Oranges, Grapefruit, Tangerines, and Tangelos Grown in Florida; Repacked Citrus Fruit Shipment Exemption Procedures

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 905

[Docket No. FV94-905-3-IFR]

Oranges, Grapefruit, Tangerines, and Tangelos Grown in Florida;

Repacked Citrus Fruit Shipment Exemption Procedures

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule establishes exemption procedures

governing shipments of repacked fresh citrus fruit grown in Florida.

This rule permits repacking shippers to repack and ship previously

inspected and certified citrus fruit exempt from further inspection and

certification under specific conditions. This exemption is designed to

enable repacking shippers to repack and ship fruit for specialty

markets, without incurring the costs of having the fruit reinspected

and recertified.

DATES: Effective on September 1, 1994.

Comments which are received by October 24, 1994 will be considered

prior to issuance of any final rule.

ADDRESSES: Interested persons are invited to submit written comments

concerning this rule to: Docket Clerk, Fruit and Vegetable Division,

AMS, USDA, P.O. Box 96456, Room 2523-S, Washington, DC 20090-6456; or

by facsimile at 202-720-5698. Three copies of all written material

shall be submitted, and they will be made available for public

inspection at the office of the Docket Clerk during regular business

hours. All comments should reference the docket number, date, and page

number of this issue of the Federal Register.

FOR FURTHER INFORMATION CONTACT: Mark Kreaggor, Marketing Order

Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.

Box 96456, Room 2523-S, Washington, DC 20090-6456; telephone: 202-720-

5127; or William G. Pimental, Southeast Marketing Field Office, USDA/

AMS, P.O. Box 2276, Winter Haven, Florida 33883; telephone: 813-299-

4770.

SUPPLEMENTARY INFORMATION: This interim final rule is issued under

Marketing Agreement and Marketing Order No. 905 [7 CFR Part 905]

regulating the handling of oranges, grapefruit, tangerines, and

tangelos grown in Florida, hereinafter referred to as the order. This

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 8c(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 requesting 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 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 the 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 about 100 Florida citrus fruit handlers subject to

regulation under the marketing order covering oranges, grapefruit,

tangerines, and tangelos grown in Florida, and about 11,000 producers

of these citrus fruits in Florida. Small agricultural producers have

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

those having annual receipts of less than $500,000, and small

agricultural service firms are defined as those whose annual receipts

are less than $5,000,000. A minority of these handlers and a majority

of the producers may be classified as small entities.

The Citrus Administrative Committee (committee) met on June 21,

1994, and unanimously recommended establishment of exemption

procedures, for repacked previously inspected and certified citrus

fruit. The committee meets prior to and during each season to review

the rules and regulations effective on a continuous basis for each

citrus fruit regulated under the order. Committee meetings are open to

the public, and interested persons may express their views at these

meetings. The Department reviews committee recommendations and

information, as well as information from other sources, and determines

whether modification, suspension, or termination of the handling

regulations would tend to effectuate the declared policy of the Act.

Section 905.80 [7 CFR 905.80] provides for the shipment of fruit

not subject to grade and size regulations issued under Sec. 905.52 [7

CFR 905.52], and inspection and certification required under

Sec. 905.53 [7 CFR 905.53], including types of shipments and fruit

shipped for such purposes as the committee with approval of the

Secretary may specify. Section 905.80 also provides that the committee

shall, with approval of the Secretary, prescribe such rules,

regulations, or safeguards as it may deem necessary to prevent

varieties handled under the provisions of this section from entering

channels of trade for other than the purposes authorized. Such rules,

regulations, and safeguards may include the requirements that handlers

file applications with the committee for authorization to handle citrus

fruit exempt from certain order requirements, and report such exempted

shipments to the committee.

Section 905.53 provides that when the handling of citrus fruit is

regulated under Sec. 905.52, each handler shall, prior to handling any

lot of such citrus fruit, cause such citrus fruit to be inspected and

certified by the Federal or Federal/State Inspection Service (FSIS) as

meeting all applicable requirements of such regulation. Section 905.53

also provides that inspection and certification shall not be required

for a particular lot of citrus fruit, if such lot has been previously

inspected and certified by the FSIS as meeting the handling

requirements issued under the authority of Sec. 905.52. However, if

such citrus fruit is repacked prior to shipment from the production

area, the repacking shipper must have the citrus fruit reinspected and

recertified. This is because the citrus fruit loses its lot identity

during the repacking process, and there is no way to demonstrate that

the repacked citrus fruit is the same fruit as that which has already

been inspected and certified as meeting order requirements.

