[Federal Register: August 2, 2006 (Volume 71, Number 148)]
[Rules and Regulations]
[Page 43641-43643]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02au06-1]
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Rules and Regulations
Federal Register
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[[Page 43641]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 922
[Docket No. FV06-922-2 IFR]
Apricots Grown in Designated Counties in Washington; Temporary
Relaxation of the Minimum Grade Requirement
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This rule relaxes the minimum grade requirement prescribed
under the Washington apricot marketing order for the 2006 shipping
season only. The marketing order regulates the handling of fresh
apricots grown in designated counties in the State of Washington, and
is administered locally by the Washington Apricot Marketing Committee
(Committee). This rule relaxes the minimum grade requirement for fresh
apricots from Washington No. 1 grade to Washington No. 2 grade. This
rule will enable handlers to ship more fruit into fresh market
channels, taking into consideration hail damage caused to Washington
apricots during the growing season. This change is expected to increase
returns to producers and to make more fresh apricots available to
consumers.
DATES: Effective August 3, 2006, through March 31, 2007. Comments
received by October 2, 2006 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 Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC
20250-0237; Fax: (202) 720-8938; E-mail: moab.docketclerk@usda.gov, or
Internet: http://www.regulations.gov. All comments should reference the
docket number and the date and page number of this issue of the Federal
Register and will be made available for public inspection in the Office
of the Docket Clerk during regular business hours or can be viewed at:
http://www.ams.usda.gov/fv/moab.html.
FOR FURTHER INFORMATION CONTACT: Robert J. Curry or Gary D. Olson,
Northwest Marketing Field Office, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW Third Avenue,
Suite 385, Portland, Oregon 97204-2807; Telephone: (503) 326-2724; Fax:
(503) 326-7440.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone (202) 720-
2491; Fax: (202) 720-8938; or E-mail: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement and Order No. 922 (7 CFR part 922) 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. This rule is not intended to have retroactive effect.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
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 relaxes the minimum grade requirement for fresh apricots
from Washington No. 1 grade to Washington No. 2 grade. This rule will
enable handlers to ship more fruit into fresh market channels, taking
into consideration hail damage caused to Washington apricots during the
growing season. This change is expected to increase returns to
producers and to make more fresh apricots available to consumers. The
minimum grade requirement will revert to Washington No. 1 grade on
April 1, 2007, for the 2007 and future seasons.
Section 922.52 of the order authorizes the issuance of regulations
for grade, size, quality, maturity, pack, and container for any variety
of apricots grown in the production area. Section 922.53 further
authorizes the modification, suspension, or termination of regulations
issued pursuant to Sec. 922.52. Section 922.55 provides that whenever
apricots are regulated pursuant to Sec. Sec. 922.52 or 922.53, such
apricots must be inspected by the Federal-State Inspection Service, and
certified as meeting the applicable requirements of such regulations.
Minimum grade, maturity, color, and size requirements for
Washington apricots regulated under the order are specified in Sec.
922.321 Apricot Regulation 21. Section 922.321 provides, in part, that
no handler shall handle any container of apricots unless such apricots
grade not less than Washington No. 1, except for shipments subject to
exemption under the regulation. In addition, the section provides that
the Moorpark variety in open containers must be generally well matured.
That section also provides that, with the exception of exempt
shipments, apricots must be at least reasonably uniform in color, and
be not less than 1\5/8\ inches in diameter, except
[[Page 43642]]
for the Blenheim, Blenril, and Tilton varieties which must be not less
than 1\1/4\ inches in diameter. Individual shipments of apricots are
exempt from these requirements if sold for home use only, do not, in
the aggregate, exceed 500 pounds net weight, and each container is
stamped or marked with the words ``not for resale.''
This rule revises paragraph (a)(1) of Sec. 922.321 by temporarily
changing the minimum grade requirement for fresh shipments of apricots
from Washington No. 1 to Washington No. 2 for the 2006 season only. The
Washington No. 1 minimum grade requirement will resume April 1, 2007,
for the 2007 season and future seasons.
Based on a request from a handler representing several producers,
the Committee recommended by a vote of nine to one that the grade
requirement be relaxed for the 2006 season to facilitate the handling
of fruit damaged by hail. The Committee requested that this relaxation
be effective by the beginning of the 2006 Washington apricot shipping
season, which is expected to be around July 1, 2006.
The Committee meets prior to and during each season to consider
recommendations for modification, suspension, or termination of the
regulatory requirements for Washington apricots which have been issued
on a continuing basis. Committee meetings are open to the public and
interested persons may express their views at these meetings. The USDA
reviews information submitted by, and recommendations from, the
Committee and other available information to determine whether
modification, suspension, or termination of the regulatory requirements
would tend to effectuate the declared policy of the Act.
The Committee has conveyed to USDA that widely scattered hail
damage was reported within the Washington apricot production area as a
result of late spring storms. The severe weather conditions resulted in
damage to the crop making it difficult for apricots to meet the minimum
grade requirements of Washington No. 1. The Committee's original crop
estimate for the 2006 season was established at 5,000 tons. With the
full extent of hail damage unknown at this time, the Committee has not
established a revised crop estimate. However, taking into account the
reported damage, this rule provides for the handling of a larger
portion of the Washington apricot crop this season than would be
allowed if the minimum grade requirement were to remain at Washington
No. 1. Relaxation of the grade requirement for the 2006 Washington
apricot crop is intended to increase fresh shipments to meet consumer
needs and improve returns to producers.
