21518 Federal Register / Vol. 78, No. 70 / Thursday, April 11, 2013 / Rules and Regulations 

Regarding the ‘‘impracticable’’ prong, 

the United States Court of Appeals for 

the District of Columbia has held that 

agency action could be sustained on this 

basis if it addresses an ‘‘imminent 

hazard’’ to persons or property of the 

United States, Jifry v. FAA, 370 F.3d 

1174, 1179 (D.C. Cir. 2004), or if the rule 

in question is of ‘‘life-saving 

importance.’’ Council of the S. 

Mountains, Inc. v. Donovan, 653 F.2d 

573, 581 (D.C. Cir. 1981). The Board 

does not believe that the circumstances 

surrounding the publication of this 

interim final rule render the use of APA 

notice and comment procedures 

impracticable. 

The ‘‘unnecessary’’ prong of the 

agency’s good cause inquiry is 

‘‘confined to those situations in which 

the administrative rule is a routine 

determination, insignificant in nature 

and impact, and inconsequential to the 

industry and to the public.’’ Mack 

Trucks, Inc. v. Environmental Protection 

Agency, 682 F.3d 87, 94 (D.C. Cir. 2012) 

(citation omitted). As is noted above, the 

amendment set forth herein will not 

relieve federal agencies of the 

responsibility to ensure that employees 

who receive notice of an action 

appealable to MSPB have actual and 

effective access to the MSPB appeal 

form. Rather, the amendment simply 

recognizes that a document such as the 

MSPB appeal form can reliably be made 

available to employees via the Internet 

or other means. Moreover, if a federal 

employee requests that he or she be 

provided a copy of the document, the 

agency would be required to provide it. 

The MSPB therefore finds that the 

amendment set forth herein is 

sufficiently routine, insignificant in 

nature and inconsequential to warrant a 

finding of good cause to exempt this 

amendment from the normal APA 

notice-and-comment procedures. 

The public interest prong of the good 

cause exception is met only in the rare 

circumstance when ordinary 

procedures—generally presumed to 

serve the public interest—would in fact 

harm that interest. Mack Trucks, 682 

F.3d at 95. This exception is therefore 

invoked when the timing and disclosure 

requirements of the usual procedures 

would defeat the purpose of the 

proposal. Id. Here, the reproduction 

costs this amendment seeks to avert are 

significant. If, for example, 800,000 

Department of Defense employees are 

issued furlough notices, we estimate 

that the cost of giving each employee a 

paper copy of the MSPB appeal form 

could be on the order of $720,000 

(800,000 employees x 9-page MSPB 

appeal form x $0.10 per page 

reproduction costs). Additional costs 

would be imposed upon other federal 

agencies. Given that an unprecedented 

and sizeable number of furlough notices 

could be issued in the days and weeks 

to follow, MSPB finds that the purpose 

of this amendment—saving significant 

needless expense in a time of severe 

budgetary constraints—would be 

defeated if normal notice and comment 

procedures were utilized. Therefore, the 

Board concluded that the public interest 

is served by a determination to exempt 

this interim final rule from the normal 

APA notice-and-comment procedures. 

Finally, MSPB also elected to make 

the amendment set forth herein effective 

immediately upon publication of this 

interim final rule. Under 5 U.S.C. 

553(d)(3), ‘‘the required publication or 

service of a substantive rule shall be 

made not less than 30 days before its 

effective date, except * * * as 

otherwise provided by the agency for 

good cause found and published with 

the rule.’’ For the reasons identified 

above, MSPB further finds that good 

cause exists under 5 U.S.C. 553(d)(3) to 

waive the 30-day publication 

requirement and implement this 

amendment immediately. 

List of Subjects in 5 CFR Part 1201 

Administrative practice and 

procedure. 

Accordingly, for the reasons set forth 

in the preamble, the Board amends 5 

CFR part 1201 as follows: 

PART 1201—PRACTICES AND 

PROCEDURES 

■ 1. The authority citation for 5 CFR 

part 1201 continues to read as follows: 

Authority: 5 U.S.C. 1204, 1305, and 7701, 

and 38 U.S.C. 4331, unless otherwise noted. 

■ 2. Revise paragraph (c) of § 1201.21 to 

read as follows: 

§ 1201.21 Notice of appeal rights. 

