[Federal Register Volume 62, Number 216 (Friday, November 7, 1997)]
[Rules and Regulations]
[Pages 60158-60160]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29478]


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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.

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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 
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

[[Page 60159]]

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 rates established for 
the Committees for the 1997-98 and subsequent fiscal periods of $2.00 
per ton for Washington apricots, and $0.75 per ton for Washington sweet 
cherries and Washington-Oregon fresh prunes.
    The orders provide authority for each of the Committees, with the 
approval of the Department, to formulate an annual budget of expenses 
and collect assessments from handlers to administer the programs. The 
members of the Committees are producers and handlers in designated 
counties in Washington and in Umatilla County, Oregon. They are 
familiar with the Committees' needs and with the costs for goods and 
services in their local area and are thus in a position to formulate 
appropriate budgets and assessment rates. The assessment rates are 
formulated and discussed in public meetings. Thus, all directly 
affected persons have an opportunity to participate and provide input.
    For the 1996-97 and subsequent fiscal periods, the Committees 
recommended, and the Department approved, assessment rates that would 
continue in effect from fiscal period to fiscal period indefinitely 
unless modified, suspended, or terminated by the Secretary upon 
recommendation and information submitted by the Committees or other 
information available to the Secretary.
    The Washington Apricot Marketing Committee met on May 13, 1997, and 
unanimously recommended 1997-98 expenditures of $9,917 and an 
assessment rate of $2.00 per ton of apricots. In comparison, last 
year's budgeted expenditures were $9,385. The assessment rate of $2.00 
is $1.00 less than the rate previously in effect. At the former rate of 
$3.00 per ton and an estimated 1997 fresh apricot production of 5,300 
tons, the projected reserve on March 31, 1998, would exceed the maximum 
level authorized by the order of one fiscal period's operational 
expenses. The Committee discussed assessment rates of $1.00 and $1.50, 
but decided that an assessment rate of less than $2.00 would not 
generate the income necessary to administer the program with an 
adequate reserve.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of apricots grown 
in designated counties in Washington. Applying the $2.00 per ton rate 
of assessment to the Committee's 5,300 ton shipment estimate should 
provide $10,600 in assessment income. Income derived from handler 
assessments, along with interest income and funds from the Committee's 
authorized reserve, will be adequate to cover budgeted expenses. Funds 
in the reserve will be kept within the maximum permitted by the order.
    The Washington Cherry Marketing Committee met on May 12, 1997, and 
unanimously recommended 1997-98 expenditures of $57,545 and an 
assessment rate of $0.75 per ton of cherries. In comparison, last 
year's budgeted expenditures were $56,665. The assessment rate of $0.75 
is $0.25 less than the rate previously in effect. At the former rate of 
$1.00 per ton and an estimated 1997 sweet cherry production of 54,000 
tons, the projected reserve on March 31, 1998, would exceed the maximum 
level authorized by the order of one fiscal period's operational 
expenses. The Committee discussed an assessment rate of $0.50, but 
decided that an assessment rate of less than $0.75 would not generate 
the income necessary to administer the program with an adequate 
reserve.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of sweet cherries 
grown in designated counties in Washington. With cherry shipments for 
the year estimated at 54,000 tons, the assessment rate of $0.75 should 
provide $40,500 in assessment income. Income derived from handler 
assessments, along with interest income and funds from the Committee's 
authorized reserve, will be adequate to cover budgeted expenses. Funds 
in the reserve will be kept within the maximum permitted by the order.
    The Oregon-Washington Fresh Prune Marketing Committee met on May 
28, 1997, and unanimously recommended 1997-98 expenditures of $7,233 
and an assessment rate of $0.75 per ton of prunes. In comparison, last 
year's budgeted expenditures were $6,645. The assessment rate of $0.75 
is $0.25 less than the rate previously in effect. At the former rate of 
$1.00 per ton and an estimated 1997 fresh prune production of 6,000 
tons, the projected reserve on March 31, 1998, would exceed the maximum 
level authorized by the order of one fiscal period's operational 
expenses. The Committee discussed an assessment rate of $0.50, but 
decided that an assessment rate of less than $0.75 would not generate 
the income necessary to administer the program with an adequate 
reserve.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of fresh prunes 
grown in designated counties in Washington, and Umatilla County, 
Oregon. With fresh prune shipments for the year estimated at 6,000 
tons, the $0.75 per ton assessment rate should provide $4,500 in 
assessment income. Income derived from handler assessments, along with 
interest income and funds from the Committee's authorized reserve, will 
be adequate to cover budgeted expenses. Funds in the reserve will be 
kept within the maximum permitted by the order.
    Major expenses recommended by the Committees for the 1997-98 year 
include manager's salary, office rent and maintenance, Committee 
travel, and compliance officer.
    The assessment rates established in this rule will continue in 
effect indefinitely unless modified, suspended, or terminated by the 
Secretary upon recommendation and information submitted by the 
Committees or other available information.
    Although these assessment rates are effective for an indefinite 
period, the Committees 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 rates. The dates and 
times of Committee meetings are available from the Committees 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 rates is needed. 
Further rulemaking will be undertaken as necessary. The Committees' 
1997-98 budgets 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 190 Washington apricot producers, 1,100 
Washington sweet cherry producers,

