[Federal Register Volume 70, Number 180 (Monday, September 19, 2005)]
[Rules and Regulations]
[Pages 54833-54835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-18584]



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  Federal Register / Vol. 70, No. 180 / Monday, September 19, 2005 / 
Rules and Regulations  

[[Page 54833]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 922

[Docket No. FV05-922-1 FIR]


Apricots Grown in Designated Counties in Washington; Decreased 
Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim final rule which decreased the 
assessment rate established for the Washington Apricot Marketing 
Committee (Committee) for the 2005-2006 and subsequent fiscal periods 
from $2.50 per ton to $1.00 per ton of fresh apricots handled. The 
Committee locally administers the marketing order which regulates the 
handling of apricots grown in designated counties in Washington. 
Assessments upon apricot handlers are used by the Committee to fund 
reasonable and necessary expenses of 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: October 19, 2005.

FOR FURTHER INFORMATION CONTACT: Robert J. Curry, Northwest Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA, Portland, Oregon; 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; or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement and Order No. 922 (7 CFR 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.''
    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, handlers in 
designated counties in Washington 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 Washington apricots beginning April 1, 2005, 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 continues in effect the action that decreased the 
assessment rate established for the Committee for the 2005-2006 and 
subsequent fiscal periods from $2.50 per ton to $1.00 per ton of fresh 
Washington apricots handled under the order.
    The 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 producers 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 at a public meeting. Thus, all directly 
affected persons have an opportunity to participate and provide input.
    For the 2004-2005 and subsequent fiscal periods, the Committee 
recommended, and USDA approved, an assessment rate of $2.50 per ton of 
apricots handled. This assessment rate 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 10, 2005, and unanimously recommended 
2005-2006 expenditures of $10,594--the same as approved for the 2004-
2005 fiscal period--and a decreased assessment rate of $1.00 per ton of 
apricots handled. The $1.00 assessment rate is $1.50 lower than the 
rate approved for the 2004-2005 and subsequent fiscal periods. Based on 
the Committee's 2005-2006 crop estimate of 3,800 tons, assessment 
income should approximate $3,800. The Committee recommended the lower 
assessment rate after taking into account the potential economic impact 
the anticipated crop shortfall might have on the apricot industry, and 
also to reduce the Committee's authorized monetary reserve to a level 
commensurate with program requirements. The anticipated $3,800 
assessment revenue, when combined with $6,794 from the monetary 
reserve, is adequate to cover budgeted expenses for the 2005-2006 
fiscal period. By drawing funds from the

[[Page 54834]]

reserve ($13,962 on April 1, 2005), the Committee estimates that by the 
end of the current fiscal period the reserve will approximate $7,168. 
This amount is within the maximum permitted by the order of 
approximately one fiscal period's operational expenses (Sec.  922.42).
    The major expenditures recommended by the Committee for the 2005-
2006 fiscal period include staff salaries ($5,892), rent and 
maintenance ($864), compliance ($100), and Committee travel and 
compensation ($1,000). These budgeted expenses are the same as those 
approved for the 2004-2005 fiscal period.
    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 Committees or 
other available information.
    Although this assessment rate is effective 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 the Committee's meetings are available from the Committee or 
USDA. The Committee's meetings are open to the public and interested 
persons may express their views at these meetings. USDA will evaluate 
the Committee's 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 
2005-2006 budget has been reviewed and approved by USDA, which will 
also review, and as appropriate, approve, budgets for subsequent fiscal 
periods.

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 apricot producers within the regulated 
production area and approximately 28 regulated handlers. 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 $6,000,000.
    For the 2004 apricot season, Washington Agricultural Statistics 
Service reported that the total 6,400 ton apricot utilization sold for 
an average of $973 per ton. Based on the number of producers in the 
production area (272), the average annual producer revenue from the 
sale of apricots in 2004 can thus be estimated at approximately 
$22,894. In addition, based on information from the Committee and 
USDA's Market News Service, 2004 f.o.b. prices ranged from $14.50 to 
$18.50 per 24-pound loose-pack container, and from $18.00 to $24.00 for 
2-layer tray pack containers. With about half of the 2004 season fresh 
apricot pack-out of 4,911 tons in loose-pack containers and about half 
in tray-pack containers (weighing an average of about 20 pounds each), 
each of the industry's 28 handlers would have averaged less than 
$225,000 from the sale of fresh apricots. Thus, the majority of 
producers and handlers of Washington apricots may be classified as 
small entities.
    This rule continues in effect the action that decreased the 
assessment rate established for the Committee and collected from 
handlers for the 2005-2006 and subsequent fiscal periods from $2.50 to 
$1.00 per ton of fresh apricots handled. The Committee unanimously 
recommended 2005-2006 expenditures of $10,594. With the 2005-2006 crop 
estimate of 3,800 tons, the Committee anticipates assessment income of 
$3,800, which, when combined with $6,794 from the monetary reserve, 
will be adequate to cover budgeted expenses for the 2005-2006 fiscal 
period. At this assessment rate and expense level, the Committee's 
reserve fund will approximate $7,168 by March 30, 2006. This amount is 
within the maximum permitted by the order of approximately one fiscal 
period's operational expenses (Sec.  922.42).
    The Committee 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.
    A review of historical information and preliminary information 
pertaining to the upcoming crop year indicates that the producer price 
for the 2005-2006 season could range from about $973 per ton to about 
$1,100 per ton for Washington apricots. Therefore, the estimated 
assessment revenue for the 2005-2006 fiscal period as a percentage of 
total producer revenue could range between 0.09 and 0.10 percent.
    This action continues in effect the action that decreased the 
assessment obligation imposed on handlers. Assessments are applied 
uniformly on all handlers, and some of the costs may be passed on to 
producers. However, decreasing the assessment rate reduces the burden 
on handlers, and may reduce the burden on producers. In addition, the 
Committee's meeting was widely publicized throughout the Washington 
apricot industry and all interested persons were invited to attend and 
participate in the Committee's deliberations on all issues. Like all 
marketing order committee meetings, the May 10, 2005, meeting was a 
public meeting and all entities, both large and small, were able to 
express views on the issues. Finally, interested persons were invited 
to submit information on the regulatory and informational impacts of 
this action on small businesses.
    This action 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.
    An interim final rule concerning this action was published in the 
Federal Register on June 27, 2005, (70 FR 36812). Copies of that 
publication were mailed or distributed via facsimile to all Committee 
members and made available to handlers at the office of the Committee. 
The interim final rule was also made available through the Internet by 
the Office of the Federal Register and USDA. A 60-day comment period 
was provided for interested persons to respond to the interim final 
rule. No comments were received during the comment period that ended on 
August 26, 2005.
    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.

[[Page 54835]]

    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.

List of Subjects in 7 CFR Part 922

    Apricots, Marketing agreements, Reporting and recordkeeping 
requirements.

PART 922--APRICOTS GROWN IN DESIGNATED COUNTIES IN WASHINGTON

0
Accordingly, the interim final rule amending 7 CFR part 922 which was 
published at 70 FR 36812 on June 27, 2005, is adopted as a final rule 
without change.

    Dated: September 14, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-18584 Filed 9-16-05; 8:45 am]
BILLING CODE 3410-02-P