[Federal Register Volume 72, Number 133 (Thursday, July 12, 2007)]
[Rules and Regulations]
[Pages 37991-37993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-13538]



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 Rules and Regulations
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  Federal Register / Vol. 72, No. 133 / Thursday, July 12, 2007 / Rules 
and Regulations  

[[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: [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 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