Apricots Grown in Designated Counties in Washington; Temporary Suspension of Grade Requirements for Apricots of the Patterson Variety

SUMMARY: The Department of Agriculture (Department) is adopting as a

final rule, without change, the provisions of an interim final rule

which temporarily suspended for the 1995 season only, the minimum grade

requirements (Washington No. 1) for fresh shipments of the Patterson

variety of apricots grown in Washington. The suspension will enable

handlers of Patterson variety apricots to ship more fruit to the fresh

market, taking into consideration the significant hail damage

experienced by this variety during the growing season. This action will

improve returns to producers of the Patterson variety of apricots. This

rule was recommended by the Washington Apricot Marketing Committee

(Committee), the agency responsible for the local administration of the

marketing order for Washington apricots.

EFFECTIVE DATE: October 16, 1995.

FOR FURTHER INFORMATION CONTACT: Britthany Beadle, Marketing

Specialist, Marketing Order Administration Branch, F&V, AMS, USDA, room

2522-S, P.O. Box 96456, Washington, DC 20090-6456: telephone: (202)

720-5127; or Teresa L. Hutchinson, Marketing Specialist, Northwest

Marketing Field Office, Marketing Order Administration Branch, Fruit

and Vegetable Division, AMS, USDA, 1220 SW Third Avenue, room 369,

Portland, Oregon 97204-2807; telephone: (503) 326-2724.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order

No. 922 (7 CFR part 922), regulating the handling of apricots grown in

designated counties in Washington, hereinafter referred to as the

``order.'' This 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 is issuing this rule in conformance with Executive

Order 12866.

This rule has been reviewed under Executive Order 12778, Civil

Justice Reform. This rule is not intended to have retroactive effect.

This rule will not preempt any State or local laws, regulations, or

policies, unless they present an irreconcilable conflict with this

rule.

The Act provides that administrative proceedings must be exhausted

before parties may file suit in court. Under section 8c(15)(A) of the

Act, any handler subject to an order may file with the Secretary 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 afforded the opportunity for a hearing on the

petition. After the hearing the Secretary 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 in equity to review the

Secretary's ruling on the petition, provided a bill in equity is filed

not later than 20 days after date of the entry of the ruling.

Pursuant to requirements set forth in the Regulatory Flexibility

Act (RFA), the Administrator of the Agricultural Marketing Service

(AMS) has considered the economic impact of this action on small

entities.

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 rules issued thereunder, are unique in that

they are brought about through group action of essentially small

entities acting on their own behalf. Thus, both statutes have small

entity orientation and compatibility.

There are approximately 30 handlers of Washington apricots subject

to regulation under the order and approximately 400 producers of

Washington apricots in the regulated production area. Small

agricultural service firms, which includes handlers, have been defined

by the Small Business Administration (13 CFR 121.601) as those having

annual receipts of less than $5,000,000, and small agricultural

producers are defined as those whose annual receipts are less than

$500,000. The majority of handlers and producers of Washington apricots

may be classified as small entities.

This rule finalizes the temporary suspension of the minimum grade

requirements (Washington No. 1) for fresh shipments of the Patterson

variety apricot for the 1995 season only. This temporary suspension

allowed handlers of the Patterson variety apricot to ship more fresh

apricots to the market due to the significant hail damage the crop has

received.

Section 922.52 (7 CFR 922.52) authorizes the issuance of

regulations for grade, size, quality, maturity, pack, markings, and

container for any variety or varieties of apricots grown in any

district or districts of the production area. Section 922.53 (7 CFR

922.53) authorizes the modification, suspension, or termination of the

regulations issued under Sec. 922.52.

Minimum grade, color, and size requirements for Washington apricots

regulated under the order are specified in Sec. 922.321 Apricot

Regulation 21 (7 CFR 922.321). Section 922.321 provides that no handler

shall handle any container of apricots unless such apricots grade not

less than Washington No. 1, except for shipments that are exempt from

regulation. In addition, this section provides that, with the exception

of exempt shipments, apricots shipped must be reasonably uniform in

color, and be at least 1\5/8\ inches in diameter, except for the

Blenheim, Blenril, and Tilton varieties which must be at least 1\1/4\

inches in diameter.

