Apricots Grown in Designated Counties in Washington; Temporary Suspension of Handling Regulations, 1127-1130 [2013-00129]
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1127
Rules and Regulations
Federal Register
Vol. 78, No. 5
Tuesday, January 8, 2013
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 922
[Docket No. AMS–FV–12–0028; FV12–922–
2 IR]
Apricots Grown in Designated
Counties in Washington; Temporary
Suspension of Handling Regulations
Agricultural Marketing Service,
USDA.
ACTION: Interim rule with request for
comments.
AGENCY:
This rule suspends the
minimum grade, size, quality, maturity,
and inspection requirements prescribed
under the Washington apricot marketing
order for the 2012–13 fiscal period. The
marketing order regulates the handling
of apricots grown in designated
Counties in Washington and is
administered locally by the Washington
Apricot Marketing Committee
(Committee). In order for the Committee
to continue collecting assessments and
administer the marketing order, the
Washington State Department of
Agriculture will provide apricot
handling data to the Committee during
the suspension of the handling
regulations. This rule is expected to
reduce overall industry expenses and
increase net returns to producers and
handlers.
SUMMARY:
Effective January 9, 2013 through
March 31, 2013; comments received by
March 11, 2013 will be considered prior
to the 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 and Agreement Division, Fruit
and Vegetable Program, AMS, USDA,
1400 Independence Avenue SW., STOP
0237, Washington, DC 20250–0237; Fax:
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DATES:
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(202) 720–8938; or Internet:
www.regulations.gov. All comments
should reference the document 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: www.regulations.gov. All comments
submitted in response to this rule will
be included in the record and will be
made available to the public. Please be
advised that the identity of the
individuals or entities submitting the
comments will be made public on the
Internet at the address provided above.
FOR FURTHER INFORMATION CONTACT:
Manuel Michel, Marketing Specialist, or
Gary Olson, Regional Manager,
Northwest Marketing Field Office,
Marketing Order and Agreement
Division, Fruit and Vegetable Program,
AMS, USDA; Telephone: (503) 326–
2724; Fax: (503) 326–7440; or Email:
Manuel.Michel@ams.usda.gov or
GaryD.Olson@ams.usda.gov.
Small businesses may request
information on complying with this
regulation by contacting Laurel May,
Marketing Order and Agreement
Division, Fruit and Vegetable Program,
AMS, USDA, 1400 Independence SW.,
STOP 0237, Washington, DC 20250–
0237; Telephone: (202) 720–2491, Fax:
(202) 720–8938, or Email:
Laurel.May@ams.usda.gov.
SUPPLEMENTARY INFORMATION: This rule
is issued under Marketing Agreement
and Order No. 922, as amended (7 CFR
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.
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
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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. A handler
is then 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 date of the entry of the
ruling.
This rule suspends the handling
regulations prescribed under the order
for the 2012–13 fiscal period.
Specifically, this rule suspends the
minimum grade, size, quality, maturity,
and inspection requirements under the
order. Notwithstanding the suspension
of the order’s handling regulations,
apricots handled in Washington must
still meet the state minimum grade
requirement of Washington No. 2.
As a direct result of the suspension of
the order’s handling regulations,
information from the Inspection Service
will no longer be available for the
Committee to compile industry statistics
and to assess handlers. However,
collaboration with the Washington State
Department of Agriculture will provide
the Committee access to apricot
handling data, similar to the handler
information that has been previously
collected and provided by the
Inspection Service.
Section 922.52 of the order authorizes
the issuance of regulations for grade,
size, quality, maturity, and pack for
apricots grown in the production area.
Section 922.53 authorizes the
modification, suspension, or
termination of regulations issued under
§ 922.52, whenever the Secretary finds
that a regulation no longer effectuates
the declared policy of the act.
Section 922.55 provides that
whenever the handling of any variety of
apricots is regulated pursuant to
§ 922.52 or § 922.53, such apricots must
be inspected by the Inspection Service,
and certified as meeting the applicable
requirements. The cost of this
inspection and certification is borne by
handlers.
Section 922.60 authorizes the
Committee, with the approval of USDA,
to require reports and other information
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from handlers that are necessary for the
Committee to perform its duties.
