Proposed Rule2022-22695
Washington Apricots; Termination of Marketing Order
Primary source
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Published
October 19, 2022
Issuing agencies
Agriculture DepartmentAgricultural Marketing Service
Abstract
This proposed rule invites comments on a recommendation from the Washington Apricot Marketing Committee (Committee) to terminate the Federal marketing order regulating the handling of apricots grown in designated counties in Washington (Marketing Order No. 922). The Committee determined the marketing order is no longer necessary to maintain orderly marketing conditions and unanimously recommended its termination. Following the Committee's recommendation, the Agricultural Marketing Service (AMS) suspended the remaining reporting and assessment collection requirements under the marketing order while it considered termination of the marketing order. After reviewing the Committee's recommendation and other information submitted, AMS determined that the marketing order no longer tends to effectuate the declared policy of the Agricultural Marketing Agreement Act of 1937. If implemented, this proposed rule would remove Marketing Order No. 922 from the Code of Federal Regulations.
Full Text
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<title>Federal Register, Volume 87 Issue 201 (Wednesday, October 19, 2022)</title>
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[Federal Register Volume 87, Number 201 (Wednesday, October 19, 2022)]
[Proposed Rules]
[Pages 63433-63436]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-22695]
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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, Department of Agriculture
(USDA).
ACTION: Proposed rule.
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SUMMARY: This proposed rule invites comments on a recommendation from
the Washington Apricot Marketing Committee (Committee) to terminate the
Federal marketing order regulating the handling of apricots grown in
designated counties in Washington (Marketing Order No. 922). The
Committee determined the marketing order is no longer necessary to
maintain orderly marketing conditions and unanimously recommended its
termination. Following the Committee's recommendation, the Agricultural
Marketing Service (AMS) suspended the remaining reporting and
assessment collection requirements under the marketing order while it
considered termination of the marketing order. After reviewing the
Committee's recommendation and other information submitted, AMS
determined that the marketing order no longer tends to effectuate the
declared policy of the Agricultural Marketing Agreement Act of 1937. If
implemented, this proposed rule would remove Marketing Order No. 922
from the Code of Federal Regulations.
DATES: Comments must be received by December 19, 2022.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposed rule. Comments must be sent to the Docket
Clerk, Market Development Division, Specialty Crops Program, AMS, USDA,
1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Fax:
(202) 720-8938; or via internet at: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Comments should reference the document number and the date and page
number of this issue of the Federal Register. All comments will be made
available for public inspection in the Office of the Docket Clerk
during regular business hours, or can be viewed at: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. All comments submitted in response to this
proposed rule will be included in the record and will be made available
to the public on the internet at the address provided above. Please be
advised that the
[[Page 63434]]
identity of individuals or entities submitting comments will be made
public.
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#3973564a514c58176b176e50555d5c794c4a5d58175e564f"><span class="__cf_email__" data-cfemail="43092c302b36226d116d142a2f272603363027226d242c35">[email protected]</span></a> or
<a href="/cdn-cgi/l/email-protection#8fc8eefdf6cba1c0e3fce0e1cffafcebeea1e8e0f9"><span class="__cf_email__" data-cfemail="6126001318254f2e0d120e0f21141205004f060e17">[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#4e1c272d262f3c2a600221392b3c0e3b3d2a2f60292138"><span class="__cf_email__" data-cfemail="c89aa1aba0a9baace684a7bfadba88bdbbaca9e6afa7be">[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 proposed 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 Committee locally
administers the Order and is comprised of producers and handlers
operating within the production area.
AMS is issuing this proposed 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 proposed 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 proposed 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 proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This proposed 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 the
Department of Agriculture (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 proposed rule would terminate the Order regulating the
handling of apricots grown in designated counties in Washington.
Following its meeting on May 11, 2021, the Washington Apricot Marketing
Committee (Committee) unanimously recommended this action after
determining the Order is no longer necessary to maintain orderly
marketing conditions. AMS suspended, indefinitely, reporting and
assessment collection requirements under the Order while it considered
the Committee's recommendation and information submitted (87 FR 21741).
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, AMS determined that the Order no longer tends to
effectuate the declared policy of the Act. This proposed rule invites
comments on proposed termination of the Order and, if implemented,
would remove the Order from the Code of Federal Regulations.
Section 922.64(b) of the Order provides that United States
Secretary of Agriculture (Secretary) may 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 the Secretary 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.
