[Federal Register Volume 59, Number 184 (Friday, September 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23611]


[[Page Unknown]]

[Federal Register: September 23, 1994]


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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service

7 CFR Part 905

[Docket No. FV94-905-3-IFR]

 

Oranges, Grapefruit, Tangerines, and Tangelos Grown in Florida; 
Repacked Citrus Fruit Shipment Exemption Procedures

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule establishes exemption procedures 
governing shipments of repacked fresh citrus fruit grown in Florida. 
This rule permits repacking shippers to repack and ship previously 
inspected and certified citrus fruit exempt from further inspection and 
certification under specific conditions. This exemption is designed to 
enable repacking shippers to repack and ship fruit for specialty 
markets, without incurring the costs of having the fruit reinspected 
and recertified.

DATES: Effective on September 1, 1994.
    Comments which are received by October 24, 1994 will be considered 
prior to issuance of any final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule to: Docket Clerk, Fruit and Vegetable Division, 
AMS, USDA, P.O. Box 96456, Room 2523-S, Washington, DC 20090-6456; or 
by facsimile at 202-720-5698. Three copies of all written material 
shall be submitted, and they will be made available for public 
inspection at the office of the Docket Clerk during regular business 
hours. All comments should reference the docket number, date, and page 
number of this issue of the Federal Register.

FOR FURTHER INFORMATION CONTACT: Mark Kreaggor, Marketing Order 
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O. 
Box 96456, Room 2523-S, Washington, DC 20090-6456; telephone: 202-720-
5127; or William G. Pimental, Southeast Marketing Field Office, USDA/
AMS, P.O. Box 2276, Winter Haven, Florida 33883; telephone: 813-299-
4770.

