Marketing Order Regulating the Handling of Sweet Cherries Grown in Designated Counties in Washington; Decreased Assessment Rate, 65262-65265 [2019-25650]
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65262
Federal Register / Vol. 84, No. 229 / Wednesday, November 27, 2019 / Rules and Regulations
v. In paragraph (c)(1)(iii), remove the
phrase ‘‘section 11(d)’’ and add ‘‘section
12(d)’’ in its place;
■ vi. In paragraph (d) introductory text,
remove the phrase ‘‘11(e).’’ and add
‘‘12(e).’’ in its place;
■ vii. In paragraph (d)(4), remove the
phrase ‘‘sections 11(d)(2) and (3)’’ and
add ‘‘sections 12(d)(2) and (3)’’ in its
place;
■ viii. In paragraph (e)(2), remove the
phrase ‘‘7(b)’’ and add ‘‘8(b)’’ in its
place.
The revision and additions read as
follows:
■
§ 457.113 Coarse grains crop insurance
provisions.
The Coarse Grains Crop Insurance
Provisions for the 2020 and succeeding
crop years are as follows:
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1. Definitions.
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Following another crop (FAC). A
cropping practice, as defined in the
Special Provisions, in which a crop is
planted following another crop.
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Not following another crop (NFAC). A
cropping practice, as defined in the
Special Provisions, in which a crop is
planted not following a crop.
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2. Unit Division.
(a) In addition to the requirements of
section 34(a) of the Basic Provisions,
you may elect separate enterprise units
for FAC or NFAC cropping practices if
these cropping practices are allowed by
the actuarial documents. If you elect
enterprise units for these cropping
practices, you may not elect enterprise
or optional units by irrigation practices.
(1) You may elect one enterprise unit
for all FAC cropping practices, all NFAC
cropping practices, or separate
enterprise units for both, unless
otherwise specified in the Special
Provisions. For example: You may
choose an enterprise unit for all FAC
acreage (soybeans irrigated practice and
non-irrigated practice) and an enterprise
unit for all NFAC acreage (soybeans
irrigated practice and non-irrigated
practice).
(2) You are only eligible if both FAC
and NFAC cropping practices are
allowed by the actuarial documents for
each irrigation practice you use. If FAC
and NFAC cropping practices are only
allowed for the non-irrigated practice,
separate enterprise units for FAC and
NFAC cropping practices are not
available if you use the irrigated
practice; but if you use only nonirrigated FAC and NFAC cropping
practices, separate enterprise units for
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non-irrigated FAC and NFAC cropping
practices are available.
(3) You must separately meet the
requirements in section 34(a)(4) for each
enterprise unit.
(4) If you elected separate enterprise
units for both cropping practices and we
discover you do not qualify for an
enterprise unit for one or the other
cropping practice and such discovery is
made:
(i) On or before the acreage reporting
date, you may elect to insure all acreage
of the crop in the county in one
enterprise unit provided you meet the
requirements in section 34(a)(4), or your
unit division will be based on basic or
optional units, whichever you report on
your acreage report and qualify for; or
(ii) At any time after the acreage
reporting date, your unit structure will
be one enterprise unit provided you
meet the requirements in section
34(a)(4). Otherwise, we will assign the
basic unit structure.
(5) If you elected an enterprise unit on
one cropping practice for FAC or NFAC
and a different unit structure on the
other cropping practice and we discover
you do not qualify for an enterprise unit
for the FAC or NFAC cropping practice
and such discovery is made:
(i) On or before the acreage reporting
date, your unit division will be based on
basic or optional units, whichever you
report on your acreage report and
qualify for; or
(ii) At any time after the acreage
reporting date, we will assign the basic
unit structure.
(b) Instead of establishing optional
units as provided in section 34(c) of the
Basic Provisions, if allowed by the
actuarial documents, you may have
separate optional units for the FAC
cropping practice and the NFAC
cropping practice. These optional units
will be by section, section equivalent, or
FSA FN and by the FAC cropping
practice and the NFAC cropping
practice. These optional units cannot be
further divided by irrigated and nonirrigated acreage or by acreage insured
under an organic farming practice.
(c) If FAC or NFAC cropping practices
are only available by written agreement,
separate enterprise units or optional
units for FAC or NFAC cropping
practices are not available.
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Martin Barbre,
Manager, Federal Crop Insurance
Corporation.
