Apricots Grown in Designated Counties in Washington; Temporary Suspension of Grade Requirements

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 922

[Docket No. FV96-922-1FIR]

Apricots Grown in Designated Counties in Washington; Temporary

Suspension of Grade Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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

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

suspending for the 1996 season only, the minimum grade requirements

(Washington No. 1), for fresh shipments of apricots grown in

Washington. This change was recommended by the Washington Apricot

Marketing Committee (committee), which works with the Department in

administering the marketing order covering apricots grown in designated

counties in Washington. This rule enables handlers to ship more fruit

in fresh market channels, taking into consideration the damage caused

to Washington apricots by freezing temperatures during the growing

season. This change is expected to increase returns to producers and to

make more fresh apricots available to consumers.

EFFECTIVE DATE: September 19, 1996.

FOR FURTHER INFORMATION CONTACT: Teresa L. Hutchinson, Northwest

Marketing Field Office, Fruit and Vegetable Division, AMS, USDA, 1220

SW Third Avenue, room 369, Portland, OR 97204; telephone: (503) 326-

2724; or Caroline C. Thorpe, Marketing Order Administration Branch,

Fruit and Vegetable Division, Agricultural Marketing Service, U.S.

Department of Agriculture, room 2523-S, P.O. Box 96456, Washington, DC

20090-6456; telephone: (202) 720-5331. Small businesses may request

information on compliance with this regulation by contacting: Jay

Guerber, Marketing Order Administration Branch, Fruit and Vegetable

Division, AMS, USDA, P.O. Box 96456, room 2523-S, Washington, DC 20090-

6456; telephone (202) 720-2491; Fax # (202) 720-5698.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement No. 132 and Marketing Order No. 922 (7 CFR Part 922), both as

amended, regulating the handling of apricots grown in designated

counties in Washington, hereinafter referred to as the ``order.'' The

order is authorized by 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 12988, 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 608c(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 to review the Secretary's

ruling on the petition, provided an action is filed not later than 20

days after the date of the entry of the ruling.

Pursuant to requirements set forth in the Regulatory Flexibility

Act (RFA), 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

[[Page 42989]]

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 75 handlers of Washington apricots who are

subject to regulation under the order and approximately 400 producers

in the regulated area. Small agricultural service firms, which includes

handlers of Washington apricots, 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 Washington apricot handlers and producers may be classified

as small entities.

This rule finalizes an interim final rule suspending minimum grade

requirements and therefore is a relaxation in regulations which should

result in reduced costs and increased returns to handlers and

producers. This will lower inspection costs and also enable handlers to

ship a larger portion of their crop to the fresh market to meet

consumer needs. Therefore, AMS has determined that this action will not

have a significant economic impact on a substantial number of small

entities.

The interim final rule was issued on June 12, 1996, and published

in the Federal Register (61 FR 30495, June 17, 1996), with an effective

date of June 15, 1996. That rule amended Sec. 922.321 of the rules and

regulations in effect under the order. That rule provided a 30-day

comment period which ended July 17, 1996. No comments were received.

Section 922.52 of the order authorizes the issuance of grade, size,

quality, maturity, container markings, pack, and container regulations

for any variety or varieties of apricots grown in any district or

districts of the production area. Section 922.53 further authorizes the

modification, suspension, or termination of regulations issued under

Sec. 922.52. Section 922.55 provides that whenever apricots are

regulated pursuant to Secs. 922.52 or 922.53, such apricots must be

inspected by the Federal-State Inspection Service, and certified as

meeting the applicable requirements of such regulations.

The minimum grade, maturity, color, and size requirements for

Washington apricots regulated under the order are specified in

Sec. 922.321 Apricot Regulation 21 [7 CFR 922.321]. This final rule

finalizes the interim final rule to temporarily suspend the minimum

grade requirement in Sec. 922.321. This provides that no handler shall

handle any container of apricots unless such apricots grade not less

than Washington No. 1, except for shipments subject to exemption under

the regulation. Other parts of Sec. 922.321 that remain in effect,

provide that the Moorpark variety in open containers must be generally

well matured. Also remaining in effect is the provision that with the

exception of exempt shipments, apricots must be at least 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. Individual shipments of apricots are also exempt

from all these requirements if sold for home use only, do not exceed

500 pounds net weight, and containers are stamped or marked with the

words ``not for resale.''

This rule finalizes the interim final rule that amended paragraph

(a)(1) of Sec. 922.321 by continuing temporary suspension of the

minimum grade requirements for fresh shipments of apricots for the 1996

season only. The grade requirements currently specified in Sec. 922.321

will resume April 1, 1997, for 1997 and future seasons.

At its May 16, 1996, meeting, the committee unanimously recommended

suspending the grade requirements for the 1996 season. The committee

requested that this suspension be effective by June 15, the date

shipments of the 1996 Washington apricot crop are expected to begin.

The committee meets prior to and during 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.

The committee reports that the apricot crop was severely damaged by

several freezes last winter and early this spring. The severe weather

conditions resulted in a high percentage of damage from russeting, scab

spots, and other grade defects making it difficult for apricots to meet

the minimum grade requirements of Washington No. 1. The committee

estimates that only 2,300 tons of apricots will be shipped fresh during

the 1996 season, even with the grade requirements suspended as

requested. This amount is 52 percent of last season's fresh shipments

of 4,452 tons and 46 percent of the five-year average of 4,965 tons.

This final rule continues the suspension of the grade requirements

specified in Sec. 922.321. Thus, the color and minimum size

requirements for all varieties and the well matured requirements for

the Moorpark variety will remain unchanged.

This final rule enables handlers to continue to ship a larger

portion of their crop to the fresh market this season, taking into

account the abnormal growing conditions, than they would be allowed if

the minimum grade requirements were not suspended. Continued suspension

of the grade requirements for Washington apricots is intended to

increase fresh shipments to meet consumer needs and improve returns to

producers. It is the Department's view that the impact of this action

upon producers and handlers, both large and small, will be beneficial

because it will enable handlers to provide apricots consistent with

1996 season growing conditions.

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 (61 FR 30495, June

17, 1996) will tend to effectuate the declared policy of the Act.

List of Subjects in 7 CFR Part 922

Marketing agreements, Apricots, 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 61 FR 30495 on June 17, 1996, is adopted as a final

rule without change.

Dated: August 13, 1996.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 96-21118 Filed 8-19-96; 8:45 am]

BILLING CODE 3410-02-P