[Federal Register: April 4, 2007 (Volume 72, Number 64)]
[Rules and Regulations]
[Page 16263-16265]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04ap07-2]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 922
[Docket No. AMS-FV-07-0031; FV07-922-1 IFR]
Apricots Grown in Designated Counties in Washington; Suspension
of Container Regulations
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This rule suspends the container regulations prescribed under
the Washington apricot marketing order by extending the temporary 2006
season suspension indefinitely. 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 indefinite suspension of the
container regulations will continue to provide the apricot industry
with increased marketing flexibility by allowing handlers to pack and
ship apricots in any size, shape, or type of container. After
evaluating the impact the temporary 2006 season container regulation
suspension has had on the industry, the Committee determined that
container regulations no longer contribute to the orderly marketing of
the fresh apricot crop.
DATES: Effective April 1, 2007. Comments received by June 4, 2007 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; 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.regulations.gov
.
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 of 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 indefinitely extends the temporary 2006 season container
regulation suspension (Sec. 922.306), which ends on March 31, 2007. As
it effectively did during the 2006 shipping season, this regulatory
suspension will provide additional flexibility to the apricot industry
by allowing handlers to
[[Page 16264]]
pack apricots in any type, shape, or size container. The container
regulations prescribed under Sec. 922.306 will remain suspended for
the 2007 and future seasons unless the Committee recommends, and USDA
approves, action to reinstate the regulations. For the 2006 season, the
Committee recommended a temporary suspension of the regulations rather
than an open-ended suspension to help ensure that a thorough analysis
of the 2006 shipping season would be completed prior to any potential
future action regarding the issue of container regulation suspension.
The Committee has reviewed the 2006 shipping season and determined that
the industry can successfully market its fresh apricot crop without the
container regulations in place. Consequently, the Committee has
concluded that the Washington apricot industry is now best served by an
open-ended suspension of Sec. 922.306. To facilitate prompt
reinstatement of the container regulations in the future should market
conditions warrant such, the Committee recommended that the 2006
temporary regulation suspension be extended rather than replaced by a
permanent removal of the regulations from the order.
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 922.52(a)(3)
specifically authorizes the establishment of the container regulations
found in Sec. 922.306. Section 922.53 authorizes the modification,
suspension, or termination of regulations issued pursuant to Sec.
922.52.
Authority to regulate the size, weight, dimension and pack of
containers used in the marketing of fresh apricots was included in the
order when promulgated in 1957. Container regulatory authority was
included in the order to provide container standardization, to enhance
orderly marketing conditions, and to provide for increased producer
returns.
The Committee meets prior to each season to consider
recommendations for modification, suspension, or termination of any
regulatory requirements for Washington apricots that are 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 the Committee recommendations along with any supportive
information submitted by the Committee, as well as information from
other available resources, and determines whether modification,
suspension, or termination of the regulatory requirements would tend to
effectuate the declared policy of the Act.
During such a review at its February 15, 2007, meeting, the
Committee determined, and unanimously recommended, that the 2006 season
container regulation suspension--effective from April 1, 2006, through
March 31, 2007--be extended indefinitely. For a seamless extension of
the suspension, the Committee recommended that this rule be effective
by April 1, 2007.
When effective, Sec. 922.306 provides that apricots must be
handled domestically in (1) open containers or telescopic fiberboard
cartons weighing 28 pounds or greater; (2) closed containers with 14
pounds or more of apricots packed in a row-faced or tray-pack
configuration; (3) closed containers with 12 pounds (or more) of random
sized, non row-faced apricots; or (4) closed containers with 24 pounds
or more of loose-packed apricots.
In reaching a consensus to extend the 2006 regulatory suspension,
Committee members found that arguments made in favor of the suspension
at the meeting a year ago are still appropriate. They noted that
container standardization had contributed to orderly marketing in the
past, but buyers today are increasingly interested in non-traditional
packaging options designed for better handling and greater consumer
acceptance. Furthermore, handler members stated that they now enjoy a
greater latitude in choosing the optimum container weight for a
particular pack or customer. Committee members were unanimous in the
opinion that this indefinite extension of the container regulation
suspension will continue to provide the industry with the flexibility
needed to meet the challenges of marketing fresh apricots.
