[Federal Register Volume 74, Number 144 (Wednesday, July 29, 2009)]
[Rules and Regulations]
[Pages 37496-37499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18108]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 922

[Doc. No. AMS-FV-09-0038; FV09-922-1 IFR]


Apricots Grown in Designated Counties in Washington; Decreased 
Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule decreases the assessment rate established for the 
Washington Apricot Marketing Committee (Committee) for the 2009-2010 
and subsequent fiscal periods from $2.00 to $1.00 per ton of 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 July 30, 2009. Comments received by September 28,

[[Page 37497]]

2009, 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 Administration Branch, Fruit and Vegetable Programs, 
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 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.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: Robert J. Curry or Gary D. Olson, 
Northwest Marketing Field Office, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW. Third Avenue, 
Suite 385, Portland, OR 97204; telephone: (503) 326-2724, Fax: (503) 
326-7440; or e-mail: <a href="/cdn-cgi/l/email-protection#fcae939e998e88d2bf898e8e85bc9d918fd2898f989dd29b938a"><span class="__cf_email__" data-cfemail="b9ebd6dbdccbcd97facccbcbc0f9d8d4ca97cccaddd897ded6cf">[email protected]</span></a> or 
<a href="/cdn-cgi/l/email-protection#185f796a615c3657746b77765879756b366d6b7c79367f776e"><span class="__cf_email__" data-cfemail="2e694f5c576a0061425d41406e4f435d005b5d4a4f00494158">[email protected]</span></a>.
    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 
Ave., SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-
2491; Fax: (202) 720-8938; or e-mail: <a href="/cdn-cgi/l/email-protection#e6ac879fc8a1938394848394a6878b95c893958287c8818990"><span class="__cf_email__" data-cfemail="1258736b3c5567776070776052737f613c676176733c757d64">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement and Order No. 922 (7 CFR 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 issued herein will be applicable to all assessable 
apricots beginning April 1, 2009, 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 decreases the assessment rate established for the 
Committee for the 2009-2010 and subsequent fiscal periods from $2.00 to 
$1.00 per ton of apricots handled.
    The 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 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 was formulated and discussed at a public meeting, thus 
all directly affected persons had an opportunity to participate and 
provide input.
    For the 2008-2009 and subsequent fiscal periods, the Committee 
recommended, and USDA approved, an assessment rate of $2.00 per ton of 
fresh apricots handled. This assessment rate continues 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 21, 2009, and unanimously recommended 
2009-2010 expenditures of $7,843 and a decreased assessment rate of 
$1.00 per ton. In comparison, last year's budgeted expenditures were 
$7,093. The recommended assessment rate is $1.00 less than the $2.00 
rate in effect since the 2008-2009 fiscal period. The Committee 
recommended the assessment rate decrease to help offset the increase in 
income that would have accompanied the much larger apricot crop 
projected for this summer. This assessment rate reduction will also 
have the effect of maintaining the Committee's monetary reserve at a 
level commensurate with program objectives and requirements.
    The major expenditures recommended by the Committee for the 2009-
2010 fiscal period are $4,800 for the management fee and $3,043 for 
operational expenses, which include travel expenses, financial audit, 
compliance, insurance and bonds, equipment maintenance and 
miscellaneous expenses. In comparison, budgeted expenses for the 2008-
2009 seasons were $4,800 and $2,293, respectively.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of Washington 
apricots. Applying the $1.00 per ton assessment rate to the Committee's 
7,600 ton crop estimate should provide $7,600 in assessment income. The 
assessment income, in addition to approximately $243 from the 
Committee's reserve would be adequate to cover the recommended $7,843 
budget for the 2009-2010 fiscal period. Funds in the reserve ($8,609 as 
of March 31, 2009), would be kept within the maximum permitted by the 
order of approximately one fiscal period's operational expenses (Sec.  
922.42.)
    The assessment rate established with 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 the 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 the Committee or USDA. Committee 
meetings are open to the public and interested persons may express 
their views at these meetings. USDA would evaluate the Committee 
recommendations and other available information to determine whether 
modification of the assessment rate is