[FR Doc. 2019–25862 Filed 11–26–19; 8:45 am]
BILLING CODE 3410–08–P
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 923
[Doc. No. AMS–SC–19–0049; SC19–923–1
FR]
Marketing Order Regulating the
Handling of Sweet Cherries Grown in
Designated Counties in Washington;
Decreased Assessment Rate
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
This final rule implements a
recommendation from the Washington
Cherry Marketing Committee
(Committee) to decrease the assessment
rate established for the 2019–2020 and
subsequent fiscal periods. The
assessment rate will remain in effect
indefinitely unless modified,
suspended, or terminated.
DATES: Effective December 27, 2019.
FOR FURTHER INFORMATION CONTACT: Dale
Novotny, Marketing Specialist, or Gary
Olson, Regional Director, Northwest
Marketing Field Office, Marketing Order
and Agreement Division, Specialty
Crops Program, AMS, USDA;
Telephone: (503) 326–2724, Fax: (503)
326–7440, or Email: dalej.novotny@
usda.gov or GaryD.Olson@usda.gov.
Small businesses may request
information on complying with this
regulation by contacting Richard Lower,
Marketing Order and Agreement
Division, Specialty Crops Program,
AMS, USDA, 1400 Independence
Avenue SW, STOP 0237, Washington,
DC 20250–0237; Telephone: (202) 720–
2491, Fax: (202)720–8938, or Email:
Richard.Lower@usda.gov.
SUPPLEMENTARY INFORMATION: This
action, pursuant to 5 U.S.C. 553,
amends regulations issued to carry out
a marketing order as defined in 7 CFR
900.2(j). This final rule is issued under
Marketing Order No. 923, as amended (7
CFR part 923), regulating the handling
of sweet cherries grown in designated
counties of Washington. Part 923
(referred to as 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 Committee locally
administers the Order and is comprised
of sweet cherry growers and handlers
operating within the area of production.
The Department of Agriculture
(USDA) is issuing this rule in
conformance with Executive Orders
13563 and 13175. This final rule falls
within a category of regulatory actions
SUMMARY:
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that the Office of Management and
Budget (OMB) exempted from Executive
Order 12866 review. Additionally,
because this rule does not meet the
definition of a significant regulatory
action, it does not trigger the
requirements contained in Executive
Order 13771. See OMB’s Memorandum
titled ‘‘Interim Guidance Implementing
Section 2 of the Executive Order of
January 30, 2017, titled ‘Reducing
Regulation and Controlling Regulatory
Costs’ ’’ (February 2, 2017).
This rule has been reviewed under
Executive Order 12988, Civil Justice
Reform. Under the Order now in effect,
Washington sweet cherry handlers are
subject to assessments. Funds to
administer the marketing order are
derived from such assessments. The
assessment rate will be applicable to all
assessable Washington sweet cherries
for the 2019–2020 fiscal period, 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 a marketing order
may file with USDA a petition stating
that the order, any provision of the
marketing order, or any obligation
imposed in connection with the
marketing order is not in accordance
with law and request a modification of
the marketing 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.
The Order authorizes the Committee,
with the approval of USDA, to formulate
an annual budget of expenses and
collect assessments from handlers to
administer the program. Committee
members are familiar with the
Committee’s needs and with the costs of
goods and services in their local area
and can formulate an appropriate
budget and assessment rate. The
assessment rate is formulated and
discussed in a public meeting where all
directly affected persons have an
opportunity to participate and provide
input.
This final rule decreases the
assessment rate from $0.25 to $0.20 per
ton of Washington sweet cherries
handled for the 2019–2020 and
subsequent fiscal periods. The lower
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rate is necessary to fund the
Committee’s 2019–2020 fiscal period
budgeted expenditures while
maintaining the Committee’s financial
reserve fund at an amount not exceeding
approximately one fiscal period’s
operational expenses. Based on input
received from growers at an annual
meeting, the 2019 crop of Washington
sweet cherries is expected to be similar
in volume compared to the 2018 crop.
The Committee believes that decreasing
the continuing assessment rate will
allow the Committee to fully fund its
2019–2020 budgeted expenses and
maintain its financial reserve within the
limits established in the Order.