Minimum grade, size, quality,
maturity, and inspection requirements
for apricots regulated under the order
are specified in § 922.321 (the section
being suspended by this rule). When
effective, § 922.321, with exemptions for
certain varieties and types of shipments,
provides that all apricots shall grade not
less than Washington No. 1, and are at
least reasonably uniform in color;
provided, that such apricots of the
Moorpark variety in open containers
shall be generally well matured. The
regulation also includes a minimum
quantity exemption, as well as specific
tolerances for apricots that fail to meet
color, minimum diameter, and quality
requirements.
The Committee meets regularly to
review and consider recommendations
for the regulatory requirements of
Washington apricots. Committee
meetings are open to the public and
interested persons may express their
views at these meetings. The USDA
reviews Committee recommendations,
information submitted by the
Committee, and other available
information, and determines whether
modification, suspension, or
termination of the regulatory
requirements would tend to effectuate
the declared policy of the Act.
At its May 24, 2012, meeting, the
Committee unanimously recommended
suspending the order’s handling
regulations for the 2012 season. The
Committee requested that this rule be
effective immediately for the 2012–13
fiscal period, which began on April 1,
2012.
The objective of the handling
regulation has been to ensure that only
acceptable quality apricots enter fresh
market channels, thereby ensuring
consumer satisfaction, increasing sales,
and improving returns to producers.
The apricot industry recognizes the
continued importance of quality as a
significant factor in maintaining sales.
Some Committee members expressed
concern that the elimination of current
handling and inspection requirements
could potentially result in lower quality
apricots being shipped to fresh markets,
thereby affecting consumer demand.
There is also concern that if overall
quality declines, the Washington apricot
industry could lose sales to other
apricot producing regions.
However, due to the evolving nature
of fresh fruit marketing, many wholesale
and retail apricot buyers now require
their own specific criteria for product
quality from all handlers. Therefore, the
Committee believes the cost of
inspection and certification, which is
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mandated when the handling
regulations are in effect, may exceed the
benefits derived.
After much consideration, the
Committee recommended the
suspension of the handling regulations
prescribed under the order for the 2012–
13 fiscal period. This action will allow
the Committee to evaluate the impact
that suspended regulations will have on
the quality of Washington apricots.
Should the market situation so dictate,
the Committee may take appropriate
action to continue the suspension of the
handling regulations or recommend
termination of the order.
This rule enables Washington apricot
handlers to ship apricots without regard
to the order’s minimum grade, size,
quality, maturity, and inspection
requirements. This suspension action
will also allow handlers to decrease
their total costs by eliminating the
expenses associated with mandatory
inspection. However, this rule does not
impede handlers from seeking product
inspection on a voluntary basis if they
find inspection desirable. Prior to the
end of the fiscal period, the Committee
will evaluate the effect that the
suspension of the handling regulations
has on the 2012 market conditions and
on producer returns, and if necessary,
make recommendations to USDA for
changes.
The suspension of the handling
regulations will also result in the
elimination of the inspection certificates
being generated and forwarded to the
Committee office by the Inspection
Service. The Committee has used these
certificates as the basis for the collection
of handler assessments and for
compiling apricot industry statistics. As
a result of not having the information
provided by the inspection certificates,
the Committee will enter into a
memorandum of understanding with the
Washington State Department of
Agriculture in order to obtain the
information necessary to collect
assessments and generate statistical
information.
Authorization to assess handlers
enables the Committee to incur
expenses that are reasonable and
necessary to administer the program.
Consistent with the suspension of
§ 922.321, this rule also suspends
§ 922.111 of the rules and regulations in
effect under the order. Section 922.111
contains provisions for handlers to
apply for waivers from mandatory
inspection when such inspection is not
readily available from the Inspection
Service. With the suspension of
regulation, such waivers are no longer
necessary.
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Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in
the Regulatory Flexibility Act (RFA) (5
U.S.C. 601–612), the Agricultural
Marketing Service (AMS) has
considered the economic impact of this
action 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.