The committee recommended establishment of the following exemption

procedures to enable repacking shippers who only repack and ship

previously inspected and certified citrus fruit to ship such fruit

exempt from further inspection and certification under specific

conditions. The exemption provisions enable repacking shippers to

custom repack and ship previously inspected and certified citrus fruit

in different types of containers that are more acceptable to certain

buyers of specialty packs of citrus fruit, without incurring the cost

of having the fruit reinspected and recertified as meeting order

requirements. Eliminating the cost of having the citrus fruit

reinspected and certified is expected to lower repacking costs for

repacking shippers, thereby placing them on a more equal cost basis

with repackers of Florida citrus fruit located outside of the

production area, who are not subject to the order requirements. This

rule may result in greater quantities of Florida-grown citrus fruit

being shipped into fresh market channels and increase returns to

Florida citrus growers.

The committee also recommended the establishment of the following

new rules and regulations under the order (Secs. 905.161, 905.162, and

905.163) to govern the shipment of repacked citrus fruit under

exemption, and to enable repacking shippers to ship repacked citrus

fruit exempt from further inspection and certification. These rules and

regulations are designed to provide safeguards to make sure that only

citrus fruit repacked by repacking shippers under the conditions

specified in Secs. 905.161, 905.162, and 905.163 is shipped from the

production area.

Section 905.161 defines a repacking shipper and establishes

conditions under which such repacking shippers may repack and ship

citrus fruit exempt from further inspection and certification under

Sec. 905.53, subject to meeting certain safeguard conditions. Under

this definition, a repacking shipper is a person who repacks and ships

citrus fruit grown in the production area in Florida which has been

previously inspected and certified as meeting the requirements

specified under Sec. 905.52 of the order, and who has obtained a

currently valid repacking certificate of privilege issued to him or her

by the committee as specified in Sec. 905.162. Under Sec. 905.161, each

repacking shipper, to qualify for a repacking certificate of privilege,

must notify the committee 10 days prior to his or her first shipment of

repacked citrus fruit during a particular fiscal period of his or her

intent to ship such citrus fruit, submit an application on an

Application for a Repacking Certificate of Privilege form supplied by

the committee, and agree to other requirements as set forth in

Secs. 905.162 and 905.163 inclusive, with respect to such shipments.

The repacking shipper shall certify that he or she will only handle

previously inspected and certified citrus fruit.

Also under Sec. 905.161, any repacking shipper who handles citrus

fruit shipped under a repacking certificate of privilege must see to it

that all such citrus fruit has previously been positive lot identified

by the Federal or Federal/State Inspection Service and certified as

meeting the applicable requirements for citrus fruit shipped to the

domestic market (fruit shipped from the production area to any point

outside thereof in the 48 contiguous States and the District of

Columbia of the United States), prior to being repacked and shipped by

the repacking shipper. Each such citrus fruit shipment shall be

accompanied by a copy of the Federal-State manifest that certifies the

grade and amount of each load of citrus fruit received, which shall be

retained by the repacking shipper.

To prevent the packing of uninspected fruit from the field into

repacked lots, repacking shippers may not utilize repacking facilities

which have operable equipment for washing, brushing, waxing, or drying

citrus fruit. This precludes the mixing of ungraded fruit from the

field with previously inspected fruit. In addition, all citrus fruit

handled by a repacking shipper shall be packed in approved Florida

Department of Citrus fruit containers, and each container shipped with

such citrus fruit shall be marked with the repacking shipper's

repacking certificate of privilege number.

Section 905.162(a) establishes procedures under which repacking

shippers who desire to repack and ship previously inspected and

certified citrus fruit may apply to the committee to obtain a repacking

certificate of privilege from the committee. Application for a

repacking certificate of privilege by a repacking shipper shall be made

on forms furnished by the committee. Each application shall contain,

but need not be limited to, the name, address and Florida citrus fruit

dealer license number of the applicant; approximate number of boxes to

be handled during the season; the various types of containers to be

used to ship the repacked citrus fruit; a certification to the

Secretary of Agriculture and to the committee as to the truthfulness of

the information shown thereon; and any other appropriate information or

documents deemed necessary by the committee or duly authorized agents

for the purposes stated in Sec. 905.161.

Section 905.162(b) also provides a procedure for the committee to

follow in approving a repacking certificate of privilege. The committee

or its duly authorized agents shall give prompt consideration to each

application for a repacking certificate of privilege. Approval of an

application based upon a determination as to whether the information

contained therein and other information available to the committee

supports approval, shall be evidenced by the issuance of a repacking

certificate of privilege to the applicant. Each certificate shall

expire at the end of the fiscal period.

