[Federal Register Volume 77, Number 235 (Thursday, December 6, 2012)]
[Rules and Regulations]
[Pages 72683-72686]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29436]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 923

[Doc. No. AMS-FV-12-0026; FV12-923-1 IR]


Sweet Cherries Grown in Designated Counties in Washington; 
Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule decreases the assessment rate established for the 
Washington Cherry Marketing Committee (Committee) for the 2012-2013 and 
subsequent fiscal periods from $0.40 to $0.18 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 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: http://www.regulations.gov. Comments should reference the document 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

[[Page 72684]]

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: Teresa Hutchinson or Gary Olson, 
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 Laurel May, 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: Laurel.May@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, 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 2012-2013 and subsequent fiscal periods from $0.40 to 
$0.18 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 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 2007-2008 and subsequent fiscal periods, the Committee 
recommended, and 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 15, 2012, and unanimously recommended 
2012-2013 expenditures of $64,400 and an assessment rate of $0.18 per 
ton of sweet cherries. In comparison, last year's budgeted expenditures 
were $72,200. The assessment rate of $0.18 is $0.22 lower than the rate 
currently in effect. The Committee recommended the lower assessment 
rate for the purpose of decreasing the monetary reserve, which is 
approximately $107,074. Funds in the reserve must be kept within the 
maximum permitted by the order of approximately one fiscal period's 
operational expenses (Sec.  923.42).
    The major expenditures recommended by the Committee for the 2012-
2013 fiscal period include $20,000 for administration and data 
management fees; $35,000 for Committee expenses such as travel, 
accounting, and compliance; $5,000 for contingency; and $4,400 for 
office expenses--including bonds, insurance, telephone, office 
equipment and supplies. Budgeted expenses for these items in 2011-2012 
were $22,500, $38,000, $2,500, and $9,200, respectively.
    The assessment rate recommended by the Committee was derived by 
multiplying anticipated shipments of Washington sweet cherries by 
various assessment rates. Applying the $0.18 per ton assessment rate to 
the Committee's 120,000 ton crop estimate should provide $21,600 in 
assessment income. Thus, income derived from handler assessments and 
interest ($5) plus $42,795 from the Committee's monetary reserve would 
be adequate to cover the recommended $64,400 budget for 2012-2013. 
Funds in the reserve were $107,074 as of March 31, 2012. The Committee 
estimates a reserve of $64,279 on March 31, 2013, 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 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 2012-2013 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 
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

[[Page 72685]]

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.
    National Agricultural Statistics Service has prepared a preliminary 
report for the 2011 shipping season showing that the sweet cherry fresh 
market utilization of 165,000 tons sold for an average of $2,300 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 2011 
can therefore be estimated at approximately $253,000 per year. In 
addition, the Committee reports that most of the industry's 53 handlers 
would have each averaged gross receipts of less than $7,500,000 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 2012-2013 and subsequent 
fiscal periods from $0.40 to $0.18 per ton of sweet cherries. The 
Committee also unanimously recommended 2012-2013 expenditures of 
$64,400. The assessment rate of $0.18 is $0.22 lower than the previous 
rate. The quantity of assessable sweet cherries for the 2012-2013 
fiscal period is estimated at 120,000 tons. Thus, the $0.18 rate should 
provide $21,600 in assessment income. Income derived from handler 
assessments, along with interest income and funds from the Committee's 
authorized reserve, will be adequate to cover budgeted expenses.
    The Committee recommended the assessment rate decrease for the 
purpose of decreasing the monetary reserve, which is approximately 
$107,074. With this recommended assessment rate and budget, the 
Committee may need to draw $42,795 from its monetary reserve, thus 
helping to decrease the reserve to a level that is less than 
approximately one fiscal period's operating expenses, the maximum 
permitted by the order.
    The major expenditures recommended by the Committee for the 2012-
2013 fiscal period include $20,000 for administration and data 
management fees; $35,000 for Committee expenses such as travel, 
accounting, and compliance; $5,000 for contingency; and $4,400 for 
office expenses--including bonds, insurance, telephone, office 
equipment and supplies. Budgeted expenses for these items in 2011-2012 
were $22,500, $38,000, $2,500, and $9,200, respectively.
    The Committee discussed alternatives to this rule. Leaving the 
assessment rate at the current $0.40 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 information and preliminary information 
pertaining to the upcoming fiscal period indicates that the producer 
price for the 2012-2013 fiscal period could average $2,300 per ton of 
sweet cherries. Therefore, the estimated assessment revenue for the 
2012-2013 fiscal period as a percentage of total producer revenue is 
0.008 percent.
    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 sweet cherry 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 15, 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, 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 action imposes no 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.
    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 2012-2013 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 sweet cherries handled 
during such fiscal period; (2) this action decreases the assessment 
rate for assessable sweet cherries beginning with the 2012-2013 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:

[[Page 72686]]

PART 923--SWEET CHERRIES GROWN IN DESIGNATED COUNTIES IN WASHINGTON

0
1. The authority citation for 7 CFR part 923 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.


0
2. Section 923.236 is revised to read as follows:


Sec.  923.236  Assessment rate.

    On and after April 1, 2012, an assessment rate of $0.18 per ton is 
established for the Washington Cherry Marketing Committee.

    Dated: November 30, 2012.
David R. Shipman,
Administrator, Agricultural Marketing Service.
[FR Doc. 2012-29436 Filed 12-5-12; 8:45 am]
BILLING CODE 3410-02-P