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Rules and Regulations Federal Register

72681 

Vol. 77, No. 235 

Thursday, December 6, 2012 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 922 

[Doc. No. AMS–FV–12–0027; FV12–922–1 

IR] 

Apricots Grown in Designated 

Counties in Washington; Decreased 

Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Interim rule with request for 

comments. 

SUMMARY: This rule decreases the 

assessment rate established for the 

Washington Apricot Marketing 

Committee (Committee) for the 2012–13 

and subsequent fiscal periods from 

$1.50 to $0.50 per ton of Washington 

apricots handled. The Committee 

locally administers the marketing order 

which regulates the handling of apricots 

grown in designated counties in 

Washington. Assessments upon apricot 

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 December 7, 2012. 

Comments received by February 4, 

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: 

www.regulations.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: 

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 the 

comments will be made public on the 

Internet at the address provided above. 

FOR FURTHER INFORMATION CONTACT: 

Manuel Michel, Marketing Specialist, or 

Gary Olson, Regional Director, 

Northwest Marketing Field Office, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Program, 

AMS, USDA, 805 SW. Broadway, Suite 

930, Portland, OR 97205; Telephone: 

(503) 326–2724; Fax: (503) 326–7440; or 

Email: Manuel.Michel@ams.usda.gov or 

GaryD.Olson@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Laurel May, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Program, 

AMS, USDA, 1400 Independence SW., 

STOP 0237, Washington, DC 20250– 

0237; Telephone: (202) 720–2491; Fax: 

(202) 720–8938; or Email: 

Laurel.May@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Agreement 

and Order No. 922 (7 CFR 922), as 

amended, 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, apricot handlers in designated 

counties in Washington 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 Washington 

apricots beginning April 1, 2012, 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 the entry of the 

ruling. 

This rule decreases the assessment 

rate established for the Committee for 

the 2012–13 and subsequent fiscal 

periods from $1.50 to $0.50 per ton of 

Washington apricots handled under the 

order. 

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 

producers and handlers of apricots in 

designated counties in Washington. 

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 2010–11 and subsequent fiscal 

periods, the Committee recommended, 

and the 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 24, 2012, 

and unanimously recommended 

expenditures of $4,695 for the 2012–13 

fiscal period. In comparison, the 

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72682 Federal Register / Vol. 77, No. 235 / Thursday, December 6, 2012 / Rules and Regulations 

previous fiscal period’s budgeted 

expenditures were $8,145. The 

Committee also unanimously 

recommended an assessment rate of 

$0.50 per ton of apricots. The 

recommended assessment rate of $0.50 

is $1.00 lower than the rate currently in 

effect. 

The Committee’s decision to lower 

expenditures and its recommendation to 

decrease the assessment rate were a 

direct result of discussions regarding the 

future of the marketing order. 

Committee members discussed reasons 

for and against regulatory suspension, 

order suspension, and termination of 

the order. After much consideration, the 

Committee unanimously recommended 

a temporary suspension of the order’s 

handling regulations, lower 

expenditures, and a decrease in the 

assessment rate. The Committee 

believes that decreasing the assessment 

rate will allow the Committee to fund its 

financial obligations and reduce its 

current monetary reserve of $3,968. 

The major expenditures 

recommended by the Committee for the 

2012–13 fiscal period include $2,400 for 

the management fee, $1,300 for 

Committee travel, $750 for the annual 

audit review, and $245 for insurance, 

bonds, and miscellaneous expenses. In 

comparison, major expenditures for the 

2011–12 fiscal period included $4,800 

for the management service fee, $1,300 

for travel, $100 for compliance, and 

$1,945 for audits, insurance and bonds, 

equipment maintenance and 

miscellaneous expenses. 

Committee members estimated the 

2012 fresh apricot production to be 

approximately 6,600 tons, which 

exceeds the 2011 production of 2,758 

tons by 3,840 tons. The Committee’s 

recommended assessment rate was then 

derived by dividing the 2012–13 

anticipated expenses by the expected 

shipments of Washington apricots, 

while also taking into account the 

Committee’s monetary reserve. The 

recommended assessment rate of $0.50 

per ton of apricots multiplied by the 

6,600 tons of estimated 2012 

Washington apricot shipments would 

generate $3,300 in handler assessments. 

The projected revenue from handler 

assessments, along with funds from the 

Committee’s monetary reserve of $3,968, 

will be adequate to cover the 2012–13 

budgeted expenses of $4,695. The 

Committee’s monetary reserve is 

expected to be approximately $2,573 at 

the end of the 2012–13 fiscal period. 

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 the 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 2012–13 

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. 601–602), 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. 

There are approximately 94 producers 

of apricots in the production area and 

approximately 20 handlers subject to 

regulation under the marketing order. 

Small agricultural producers are defined 

by the Small Business Administration 

(SBA)(13 CFR 121.201) as those having 

annual receipts of less than $750,000, 

and small agricultural service firms are 

defined as those having annual receipts 

of less than $7,000,000. 

