[Federal Register: September 3, 2003 (Volume 68, Number 170)]
[Rules and Regulations]
[Page 52329-52332]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03se03-2]
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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.
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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