[Federal Register Volume 70, Number 236 (Friday, December 9, 2005)]
[Rules and Regulations]
[Pages 73123-73126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23821]



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  Federal Register / Vol. 70, No. 236 / Friday, December 9, 2005 / 
Rules and Regulations  

[[Page 73123]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 906

[Docket No. FV05-906-1 FIR]


Oranges and Grapefruit Grown in Lower Rio Grande Valley in Texas; 
Changes to Container and Pack Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim final rule that revised the container 
and pack requirements prescribed under the marketing order (order) 
covering oranges and grapefruit grown in the Lower Rio Grande Valley in 
Texas. The order regulates the handling of such fruit and is 
administered locally by the Texas Valley Citrus Committee (Committee). 
This rule continues in effect the addition of eight new containers to 
the list of authorized containers for use by Texas citrus handlers, the 
removal of one obsolete container, and the grouping of all the 
requirements on authorized bags for easier reference. Other continued 
changes correct references to the U.S. grade standards for oranges and 
grapefruit grown in Texas. These changes are expected to help handlers 
compete more effectively in the marketplace, better meet the needs of 
buyers, and improve producer returns.

DATES: Effective Date: January 9, 2006.

FOR FURTHER INFORMATION CONTACT: Belinda G. Garza, Regional Manager, 
Texas Marketing Field Office, Marketing Order Administration Branch, 
Fruit and Vegetable Programs, AMS, USDA; Telephone: (956) 682-2833, 
Fax: (956) 682-5942; or George Kelhart, Technical Advisor, Marketing 
Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 
1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; 
Telephone: (202) 720-2491, Fax: (202) 720-8938.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement and Order No. 906, as amended (7 CFR part 906), regulating 
the handling of oranges and grapefruit grown in the Lower Rio Grande 
Valley in Texas, 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.''
    USDA 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 USDA 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 USDA 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 USDA'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 action that revised container and 
pack requirements prescribed under the Texas orange and grapefruit 
order and made several conforming and formatting changes. The rule 
revised the rules and regulations and container requirements by adding 
eight new containers to the list of authorized containers for use by 
Texas citrus handlers, removing one obsolete container, combining all 
of the requirements on authorized bags into one grouping for easier 
reference. Other changes included revising incorrect references to the 
U.S. grade standards for oranges and grapefruit grown in Texas and 
States other than Florida, California, and Arizona (7 CFR part 51.680 
through 51.714 for oranges, and 7 CFR part 51.620 through 51.653 for 
grapefruit). See 68 FR 46433, August 6, 2003; and 66 FR 48785, 
September 24, 2001, for information on changes in the grade standards 
that necessitated changes to the Texas citrus handling regulations.
    These changes are expected to help handlers compete more 
effectively in the marketplace, better meet the needs of buyers, and to 
improve producer returns by lessening the chances of confusion in the 
marketplace. In addition, this rule is needed to bring the 
administrative rules and regulations into conformance with amendments 
to the U.S. grade standards. These changes were unanimously recommended 
by the Committee on May 26, 2005.
    The Committee's Container Subcommittee met on May 26, 2005, and 
discussed in detail possible changes to the order's container 
requirements. The Subcommittee recommended and the Committee 
unanimously approved the following changes to the orange and grapefruit 
container requirements and conforming changes to the rules and 
regulations to bring them into conformity with current industry 
marketing practices:
    (1) The addition of eight new containers to the list of approved 
containers for use by Texas citrus handlers;
    (2) Elimination of one obsolete wire crib from the container list, 
combining five approved bags currently listed separately into one 
paragraph for easier reference, and removal of some obsolete language 
in one container listing;
    (3) Removal of references no longer needed in the Texas citrus 
regulations

[[Page 73124]]

