[Federal Register Volume 63, Number 196 (Friday, October 9, 1998)]
[Rules and Regulations]
[Pages 54341-54342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27181]



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 Rules and Regulations
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  Federal Register / Vol. 63, No. 196 / Friday, October 9, 1998 / Rules 
and Regulations  

[[Page 54341]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 922

[Docket No. FV98-922-1 FIR]


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

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 
which modified container requirements 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 continues in effect an action which removed the requirement 
requiring the use of a top pad when apricots are packed loose in closed 
containers weighing not less than 24 pounds. Continuation of that 
action will allow handlers greater flexibility in determining the need 
for a top pad depending on apricot variety or container dimensions, and 
is expected to increase returns to producers and improve the quality of 
apricots available to consumers.

EFFECTIVE DATE: November 9, 1998.

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 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.
    This rule continues in effect the revision to the language in the 
order's container regulations which removed the requirement requiring 
the use of a top pad when apricots are packed loose in closed 
containers weighing 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. Continuing the removal of that 
requirement will allow handlers greater flexibility in determining the 
need for a top pad depending on apricot variety or container 
dimensions, and 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 Sec. 922.53 provides for the modification, suspension, 
or termination of the container regulations due to changed conditions. 
The container regulations are prescribed in Sec. 922.306. Paragraph 
(a)(4) of that section previously required handlers to use a top pad 
when apricots were packed loose in closed containers weighing 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. 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 when using 
closed containers depending on apricot variety or container dimensions. 
Previously, the container regulations required the use of a top pad 
regardless of the apricot variety or the dimensions of the closed 
container. This rule continues to give handlers the flexibility to use 
different packaging techniques for different varieties, and to develop 
new packaging techniques that do not require a top pad. It also gives 
them the flexibility to use containers with different dimensions 
because some containers may not have sufficient space for a top pad. 
Continuing the removal of the top pad requirement is expected to 
increase returns to producers and handlers by eliminating the cost of a 
top

[[Page 54342]]

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 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 
Sec. 922.306(a)(4) to containers being row-faced or tray-packed does 
not eliminate the current requirement in Sec. 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 final 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, 
were 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. 
Previously, the container regulations required the use of a top pad 
regardless of the apricot variety or the dimensions of the closed 
container. This rule continues to provide handlers greater flexibility 
by allowing them 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 by 
permitting them to use containers with different dimensions because 
some containers may not have sufficient space for a top pad. Continuing 
the removal of the top pad requirement, is expected to increase returns 
to producers and handlers by eliminating the cost of a top pad (ranging 
in cost from 4 cents per pad for paper to 25 cents per pad for foam) 
when the pad is not necessary, and to improve the quality of apricots 
available to consumers because of decreased fruit damage during 
transit.
    The only alternative identified by the Committee was to continue 
the mandatory use of a top pad. However, this alternative was not 
adopted because use of the top pad in some containers damaged certain 
varieties of apricots during shipment.
    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, as noted in the initial regulatory 
flexibility analysis, 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.
    An interim final rule concerning this action was published in the 
Federal Register on June 16, 1998 (63 FR 32717). Copies of the rule 
were mailed by the Committee's staff to all Committee members and 
apricot handlers. In addition, the rule was made available through the 
Internet by the Office of the Federal Register. That rule provided for 
a 60-day comment period which ended August 17, 1998. No comments were 
received.
    After consideration of all relevant material presented, including 
the Committee's recommendation, and other information, it is found that 
finalizing the interim final rule, without change, as published in the 
Federal Register (63 FR 32717, June 16, 1998) 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.

PART 922--APRICOTS GROWN IN DESIGNATED COUNTIES IN WASHINGTON

    Accordingly, the interim final rule amending 7 CFR part 922 which 
was published at 63 FR 32717 on June 16, 1998, is adopted as a final 
rule without change.

    Dated: October 5, 1998.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 98-27181 Filed 10-8-98; 8:45 am]
BILLING CODE 3410-02-P