SUPPLEMENTARY INFORMATION: This interim final rule is issued under 
Marketing Agreement and Marketing Order No. 905 [7 CFR Part 905] 
regulating the handling of oranges, grapefruit, tangerines, and 
tangelos grown in Florida, 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 of Agriculture (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 requesting 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 the date of the entry of the ruling.
    Pursuant to the 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 about 100 Florida citrus fruit handlers subject to 
regulation under the marketing order covering oranges, grapefruit, 
tangerines, and tangelos grown in Florida, and about 11,000 producers 
of these citrus fruits in Florida. Small agricultural producers have 
been defined by the Small Business Administration [13 CFR 121.601] as 
those having annual receipts of less than $500,000, and small 
agricultural service firms are defined as those whose annual receipts 
are less than $5,000,000. A minority of these handlers and a majority 
of the producers may be classified as small entities.
    The Citrus Administrative Committee (committee) met on June 21, 
1994, and unanimously recommended establishment of exemption 
procedures, for repacked previously inspected and certified citrus 
fruit. The committee meets prior to and during each season to review 
the rules and regulations effective on a continuous basis for each 
citrus fruit regulated under the order. Committee meetings are open to 
the public, and interested persons may express their views at these 
meetings. The Department reviews committee recommendations and 
information, as well as information from other sources, and determines 
whether modification, suspension, or termination of the handling 
regulations would tend to effectuate the declared policy of the Act.
    Section 905.80 [7 CFR 905.80] provides for the shipment of fruit 
not subject to grade and size regulations issued under Sec. 905.52 [7 
CFR 905.52], and inspection and certification required under 
Sec. 905.53 [7 CFR 905.53], including types of shipments and fruit 
shipped for such purposes as the committee with approval of the 
Secretary may specify. Section 905.80 also provides that the committee 
shall, with approval of the Secretary, prescribe such rules, 
regulations, or safeguards as it may deem necessary to prevent 
varieties handled under the provisions of this section from entering 
channels of trade for other than the purposes authorized. Such rules, 
regulations, and safeguards may include the requirements that handlers 
file applications with the committee for authorization to handle citrus 
fruit exempt from certain order requirements, and report such exempted 
shipments to the committee.
    Section 905.53 provides that when the handling of citrus fruit is 
regulated under Sec. 905.52, each handler shall, prior to handling any 
lot of such citrus fruit, cause such citrus fruit to be inspected and 
certified by the Federal or Federal/State Inspection Service (FSIS) as 
meeting all applicable requirements of such regulation. Section 905.53 
also provides that inspection and certification shall not be required 
for a particular lot of citrus fruit, if such lot has been previously 
inspected and certified by the FSIS as meeting the handling 
requirements issued under the authority of Sec. 905.52. However, if 
such citrus fruit is repacked prior to shipment from the production 
area, the repacking shipper must have the citrus fruit reinspected and 
recertified. This is because the citrus fruit loses its lot identity 
during the repacking process, and there is no way to demonstrate that 
the repacked citrus fruit is the same fruit as that which has already 
been inspected and certified as meeting order requirements.
    The committee recommended establishment of the following exemption 
procedures to enable repacking shippers who only repack and ship 
previously inspected and certified citrus fruit to ship such fruit 
exempt from further inspection and certification under specific 
conditions. The exemption provisions enable repacking shippers to 
custom repack and ship previously inspected and certified citrus fruit 
in different types of containers that are more acceptable to certain 
buyers of specialty packs of citrus fruit, without incurring the cost 
of having the fruit reinspected and recertified as meeting order 
requirements. Eliminating the cost of having the citrus fruit 
reinspected and certified is expected to lower repacking costs for 
repacking shippers, thereby placing them on a more equal cost basis 
with repackers of Florida citrus fruit located outside of the 
production area, who are not subject to the order requirements. This 
rule may result in greater quantities of Florida-grown citrus fruit 
being shipped into fresh market channels and increase returns to 
Florida citrus growers.
    The committee also recommended the establishment of the following 
new rules and regulations under the order (Secs. 905.161, 905.162, and 
905.163) to govern the shipment of repacked citrus fruit under 
exemption, and to enable repacking shippers to ship repacked citrus 
fruit exempt from further inspection and certification. These rules and 
regulations are designed to provide safeguards to make sure that only 
citrus fruit repacked by repacking shippers under the conditions 
specified in Secs. 905.161, 905.162, and 905.163 is shipped from the 
production area.
    Section 905.161 defines a repacking shipper and establishes 
conditions under which such repacking shippers may repack and ship 
citrus fruit exempt from further inspection and certification under 
Sec. 905.53, subject to meeting certain safeguard conditions. Under 
this definition, a repacking shipper is a person who repacks and ships 
citrus fruit grown in the production area in Florida which has been 
previously inspected and certified as meeting the requirements 
specified under Sec. 905.52 of the order, and who has obtained a 
currently valid repacking certificate of privilege issued to him or her 
by the committee as specified in Sec. 905.162. Under Sec. 905.161, each 
repacking shipper, to qualify for a repacking certificate of privilege, 
must notify the committee 10 days prior to his or her first shipment of 
repacked citrus fruit during a particular fiscal period of his or her 
intent to ship such citrus fruit, submit an application on an 
Application for a Repacking Certificate of Privilege form supplied by 
the committee, and agree to other requirements as set forth in 
Secs. 905.162 and 905.163 inclusive, with respect to such shipments. 
The repacking shipper shall certify that he or she will only handle 
previously inspected and certified citrus fruit.
    Also under Sec. 905.161, any repacking shipper who handles citrus 
fruit shipped under a repacking certificate of privilege must see to it 
that all such citrus fruit has previously been positive lot identified 
by the Federal or Federal/State Inspection Service and certified as 
meeting the applicable requirements for citrus fruit shipped to the 
domestic market (fruit shipped from the production area to any point 
outside thereof in the 48 contiguous States and the District of 
Columbia of the United States), prior to being repacked and shipped by 
