Rule2023-13597
Washington Apricots; Termination of Marketing Order
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
June 27, 2023
Effective
July 27, 2023
Issuing agencies
Agriculture DepartmentAgricultural Marketing Service
Abstract
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.
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<title>Federal Register, Volume 88 Issue 122 (Tuesday, June 27, 2023)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-13597]
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Rules and Regulations
Federal Register
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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.
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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: <a href="/cdn-cgi/l/email-protection#99d3f6eaf1ecf8b7cbb7cef0f5fdfcd9eceafdf8b7fef6ef"><span class="__cf_email__" data-cfemail="0c46637f64796d225e225b656068694c797f686d226b637a">[email protected]</span></a> or <a href="/cdn-cgi/l/email-protection#337452414a771d7c5f405c5d73464057521d545c45"><span class="__cf_email__" data-cfemail="e5a284979ca1cbaa89968a8ba590968184cb828a93">[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) 720-8085 or Email:
<a href="/cdn-cgi/l/email-protection#cc9ea5afa4adbea8e280a3bba9be8cb9bfa8ade2aba3ba"><span class="__cf_email__" data-cfemail="2b794248434a594f0567445c4e596b5e584f4a054c445d">[email protected]</span></a>.
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:
<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.
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]
BILLING CODE P
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