[Federal Register Volume 61, Number 162 (Tuesday, August 20, 1996)]
[Rules and Regulations]
[Pages 42991-42993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21119]


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DEPARTMENT OF AGRICULTURE
7 CFR Part 982

[Docket No. FV96-982-1 FIR]


Hazelnuts Grown in Oregon and Washington; Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (Department) is adopting as a 
final rule, without change, the provisions of an interim final rule 
that established an assessment rate for the Hazelnut Marketing 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.

EFFECTIVE DATE: Effective on July 1, 1996.

FOR FURTHER INFORMATION CONTACT: Martha Sue Clark, Program Assistant, 
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, 
Marketing Specialist, 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. Small businesses may request information on 
compliance with this regulation by contacting: Jay Guerber, Marketing 
Order Administration Branch, Fruit and Vegetable Division, AMS, USDA, 
P.O. Box 96456, room 2523-S, Washington, DC 20090-6456, telephone 202-
720-2491, FAX 202-720-5698.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement and Order No. 982, both as amended (7

[[Page 42992]]

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 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, 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 and 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 
in the reserve will be kept within the maximum permitted by the order.
    An interim final rule regarding this action was published in the 
June 13, 1996, issue of the Federal Register (61 FR 29924). That 
interim final rule added Sec. 982.340 to establish an assessment rate 
for the Board. That rule provided that interested persons could file 
comments through July 15, 1996. No comments were received.
    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 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 those 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 marketing years 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,

[[Page 42993]]

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) The 
Board needs to have sufficient funds to pay its expenses which are 
incurred on a continuous basis; (2) the 1996-97 marketing year began 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 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 for a 30-day comment period, and no comments were received.

List of Subjects in 7 CFR Part 982

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

    Note: This section will appear in the Code of Federal 
Regulations.

PART 982--HAZELNUTS GROWN IN OREGON AND WASHINGTON

    Accordingly, the interim final rule which was published at 61 FR 
29924 on June 13, 1996, is adopted as a final rule without change.

    Dated: August 13, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-21119 Filed 8-19-96; 8:45 am]
BILLING CODE 3410-02-P