[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
Federal Register
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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]
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