[[Page 60160]]

and 350 Washington-Oregon fresh prune producers in the respective 
production areas. In addition, there are approximately 55 Washington 
apricot handlers, 55 Washington sweet cherry handlers, and 30 
Washington-Oregon fresh prune handlers subject to regulation under the 
respective marketing orders. 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. The majority of Washington apricot, Washington sweet 
cherry, and Washington-Oregon fresh prune producers and handlers may be 
classified as small entities.
    This rule continues in effect decreased assessment rates 
established for the Committees and collected from handlers for the 
1997-98 and subsequent fiscal periods. The Committees unanimously 
recommended 1997-98 expenditures of $9,917 for apricots, $57,545 for 
cherries, and $7,233 for prunes and an assessment rate of $2.00 per ton 
for apricots, $0.75 per ton for cherries, and $0.75 per ton for prunes. 
The assessment rate of $2.00 for apricots is $1.00 less than the rate 
previously in effect. The assessment rates of $0.75 for cherries and 
prunes are $0.25 less than the rates previously in effect. At the 
former assessment rates, the Committees' reserves were projected to 
exceed the amount authorized in the orders of approximately one fiscal 
period's operational expenses. Therefore, the Committees voted to lower 
their respective assessment rates and use more of their reserves to 
cover expenses.
    The Committees discussed alternatives to this rule, including 
alternative expenditure levels. Lower assessment rates were considered, 
but not recommended because they would not generate the income 
necessary to administer the programs with adequate reserves. Major 
expenses recommended by the Committees for the 1997-98 year include 
manager's salary, office rent and maintenance, Committee travel, and 
compliance officer.
    Apricot shipments for 1997 are estimated at 5,300 tons, which 
should provide $10,600 in assessment income. Income derived from 
handler assessments, along with funds from the authorized reserve will 
be adequate to cover budgeted expenses. Funds in the reserve will be 
kept within the maximum permitted by the order.
    Sweet cherry shipments for 1997 are estimated at 54,000 tons, which 
should provide $40,500 in assessment income. Income derived from 
handler assessments, along with funds from the authorized reserve will 
be adequate to cover budgeted expenses. Funds in the reserve will be 
kept within the maximum permitted by the order.
    Fresh prune shipments for 1997 are estimated at 6,000 tons, which 
should provide $4,500 in assessment income. Income derived from handler 
assessments, along with funds from the authorized reserve will be 
adequate to cover budgeted expenses. Funds in the reserve will be kept 
within the maximum permitted by the order.
    Recent price information indicates that the producer price for the 
1997-98 season will range between $600 and $1,400 per ton for 
Washington apricots, between $1,500 and $2,200 per ton for Washington 
sweet cherries, and between $200 and $500 per ton for Washington-Oregon 
fresh prunes. Therefore, the estimated assessment revenue for the 1997-
98 fiscal period as a percentage of total grower revenue will range 
between 0.14 and 0.33 percent for Washington apricots, between 0.03 and 
0.05 percent for Washington sweet cherries, and between 0.15 and 0.38 
for Washington-Oregon fresh prunes.
    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 orders. In addition, the Committees' 
meetings were widely publicized throughout the Washington apricot, 
Washington sweet cherry, and Washington-Oregon fresh prune industries 
and all interested persons were invited to attend and participate in 
the Committees' deliberations on all issues. Like all meetings of these 
Committees, the May 12, 13, and 28 meetings were public meetings and 
all entities, both large and small, were able to express views on the 
issues.
    This action will not impose any additional reporting or 
recordkeeping requirements on either small or large Washington apricot, 
Washington sweet cherry, or Washington-Oregon fresh prune 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.
    The interim final rule published in the Federal Register (62 FR 
41805) on August 4, 1997, requested comments to be received by 
September 3, 1997. A copy of the interim final rule was also made 
available on the Internet by the U.S. Government Printing Office. No 
comments were received.
    After consideration of all relevant material presented, including 
the information and recommendations submitted by the Committees 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

7 CFR Part 922

    Apricots, Marketing agreements, Reporting and recordkeeping 
requirements.

7 CFR Part 923

    Cherries, Marketing agreements, Reporting and recordkeeping 
requirements.

7 CFR Part 924

    Plums, Prunes, Marketing agreements, Reporting and recordkeeping 
requirements.

PART 922--APRICOTS GROWN IN DESIGNATED COUNTIES IN WASHINGTON

PART 923--SWEET CHERRIES GROWN IN DESIGNATED COUNTIES IN WASHINGTON

PART 924--FRESH PRUNES GROWN IN DESIGNATED COUNTIES IN WASHINGTON 
AND IN UMATILLA COUNTY, OREGON

    Accordingly, the interim final rule amending 7 CFR parts 922, 923, 
and 924 which was published at 62 FR 41805 on August 4, 1997, is 
adopted as a final rule without change.

    Dated: November 3, 1997.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 97-29478 Filed 11-6-97; 8:45 am]
BILLING CODE 3410-02-P