[Federal Register Volume 67, Number 180 (Tuesday, September 17, 2002)]
[Rules and Regulations]
[Pages 58509-58511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23550]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 67, No. 180 / Tuesday, September 17, 2002 /
Rules and Regulations
[[Page 58509]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 916
[Docket No. FV02-916-2 FIR]
Nectarines Grown in California; Decreased Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final
rule, without change, an interim final rule which decreased the
assessment rate established for the Nectarine Administrative Committee
(committee) for the 2002-03 and subsequent fiscal periods from $0.20 to
$0.19 per 25-pound container or container equivalent of nectarines
handled. The committee locally administers the marketing order which
regulates the handling of nectarines grown in California. Authorization
to assess nectarine handlers enables the committee to incur expenses
that are reasonable and necessary to administer the program. The fiscal
period runs from March 1 through the last day of February. The
assessment rate will remain in effect indefinitely unless modified,
suspended, or terminated.
EFFECTIVE DATE: October 17, 2002.
FOR FURTHER INFORMATION CONTACT: Toni Sasselli, Marketing Assistant,
California Marketing Field Office, Fruit and Vegetable Programs, AMS,
USDA, 2202 Monterey Street, Suite 102B, Fresno, California 93721, (559)
487-5901, Fax: (559) 487-5906; 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: [email protected].
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 124 and Order No. 916, both as amended (7 CFR part 916),
regulating the handling of nectarines grown in California, hereinafter
referred to as the ``order.'' The marketing agreement and order are
effective under the Agricultural Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.''
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, California
nectarine handlers 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
nectarines beginning on March 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 the 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 continues in effect the decreased assessment rate
established for the committee for the 2002-03 and subsequent fiscal
periods. The rate was decreased from $0.20 to $0.19 per 25-pound
container or container equivalent of nectarines.
The nectarine 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 producers of California nectarines. 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 2001-02 fiscal period, 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 1, 2002, and unanimously recommended 2002-
03 expenditures of $4,671,342 and an assessment rate of $0.19 per 25-
pound container or container equivalent of nectarines. In comparison,
last year's budgeted expenditures were $4,338,744. The recommended rate
is $0.01 lower than the previous rate.
The decrease was recommended because the crop is expected to be
larger than originally estimated. In early spring, the crop was
estimated to be 22 million containers or container equivalents of
nectarines. The crop is now estimated to be more than 23 million
containers or container equivalents. Assessment income and funds from
the committee's operating reserve will be adequate to cover approved
committee expenses in 2002-03.
The major expenditures recommended by the committee for 2002-03
include $505,000 for salaries and benefits, $309,039 for general
expenses, $1,050,000 for inspection, $138,018 for research, and
$2,574,160
[[Page 58510]]
for domestic and international promotion.
Budgeted expenses for these items in 2001-02 were $423,176 for
salaries and benefits, $157,821 for general expenses, $1,000,000 for
inspection, $169,393 for research, and $2,429,000 for domestic and
international promotion.
To determine the applicable 2002-03 assessment rate, the committee
considered the total expenses of $4,671,342, and the assessable
nectarines estimated at 23,248,000 25-pound containers or container
equivalents. At the $0.19 rate, assessment income for 2002-03 will be
$4,417,120. The committee began 2002-03 with $684,368 in operating
reserves and expects to end the fiscal period with $350,000. Section
916.42 authorizes a reserve equal to approximately one fiscal period's
expenses. Funds from the committee's operating reserve will be kept
within the maximum permitted.
The assessment rate 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 annually to recommend a
budget of expenses and to 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 will evaluate committee 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 2002-03 budget and those for subsequent
fiscal periods will 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 300 California nectarine handlers subject
to regulation under the order covering nectarines grown in California,
and about 1,800 producers of nectarines grown in California. Small
agricultural service firms, which include handlers, are defined by the
Small Business Administration (13 CFR 121.201) as those whose annual
receipts are less than $5,000,000. Small agricultural producers are
defined by the Small Business Administration as those having annual
receipts of less than $750,000. A majority of these handlers and
producers may be classified as small entities.