the repacking shipper. Each such citrus fruit shipment shall be 
accompanied by a copy of the Federal-State manifest that certifies the 
grade and amount of each load of citrus fruit received, which shall be 
retained by the repacking shipper.
    To prevent the packing of uninspected fruit from the field into 
repacked lots, repacking shippers may not utilize repacking facilities 
which have operable equipment for washing, brushing, waxing, or drying 
citrus fruit. This precludes the mixing of ungraded fruit from the 
field with previously inspected fruit. In addition, all citrus fruit 
handled by a repacking shipper shall be packed in approved Florida 
Department of Citrus fruit containers, and each container shipped with 
such citrus fruit shall be marked with the repacking shipper's 
repacking certificate of privilege number.
    Section 905.162(a) establishes procedures under which repacking 
shippers who desire to repack and ship previously inspected and 
certified citrus fruit may apply to the committee to obtain a repacking 
certificate of privilege from the committee. Application for a 
repacking certificate of privilege by a repacking shipper shall be made 
on forms furnished by the committee. Each application shall contain, 
but need not be limited to, the name, address and Florida citrus fruit 
dealer license number of the applicant; approximate number of boxes to 
be handled during the season; the various types of containers to be 
used to ship the repacked citrus fruit; a certification to the 
Secretary of Agriculture and to the committee as to the truthfulness of 
the information shown thereon; and any other appropriate information or 
documents deemed necessary by the committee or duly authorized agents 
for the purposes stated in Sec. 905.161.
    Section 905.162(b) also provides a procedure for the committee to 
follow in approving a repacking certificate of privilege. The committee 
or its duly authorized agents shall give prompt consideration to each 
application for a repacking certificate of privilege. Approval of an 
application based upon a determination as to whether the information 
contained therein and other information available to the committee 
supports approval, shall be evidenced by the issuance of a repacking 
certificate of privilege to the applicant. Each certificate shall 
expire at the end of the fiscal period.
    Finally, Sec. 905.162(c) provides procedural safeguards for the 
committee to follow when dealing with suspensions or denials of 
repacking shippers certificates of privilege.
    Section 905.163 establishes procedures which require repacking 
shippers to report to the committee all shipments of repacked citrus 
fruit made under a repacking certificate of privilege. Under this 
section, each repacking shipper who handles citrus fruit under a 
repacking certificate of privilege shall supply the committee with 
reports on each shipment as requested by the committee, on forms 
supplied by the committee, showing the name and address of the 
repacking shipper; name and address of the handler supplying the 
inspected and certified citrus fruit for such shipment; number of 
packages; size and containers; brand or grade; certificate number; and 
any other information deemed necessary by the committee. Each repacking 
shipper of citrus fruit shall maintain on file a copy of the Federal-
State manifest that certifies the grade and amount of each load of 
citrus fruit received. These manifests shall be made available to the 
committee upon request. In addition, the repacking shipper shall 
promptly forward to the committee one copy of the Report of Shipments 
Under Certificate of Privilege form for each shipment, retain one copy 
of such form in his or her record files, and make sure one copy of such 
form accompanies the shipment. Failure to complete and return such 
forms shall be cause for the committee to suspend the repacking 
shipper's repacking certificate of privilege.
    This rule reflects the committee's and the Department's appraisal 
of the need to establish the new rules and regulations governing the 
shipment of repacked fresh citrus fruit, as specified. The Department's 
view is that this rule may have a beneficial impact on producers and 
handlers of fresh Florida citrus fruit, since it will permit repacking 
shippers to repack and ship previously inspected and certified citrus 
fruit exempt from further inspection and certification.
    Based on the above, the Administrator of the AMS has determined 
that this rule will not have a significant economic impact on a 
substantial number of small entities.
    In accordance with the Paperwork Reduction Act of 1980 [44 U.S.C. 
Chapter 35], the information collection and recordkeeping requirements 
contained in this rule have been submitted to the Office of Management 
and Budget (OMB) for approval and have been assigned OMB No. 0581-0094. 
The committee estimates that about 10 repacking shippers of Florida 
citrus fruit will use the Application for a Repacking Certificate of 
Privilege form once each year, and that it will require an average of 
0.116 hours for them to complete each such form. The committee also 
estimates that about 10 repacking shippers of Florida citrus fruit will 
use the Report of Shipments Under Certificate of Privilege form 50 
times each year, and that it will require an average of 0.116 hours for 
them to complete each such form. Thus, this rule increases the total 
information collection burden under the order by 59.2 hours. The 
committee also estimates that the recordkeeping burden on the 10 
repacking shippers who are required to file and maintain a copy of the 
Federal-State manifest that certifies the grade and amount of each load 
of citrus fruit received at 50 hours annually (500 forms times an 
average of 0.1 hour required to file each form), and a copy of the 
Reports of Shipments Under Repacking Certificate of Privilege form 
filed with the committee at 50 hours annually (500 forms times an 
average of 0.1 hour required to file each form).
    After consideration of all relevant matter presented, the 
information and recommendations submitted by the committee, and other 
information, it is found that adding the provisions, as hereinafter set 
forth, will tend to effectuate the declared policy of the Act.
    Pursuant to 5 U.S.C. 553, it is also found and determined, upon 
good cause, that it is impracticable, unnecessary and contrary to the 
public interest to give preliminary notice prior to putting this rule 
into effect, and that good cause exists for not postponing the 
effective date of this action until 30 days after publication in the 
Federal Register because: (1) This rule relaxes handling requirements 
governing the shipment of repacked citrus fruit grown in Florida; (2) 
Florida citrus fruit handlers are aware of this relaxation which was 
unanimously recommended by the committee at a public meeting, and they 
will need no additional time to comply with the relaxed requirements; 
(3) shipment of the 1994-95 season Florida citrus fruit crop is 
expected to begin on or about September 1, 1994, and these relaxed 
requirements should be in effect by that date; and (4) the rule 
provides a 30-day comment period, and any comments received will be 
considered prior to any finalization of this interim final rule.