There are approximately 20 handlers
of Washington apricots who are subject
to regulation under the marketing order
and approximately 94 apricot producers
in the regulated area. Small agricultural
service firms are defined by the Small
Business Administration (SBA) (13 CFR
121.201) as those having annual receipts
of less than $7,000,000, and small
agricultural producers are defined as
those having annual receipts of less than
$750,000.
Apricot production has been
approximately 4,200 to 8,900 tons per
year for the past several years. The
National Agricultural Statistics Service
(NASS) reports that all Washington
apricot handlers combined ship
approximately $7,132,000 worth of
apricots during the 2011 season. In
addition, based on acreage, production,
and producer prices reported by NASS,
and the total number of Washington
apricot producers, average annual
producer receipts are approximately
$76,000, which is considerably less than
the $750,000 threshold. In view of the
foregoing, it can be concluded that a
majority of the handlers and producers
of Washington apricots may be
classified as small entities.
At its May 24, 2012, meeting, the
Committee unanimously recommended
suspending the handling regulations for
the 2012–13 fiscal period.
This rule suspends the handling
regulations specified in §§ 922.111 and
922.321. The suspension of these
handling regulations will allow the
Washington apricot industry to market
apricots without regard to minimum
grade, size, quality, maturity, and
inspection requirements prescribed
under the federal marketing order.
Authority for this action is provided in
§ 922.53.
The handling regulations help ensure
that only acceptable quality apricots
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enter fresh market channels, thereby
ensuring consumer satisfaction,
increasing sales, and improving returns
to producers. While the industry
continues to believe that quality is an
important factor in maintaining sales,
the Committee believes the cost of
inspection and certification may exceed
the benefits derived. The Committee
also believes that the demands of
wholesale buyers and consumers will
drive handlers and producers to
maintain a high level of product quality
without the necessity of minimum
quality standards and mandatory
inspections. The Committee will review
the outcome of the handling regulation
suspension prior to the end of the 2012–
13 fiscal period and determine if
continued suspension, or alternatively,
termination of the marketing order is
warranted. The handling regulations
will be automatically reinstated on
April 1, 2013.
Apricot prices have fluctuated
considerably in recent years, and at
times some producers have faced
difficulty covering their total costs. In
response to the adverse economic
conditions experienced by the industry,
the Committee discussed the possibility
of reducing expenses through the
elimination of mandatory inspection.
The Committee considered the potential
consequences of suspending the
handling and inspection requirements,
and how this could result in lower
quality apricots being shipped to fresh
markets. Also, if fruit quality were to
decline, there is some concern among
Committee members that the
Washington apricot industry could lose
sales to other apricot producing regions.
While acknowledging these concerns,
the Committee also believes that the
current marketing conditions make the
program unnecessary, because the costs
of regulation may be greater than the
benefits gained. Therefore, the
Committee recommended the
suspension of the handling regulations
for the 2012–13 fiscal period. The
Committee will review the impacts of
the suspension prior to the end of the
fiscal period and consider appropriate
actions for ensuing seasons.
This rule enables handlers to ship
apricots without regard to the order’s
minimum grade, size, quality, maturity,
and inspection requirements during the
2012–13 fiscal period. This rule allows
handlers to decrease their overall costs
by eliminating the costs associated with
mandatory inspection. This rule,
however, does not impede handlers
from seeking inspection on a voluntary
basis if they find inspection desirable.
The suspension of the handling
regulations will result in the elimination
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of mandatory inspections and, in turn,
the inspection certificates generated by
the Inspection Service and provided to
the Committee. The Committee has used
such certificates for assessment billing
purposes and for compiling industry
statistics. As a result of needing the
information that was previously
provided by the inspection certificates,
the Committee will enter into a
memorandum of understanding with the
Washington State Department of
Agriculture in order to obtain
information on which to collect
assessments and generate statistical
information.
The Committee anticipates that this
rule will not negatively impact small
handlers and producers because it
suspends minimum grade, size, quality,
maturity, and inspection requirements
prescribed under the order. The total
cost of inspection and certification for
fresh shipments of Washington apricots
during the 2011 marketing season is
estimated by the Committee to have
been $0.23 per hundredweight, or
approximately $12,700 total. This
represents approximately $635 per
handler. Since handlers may continue to
have their apricots voluntarily
inspected, the Committee expects that
some handlers will continue to have at
least a portion of their fresh apricots
inspected and certified by the
Inspection Service.
