Washington Apricots; Termination of Marketing Order, 41471-41473 [2023-13597]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 88, Number 122 (Tuesday, June 27, 2023)]
[Rules and Regulations]
[Pages 41471-41473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13597]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 88 , No. 122 / Tuesday, June 27, 2023 / Rules 
and Regulations

[[Page 41471]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 922

[Doc. No. AMS-SC-21-0061]


Washington Apricots; Termination of Marketing Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule; termination of order.

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SUMMARY: This final rule terminates Federal Marketing Order No. 922 
(the Order) regulating the handling of apricots grown in designated 
counties in Washington, and the rules and regulations issued 
thereunder. This final rule also removes the Order from the Code of 
Federal Regulations. The United States Department of Agriculture (USDA) 
has determined the Order is no longer necessary to maintain orderly 
marketing conditions.

DATES: Effective July 27, 2023.

FOR FURTHER INFORMATION CONTACT: Joshua R. Wilde, Marketing Specialist, 
or Gary Olson, Chief, Western Region Branch, Market Development 
Division, Specialty Crops Program, AMS, USDA; Telephone: (503) 326-2724 
or Email: [email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Richard Lower, Market Development Division, 
Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 
0237, Washington, DC 20250-0237; Telephone: (202) 720-8085 or Email: 
[email protected].

SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, 
terminates regulations issued to carry out a marketing order as defined 
in 7 CFR 900.2(j). This final rule is issued under Marketing Order No. 
922, as amended (7 CFR part 922), regulating the handling of apricots 
grown in designated counties in Washington. Part 922 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 Washington 
Apricot Marketing Committee (Committee) locally administers the Order 
and is comprised of producers and handlers operating within the 
production area.
    The Agricultural Marketing Service (AMS) is issuing this final rule 
in conformance with Executive Orders 12866 and 13563. Executive Orders 
12866 and 13563 direct agencies to assess all costs and benefits of 
available regulatory alternatives and, if regulation is necessary, to 
select regulatory approaches that maximize net benefits (including 
potential economic, environmental, public health and safety effects, 
distributive impacts, and equity). Executive Order 13563 emphasizes the 
importance of quantifying both costs and benefits, reducing costs, 
harmonizing rules, and promoting flexibility.
    This action falls within a category of regulatory actions that the 
Office of Management and Budget (OMB) exempted from Executive Order 
12866 review.
    In addition, this final rule has been reviewed under Executive 
Order 13175--Consultation and Coordination with Indian Tribal 
Governments, which requires agencies to consider whether their 
rulemaking actions would have Tribal implications. AMS has determined 
this final rule is unlikely to have substantial direct effects on one 
or more Indian Tribes, on the relationship between the Federal 
Government and Indian Tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes.
    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This final 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 7 U.S.C. 608c(15)(A) of 
the Act, any handler subject to a marketing order may file with USDA a 
petition stating that the marketing order, any provision of the 
marketing order, or any obligation imposed in connection with the 
marketing order is not in accordance with law and request a 
modification of the marketing order or to be exempted therefrom. A 
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 final rule terminates the Order regulating the handling of 
apricots grown in designated counties in Washington and removes the 
Order from the Code of Federal Regulations. Following its meeting on 
May 11, 2021, the Committee unanimously recommended this action after 
determining the Order is no longer necessary to maintain orderly 
marketing conditions. On April 13, 2022, AMS published a final rule 
which indefinitely suspended reporting and assessment collection 
requirements under the Order, effective May 13, 2022, while it 
continued to consider the Committee's recommendation and information 
submitted (87 FR 21741).
    Section 922.64(b) of the Order provides that USDA shall terminate 
or suspend any or all provisions of the Order when a finding is made 
that the Order does not tend to effectuate the declared policy of the 
Act. In addition, section 608c(16)(A) of the Act provides that USDA 
terminate or suspend the operation of any order whenever the Order or 
any provision thereof obstructs or does not tend to effectuate the 
declared policy of the Act. After reviewing the Committee's 
recommendation, years without apricot marketing program activity, the 
decline in apricot production, and the indefinite suspension of 
reporting and assessment collection requirements, USDA determined that 
the Order no longer tends to effectuate the declared policy of the Act.
    The Order has been in effect since 1957 and has provided the 
Washington apricot industry with authority for grade, size, quality, 
maturity, pack, and container regulations, as well as authority for 
mandatory product inspection.
    The Committee meets regularly to consider recommendations for 
modification, suspension, or termination of the Order's regulatory

