[Federal Register Volume 68, Number 143 (Friday, July 25, 2003)]
[Proposed Rules]
[Pages 43975-43978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18984]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 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.
 
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 

  Federal Register / Vol. 68, No. 143 / Friday, July 25, 2003 / 
Proposed Rules  

[[Page 43975]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 922, 923, and 924

[Docket No. FV03-922-1 PR]


Increased Assessment Rates for Specified Marketing Orders

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule would increase the assessment rates established for 
the Washington Apricot Marketing Committee, the Washington Cherry 
Marketing Committee, and the Washington-Oregon Fresh Prune Committee 
(Committees) for the 2003-2004, and subsequent fiscal periods. This 
rule would increase the assessment rates established for the Committees 
from $2.50 to $3.00 per ton for Washington apricots, from $0.75 to 
$1.00 per ton for Washington sweet cherries, and $1.00 to $1.50 per ton 
for Washington-Oregon fresh prunes. The Committees are responsible for 
local administration of the marketing orders which regulate the 
handling of apricots and cherries grown in designated counties in 
Washington, and prunes grown in designated counties in Washington and 
in Umatilla County, Oregon. Authorization to assess apricot, cherry, 
and prune handlers enables the Committees to incur expenses that are 
reasonable and necessary to administer the programs. The fiscal period 
for these marketing orders begins April 1 and ends March 31. The 
assessment rates would remain in effect indefinitely unless modified, 
suspended or terminated.

DATES: Comments must be received by August 11, 2003.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938, or E-mail: [email protected]. 
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, or can be viewed at: http://www.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Teresa L. Hutchinson, Marketing 
Specialist, Northwest Marketing Field Office, Marketing Order 
Administration Branch, 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 J. 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 SW, 
STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: 
(202) 720-8938.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement and Order No. 922 (7 CFR part 922), regulating the handling 
of apricots grown in designated counties in Washington; Marketing 
Agreement and Order No. 923 (7 CFR part 923) regulating the handling of 
sweet cherries grown in designated counties in Washington; and 
Marketing Agreement and 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 Aorders.'' The 
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 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 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 proposed herein would be applicable to all 
assessable Washington apricots, Washington sweet cherries, and 
Washington-Oregon fresh prunes beginning April 1, 2003, 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 would increase the assessment rates established for the 
Committees for the 2003-2004 and subsequent fiscal periods from $2.50 
to $3.00 per ton for Washington apricots, from $0.75 to $1.00 per ton 
for Washington sweet cherries, and $1.00 to $1.50 per ton for 
Washington-Oregon fresh prunes.
    The orders provide authority for the Committees, 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 
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 areas and are thus in a position to formulate appropriate budgets 
and assessment rates. The assessment rates are formulated and discussed 
in public

[[Page 43976]]

