[Federal Register Volume 71, Number 117 (Monday, June 19, 2006)]
[Rules and Regulations]
[Pages 35143-35145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-9598]



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  Federal Register / Vol. 71, No. 117 / Monday, June 19, 2006 / Rules 
and Regulations  

[[Page 35143]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 923

[Docket No. FV06-923-2 IFR]


Sweet Cherries Grown in Designated Counties in Washington; 
Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This rule decreases the assessment rate established for the 
Washington Cherry Marketing Committee (Committee) for the 2006-2007 and 
subsequent fiscal periods. The Committee is responsible for local 
administration of the marketing order regulating the handling of sweet 
cherries grown in designated counties in Washington. Specifically, this 
rule decreases the assessment rate from $0.75 to $0.50 per ton for 
Washington sweet cherries handled under the marketing order. 
Authorization to assess cherry handlers enables the Committee to incur 
expenses that are reasonable and necessary to administer the program. 
The fiscal period for the marketing order begins April 1 and ends March 
31. The assessment rate will remain in effect indefinitely unless 
modified, suspended or terminated.

DATES: Effective June 20, 2006. Comments received by August 18, 2006, 
will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
regarding 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; E-mail: [email protected]; or 
Internet: http://www.regulations.gov. 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: Robert J. Curry, 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.
    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 Order 
No. 923 (7 CFR 923), as amended, regulating the handling of sweet 
cherries 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, cherry 
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 sweet cherries 
beginning April 1, 2006, 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 decreases the assessment rate established for the 
Committee for the 2006-2007 and subsequent fiscal periods from $0.75 to 
$0.50 per ton for Washington sweet cherries 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 sweet cherries in designated 
counties in Washington. 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 the USDA approved, an assessment rate of $0.75 per ton 
of sweet cherries handled. This rate continues 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 3, 2006, and unanimously recommended 2006-
2007 expenditures of $49,800 and a decreased assessment rate of $0.50 
per ton of cherries. In comparison, last year's budgeted expenditures 
were $72,297. The assessment rate of $0.50 is $0.25 lower than the rate 
previously in

[[Page 35144]]

effect. Due to an anticipated decrease in operating expenses this year, 
the Committee recommended the assessment rate decrease to maintain the 
level of income near the level of expenses.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of Washington sweet 
cherries. Applying the $0.50 per ton rate of assessment to the 
Committee's 110,000 ton crop estimate should provide $55,000 in 
assessment income. Thus, income derived from handler assessments will 
be adequate to cover the recommended 2006-2007 budget of $49,800.
    The Committee's budget of expenditures for the 2006-2007 period 
reflect a significant reduction in overall cost from previous years. 
This occurred, in part, because the Committee hired an outside 
management services agency to more efficiently handle the Committee's 
administrative matters. Major expenses recommended by the Committee for 
the 2006-2007 year include administration and data management fees 
totaling $25,000, Committee expenses of $16,200 (which includes travel, 
accounting and compliance), and office expenses--including bonds, 
insurance, telephone, office equipment and supplies--of $7,100.
    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 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 
2006-2007 budget and those for subsequent fiscal periods will 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 1,500 cherry producers within the regulated 
production area and approximately 53 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 $6,500,000.
    For the 2005 shipping season, the Washington Agricultural 
Statistics Service has prepared a preliminary report showing that the 
total 113,000 ton fresh market sweet cherry utilization sold for an 
average of $2,830 per ton. Based on the number of producers in the 
production area, the average producer revenue from the sale of sweet 
cherries in 2005 is estimated at approximately $213,200 per year. In 
addition, the Committee reports that most of the industry's 53 handlers 
would have each averaged gross receipts of less than $6,500,000 from 
the sale of fresh sweet cherries last season. Thus, the majority of 
producers and handlers of Washington sweet cherries may be classified 
as small entities.
    This rule decreases the assessment rate established for the 
Committee and collected from handlers for the 2006-2007 and subsequent 
fiscal periods from $0.75 to $0.50 per ton for sweet cherries. The 
Committee unanimously recommended 2006-2007 expenditures of $49,800. 
With the 2006-2007 crop estimate of 110,000 tons for sweet cherries, 
the Committee anticipates assessment income of $55,000.
    The Committee discussed alternatives to this rule, including 
alternative expenditure levels. Lower assessment rates were considered, 
but not recommended because of the uncertainty of the crop size 
estimate.
    A review of historical information and preliminary information 
pertaining to the upcoming crop year indicates that the producer price 
for the 2006-2007 season could average about $2,830 per ton for fresh 
Washington sweet cherries. Therefore, the estimated assessment revenue 
for the 2006-2007 fiscal period as a percentage of total producer 
revenue is 0.018 percent for Washington sweet cherries.
    This action decreases 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 sweet cherry industry and all interested 
persons were invited to attend and participate in Committee 
deliberations on all issues. Like all Committee meetings, the May 3, 
2006, meeting was a public meeting 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 action imposes no additional reporting or recordkeeping 
requirements on either small or large Washington sweet cherry 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.
    AMS is committed to compliance with the Government Paperwork 
Elimination Act (GPEA), which requires Government agencies in general 
to provide the public the option of submitting information or 
transacting business electronically to the maximum extent possible.
    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 marketing agreements and order 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 upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to

[[Page 35145]]

give preliminary notice prior to putting this rule into effect, and 
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 2006-2007 fiscal period began on April 1, 2006, and the order 
requires that the rate of assessment apply to all assessable Washington 
sweet cherries handled during such fiscal period; (2) this action 
decreases the assessment rate for the 2006-2007 and subsequent fiscal 
periods; (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; and (4) this 
interim final rule provides a 60-day comment period, and all comments 
timely received will be considered prior to finalization of this rule.

List of Subjects in 7 CFR Part 923

    Cherries, Marketing agreements, Reporting and recordkeeping 
requirements.


0
For the reasons set forth in the preamble, 7 CFR part 923 is amended as 
follows:

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

0
1. The authority citation for 7 CFR part 923 continues to read as 
follows:

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


0
2. Section 923.236 is revised to read as follows:


Sec.  923.236  Assessment rate.

    On or after April 1, 2006, an assessment rate of $0.50 per ton is 
established for the Washington Cherry Marketing Committee.

    Dated: June 12, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E6-9598 Filed 6-16-06; 8:45 am]
BILLING CODE 3410-02-P