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

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 922

[Docket No. FV94-922-11FR]

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 container regulations for apricots shipped

to fresh market outlets under Marketing Order No. 922. This rule gives

handlers greater flexibility in selecting containers to meet their

packaging needs by eliminating the inside dimension requirements on

each type of container that has a minimum apricot net weight

requirement. The rule eliminates reference to the obsolete lidded four-

basket crate, and replaces the term ``closed L.A. lugs and equivalent

cartons'' with the term ``closed containers'' to simplify wording and

improve clarity. This rule also includes a correction to the container

regulations which had previously appeared in the Federal Register as a

final rule, but did not appear in the annual Code of Federal

Regulations.

DATES: This interim final rule becomes effective: June 15, 1994.

Comments which are received by July 15, 1994, will be considered prior

to any finalization of the interim final rule.

ADDRESSES: Interested persons are invited to submit written comments

concerning this rule. Comments must be sent in triplicate to the Docket

Clerk, Fruit and Vegetable Division, AMS, USDA, room 2525-S, P.O. Box

96456, Washington, DC 20090-6456 or by FAX at (202) 720-5698. 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: Mark J. Kreaggor, Marketing Order

Administration Branch, Fruit and Vegetable Division, Agricultural

Marketing Service, U.S. Department of Agriculture, room 2523-S, P.O.

Box 96456, Washington, DC 20090-6456; telephone: (202) 720-5127; or

Teresa Hutchinson, Northwest Marketing Field Office, Fruit and

Vegetable Division, AMS, USDA, 1220 SW. Third Avenue, room 369,

Portland, OR 97204; telephone: (503) 326-2724.

SUPPLEMENTARY INFORMATION: This interim final rule is issued under

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 order is 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 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.

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 will 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 a principal

place of business, has jurisdiction in equity to review the Secretary's

ruling on the petition, provided a bill in equity is filed not later

than 20 days after the date of the entry of the ruling.

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.

There are approximately 55 handlers of Washington apricots that are

subject to regulation under the marketing order. In addition, there are

approximately 400 producers in the regulated area. Small agricultural

service firms, which include producers of Washington apricots, have

been defined by the Small Business Administration [13 CFR 121.601] as

those whose annual receipts are less than $3,500,000, and small

agricultural producers are defined as those whose annual receipts are

less than $500,000. A majority of these handlers and producers may be

classified as small entities.

Section 922.52 [7 CFR 922.52] authorizes the issuance of

regulations for grade, size, quality, maturity, pack, markings, and

container for any variety or varieties of apricots grown in any

district or districts of the production area. Section 922.53 [7 CFR

922.53] authorizes the modification, suspension, or termination of

regulations issued under section 922.52.

Container regulations are currently in effect under section

922.306. This rule eliminates references to inside dimensions for each

type of container that has a minimum apricot net weight requirement.

This rule also removes references to the obsolete lidded four-basket

crate and replaces the term ``closed L.A. lugs and equivalent cartons''

with the term ``closed containers.''

This rule was recommended by the Washington Apricot Marketing

Committee (committee), which works with the Department in administering

the marketing order.

The committee met on December 15, 1993, and unanimously recommended

elimination of inside dimension requirements for each type of container

that has a minimum apricot net weight requirement. The committee also

unanimously recommended deleting reference in the container regulation

to the lidded four-basket crate, and that the term ``closed L.A. lugs

and equivalent cartons'' be replaced with the term ``closed

containers.''

Handlers have experienced difficulty in packing many of the new,

larger varieties of apricots, particularly in row-faced and tray-packed

containers because of the inside dimension requirements in effect.

Container height limits, for example, can cause a higher incidence of

compression damage in large apricots that are row-faced or tray-packed.

In addition, the inside dimension requirements have prevented handlers

from using many generic containers used in other fruit and vegetable

industries.

This rule deletes references to designated container dimensions for

each type of container that has a minimum apricot net weight

requirement. The committee believes that continued standardization of

the minimum net weight requirements of the authorized containers is

needed to prevent market confusion resulting from the use of deceptive

containers.

This rule will allow handlers greater flexibility in packaging. By

allowing different container dimensions, as long as the minimum weight

requirements are met, handlers will have the flexibility to use

containers commonly used in other fruit and vegetable industries, to

use different containers for different varieties of apricots, and to

develop new containers.

This rule will remove authority for the use of the obsolete lidded

four-basket crate. The rule will also remove reference in the

regulation to the term ``closed L.A. lugs and equivalent cartons''

replacing it with the term, ``closed containers.'' This change is

intended only to simplify wording and improve clarity.

This rule also corrects the container regulations in the Code of

Federal Regulations for Apricots Grown in Designated Counties in

Washington [7 CFR Part 922]. Changes to the container requirements

appeared in the Federal Register [44 FR 37598, June 28, 1979] [Apricot

Regulation 6, Amendment 4], but did not correspondingly appear in the

annual Code of Federal Regulations.

Based on the above information, the Administrator of the AMS has

determined that this interim final rule will not have a significant

impact on a substantial number of small entities and that the action

set forth herein will benefit producers and handlers of apricots grown

in designated counties in Washington State.

After consideration of all available information, it is found that

the revision of the container regulations, as hereinafter set forth,

will tend to effectuate the declared policy of the Act.

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) The 1993-94 marketing year begins June 1,

1994, and the container regulations established herein should apply to

all apricots produced in the production area and need to be in place

before the beginning of the marketing year; (2) handlers are aware of

this rule, which was recommended at an open committee meeting, and need

no additional time to comply with these regulations which are a

relaxation; and (3) the rule provides a 30-day comment period, and any

comments timely received will be considered prior to finalization of

this interim final 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. Section 922.306 is revised to read as follows:

Sec. 922.306 Apricot Regulation 6.

(a) No handler shall handle any apricots unless such apricots are:

(1) In open containers or telescope fiberboard cartons and the net

weight of the apricots is not less than 28 pounds; or

(2) In closed containers containing not less than 14 pounds, net

weight, of apricots: Provided, That when the apricots are packed in

such containers they are row-faced or tray-packed; or

(3) In closed containers that are marked ``12 pounds net weight''

and contain not less than 12 pounds, net weight, of apricots which are

of random size and are not row-faced; or

(4) In closed containers in which the apricots are row-faced or

tray-packed: Provided, That apricots may be packed loose in such

containers if a top pad is used and the net weight of the apricots

therein is not less than 24 pounds; or

(5) If exported to Canada, in any of the containers specified in

this paragraph (a) or in containers having inside dimensions of 16\1/8\

x 11\1/2\ inches with 4\3/4\-inch end pieces and 3\3/4\-inch side

pieces.

(b) Notwithstanding any other provisions of this section, any

individual shipment of apricots which, in the aggregate, does not

exceed 500 pounds, net weight, may be handled without regard to the

requirements specified in this section or in Secs. 922.41 or 922.55.

(c) All apricots handled are also subject to all applicable grade,

size, quality, maturity and pack regulations which are in effect

pursuant to this part.

(d) The terms ``handler'', ``handle'' and ``apricots'' shall have

the same meaning as when used in the amended marketing agreement and

order.

Dated: June 9, 1994.

Eric M. Forman,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-14586 Filed 6-14-94; 8:45 am]

BILLING CODE 3410-02-P