[Federal Register Volume 71, Number 65 (Wednesday, April 5, 2006)]
[Rules and Regulations]
[Pages 16979-16982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3240]


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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: [email protected], 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: [email protected].

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