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.
The Committee, which locally administers the Order, 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. 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 AMS 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 for one year in 2006 (71 FR 16979), and subsequently extended
that suspension indefinitely in 2007 (72 FR 16263).
In 2013, the Committee unanimously recommended AMS 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 suspending the handling
regulations for apricots on October 23, 2013 (78 FR 62963). A final
rule affirming the indefinite suspension 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.
On May 11, 2021, the Committee met and discussed current market
dynamics, budget and assessments, and deliberated
[[Page 63435]]
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. In
addition, management and administrative costs to maintain the Order
have also increased. Staff management hours includes a greater quantity
of hours worked than in previous years.
The Committee discussed the alternative, that to maintain the Order
would require an assessment rate increase of approximately over 300
percent, from $2.86 to $13.30 per ton. However, the Committee
determined that the decrease in the 2020 crop suggests an overall
decline in apricot production, and an assessment rate increase of over
300 percent would not benefit apricot producers and handlers. The
Committee discussed that the industry has functioned without container
and handling regulations for a combined period of more than 14 years.
It was the belief of the Committee that the suspension of container and
handling requirements had not adversely affected the marketing of
Washington apricots and, therefore, terminating the Order would not
negatively impact the industry. The Committee concluded that the Order
is no longer necessary to maintain orderly marketing conditions and
that the cost to maintain the Order outweighs its benefit to industry.
Following this meeting, the Committee voted unanimously to terminate
the Order.
On July 7, 2021, the Committee formally recommended AMS terminate
the Order. In preparing to terminate the Order, the Committee
recommended AMS 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, AMS
suspended, indefinitely, the remaining reporting and assessment
collection requirements under the Order while it considered the
recommendation and information submitted by the Committee to terminate
the Order. A proposed rule to suspend reporting and assessment
collection requirements published 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 published on April 13, 2022 (87 FR
21741). The suspension of regulations, reporting requirements, and
assessment collections continued while AMS 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, AMS
determined that the Order no longer tends to effectuate the declared
policy of the Act.
This proposed rule is intended to solicit input and any additional
information available from interested parties regarding whether the
Order should be terminated. AMS will evaluate all available information
prior to making a final determination on this matter. If implemented,
this proposed rule would terminate the Order and the rules and
regulations issued thereunder.
Initial 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 initial 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 non-citrus 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 AMS'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 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 rule proposes to terminate the Order, and the rules and
regulations issued thereunder. Termination would remove the Order from
the Code of Federal Regulations.
On July 7, 2021, the Committee made the recommendation to terminate
the Order. The alternative, to maintain the Order, would require the
Committee to increase the assessment rate by approximately 300%, 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.
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, that 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, following its meeting on May 11, 2021,
the Committee unanimously voted to terminate the Order. The suspension
of regulations, reporting requirements, and assessments collections
continued for an indefinite period while USDA evaluated the Committee's
[[Page 63436]]
recommendation to proceed with the termination of the Order.
This proposed rule is intended to solicit input and other available
information from interested parties on whether the Order should be
terminated. AMS will evaluate all available information prior to making
a final determination on this matter.
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.
AMS will extract the remaining apricot marketing order-related forms
from the forms package during the next three-year renewal process,
should the Order be terminated.
This rule would effectuate 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 proposed 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 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:
<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.
This rule invites comments on the proposed termination of Marketing
Order No. 922, which regulates the handling of apricots grown in
designated counties in Washington. A 60-day comment period is provided
to allow interested persons to respond to this proposal. All written
comments timely received will be considered before a final
determination is made on this matter.
Based on the foregoing, and pursuant to Sec. 608c(16)(A) of the
Act and Sec. 922.64 of the Order, AMS is considering termination of
the Order. If AMS decides to terminate the Order, trustees would be
appointed to conclude and liquidate the Committee affairs and would
continue in that capacity until discharged by AMS. In addition, AMS
would notify Congress 60 days in advance of termination pursuant to
Sec. 608c(16)(A) of the Act.
List of Subjects in 7 CFR Part 922
Apricots, Marketing agreements, Reporting and recordkeeping
requirements.
PART 922--[REMOVED]
For the reasons set forth in the preamble, and under the authority
of 7 U.S.C. 601-674, the Agricultural Marketing Service proposes to
remove part 922.
Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2022-22695 Filed 10-18-22; 8:45 am]
BILLING CODE P
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