Alternatives to the suspension of the
handling regulations considered by the
Committee included maintaining the
status quo, suspending regulations
indefinitely, and terminating the
marketing order in its entirety. The
Committee believes that the
continuation of regulation would be an
unnecessary burden on the industry,
given the evolving marketing conditions
and future outlook. Thus, continuing to
regulate in the same manner was not a
viable option to the Committee. The
Committee also discussed suspending
regulation indefinitely, but rejected this
alternative at this time. The Committee
believes that suspending the handling
regulations for one season will provide
sufficient information to evaluate the
impact this has on the quality of
Washington apricots. Last of all, the
Committee considered terminating the
order in its entirety, but similarly
declined the option. The Committee
will review the impacts of the
suspension prior to the end of the fiscal
period and consider appropriate actions
for ensuing seasons.
In accordance with the Paperwork
Reduction Act of 1995, (44 U.S.C.
Chapter 35), the order’s information
collection requirements have been
previously approved by the Office of
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1129
Management and Budget (OMB) and
assigned OMB No. 0581–0189. No
changes in those requirements as a
result of this action are necessary.
Should any changes become necessary,
they would be submitted to OMB for
approval.
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 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.
In addition, USDA has not identified
any relevant Federal rules that
duplicate, overlap or conflict with this
rule.
Further, 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 May 24, 2012,
meeting was a public meeting and all
entities, both large and small, were able
to express their views on this issue.
Finally, interested persons are invited to
submit comments on this interim rule,
including the regulatory and
informational impacts of this action on
small businesses.
A small business guide on complying
with fruit, vegetable, and specialty crop
marketing agreements and orders may
be viewed at: www.ams.usda.gov/
MarketingOrdersSmallBusinessGuide.
Any questions about the compliance
guide should be sent to Laurel May at
the previously mentioned address in the
FOR FURTHER INFORMATION CONTACT
section.
This rule invites comments on the
suspension of the handling regulations
prescribed under the Washington
apricot marketing order. Any comments
timely 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
regulatory requirements no longer tend
to effectuate the declared policy of the
Act, and are therefore being suspended.
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
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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 interim rule is a
relaxation in the apricot handling
regulations and should be in place as
soon as possible for the 2012–13 fiscal
period; (2) handlers need to know as
soon as possible that they are free to
market their apricots without regard to
the order’s handling regulations; (3) this
issue has been widely discussed at
various industry and association
meetings and the Committee has kept
the industry well informed; (4) handlers
are aware of this rule, which was
recommended at a public meeting; 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.
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
1. The authority citation for 7 CFR
part 922 continues to read as follows:
■
Authority: 7 U.S.C. 601–674.
§§ 922.111 and 922.321
[Suspended]
2. In Part 922, §§ 922.111 and 922.321
are suspended in their entirety from
January 9, 2013 through March 31, 2013.
■
Dated: January 2, 2013.
David R. Shipman,
Administrator, Agricultural Marketing
Service.
[FR Doc. 2013–00129 Filed 1–7–13; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 987
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[Docket No. AMS–FV–12–0035; FV12–987–
1 IR]
Domestic Dates Produced or Packed in
Riverside County, CA; Decreased
Assessment Rate
Agricultural Marketing Service,
USDA.
ACTION: Interim rule with request for
comments.
AGENCY:
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This rule decreases the
assessment rate established for the
California Date Administrative
Committee (Committee) for the 2012–13
and subsequent crop years from $1.00 to
$0.90 per hundredweight of dates
handled. The Committee locally
administers the marketing order which
regulates the handling of dates grown or
packed in Riverside County, California.
Assessments upon date handlers are
used by the Committee to fund
reasonable and necessary expenses of
the program. The crop year begins
October 1 and ends September 30. The
assessment rate will remain in effect
indefinitely unless modified,
suspended, or terminated.
DATES: Effective January 9, 2013.