meetings. Thus, all directly affected persons have an opportunity to 
participate and provide input.
    For the 2002-2003 and subsequent fiscal periods, the Washington 
Apricot Marketing 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 Washington Apricot Marketing Committee met on May 21, 2003, and 
unanimously recommended 2003-2004 expenditures of $10,559 and an 
assessment rate of $3.00 per ton of apricots. In comparison, last 
year's budgeted expenditures were $11,685. The assessment rate of $3.00 
is $0.50 higher than the rate currently in effect. The increase is 
necessary to offset an anticipated decrease in production due to the 
adverse effect of cooler temperatures on the size and quality of the 
2003 apricot crop.
    The assessment rate recommended by the Washington Apricot Marketing 
Committee was derived by dividing anticipated expenses by expected 
shipments of apricots grown in designated counties in Washington. 
Applying the $3.00 per ton rate of assessment to the Washington Apricot 
Marketing Committee's 3,600 ton shipment estimate should provide 
$10,800 in assessment income. Income derived from handler assessments 
would be adequate to cover budgeted expenses and allow the Apricot 
Committee to maintain an acceptable financial reserve. Funds in the 
reserve ($8,360 as of March 31, 2003) would be kept within the maximum 
permitted by the order (approximately one fiscal period's operational 
expenses; Sec.  922.42).
    For the 1997-98 and subsequent fiscal periods, the Washington 
Cherry Marketing Committee recommended, and the 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 Washington Cherry Marketing Committee met on May 22, 2003, and 
unanimously recommended 2003-2004 expenditures of $71,865 and an 
assessment rate of $1.00 per ton of cherries. In comparison, last 
year's budgeted expenditures were $68,715. The assessment rate of $1.00 
is $0.25 higher than the rate currently in effect. The higher 
assessment rate is necessary to offset an anticipated decrease in 
production due to the adverse effect of cooler temperatures on the size 
and quality of the 2003 cherry crop.
    The assessment rate recommended by the Washington Cherry Marketing 
Committee was derived by dividing anticipated expenses by expected 
shipments of sweet cherries grown in designated counties in Washington. 
Applying the $1.00 per ton rate of assessment to the Washington Cherry 
Marketing Committee's 64,000-ton shipment estimate should provide 
$64,000 in assessment income. Income derived from handler assessments, 
along with funds from the Committee's authorized reserve, would be 
adequate to cover budgeted expenses. Funds in the reserve ($33,064 as 
of March 31, 2003) would be kept within the maximum permitted by the 
order (approximately one fiscal period's operational expenses; Sec.  
923.42).
    For the 2001-2002 and subsequent fiscal periods, the Washington-
Oregon Fresh Prune Marketing 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 Washington-Oregon Fresh Prune Marketing Committee met on June 
3, 2003, and unanimously recommended 2003-2004 expenditures of $7,411 
and an assessment rate of $1.50 per ton of prunes. In comparison, last 
year's budgeted expenditures were $8,095. The assessment rate of $1.50 
is $0.50 higher than the rate currently in effect. The higher 
assessment rate is necessary to bring the assessment rate closer to 
budgeted expenses, and to use less of the reserve to fund expenses.
    The assessment rate recommended by the Washington-Oregon Fresh 
Prune Committee was derived by dividing anticipated expenses by 
expected shipments of fresh prunes grown in designated counties in 
Washington, and Umatilla County, Oregon. Applying the $1.50 per ton 
rate of assessment to the Washington-Oregon Fresh Prune Marketing 
Committee's 4,300-ton shipment estimate should provide $6,450 in 
assessment income. Income derived from handler assessments, along with 
funds from the Washington-Oregon Fresh Prune Marketing Committee's 
authorized reserve, would be adequate to cover budgeted expenses. Funds 
in the reserve ($5,407 as of March 31, 2003) would be kept within the 
maximum permitted by the order (approximately one fiscal period's 
operational expenses; Sec.  924.42).
    All three Committees are managed from the same office, and as such, 
major expenses recommended by the Committees for the 2003-2004 year 
include salaries ($54,500), rent and maintenance ($7,200), compliance 
officer ($4,840), and Committee travel and compensation ($4,000). 
Budgeted expenses for these items in 2002-2003 were $49,100, $6,800, 
$5,120, and $6,100, respectively.
    The proposed assessment rates would continue in effect indefinitely 
unless modified, suspended, or terminated by USDA upon recommendation 
and information submitted by the Committees or other available 
information.
    Although the assessment rates would be in effect for an indefinite 
period, the Committees would 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 the Committees' meetings are available from the Committees or 
USDA. The Committees' meetings are open to the public and interested 
persons may express their views at these meetings. USDA would evaluate 
the Committees' recommendations and other available information to 
determine whether modification of the assessment rates is needed. 
Further rulemaking would be undertaken as necessary. The Committees' 
2003-2004 budgets and those for subsequent fiscal periods would be 
reviewed and, as appropriate, approved by USDA.

Initial 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 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 272 Washington apricot producers, 1,800 
Washington sweet cherry producers, and 215 Washington-Oregon fresh 
prune producers in the respective production areas. In addition, there 
are approximately 28 Washington apricot

[[Page 43977]]

