[Federal Register Volume 75, Number 125 (Wednesday, June 30, 2010)]
[Proposed Rules]
[Pages 37740-37742]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15941]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 75, No. 125 / Wednesday, June 30, 2010 / 
Proposed Rules  

[[Page 37740]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 922

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


Apricots Grown in Designated Counties in Washington; Increased 
Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule would increase 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: Comments must be received by July 15, 2010.

ADDRESSES: Interested persons are invited to submit written comments 
regarding 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 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: [email protected] or [email protected].
    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 Avenue, SW., STOP 0237, Washington, DC 20250-0237; 
Telephone: (202) 690-3919; Fax: (202) 720-8938; or E-mail: 
[email protected].

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 proposed herein 
would 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 would increase 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

[[Page 37741]]

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 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 proposed assessment rate would 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 would be effective for an indefinite 
period, the Committee would 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 and those for subsequent fiscal periods would be 
reviewed and, as appropriate, approved by USDA.

Initial 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 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 apricot producers within the regulated 
production area and approximately 22 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 22 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 would increase 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's authority. 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 this recommended assessment 
increase. Leaving the assessment rate at the current $1.00 per ton 
would earn the Committee $5,550, an amount considerably less than the 
2010 budgeted expenditures of $8,145. This would have significantly 
depleted the Committee's reserves, and thus was not seriously 
considered. 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 would increase 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

[[Page 37742]]

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. Additionally, interested persons are 
invited to submit information on the regulatory and informational 
impacts of this action on small businesses.
    This proposed rule would impose 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. Additionally, 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 
Antoinette Carter at the previously mentioned address in the FOR 
FURTHER INFORMATION CONTACT section.
    A 15-day comment period is provided to allow interested persons to 
respond to this proposed rule. Fifteen days is deemed appropriate 
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) the 
Washington apricot harvest and shipping season is expected to begin as 
early as the last week of June; (3) the Committee needs to have 
sufficient funds to pay its expenses, which are incurred on a 
continuous basis; and (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.

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 
proposed to be 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:


Sec.  922.235  Assessment rate.

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

    Dated: June 25, 2010.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. 2010-15941 Filed 6-29-10; 8:45 am]
BILLING CODE 3410-02-P