[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