[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 [www.gpo.gov]
[FR Doc No: 2022-07830]



[[Page 21741]]

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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#c18baeb2a9b4a0ef93ef96a8ada5a481b4b2a5a0efa6aeb7"><span class="__cf_email__" data-cfemail="511b3e223924307f037f06383d353411242235307f363e27">[email protected]</span></a> or 
<a href="/cdn-cgi/l/email-protection#145375666d503a5b78677b7a54616770753a737b62"><span class="__cf_email__" data-cfemail="cd8aacbfb489e382a1bea2a38db8bea9ace3aaa2bb">[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#6e3c070d060f1c0a402201190b1c2e1b1d0a0f40090118"><span class="__cf_email__" data-cfemail="73211a101b1201175d3f1c04160133060017125d141c05">[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

[[Page 21742]]

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

[[Page 21743]]

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: 
https://www.ams.usda.gov/rules-regulations/moa/small-businesses. 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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