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[Federal Register Volume 78, Number 153 (Thursday, August 8, 2013)]
[Rules and Regulations]
[Pages 48283-48285]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-19012]

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Rules and Regulations
                                                Federal Register
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having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
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Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / 
Rules and Regulations

[[Page 48283]]

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 923

[Doc. No. AMS-FV-13-0055; FV13-923-1 IR]

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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule decreases the assessment rate established for the 
Washington Cherry Marketing Committee (Committee) for the 2013-2014 and 
subsequent fiscal periods from $0.18 to $0.15 per ton of sweet cherries 
handled. The Committee locally administers the marketing order, which 
regulates the handling of sweet cherries grown in designated counties 
in Washington. Assessments upon Washington sweet cherry handlers are 
used by the Committee to fund reasonable and necessary expenses of the 
program. The fiscal period begins April 1 and ends March 31. The 
assessment rate will remain in effect indefinitely unless modified, 
suspended, or terminated.

DATES: Effective August 9, 2013. Comments received by October 7, 2013 
will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, 
Marketing Order and Agreement Division, Fruit and Vegetable Program, 
AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. Comments should reference the document number and 
the date and page number of this issue of the Federal Register. 
Submissions will be available for public inspection in the Office of 
the Docket Clerk during regular business hours or can be viewed at: 
http://www.regulations.gov. All comments submitted in response to this 
rule will be included in the record and will be made available to the 
public. Please be advised that the identity of the individuals or 
entities submitting comments will be made public on the Internet at the 
address provided above.

FOR FURTHER INFORMATION CONTACT: Teresa Hutchinson, Marketing 
Specialist, or Gary Olson, Regional Director, Northwest Marketing Field 
Office, Marketing Order and Agreement Division, Fruit and Vegetable 
Program, AMS, USDA; Telephone: (503) 326-2724, Fax: (503) 326-7440, or 
Email: Teresa.Hutchinson@ams.usda.gov or GaryD.Olson@ams.usda.gov.
    Small businesses may request information on complying with this 
regulation by contacting Jeffrey Smutny, Marketing Order and Agreement 
Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or Email: Jeffrey.Smutny@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order 
No. 923, as amended (7 CFR Part 923), 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, Washington 
sweet cherry 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 
sweet cherries beginning April 1, 2013, and continue until amended, 
suspended, or terminated.
    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 
entry of the ruling.
    This rule decreases the assessment rate established for the 
Committee for the 2013-2014 and subsequent fiscal periods from $0.18 to 
$0.15 per ton of sweet cherries handled.
    The Washington sweet cherry 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 and handlers of 
Washington sweet cherries. They are familiar with the Committee's 
needs, and 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.
    The Committee met on May 21, 2013, and unanimously recommended 
expenditures of $65,900 and an assessment rate of $0.15 per ton of 
sweet cherries for the 2013-2014 fiscal period. In comparison, last 
year's budgeted expenditures were $64,400, and the recommended $0.15 
per ton assessment rate is $0.03 lower than the rate established for 
the 2012-2013 fiscal period. The Committee recommended the lower 
assessment rate for the purpose of decreasing its monetary reserve, 
which was approximately $107,687 on March 31, 2013. Section 
923.42(a)(2) of the order specifies that funds held in reserve must not 
exceed approximately one fiscal period's

[[Page 48284]]

