[Federal Register: November 13, 2006 (Volume 71, Number 218)]
[Rules and Regulations]
[Page 66093-66095]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13no06-1]
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Rules and Regulations
Federal Register
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[[Page 66093]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 922
[Docket No. FV06-922-2 FIR]
Apricots Grown in Designated Counties in Washington; Temporary
Relaxation of the Minimum Grade Requirement
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final
rule, without change, an interim final rule that relaxed the minimum
grade requirement prescribed under the Washington apricot marketing
order for the 2006 shipping season. 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 continues in effect the
action that relaxed the fresh apricot minimum grade requirement from
Washington No. 1 grade to Washington No. 2 grade. Taking into
consideration pre-harvest hail damage, this change was made for the
purpose of increasing the supply of marketable fresh apricots while
increasing the potential for higher producer returns.
EFFECTIVE DATE: December 13, 2006.
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; or E-Mail:
Robert.Curry@usda.gov or GaryD.Olson@usda.gov.
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.
The interim final rule being adopted by this rule relaxed the
minimum grade requirement for fresh apricots produced in Washington
State from Washington No. 1 grade to Washington No. 2 grade. Based on
pre-harvest hail damage, this change was made for the purpose of
increasing the supply of marketable fresh apricots while increasing the
potential for higher producer returns. 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 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.''
The interim final rule being adopted by this action revised
paragraph (a)(1) of Sec. 922.321 by temporarily changing the minimum
grade requirement for fresh shipments of apricots from Washington No. 1
grade to Washington No. 2 grade for the 2006 shipping season only. This
change was based on a request from a handler representing several
producers and recommended by the Committee in a vote of nine to one to
facilitate the handling of fruit damaged by hail. The
[[Page 66094]]
2006 Washington apricot shipping season started in late June and ended
in early September, with most shipments made by early August. The
Washington No. 1 minimum grade requirement will resume April 1, 2007,
for the 2007 season and future seasons.
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.
Last spring, the Committee 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 relaxation in
the grade requirement provided for the handling of a larger portion of
the Washington apricot crop than would have been permitted if the
minimum grade requirement had remained at Washington No. 1. This action
helped the industry meet consumer demand while providing for better
producer returns.
Final 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 final 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
(SBA) (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 2,235.5 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 both the average annual producer and handler
revenue figures are under the limits established by SBA, it is
reasonable to assume that the majority of producers and handlers of
Washington apricots may be classified as small entities.
This rule adopts, as a final rule, an interim final rule that
revised paragraph (a)(1) of Sec. 922.321 by temporarily changing the
minimum grade requirement for fresh shipments of apricots from
Washington No. 1 grade to Washington No. 2 grade 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 believes that this action has not negatively impacted
small businesses. The interim final rule relaxed the minimum grade
requirement in the order's handling regulations and was intended to
provide enhanced marketing opportunities for the Washington apricot
industry.
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.
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.
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. In addition, as noted in the initial
regulatory flexibility analysis, USDA has not identified any relevant
Federal rules that duplicate, overlap or conflict with this rule.
An interim final rule regarding this action was published in the
Federal Register on August 2, 2006. Copies of the rule were made
available to the apricot industry by the Committee's staff, as well as
through the Internet by USDA and the Office of the Federal Register.
That rule provided for a 60-day comment period which ended October 2,
2006. No comments were received.
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.
After consideration of all relevant material presented, including
the Committee's recommendation, and other information, it is found that
the
[[Page 66095]]
interim final rule, without change, as published in the Federal
Register (71 FR 43643, August 2, 2006) will tend to effectuate the
declared policy of the Act.
List of Subjects in 7 CFR Part 922
Apricots, Marketing agreements, Reporting and recordkeeping
requirements.
PART 922--APRICOTS GROWN IN DESIGNATED COUNTIES IN WASHINGTON
0
Accordingly, the interim final rule amending 7 CFR part 922 which was
published at 71 FR 43643 on August 2, 2006, is adopted as a final rule
without change.
Dated: November 7, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E6-19079 Filed 11-9-06; 8:45 am]
BILLING CODE 3410-02-P