In the 2001 season, the average handler price received was $9.00
per container or container equivalent of nectarines. A handler would
have to ship at least 555,556 containers or container equivalents of
nectarines to have annual receipts of $5,000,000. Based on shipment
data maintained by the committee's staff, it is estimated that small
handlers of nectarines represent approximately 94 percent of the
handlers within the industry.
In the 2001 season, the average producer price received was $5.50
per container or container equivalent of nectarines. A producer would
have to produce at least 136,364 containers or container equivalents of
nectarines to have annual receipts of $750,000. Based on data
maintained by the committee's staff, it is estimated that small
producers represent approximately 78 percent of the nectarine producers
within the industry.
This rule continues in effect the decreased assessment rate
established for the committee and collected from handlers for the 2002-
03 and subsequent fiscal periods. The assessment rate was decreased
from $0.20 to $0.19 per 25-pound container or container equivalent of
nectarines. The committee unanimously recommended 2002-03 expenditures
of $4,671,342 and an assessment rate of $0.19 per 25-pound container or
container equivalent of nectarines. The recommended assessment rate is
$0.01 lower than the previous rate. The quantity of assessable
nectarines for the 2002-03 fiscal year is estimated at 23,248,000 25-
pound containers or container equivalents. Thus, the $0.19 rate should
provide $4,417,120 in assessment income. Income derived from handler
assessments, along with other income and funds from the committee's
authorized reserve will be adequate to cover budgeted expenses.
The major expenditures recommended by the committee for the 2002-03
year include $505,000 for salaries and benefits, $309,039 for general
expenses, $1,050,000 for inspection, $138,018 for research, and
$2,574,160 for domestic and international promotion.
Budgeted expenses for these items in 2001-02 were $423,176 for
salaries and benefits, $157,821 for general expenses, $1,000,00 for
inspection, $169,393 for research, $2,429,000 for domestic and
international promotion.
The decrease was recommended because the crop is expected to be
larger than originally estimated. The crop estimate in early spring was
22 million containers or container equivalents of nectarines. The crop
is now estimated to be more than 23 million containers or container
equivalents. The committee reviewed and unanimously recommended 2002-03
expenditures of $4,671,342.
Prior to arriving at this budget, the committee considered
information and recommendations from various sources, including, but
not limited to: the Management Services Committee, the Research
Subcommittee, the International Programs Subcommittee, the Grade and
Size Subcommittee, the Domestic Promotion Subcommittee, and the Grower
Relations Subcommittee. The assessment rate of $0.19 per 25-pound
container or container equivalent is expected to result in an operating
reserve of $350,000, which is less than the committee generally
recommends, but considered adequate to meet the committee's financial
needs in the early part of the 2003 season.
A review of historical and preliminary information pertaining to
the upcoming fiscal period indicates that the grower price for the
2002-03 season could range between $5.50 and $6.00 per 25-pound
container or container equivalent of nectarines. Therefore, the
estimated assessment revenue for the 2002-03 fiscal period as a
percentage of total grower revenue could range between 3.17 and 3.45
percent.
This action continues in effect the decreased 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 California nectarine industry and
all interested persons were invited to attend the meeting and
[[Page 58511]]
participate in committee deliberations on all issues. Like all
committee meetings, the May 1, 2002, meeting was a public meeting and
all entities, both large and small, were able to express views on this
issue. This action imposes no additional reporting or recordkeeping
requirements on either small or large 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.
An interim final rule concerning this action was published in the
Federal Register on June 25, 2002 (67 FR 42707). Copies of that rule
were made available to all nectarine growers. Finally, the interim
final rule was made available through the Internet by the Office of the
Federal Register and USDA. A 60-day comment period was provided for
interested persons to respond to the interim final rule. The comment
period ended on August 26, 2002, and 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.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.
List of Subjects in 7 CFR Part 916
Nectarines, Marketing agreements, Reporting and recordkeeping
requirements.
PART 916--NECTARINES GROWN IN CALIFORNIA
Accordingly, the interim final rule amending 7 CFR part 916 which
was published at 67 FR 42707 on June 25, 2002, is adopted as a final
rule without change.
Dated: September 11, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-23550 Filed 9-16-02; 8:45 am]
BILLING CODE 3410-02-P