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Rules and Regulations Federal Register

48283 

Vol. 78, No. 153 

Thursday, August 8, 2013 

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. 

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 

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48284 Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Rules and Regulations 

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 

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Federal Register / Vol. 78, No. 153 / Thursday, August 8, 2013 / Rules and Regulations 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 

■ 1. The authority citation for 7 CFR 

part 923 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Section 923.236 is revised to read 

as follows: 

§ 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] 

BILLING CODE P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 946 

[Doc. No. AMS–FV–13–0010; FV13–946–1 

FIR] 

Irish Potatoes Grown in Washington; 

Decreased Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Affirmation of interim rule as 

final rule. 

SUMMARY: The Department of 

Agriculture is adopting, as a final rule, 

without change, an interim rule that 

decreased the assessment rate 

established for the State of Washington 

Potato Committee (Committee) for the 

2013–2014 fiscal year and all 

subsequent fiscal periods from $0.003 to 

$0.0025 per hundredweight of potatoes 

handled. The Committee locally 

administers the marketing order for Irish 

potatoes grown in Washington. 

Decreasing the assessment rate was 

necessary to allow the Committee to 

reduce its financial reserve while still 

providing adequate funding to meet 

program expenses. 

DATES: Effective August 9, 2013. 

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 obtain 

information on complying with this and 

other marketing order regulations by 

viewing a guide at the following Web 

site: http://www.ams.usda.gov/

MarketingOrdersSmallBusinessGuide; 

or 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. 

946, as amended (7 CFR part 946), 

regulating the handling of Irish potatoes 

grown 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. 

Under the order, Washington potato 

handlers are subject to assessments, 

which provide funds to administer the 

order. Assessment rates issued under 

the order are intended to be applicable 

to all assessable Washington potatoes 

for the entire fiscal period, and continue 

indefinitely until amended, suspended, 

or terminated. The Committee’s fiscal 

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