The Committee held a well-publicized
meeting May 8, 2019, where all
interested parties were encouraged to
participate in the discussions. However,
the Order’s quorum requirement was
not met, and the Committee was not
able to conduct official business. The
following day, the Committee
conducted the vote by email and, with
a vote of 15–1, recommended 2019–
2020 fiscal period budgeted
expenditures of $56,250 and an
assessment rate of $0.20 per ton of sweet
cherries handled. In comparison, last
year’s budgeted expenditures were
$55,750. The assessment rate of $0.20 is
$0.05 lower than the $0.25 per ton rate
currently in effect. The Committee
recommended the assessment rate
decrease because of a normal size crop
estimate and a financial reserve fund
balance that was higher than the
Committee believes is responsible. At
the recommended assessment rate and
budgeted expenditures, the Committee
expects its financial reserve to be
$55,093 at the end of the 2019–2020
fiscal period, which would be within
the limits set in the Order.
The major expenditures
recommended by the Committee for the
2019–2020 fiscal period include $25,000
for program management contract
services provided by the Washington
State Fruit Commission, $7,250 for
administrative expenses, $7,000 for
regulation proceedings, $5,000 for data
management, $5,000 for research,
$4,000 for an annual audit, and $3,000
for travel. In comparison, these major
expense categories budgeted for the
2018–2019 fiscal period were $25,000,
$6,950, $7,000, $5,000, $5,000, $3,800,
and $3,000, respectively.
The assessment rate recommended by
the Committee was derived by
considering anticipated expenses,
expected sweet cherry sales, and the
amount of funds available in the
authorized reserve. Expected income
derived from handler assessments of
$40,000 (200,000 tons of sweet cherries
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65263
at $0.20 per ton), plus $5 interest
income and $16,245 from the reserve
would be adequate to cover budgeted
expenses of $56,250. Funds from the
reserve (estimated to be $71,338 at the
beginning of the 2019–2020 fiscal
period) will be used to supply part of
the Committee’s 2019–2020 expenses in
an effort to keep the reserve within the
maximum permitted by § 923.142(a).
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 will be
in effect 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 would evaluate Committee
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 budget for subsequent
fiscal periods would be reviewed and,
as appropriate, approved by USDA.
Final Regulatory Flexibility Act
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
final 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
businesses subject to such actions in
order that small businesses will not be
unduly or disproportionately burdened.
Marketing orders issued pursuant to the
Act are unique in that they are brought
about through group action of
essentially small entities acting on their
own behalf.
There are approximately 1,450
growers and 37 handlers of sweet
cherries in the regulated production
area subject to regulation under the
Order. Small agricultural service firms
are defined by the Small Business
Administration (SBA) as those having
annual receipts of less than $30,000,000,
and small agricultural producers are
defined as those having annual receipts
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of less than $1,000,000 (13 CFR
121.201).
According to data from USDA Market
News, the 2018 season average f.o.b.
price for Washington sweet cherries was
approximately $35.14 per 15-pound
carton. The Committee reported that the
industry shipped 3,964 tons for the
season, which equals approximately
27,394,133 cartons (204,456 tons at a net
weight of 15 pounds per carton). Using
the number of handlers, and assuming
a normal distribution, most handlers
would have average annual receipts of
more than $30,000,000 ($35.14 times
27,394,133 cartons equals $962,629,845
divided by 37 handlers equals
$26,017,022 per handler).
In addition, based on USDA National
Agricultural Statistics Service data, the
weighted average grower price for the
2018 season was $1,900 per ton of sweet
cherries. Based on grower price,
shipment data, and the total number of
Washington sweet cherry growers, and
assuming a normal distribution, the
average annual grower revenue is below
$1,000,000 ($1,900 times 205,456 tons
equals $390,366,400 divided by 1,450
growers equals $269,218 per grower).
Thus, most growers of Washington
sweet cherries may be classified as
small entities, but most of their handlers
may be classified as large entities.
This final rule decreases the
assessment rate collected from handlers
for the 2019–2020 and subsequent fiscal
periods from $0.25 to $0.20 per ton of
Washington sweet cherries handled.
The Committee recommended 2019–
2020 fiscal period expenditures of
$56,250 and the $0.20 per ton
assessment rate with an affirmative vote
of 15–1. The one dissenting voter gave
no reason for their opposition. The
assessment rate of $0.20 is $0.05 lower
than the rate for the 2018–2019 fiscal
period.
