Oranges and Grapefruit Grown in the Lower Rio Grande Valley in Texas; Revision of Container and Container Pack Requirements and Rules and Regulations for Special Purpose Shipments

SUMMARY: This interim final rule revises container requirements and

adds a new container to those authorized for use by handlers of Texas

citrus. This interim final rule also relaxes pack requirements by

requiring containers to have at least one-third by volume, rather than

50 percent citrus by count. This rule allows for more efficient use of

containers and provides handlers with more flexibility in packing mixed

packs.

DATES: This interim final rule becomes effective December 9, 1994.

Comments received by January 9, 1995 will be considered prior to

issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments

concerning this interim final rule. Comments must be sent in triplicate

to the Docket Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box

96456, Room 2523-S, Washington, D.C. 20090-6456, or by facsimile at

(202) 720-5698. Comments should reference the docket number and the

date and page number of this issue of the Federal Register and will be

available for public inspection in the Office of the Docket Clerk

during regular business hours.

FOR FURTHER INFORMATION CONTACT: Charles L. Rush, Marketing Order

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

Box 96456, Room 2523-S, Washington, D.C. 20090-6456, telephone: (202)

720-2431; or Belinda G. Garza, McAllen Marketing Field Office, Fruit

and Vegetable Division, AMS, USDA, 1313 East Hackberry, McAllen, Texas

78501; telephone: (210) 682-2833.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement and Order No. 906 [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 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 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 interim final rule is not intended to have

retroactive effect. This interim final 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 requesting a modification of the order or to be exempted

therefrom. Such 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 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 rule 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 15 handlers of oranges and grapefruit

regulated under the marketing order each season and approximately 750

orange and grapefruit producers in South Texas. Small agricultural

producers have been defined by the Small Business Administration [13

CFR Sec. 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. The majority of these

handlers and producers may be classified as small entities.

Section 906.40(d) of the order authorizes the Secretary to fix the

size, weight, capacity, dimensions, or pack of the container or

containers which may be used in the packaging, transportation, sale,

shipment, or other handling of Texas oranges or grapefruit. Consistent

with this authority, Sec. 906.340 of the order's rules and regulations

specifies the containers that may be used by Texas citrus handlers.

These containers include cardboard cartons; mesh, poly, and vexar bags;

and a number of master or bulk containers. Additionally, experimental

containers may be approved by the Texas Valley Citrus Committee

(committee), the agency responsible for local administration of the

order. The handling of each lot of fruit in such test containers is

subject to prior committee approval and is under the supervision of the

committee.

The committee met on August 18, 1994, and unanimously recommended

that the current container requirements be revised. The recommended

changes are to: (1) Revise the inside dimension specifications of two

authorized master containers; (2) eliminate certain restrictions on the

packing of mesh or poly bags; and (3) add a new fiberboard display bin

to the list of approved containers.

Two of the containers currently authorized for use are: (1) Closed

fiberboard cartons with inside dimensions of 20 inches in length by

13\1/4\ inches in width by 9\3/4\ to 10\3/4\ inches in depth, and (2)

fiberboard cribs with dimensions of 46 inches in length by 38 inches

width by 24 inches high. These containers are authorized, respectively,

in subparagraphs (iii) and (viii) of Sec. 906.340(a)(1). They are used

as master containers for shipping bags of fruit or for shipping fruit

in bulk.

In recent seasons, handlers have used experimental containers with

different dimensions than those currently authorized under

Sec. 906.340(a). The use of these containers has been successful, and,

thus, the committee recommended that the dimensions specified for these

two containers be revised to provide for more flexibility in packing

Texas citrus. Specifically, subparagraph (iii) of Sec. 906.340 (a)(1)

is revised to specify inside dimensions for closed fiberboard

containers of 20 inches in length by 13\1/4\ inches in width by 9\3/4\

to 13 inches in depth. The revised dimensions for the fiberboard crib

authorized by Sec. 906.340(a)(1)(viii) are 46 to 47\1/2\ inches in

length by 37 to 38 inches in width by 24 inches in depth. These

revisions will enable handlers to use a wider variety of containers

without having to receive prior committee approval or to use such

containers under the committee's supervision.

Section 906.340 authorizes a number of mesh, poly, and vexar bags

that may be used in packing Texas citrus, and specifies the master

containers that can be used to ship these bags of fruit. For example,

mesh type bags having a capacity of 10 pounds of fruit may only be

packed in closed fiberboard cartons with inside dimensions of 20 inches

by 13\1/4\ inches by 9\3/4\ to 10\3/4\ inches. The committee

recommended that such restrictions be eliminated to permit the industry

to pack any authorized bag in any approved master container. This

revision is intended to provide handlers with additional flexibility in

packing oranges and grapefruit without having to follow the procedures

governing the use of experimental containers. To effectuate this

change, this interim final rule revises subparagraphs (iii), (iv),

(vii), (viii), (ix), and (x) of Sec. 906.340(a)(1). Since the

recommended changes to the master containers were utilized

experimentally during the past few seasons, the committee recommends

that they be made permanent.