because of changes made to the U.S. grade standards for Texas oranges 
and grapefruit; and
    (4) Correction of references to legal citations in the regulations.
    Under the terms of the order, fresh market shipments of oranges and 
grapefruit grown in the Lower Rio Grande Valley in Texas are required 
to be inspected and meet grade, size, container, and pack requirements. 
Section 906.40 of the citrus marketing order authorizes the issuance of 
container and pack regulations. Section 906.340(a)(1) of the order's 
rules and regulations outlines container requirements for fresh 
shipments of Texas oranges and grapefruit. Container standardization 
helps prevent marketing confusion and helps foster orderly marketing.
    Section 906.340 of the rules and regulations previously specified 
12 containers authorized for use by Texas citrus handlers in paragraphs 
(a)(1)(i) through (xi). Paragraph (a)(1)(xi) of Sec.  906.340 also 
authorized the Committee to approve other types of containers for 
testing purposes. Such test containers are subject to prior approval 
and their use by handlers is supervised by the Committee.
    Over the years, the Committee has approved experimental containers 
for use by the Texas citrus industry. The need for experimental 
containers is reviewed by the Committee at the beginning of each 
season. Because buyers, including retailers, have continued to request 
an increasing array of containers to meet their various display 
objectives, the number of Committee approved experimental containers 
had increased to 11.
    The Committee recently reviewed its experimental container list and 
decided to convert those being used by handlers to permanent status and 
to eliminate those that were no longer in use to lessen the chances of 
confusion and to reflect current industry practices. The Committee, 
therefore, recommended converting to permanent status 8 experimental 
containers which are now widely used by the Texas citrus industry. The 
following containers were moved from the experimental to the permanent 
container list:
    (1) A fiberboard box holding two layers of fruit, with approximate 
dimensions of 23 inches in length, 15\1/2\ inches in width, and 7 
inches in depth;
    (2) A fiberboard box with approximate dimensions of 15 inches in 
length, 11 inches in width, and 7\1/4\ inches in depth;
    (3) A fiberboard box with approximate dimensions of 25\3/4\ inches 
in length, 15 inches in width, and 8\3/8\ to 10\1/2\ inches in depth;
    (4) A reusable collapsible plastic container with approximate 
dimensions of 23 inches in length, 15 inches in width, and 7 to 11 
inches in depth;
    (5) A reusable collapsible plastic container with approximate 
dimensions of 14\1/4\ x 10\3/4\ x 6\3/4\ inches;
    (6) A reusable collapsible plastic bin with approximate dimensions 
of 36\3/4\ x 44\3/4\ x 27 inches;
    (7) An octagonal bulk triple wall fiberboard crib with approximate 
dimensions of 37\3/4\ inches in length, 25 inches in width, and 25 
inches in height: Provided, That the container has a Mullen or Cady 
test of at least 1,100 pounds: And Provided further, That the container 
may be used to pack any poly or mesh bags authorized in this section, 
or bulk fruit; and
    (8) A closed fiberboard carton with approximate dimensions of 16\1/
2\ inches in length, 10\3/4\ inches in width, and 6\15/16\ inches in 
height: Provided, That the container has a Mullen or Cady test of at 
least 200 pounds.
    Retail buyers are highly competitive and experiment frequently with 
various in-store displays utilizing many container shapes and sizes. 
This on-going experimentation is influenced by European container 
development, consumer preferences, evolving handling/racking systems, 
and other variables. These forces have combined to demand an ever-
increasing number of containers on the experimental list. The intent of 
this action is to reduce the experimental container list to those which 
truly are still experimental. The Committee believes that the permanent 
container list should include all the containers that the Texas citrus 
industry is now using. Adding the widely used containers to the 
permanent list and eliminating the unused containers brings the 
requirements into conformity with current industry operating practices. 
This change does not preclude additional containers being put on the 
experimental list, when necessary.
    The Committee also recommended eliminating one wire crib on the 
permanent list with dimensions of 46\1/2\ by 37 by 30 inches, which was 
no longer being used by the industry. In addition, the Committee 
recommended combining five separate bag requirements into one paragraph 
to allow for easier reference. Previously, paragraph (a)(1) of Sec.  
906.340 listed bags with a capacity of five, eight, ten, or 18 pounds 
of fruit, and four-pound poly or vexar bags for oranges only, in 
paragraphs (iv), (v), (x), and (xi). This action combined all the bag 
requirements into one paragraph so all of the authorized bags could be 
more easily identified. In addition, the Committee indicated that a 
reference to Freight Container Tariff 2G previously in Sec.  
906.340(a)(1)(ii) was obsolete and recommended that it be removed.
    The U.S. grade standards for Texas oranges and grapefruit were 
revised in 2003 to reflect current cultural and marketing practices and 
give the industry greater flexibility in marketing and packaging using 
developing technologies. The major changes revised the standard pack 
sections of the grapefruit and orange standards, and the standard 
sizing section of the orange standard by redefining the requirements in 
each section. To bring the order regulations into conformity with the 
revised grade standards, in paragraphs (c)(3)(iii) and (e) of Sec.  
906.120, the words ``which are packed level full,'' and ``the term 
level full means that the fruit is level with the top edge of the 
bottom section of the carton;'', respectively, were removed. In 
addition, in the introductory text of paragraph (a)(2)(i)(A) of Sec.  
906.340, the comma after ``and'' and the words ``when place packed in 
cartons or other containers,'' were removed. Also, in the introductory 
text of paragraph (a)(2)(ii)(A) of Sec.  906.340, the words ``when 
place packed in cartons or other containers'' and ``and otherwise meet 
the requirements of standard sizing'', when referring to grapefruit 
only, were removed.
    Furthermore, the interim final rule revised several references to 
the U.S. standards for grapefruit and oranges for Texas and States 
other than Florida, California, and Arizona in paragraph (b) of Sec.  
906.137 in the regulations to correctly identify applicable sections of 
the U.S. grade standards. A reference to ``51.685'' of the U.S. grade 
standards for grapefruit was incorrect and was revised to ``51.653'' to 
accurately reflect sections of the grapefruit standard. Also, an 
incorrect reference to ``51.712'' of the U.S. grade standards for 
oranges was revised to ``51.714''. In addition, a reference to 
``51.652'' in paragraph (c) of Sec.  906.340 was revised to ``51.653''.