The Committee estimates that the
industry will handle 200,000 tons of
fresh, Washington sweet cherries during
the 2019–2020 fiscal period. Thus, the
$0.20 per ton rate should provide
$40,000 in assessment income. Income
derived from handler assessments, along
with $5 interest income and $16,245
from the reserve, will cover all budgeted
expenses.
The major expenditures
recommended by the Committee for the
2019–2020 fiscal period include $25,000
for program management contract
services provided by the Washington
State Fruit Commission, $7,250 for
administrative expenses, $7,000 for
regulation proceedings, $5,000 for data
management, $5,000 for research,
$4,000 for an annual audit, and $3,000
for travel. In comparison, these major
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expense categories budgeted for the
2018–2019 fiscal period were $25,000,
$6,950, $7,000, $5,000, $5,000, $3,800,
and $3,000, respectively.
The lower assessment rate will cover
most of the Committee’s 2019–2020
fiscal period budgeted expenditures,
with the remaining balance to come
from the financial reserve. Decreasing
the continuing assessment rate and
using some funds from the reserve will
allow the Committee to fully fund
budgeted expenses and bring its
financial reserve to a level that is
compliant with the Order.
Prior to arriving at this budget and
assessment rate, the Committee
considered maintaining the current
assessment rate of $0.25 per ton.
However, after grower input and
discussions at the May 8, 2019, meeting,
the Committee projected the 2019 crop
to be similar in volume to the previous
year. This amount of production at the
current assessment level of $0.25 per
ton would generate enough assessment
income to fund the Committee’s
operations for the 2019–2020 fiscal
period, but its financial reserve would
be too high and not in compliance with
the Order. Based on estimated
shipments, the recommended
assessment rate of $0.20 per ton of sweet
cherries should provide $40,000 in
assessment income. The Committee
determined assessment revenue will be
adequate to cover most of its budgeted
expenditures for the 2019–2020 fiscal
period, with the remaining balance
coming from its financial reserve.
Reserve funds will be kept within the
amount authorized in the Order.
A review of historical data and
preliminary information pertaining to
the upcoming fiscal period indicates
that the average grower price range for
the 2019–2020 season should be
approximately $1,598–$3,081 per ton of
Washington sweet cherries. Therefore,
the estimated assessment revenue for
the 2019–2020 fiscal period as a
percentage of total grower revenue
would be between 0.007 and 0.013
percent.
The Committee’s meetings are widely
publicized throughout the Washington
sweet cherry industry. All interested
persons are invited to attend the
meetings and participate in Committee
deliberations on all issues. Like all
Committee meetings, the May 8, 2019,
meeting was a public meeting and all
entities, both large and small, were able
to express views on this issue.
Interested persons were invited to
submit comments on this rule,
including the regulatory and
information collection impacts of this
action on small businesses.
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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 OMB and
assigned OMB No. 0581–0189, Fruit
Crops. No changes in those
requirements will be necessary because
of this action. Should any changes
become necessary, they will be
submitted to OMB for approval.
This final 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. As noted in the final
regulatory flexibility analysis, USDA
has not identified any relevant Federal
rules that duplicate, overlap, or conflict
with this final 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 proposed rule concerning this
action was published in the Federal
Register on September 23, 2019 (84 PR
49682). Copies of the proposed rule
were provided to all Washington sweet
cherry handlers. The proposal was also
made available through the internet by
USDA and the Office of the Federal
Register. A 30-day comment period
ending October 23, 2019, was provided
for interested persons to respond to the
proposal. No comments were received.
Accordingly, no changes will be made
to the rule as proposed.
A small business guide on complying
with fruit, vegetable, and specialty crop
marketing agreements and orders may
be viewed at: https://www.ams.usda.gov/
rules-regulations/moa/small-businesses.
Any questions about the compliance
guide should be sent to Richard Lower
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 will tend to effectuate the
declared policy of the Act.
List of Subjects in 7 CFR Part 923
Marketing agreements, Fruits,
Reporting and recordkeeping
requirements, Cherries.
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For the reasons set forth in the
preamble, 7 CFR part 923 is amended as
follows:
Program Development; Telephone: (202)
720–0089.
SUPPLEMENTARY INFORMATION:
PART 923—MARKETING ORDER
REGULATING THE HANDLING OF
SWEET CHERRIES GROWN IN
DESIGNATED COUNTIES IN
WASHINGTON
Background
On April 12, 2019, FSIS proposed to
amend its regulations to remove lists of
foreign countries eligible to export meat,
poultry, or processed egg products to
the United States and, instead, maintain
such lists on its website (84 FR 14894).
