[Federal Register Volume 72, Number 64 (Wednesday, April 4, 2007)]
[Rules and Regulations]
[Pages 16263-16265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-6224]


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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: [email protected] or 
[email protected].
    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 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