[Federal Register: July 1, 2002 (Volume 67, Number 126)]
[Proposed Rules]               
[Page 44095-44097]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy02-26]                         





Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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[[Page 44095]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 922

[Docket No. FV02-922-1 PR]

 
Apricots Grown in Designated Counties in Washington; Increased 
Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule would increase the assessment rate established for 
the Washington Apricot Marketing Committee (Committee) for the 2002-03 
and subsequent fiscal periods from $2.00 to $2.50 per ton of apricots 
handled. The Committee locally administers the marketing order which 
regulates the handling of apricots grown in designated counties in 
Washington. Authorization to assess apricot handlers enables the 
Committee to incur expenses that are reasonable and necessary to 
administer the program. The fiscal period began 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 31, 2002.

ADDRESSES: Interested persons are invited to submit written comments 
concerning 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 e-mail: moab.docketclerk@usda.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: Teresa Hutchinson, Northwest Marketing 
Field Office, 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 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 
Avenue SW, STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-
2491, Fax: (202) 720-8938, or e-mail: Jay.Guerber@usda.gov.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement No. 132 and Marketing Order No. 922, both as amended (7 CFR 
part 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.''
    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, Washington 
apricot handlers are subject to assessments. Funds to administer the 
order are derived from such assessments. It is intended that the 
assessment rate as proposed herein would be applicable to all 
assessable apricots beginning on April 1, 2002, 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 increase the assessment rate established for the 
Committee for the 2002-03 and subsequent fiscal periods from $2.00 to 
$2.50 per ton of apricots handled.
    The Washington apricot marketing 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 growers 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 in a public meeting. 
Thus, all directly affected persons have an opportunity to participate 
and provide input.
    For the 1997-98 and subsequent fiscal periods, the 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 Committee met on May 15, 2002, and unanimously recommended 
2002-03 expenditures of $11,685 and an assessment rate of $2.50 per ton 
of apricots. In comparison, last year's budgeted expenditures were 
$11,230. The recommended rate is $.50 higher than the rate currently in 
effect. The increase is necessary to offset an increase in salaries and 
operating expenses, and an anticipated decrease in production due to 
the adverse effect of cooler temperatures on the size and quality of 
the 2002 apricot crop.

[[Page 44096]]