The proposal noted that it did not
include any changes to the criteria FSIS
uses to evaluate whether a foreign
country is eligible. The proposal also
described how removing the lists from
the regulations would affect FSIS’s
process for implementing equivalence
determinations. Instead of publishing
proposed and final rules in the Federal
Register, FSIS will now implement
equivalence determinations through
Federal Register notices with requests
for public comment. FSIS will respond
to public comments in any Federal
Register notice that finalizes an
equivalence determination. FSIS will
also use this process when it is
necessary to terminate the eligibility of
a foreign country. This final rule will
allow FSIS to convey more clearly
information on countries’ equivalence
status. Once the rule is in place, the list
posted on the website will not conflict
with any outdated information in the
Federal Register. In addition to
removing the lists from the regulations,
the Agency proposed to amend six parts
of 9 CFR Chapter III (310, 327, 381, 424,
557, 590) to remove references to the
lists.
After reviewing comments on the
proposed rule, FSIS is finalizing it
without changes, except for nonsubstantive changes, for clarity, to the
regulatory language proposed for 9 CFR
327.2(b).
Authority: 7 U.S.C. 601–674.
■
2. Revise 923.236 to read as follows:
§ 923.263
Assessment rate.
On and after April 1, 2019, an
assessment rate of $0.20 per ton is
established for the Washington Cherry
Marketing Committee.
Dated: November 21, 2019.
Bruce Summers,
Administrator, Agricultural Marketing
Service.
[FR Doc. 2019–25650 Filed 11–26–19; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
9 CFR Parts 310, 327, 381, 424, 557,
and 590
[Docket No. FSIS–2018–0027]
RIN 0583–AD72
Publication Method for Lists of Foreign
Countries Eligible To Export Meat,
Poultry, or Egg Products to the United
States
Food Safety and Inspection
Service, USDA.
ACTION: Final rule.
AGENCY:
The Food Safety and
Inspection Service (FSIS) is amending
its regulations to remove lists of foreign
countries eligible to export meat,
poultry, and egg products to the United
States. FSIS will maintain a single list
of eligible foreign countries on its
website. The criteria FSIS uses to
evaluate whether a foreign country is
eligible to export meat, poultry, or egg
products has not changed. This rule will
allow FSIS to more efficiently and
clearly communicate equivalence
determinations by maintaining a single
list of exporting countries on its
website, rather than maintaining one list
on the website and outdated lists in the
codified regulations. In addition, the
Agency is amending it regulations to
remove references to the lists.
DATES: Effective December 27, 2019.
FOR FURTHER INFORMATION CONTACT:
Terri Nintemann, Assistant
Administrator, Office of Policy and
SUMMARY:
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Responses to Comments
FSIS received 15 comments, from 13
individuals, an industry association
representing egg processors, and a
consumer advocacy organization. The
issues raised in the comments and the
Agency responses are summarized
below.
Comments: FSIS received comments
relating to the use of online lists. One
individual questioned the use of online
lists as potentially confusing or difficult
to locate by stakeholders. Another
recommended that FSIS ensure that the
online lists are updated soon after
determinations are finalized. The
consumer advocacy organization
believed that keeping equivalence
determinations on FSIS’s website could
invite hacking or mistakes and
expressed concern that some
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65265
individuals do not have access to the
internet.
Response: FSIS does not believe these
concerns warrant reconsideration of the
use of online lists. This rule’s
amendments to the Code of Federal
Regulations (CFR) direct readers to the
web address where FSIS maintains the
list, www.fsis.usda.gov/importlibrary.
FSIS will additionally publish notice of
equivalence determinations in the
Federal Register and include links to
these determinations in its Constituent
Update, which is posted weekly on
FSIS’s website. FSIS will ensure that its
web content managers update the online
lists shortly after any final
determination is published in the
Federal Register. FSIS’s website is
protected to ensure that only authorized
users may gain access or make changes.
The system keeps track of past versions,
which may be restored if needed.
Therefore, no hacking event could
permanently alter the entries on the
lists.
