Fruits; Import Regulations (Oranges); Reinstatement of Suspended Minimum Orange Import Grade Requirement

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 944

[Docket No. FV-92-058-FR]

Fruits; Import Regulations (Oranges); Reinstatement of Suspended

Minimum Orange Import Grade Requirement

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule reinstates, with minor revisions, the

suspended minimum grade requirement for oranges imported into the

United States. This requirement was temporarily suspended on October

24, 1991, to provide the United States Trade Representative (USTR)

adequate time to review contemplated changes in the import

requirements. This rule is needed so that imported oranges meet the

same minimum grade requirement as is established for oranges under the

marketing order covering Texas oranges, consistent with section 8e of

the amended Agricultural Marketing Agreement Act of 1937.

EFFECTIVE DATE: May 23, 1994.

FOR FURTHER INFORMATION CONTACT: Gary D. Rasmussen, Marketing

Specialist, Marketing Order Administration Branch, Fruit and Vegetable

Division, AMS, USDA, P.O. Box 96456, room 2523-S, Washington, DC 20090-

6456; telephone: 202-720-5331; or Belinda G. Garza, McAllen Marketing

Field Office, USDA/AMS, 1313 East Hackberry, McAllen, Texas 78501;

telephone: 210-682-2833.

SUPPLEMENTARY INFORMATION: This final rule is issued under section 8e

(7 U.S.C. Section 608e-1) of the Agricultural Marketing Agreement Act

of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the

Act. Section 8e of the Act provides that whenever specified

commodities, including oranges, are regulated under a Federal marketing

order, imports of these commodities into the United States are

prohibited unless they meet the same or comparable grade, size,

quality, or maturity requirements as those in effect for the

domestically produced commodities. Section 8e also provides that

whenever two or more marketing orders regulate the same commodity

produced in different areas of the United States, the Secretary shall

determine which area the imported commodity is in most direct

competition with and apply regulations based on that area to the

imported commodity. The Secretary has determined that oranges imported

into the United States are in most direct competition with oranges

grown in Texas regulated under Marketing Order No. 906, and has found

that the minimum grade and size requirements for imported oranges

should be the same as those established for oranges under Marketing

Order No. 906.

The Department is issuing this rule in conformance with Executive

Order 12866.

This final 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. There are no administrative procedures which

must be exhausted prior to any judicial challenge to the provisions of

this rule.

Pursuant to 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. Import regulations issued under

the Act are based on those established under Federal marketing orders.

There are about 20 orange importers who will be subject to the

orange import grade requirement. Small agricultural service firms,

which include importers, have been defined by the Small Business

Administration (13 CFR 121.601) as those whose annual receipts are less

than $3,500,000. A majority of these importers may be classified as

small entities.

A proposed rule concerning this reinstatement of the orange import

grade requirement was issued on February 18, 1994, and published in the

Federal Register (59 FR 9140, February 25, 1994). That rule provided a

15-day comment period which ended March 14, 1994. A comment was filed

by Rick Perry, Commissioner, Texas Department of Agriculture, Austin,

Texas, favoring the proposed reinstatement of the minimum grade

requirement for imported oranges, because imported oranges should meet

the same minimum grade requirement as is applied to Texas oranges.

A minimum grade requirement of U.S. No. 2 specified in Sec. 944.312

(7 CFR part 944) for oranges imported into the United States was in

effect on a continuous basis prior to its suspension on October 24,

1991 (56 FR 55983, October 31, 1991; 57 FR 2674, January 23, 1992).

This requirement was suspended to provide the USTR adequate time to

review contemplated changes in the grade requirement for imported

oranges reflecting changes made in the minimum grade requirement for

Texas oranges in Sec. 906.365 (7 CFR part 906) under Marketing Order

No. 906.

This final rule amends Sec. 944.312 (7 CFR 944.312; as amended at

58 FR 69185, December 30, 1993; and corrected at 59 FR 4246, January

31, 1994) to reinstate a minimum grade requirement of U.S. No. 2 for

oranges imported into the United States. This minimum grade requirement

is the same as the minimum grade requirement currently in effect for

oranges grown in Texas under Marketing Order No. 906, and is the same

as the grade requirement effective for imported oranges under

Sec. 944.312 just prior to its suspension on October 24, 1991.

This final rule also defines the term ``oranges'', to precisely

identify the fruit covered by this import regulation.

This final rule also changes the minimum quantity exemption under

the import regulation to 400 pounds of fruit per day. The minimum

quantity exemption in the suspended import regulation was ten \7/10\

bushel cartons (420 pounds). This change makes the quantity exempted in

the import regulation comparable to the quantity exempted from handling

regulations under the marketing order for oranges grown in Texas.

A minimum size requirement specifying that oranges imported into

the United States be at least 2\6/16\inches in diameter is currently

effective under Sec. 944.312, and this requirement remains in effect

unchanged by this rule.