[[Page 41472]]

requirements. Committee meetings are open to the public and interested 
persons may express their views at these meetings. AMS reviews 
Committee recommendations, including information provided by the 
Committee and from other available sources, and determines whether 
modification, suspension, or termination would tend to effectuate the 
declared policy of the Act.
    In 2006, the Committee unanimously recommended USDA suspend 
container regulations after determining they were no longer necessary 
to ensure orderly marketing and that suspension would provide greater 
flexibility to handlers for packing and shipping apricots. Following 
the Committee's recommendation, AMS suspended container regulations for 
apricots (9 CFR 922.306) for the 2006 shipping season (71 FR 16979), 
and subsequently extended that suspension indefinitely in 2007 (72 FR 
16263).
    In 2013, the Committee unanimously recommended USDA suspend 
handling regulations after determining the cost of complying with the 
Order's handling and inspection requirements outweighed its benefits to 
both producers and handlers of apricots. Based on the Committee's 
recommendation, AMS issued an interim rule indefinitely suspending the 
handling regulations for apricots (Sec. Sec.  922.111 and 922.321) on 
October 23, 2013 (78 FR 62963). A final rule affirming the indefinite 
suspension was published in the Federal Register on March 20, 2014 (79 
FR 15539).
    Following these regulatory suspensions, the Committee continued to 
levy assessments to maintain its functionality. The Committee believed 
that it should continue to fund its full operational capability, 
collect industry statistics on an ongoing basis, and maintain the 
program in the event market conditions warranted regulation.P>On May 
11, 2021, the Committee met and discussed current market dynamics, 
budget, and assessments, and deliberated the continuance of the Order. 
During the meeting, the Committee discussed that the volume of apricots 
produced in Washington has declined over the years, and in 2020, the 
industry experienced a significant drop in crop produced from the prior 
year's production. Management and administrative costs to maintain the 
Order have also increased.
    The Committee also discussed keeping the Order in place. To achieve 
that, the Order would require an assessment rate increase of 
approximately 300 percent, from $2.86 to $13.30 per ton. The Committee 
determined that the decrease in the 2020 crop suggests an overall 
decline in apricot production, and an assessment rate increase of 300 
percent would not benefit apricot producers and handlers. The industry 
has functioned without container and handling regulations for a 
combined period of more than 14 years. The Committee believes the 
suspension of container and handling requirements has not adversely 
affected the marketing of Washington apricots and terminating the Order 
would not negatively impact the industry. The Committee ultimately 
concluded that the Order is no longer necessary to maintain orderly 
marketing conditions and voted unanimously to terminate the Order.
    On July 7, 2021, the Committee formally recommended USDA terminate 
the Order. In preparing to terminate the Order, the Committee 
recommended USDA suspend the collection of assessments and reporting 
requirements. The Committee also recommended a budget of expenditures 
of $5,508 for the period beginning April 1, 2021 and ending with the 
termination of the Order.
    Following the Committee's recommendation, USDA indefinitely 
suspended the remaining reporting and assessment collection 
requirements under the Order while it considered termination. AMS 
published a proposed rule to indefinitely suspend reporting and 
assessment collection requirements (Sec.  922.235) in the Federal 
Register on November 23, 2021 (86 FR 66462). AMS received one comment 
that did not address the merits of the rule. Accordingly, no changes 
were made to the rule as proposed and the final rule was published on 
April 13, 2022 (87 FR 21741).
    The suspension of regulations, reporting requirements, and 
assessment collections continued while USDA evaluated the Committee's 
recommendation for terminating the Order. After reviewing the 
Committee's recommendation, years without marketing program activity, 
the decline in apricot production, and the decision to indefinitely 
suspend reporting and assessment collection requirements, USDA 
determined that the Order no longer effectuates the declared policy of 
the Act.
    This final rule terminates the Order and the rules and regulations 
issued thereunder.

Final Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of 
this proposed 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 
businesses subject to such actions so that small businesses will not be 
unduly or disproportionately burdened. Marketing orders issued pursuant 
to the Act are unique in that they are brought about through group 
action of essentially small entities acting on their own behalf.
    There are approximately 315 growers of Washington apricots and 
approximately 8 apricot handlers in the production area subject to 
regulation under the Order. Small agricultural service firms 
(postharvest crop activities except cotton ginning, NAICS code 115114) 
are defined by the Small Business Administration (SBA) as those having 
annual receipts of $30,000,000 or less, and small agricultural 
producers (other noncitrus fruit farming, NAICS code 111339) are 
defined as those having annual receipts of $3,000,000 or less (13 CFR 
121.201).
    Based on USDA National Agricultural Statistics Service (NASS) data, 
and given the number of Washington apricot growers, average grower 
revenue is well below $3,000,000. NASS's 2020 value of utilized 
Washington apricot crop production was $3.866 million. Dividing the 
$3.866 million crop value by 315 growers equals average annual receipts 
per grower of $12,273. Thus, most Washington apricot growers would be 
considered small businesses under the SBA definition.
    In addition, according to data from USDA's Market News, the 
estimated Washington apricot 2020 season average Free on Board (f.o.b.) 
shipper (handler) price per carton was approximately $31.59 (for 
Washington apricots, 2-layer tray pack carton, all sizes, June-July 
2020, midpoint of the ``mostly low'' and ``mostly high'' prices). With 
a standard Market News weight of 18 pounds per tray pack carton of 
apricots, the f.o.b. price was approximately $1.755 per pound ($31.59 
divided by 18 pounds), or $3,510 per ton. The Committee reported that 
the industry shipped 1,628 tons for the 2020 season. Total 2020 
estimated handler receipts are $5.714 million (1,628 tons multiplied by 
$3,510 per ton). Average annual receipts per handler are approximately 
$714,000 ($5.714 million divided by 8 handlers). Thus, most Washington 
apricot handlers would be considered small businesses under the SBA 
definition.
    This final rule terminates the Order, and the rules and regulations 
issued thereunder, and will remove the Order from the Code of Federal 
Regulations. On July 7, 2021, the Committee made

