[Federal Register: April 5, 2006 (Volume 71, Number 65)]
[Rules and Regulations]
[Page 16979-16982]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ap06-3]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 922
[Docket No. FV06-922-1 IFR]
Apricots Grown in Designated Counties in Washington; Temporary
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 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 relaxation of the regulations provides the apricot
industry with increased marketing flexibility by allowing handlers to
pack and ship apricots in any size, shape, or
[[Page 16980]]
type of container. The Committee recommended a temporary suspension of
the container regulations so that it can thoroughly evaluate the impact
the relaxation has on the apricot industry prior to taking any action
for subsequent seasons.
DATES: Effective April 6, 2006, through March 31, 2007. Comments
received by June 5, 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, 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 George Kelhart, Technical Advisor, 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.
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 suspends the container regulations (Sec. 922.306)
prescribed under the order until March 31, 2007. This rule will provide
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 resume on April 1,
2007, for the 2007-2008 and future seasons unless the Committee
recommends, and the USDA approves, action to extend the suspension. 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 is completed prior to any possible future
action regarding the issue of container regulation suspension.
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. To provide the industry with needed flexibility, handlers are
also authorized to make test shipments in experimental containers. This
provision (Sec. 922.110), whenever container regulations are
effective, allows handlers to apply to the Committee seasonally to pack
and ship in containers that would otherwise not be authorized by the
container regulations.
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 8, 2006, meeting, the
Committee unanimously recommended suspending the container regulations
for the 2006 shipping season. The Committee recommended that this rule
be effective no later than June 1, 2006, to ensure that the earliest
shipments of apricots benefit from the relaxed regulations.
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.
Comments made at the public meeting indicate that container
standardization has contributed to orderly marketing in the past.
Handlers report that buyers are increasingly interested in non-
traditional packaging options designed for better handling and greater
consumer acceptance. Handlers also desire greater latitude in choosing
the optimum weight for a particular type of pack. Packaging options
could also include consumer-friendly ``clam shell'' containers or other
similar type
[[Page 16981]]
containers designed to enhance the appearance of individual pieces of
fruit.
This temporary suspension of the container regulations will provide
the industry with such flexibility, while providing the Committee with
the ability to evaluate the effect the relaxation has on the orderly
marketing of the apricot crop during the 2006 shipping season.
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 $6,000,000.
For the 2005 apricot shipping season, the Washington Agricultural
Statistics Service has 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. 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.
With about half of the 2005 season fresh apricot pack-out of 4,471 tons
in loose-pack containers and about half in tray-pack containers
(weighing an average of about 20 pounds each), all the industry's
handlers would have averaged gross receipts of less than $750,000 from
the sale of fresh apricots. Thus, the majority of producers and
handlers of Washington apricots may be classified as small entities.
At its February 8, 2006, meeting the Committee recommended the
temporary suspension of the order's container regulations (Sec.
922.306). 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. The temporary relaxation in the
container regulations is expected 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. Rapidly changing market dynamics have
convinced the Committee that such standardization may no longer be
necessary to ensure orderly marketing. The Committee recommended a
temporary suspension so it can conduct a thorough evaluation of the
impact the relaxation had on the industry during the 2006 shipping
season prior to taking any further action for subsequent seasons.
The Committee anticipates that this rule will not negatively impact
small businesses. This rule suspends the container requirements found
under Sec. 922.306 of the order's rules and regulations and should
provide enhanced marketing opportunities. The Committee anticipates
that the only additional costs this rule may have on the industry would
be associated with the development and use of any new containers.
The Committee discussed alternatives to its recommendation to
suspend the container regulations. Primary amongst these was the option
of leaving the container regulations intact without change. After some
discussion, the Committee rejected this option as being an inadequate
response to the growing interest for greater flexibility in packaging.
The Committee also discussed whether to recommend an indefinite
suspension of the container regulations--an alternative which was
rejected in favor of evaluation of the suspension's impact.
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.
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.
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 8, 2006, 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.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 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 regulation should be temporarily suspended 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 suspends the container regulations for
Washington apricots for the 2006 shipping season; (2) the temporary
suspension of the container regulations 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 and need no
additional time to comply with the relaxed requirements; (4) this rule
should be in effect by June 1, 2006, the date 2006 season shipments of
the Washington apricot crop are expected to
[[Page 16982]]
begin, and this action should apply to the entire season's shipments;
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 in its entirety through
March 31, 2007.
Dated: March 30, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 06-3240 Filed 4-4-06; 8:45 am]
BILLING CODE 3410-02-P