Finally, Sec. 905.162(c) provides procedural safeguards for the

committee to follow when dealing with suspensions or denials of

repacking shippers certificates of privilege.

Section 905.163 establishes procedures which require repacking

shippers to report to the committee all shipments of repacked citrus

fruit made under a repacking certificate of privilege. Under this

section, each repacking shipper who handles citrus fruit under a

repacking certificate of privilege shall supply the committee with

reports on each shipment as requested by the committee, on forms

supplied by the committee, showing the name and address of the

repacking shipper; name and address of the handler supplying the

inspected and certified citrus fruit for such shipment; number of

packages; size and containers; brand or grade; certificate number; and

any other information deemed necessary by the committee. Each repacking

shipper of citrus fruit shall maintain on file a copy of the Federal-

State manifest that certifies the grade and amount of each load of

citrus fruit received. These manifests shall be made available to the

committee upon request. In addition, the repacking shipper shall

promptly forward to the committee one copy of the Report of Shipments

Under Certificate of Privilege form for each shipment, retain one copy

of such form in his or her record files, and make sure one copy of such

form accompanies the shipment. Failure to complete and return such

forms shall be cause for the committee to suspend the repacking

shipper's repacking certificate of privilege.

This rule reflects the committee's and the Department's appraisal

of the need to establish the new rules and regulations governing the

shipment of repacked fresh citrus fruit, as specified. The Department's

view is that this rule may have a beneficial impact on producers and

handlers of fresh Florida citrus fruit, since it will permit repacking

shippers to repack and ship previously inspected and certified citrus

fruit exempt from further inspection and certification.

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.

In accordance with the Paperwork Reduction Act of 1980 [44 U.S.C.

Chapter 35], the information collection and recordkeeping requirements

contained in this rule have been submitted to the Office of Management

and Budget (OMB) for approval and have been assigned OMB No. 0581-0094.

The committee estimates that about 10 repacking shippers of Florida

citrus fruit will use the Application for a Repacking Certificate of

Privilege form once each year, and that it will require an average of

0.116 hours for them to complete each such form. The committee also

estimates that about 10 repacking shippers of Florida citrus fruit will

use the Report of Shipments Under Certificate of Privilege form 50

times each year, and that it will require an average of 0.116 hours for

them to complete each such form. Thus, this rule increases the total

information collection burden under the order by 59.2 hours. The

committee also estimates that the recordkeeping burden on the 10

repacking shippers who are required to file and maintain a copy of the

Federal-State manifest that certifies the grade and amount of each load

of citrus fruit received at 50 hours annually (500 forms times an

average of 0.1 hour required to file each form), and a copy of the

Reports of Shipments Under Repacking Certificate of Privilege form

filed with the committee at 50 hours annually (500 forms times an

average of 0.1 hour required to file each form).

After consideration of all relevant matter presented, the

information and recommendations submitted by the committee, and other

information, it is found that adding the provisions, 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 action until 30 days after publication in the

Federal Register because: (1) This rule relaxes handling requirements

governing the shipment of repacked citrus fruit grown in Florida; (2)

Florida citrus fruit handlers are aware of this relaxation which was

unanimously recommended by the committee at a public meeting, and they

will need no additional time to comply with the relaxed requirements;

(3) shipment of the 1994-95 season Florida citrus fruit crop is

expected to begin on or about September 1, 1994, and these relaxed

requirements should be in effect by that date; and (4) the rule

provides a 30-day comment period, and any comments received will be

considered prior to any finalization of this interim final rule.

List of Subjects in 7 CFR Part 905

Grapefruit, Marketing agreements, Oranges, Reporting and

recordkeeping requirements, Tangelos, Tangerines.

For the reasons set forth in the preamble, 7 CFR Part 905 is

amended as follows:

PART 905--ORANGES, GRAPEFRUIT, TANGERINES, AND TANGELOS GROWN IN

FLORIDA

1. The authority citation for 7 CFR Part 905 continues to read as

follows:

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

2. New Secs. 905.161, 905.162, and 905.163 are added to read as

follows:

Sec. 905.161 Repacking shipper.

(a) A repacking shipper is a person who repacks and ships citrus

fruit grown in the production area in Florida which has been previously

inspected and certified as meeting the requirements specified under

Sec. 905.52 of the order, and who has obtained a currently valid

repacking certificate of privilege issued to him or her by the

committee as specified in Sec. 905.162.

(b) Each repacking shipper, to qualify for a repacking certificate

of privilege, must notify the committee 10 days prior to his or her

first shipment of repacked citrus fruit during a particular fiscal

period of his or her intent to ship such citrus fruit, submit an

Application for a Repacking Certificate of Privilege form supplied by

the committee, and agree to other requirements as set forth in

Secs. 905.162 and 905.163 inclusive, with respect to such shipments.