Final Regulatory Flexibility Analysis

    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

[[Page 73125]]

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 18 handlers of oranges and grapefruit who 
are subject to regulation under the order and approximately 212 
producers in the production area. Small agricultural service firms are 
defined by the Small Business Administration (SBA) (13 CFR 121.201) as 
those having annual receipts of less than $6,000,000, and small 
agricultural producers are defined as those having annual receipts of 
less than $750,000. The majority of Texas orange and grapefruit 
handlers and producers may be classified as small entities.
    Last year, 6 of the 18 handlers (33 percent) each shipped over 
545,951 7/10 bushel cartons of oranges and grapefruit. Using an average 
f.o.b. price of $10.99 per carton, these handlers could be considered 
large businesses by the SBA, and the remaining 12 handlers (67 percent) 
could be considered small businesses. Of the approximately 212 
producers within the production area, few have sufficient acreage to 
generate sales in excess of $750,000; therefore, a majority of 
producers and handlers of Texas oranges and grapefruit may be 
classified as small entities.
    This rule continues in effect the action that revised container and 
pack requirements prescribed under the Texas orange and grapefruit 
order and made several conforming and formatting changes. The interim 
final rule revised the rules and regulations and container requirements 
by adding eight new containers to the list of authorized containers for 
use by Texas citrus handlers, removing one obsolete container, 
combining all of the requirements on authorized bags into one grouping 
for easier reference. Other changes included revising incorrect 
references to the U.S. grade standards for oranges and grapefruit grown 
in Texas and States other than Florida, California, and Arizona (7 CFR 
part 51.680 through 51.714 for oranges, and 7 CFR part 51.620 through 
51.653 for grapefruit). See 68 FR 46433, August 6, 2003; and 66 FR 
48785, September 24, 2001, for information on changes to the grade 
standards that necessitated changes in the Texas citrus handling 
regulations.
    These changes are expected to help handlers compete more 
effectively in the marketplace, better meet the needs of buyers, and to 
improve producer returns by lessening the chances of confusion in the 
marketplace. In addition, this rule was needed to bring the order's 
rules and regulations into conformance with amendments to the U.S. 
grade standards. These changes were unanimously recommended by the 
Committee on May 26, 2005.
    The Committee's Container Subcommittee met on May 26, 2005, and 
discussed in detail possible changes to the order's container 
requirements. The Subcommittee recommended and the Committee 
unanimously approved the following changes to the orange and grapefruit 
container requirements and conforming changes to the rules and 
regulations to bring them into conformity with current industry 
marketing practices: (1) The addition of eight new containers to the 
list of approved containers for use by Texas citrus handlers; (2) 
Elimination of one obsolete wire crib from the container list, 
combining the requirements of five approved bags currently listed 
separately into one paragraph for easier reference, and removing 
obsolete language in one container listing; (3) Removal of references 
no longer needed in the Texas citrus regulations because of changes 
made to the U.S. grade standards for Texas oranges and grapefruit; and 
(4) Correction of references to legal citations in the regulations.
    Under the terms of the order, fresh market shipments of oranges and 