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
(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.
Data from the Washington Agricultural Statistics Service shows that
the total 5,900 ton Washington apricot utilization sold for an average
of $969 per ton in 2005 with a total value of $5,715,000. 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 $19,050. In addition, based on information
from the Committee and USDA's Market News Service, 2005 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. Assuming that
equal quantities of the 2005 season fresh apricot pack-out of 4,471
tons went into loose-pack (24-pound) containers and tray-pack
containers (weighing an average of about 20 pounds each), average gross
receipts per handler from the sale of fresh apricots would have been
approximately one half of the annual sales figure that the SBA uses to
define the minimum size of a large agricultural service business
($750,000). Thus, the majority of producers and handlers of Washington
apricots may be classified as small entities.
At its February 15, 2007, meeting the Committee recommended that
the temporary suspension of the order's container regulations (Sec.
922.306)--effective from April 1, 2006, through March 31, 2007--be
indefinitely extended to cover the 2007 shipping season as well as all
future seasons. Section 922.52(a)(3) of the order specifically
authorizes the establishment of container regulations. Further, Sec.
922.53 authorizes the modification, suspension, or termination of
regulations issued pursuant to Sec. 922.52. This indefinite extension
of the container regulation suspension is expected to continue to
provide the apricot industry with increased marketing flexibility by
allowing handlers to pack and ship apricots in any size, shape, or type
of container. Container regulations have been utilized in past seasons
to provide a degree of standardization and thus have helped in
providing the industry with orderly marketing conditions.
[[Page 16265]]
However, changing market dynamics and the experience gained through the
2006 suspension have convinced the Committee that container
standardization is no longer necessary to ensure orderly marketing.
Last year, rather than seeking an indefinite suspension of the
regulations, the Committee recommended a temporary suspension so that
it could conduct a thorough evaluation of the impact the relaxation
would have on the industry during the 2006 shipping season prior to
taking any further action for subsequent seasons. In reviewing the 2006
season at the February 15, 2007, meeting, the Committee easily reached
a consensus that an indefinite continuation of the container regulation
suspension would best fit the industry's marketing needs.
The Committee anticipates that this rule will not negatively impact
small businesses. This rule extends the suspension of the container
requirements found under Sec. 922.306 of the order's rules and
regulations and should continue to provide enhanced marketing
opportunities.
The Committee discussed--and subsequently rejected--alternatives to
its recommendation to extend the container regulation suspension. These
included allowing the reinstatement of the regulations (by not taking
any action) and continuing with annual and temporary regulatory
suspensions such as recommended for the 2006 season. With a successful
season behind them, Committee members were unanimous in their decision
to recommend to USDA an extension of the container regulations
suspension for an indefinite period.
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, USDA has not identified any
relevant Federal rules that duplicate, overlap or conflict with this
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.
The Committee's meeting was widely publicized throughout the
Washington apricot industry and all interested persons were invited to
attend the meeting and participate in Committee deliberations. Like all
Committee meetings, the February 15, 2007, meeting was a public meeting
and all entities, both large and small, were able to express their
views on this issue.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at: http://www.am.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 an indefinite extension of the
suspension of the container regulations 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 suspension of the order's container regulations should be
indefinitely extended 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 extends the 2006 season container regulation
suspension for Washington apricots to include the 2007 and future
shipping seasons; (2) the indefinite extension of the container
regulation suspension was unanimously recommended by the Committee at a
public meeting and all interested persons had an opportunity to express
their views and provide input; (3) Washington apricot handlers are
aware of this recommendation, are currently operating under relaxed
regulatory conditions, and need no additional time to comply with the
continued relaxed requirements; (4) this rule should be in effect by
April 1, 2007, to ensure a seamless continuation of the current
container regulation suspension; and (5) 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. 922.306 [Suspended]
0
2. In part 922, Sec. 922.306 is suspended indefinitely.
Dated: March 29, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E7-6224 Filed 4-3-07; 8:45 am]
BILLING CODE 3410-02-P