Rule2022-07830
Washington Apricots; Suspension of Reporting and Assessment Requirements
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 13, 2022
Effective
May 13, 2022
Issuing agencies
Agriculture DepartmentAgricultural Marketing Service
Abstract
This final rule suspends the reporting and assessment requirements prescribed under the marketing order regulating apricots grown in designated counties in Washington (Marketing Order No. 922). In a separate meeting, the State of Washington Apricot Marketing Committee also unanimously recommended terminating Marketing Order No. 922. This rule indefinitely suspends the assessment and associated reporting requirements of the marketing order during the period that the AMS is processing the termination request.
Full Text
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<title>Federal Register, Volume 87 Issue 71 (Wednesday, April 13, 2022)</title>
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[Federal Register Volume 87, Number 71 (Wednesday, April 13, 2022)]
[Rules and Regulations]
[Pages 21741-21743]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-07830]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 922
[Doc. No. AMS-SC-21-0066; SC21-922-1 FR]
Washington Apricots; Suspension of Reporting and Assessment
Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule suspends the reporting and assessment
requirements prescribed under the marketing order regulating apricots
grown in designated counties in Washington (Marketing Order No. 922).
In a separate meeting, the State of Washington Apricot Marketing
Committee also unanimously recommended terminating Marketing Order No.
922. This rule indefinitely suspends the assessment and associated
reporting requirements of the marketing order during the period that
the AMS is processing the termination request.
DATES: Effective May 13, 2022, Sec. 922.235 is stayed indefinitely.
FOR FURTHER INFORMATION CONTACT: Joshua R. Wilde, Marketing Specialist,
or Gary Olson, Regional Director, Western Region Branch, Market
Development Division, Specialty Crops Program, AMS, USDA; Telephone:
(503) 326-2724 or Email: <a href="/cdn-cgi/l/email-protection#a5efcad6cdd0c48bf78bf2ccc9c1c0e5d0d6c1c48bc2cad3"><span class="__cf_email__" data-cfemail="84ceebf7ecf1e5aad6aad3ede8e0e1c4f1f7e0e5aae3ebf2">[email protected]</span></a> or
<a href="/cdn-cgi/l/email-protection#86c1e7f4ffc2a8c9eaf5e9e8c6f3f5e2e7a8e1e9f0"><span class="__cf_email__" data-cfemail="feb99f8c87bad0b1928d9190be8b8d9a9fd0999188">[email protected]</span></a>.
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) 720-2491 or Email:
<a href="/cdn-cgi/l/email-protection#76241f151e170412583a19011304360305121758111900"><span class="__cf_email__" data-cfemail="c597aca6ada4b7a1eb89aab2a0b785b0b6a1a4eba2aab3">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553,
proposes an amendment to 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 (referred to as 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 State of Washington Apricot
Marketing Committee (Committee) locally administers the Order and is
comprised of producers and handlers operating within the production
area.
The Department of Agriculture (USDA) 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. USDA 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 section 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.
The Committee meets regularly to consider recommendations for
modification, suspension, or termination of the Order's regulatory
requirements. Committee meetings are open to the public and interested
persons may express their views at these meetings. Agricultural
Marketing Service (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.
On May 11, 2021, the Committee met and deliberated over the
continuance of the Order. Following this meeting, the Committee
unanimously recommended that AMS terminate the Order and suspend the
collection of assessments. This final rule indefinitely suspends
handler assessments as well as any remaining reporting requirements of
the Order while AMS is processing the termination. The termination will
be conducted in a separate rulemaking action.
Section 922.41 provides authority for the Committee to assess
handlers for their pro rata share of the Committee expenses authorized
each fiscal period. Section 922.60 authorizes the Committee to collect
reports and other information necessary for the Committee to perform
its duties under the Order. This final rule suspends Sec. 922.235,
which established a continuing assessment rate of $2.86 per ton,
effective for the 2019-2020 and subsequent fiscal periods. Any reports
that are currently being collected are no longer required.
The Order has been in effect since 1957 and has provided the
apricot industry in Washington with authority for grade, size, quality,
maturity, pack, and container regulations, as well as authority for
mandatory product inspection.
Handling regulations requiring apricots to be inspected and meet
mandatory pack and container requirements were in effect until 2007 and
minimum grade, size, maturity, and quality requirements until 2014.
Following a recommendation from the Committee, AMS suspended the
container regulations for apricots for one-year, effective April 6,
2006 (71 FR 16982), and subsequently extended that suspension
indefinitely effective August 1, 2007 (72 FR 16265). The Committee
believed that with changing market dynamics container regulations were
no longer necessary to ensure orderly marketing and that suspension
would provide greater flexibility to handlers for packing and shipping
apricots.
In 2013, based on the Committee's recommendation, AMS issued an
interim rule suspending the handling regulations for apricots effective
October 24, 2013 (78 FR 62936). A final rule
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affirming the indefinite suspension published in the Federal Register
March 20, 2014 (79 FR 15539). Again, the Committee believed the cost of
complying with the Order's handling and inspection requirements
outweighed the benefits to both producers and handlers of apricots.
