[Federal Register Volume 71, Number 137 (Tuesday, July 18, 2006)]
[Rules and Regulations]
[Pages 40637-40639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-11302]



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 Rules and Regulations
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  Federal Register / Vol. 71, No. 137 / Tuesday, July 18, 2006 / Rules 
and Regulations  

[[Page 40637]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 922

[Docket No. FV06-922-1 FIR]


Apricots Grown in Designated Counties in Washington; Temporary 
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 that 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 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 Date: Effective August 17, 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.
    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.''
    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 temporary suspension of the 
container regulations (Sec.  922.306) prescribed under the order until 
March 31, 2007. This rule 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 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. When 
container regulations are effective, this provision (Sec.  922.110) 
allows handlers to apply to the Committee seasonally to pack and ship 
in containers that would otherwise not be authorized by the 
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

[[Page 40638]]

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, however, 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 containers designed to enhance the appearance of 
individual pieces of fruit.
    This temporary suspension of the container regulations provides the 
industry with needed flexibility, while providing the Committee with 
the ability to evaluate the affect the relaxation has on the orderly 
marketing of the apricot crop during the 2006 shipping season.

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 
(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 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 unanimously 
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.
    An interim final rule regarding this action was published in the 
Federal Register on April 5, 2006. Copies of the rule were made 
available by the Committee staff to all Committee members and apricot 
handlers. In addition, the rule was made available through the Internet 
by USDA and the Office of the Federal Register. That rule provided for 
a 60-day comment period

[[Page 40639]]

which ended June 5, 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 
finalization of the interim final rule, without change, as published in 
the Federal Register (71 FR 16982, April 5, 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 16982 on April 5, 2006, is adopted as a final rule 
without change.

    Dated: July 12, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
 [FR Doc. E6-11302 Filed 7-17-06; 8:45 am]
BILLING CODE 3410-02-P