List of Subjects in 7 CFR Part 905

    Grapefruit, Marketing agreements, Oranges, Reporting and 
recordkeeping requirements, Tangelos, Tangerines.

    For the reasons set forth in the preamble, 7 CFR Part 905 is 
amended as follows:

PART 905--ORANGES, GRAPEFRUIT, TANGERINES, AND TANGELOS GROWN IN 
FLORIDA

    1. The authority citation for 7 CFR Part 905 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.

    2. New Secs. 905.161, 905.162, and 905.163 are added to read as 
follows:


Sec. 905.161  Repacking shipper.

    (a) A repacking shipper is a person who repacks and ships citrus 
fruit grown in the production area in Florida which has been previously 
inspected and certified as meeting the requirements specified under 
Sec. 905.52 of the order, and who has obtained a currently valid 
repacking certificate of privilege issued to him or her by the 
committee as specified in Sec. 905.162.
    (b) Each repacking shipper, to qualify for a repacking certificate 
of privilege, must notify the committee 10 days prior to his or her 
first shipment of repacked citrus fruit during a particular fiscal 
period of his or her intent to ship such citrus fruit, submit an 
Application for a Repacking Certificate of Privilege form supplied by 
the committee, and agree to other requirements as set forth in 
Secs. 905.162 and 905.163 inclusive, with respect to such shipments. 
The repacking shipper shall certify that he or she will only handle 
previously inspected and certified citrus fruit.
    (c) Any repacking shipper who handles citrus fruit shipped under a 
repacking certificate of privilege must, other order provisions not 
withstanding, meet the following requirements:
    (1) All such citrus fruit must be positive lot identified by the 
Federal or Federal/State Inspection Service and certified as meeting 
the applicable requirements for citrus fruit shipped to the domestic 
market (fruit shipped from the production area to any point outside 
thereof in the 48 contiguous States and the District of Columbia of the 
United States), prior to being repacked and shipped by the repacking 
shipper. Each such citrus fruit shipment shall be accompanied by a 
Federal-State manifest that certifies the grade and amount of each load 
of citrus fruit received, which shall be retained by the repacking 
shipper.
    (2) Be reported as required in Sec. 905.163.
    (3) The repacking facility used to repack previously inspected and 
certified citrus fruit by the repacking shipper shall not have operable 
equipment to wash, brush, wax, or dry citrus fruit.
    (4) All citrus fruit handled by a repacking shipper shall be packed 
in approved Florida Department of Citrus fruit containers.
    (5) Each container shipped with such citrus fruit shall be marked 
with the repacking shipper's repacking certificate of privilege number.