Comments: The industry group
supported the proposed rule, but urged
FSIS not to weaken its equivalence
standards, reduce opportunities for
public participation, or make any
currently public aspects of the
equivalence process non-public. It also
urged FSIS to be more transparent in its
investigations, audits, and
determinations and ensure that the
offices of the Under Secretary for Food
Safety and the Secretary of Agriculture
provide oversight for equivalence
determinations. The consumer advocacy
organization opposed the proposed rule
as undermining the importance of
equivalence determinations.
Response: Under this final rule, FSIS
is not changing its equivalence
standards or opportunities for public
comment. FSIS will continue to
maintain the same level of transparency
in these determinations by publishing
its on-site audit reports and allowing for
public comment on preliminary
equivalence determinations. The offices
of the Under Secretary for Food Safety
and the Secretary of Agriculture
currently review every preliminary and
final equivalence determination made
by FSIS and will continue to do so
under this final rule.
Comments: The industry group also
recommended that FSIS create specific
regulatory requirements establishing a
comment period for Federal Register
notices of equivalence determinations
and a provision mandating that the
Agency will respond to comments in the
Federal Register. The consumer
advocacy organization advocated for a
60-day comment period for all
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]]>Agencies
[Federal Register Volume 84, Number 229 (Wednesday, November 27, 2019)]
[Rules and Regulations]
[Pages 65262-65265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25650]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 923
[Doc. No. AMS-SC-19-0049; SC19-923-1 FR]
Marketing Order Regulating the Handling of Sweet Cherries Grown
in Designated Counties in Washington; Decreased Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule implements a recommendation from the
Washington Cherry Marketing Committee (Committee) to decrease the
assessment rate established for the 2019-2020 and subsequent fiscal
periods. The assessment rate will remain in effect indefinitely unless
modified, suspended, or terminated.
DATES: Effective December 27, 2019.
FOR FURTHER INFORMATION CONTACT: Dale Novotny, Marketing Specialist, or
Gary Olson, Regional Director, Northwest Marketing Field Office,
Marketing Order and Agreement Division, Specialty Crops Program, AMS,
USDA; 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 Richard Lower, Marketing Order and Agreement
Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue
SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491,
Fax: (202)720-8938, or Email: [email protected].
SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553,
amends regulations issued to carry out a marketing order as defined in
7 CFR 900.2(j). This final rule is issued under Marketing Order No.
923, as amended (7 CFR part 923), regulating the handling of sweet
cherries grown in designated counties of Washington. Part 923 (referred
to as 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 Committee locally administers the Order
and is comprised of sweet cherry growers and handlers operating within
the area of production.
The Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Orders 13563 and 13175. This final rule
falls within a category of regulatory actions
[[Page 65263]]
that the Office of Management and Budget (OMB) exempted from Executive
Order 12866 review. Additionally, because this rule does not meet the
definition of a significant regulatory action, it does not trigger the
requirements contained in Executive Order 13771. See OMB's Memorandum
titled ``Interim Guidance Implementing Section 2 of the Executive Order
of January 30, 2017, titled `Reducing Regulation and Controlling
Regulatory Costs'[thinsp]'' (February 2, 2017).
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. Under the Order now in effect, Washington sweet cherry
handlers are subject to assessments. Funds to administer the marketing
order are derived from such assessments. The assessment rate will be
applicable to all assessable Washington sweet cherries for the 2019-
2020 fiscal period, 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 a marketing order may file with USDA a
petition stating that the order, any provision of the marketing order,
or any obligation imposed in connection with the marketing order is not
in accordance with law and request a modification of the marketing
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.
The Order authorizes the Committee, with the approval of USDA, to
formulate an annual budget of expenses and collect assessments from
handlers to administer the program. Committee members are familiar with
the Committee's needs and with the costs of goods and services in their
local area and can formulate an appropriate budget and assessment rate.
The assessment rate is formulated and discussed in a public meeting
where all directly affected persons have an opportunity to participate
and provide input.
This final rule decreases the assessment rate from $0.25 to $0.20
per ton of Washington sweet cherries handled for the 2019-2020 and
subsequent fiscal periods. The lower rate is necessary to fund the
Committee's 2019-2020 fiscal period budgeted expenditures while
maintaining the Committee's financial reserve fund at an amount not
exceeding approximately one fiscal period's operational expenses. Based
on input received from growers at an annual meeting, the 2019 crop of
Washington sweet cherries is expected to be similar in volume compared
to the 2018 crop. The Committee believes that decreasing the continuing
assessment rate will allow the Committee to fully fund its 2019-2020
budgeted expenses and maintain its financial reserve within the limits
established in the Order.
