[Federal Register Volume 72, Number 152 (Wednesday, August 8, 2007)]
[Rules and Regulations]
[Pages 44367-44369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15397]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 923

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


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule decreases 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. 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 remains in 
effect indefinitely unless modified, suspended or terminated.

EFFECTIVE DATE: August 9, 2007.

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, 
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.,

[[Page 44368]]

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 decreases 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 USDA approved, an assessment rate of $0.50 per ton of 
sweet cherries handled. This 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 2, 2007, and unanimously recommended 2007-
2008 expenditures of $71,600. In comparison, last year's budgeted 
expenditures were $49,800. The Committee also recommended that the 
$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, 
should be adequate to cover budgeted expenses. While the monetary 
reserve held about $83,792 at the close of the 2006-2007 fiscal period, 
the Committee estimates that it will close on March 31, 2008, with 
approximately $60,267, given the recommended budget of expenses and the 
income expected from the $0.40 assessment rate.
    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 will be 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. Committee 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 has been reviewed and approved by USDA as will those 
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.
    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

[[Page 44369]]

agricultural service firms are defined as those whose annual receipts 
are less than $6,500,000.
    The Washington Agricultural Statistics Service 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 decreases 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 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 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 2, 
2007, meeting was a public meeting 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 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 proposed rule regarding this action was published in the Federal 
Register on June 20, 2007 (72 FR 33922). Copies of the proposed rule 
were made available to the industry by the Committee and through the 
Internet by the USDA and the Office of the Federal Register. A 10-day 
comment period ending July 2, 2007, 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 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 that good 
cause exists for not postponing the effective date of this rule until 
30 days after publication in the Federal Register because: (1) This 
rule decreases the assessment rate, and thus also decreases the burden 
on handlers; (2) handlers are currently receiving 2007-2008 sweet 
cherries from producers; (3) the 2007-2008 fiscal period began on April 
1, 2007, and the assessment rate applies to all assessable sweet 
cherries handled during this and subsequent fiscal periods; (4) 
handlers are aware of this action which was recommended by the 
Committee at a public meeting; and (5) a 10-day comment period was 
provided for in the proposed 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 and after April 1, 2007, an assessment rate of $0.40 per ton is 
established for the Washington Cherry Marketing Committee.

    Dated: August 2, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E7-15397 Filed 8-7-07; 8:45 am]
BILLING CODE 3410-02-P