Hazelnuts Grown in Oregon and Washington; Assessment Rate

DEPARTMENT OF AGRICULTURE

7 CFR Part 982

[Docket No. FV96-982-1 FIR]

Hazelnuts Grown in Oregon and Washington; Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (Department) is adopting as a

final rule, without change, the provisions of an interim final rule

that established an assessment rate for the Hazelnut Marketing Board

under Marketing Order No. 982 for the 1996-97 and subsequent marketing

years. The Board is responsible for local administration of the

marketing order which regulates the handling of hazelnuts grown in

Oregon and Washington. Authorization to assess hazelnut handlers

enables the Board to incur expenses that are reasonable and necessary

to administer the program.

EFFECTIVE DATE: Effective on July 1, 1996.

FOR FURTHER INFORMATION CONTACT: Martha Sue Clark, Program Assistant,

Marketing Order Administration Branch, Fruit and Vegetable Division,

AMS, USDA, P.O. Box 96456, room 2523-S, Washington, DC 20090-6456,

telephone 202-720-9918, FAX 202-720-5698, or Teresa L. Hutchinson,

Marketing Specialist, Northwest Marketing Field Office, Fruit and

Vegetable Division, AMS, USDA, Green-Wyatt Federal Building, room 369,

1220 Southwest Third Avenue, Portland, OR 97204, telephone 503-326-

2724, FAX 503-326-7440. Small businesses may request information on

compliance with this regulation by contacting: Jay Guerber, Marketing

Order Administration Branch, Fruit and Vegetable Division, AMS, USDA,

P.O. Box 96456, room 2523-S, Washington, DC 20090-6456, telephone 202-

720-2491, FAX 202-720-5698.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement and Order No. 982, both as amended (7

[[Page 42992]]

CFR part 982; April 22, 1996, 61 FR 17556), regulating the handling of

hazelnuts grown in Oregon and Washington. 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 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, Oregon-

Washington hazelnut 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 hazelnuts beginning July 1, 1996, and continuing 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 the Secretary 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 Secretary 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 the

Secretary's ruling on the petition, provided an action is filed not

later than 20 days after the date of the entry of the ruling.

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.

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 1,000 producers of Oregon and Washington

hazelnuts in the production area and approximately 25 handlers subject

to regulation under the marketing order. Small agricultural producers

have been defined by the Small Business Administration (13 CFR 121.601)

as those having annual receipts of less than $500,000, and small

agricultural service firms are defined as those whose annual receipts

are less than $5,000,000. The majority of Oregon and Washington

hazelnut producers and handlers may be classified as small entities.

The Oregon and Washington hazelnut marketing order provides

authority for the Board, with the approval of the Department, to

formulate an annual budget of expenses and collect assessments from

handlers to administer the program. The members of the Board are

producers and handlers of hazelnuts. They are familiar with the Board'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 recommended by a mail vote and

discussed and reconfirmed in a public meeting. Thus, all directly

affected persons have an opportunity to participate and provide input.

The Board, in a mail vote, unanimously recommended 1996-97

expenditures of $558,974 and an assessment rate of $0.007 per pound of

hazelnuts. In comparison, last year's budgeted expenditures were

$483,685. The assessment rate of $0.007 is the same as last year's

established rate. Major expenditures recommended by the Board for the

1996-97 year include $50,020 for personal services (salaries), $5,640

for rent, $5,000 for auditing, $5,000 for compliance, $15,000 for a

crop survey, $275,000 for promotion, and $182,364 for the emergency

fund. Budgeted expenses for these items in 1995-96 were $50,735,

$5,650, $3,500, $5,000, $11,000, $250,000, and $140,000, respectively.

The Board will consider using emergency funds for authorized activities

when it is reasonably certain that its estimate of assessable hazelnuts

will be reached. It will not be able to make this determination until

December 1996, the month in which the hazelnut harvest and deliveries

to handlers usually are completed. Hence, any decision on whether or

not to undertake additional activities will not be made until December

1996, at the earliest.

The assessment rate recommended by the Board was derived by

dividing anticipated expenses by expected shipments of Oregon and

Washington hazelnuts. Hazelnut shipments for the year are estimated at

20,000,000 pounds which should provide $280,000 in assessment income.

Income derived from handler assessments, interest, and from the Nut

Growers Society in payment for services performed by the Board under an

agreement with the Society, along with funds from the Board's

authorized reserve, will be adequate to cover budgeted expenses. Funds

in the reserve will be kept within the maximum permitted by the order.

An interim final rule regarding this action was published in the

June 13, 1996, issue of the Federal Register (61 FR 29924). That

interim final rule added Sec. 982.340 to establish an assessment rate

for the Board. That rule provided that interested persons could file

comments through July 15, 1996. No comments were received.

While this rule will impose some additional costs on handlers, the

costs are in the form of uniform assessments on all handlers. Some of

the additional costs may be passed on to producers. However, these

costs will be offset by the benefits derived by the operation of the

marketing order. Therefore, the AMS has determined that this rule will

not have a significant economic impact on a substantial number of small

entities.

The assessment rate established in this rule will continue in

effect indefinitely unless modified, suspended, or terminated by the

Secretary upon recommendation and information submitted by the Board or

other available information.

Although this assessment rate is effective for an indefinite

period, the Board will continue to conduct a mail vote prior to or

during each fiscal period to recommend a budget of expenses and

consider recommendations for modification of the assessment rate. Any

mail votes will be discussed and reconfirmed at a public meeting. The

dates and times of Board meetings are available from the Board or the

Department. Board meetings are open to the public and interested

persons may express their views at those meetings. The Department will

evaluate Board recommendations and other available information to

determine whether modification of the assessment rate is needed.

Further rulemaking will be undertaken as necessary. The Board's 1996-97

budget and those for subsequent marketing years will be reviewed and,

as appropriate, approved by the Department.

After consideration of all relevant material presented, including

the information and recommendation submitted by the Board and other

available information, it is hereby found that this rule, as

hereinafter set forth,

[[Page 42993]]

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) The

Board needs to have sufficient funds to pay its expenses which are

incurred on a continuous basis; (2) the 1996-97 marketing year began on

July 1, 1996, and the marketing order requires that the rate of

assessment for each marketing year apply to all assessable hazelnuts

handled during such marketing year; (3) handlers are aware of this

action which was unanimously recommended by the Board at a public

meeting and is similar to other assessment rate actions issued in past

years; and (4) an interim final rule was published on this action and

provided for a 30-day comment period, and no comments were received.

List of Subjects in 7 CFR Part 982

Filberts, Hazelnuts, Marketing agreements, Nuts, Reporting and

recordkeeping requirements.

Note: This section will appear in the Code of Federal

Regulations.

PART 982--HAZELNUTS GROWN IN OREGON AND WASHINGTON

Accordingly, the interim final rule which was published at 61 FR

29924 on June 13, 1996, is adopted as a final rule without change.

Dated: August 13, 1996.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 96-21119 Filed 8-19-96; 8:45 am]

BILLING CODE 3410-02-P