Comments received by March 11, 2013,
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 Agreement Division, Fruit and
Vegetable Programs, AMS, USDA, 1400
Independence Avenue SW., STOP 0237,
Washington, DC 20250–0237; Fax: (202)
720–8938; or Internet: https://
www.regulations.gov. Comments should
reference the docket number and the
date and page number of this issue of
the Federal Register and will be
available for public inspection in the
Office of the Docket Clerk during regular
business hours, or can be viewed at:
https://www.regulations.gov. All
comments submitted in response to this
rule will be included in the record and
will be made available to the public.
Please be advised that the identity of the
individuals or entities submitting the
comments will be made public on the
Internet at the address provided above.
FOR FURTHER INFORMATION CONTACT: Jeff
Smutny, Marketing Specialist, or Kurt J.
Kimmel, Regional Director, California
Marketing Field Office, Marketing Order
and Agreement Division, Fruit and
Vegetable Program, AMS, USDA;
Telephone: (559) 487–5901, Fax: (559)
487–5906, or Email:
Jeffrey.Smutny@ams.usda.gov or
Kurt.Kimmel@ams.usda.gov.
Small businesses may request
information on complying with this
regulation by contacting Laurel May,
Marketing Order and Agreement
Division, Fruit and Vegetable Program,
AMS, USDA, 1400 Independence
Avenue SW., STOP 0237, Washington,
DC 20250–0237; Telephone: (202) 720–
2491, Fax: (202) 720–8938, or Email:
Laurel.May@ams.usda.gov.
SUPPLEMENTARY INFORMATION: This rule
is issued under Marketing Agreement
SUMMARY:
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and Order No. 987, both as amended (7
CFR part 987), regulating the handling
of dates produced or packed in
Riverside County, California, 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. Under the marketing order now
in effect, Riverside County, California
date handlers are subject to assessments.
Funds to administer the order are
derived from such assessments. It is
intended that the assessment rate as
issued herein will be applicable to all
assessable dates beginning October 1,
2012, and continue until amended,
suspended, or terminated.
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 decreases the assessment
rate established for the Committee for
the 2012–13 and subsequent crop years
from $1.00 to $0.90 per hundredweight
of dates.
The California date marketing order
provides authority for the Committee,
with the approval of USDA, to formulate
an annual budget of expenses and
collect assessments from handlers to
administer the program. The members
of the Committee are producers and
handlers of Riverside County, California
dates. They are familiar with the
Committee’s needs and with the costs
for goods and services in their local area
and are thus in a position to formulate
an appropriate budget and assessment
rate. The assessment rate is formulated
and discussed in a public meeting.
Thus, all directly affected persons have
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Agencies
[Federal Register Volume 78, Number 5 (Tuesday, January 8, 2013)]
[Rules and Regulations]
[Pages 1127-1130]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-00129]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 78, No. 5 / Tuesday, January 8, 2013 / Rules
and Regulations
[[Page 1127]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 922
[Docket No. AMS-FV-12-0028; FV12-922-2 IR]
Apricots Grown in Designated Counties in Washington; Temporary
Suspension of Handling Regulations
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This rule suspends the minimum grade, size, quality, maturity,
and inspection requirements prescribed under the Washington apricot
marketing order for the 2012-13 fiscal period. The marketing order
regulates the handling of apricots grown in designated Counties in
Washington and is administered locally by the Washington Apricot
Marketing Committee (Committee). In order for the Committee to continue
collecting assessments and administer the marketing order, the
Washington State Department of Agriculture will provide apricot
handling data to the Committee during the suspension of the handling
regulations. This rule is expected to reduce overall industry expenses
and increase net returns to producers and handlers.
DATES: Effective January 9, 2013 through March 31, 2013; comments
received by March 11, 2013 will be considered prior to the 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 and Agreement Division, Fruit and Vegetable Program,
AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC
20250-0237; Fax: (202) 720-8938; or Internet: www.regulations.gov. All
comments should reference the document 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: www.regulations.gov. All comments
submitted in response to this rule will be included in the record and
will be made available to the public. Please be advised that the
identity of the individuals or entities submitting the comments will be
made public on the Internet at the address provided above.
FOR FURTHER INFORMATION CONTACT: Manuel Michel, Marketing Specialist,
or Gary Olson, Regional Manager, Northwest Marketing Field Office,
Marketing Order and Agreement Division, Fruit and Vegetable Program,
AMS, USDA; Telephone: (503) 326-2724; Fax: (503) 326-7440; or Email:
Manuel.Michel@ams.usda.gov or GaryD.Olson@ams.usda.gov.
