```

[Federal Register: August 24, 2010 (Volume 75, Number 163)]
[Rules and Regulations]               
[Page 51924-51926]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24au10-3]                         

-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 922

[Doc. No. AMS-FV-10-0050; FV10-922-1 FR]

 
Apricots Grown in Designated Counties in Washington; Increased 
Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule increases the assessment rate established for the 
Washington Apricot Marketing Committee (Committee) for the 2010-11 and 
subsequent fiscal periods from $1.00 to $1.50 per ton for Washington 
apricots. The Committee is responsible for local administration of the 
marketing order regulating the handling of apricots grown in designated 
counties in Washington. Assessments upon handlers of apricots are used 
by the Committee to fund reasonable and necessary expenses of the 
program. The fiscal period for the marketing order begins April 1 and 
ends March 31. The assessment rate would remain in effect indefinitely 
unless modified, suspended or terminated.

DATES: Effective Date: August 25, 2010.

FOR FURTHER INFORMATION CONTACT: Robert Curry or Gary 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: Robert.Curry@ams.usda.gov or GaryD.Olson@ams.usda.gov.
    Small businesses may request information on complying with this 
regulation by contacting Antoinette Carter, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 
Independence, SW., STOP 0237, Washington, DC 20250-0237; Telephone: 
(202) 690-3919; Fax: (202) 720-8938; or E-mail: 
Antoinette.Carter@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order 
No. 922 (7 CFR part 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, 2010, 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 increases the assessment rate established for the 
Committee for the 2010-11 and subsequent fiscal periods from $1.00 to 
$1.50 per ton for Washington apricots handled under the order.
    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 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 at a public meeting. Thus, 
all directly affected persons have an opportunity to participate and 
provide input.
    For the 2009-10 and subsequent fiscal periods, the Committee 
recommended, and the USDA approved, an assessment rate of $1.00 per ton 
of apricots handled. This 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 19, 2010, and unanimously recommended 
2010-11 expenditures of $8,145. In comparison, last year's budgeted 
expenditures were $7,843. In addition, the Committee recommended that 
the $1.00 per ton assessment rate be increased by $0.50 to $1.50 per 
ton of apricots handled. Committee members reported that apricot 
production this season may be lower than that of last season since 
portions of the Washington apricot production area experienced freezing 
weather in October 2009, and high winds in April of this year. As a 
result, the Committee has estimated that shipments of fresh apricots 
will approximate 5,550 tons this season--somewhat less than the 6,860 
tons of fresh apricots reported last season. The Committee thus 
recommended that the assessment rate be increased by $0.50 to help 
ensure that budgeted expenses are adequately covered.
    The major expenditures recommended by the Committee for the 2010-11 
fiscal period include $4,800 for the management fee, $1,300 for 
Committee travel, $100 for compliance, $750 for the annual audit 
review, and $1,195 for equipment maintenance, insurance, bonds, and 
miscellaneous expenses. In comparison, major

[[Page 51925]]

expenditures for the 2009-10 fiscal period included $4,800 for the 
management service fee, $1,000 for travel, $100 for compliance, and 
$1,943 for audits, insurance and bonds, equipment maintenance and 
miscellaneous expenses.
    The assessment rate recommended by the Committee was derived by 
dividing the anticipated expenses of $8,145 by the projected 2010 
apricot production of 5,550 tons. Applying the $1.50 per ton 
recommended assessment rate to this crop estimate should provide $8,325 
in assessment income. Funds in the Committee's monetary reserve are 
projected to be $7,854 on March 31, 2011. This is within the order's 
limit 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 will be 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's meetings are available from the Committee or 
USDA. The Committee's meetings are open to the public and interested 
persons may express their views at these meetings. USDA would evaluate 
the Committee's recommendations and other available information to 
determine whether modification of the assessment rate is needed. 
Further rulemaking would be undertaken as necessary. The Committee's 
2010-11 budget has been reviewed and approved by USDA; those for 
subsequent fiscal periods would also be reviewed and, as appropriate, 
approved.

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.
    There are approximately 94 apricot producers within the regulated 
production area and approximately 20 regulated handlers. 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.