* * * * * 

(c) A copy, or access to a copy, of the 

MSPB appeal form available at the 

Board’s Web site (http:// 

www.mspb.gov), and 

* * * * * 

William D. Spencer, 

Clerk of the Board. 

[FR Doc. 2013–08503 Filed 4–10–13; 8:45 am] 

BILLING CODE 7400–01–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 922 

[Doc. No. AMS–FV–12–0027; FV12–922–1 

FIR] 

Apricots Grown in Designated 

Counties in Washington; Decreased 

Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Affirmation of interim rule as 

final rule. 

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

rule that decreased 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 that regulates the 

handling of apricots grown in 

designated counties in Washington. The 

interim rule decreased the assessment 

rate to reflect a reduction in the 

manager’s salary and the Committee’s 

operating expenditures. 

DATES: Effective April 12, 2013. 

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 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 Agreement 

and 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 


TKELLEY on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 78, No. 70 / Thursday, April 11, 2013 / Rules and Regulations 21519 

Act of 1937, as amended (7 U.S.C. 601– 

674), hereinafter referred to as the 

‘‘Act.’’ 

USDA is issuing this rule in 

conformance with Executive Order 

12866. 

Under the order, Washington apricot 

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 apricots for 

the entire fiscal period, and continue 

indefinitely until amended, suspended, 

or terminated. The Committee’s fiscal 

period begins April 1, and ends on 

March 31. 

In an interim rule published in the 

Federal Register on December 6, 2012, 

and effective on December 7, 2012, (77 

FR 72861, Doc. No. AMS–FV–12–0027, 

FV12–922–1 IR), § 922.235 was 

amended by decreasing 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 decrease in the assessment 

rate reflects a reduction in the manager’s 

salary and the Committee’s operating 

expenditures, and will help reduce 

industry costs while still providing 

adequate funding to meet program 

expenses. 

Final 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 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 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) 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. (13 CFR 121.201) 

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. Accordingly, 

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. 

Therefore, the majority of producers and 

handlers of Washington apricots may be 

classified as small entities. 

This rule continues in effect the 

action that decreased 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 Washington 

apricots handled under the order. The 

Committee unanimously recommended 

2012–13 expenditures of $4,695 and an 

assessment rate of $0.50 per ton of 

Washington apricots. The assessment 

rate of $0.50 is $1.00 lower than the rate 

previously in effect. Applying the 

assessment rate of $0.50 per ton of 

Washington apricots to the Committee’s 

crop estimate of 6,600 tons should 

provide approximately $3,300 in 

assessment income. Thus, income 

derived from handler assessments, along 

with funds from the Committee’s 

monetary reserve, will be adequate to 

cover the budgeted expenses, while 

maintaining a financial reserve within 

the limit authorized by the order. 

This rule continues in effect the 

action that decreased 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. 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. 

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 rule will not impose any 

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. In 

addition, USDA has not identified any 

relevant Federal rules that duplicate, 

overlap or conflict with this rule. 

Comments on the interim rule were 

required to be received on or before 

February 4, 2013. No comments were 

received. Therefore, for the reasons 

given in the interim rule, we are 

adopting the interim rule as a final rule, 

without change. 

To view the interim rule, go to: 

http://www.regulations.gov/ 

#!documentDetail;D=AMS-FV-12-0027- 

0001. 

This action also affirms information 

contained in the interim rule concerning 

Executive Orders 12866 and 12988, the 

Paperwork Reduction Act (44 U.S.C. 

Chapter 35), and the E-Gov Act (44 

U.S.C. 101). 

After consideration of all relevant 

material presented, it is found that 

finalizing the interim rule, without 

change, as published in the Federal 

Register (77 FR 72681, December 6, 

2012) will tend to effectuate the 

declared policy of the Act. 

List of Subjects in 7 CFR Part 922 

Apricots, Marketing agreements, 

Reporting and recordkeeping 

requirements. 

PART 922—APRICOTS GROWN IN 

DESIGNATED COUNTIES IN 

WASHINGTON 

Accordingly, the interim rule 

amending 7 CFR part 922, published at 

77 FR 72681 on December 6, 2012, is 

adopted as a final rule, without change. 

Dated: April 5, 2013. 

David R. Shipman, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2013–08476 Filed 4–10–13; 8:45 am] 

BILLING CODE 3410–02–P 


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