Small businesses may request information on complying with this
regulation by contacting Laurel May, Marketing Order and Agreement
Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence
SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491,
Fax: (202) 720-8938, or Email: Laurel.May@ams.usda.gov.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement and Order No. 922, as amended (7 CFR 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.
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. A
handler is then 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 date of the
entry of the ruling.
This rule suspends the handling regulations prescribed under the
order for the 2012-13 fiscal period. Specifically, this rule suspends
the minimum grade, size, quality, maturity, and inspection requirements
under the order. Notwithstanding the suspension of the order's handling
regulations, apricots handled in Washington must still meet the state
minimum grade requirement of Washington No. 2.
As a direct result of the suspension of the order's handling
regulations, information from the Inspection Service will no longer be
available for the Committee to compile industry statistics and to
assess handlers. However, collaboration with the Washington State
Department of Agriculture will provide the Committee access to apricot
handling data, similar to the handler information that has been
previously collected and provided by the Inspection Service.
Section 922.52 of the order authorizes the issuance of regulations
for grade, size, quality, maturity, and pack for apricots grown in the
production area. Section 922.53 authorizes the modification,
suspension, or termination of regulations issued under Sec. 922.52,
whenever the Secretary finds that a regulation no longer effectuates
the declared policy of the act.
Section 922.55 provides that whenever the handling of any variety
of apricots is regulated pursuant to Sec. 922.52 or Sec. 922.53, such
apricots must be inspected by the Inspection Service, and certified as
meeting the applicable requirements. The cost of this inspection and
certification is borne by handlers.
Section 922.60 authorizes the Committee, with the approval of USDA,
to require reports and other information
[[Page 1128]]
from handlers that are necessary for the Committee to perform its
duties.
Minimum grade, size, quality, maturity, and inspection requirements
for apricots regulated under the order are specified in Sec. 922.321
(the section being suspended by this rule). When effective, Sec.
922.321, with exemptions for certain varieties and types of shipments,
provides that all apricots shall grade not less than Washington No. 1,
and are at least reasonably uniform in color; provided, that such
apricots of the Moorpark variety in open containers shall be generally
well matured. The regulation also includes a minimum quantity
exemption, as well as specific tolerances for apricots that fail to
meet color, minimum diameter, and quality requirements.
The Committee meets regularly to review and consider
recommendations for the regulatory requirements of Washington apricots.
Committee meetings are open to the public and interested persons may
express their views at these meetings. The USDA reviews Committee
recommendations, information submitted by the Committee, and other
available information, and determines whether modification, suspension,
or termination of the regulatory requirements would tend to effectuate
the declared policy of the Act.
At its May 24, 2012, meeting, the Committee unanimously recommended
suspending the order's handling regulations for the 2012 season. The
Committee requested that this rule be effective immediately for the
2012-13 fiscal period, which began on April 1, 2012.
The objective of the handling regulation has been to ensure that
only acceptable quality apricots enter fresh market channels, thereby
ensuring consumer satisfaction, increasing sales, and improving returns
to producers.
The apricot industry recognizes the continued importance of quality
as a significant factor in maintaining sales. Some Committee members
expressed concern that the elimination of current handling and
inspection requirements could potentially result in lower quality
apricots being shipped to fresh markets, thereby affecting consumer
demand. There is also concern that if overall quality declines, the
Washington apricot industry could lose sales to other apricot producing
regions.
However, due to the evolving nature of fresh fruit marketing, many
wholesale and retail apricot buyers now require their own specific
criteria for product quality from all handlers. Therefore, the
Committee believes the cost of inspection and certification, which is
mandated when the handling regulations are in effect, may exceed the
benefits derived.
After much consideration, the Committee recommended the suspension
of the handling regulations prescribed under the order for the 2012-13
fiscal period. This action will allow the Committee to evaluate the
impact that suspended regulations will have on the quality of
Washington apricots. Should the market situation so dictate, the
Committee may take appropriate action to continue the suspension of the
handling regulations or recommend termination of the order.
