[Federal Register: July 12, 2007 (Volume 72, Number 133)]
[Rules and Regulations]
[Page 37991-37993]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12jy07-1]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
[[Page 37991]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 922
[Docket No. AMS-FV-07-0031; FV07-922-1 FIR]
Apricots Grown in Designated Counties in Washington; Suspension
of Container Regulations
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Agriculture (USDA) is adopting, as a final
rule, without change, an interim final rule suspending the container
regulations prescribed under the Washington apricot marketing order.
This rule continues in effect the action that indefinitely extended the
temporary 2006 season container regulation suspension. 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 relaxation in
the regulatory requirements allows handlers to pack and ship apricots
in any size, shape, or type of container, thus providing the apricot
industry with increased marketing flexibility.
DATES: Effective Date: August 13, 2007.
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 continues in effect the indefinite suspension of the
order's container regulations. This regulatory suspension provides
additional flexibility to the apricot industry by allowing handlers to
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 only, the Committee recommended a temporary
suspension of the container regulations to help ensure that a thorough
analysis of that season would be completed prior to any possible future
action regarding the container regulations. After reviewing the effects
of the temporary suspension on the 2006 apricot shipping season, the
Committee determined that the industry could successfully market its
fresh apricot crop without the container regulations in place. The
Committee consequently concluded that the Washington apricot industry
would be best served by an open-ended suspension of Sec. 922.306. To
facilitate prompt reinstatement of the container regulations should
future market conditions warrant such, the Committee recommended that
the 2006 temporary regulation suspension be extended indefinitely
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
[[Page 37992]]
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 (71 FR 16979; 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
into the 2007 and future seasons, Committee members noted that,
although container standardization had contributed to orderly marketing
in the past, buyers today are increasingly interested in non-
traditional packaging options designed for better handling and greater
consumer acceptance. In addition, with the regulations suspended,
handler members concurred that they now enjoy greater latitude in
choosing the optimum container weight for a particular pack or
customer. Committee members were unanimous in the opinion that this
indefinite container regulation suspension provides the industry with
the flexibility needed to meet the challenges of marketing fresh
apricots.
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.
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. 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
[[Page 37993]]
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.
An interim final rule concerning this action was published in the
Federal Register on April 4, 2007. Copies of the rule were made
available to the Washington apricot industry by Committee staff, as
well as through the Internet by the USDA and the Office of the Federal
Register. That rule provided a 60-day comment period which ended June
4, 2007. 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
finalizing the interim final rule, without change, as published in the
Federal Register (72 FR 16263, April 4, 2007) 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 that was
published at 72 FR 16263 on April 4, 2007, is adopted as a final rule
without change.
Dated: July 9, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E7-13538 Filed 7-11-07; 8:45 am]
BILLING CODE 3410-02-P