The Committee held a well-publicized meeting May 8, 2019, where all
interested parties were encouraged to participate in the discussions.
However, the Order's quorum requirement was not met, and the Committee
was not able to conduct official business. The following day, the
Committee conducted the vote by email and, with a vote of 15-1,
recommended 2019-2020 fiscal period budgeted expenditures of $56,250
and an assessment rate of $0.20 per ton of sweet cherries handled. In
comparison, last year's budgeted expenditures were $55,750. The
assessment rate of $0.20 is $0.05 lower than the $0.25 per ton rate
currently in effect. The Committee recommended the assessment rate
decrease because of a normal size crop estimate and a financial reserve
fund balance that was higher than the Committee believes is
responsible. At the recommended assessment rate and budgeted
expenditures, the Committee expects its financial reserve to be $55,093
at the end of the 2019-2020 fiscal period, which would be within the
limits set in the Order.
The major expenditures recommended by the Committee for the 2019-
2020 fiscal period include $25,000 for program management contract
services provided by the Washington State Fruit Commission, $7,250 for
administrative expenses, $7,000 for regulation proceedings, $5,000 for
data management, $5,000 for research, $4,000 for an annual audit, and
$3,000 for travel. In comparison, these major expense categories
budgeted for the 2018-2019 fiscal period were $25,000, $6,950, $7,000,
$5,000, $5,000, $3,800, and $3,000, respectively.
The assessment rate recommended by the Committee was derived by
considering anticipated expenses, expected sweet cherry sales, and the
amount of funds available in the authorized reserve. Expected income
derived from handler assessments of $40,000 (200,000 tons of sweet
cherries at $0.20 per ton), plus $5 interest income and $16,245 from
the reserve would be adequate to cover budgeted expenses of $56,250.
Funds from the reserve (estimated to be $71,338 at the beginning of the
2019-2020 fiscal period) will be used to supply part of the Committee's
2019-2020 expenses in an effort to keep the reserve within the maximum
permitted by Sec. 923.142(a).
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 will be in effect 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 would evaluate Committee
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 budget for subsequent
fiscal periods would be reviewed and, as appropriate, approved by USDA.
Final Regulatory Flexibility Act
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 final 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
businesses subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act are unique in that they are brought about through
group action of essentially small entities acting on their own behalf.
There are approximately 1,450 growers and 37 handlers of sweet
cherries in the regulated production area subject to regulation under
the Order. Small agricultural service firms are defined by the Small
Business Administration (SBA) as those having annual receipts of less
than $30,000,000, and small agricultural producers are defined as those
having annual receipts
[[Page 65264]]
of less than $1,000,000 (13 CFR 121.201).
According to data from USDA Market News, the 2018 season average
f.o.b. price for Washington sweet cherries was approximately $35.14 per
15-pound carton. The Committee reported that the industry shipped 3,964
tons for the season, which equals approximately 27,394,133 cartons
(204,456 tons at a net weight of 15 pounds per carton). Using the
number of handlers, and assuming a normal distribution, most handlers
would have average annual receipts of more than $30,000,000 ($35.14
times 27,394,133 cartons equals $962,629,845 divided by 37 handlers
equals $26,017,022 per handler).
In addition, based on USDA National Agricultural Statistics Service
data, the weighted average grower price for the 2018 season was $1,900
per ton of sweet cherries. Based on grower price, shipment data, and
the total number of Washington sweet cherry growers, and assuming a
normal distribution, the average annual grower revenue is below
$1,000,000 ($1,900 times 205,456 tons equals $390,366,400 divided by
1,450 growers equals $269,218 per grower). Thus, most growers of
Washington sweet cherries may be classified as small entities, but most
of their handlers may be classified as large entities.
This final rule decreases the assessment rate collected from
handlers for the 2019-2020 and subsequent fiscal periods from $0.25 to
$0.20 per ton of Washington sweet cherries handled. The Committee
recommended 2019-2020 fiscal period expenditures of $56,250 and the
$0.20 per ton assessment rate with an affirmative vote of 15-1. The one
dissenting voter gave no reason for their opposition. The assessment
rate of $0.20 is $0.05 lower than the rate for the 2018-2019 fiscal
period.