    The Washington Agricultural Statistics Service reported that the 
total 8,500 ton Washington apricot utilization (including both fresh 
and processed markets) in 2009 sold for an average of $888 per ton. The 
total 2009 farm-gate value was approximately $7,551,000. Based on the 
number of producers in the production area (94), the average annual 
producer revenue from the sale of apricots in 2009 can thus be 
estimated at approximately $80,330. In addition, based on information 
from the Committee and USDA's Market News Service, 2009 f.o.b. prices 
for WA No. 1 apricots ranged from $14.00 to $24.00 per 24-pound loose-
pack container, and from $12.00 to $22.00 for 2-layer tray pack 
containers. The average 2009 price across all sizes and packs was 
$17.50, with an estimated industry gross intake of approximately 
$10,913,636 in f.o.b. receipts for the 2009 crop--leaving average 
receipts for each of the 20 handlers well below the SBA's $7,000,000 
threshold for small businesses. Therefore, the majority of producers 
and handlers of Washington apricots may be classified as small 
entities.
    This rule increases the assessment rate established for the 
Committee and collected from handlers for the 2010-11 and subsequent 
fiscal periods from $1.00 to $1.50 per ton for apricots handled under 
the order. The Committee also unanimously recommended 2010-11 
expenditures of $8,145. With a 2010-11 Washington apricot crop estimate 
of 5,550 fresh market tons, the Committee anticipates assessment income 
of about $8,325. The Committee recommended the assessment rate increase 
to help ensure that budgeted expenses are adequately covered.
    The major expenditures recommended by the Committee for the 2010-11 
fiscal period include $4,800 for the management fee, $1,300 for 
Committee travel, $100 for compliance, $750 for the annual audit 
review, and $1,195 for equipment maintenance, insurance, bonds, and 
miscellaneous expenses. In comparison, major expenditures for the 2009-
10 fiscal period included $4,800 for the management service fee, $1,000 
for travel, $100 for compliance, and $1,943 for audits, insurance and 
bonds, equipment maintenance and miscellaneous expenses. Funds in the 
Committee's monetary reserve are projected to be $7,854 on March 31, 
2011. This is within the order's limit of approximately one fiscal 
period's operational expenses.
    The Committee discussed alternatives to the assessment rate 
increase. Leaving the assessment rate at $1.00 per ton would have 
provided the Committee with about $5,550 in income, an amount 
considerably less than the 2010 budgeted expenditures of $8,145. The 
Committee felt that this would have significantly depleted its monetary 
reserves, and thus recommended the $.50 increase. The Committee did not 
consider an assessment rate greater than $1.50.
    A review of historical crop and price information, as well as 
preliminary information pertaining to the upcoming crop year indicates 
that the producer price for the 2010-11 season could average about 
$1,000 per ton for fresh Washington apricots. Therefore, the estimated 
assessment revenue for the 2010-11 fiscal period as a percentage of 
total producer revenue is 0.15 percent for Washington apricots.
    This action increases the assessment obligation imposed on 
handlers. While assessments impose some additional costs on handlers, 
the costs are minimal and uniform on all handlers. Some of the 
additional costs may be passed on to producers. However, these costs 
would be offset by the benefits derived by the operation of the order.
    The Committee's meeting was widely publicized throughout the 
Washington apricot industry and all interested persons were invited to 
attend and participate in Committee deliberations on all issues. Like 
all Committee meetings, the May 19, 2010 meeting was a public meeting 
and all entities, both large and small, were able to express views on 
the issues.
    This rule 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. As noted in the 
initial regulatory flexibility analysis, 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

[[Page 51926]]

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 proposed rule regarding this action was published in the Federal 
Register on June 30, 2010 (FR 75 37740). Copies of the proposed rule 
were also made available to all apricot handlers by Committee staff. 
The proposal was also made available through the Internet by USDA and 
the Office of the Federal Register. A 15-day comment period ending July 
15, 2010, was provided for interested persons to respond to the 
proposal. 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/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBus
inessGuide. Any questions about the compliance guide should be sent to 
Antoinette Carter 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 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 
2010-11 fiscal period began on April 1, 2010, and the order requires 
that the assessment rate for each fiscal period apply to all assessable 
apricots handled during such fiscal period; (2) Washington apricots are 
currently being harvested and shipped to market; (3) the Committee 
needs to have sufficient funds to pay its expenses, which are incurred 
on a continuous basis; (4) handlers are aware of this action, which was 
recommended by the Committee at a public meeting and is similar to 
other assessment rate actions issued in past years; and (5) a 15-day 
comment period was provided in the proposed rule.

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:

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 and after April 1, 2010, an assessment rate of $1.50 per ton is 
established for the Washington Apricot Marketing Committee.

    Dated: August 17, 2010.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. 2010-21037 Filed 8-23-10; 8:45 am]
BILLING CODE 3410-02-P
```