This rule enables Washington apricot handlers to ship apricots
without regard to the order's minimum grade, size, quality, maturity,
and inspection requirements. This suspension action will also allow
handlers to decrease their total costs by eliminating the expenses
associated with mandatory inspection. However, this rule does not
impede handlers from seeking product inspection on a voluntary basis if
they find inspection desirable. Prior to the end of the fiscal period,
the Committee will evaluate the effect that the suspension of the
handling regulations has on the 2012 market conditions and on producer
returns, and if necessary, make recommendations to USDA for changes.
The suspension of the handling regulations will also result in the
elimination of the inspection certificates being generated and
forwarded to the Committee office by the Inspection Service. The
Committee has used these certificates as the basis for the collection
of handler assessments and for compiling apricot industry statistics.
As a result of not having the information provided by the inspection
certificates, the Committee will enter into a memorandum of
understanding with the Washington State Department of Agriculture in
order to obtain the information necessary to collect assessments and
generate statistical information.
Authorization to assess handlers enables the Committee to incur
expenses that are reasonable and necessary to administer the program.
Consistent with the suspension of Sec. 922.321, this rule also
suspends Sec. 922.111 of the rules and regulations in effect under the
order. Section 922.111 contains provisions for handlers to apply for
waivers from mandatory inspection when such inspection is not readily
available from the Inspection Service. With the suspension of
regulation, such waivers are no longer necessary.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS)
has considered the economic impact of this action 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.
There are approximately 20 handlers of Washington apricots who are
subject to regulation under the marketing order and approximately 94
apricot producers in the regulated area. Small agricultural service
firms are defined by the Small Business Administration (SBA) (13 CFR
121.201) as those having annual receipts of less than $7,000,000, and
small agricultural producers are defined as those having annual
receipts of less than $750,000.
Apricot production has been approximately 4,200 to 8,900 tons per
year for the past several years. The National Agricultural Statistics
Service (NASS) reports that all Washington apricot handlers combined
ship approximately $7,132,000 worth of apricots during the 2011 season.
In addition, based on acreage, production, and producer prices reported
by NASS, and the total number of Washington apricot producers, average
annual producer receipts are approximately $76,000, which is
considerably less than the $750,000 threshold. In view of the
foregoing, it can be concluded that a majority of the handlers and
producers of Washington apricots may be classified as small entities.
At its May 24, 2012, meeting, the Committee unanimously recommended
suspending the handling regulations for the 2012-13 fiscal period.
This rule suspends the handling regulations specified in Sec. Sec.
922.111 and 922.321. The suspension of these handling regulations will
allow the Washington apricot industry to market apricots without regard
to minimum grade, size, quality, maturity, and inspection requirements
prescribed under the federal marketing order. Authority for this action
is provided in Sec. 922.53.
The handling regulations help ensure that only acceptable quality
apricots
[[Page 1129]]
enter fresh market channels, thereby ensuring consumer satisfaction,
increasing sales, and improving returns to producers. While the
industry continues to believe that quality is an important factor in
maintaining sales, the Committee believes the cost of inspection and
certification may exceed the benefits derived. The Committee also
believes that the demands of wholesale buyers and consumers will drive
handlers and producers to maintain a high level of product quality
without the necessity of minimum quality standards and mandatory
inspections. The Committee will review the outcome of the handling
regulation suspension prior to the end of the 2012-13 fiscal period and
determine if continued suspension, or alternatively, termination of the
marketing order is warranted. The handling regulations will be
automatically reinstated on April 1, 2013.
Apricot prices have fluctuated considerably in recent years, and at
times some producers have faced difficulty covering their total costs.
In response to the adverse economic conditions experienced by the
industry, the Committee discussed the possibility of reducing expenses
through the elimination of mandatory inspection. The Committee
considered the potential consequences of suspending the handling and
inspection requirements, and how this could result in lower quality
apricots being shipped to fresh markets. Also, if fruit quality were to
decline, there is some concern among Committee members that the
Washington apricot industry could lose sales to other apricot producing
regions.
