[Federal Register Volume 63, Number 115 (Tuesday, June 16, 1998)]
[Rules and Regulations]
[Pages 32717-32718]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16092]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 922

[Docket No. FV98-922-1 IFR]


Apricots Grown in Designated Counties in Washington; Revision in 
Container Regulations

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule revises the container requirements currently 
prescribed under the Washington apricot marketing order. The marketing 
order regulates the handling of apricots grown in designated counties 
in Washington and is administered locally by the Washington Apricot 
Marketing Committee (Committee). This rule removes the requirement to 
use a top pad when apricots are packed loose in closed containers that 
weigh not less than 24 pounds. This revision will allow handlers 
greater flexibility in determining the need for a top pad depending on 
apricot variety or container dimensions. This change is expected to 
increase returns to producers and to improve the quality of apricots 
available to consumers.

DATES: Effective June 17, 1998. Comments received by August 17, 1998 
will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, Fruit 
and Vegetable Programs, AMS, USDA, Room 2525-S, P.O. Box 96456, 
Washington, DC 20090-6456; Fax: (202) 205-6632. All comments should 
reference the docket number and the date and page number of this issue 
of the Federal Register and will be made available for public 
inspection in the Office of the Docket Clerk during regular business 
hours.

FOR FURTHER INFORMATION CONTACT: Teresa L. Hutchinson, Northwest 
Marketing Field Office, Marketing Order Administration Branch, F&V, 
AMS, USDA, 1220 SW Third Avenue, Room 369, Portland, Oregon 97204; 
telephone: (503) 326-2724, Fax: (503) 326-7440; or George Kelhart, 
Technical Advisor, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA, Room 2525-S, P.O. Box 96456, Washington, 
DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 205-6632. Small 
businesses may request information on compliance with this regulation 
by contacting Jay Guerber, Marketing Order Administration Branch, Fruit 
and Vegetable Programs, AMS, USDA, Room 2525-S, P.O. Box 96456, 
Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 205-
6632.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement No. 132 and 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.'' The marketing 
agreement and order are 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 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 date of the entry of the ruling.
    This rule revises the order's container regulations by removing the 
requirement to use a top pad when apricots are packed loose in closed 
containers that weigh not less than 24 pounds. A top pad is a pad made 
of various materials, typically paper, which is placed on top of fruit 
packed in a closed container. This change will allow handlers greater 
flexibility in determining the need for a top pad depending on apricot 
variety or container dimensions. This change is expected to increase 
returns to producers and handlers, and to improve the quality of 
apricots available to consumers.
    Section 922.52 of the order provides authority for container 
regulations and section 922.53 allows the modification, suspension, or 
termination of the container regulations. The container regulations are 
prescribed in section 922.306. Paragraph (a)(4) of that section 
currently requires handlers to use a top pad when apricots are packed 
loose in closed containers that weigh not less than 24 pounds.
    At its May 14, 1998, meeting the Committee unanimously recommended 
removing the requirement requiring mandatory use of a top pad in 
apricots packed loose in closed containers weighing not less than 24 
pounds. This requirement for a top pad was intended to protect apricots 
from bouncing and bruising during transportation to market. However, 
some varieties of apricots, typically the newer and larger varieties, 
are often damaged from rubbing against a top pad. The Committee 
believed that some varieties of apricots, typically the older and 
smaller varieties, still derive benefit from the use of a top pad. 
Therefore, the Committee believed that handlers should have the 
flexibility to determine whether or not to use a top pad in these 
closed containers depending on apricot variety or container dimensions. 
Currently, the container regulations require the use of a top pad 
regardless of the apricot variety or the dimensions of the closed 
container. This rule provides handlers greater flexibility to use 
different packaging techniques for different varieties, and to develop 
new packaging techniques that do not require a top pad. This rule also 
provides handlers greater flexibility to use containers with different 
dimensions because some containers may not have sufficient space for a 
top pad. This change is expected to increase returns to producers and 
handlers because of the elimination of the cost of a top pad (ranging 
in cost from 4 cents per pad for paper to 25 cents per pad for foam) 
and to improve the quality of apricots available to consumers because 
of decreased fruit damage during transit. The removal of the 
requirement requiring mandatory use of a top pad for apricots packed 
loose in closed containers weighing not less than 24