Both actions were unanimously recommended by the Committee.
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.
The Committee met on May 11, 2021, to discuss market dynamics and
the Committee's budget and assessments. A significant decrease in the
2020-2021 crop production and increased Committee expenses would
require the Committee to increase the assessment rate by 365 percent,
from $2.86 to $13.30 per ton, to maintain its functionality. During
those discussions, the Committee determined that the suspension of
handling and container requirements had not adversely affected the
marketing of Washington apricots rendering the Order no longer
necessary to the industry. The Committee concluded that termination of
the Order would have no adverse effect on industry. In preparing to
terminate the Order, the Committee recommended a budget of expenditures
of $5,508 for the period beginning April 1, 2021, and ending with the
termination.
Following the May 11, 2021, meeting, the Committee conducted a vote
among all its members to terminate the Order. Termination of the Order
was unanimously supported by the Committee. This final rule
indefinitely suspends the handler assessments and any reports being
collected, in preparation for the termination of the Order.
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 final 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 are
defined by the Small Business Administration (SBA) as those having
annual receipts of less than $30,000,000, and small agricultural
producers are defined as those having annual receipts of less than
$1,000,000 (13 CFR 121.201).
Based on USDA's National Agricultural Statistics Service (NASS)
data, and given the number of Washington apricot growers, average
grower revenue is below $1,000,000. NASS's 2020 Washington apricot
price per ton of $2,040 yields annual grower estimated revenue of
$3,321,120 which equals approximately $10,543 average annual receipts
per grower ($2,040 price per ton multiplied by 1,628 tons divided by
315 growers). Thus, most Washington apricot growers would be considered
small businesses under the SBA definition.
In addition, according to data from USDA's Market News Service, an
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 is approximately $1.755 per pound, or $3,510
per ton ($31.59 divided by 18 pounds). 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 times $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 suspends the assessment requirements of the Order
and any reports currently being collected. The assessment rate that
suspended is the $2.86 per ton rate in effect for the 2019-2020 fiscal
period and continuing to the present day. 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. The budget
was based on the Committee's estimated financial resources on March 31,
2021. Budgeted expenditures include administrative expenses and any
expenses necessary to finalize the termination of the Order.
On July 7, 2021, the Committee made the recommendation to suspend
the remaining reporting and handler assessments as an adjunct to the
recommendation to terminate the Order. As such, the alternative
discussed by the Committee was to maintain the status quo and continue
to collect handler assessments. The Committee determined that the
decrease in the 2020-2021 crop production and the increases in
Committee expenses would require the Committee to increase the
assessment rate by 365 percent, from $2.86 to $13.30 per ton. Further,
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 suspension of the handling and packing regulations
has not adversely affected the marketing of Washington apricots.
Evidence from the past 7 years showed 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.
After considering the alternative, the Committee concluded that the
cost to maintain the Order outweighed its benefit to producers and
handlers and, therefore, unanimously voted to suspend the reporting
requirements and collection of assessments beginning with 2021 fiscal
period, and to terminate the Order.
This action suspends the reporting and assessment obligations
imposed on handlers. When in effect, assessments are applied uniformly
on all handlers, and some of those costs may be passed on to producers.
The suspension of the reporting and assessment requirements reduces the
regulatory burden on handlers and would be expected to reduce the
burden on producers.
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.
This final rule suspends those information collection requirements, and
any reporting requirements under the Order.
This final rule does 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, AMS
has not identified any relevant Federal rules
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that duplicate, overlap or conflict with this final rule.
USDA 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 meetings were widely publicized throughout the
Washington apricot industry, and all interested persons are invited to
attend the meetings and participate in Committee deliberations on all
issues. Meetings are held virtually or in a hybrid style with
participants having a choice whether to attend in person or virtually.
A proposed rule concerning this action was published in the Federal
Register on November 23, 2021 (86 FR 66462). Copies of the proposal
were provided by the Committee to members and handlers. Finally, the
proposed rule was made available through the internet by AMS and the
Office of the Federal Register. A 60-day comment period ending January
24, 2022, was provided to allow interested persons to respond to the
proposal. During the comment period, one comment was received in
response to the proposal. The comment received did not address the
merits of this rule. Accordingly, no changes have been made to the rule
as proposed.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at:
<a href="https://www.ams.usda.gov/rules-regulations/moa/small-businesses">https://www.ams.usda.gov/rules-regulations/moa/small-businesses</a>. Any
questions about the compliance guide should be sent to Richard Lower at
the previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
After consideration of all relevant material presented, including
the information and recommendation submitted by the Committee and other
available information, AMS finds that this rule 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.
For the reasons set forth in the preamble, the Agricultural
Marketing Service amends 7 CFR part 922 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. 922.235 [Stayed]
0
2. Section 922.235 is stayed indefinitely.
Melissa Bailey,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2022-07830 Filed 4-12-22; 8:45 am]
BILLING CODE 3410-02-P
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