[[Page 41473]]

the recommendation to terminate the Order because the Order is no 
longer necessary to ensure the orderly marketing of apricots. The 
alternative, to maintain the Order, would require the Committee to 
increase the assessment rate by approximately 300 percent, from $2.86 
to $13.30 per ton. However, the 2020-2021 crop production was the 
smallest crop on record, and evidence suggests that this decline is a 
continuation of an industry trend.
    In addition, the prior suspension of the container and handling 
regulations, effectuated by a separate rulemaking published on April 5, 
2006 (71 FR 16979), has not adversely affected the marketing of 
Washington apricots in any of the subsequent years. AMS confirmed data 
from the past 7 years shows that apricots can be marketed from the 
production area in the absence of the Order's requirements without a 
negative economic impact on the industry.
    Section 922.64(b) of the Order provides that USDA shall terminate 
or suspend any or all provisions of the Order when a finding is made 
that the Order does not tend to effectuate the declared policy of the 
Act. In addition, section 608c(16)(A) of the Act provides that USDA 
terminate or suspend the operation of any order whenever the order or 
any provision thereof obstructs or does not tend to effectuate the 
declared policy of the Act. An additional provision requires that 
Congress be notified no later than 60 days before the date the Order 
would be terminated.
    After considering the alternative, the Committee concluded that 
regulating the handling of apricots under the Order is no longer 
necessary to ensure orderly marketing of Washington apricots. The costs 
associated with the administration of the Order outweigh the benefits, 
and that termination of the Order would not have a negative impact on 
industry. Therefore, the Committee unanimously voted to terminate the 
Order.
    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 OMB and assigned OMB No. 0581-0189 Fruit Crops. 
After finalizing termination AMS will extract the remaining apricot 
marketing order-related forms from the forms package during the next 
three-year renewal process.
    This rule effectuates the removal of reporting and recordkeeping 
requirements on apricot handlers, both small and large. 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, AMS has not identified any 
relevant Federal rules that duplicate, overlap or conflict with this 
final 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 meetings were widely publicized throughout the 
Washington apricot industry, and all interested persons were invited to 
attend the meetings and participate in Committee deliberations on all 
issues. Meetings were held virtually or in a hybrid style with 
participants having a choice on whether to attend in person or 
virtually.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 
https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any 
questions about the compliance guide should be sent to Richard Lower at 
the previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    A proposed rule inviting comments on the termination of the Order, 
was published in the Federal Register on October 19, 2022 (87 FR 
63433). A 60-day comment period was provided to allow interested 
persons an opportunity to respond to the proposed termination of the 
Order. In addition, AMS published on its website and distributed to 
industry stakeholders a notice to trade announcing the proposed 
termination of the marketing order. One comment was received in support 
of termination.
    Based on the foregoing, and pursuant to 7 U.S.C. section 
608c(16)(A) of the Act and Sec.  922.64 of the Order, it is hereby 
found that Federal Marketing Order No. 922 regulating the handling of 
apricots grown in designated counties in Washington does not tend to 
effectuate the declared policy of the Act and is therefore terminated.
    Following termination, trustees will be appointed to conclude and 
liquidate the Committee affairs and will continue in that capacity 
until discharged by USDA. In addition, pursuant to 7 U.S.C. 608c(16)(A) 
of the Act, USDA is required to notify Congress 60 days in advance of 
termination. Congress was so notified on March 3, 2023.

List of Subjects in 7 CFR Part 922

    Apricots, Marketing agreements, Reporting and recordkeeping 
requirements.

PART 922--[REMOVED]

0
For the reasons set forth in the preamble, and under the authority of 7 
U.S.C 601-674, 7 CFR part 922 is removed.

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2023-13597 Filed 6-26-23; 8:45 am]
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