Sec. 905.162  Repacking certificate of privilege.

    (a) Application. Application for a repacking certificate of 
privilege by a repacking shipper shall be made on an Application for a 
Repacking Certificate of Privilege form supplied by the committee. Each 
such application shall contain, but need not be limited to, the name, 
address and Florida citrus fruit dealer license number of the 
applicant; approximate number of boxes to be handled during the season; 
the various types of containers to be used to ship the repacked citrus 
fruit; a certification to the Secretary of Agriculture and to the 
committee as to the truthfulness of the information shown thereon; and 
any other appropriate information or documents deemed necessary by the 
committee or duly authorized agents for the purposes stated in 
Sec. 905.161.
    (b) Approval. The committee or its duly authorized agents shall 
give prompt consideration to each application for a repacking 
certificate of privilege. Approval of an application based upon a 
determination as to whether the information contained therein and other 
information available to the committee supports approval, shall be 
evidenced by the issuance of a repacking certificate of privilege to 
the applicant. Each such certificate shall expire at the end of the 
fiscal period.
    (c) Suspension or denial of certificate of privilege. The committee 
may investigate the handling of repacked fresh citrus fruit shipments 
under certificates of privilege to determine whether repacking shippers 
are complying with the requirements and regulations applicable to such 
certificates. Whenever the committee finds that a repacking shipper is 
failing to comply with the requirements and regulations applicable to 
such certificates, the certificate of privilege issued to such 
repacking shipper may be suspended or, in the case of an application 
for the issuance of an initial certificate of privilege, may be denied. 
Such suspension of a certificate shall be for a reasonable period of 
time as determined by the committee, but in no event shall it extend 
beyond the end of the then current fiscal period. In the case of the 
denial of an application for the issuance of an initial certificate, 
such certificate shall be denied until the applicant comes into 
compliance with the requirements and regulations applicable to such 
certificates. Prior to suspending or denying an application for a 
certificate of privilege, the committee shall give the shipper or 
applicant an opportunity, either orally or in writing, to present 
opposing facts and reasons. The shipper or applicant shall be informed 
of the committee's determination in writing and in a timely manner.


Sec. 905.163  Reports of shipments under repacking certificate of 
privilege.

    (a) Each repacking shipper who handles citrus fruit under a 
repacking certificate of privilege shall supply the committee with 
reports on each shipment as requested by the committee, on a Report of 
Shipments Under Certificate of Privilege form supplied by the 
committee, showing the name and address of the repacking shipper; name 
and address of the handler supplying the inspected and certified citrus 
fruit for such shipment; number of packages; size and containers; 
brand; grade; certificate number; and any other information deemed 
necessary by the committee. Each repacking shipper of citrus fruit 
shall maintain on file a copy of the Federal-State manifest that 
certifies the grade and amount of each load of citrus fruit received. 
These manifests shall be readily available to the committee upon 
request.
    (b) One copy of the Report of Shipments Under Certificate of 
Privilege form on each shipment shall be forwarded to the committee 
promptly, one copy of such form shall be retained by the repacking 
shipper, and one copy of such form shall accompany the shipment. 
Failure to complete and return such form shall be cause for suspension 
of the repacking shippers repacking certificate of privilege.

    Dated: September 19, 1994.
Eric M. Forman,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 94-23611 Filed 9-22-94; 8:45 am]
BILLING CODE 3410-02-P