 982, both as amended (7 CFR part 982; April 22, 
1996, 61 FR 17556), regulating the handling of hazelnuts grown in 
Oregon and Washington. The 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 12778, Civil 
Justice Reform. Under the marketing order now in effect, Oregon-
Washington hazelnut 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 hazelnuts beginning July 1, 1996, 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.
    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.
    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 1,000 producers of Oregon and Washington 
hazelnuts in the production area and approximately 25 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 of 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 Oregon and Washington 
hazelnut producers and handlers may be classified as small entities.
    The Oregon and Washington hazelnut 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 hazelnuts. 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 recommended by a mail vote and 
discussed reconfirmed in a public meeting. Thus, all directly affected 
persons have an opportunity to participate and provide input.
    The Board, in a mail vote, unanimously recommended 1996-97 
expenditures of $558,974 and an assessment rate of $0.007 per pound of 
hazelnuts. In comparison, last year's budgeted expenditures were 
$483,685. The assessment rate of $0.007 is the same as last year's 
established rate. Major expenditures recommended by the Board for the 
1996-97 year include $50,020 for personal services (salaries), $5,640 
for rent, $5,000 for auditing, $5,000 for compliance, $15,000 for a 
crop survey, $275,000 for promotion, and $182,364 for the emergency 
fund. Budgeted expenses for these items in 1995-96 were $50,735, 
$5,650, $3,500, $5,000, $11,000, $250,000, and $140,000, respectively. 
The Board will consider using emergency funds for authorized activities 
when it is reasonably certain that its estimate of assessable hazelnuts 
will be reached. It will not be able to make this determination until 
December 1996, the month in which the hazelnut harvest and deliveries 
to handlers usually are completed. Hence, any decision on whether or 
not to undertake additional activities will not be made until December 
1996, at the earliest.
    The assessment rate recommended by the Board was derived by 
dividing anticipated expenses by expected shipments of Oregon and 
Washington hazelnuts. Hazelnut shipments for the year are estimated at 
20,000,000 pounds which should provide $280,000 in assessment income. 
Income derived from handler assessments, interest, and from the Nut 
Growers Society in payment for services performed by the Board under an 
agreement with the Society, along with funds from the Board's 
authorized reserve, will be adequate to cover budgeted expenses. Funds 
remaining in the reserve at the end of the 1996-97 marketing year 
should be about $196,240. Funds in the reserve will be kept within the 
maximum permitted by the order.
    While this rule will impose some additional costs on handlers, the 
costs are 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. Therefore, the AMS has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities.
    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

[[Page 29926]]

Board will continue to conduct a mail vote prior to or during each 
fiscal period to recommend a budget of expenses and consider 
recommendations for modification of the assessment rate. Any mail votes 
will be discussed and reconfirmed at a public meeting. 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 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 1996-97 budget 
and those for subsequent fiscal periods will be reviewed and, as 
appropriate, approved by the Department.
    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.
    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 action until 30 days after publication in the Federal Register 
because: (1) The Board needs to have sufficient funds to pay its 
expenses which are incurred on a continuous basis; (2) the 1996-97 
marketing year begins on July 1, 1996, and the marketing order requires 
that the rate of assessment for each marketing year apply to all 
assessable hazelnuts handled during such marketing year; (3) handlers 
are aware of this action which was unanimously recommended by the Board 
in a mail vote and is similar to the assessment rate action issued last 
year; 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 in 7 CFR Part 982

    Filberts, Hazelnuts, Marketing agreements, Nuts, Reporting and 
recordkeeping requirements.

    For the reasons set forth in the preamble, 7 CFR part 982 is 
amended as follows:

PART 982--HAZELNUTS GROWN IN OREGON AND WASHINGTON

    1. The authority citation for 7 CFR part 982 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.

    2. A new subpart--Assessment Rates and a new Sec. 982.340 are added 
to read as follows:

Subpart--Assessment Rates


Sec. 982.340   Assessment rate.

    On and after July 1, 1996, an assessment rate of $0.007 per pound 
of assessable hazelnuts is established for Oregon and Washington 
hazelnuts.

    Dated: June 7, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-14985 Filed 6-12-96; 8:45 am]
BILLING CODE 3410-02-P