[[Page 37498]]

needed. Further rulemaking will be undertaken as necessary. The 
Committee's 2009-2010 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 
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 300 producers of fresh apricots in the 
regulated production area and approximately 22 handlers subject to 
regulation under the order. Small agricultural producers are defined by 
the Small Business Administration (13 CFR 121.201) as those having 
annual receipts of less than $750,000, and small agricultural service 
firms are defined as those whose annual receipts are less than 
$7,000,000.
    Based on information compiled by National Agricultural Statistics 
Service, the value of Washington's total apricot production in 2008 was 
$6,601,000. Since the Committee reports that there are 300 producers, 
the average annual farm-gate revenue from the sale of apricots last 
year was approximately $22,000 per producer. In addition, based on 
Committee records and 2008 f.o.b. prices ranging from $20.00 to $26.00 
per 24-pound loose-pack carton as reported by AMS Market News Service, 
the average annual revenue per handler in 2008 was $357,197. In view of 
the foregoing, the majority of Washington apricot producers and 
handlers may be classified as small entities.
    This rule decreases the assessment rate established for the 
Committee and collected from handlers for the 2009-2010 and subsequent 
fiscal periods from $2.00 to $1.00 per ton. The Committee unanimously 
recommended 2009-2010 expenditures of $7,843 and the decreased 
assessment rate at the May 21, 2009, meeting. The recommended 
assessment rate is $1.00 less than the rate in effect since the 2008-
2009 fiscal period. With an estimated 2009-2010 apricot crop of 7,600 
tons, assessment income combined with funds from the Committee's 
monetary reserve should be adequate to cover budgeted expenses. The 
Committee recommended decreasing the assessment rate by 50 percent due 
to the near doubling of the crop estimate this year compared to the 
crop actually harvested last year. With current crop and expense 
estimates, the Committee estimates that its reserve fund at the end of 
the 2009-2010 fiscal period will be about $8,300. This is approximately 
one fiscal period's operational expenses as authorized by the order 
(Sec.  922.42).
    The major expenditures recommended by the Committee for the 2009-
2010 fiscal period include $4,800 for the management fee and $3,043 for 
operational expenses. In comparison, budgeted expenses for the 2008-
2009 seasons were $4,800 and $2,293, respectively.
    The Committee discussed alternatives to this rule. With the 
potential for a much larger crop this season, assessment rates over 
$1.00 per ton were not seriously considered because of the potential of 
generating too much income and thus increasing the reserve fund to an 
amount higher than program requirements allow.
    A review of historical information and preliminary information 
pertaining to the upcoming crop year indicates that the producer price 
for the 2009-2010 season could average about $1,000 per ton. Therefore, 
the estimated assessment revenue for the 2009-2010 fiscal period as a 
percentage of total producer revenue could approximate 0.1 percent.
    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 and participate in the 
Committee's deliberations on all issues. Like all Committee meetings, 
the May 21, 2009, 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 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. Furthermore, USDA 
has not identified any relevant Federal rules that duplicate, overlap, 
or conflict with this rule.
    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.
    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/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide. 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.
    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 2009-2010 fiscal period began on April 1, and 
the marketing order requires that the rate of assessment for each 
fiscal period apply to all assessable Washington apricots handled 
during such fiscal period; (2) this action decreases the assessment 
rate for assessable apricots beginning with the 2009-2010 fiscal 
period; (3) handlers are aware of this action which was unanimously 
recommended by the Committee at a public meeting; and (4) this interim 
final rule provides a 60-day comment period, and all comments timely 
received will be considered prior to finalization of this ruled.

List of Subjects in 7 CFR Part 922

    Apricots, Marketing agreements, Reporting and recordkeeping 
requirements.

0
For the reasons set forth in the preamble, 7 CFR part 922 is amended as 
follows:

[[Page 37499]]

PART 922--APRICOTS GROWN IN DESIGNATED COUNTIES IN WASHINGTON

0
1. The authority citation for 7 CFR part 922 continues to read as 
follows:

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


0
2. Section 922.235 is revised to read as follows:


Sec.  922.235  Assessment rate.

    On or after April 1, 2009, an assessment rate of $1.00 per ton is 
established for the Washington Apricot Marketing Committee.

    Dated: July 24, 2009.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. E9-18108 Filed 7-28-09; 8:45 am]
BILLING CODE 3410-02-P


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