grapefruit grown in the Lower Rio Grande Valley in Texas are required 
to be inspected and meet grade, size, container, and pack requirements. 
Section 906.40 of the citrus marketing order authorizes the issuance of 
container and pack regulations. Section 906.340(a)(1) of the order's 
rules and regulations outlines container requirements for fresh 
shipments of Texas oranges and grapefruit. Container standardization 
helps prevent marketing confusion.
    Section 906.340 of the rules and regulations previously specified 
12 containers authorized for use by Texas citrus handlers in paragraphs 
(a)(1)(i) through (xi). Paragraph (a)(1)(xi) of Sec.  906.340 also 
authorized the Committee to approve other types of containers for 
testing purposes. Such test containers are subject to prior approval 
and under the supervision of the Committee.
    Over the years, the Committee has approved experimental containers 
for use by the Texas citrus industry. The need for experimental 
containers is reviewed by the Committee at the beginning of each 
season. Because buyers, including retailers, have continued to request 
an increasing array of containers to meet their various display 
objectives, the number of Committee approved experimental containers 
had increased to 11.
    The Committee recently reviewed its experimental container list and 
decided to convert those being used by handlers to permanent status and 
to eliminate those that were no longer in use to lessen the chances of 
confusion and to reflect current industry practices. The Committee, 
therefore, recommended converting to permanent status 8 experimental 
containers which are now widely used by the Texas citrus industry. The 
following containers were moved from the experimental container list to 
the permanent container list:
    (1) A fiberboard box holding two layers of fruit, with approximate 
dimensions of 23 inches in length, 15\1/2\ inches in width, and 7 
inches in depth;
    (2) A fiberboard box with approximate dimensions of 15 inches in 
length, 11 inches in width, and 7\1/4\ inches in depth;
    (3) A fiberboard box with approximate dimensions of 25\3/4\ inches 
in length, 15 inches in width, and 8\3/8\ to 10\1/2\ inches in depth;
    (4) A reusable collapsible plastic container with approximate 
dimensions of 23 inches in length, 15 inches in width, and 7 to 11 
inches in depth;
    (5) A reusable collapsible plastic container with approximate 
dimensions of 14\1/4\ x 10\3/4\ x 6\3/4\ inches;
    (6) A reusable collapsible plastic bin with approximate dimensions 
of 36\3/4\ x 44\3/4\ x 27 inches;
    (7) An octagonal bulk triple wall fiberboard crib with approximate 
dimensions of 37\3/4\ inches in length, 25 inches in width, and 25 
inches in height: Provided, That the container has a Mullen or Cady 
test of at least 1,100 pounds: And Provided further, That the container 
may be used to pack any poly or mesh bags authorized in this section, 
or bulk fruit; and
    (8) A closed fiberboard carton with approximate dimensions of 16\1/
2\ inches in length, 10\3/4\ inches in width, and 6\15/16\ inches in 
height: Provided, That the container has a Mullen or Cady test of at 
least 200 pounds.
    Retail buyers are highly competitive and experiment frequently with 
various in-store displays utilizing many container shapes and sizes. 
This on-going experimentation is influenced by European container 
development, consumer preferences, evolving handling/racking systems, 
and other variables. These forces have combined to demand an ever-
increasing number of containers on the experimental list. The intent of 
this action is to reduce the experimental container list to those which 
truly are still experimental. The

[[Page 73126]]