[[Page 32718]]

pounds will save producers and handlers the cost of a top pad when the 
pad is not needed.
    An editorial change which removes, for clarity, reference in 
section 922.306(a)(4) to containers being row-faced or tray-packed does 
not eliminate the current requirement in section 922.306(a)(2) which 
applies to all containers with a net weight of apricots greater than 14 
pounds.
    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. Accordingly, AMS has 
prepared this initial regulatory flexibility analysis.
    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 the 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 apricot 
producers in the regulated area. Small agricultural service firms 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 having annual receipts of 
less than $500,000. The majority of Washington apricot handlers and 
producers may be classified as small entities.
    At its May 14, 1998, meeting the Committee unanimously recommended 
removing the requirement requiring mandatory use of a top pad in 
apricots packed loose in closed containers weighing not less than 24 
pounds. The requirement for a top pad was intended to protect apricots 
from bouncing and bruising during transportation to market. However, 
some varieties of apricots, typically the newer and larger varieties, 
are often damaged from rubbing against a top pad. The Committee 
believed that some varieties of apricots, typically the older and 
smaller varieties, still derive benefit from the use of a top pad. 
Therefore, the Committee believed that handlers should have the 
flexibility to determine whether or not to use a top pad in these 
closed containers depending on apricot variety or container dimensions. 
Currently, the container regulations require the use of a top pad 
regardless of the apricot variety or the dimensions of the closed 
container. This rule provides handlers greater flexibility to use 
different packaging techniques for different varieties, and to develop 
new packaging techniques that do not require a top pad. This rule also 
provides handlers greater flexibility to use containers with different 
dimensions because some containers may not have sufficient space for a 
top pad. This change is expected to increase returns to producers and 
handlers because of the elimination of the cost of a top pad (ranging 
in cost from 4 cents per pad for paper to 25 cents per pad for foam) 
and to improve the quality of apricots available to consumers because 
of decreased fruit damage during transit.
    The removal of the mandatory use of a top pad for apricots packed 
loose in closed containers weighing not less than 24 pounds will save 
producers and handlers the cost of a top pad when the pad is not 
needed.
    The only alternative would be to continue the mandatory use of a 
top pad to the detriment of the quality of certain varieties of 
apricots.
    This rule will 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 sectors. In addition, the Department has not identified any 
relevant Federal rules that duplicate, overlap or conflict with this 
rule.
    Further, the Committee's meeting was widely publicized throughout 
the Washington apricot industry and all interested persons were invited 
to attend the meeting and participate in Committee deliberations. Like 
all Committee meetings, the May 14, 1998, meeting was a public meeting 
and all entities, both large and small, were able to express their 
views on this issue. The Committee itself is composed of 12 members, of 
which four are handlers and eight are growers, the majority of whom are 
small entities. Finally, interested persons are invited to submit 
information on the regulatory and informational impacts of this action 
on small businesses.
    After consideration of all relevant material presented, including 
the Committee's recommendation, and other information, it is found that 
this interim final rule, as hereinafter set forth, will tend to 
effectuate the declared policy of the Act.
    This rule invites comments on a revision to the container 
regulations currently prescribed under the Washington apricot marketing 
order. Any comments received will be considered prior to finalization 
of this rule.
    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 rule until 30 days after publication in the Federal Register 
because: (1) This rule removes a requirement to use a top pad in 
Washington apricots packed loose in closed containers weighing not less 
than 24 pounds; (2) this rule was unanimously recommended by the 
Committee at an open public meeting and all interested parties had an 
opportunity to express their views and provide input; (3) Washington 
apricot handlers are aware of this rule and need no additional time to 
comply with the relaxed requirements; (4) June 15, 1998, is the date 
1998 season shipments of the Washington apricot crop are expected to 
begin; and (5) this rule provides a 60-day comment period and any 
comments received will be considered prior to finalization of this 
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

    1. The authority citation for 7 CFR part 922 continues to read as 
follows:

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

    2. In Sec. 922.306, paragraph (a)(4) is revised to read as follows:


Sec. 922.306  Apricot Regulation 6.

    (a) * * *
    (4) In closed containers containing not less than 24 pounds, net 
weight, of apricots when packed loose in such containers; or
* * * * *

    Dated: June 12, 1998.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 98-16092 Filed 6-12-98; 1:41 p.m.]
BILLING CODE 3410-02-P