operational expenses. This action is expected to reduce the Committee's 
monetary reserve to a level acceptable under the order.
    The major expenditures recommended by the Committee for the 2013-
2014 fiscal period include $30,000 for administration and data 
management fees; $27,000 for Committee expenses such as travel, 
accounting, and compliance; $5,000 for contingency; and $3,900 for 
office expenses--including bonds, insurance, telephone, office 
equipment and supplies. Budgeted expenses for these items in 2012-2013 
were $20,000, $35,000, $5,000, and $4,400, respectively.
    The Committee took its large monetary reserve into consideration 
when it developed its recommendation for the 2013-2014 assessment rate. 
The Committee intends for its 2013-2014 assessment revenue to be less 
than 2013-2014 budgeted expenses, and anticipates making up the deficit 
by drawing from reserve funds. By doing so, the Committee expects to 
reduce its monetary reserve to a level within the maximum amount 
allowed under the order.
    The Committee estimates that Washington sweet cherry handlers will 
ship 160,000 tons of fruit during the 2013-2014 fiscal period. At the 
recommended $0.15 per ton assessment rate, the Committee expects to 
generate $24,000 in assessment income for the fiscal period. Income 
derived from handler assessments, along with approximately $41,900 from 
the Committee's monetary reserve, would be adequate to cover the 
recommended $65,900 budget for the 2013-2014 fiscal period. The 
Committee reported that funds held in the reserve were approximately 
$107,687 as of March 31, 2013. The Committee estimates that the reserve 
will be drawn down to $65,787 by March 31, 2014, which would be within 
the maximum permitted by the order of approximately one fiscal period's 
operational expenses.
    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 is 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 Committee meetings are available from either 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 a 
modification of the assessment rate is needed. Further rulemaking will 
be undertaken as necessary. The Committee's 2013-2014 budget, and those 
for subsequent fiscal periods, will be reviewed and, as appropriate, 
approved by USDA.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), 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 
businesses 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 53 handlers of Washington sweet cherries subject to 
regulation under the order and approximately 1,500 producers in the 
regulated production area. Small agricultural service firms are defined 
by the Small Business Administration (13 CFR 121.201) as those having 
annual receipts of less than $7,000,000, and small agricultural 
producers are defined as those having annual receipts of less than 
$750,000.
    The National Agricultural Statistics Service has prepared a 
preliminary report for the 2012 shipping season showing that prices for 
the 210,000 tons of sweet cherries that entered the fresh market 
averaged $2,140 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 2012 can therefore be estimated at approximately 
$299,600 per year. In addition, the Committee reports that most of the 
industry's 53 handlers reported gross receipts of less than $7,000,000 
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 2013-2014 and 
subsequent fiscal periods from $0.18 to $0.15 per ton of sweet 
cherries. The Committee also unanimously recommended 2013-2014 fiscal 
period expenditures of $65,900. The quantity of assessable sweet 
cherries for the 2013-2014 fiscal period is estimated by the Committee 
to be 160,000 tons. Thus, the $0.15 per ton rate should provide $24,000 
in assessment income. Income derived from handler assessments, along 
with funds from the Committee's authorized reserve, should be adequate 
to cover budgeted expenses.
    The Committee recommended the assessment rate decrease for the 
purpose of reducing its monetary reserve, which was approximately 
$107,687 on March 31, 2013. With the recommended assessment rate and 
budget, the Committee expects to draw $41,900 from its reserve to fund 
its 2013-2014 fiscal period budgeted expenditures. The Committee 
anticipates that this action will reduce the reserve to a level that is 
less than approximately one fiscal period's operating expenses, the 
maximum permitted by the order, prior to the beginning of the 2014-2015 
fiscal period.
    The major expenditures recommended by the Committee for the 2013-
2014 fiscal period include $30,000 for administration and data 
management fees; $27,000 for Committee expenses such as travel, 
accounting, and compliance; $5,000 for contingency; and $3,900 for 
office expenses--including bonds, insurance, telephone, office 
equipment and supplies. Budgeted expenses for these items in 2012-2013 
were $20,000, $35,000, $5,000, and $4,400, respectively.
    The Committee discussed alternatives to this rule. Leaving the 
assessment rate at the current $0.18 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 data and preliminary information pertaining 
to the upcoming fiscal period indicates that the producer price for the 
2013-2014 fiscal period could average $2,140 per ton of sweet cherries. 
Therefore, the estimated assessment revenue for the 2013-2014 fiscal 
period, as a percentage of total producer revenue, is approximately 
0.007 percent.
    This action will decrease 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

[[Page 48285]]

meeting was widely publicized throughout the Washington sweet cherry 
industry. All interested persons were invited to attend the meeting and 
participate in Committee deliberations. Like all Committee meetings, 
the May 21, 2013, meeting was a public meeting and all entities, both 
large and small, were able to express their views on this issue. 
Finally, interested persons are invited to submit comments on this 
interim rule, including the regulatory and informational impacts of 
this action on small businesses.
    In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. 
Chapter 35), the order's information collection requirements have been 
previously approved by the Office of Management and Budget (OMB) and 
assigned OMB No. 0581-0189, Generic Fruit Crops. No changes in those 
requirements as a result of this action are necessary. Should any 
changes become necessary, they would be submitted to OMB for approval.
    This rule will not impose any 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.
    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.
    In addition, 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: 
www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about 
the compliance guide should be sent to Jeffrey Smutny 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 upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect, and 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 2013-2014 fiscal period began on April 1, 
2013, and the marketing order requires that the rate of assessment for 
each fiscal period apply to all assessable sweet cherries handled 
during such fiscal period; (2) this action decreases the assessment 
rate for assessable sweet cherries beginning with the 2013-2014 fiscal 
period; (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; and (4) this 
interim rule provides a 60-day comment period, and all comments timely 
received will be considered prior to finalization of this rule.

List of Subjects in 7 CFR Part 923

    Cherries, Marketing agreements, Reporting and recordkeeping 
requirements.

    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, 2013, an assessment rate of $0.15 per ton is 
established for the Washington Cherry Marketing Committee.

    Dated: August 1, 2013.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2013-19012 Filed 8-7-13; 8:45 am]
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