This rule relaxes the grade requirement specified in Sec. 922.321.
This rule will not effect the color and minimum size requirements for
all varieties or the well matured requirements for the Moorpark
variety.
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. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 300 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 $6,500,000.
For the 2005 apricot shipping season, the Washington Agricultural
Statistics Service prepared a preliminary report showing that the total
5,600 ton apricot utilization sold for an average of $997 per ton.
Based on the number of producers in the production area (300), the
average annual producer revenue from the sale of apricots in 2005 can
thus be estimated at approximately $18,611.
Average revenue per handler can be estimated using f.o.b. prices.
According to USDA's Market News Service, 2005 fresh apricot f.o.b.
prices ranged from $15.00 to $20.00 per 24-pound loose-pack container,
and from $14.00 to $24.00 for 2-layer tray pack containers (which weigh
an average of about 20 pounds each). Total apricot sales revenue at the
f.o.b. shipper level can be estimated by taking the midpoints of each
of the two ranges ($17.50 and $19.00) as representative annual average
prices for each of the container types. The 2005 season fresh apricot
pack-out of 4,471 tons can be assumed to be equally divided between the
two container types, yielding an estimated quantity packed in each
container type of 2235.5 tons, or 4.471 million pounds. Dividing this
quantity by the pounds per container yields the following handler sales
revenue estimates: (a) 186,292 24-pound loose-pack containers, with an
average price of $17.50, valued at $3,260,110 and (b) 223,550 two-layer
tray pack containers, with an average price of $19.00, valued at
$4,246,500. Combining the estimated handler sales revenue for the two
container types ($7,506,610) and dividing by the number of handlers
(22) yields an annual average fresh apricot sales revenue estimate per
handler of $341,210. Since this figure is well under $750,000 (the SBA
definition of the minimum sales of a large agricultural service firm),
it is reasonable to assume that the majority of producers and handlers
of Washington apricots may be classified as small entities.
This rule revises paragraph (a)(1) of Sec. 922.321 by temporarily
changing the minimum grade requirement for fresh shipments of apricots
from Washington No. 1 to Washington No. 2 for the 2006 season only. The
Washington No. 1 minimum grade requirement will resume April 1, 2007,
for the 2007 season and future seasons. Section 922.52 of the order
authorizes the issuance of regulations for grade, size, quality,
maturity, pack, and container for any variety of apricots grown in the
production area. Section 922.53 further authorizes the modification,
suspension, or termination of regulations issued pursuant to Sec.
922.52.
The Committee anticipates that this rule will not negatively impact
small businesses. This rule relaxes the minimum grade requirement in
the order's handling regulations and should provide enhanced marketing
opportunities.
Given the emergency nature of the relaxation, the Committee's
recommendation was made via the vote-by-mail procedures of the order.
With ten of the twelve members responding, nine members supported the
temporary grade change and one member opposed it. The only alternative
to a grade relaxation offered on the ballot was to leave the minimum
grade at Washington No. 1, which was not adopted.
This rule will not impose any additional reporting or recordkeeping
requirements on either small or large 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.
[[Page 43643]]
AMS is committed to compliance with the Government Paperwork
Elimination Act (GPEA), which requires Government agencies in general
to provide the public the option of submitting information or
transacting business electronically to the maximum extent possible.
In addition, 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: http://www.ams.usda.gov/fv/moab.html.
Any questions about the compliance
guide should be sent to Jay Guerber at the previously mentioned address
in the FOR FURTHER INFORMATION CONTACT section.
This rule invites comments on relaxation of the minimum grade
requirement under the Washington apricot marketing order. Any comments
received will be considered prior to finalization of this rule.
After consideration of all relevant material presented, including
the Committee's recommendation, and other information, it is found that
the minimum grade requirement in Sec. 922.321 should be temporarily
relaxed from Washington No. 1 grade to Washington No. 2 grade in order
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) This rule relaxes the minimum grade requirement for
Washington apricots for the 2006 shipping season; (2) Washington
apricot handlers are aware of this recommendations and need no
additional time to comply with the relaxed requirements; (3) this rule
should be in effect as close as possible to July 1, 2006, the date
shipments of the 2006 Washington apricot crop are expected to begin;
and (4) this rule provides a 60-day comment period, and any comments
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.
0
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.
Sec. 922.321 [Amended]
0
2. Section 922.321 is amended by revising paragraph (a)(1) to read as
follows:
(a) * * *
(1) Minimum grade and maturity requirements. Such apricots that
grade not less than Washington No. 1 and are at least reasonably
uniform in color: Provided, That during the period July 1, 2006,
through March 31, 2007, the minimum grade requirement for such apricots
shall be not less than Washington No. 2; Provided further, That such
apricots of the Moorpark variety in open containers shall be generally
well matured: and
* * * * *
Dated: July 27, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E6-12410 Filed 8-1-06; 8:45 am]
BILLING CODE 3410-02-P