[Federal Register Volume 77, Number 235 (Thursday, December 6, 2012)]
[Rules and Regulations]
[Pages 72681-72683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29435]



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  Federal Register / Vol. 77, No. 235 / Thursday, December 6, 2012 / 
Rules and Regulations  

[[Page 72681]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 922

[Doc. No. AMS-FV-12-0027; FV12-922-1 IR]


Apricots Grown in Designated Counties in Washington; Decreased 
Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim 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 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 
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 December 7, 2012. Comments received by February 4, 
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: 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: 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: 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: 
[email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Laurel May, Marketing Order and Agreement 
Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence 
SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491; 
Fax: (202) 720-8938; or Email: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement and Order No. 922 (7 CFR 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, 2012, 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 decreases 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 Washington apricot 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 
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 in a public meeting. Thus, all directly affected persons have 
an opportunity to participate and provide input.
    For the 2010-11 and subsequent fiscal periods, the Committee 
recommended, and the USDA approved, an assessment rate that would 
continue 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 24, 2012, and unanimously recommended 
expenditures of $4,695 for the 2012-13 fiscal period. In comparison, 
the

[[Page 72682]]

previous fiscal period's budgeted expenditures were $8,145. The 
Committee also unanimously recommended an assessment rate of $0.50 per 
ton of apricots. The recommended assessment rate of $0.50 is $1.00 
lower than the rate currently in effect.
    The Committee's decision to lower expenditures and its 
recommendation to decrease the assessment rate were a direct result of 
discussions regarding the future of the marketing order. Committee 
members discussed reasons for and against regulatory suspension, order 
suspension, and termination of the order. After much consideration, the 
Committee unanimously recommended a temporary suspension of the order's 
handling regulations, lower expenditures, and a decrease in the 
assessment rate. The Committee believes that decreasing the assessment 
rate will allow the Committee to fund its financial obligations and 
reduce its current monetary reserve of $3,968.
    The major expenditures recommended by the Committee for the 2012-13 
fiscal period include $2,400 for the management fee, $1,300 for 
Committee travel, $750 for the annual audit review, and $245 for 
insurance, bonds, and miscellaneous expenses. In comparison, major 
expenditures for the 2011-12 fiscal period included $4,800 for the 
management service fee, $1,300 for travel, $100 for compliance, and 
$1,945 for audits, insurance and bonds, equipment maintenance and 
miscellaneous expenses.
    Committee members estimated the 2012 fresh apricot production to be 
approximately 6,600 tons, which exceeds the 2011 production of 2,758 
tons by 3,840 tons. The Committee's recommended assessment rate was 
then derived by dividing the 2012-13 anticipated expenses by the 
expected shipments of Washington apricots, while also taking into 
account the Committee's monetary reserve. The recommended assessment 
rate of $0.50 per ton of apricots multiplied by the 6,600 tons of 
estimated 2012 Washington apricot shipments would generate $3,300 in 
handler assessments. The projected revenue from handler assessments, 
along with funds from the Committee's monetary reserve of $3,968, will 
be adequate to cover the 2012-13 budgeted expenses of $4,695. The 
Committee's monetary reserve is expected to be approximately $2,573 at 
the end of the 2012-13 fiscal period.
    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 the 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 will evaluate Committee 
recommendations and other available information to determine whether 
modification of the assessment rate is needed. Further rulemaking will 
be undertaken as necessary. The Committee's 2012-13 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. 601-602), 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 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)(13 CFR 121.201) 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.
    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. 
Consequently, 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. In view 
of the foregoing, it can be concluded that the majority of producers 
and handlers of Washington apricots may be classified as small 
entities.
    This rule decreases 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 apricots handled under 
the order's authority. The Committee also unanimously recommended 2012-
13 expenditures of $4,695. With a 2012-13 Washington apricot crop 
estimate of 6,600 fresh market tons, the Committee anticipates 
assessment income of approximately $3,300. Income derived from handler 
assessments, along with funds from the Committee's monetary reserve, 
will be adequate to cover budgeted expenses for the 2012-13 fiscal 
period. At this assessment rate and expense level, the Committee's 
monetary reserve will approximate $2,573 by March 30, 2013, which is 
within the maximum permitted by the order of approximately one fiscal 
period's operational expenses (Sec.  922.42).
    The major expenditures recommended by the Committee for the 2012-13 
fiscal period include $2,400 for the management fee; $1,300 for 
Committee travel; $750 for the annual audit review; and $245 for 
insurance, bonds, and miscellaneous expenses. In comparison, major 
expenditures for the 2011-12 fiscal period included $4,800 for the 
management service fee; $1,300 for travel; $100 for compliance; and 
$1,945 for audits, insurance and bonds, equipment maintenance, and 
miscellaneous expenses. Funds in the Committee's monetary reserve were 
$3,968 on March 31, 2012, and were within the order's limit of 
approximately one fiscal period's operational expenses.
    The Committee discussed alternatives to this rule, including 
alternative expenditure levels. Although lower assessment rates were 
considered, none were selected because they would not generate 
sufficient income to administer the order. Committee members also 
discussed reasons for and against regulatory suspension, order 
suspension, and termination of the

[[Page 72683]]

order. The result of these discussions was the Committee's 
recommendation to decrease the assessment rate. The Committee also 
recommended suspension of the handling regulations, and that 
recommendation is being reviewed separately by USDA.
    A review of historical crop and price information, as well as 
preliminary information pertaining to the 2012-13 fiscal period, 
indicates that the producer price could average approximately $1,000 
per ton for fresh Washington apricots. Therefore, the estimated 
assessment revenue for the 2012-13 fiscal period as a percentage of 
total producer revenue is 0.05 percent for Washington apricots.
    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 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. 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. 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 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.
    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.
    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 Laurel May 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 2012-13 fiscal period began on April 1, 2012, 
and the marketing order requires that the rate of assessment for each 
fiscal period apply to all assessable apricots handled during such 
fiscal period; (2) the action decreases the assessment rate for 
assessable apricots beginning with the 2012-13 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 922

    Apricots, Marketing agreements, Reporting and recordkeeping 
requirements.

    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 or after April 1, 2012, an assessment rate of $0.50 per ton is 
established for the Washington Apricot Marketing Committee.

    Dated: November 30, 2012.
David R. Shipman,
Administrator, Agricultural Marketing Service.
[FR Doc. 2012-29435 Filed 12-5-12; 8:45 am]
BILLING CODE 3410-02-P