[Federal Register Volume 67, Number 164 (Friday, August 23, 2002)]
[Rules and Regulations]
[Pages 54565-54567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21538]



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 Rules and Regulations
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  Federal Register / Vol. 67, No. 164 / Friday, August 23, 2002 / Rules 
and Regulations  

[[Page 54565]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 922

[Docket No. FV02-922-1 FR]


Apricots Grown in Designated Counties in Washington; Increased 
Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule increases the assessment rate established for the 
Washington Apricot Marketing Committee (Committee) for the 2002-03 and 
subsequent fiscal periods from $2.00 to $2.50 per ton of apricots 
handled. The Committee locally administers the marketing order which 
regulates the handling of apricots grown in designated counties in 
Washington. Authorization to assess apricot handlers enables the 
Committee to incur expenses that are reasonable and necessary to 
administer the program. The fiscal period began April 1 and ends March 
31. The assessment rate will remain in effect indefinitely unless 
modified, suspended, or terminated.

EFFECTIVE DATE: August 26, 2002.

FOR FURTHER INFORMATION CONTACT: Teresa Hutchinson, Northwest Marketing 
Field Office, Fruit and Vegetable Programs, AMS, USDA, 1220 SW Third 
Avenue, suite 385, Portland, OR 97204; telephone: (503) 326-2724, Fax: 
(503) 326-7440; or George Kelhart, Technical Advisor, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 
Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; 
telephone: (202) 720-2491, Fax: (202) 720-8938.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue SW, STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-
2491, Fax: (202) 720-8938, or e-mail: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement No. 132 and Marketing Order No. 922, both as amended (7 CFR 
part 922), regulating the handling of apricots grown in designated 
counties in Washington, hereinafter referred to as the ``order.'' 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 (USDA) 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, Washington 
apricot handlers are subject to assessments. Funds to administer the 
order are derived from such assessments. It is intended that the 
assessment rate as proposed herein will be applicable to all assessable 
apricots beginning on April 1, 2002, 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 USDA 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 USDA 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 USDA'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 increases the assessment rate established for the 
Committee for the 2002-03 and subsequent fiscal periods from $2.00 to 
$2.50 per ton of apricots handled.
    The Washington apricot marketing order provides authority for the 
Committee, with the approval of USDA, to formulate an annual budget of 
expenses and collect assessments from handlers to administer the 
program. The members of the Committee are growers and handlers of 
Washington apricots. 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 1997-98 and subsequent fiscal periods, the Committee 
recommended, and USDA approved, an assessment rate that would continue 
in effect from fiscal period to fiscal period unless modified, 
suspended, or terminated by USDA upon recommendation and information 
submitted by the Committee or other information available to USDA.
    The Committee met on May 15, 2002, and unanimously recommended 
2002-03 expenditures of $11,685 and an assessment rate of $2.50 per ton 
of apricots. In comparison, last year's budgeted expenditures were 
$11,230. The recommended rate is $.50 higher than the rate currently in 
effect. The increase is necessary to offset an increase in salaries and 
operating expenses, and an anticipated decrease in production due to 
the adverse effect of cooler temperatures on the size and quality of 
the 2002 apricot crop.
    The major expenditures recommended by the Committee for the 2002-03 
fiscal period include $5,892 for salaries, $1,000 for travel, $816 for 
rent and maintenance, and $540 for office equipment and repair. 
Budgeted expenses for these items in 2001-2002 were $5,731, $1,000, 
$792, and $264, respectively.
    Washington apricot shipments for 2002 are estimated at 3,650 tons 
which should provide $9,125 in assessment income. This income, along 
with approximately $2,540 from the Committee's authorized reserve, 
should be adequate to cover budgeted expenses. Funds in the reserve 
(currently $8,257) would be kept within the maximum

[[Page 54566]]

permitted by the order. The order permits an operating reserve in an 
amount not to exceed approximately one fiscal period's operational 
expenses (Sec. 922.42).
    The assessment rate established in this rule will continue in 
effect indefinitely unless modified, suspended, or terminated by USDA 
upon recommendation and information submitted by the Committee or other 
available information.
    Although this assessment rate will be in effect 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 USDA. 
Committee meetings are open to the public and interested persons may 
express their views at these meetings. USDA 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 2002-03 budget and those 
for subsequent fiscal periods will be reviewed and, as appropriate, 
approved by USDA.