handlers, 69 Washington sweet cherry handlers, and 10 Washington-Oregon 
fresh prune handlers subject to regulation under the respective 
marketing orders. 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 4,225 
tons (Washington Apricot Marketing Committee records), a three-year 
average producer price of $893 per ton as reported by National 
Agricultural Statistics Service (NASS), and 272 Washington apricot 
producers, the average annual producer revenue is approximately 
$13,871. In addition, based on Washington Apricot Marketing Committee 
records and 2002 f.o.b. prices ranging from $12.50 to $16.50 per 24-
pound container as reported by USDA's Market News Service (MNS), all of 
the Washington apricot handlers ship under $5,000,000 worth of 
apricots.
    Based on a three-year average fresh cherry production of 71,220 
tons (Washington Cherry Marketing Committee records), a three-year 
average producer price of $1,857 per ton as reported by NASS, and 1,800 
Washington cherry producers, the average annual producer revenue is 
approximately $73,475. In addition, based on Washington Cherry 
Marketing Committee records and an average 2002 f.o.b. price of $28.00 
per 20-pound container as reported by MNS, 81 percent of the Washington 
cherry handlers ship under $5,000,000 worth of cherries.
    Based on a three-year average fresh prune production of 4,893 tons 
(Washington-Oregon Fresh Prune Marketing Committee records), a three-
year average producer price of $210 per ton as reported by NASS, and 
215 Washington-Oregon prune producers, the average annual producer 
revenue is approximately $4,779. In addition, based on Washington-
Oregon Fresh Prune Marketing Committee records and 2002 f.o.b. prices 
ranging from $8.50 to $9.50 per 30-pound container as reported by MNS, 
all of the Washington-Oregon prune handlers ship under $5,000,000 worth 
of prunes.
    In view of the foregoing, the majority of Washington apricot, 
Washington sweet cherry, and Washington-Oregon fresh prune producers 
and handlers may be classified as small entities.
    This rule would increase the assessment rates established for the 
Committees from $2.50 to $3.00 per ton for apricots, from $0.75 to 
$1.00 per ton for cherries, and from $1.00 to $1.50 per ton for prunes. 
For the 2003-2004 fiscal period, the quantity of assessable fruit is 
estimated at 3,600 tons for apricots, 64,000 tons for cherries, and 
4,300 tons for prunes.
    All three Committees are managed from the same office, and as such, 
major expenses recommended by the Committees for the 2003-2004 year 
include salaries ($54,500), rent and maintenance ($7,200), compliance 
officer ($4,840), and Committee travel and compensation ($4,000). 
Budgeted expenses for these items in 2002-2003 were $49,100, $6,800, 
$5,120, and $6,100, respectively.
    The higher assessment rates are necessary to offset increases in 
salaries and rent and maintenance, and projected decreases in the 
production of each crop due to the adverse effect of cooler 
temperatures on the size and quality of the fruit. The additional 
assessment income would also permit the Washington Apricot Marketing 
Committee and the Washington-Oregon Fresh Prune Committee to meet 
budgeted expenses and maintain an acceptable financial reserve. For the 
Washington Cherry Marketing Committee, the increased assessment rate 
would allow it to use less reserve funds to meet its budgeted 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.
    Apricot shipments for 2003 are estimated at 3,600 tons, which 
should provide $10,800 in assessment income. Income derived from 
handler assessments would be adequate to cover budgeted expenses. Funds 
in the reserve ($8,360 as of March 31, 2003) would be kept within the 
maximum permitted by the order (approximately one fiscal period's 
operational expenses; Sec.  923.42).
    Sweet cherry shipments for 2003 are estimated at 64,000 tons, which 
should provide $64,000 in assessment income. Income derived from 
handler assessments, along with funds from the authorized reserve, 
would be adequate to cover budgeted expenses. Funds in the reserve 
($33,064 as of March 31, 2003) would be kept within the maximum 
permitted by the order (one fiscal period's operational expenses; Sec.  
923.42).
    Fresh prune shipments for 2003 are estimated at 4,300 tons, which 
should provide $6,450 in assessment income. Income derived from handler 
assessments, along with funds from the authorized reserve, would be 
adequate to cover budgeted expenses. Funds in the reserve ($5,407 as of 
March 31, 2003) would be kept within the maximum permitted by the order 
(approximately one fiscal period's operational expenses; Sec.  924.42).
    A review of historical information and preliminary information 
pertaining to the upcoming crop year indicates that the producer price 
for the 2003-2004 season could range between $783 and $1,050 per ton 
for Washington apricots, between $1,580 and $2,000 per ton for 
Washington sweet cherries, and between $166 and $252 per ton for 
Washington-Oregon fresh prunes. Therefore, the estimated assessment 
revenue for the 2003-2004 fiscal period as a percentage of total 
producer revenue could range between 0.29 and 0.38 percent for 
Washington apricots, between 0.05 and 0.06 percent for Washington sweet 
cherries, and between 0.60 and 0.90 for Washington-Oregon fresh prunes.
    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 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 21, May 
22, and June 3 meetings were public meetings and all entities, both 
large and small, were able to express views on the issues. 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 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.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this rule.
    A small business guide on complying with fruit, vegetable, and 
specialty crop

[[Page 43978]]

marketing agreements and orders may be viewed at: http://www.ama.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.
    A 15-day comment period is provided to allow interested persons to 
respond to this proposed rule. Fifteen days is deemed appropriate 
because: (1) The 2003-2004 fiscal period began on April 1, and the 
marketing orders require that the rate of assessment for each fiscal 
period apply to all assessable Washington apricots, Washington sweet 
cherries, and Washington-Oregon fresh prunes handled during such fiscal 
period; (2) the Committees need to have sufficient funds to pay for 
expenses which are incurred on a continuous basis; and (3) handlers are 
aware of this action which was unanimously recommended by each of the 
Committees at public meetings and are similar to other assessment rate 
actions issued in past years.

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.

    For the reasons set forth in the preamble, 7 CFR parts 922, 923, 
and 924 are proposed to be amended as follows:
    1. The authority citation for 7 CFR parts 922, 923, and 924 
continues to read as follows:

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

PART 922--APRICOTS GROWN IN DESIGNATED COUNTIES IN WASHINGTON

    2. Section 922.235 is revised to read as follows:


Sec.  922.235  Assessment rate.

    On or after April 1, 2003, an assessment rate of $3.00 per ton is 
established for the Washington Apricot Marketing Committee.

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

    3. Section 923.236 is revised to read as follows:


Sec.  923.236  Assessment rate.

    On or after April 1, 2003, an assessment rate of $1.00 per ton is 
established for the Washington Cherry Marketing Committee.

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

    4. Section 924.236 is revised to read as follows:


Sec.  924.236  Assessment rate.

    On or after April 1, 2003, an assessment rate of $1.50 per ton is 
established for the Washington-Oregon Fresh Prune Marketing Committee.

    Dated: July 22, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-18984 Filed 7-24-03; 8:45 am]
BILLING CODE 3410-02-P