The National Agricultural Statistics 

Service reported that in 2011 the 

Washington apricot total utilization 

(including both fresh and processed 

markets) of 3,900 tons sold for an 

average of $1,830 per ton. Consequently, 

the total farm-gate value in 2011 was 

approximately $7,132,000. Based on the 

number of producers in the production 

area (94), the 2011 average revenue from 

the sale of apricots is estimated at 

approximately $75,925 per producer. In 

addition, based on information from the 

USDA’s Market News Service, 2011 

f.o.b. prices for WA No. 1 apricots 

ranged from $20.00 to $26.00 per 24- 

pound loose-pack container, and from 

$22.00 to $30.00 for 2-layer tray-pack 

containers. Using average price and 

shipment information provided by the 

Committee, it is determined that each of 

the Washington apricot handlers 

currently ship less than $7,000,000 

worth of apricots on an annual basis. In 

view of the foregoing, it can be 

concluded that the majority of 

producers and handlers of Washington 

apricots may be classified as small 

entities. 

This rule decreases the assessment 

rate established for the Committee and 

collected from handlers for the 2012–13 

and subsequent fiscal periods from 

$1.50 to $0.50 per ton of apricots 

handled under the order’s authority. 

The Committee also unanimously 

recommended 2012–13 expenditures of 

$4,695. With a 2012–13 Washington 

apricot crop estimate of 6,600 fresh 

market tons, the Committee anticipates 

assessment income of approximately 

$3,300. Income derived from handler 

assessments, along with funds from the 

Committee’s monetary reserve, will be 

adequate to cover budgeted expenses for 

the 2012–13 fiscal period. At this 

assessment rate and expense level, the 

Committee’s monetary reserve will 

approximate $2,573 by March 30, 2013, 

which is within the maximum 

permitted by the order of approximately 

one fiscal period’s operational expenses 

(§ 922.42). 

The major expenditures 

recommended by the Committee for the 

2012–13 fiscal period include $2,400 for 

the management fee; $1,300 for 

Committee travel; $750 for the annual 

audit review; and $245 for insurance, 

bonds, and miscellaneous expenses. In 

comparison, major expenditures for the 

2011–12 fiscal period included $4,800 

for the management service fee; $1,300 

for travel; $100 for compliance; and 

$1,945 for audits, insurance and bonds, 

equipment maintenance, and 

miscellaneous expenses. Funds in the 

Committee’s monetary reserve were 

$3,968 on March 31, 2012, and were 

within the order’s limit of 

approximately one fiscal period’s 

operational expenses. 

The Committee discussed alternatives 

to this rule, including alternative 

expenditure levels. Although lower 

assessment rates were considered, none 

were selected because they would not 

generate sufficient income to administer 

the order. Committee members also 

discussed reasons for and against 

regulatory suspension, order 

suspension, and termination of the 

mstockstill on DSK4VPTVN1PROD with 

Federal Register / Vol. 77, No. 235 / Thursday, December 6, 2012 / Rules and Regulations 72683 

order. The result of these discussions 

was the Committee’s recommendation 

to decrease the assessment rate. The 

Committee also recommended 

suspension of the handling regulations, 

and that recommendation is being 

reviewed separately by USDA. 

A review of historical crop and price 

information, as well as preliminary 

information pertaining to the 2012–13 

fiscal period, indicates that the producer 

price could average approximately 

$1,000 per ton for fresh Washington 

apricots. Therefore, the estimated 

assessment revenue for the 2012–13 

fiscal period as a percentage of total 

producer revenue is 0.05 percent for 

Washington apricots. 

This action decreases 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 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 24, 2012, 

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 

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. 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 action imposes no additional 

reporting or recordkeeping requirements 

on either small or large Washington 

apricot 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. 

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 Laurel May 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 2012–13 fiscal period 

began on April 1, 2012, 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 action 

decreases the assessment rate for 

assessable apricots beginning with the 

2012–13 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 922 

Apricots, Marketing agreements, 

Reporting and recordkeeping 

requirements. 

For the reasons set forth in the 

preamble, 7 CFR part 922 is 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: 

§ 922.235 Assessment rate. 

On or after April 1, 2012, an 

assessment rate of $0.50 per ton is 

established for the Washington Apricot 

Marketing Committee. 

Dated: November 30, 2012. 

David R. Shipman, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2012–29435 Filed 12–5–12; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 923 

[Doc. No. AMS–FV–12–0026; FV12–923–1 

IR] 

Sweet Cherries Grown in Designated 

Counties in Washington; Decreased 

Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Interim rule with request for 

comments. 

SUMMARY: This rule decreases the 

assessment rate established for the 

Washington Cherry Marketing 

Committee (Committee) for the 2012– 

2013 and subsequent fiscal periods from 

$0.40 to $0.18 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 December 7, 2012. 

Comments received by February 4, 

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 and will be 

available for public inspection in the 

Office of the Docket Clerk during regular 

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