    The major expenditures recommended by the Committee for the 2002-03 
fiscal period include $5,892 for salaries, $1,000 for travel, $816 for 
rent and maintenance, and $540 for office equipment and repair. 
Budgeted expenses for these items in 2001-2002 were $5,731, $1,000, 
$792, and $264, respectively.
    Washington apricot shipments for 2002 are estimated at 3,650 tons 
which should provide $9,125 in assessment income. This income, along 
with approximately $2,540 from the Committee's authorized reserve, 
would be adequate to cover budgeted expenses. Funds in the reserve 
(currently $8,257) would be kept within the maximum permitted by the 
order. The order permits an operating reserve in an amount not to 
exceed approximately one fiscal period's operational expenses 
(Sec. 922.42).
    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 in effect 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 Committee 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 would evaluate Committee 
recommendations and other available information to determine whether 
modification of the assessment rate is needed. Further rulemaking would 
be undertaken as necessary. The Committee's 2002-03 budget and those 
for subsequent fiscal periods would 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 200 producers of apricots in the production 
area and approximately 30 handlers subject to regulation under the 
marketing order. Small agricultural producers are defined by the Small 
Business Administration (13 CFR 121.201) as those having annual 
receipts 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 4,406 
tons (Committee records), a three-year average of producer prices of 
$832 per ton reported by the National Agricultural Statistics Service, 
and 200 Washington apricot producers, the average annual producer 
revenue is approximately $18,329. In addition, based on Committee 
records and 2001 F.O.B. prices ranging from $14.50 to $22.50 per 24-
pound container reported by USDA's Market News Service, all of the 
Washington apricot handlers ship under $5,000,000 worth of apricots. In 
view of the foregoing, it can be concluded that all of the Washington 
apricot producers and handlers may be classified as small entities.
    This rule would increase the assessment rate established for the 
Committee and collected from handlers for the 2002-03 and subsequent 
fiscal periods from $2.00 to $2.50 per ton of apricots. The Committee 
unanimously recommended 2002-03 expenditures of $11,685 and an 
assessment rate of $2.50 per ton. The proposed assessment rate is $.50 
higher than the rate currently in effect. The quantity of assessable 
apricots for the 2002-03 fiscal period is estimated at 3,650 tons. 
Income derived from handler assessments (approximately $9,125), along 
with funds from the Committee's authorized reserve, would be adequate 
to cover budgeted expenses.
    The major expenditures recommended by the Committee for the 2002-03 
fiscal period include $5,892 for salaries, $1,000 for travel, $816 for 
rent and maintenance, and $540 for office equipment and repair. 
Budgeted expenses for these items in 2001-02 were $5,731, $1,000, $792, 
and $264, respectively.
    The assessment rate increase is necessary to offset increases in 
salaries and operating expenses, and an anticipated decrease in 
production due to the adverse effect of cooler temperatures on the size 
and quality of the 2002 apricot crop. As of March 31, 2002, the 
Committee's reserve was $8,257. At the rate of $2.00 per ton and an 
estimated 2002 apricot production of 3,650 tons, the projected reserve 
on March 31, 2003, would be $3,872. The Committee believed that this 
reserve would not be adequate should there be another reduced crop. At 
the rate of $2.50 per ton (assessment income of $9,125) and 
expenditures of $11,685, the Committee may draw up to $2,540 from its 
reserve. The projected reserve would be approximately $5,697 on March 
31, 2003, which the Committee determined to be acceptable.
    The Committee considered alternate levels of assessment but 
determined that increasing the assessment rate to $2.50 per ton would 
be adequate to maintain the reserve at an acceptable level. The 
Committee decided that an assessment rate between $2.00 per ton and 
$2.50 per ton would not maintain the reserve at an adequate level. 
Prior to arriving at this budget, the Committee considered information 
from various sources, such as the Committee's Finance and Executive 
Committees.
    A review of historical information and preliminary information 
pertaining to the upcoming fiscal period indicates that the producer 
price for the 2002-03 fiscal period could range between $800 and $850 
per ton of apricots. Therefore, the estimated assessment revenue for 
the 2002-03 as a percentage of total producer revenue could range 
between 0.31 and 0.29 percent.
    This action would increase 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 order. In addition, the Committee's meeting was widely 
publicized throughout the Washington apricot industry and all 
interested persons were invited to attend the meeting and participate 
in Committee deliberations on all issues. Like all Committee meetings, 
the May 15, 2002, meeting was a public meeting and all entities, both 
large and small, were able to express views on this issue. Finally, 
interested persons are invited to submit information on 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 production area 
commodity handlers. As with all Federal marketing order programs, 
reports and forms are periodically reviewed to reduce

[[Page 44097]]

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.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders 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 30-day comment period is provided to allow interested persons to 
respond to this proposed rule. Thirty days is deemed appropriate 
because: (1) The 2002-03 fiscal period began on April 1, 2002, and the 
marketing order requires that the rate of assessment for each fiscal 
period apply to all assessable apricots handled during such fiscal 
period; (2) the Committee needs to have sufficient funds to pay its 
expenses which are incurred on a continuous basis; and (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.

List of Subjects in 7 CFR Part 922

    Apricots, Marketing agreements, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR part 922 is 
proposed to be amended as follows:

PART 922--APRICOTS GROWN IN DESIGNATED COUNTIES IN WASHINGTON

    1. The authority citation for 7 CFR part 922 continues to read as 
follows:

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

    2. Section 922.235 is revised to read as follows:


Sec. 922.235  Assessment rate.

    On and after April 1, 2002, an assessment rate of $2.50 per ton is 
established for the Washington Apricot Marketing Committee.

    Dated: June 25, 2002.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 02-16478 Filed 6-28-02; 8:45 am]
BILLING CODE 3410-02-P