The repacking shipper shall certify that he or she will only handle

previously inspected and certified citrus fruit.

(c) Any repacking shipper who handles citrus fruit shipped under a

repacking certificate of privilege must, other order provisions not

withstanding, meet the following requirements:

(1) All such citrus fruit must be positive lot identified by the

Federal or Federal/State Inspection Service and certified as meeting

the applicable requirements for citrus fruit shipped to the domestic

market (fruit shipped from the production area to any point outside

thereof in the 48 contiguous States and the District of Columbia of the

United States), prior to being repacked and shipped by the repacking

shipper. Each such citrus fruit shipment shall be accompanied by a

Federal-State manifest that certifies the grade and amount of each load

of citrus fruit received, which shall be retained by the repacking

shipper.

(2) Be reported as required in Sec. 905.163.

(3) The repacking facility used to repack previously inspected and

certified citrus fruit by the repacking shipper shall not have operable

equipment to wash, brush, wax, or dry citrus fruit.

(4) All citrus fruit handled by a repacking shipper shall be packed

in approved Florida Department of Citrus fruit containers.

(5) Each container shipped with such citrus fruit shall be marked

with the repacking shipper's repacking certificate of privilege number.

Sec. 905.162 Repacking certificate of privilege.

(a) Application. Application for a repacking certificate of

privilege by a repacking shipper shall be made on an Application for a

Repacking Certificate of Privilege form supplied by the committee. Each

such application shall contain, but need not be limited to, the name,

address and Florida citrus fruit dealer license number of the

applicant; approximate number of boxes to be handled during the season;

the various types of containers to be used to ship the repacked citrus

fruit; a certification to the Secretary of Agriculture and to the

committee as to the truthfulness of the information shown thereon; and

any other appropriate information or documents deemed necessary by the

committee or duly authorized agents for the purposes stated in

Sec. 905.161.

(b) Approval. The committee or its duly authorized agents shall

give prompt consideration to each application for a repacking

certificate of privilege. Approval of an application based upon a

determination as to whether the information contained therein and other

information available to the committee supports approval, shall be

evidenced by the issuance of a repacking certificate of privilege to

the applicant. Each such certificate shall expire at the end of the

fiscal period.

(c) Suspension or denial of certificate of privilege. The committee

may investigate the handling of repacked fresh citrus fruit shipments

under certificates of privilege to determine whether repacking shippers

are complying with the requirements and regulations applicable to such

certificates. Whenever the committee finds that a repacking shipper is

failing to comply with the requirements and regulations applicable to

such certificates, the certificate of privilege issued to such

repacking shipper may be suspended or, in the case of an application

for the issuance of an initial certificate of privilege, may be denied.

Such suspension of a certificate shall be for a reasonable period of

time as determined by the committee, but in no event shall it extend

beyond the end of the then current fiscal period. In the case of the

denial of an application for the issuance of an initial certificate,

such certificate shall be denied until the applicant comes into

compliance with the requirements and regulations applicable to such

certificates. Prior to suspending or denying an application for a

certificate of privilege, the committee shall give the shipper or

applicant an opportunity, either orally or in writing, to present

opposing facts and reasons. The shipper or applicant shall be informed

of the committee's determination in writing and in a timely manner.

Sec. 905.163 Reports of shipments under repacking certificate of

privilege.

(a) Each repacking shipper who handles citrus fruit under a

repacking certificate of privilege shall supply the committee with

reports on each shipment as requested by the committee, on a Report of

Shipments Under Certificate of Privilege form supplied by the

committee, showing the name and address of the repacking shipper; name

and address of the handler supplying the inspected and certified citrus

fruit for such shipment; number of packages; size and containers;

brand; grade; certificate number; and any other information deemed

necessary by the committee. Each repacking shipper of citrus fruit

shall maintain on file a copy of the Federal-State manifest that

certifies the grade and amount of each load of citrus fruit received.

These manifests shall be readily available to the committee upon

request.

(b) One copy of the Report of Shipments Under Certificate of

Privilege form on each shipment shall be forwarded to the committee

promptly, one copy of such form shall be retained by the repacking

shipper, and one copy of such form shall accompany the shipment.

Failure to complete and return such form shall be cause for suspension

of the repacking shippers repacking certificate of privilege.

Dated: September 19, 1994.

Eric M. Forman,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-23611 Filed 9-22-94; 8:45 am]

BILLING CODE 3410-02-P