While acknowledging these concerns, the Committee also believes
that the current marketing conditions make the program unnecessary,
because the costs of regulation may be greater than the benefits
gained. Therefore, the Committee recommended the suspension of the
handling regulations for the 2012-13 fiscal period. The Committee will
review the impacts of the suspension prior to the end of the fiscal
period and consider appropriate actions for ensuing seasons.
This rule enables handlers to ship apricots without regard to the
order's minimum grade, size, quality, maturity, and inspection
requirements during the 2012-13 fiscal period. This rule allows
handlers to decrease their overall costs by eliminating the costs
associated with mandatory inspection. This rule, however, does not
impede handlers from seeking inspection on a voluntary basis if they
find inspection desirable.
The suspension of the handling regulations will result in the
elimination of mandatory inspections and, in turn, the inspection
certificates generated by the Inspection Service and provided to the
Committee. The Committee has used such certificates for assessment
billing purposes and for compiling industry statistics. As a result of
needing the information that was previously provided by the inspection
certificates, the Committee will enter into a memorandum of
understanding with the Washington State Department of Agriculture in
order to obtain information on which to collect assessments and
generate statistical information.
The Committee anticipates that this rule will not negatively impact
small handlers and producers because it suspends minimum grade, size,
quality, maturity, and inspection requirements prescribed under the
order. The total cost of inspection and certification for fresh
shipments of Washington apricots during the 2011 marketing season is
estimated by the Committee to have been $0.23 per hundredweight, or
approximately $12,700 total. This represents approximately $635 per
handler. Since handlers may continue to have their apricots voluntarily
inspected, the Committee expects that some handlers will continue to
have at least a portion of their fresh apricots inspected and certified
by the Inspection Service.
Alternatives to the suspension of the handling regulations
considered by the Committee included maintaining the status quo,
suspending regulations indefinitely, and terminating the marketing
order in its entirety. The Committee believes that the continuation of
regulation would be an unnecessary burden on the industry, given the
evolving marketing conditions and future outlook. Thus, continuing to
regulate in the same manner was not a viable option to the Committee.
The Committee also discussed suspending regulation indefinitely, but
rejected this alternative at this time. The Committee believes that
suspending the handling regulations for one season will provide
sufficient information to evaluate the impact this has on the quality
of Washington apricots. Last of all, the Committee considered
terminating the order in its entirety, but similarly declined the
option. The Committee will review the impacts of the suspension prior
to the end of the fiscal period and consider appropriate actions for
ensuing seasons.
In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C.
Chapter 35), the order's information collection requirements have been
previously approved by the Office of Management and Budget (OMB) and
assigned OMB No. 0581-0189. No changes in those requirements as a
result of this action are necessary. Should any changes become
necessary, they would be submitted to OMB for approval.
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 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.
In addition, USDA has not identified any relevant Federal rules
that duplicate, overlap or conflict with this rule.
Further, 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 May 24, 2012, meeting was a public meeting
and all entities, both large and small, were able to express their
views on this issue. Finally, interested persons are invited to submit
comments on this interim rule, including the regulatory and
informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at:
www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about
the compliance guide should be sent to Laurel May at the previously
mentioned address in the FOR FURTHER INFORMATION CONTACT section.
This rule invites comments on the suspension of the handling
regulations prescribed under the Washington apricot marketing order.
Any comments timely 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 regulatory requirements no longer tend to effectuate the declared
policy of the Act, and are therefore being suspended.
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
[[Page 1130]]
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 interim rule is a relaxation in the apricot handling
regulations and should be in place as soon as possible for the 2012-13
fiscal period; (2) handlers need to know as soon as possible that they
are free to market their apricots without regard to the order's
handling regulations; (3) this issue has been widely discussed at
various industry and association meetings and the Committee has kept
the industry well informed; (4) handlers are aware of this rule, which
was recommended at a public meeting; 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.
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. Sec. 922.111 and 922.321 [Suspended]
0
2. In Part 922, Sec. Sec. 922.111 and 922.321 are suspended in their
entirety from January 9, 2013 through March 31, 2013.
Dated: January 2, 2013.
David R. Shipman,
Administrator, Agricultural Marketing Service.
[FR Doc. 2013-00129 Filed 1-7-13; 8:45 am]
BILLING CODE 3410-02-P