Committee believes that the permanent container list should include all 
the containers the Texas citrus industry is now using. Moving the 
widely used containers from the experimental list to the permanent list 
and eliminating unused containers brings the container requirements 
into conformity with industry operating practices. This change does not 
preclude additional containers being put on the experimental list, when 
necessary.
    The Committee also recommended eliminating one wire crib on the 
permanent list with dimensions of 46\1/2\ by 37 by 30 inches, which was 
no longer being used by the industry. In addition, the Committee 
recommended combining five separate bag requirements into one paragraph 
to allow for easier reference. Previously, paragraph (a)(1) of Sec.  
906.340 listed bags with a capacity of five, eight, ten, or 18 pounds 
of fruit, and four-pound poly or vexar bags for oranges only, in 
paragraphs (iv), (v), (x), and (xi). This rule combined all the bag 
requirements into one paragraph so all authorized bags could be more 
easily identified. In addition, the Committee indicated that a 
reference to Freight Container Tariff 2G previously in Sec.  
906.340(a)(1)(ii), was obsolete and recommended that it be removed.
    The U.S. grade standards for Texas oranges and grapefruit were 
revised in 2003 to reflect current cultural and marketing practices and 
give the industry greater flexibility in marketing and packaging using 
developing technologies. The major changes revised the standard pack 
sections of the grapefruit and orange standards, and the standard 
sizing section of the orange standard by redefining the requirements in 
each section. To bring the order regulations into conformity with the 
revised grade standards, in paragraphs (c)(3)(iii) and (e) of Sec.  
906.120, the words ``which are packed level full,'' and ``the term 
level full means that the fruit is level with the top edge of the 
bottom section of the carton;'', respectively, were removed. In 
addition, in the introductory text of paragraph (a)(2)(i)(A) of Sec.  
906.340, the comma after ``and'' and the words ``when place packed in 
cartons or other containers,'' were removed. Also, in the introductory 
text of paragraph (a)(2)(ii)(A) of Sec.  906.340, the words ``when 
place packed in cartons or other containers'' and ``and otherwise meet 
the requirements of standard sizing'', when referring to grapefruit 
only, were removed.
    Furthermore, the interim final rule revised several references to 
the U.S. standards for grapefruit and oranges for Texas and States 
other than Florida, California, and Arizona in paragraph (b) of Sec.  
906.137 in the regulations to correctly identify applicable sections of 
the U.S. grade standards. A reference to ``51.685'' of the U.S. grade 
standards for grapefruit was incorrect and was revised to ``51.653'' to 
accurately reflect sections of the grapefruit standard. Also, an 
incorrect reference to ``51.712'' of the U.S. grade standards for 
oranges was revised to ``51.714''. In addition, a reference to 
``51.652'' in paragraph (c) of Sec.  906.340 was revised to ``51.653''.
    The benefits of these changes are expected to be equally available 
to all Texas citrus producers and handlers regardless of their size of 
operation. The changes offer benefits to the entire Texas citrus 
industry. These changes enable handlers to compete more effectively in 
the marketplace by lessening the chances of marketing confusion. These 
changes also will contribute to the industry's long-term objective of 
marketing as much citrus as possible.
    These regulation changes are expected to lead to market expansion. 
The alternative of leaving the regulations unchanged would not bring 
the regulations into conformity with industry operating practices. 
Accordingly, in assessing alternatives to the changes provided in this 
rule, this action provides the most beneficial results.
    This rule will not impose any additional reporting or recordkeeping 
requirements on either small or large Texas orange and grapefruit 
handlers. As with all Federal marketing order programs, reports and 
forms are periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies. In addition, as 
noted in the initial regulatory flexibility analysis, USDA 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 Texas orange and grapefruit industry and all interested persons 
were invited to attend the meeting and participate in Committee 
deliberations. Like all Committee meetings, the May 26, 2005, meeting 
was a public meeting and all entities, both large and small, were able 
to express their views on this issue.
    Also, the Committee has a number of appointed subcommittees to 
review certain issues and make recommendations to the Committee. The 
Committee's Container Subcommittee met on May 26, 2005, and discussed 
this issue in detail. That meeting was also a public meeting and both 
large and small entities were able to participate and express their 
views.
    An interim final rule concerning this action was published in the 
Federal Register on August 31, 2005. Copies of the rule were mailed by 
the Committee's staff to all Committee members and orange and 
grapefruit handlers. In addition, the rule was made available through 
the Internet by USDA and the Office of the Federal Register. That rule 
provided for a 60-day comment period which ended October 31, 2005. No 
comments were received.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance 
guide should be sent to Jay Guerber at the previously mentioned address 
in the FOR FURTHER INFORMATION CONTACT section.
    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 (70 FR 51574, August 31, 2005) will tend to effectuate 
the declared policy of the Act.

List of Subjects in 7 CFR Part 906

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

PART 906--ORANGES AND GRAPEFRUIT GROWN IN LOWER RIO GRANDE VALLEY 
IN TEXAS

0
Accordingly, the interim final rule amending 7 CFR part 906 which was 
published at 70 FR 51574 on August 31, 2005, is adopted as a final rule 
without change.

    Dated: December 5, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-23821 Filed 12-8-05; 8:45 am]
BILLING CODE 3410-02-P