The Committee estimates that the industry will handle 200,000 tons
of fresh, Washington sweet cherries during the 2019-2020 fiscal period.
Thus, the $0.20 per ton rate should provide $40,000 in assessment
income. Income derived from handler assessments, along with $5 interest
income and $16,245 from the reserve, will cover all budgeted expenses.
The major expenditures recommended by the Committee for the 2019-
2020 fiscal period include $25,000 for program management contract
services provided by the Washington State Fruit Commission, $7,250 for
administrative expenses, $7,000 for regulation proceedings, $5,000 for
data management, $5,000 for research, $4,000 for an annual audit, and
$3,000 for travel. In comparison, these major expense categories
budgeted for the 2018-2019 fiscal period were $25,000, $6,950, $7,000,
$5,000, $5,000, $3,800, and $3,000, respectively.
The lower assessment rate will cover most of the Committee's 2019-
2020 fiscal period budgeted expenditures, with the remaining balance to
come from the financial reserve. Decreasing the continuing assessment
rate and using some funds from the reserve will allow the Committee to
fully fund budgeted expenses and bring its financial reserve to a level
that is compliant with the Order.
Prior to arriving at this budget and assessment rate, the Committee
considered maintaining the current assessment rate of $0.25 per ton.
However, after grower input and discussions at the May 8, 2019,
meeting, the Committee projected the 2019 crop to be similar in volume
to the previous year. This amount of production at the current
assessment level of $0.25 per ton would generate enough assessment
income to fund the Committee's operations for the 2019-2020 fiscal
period, but its financial reserve would be too high and not in
compliance with the Order. Based on estimated shipments, the
recommended assessment rate of $0.20 per ton of sweet cherries should
provide $40,000 in assessment income. The Committee determined
assessment revenue will be adequate to cover most of its budgeted
expenditures for the 2019-2020 fiscal period, with the remaining
balance coming from its financial reserve. Reserve funds will be kept
within the amount authorized in the Order.
A review of historical data and preliminary information pertaining
to the upcoming fiscal period indicates that the average grower price
range for the 2019-2020 season should be approximately $1,598-$3,081
per ton of Washington sweet cherries. Therefore, the estimated
assessment revenue for the 2019-2020 fiscal period as a percentage of
total grower revenue would be between 0.007 and 0.013 percent.
The Committee's meetings are widely publicized throughout the
Washington sweet cherry industry. All interested persons are invited to
attend the meetings and participate in Committee deliberations on all
issues. Like all Committee meetings, the May 8, 2019, meeting was a
public meeting and all entities, both large and small, were able to
express views on this issue. Interested persons were invited to submit
comments on this rule, including the regulatory and information
collection 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 OMB and assigned OMB No. 0581-0189, Fruit
Crops. No changes in those requirements will be necessary because of
this action. Should any changes become necessary, they will be
submitted to OMB for approval.
This final 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. As noted in the
final regulatory flexibility analysis, USDA has not identified any
relevant Federal rules that duplicate, overlap, or conflict with this
final 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 proposed rule concerning this action was published in the Federal
Register on September 23, 2019 (84 PR 49682). Copies of the proposed
rule were provided to all Washington sweet cherry handlers. The
proposal was also made available through the internet by USDA and the
Office of the Federal Register. A 30-day comment period ending October
23, 2019, was provided for interested persons to respond to the
proposal. No comments were received. Accordingly, no changes will be
made to the rule as proposed.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions
about the compliance guide should be sent to Richard Lower 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 will tend to
effectuate the declared policy of the Act.
List of Subjects in 7 CFR Part 923
Marketing agreements, Fruits, Reporting and recordkeeping
requirements, Cherries.
[[Page 65265]]
For the reasons set forth in the preamble, 7 CFR part 923 is
amended as follows:
PART 923--MARKETING ORDER REGULATING THE HANDLING OF SWEET CHERRIES
GROWN IN DESIGNATED COUNTIES IN WASHINGTON
Authority: 7 U.S.C. 601-674.
0
2. Revise 923.236 to read as follows:
Sec. 923.263 Assessment rate.
On and after April 1, 2019, an assessment rate of $0.20 per ton is
established for the Washington Cherry Marketing Committee.
Dated: November 21, 2019.
Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2019-25650 Filed 11-26-19; 8:45 am]
BILLING CODE 3410-02-P
