[Federal Register Volume 72, Number 118 (Wednesday, June 20, 2007)]
[Proposed Rules]
[Pages 33922-33924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11820]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 923

[Docket No. AMS-FV-07-0073; FV07-923-1 PR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule would decrease the assessment rate established for 
the Washington Cherry Marketing Committee (Committee) for the 2007-2008 
and subsequent fiscal periods from $0.50 to $0.40 per ton for 
Washington sweet cherries handled. The Committee is responsible for 
local administration of the marketing order regulating the handling of 
sweet cherries grown in designated counties in Washington. Assessments 
upon handlers of sweet cherries are used by the Committee to fund 
reasonable and necessary expenses of the program. The fiscal period for 
the marketing order begins April 1 and ends March 31. The assessment 
rate would remain in effect indefinitely unless modified, suspended or 
terminated.

DATES: Comments must be received by July 2, 2007.

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; 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.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Robert J. Curry or Gary D. Olson, 
Northwest Marketing Field Office, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW Third Avenue,

[[Page 33923]]

Suite 385, Portland, OR 97204; Telephone: (503) 326-2724; Fax: (503) 
326-7440; or e-mail: [email protected] or [email protected].
    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 part 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, 2007, 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 decrease the assessment rate established for the 
Committee for the 2007-2008 and subsequent fiscal periods from $0.50 to 
$0.40 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 2006-2007 and subsequent fiscal periods, the Committee 
recommended, and the USDA approved, an assessment rate of $0.50 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 2, 2007, and unanimously recommended 2007-
2008 expenditures of $71,600. In comparison, last year's budgeted 
expenditures were $49,800. In addition, the Committee recommended that 
the current $0.50 per ton assessment rate be decreased by $0.10 to 
$0.40 per ton of sweet cherries handled. The Committee recommended the 
lower assessment rate for the purpose of decreasing the monetary 
reserve, which is approximately $83,792. Funds in the reserve must be 
kept within the maximum permitted by the order of approximately one 
fiscal period's operational expenses (7 CFR 923.42).
    The major expenditures recommended by the Committee for the 2007-
2008 fiscal period include $22,500 for administration and data 
management fees, $36,500 for Committee expenses such as travel, 
accounting and compliance, and $7,600 for office expenses--including 
bonds, insurance, telephone, office equipment and supplies. Budgeted 
expenses for these items in 2006-2007 were $25,000, $16,200, and 
$7,100, respectively. Higher expenses are anticipated this season due 
to a producer survey and other regulatory research expenses requested 
by the Committee, as well as the associated increase in staff costs.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of Washington sweet 
cherries. Applying the $0.40 per ton rate of assessment to the 
Committee's 120,000 ton crop estimate should provide $48,000 in 
assessment income. Income derived from handler assessments, along with 
interest income and approximately $23,600 from the Committee's reserve, 
would be adequate to cover budgeted expenses. While there is currently 
about $83,792 in the monetary reserve, the Committee estimates that 
with the adoption of this proposed rule this fund will have 
approximately $60,267 in it on March 31, 2008.
    The proposed assessment rate would 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 would be effective for an indefinite 
period, the Committee 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 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 
2007-2008 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

[[Page 33924]]

small entities acting on their own behalf.
    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.
    The Washington Agricultural Statistics Service has prepared a 
preliminary report for the 2006 shipping season showing that the sweet 
cherry fresh market utilization of 136,000 tons sold for an average of 
$2,000 per ton. Based on the number of producers in the production area 
(1,500), the average producer revenue from the sale of sweet cherries 
in 2006 can therefore be estimated at approximately $181,333 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 would decrease the assessment rate established for the 
Committee and collected from handlers for the 2007-2008 and subsequent 
fiscal periods from $0.50 to $0.40 per ton for sweet cherries. The 
Committee also unanimously recommended 2007-2008 expenditures of 
$71,600. With the 2007-2008 Washington sweet cherry crop estimate of 
120,000 tons, the Committee anticipates assessment income of $48,000. 
The Committee recommended the assessment rate decrease for the purpose 
of decreasing the monetary reserve, which is approximately $83,792. 
With this proposed assessment rate and budget, the Committee may need 
to draw up to $23,600 from its monetary reserve, thus helping to 
decrease the reserve to a level that is less than approximately one 
fiscal period's operating expenses, the maximum permitted by the order.
    The major expenditures recommended by the Committee for the 2007-
2008 fiscal period include $22,500 for administration and data 
management fees, $36,500 for Committee expenses, and $7,600 for office 
expenses. Budgeted expenses for these items in 2006-2007 were $25,000, 
$16,200, and $7,100, respectively.
    The Committee discussed alternatives to this rule. Leaving the 
assessment rate at the current $0.50 per ton was initially considered, 
but not recommended because of the Committee's desire to decrease the 
level of the monetary reserve so that it is not more than approximately 
one fiscal period's operational expenses.
    A review of historical information and preliminary information 
pertaining to the upcoming crop year indicates that the producer price 
for the 2007-2008 season could average about $2,000 per ton for fresh 
Washington sweet cherries. Therefore, the estimated assessment revenue 
for the 2007-2008 fiscal period as a percentage of total producer 
revenue is 0.02 percent for Washington sweet cherries.
    This action would decrease 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 2, 
2007, 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 comments on this proposed rule, including 
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 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. Furthermore, 
USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this rule.
    The AMS is committed to complying with the E-Government Act, to 
promote the use of the Internet and other information technologies to 
provide increased opportunities for citizen access to Government 
information and services, and for other purposes.
    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.
    A 10-day comment period is provided to allow interested persons to 
respond to this proposed rule. Ten days is deemed appropriate because: 
(1) This rule would decrease the assessment rate, and thus also would 
decrease the burden on handlers; (2) the 2007-2008 fiscal period began 
on April 1, 2007, and the order requires that the rate assessment for 
each fiscal period apply to all assessable sweet cherries handled 
during such fiscal period; (3) the Washington sweet cherry harvest and 
shipping season is expected to begin as early as the last week of May; 
(4) the Committee needs to have sufficient funds to pay its expenses 
which are incurred on a continuous basis; and (5) handlers are aware of 
this action which was 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 923

    Cherries, Marketing agreements, Reporting and recordkeeping 
requirements.

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

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

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

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

    2. Section 923.236 is revised to read as follows:


Sec.  923.236  Assessment rate.

    On and after April 1, 2007, an assessment rate of $0.40 per ton is 
established for the Washington Cherry Marketing Committee.

    Dated: June 13, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
 [FR Doc. E7-11820 Filed 6-19-07; 8:45 am]
BILLING CODE 3410-02-P