Final Regulatory Flexibility Analysis

    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 200 producers of apricots in the production 
area and approximately 30 handlers subject to regulation under the 
marketing order. Small agricultural producers are defined by the Small 
Business Administration (13 CFR 121.201) as those having annual 
receipts of less than $750,000, and small agricultural service firms 
are defined as those whose annual receipts are less than $5,000,000.
    Based on a three-year average fresh apricot production of 4,406 
tons (Committee records), a three-year average of producer prices of 
$832 per ton reported by the National Agricultural Statistics Service, 
and 200 Washington apricot producers, the average annual producer 
revenue is approximately $18,329. In addition, based on Committee 
records and 2001 F.O.B. prices ranging from $14.50 to $22.50 per 24-
pound container reported by USDA's Market News Service, all of the 
Washington apricot handlers ship under $5,000,000 worth of apricots. In 
view of the foregoing, it can be concluded that all of the Washington 
apricot producers and handlers may be classified as small entities.
    This rule increases the assessment rate established for the 
Committee and collected from handlers for the 2002-03 and subsequent 
fiscal periods from $2.00 to $2.50 per ton of apricots. The Committee 
unanimously recommended 2002-03 expenditures of $11,685 and an 
assessment rate of $2.50 per ton. The increased assessment rate is $.50 
higher than the 2001-02 rate. The quantity of assessable apricots for 
the 2002-03 fiscal period is estimated at 3,650 tons. Income derived 
from handler assessments (approximately $9,125), along with funds from 
the Committee's authorized reserve, should be adequate to cover 
budgeted expenses.
    The major expenditures recommended by the Committee for the 2002-03 
fiscal period include $5,892 for salaries, $1,000 for travel, $816 for 
rent and maintenance, and $540 for office equipment and repair. 
Budgeted expenses for these items in 2001-02 were $5,731, $1,000, $792, 
and $264, respectively.
    The assessment rate increase is necessary to offset increases in 
salaries and operating expenses, and an anticipated decrease in 
production due to the adverse effect of cooler temperatures on the size 
and quality of the 2002 apricot crop. As of March 31, 2002, the 
Committee's reserve was $8,257. At the previous assessment rate of 
$2.00 per ton and an estimated 2002 apricot production of 3,650 tons, 
the projected reserve on March 31, 2003, would have been $3,872. The 
Committee believed that such a level of reserve would not have been 
adequate should there have been another reduced crop. At the rate of 
$2.50 per ton (assessment income of $9,125) and expenditures of 
$11,685, the Committee may need to draw up to $2,540 from its reserve. 
If reserve funds in this amount are needed, the projected reserve will 
be approximately $5,697 on March 31, 2003, which the Committee 
determined to be acceptable.
    The Committee considered alternate levels of assessment but 
determined that increasing the assessment rate to $2.50 per ton is 
adequate to maintain the reserve at an acceptable level. The Committee 
decided that an assessment rate between $2.00 per ton and $2.50 per ton 
would not have maintained the reserve at an adequate level. Prior to 
arriving at this rate of assessment, the Committee considered 
information from various sources, such as the Committee's Finance and 
Executive Committees.
    A review of historical information and preliminary information 
pertaining to the upcoming fiscal period indicates that the producer 
price for the 2002-03 fiscal period could range between $800 and $850 
per ton of apricots. Therefore, the estimated assessment revenue for 
the 2002-03 as a percentage of total producer revenue could range 
between 0.31 and 0.29 percent.
    This action increases 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 
are offset by the benefits derived by the operation of the order. In 
addition, the Committee's meeting was widely publicized throughout the 
Washington apricot industry and all interested persons were invited to 
attend the meeting and participate in Committee deliberations on all 
issues. Like all Committee meetings, the May 15, 2002, meeting was a 
public meeting and all entities, both large and small, were able to 
express views on this issue.
    This rule imposes no additional reporting or recordkeeping 
requirements on either small or large Washington apricot 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.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this rule.
    A proposed rule concerning this action was published in the Federal 
Register on July 1, 2002 (67 FR 44095). Washington apricot handlers 
were also notified of the increased assessment rate. Finally, the 
proposal was made available through the Internet by the Office of the 
Federal Register and USDA. A 30-day comment period ending July 31, 
2002, was provided for interested persons to respond to the proposal. 
No comments were received.
    A small business guide on complying with fruit, vegetable, and 
specialty crop

[[Page 54567]]

marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide 
should be sent to Jay Guerber at the previously mentioned address in 
the FOR FURTHER INFORMATION CONTACT section.
    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.
    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 
2002-03 fiscal period began on April 1, 2002, and the order requires 
that the rate of assessment for each fiscal period apply to all 
assessable apricots handled during such fiscal period; (2) the 
Committee needs to have sufficient funds to pay its expenses which are 
incurred on a continuous basis; and (3) handlers are aware of this 
action which was unanimously recommended by the Committee at a public 
meeting and is similar to other assessment rate actions issued in past 
years.

List of Subjects in 7 CFR Part 922

    Apricots, Marketing agreements, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR part 922 is 
amended as follows:

PART 922--APRICOTS GROWN IN DESIGNATED COUNTIES IN WASHINGTON

    1. The authority citation for 7 CFR part 922 continues to read as 
follows:

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

    2. Section 922.235 is revised to read as follows:


Sec. 922.235  Assessment rate.

    On and after April 1, 2002, an assessment rate of $2.50 per ton is 
established for the Washington Apricot Marketing Committee.

    Dated: August 19, 2002.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 02-21538 Filed 8-22-02; 8:45 am]
BILLING CODE 3410-02-P