This rule suspends the minimum grade requirements for fresh

shipments of the Patterson variety of apricots for the 1995 season. The

grade requirements for the Patterson variety will resume April 1, 1996,

for the 1996 and future seasons. Color and size

[[Page 47858]]

requirements for the Patterson variety will remain unchanged.

The Committee met on May 11, 1995, and unanimously recommended the

suspension of grade requirements for the Patterson variety. The

Committee requested that this suspension be made effective by July 1,

1995, since the harvest of the Patterson variety was expected to begin

shortly thereafter.

The Committee meets prior to each season to consider

recommendations for modification, suspension, or termination of the

regulatory requirements for Washington apricots which have been issued

on a continuing basis. Committee meetings are open to the public and

interested persons may express their views at these meetings. The

Department reviews Committee recommendations and 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.

Information available to the Committee indicates that the Patterson

variety of apricots experienced severe hail damage this season. The

excessive damage was a result of location and stage of fruit

development. The Patterson variety is the latest variety of apricots

produced within the production area. Earlier varieties of apricots did

not experience significant hail damage.

This suspension will enable handlers to ship a larger portion of

the Patterson variety to the fresh market this season, than if the

minimum grade requirements were not suspended. Without suspension of

the grade requirements for the Patterson variety, most of the fruit

could not be shipped to fresh markets. Last year, 151 tons of the

Patterson variety were shipped into the fresh market. Information

available to the Committee indicates that with suspension of the grade

requirements for the Patterson variety, approximately 125 tons might be

shipped to the fresh market. Since the Patterson variety is the latest

variety of apricots shipped within the production area, the suspension

of the grade requirements for this variety should not adversely affect

the marketing of other varieties.

Suspension of the grade requirements for the Patterson variety is

intended to increase fresh shipments to meet consumer needs and improve

returns to producers.

The interim final rule concerning this action was published in the

June 22, 1995, Federal Register (60 FR 32429), providing a 30-day

comment period ending July 24, 1995. Two comments were received

concerning the interim final rule.

Comments were submitted by Gene Stokes, general manager of the

California Apricot Advisory Board (Board) and Steve Hash, Vice

President of the Agricultural Division of A. Levy and J. Zentner Co.,

and member of the Board as well. Both contend that the Board is opposed

to the temporary suspension of grade requirements because it would

adversely affect the California fresh apricot market. Since the

California apricot season ends (May through August) just when the

Washington apricot season begins (July through September), Messrs.

Stokes and Hash believe that any reduction in quality standards in

Washington apricots would have a negative effect on purchases of

California apricots during the 1996 season. They also contend that this

temporary suspension would set a dangerous precedent for the future

because hail damage is a common occurrence in Washington and

California.

The Department has reviewed the comments of the Board and does not

agree that the temporary suspension of grade requirements for one

variety of Washington apricots will adversely affect the California

market. There is a seven month period of time (from September to May)

between the end of Washington apricot shipments for 1995 and the

beginning of California apricot shipments for 1996. This period of time

between the Washington and California shipping seasons is more than

adequate not to have impact on the California apricot market.

After thoroughly analyzing the comments received and other

available information, the Department agrees with and upholds the

request of the Committee to temporarily suspend grade requirements for

the Patterson variety apricot for the 1995 season, only. The Department

does not believe that the comments of the Board have merit and

concludes that this final rule is appropriate.

Based on these considerations, the Administrator of the AMS has

determined that this action will not have a significant economic impact

on a substantial number of small entities.

After consideration of all relevant material presented, the

information and recommendations submitted by the Committee, and other

information, it is found that finalizing the interim final rule,

without change, as published in the Federal Register (60 FR 32429, June

22, 1995) will tend to effectuate the declared policy of the Act.

It is further found that good cause exists for not postponing the

effective date of this rule until 30 days after publication in the

Federal Register (5 U.S.C. 553). Further, handlers are aware of this

rule, which was recommended at a public meeting. Also, a 30-day comment

period was provided for in the interim final 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

Accordingly, the interim final rule amending 7 CFR part 922 which

was published at 60 FR 32429 on June 22, 1995, is adopted as a final

rule without change.

Dated: September 11, 1995.

Sharon Bomer Lauritsen,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 95-22949 Filed 9-14-95; 8:45 am]

BILLING CODE 3410-02-P