[Federal Register Volume 68, Number 170 (Wednesday, September 3, 2003)]
[Rules and Regulations]
[Pages 52329-52332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22415]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 922, 923, and 924

[Docket No. FV03-922-1 FR]


Increased Assessment Rates for Specified Marketing Orders

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule increases 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 increases 
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 
will remain in effect indefinitely unless modified, suspended, or 
terminated.

EFFECTIVE DATE: September 4, 2003.

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 ``orders.'' 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 fixed herein will 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 increases 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

[[Page 52330]]

local areas 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 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 
should be adequate to cover budgeted expenses and allow the Washington 
Apricot Marketing Committee to maintain an acceptable financial 
reserve. Funds in the reserve ($8,360 as of March 31, 2003), will 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 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, should be 
adequate to cover budgeted expenses. Funds in the reserve ($33,064 as 
of March 31, 2003), will 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, should be adequate to cover budgeted expenses. 
Funds in the reserve ($5,407 as of March 31, 2003), will 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 manager and clerical 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 assessment rates established in this rule will 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 will be in effect 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 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 will evaluate 
the Committees' recommendations and other available information to 
determine whether modification of the assessment rates is needed. 
Further rulemaking will be undertaken as necessary. The Committees' 
2003-2004 budgets and those for subsequent fiscal periods would 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 272 Washington apricot producers, 1,800 
Washington sweet cherry producers,

[[Page 52331]]

and 215 Washington-Oregon fresh prune producers in the respective 
production areas. In addition, there are approximately 28 Washington 
apricot 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 increases 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 manager and clerical 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 will 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 
will 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 should be adequate to cover budgeted expenses. 
Funds in the reserve ($8,360 as of March 1, 2003) will 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, 
should be adequate to cover budgeted expenses. Funds in the reserve 
($33,064 as of March 31, 2003) will 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, should be 
adequate to cover budgeted expenses. Funds in the reserve ($5,407 as of 
March 31, 2003) will 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 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 
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, 2003, meetings were public meetings and all entities, 
both large and small, were able to express views on the issues.
    This rule imposes 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.

[[Page 52332]]

    A proposed rule concerning this action was published in the Federal 
Register on July 25, 2003 (68 FR 43975). Copies of the proposed rule 
were also mailed or sent via facsimile to all members of the 
Committees. Finally, the proposal was made available through the 
Internet by the Office of the Federal Register and USDA. A 15-day 
comment period ending August 11, 2003, 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 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.
    After consideration of all relevant material presented, including 
the information and recommendation 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.
    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 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. Further, handlers are 
aware of this rule which was unanimously recommended by each of the 
Committees at public meetings. Also, a 15-day comment period was 
provided for in the proposed rule and no comments were received.

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.

0
For the reasons set forth in the preamble, 7 CFR parts 922, 923, and 
924 are amended as follows:
0
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

0
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

0
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

0
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: August 28, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-22415 Filed 9-2-03; 8:45 am]
BILLING CODE 3410-02-P