According to the Department of Agriculture's Foreign Agricultural

Service, U.S. fresh orange imports during the 1992/93 season were well

below the corresponding levels in the 1991/92 season, reflecting record

fresh-market domestic supplies. U.S. imports of fresh oranges during

the 1992/93 season (beginning November 1) totaled 23.6 million pounds,

nearly a third less than in 1991/92. In the five seasons 1987/88-1991/

92 fresh orange imports varied greatly. The late December 1990 freeze

caused extensive damage to orange crops in California and resulted in

an unusually large quantity of imports in 1990/91. From 1987/88 through

1991/92, U.S. imports of fresh oranges ranged from a high of 137.3

million pounds in the 1990/91 season, to a low of 17.2 million pounds

in 1988/89, with an average of 53.0 million pounds.

Fresh U.S. orange imports typically come from six countries,

including Australia, the Dominican Republic, Mexico, Israel, Jamaica,

and Spain. In the 1992/93 season, Australia accounted for 10.1 million

pounds or 42 percent of U.S. fresh orange imports. In comparison, 1991/

92 imports from Australia were 5.5 million pounds or 16 percent of U.S.

fresh market orange imports. From 1987/88 through 1991/92, Mexico was a

major source of U.S. fresh orange imports, ranging from a low of 2.2

million pounds (1988/89), to a high of 56.1 million pounds (1990/91),

with a five year average of 18.0 million pounds per season.

In accordance with section 8e of the Act, the USTR has concurred

with the issuance of this rule.

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.

This final rule reflects the Department's appraisal of the need to

reinstate the suspended orange import grade requirement and make

specified changes in the orange import regulation, as hereinafter set

forth, to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined that good

cause exists for not postponing the effective date of this rule until

30 days after publication in the Federal Register because: (1) The

orange import grade requirement should be reinstated as soon as

possible, so that imported oranges meet the same grade requirement as

is effective for fresh shipments of Texas oranges in accordance with

section 8e of the Act; and (2) the proposed rule provided a 15-day

comment period, and the one comment received favored reinstatement of

the grade requirement for imported oranges.

List of Subjects in 7 CFR Part 944

Avocados, Food grades and standards, Grapefruit, Grapes, Imports,

Kiwifruit, Limes, Olives, Oranges.

For the reasons set forth in the preamble, 7 CFR part 944 is

amended to read as follows:

PART 944--FRUITS; IMPORT REGULATIONS

1. The authority citation for 7 CFR part 944 continues to read as

follows:

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

2. Section 944.312 is revised to read as follows:

Sec. 944.312 Orange import regulation.

(a) Pursuant to section 8e (7 U.S.C. 608e-1) of the Agricultural

Marketing Agreement Act of 1937, as amended (7 U.S.C 601-674), and part

944--Fruits; Import Regulations, the importation into the United States

of any oranges is prohibited unless such oranges grade at least U.S.

No. 2, and they are at least 2\6/16\ inches in diameter.

(b) The term oranges is defined as Citrus sinensis, Osbeck.

(c) The term importation means release from custody of the United

States Customs Service.

(d) Terms and tolerances pertaining to grade and size requirements,

which are defined in the United States Standards for Grades of Oranges

(Texas and States other than Florida, California, and Arizona) (7 CFR

51.680-51.714), shall be applicable herein.

(e) Any person may import up to 400 pounds a day of oranges exempt

from the requirements specified in this section.

(f) The Federal or Federal-State Inspection Service, Fruit and

Vegetable Division, Agricultural Marketing Service, United States

Department of Agriculture, is designated as the governmental inspection

service for certifying the grade, size, quality, and maturity of

oranges imported into the United States. Inspection by the Federal or

Federal-State Inspection Service with evidence thereof in the form of

an official inspection certificate, issued by the respective service,

applicable to the particular shipment of oranges, is required on all

such imports. The inspection and certification services will be

available upon application in accordance with the Regulations Governing

Inspection, Certification and Standards of Fresh Fruits, Vegetables,

and Other Products (7 CFR part 51), and in accordance with the

regulation designating inspection services and procedure for obtaining

inspection and certification (7 CFR 944.400).

(g) Any oranges which fail to meet the import requirements, and are

not being imported for purposes of consumption by charitable

institutions, distribution by relief agencies, or processing into

products; prior to or after reconditioning may be exported or disposed

of under the supervision of the Federal or Federal-State Inspection

Service with the costs of certifying the disposal of such oranges borne

by the importer.

(h) The grade, size, quality, and maturity requirements of this

section shall not be applicable to oranges imported for consumption by

charitable institutions, distribution by relief agencies, or processing

into products, but shall be subject to the safeguard provisions

contained in Sec. 944.350.

(i) The Secretary has determined that oranges imported into the

United States are in most direct competition with oranges grown in

Texas regulated under Marketing Order No. 906.

Dated: May 12, 1994.

Robert C. Keeney,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-12094 Filed 5-17-94; 8:45 am]

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