Finally, the committee recommended that a new fiberboard display

bin be added to the list of approved containers. The new fiberboard

display bin is being successfully used by the Florida citrus industry.

The high-graphic bulk bin works as an in-store advertisement,

increasing traffic and volume movement in the produce department.

Because the bin is vented, the fruit holds up better during shipping.

The bin can be shipped on pallets or ``slip'' boards. Adding containers

which have been previously approved for experimental use to the

permanent list of containers will remove the requirement that each lot

of fruit shipped in such containers receive prior approval from the

committee.

This interim final rule adds a new subparagraph (xi) to

Sec. 906.340(a)(1) to authorize the use of this container.

Subparagraphs (ix), (x) and (xi) of Sec. 906.340 (a)(1) are

redesignated, respectively, as subparagraphs (x), (xi) and (xii).

Section 906.42 authorizes the Secretary to modify, suspend, or

terminate regulations based upon recommendations and information

submitted by the committee, or other available information pursuant to

Secs. 906.34, 906.40, 906.45, or any combination thereof, in order to

facilitate the handling of fruit.

Consistent with Sec. 906.42, Sec. 906.120 of the order's rules and

regulations provides that oranges and/or grapefruit mixed with other

types of fruit may be handled exempt from container and pack

regulations, subject to certain conditions. One of those conditions is

that the oranges and/or grapefruit constitute at least 50 percent by

count of the contents of any container. The committee recommended

revising Sec. 906.120(c)(4)(ii) to allow handlers to pack \1/3\ Texas

citrus by volume rather than 50 percent by count. This change provides

handlers with the flexibility to pack a variety of products (e.g.,

pecans, jalapeno jelly, Washington apples, avocadoes, etc.) in the

mixed packs. The committee recognized the need to specify that mixed

packs contain at least \1/3\ Texas citrus by volume. The committee

believes that the recommended change will allow the Texas citrus

industry to improve producer returns.

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

that this action will not have a significant economic impact on a

substantial number of small entities.

The information collection requirements contained in the referenced

sections have been previously approved by the Office of Management and

Budget (OMB) under the provisions of 44 U.S.C. chapter 35 and have been

assigned OMB number 0581-0068 for Texas oranges and grapefruit.

There is no reporting burden on handlers of oranges and grapefruit

who have been using experimental containers because no application is

required.

After consideration of all relevant matter presented, including the

information and recommendations submitted by the committee and other

available information, it is hereby found that this rule 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) The committee needs to have this amendment in effect as

soon as possible because shipments of Texas oranges and grapefruit for

the 1994-95 season have begun; (2) handlers are aware of this action

which was unanimously recommended by the committee at a public meeting;

(3) this rule is a relaxation; and (3) this rule provides a 30-day

comment period, and all comments timely received will be considered

prior to finalization of this action.

List of Subjects in 7 CFR Part 906

Grapefruit, Marketing agreements and orders and Reporting and

recordkeeping requirements.

For the reasons set forth in the preamble, 7 CFR Part 906 is

amended as follows:

1. The authority citation for 7 CFR Part 906 continues to read as

follows:

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

PART 906--ORANGES AND GRAPEFRUIT GROWN IN THE LOWER RIO GRANDE

VALLEY IN TEXAS

2. In Section 906.340, paragraphs (a)(1)(iii), (a)(1)(iv),

(a)(1)(vii) and (a)(1)(viii) are revised, paragraphs (a)(1)(ix) through

(a)(1)(xi) are redesignated as paragraphs (a)(1)(x) through (a)(1)(xii)

respectively and revised, and a new paragraph (a)(1)(ix) is added to

read as follows:

Sec. 906.340 Container, pack, and container marking regulations.

* * * * *

(1) * * *

(iii) Closed fiberboard carton with inside dimensions of 20 x 13\1/

4\ inches and a depth from 9\3/4\ to 13 inches: Provided, That the

container has a Mullen or Cady test of at least 250 pounds: Provided

further, That the container may be used to pack any poly or mesh bags

authorized in this section.

(iv) Bags having a capacity of five or eight pounds of fruit.

(vii) Rectangular or octagonal bulk fiberboard crib with

approximate dimensions of 46 to 47\1/2\ inches in length, 37 to 38

inches in width by 36 inches in height: Provided, That this container

has a Mullen or Cady test of at least 1,300 pounds, and that it is used

only once for the shipment of citrus fruit; Provided further, That the

container may be used to pack any poly or mesh bags authorized in this

section or bulk fruit.

(viii) Rectangular or octagonal \2/3\ fiberboard crib with

dimensions of 46 to 47\1/2\ inches long, 37 to 38 inches wide, by 24

inches high: Provided, That the crib has a Mullen or Cady test of at

least 1,300 pounds, and that it is used only once for the shipment of

citrus fruit; Provided further, That the container may be used to pack

any poly or mesh bags authorized in this section or bulk fruit.

(ix) Octagonal fiberboard crib with approximate dimensions of 46 to

47\1/2\ inches in width by 37 to 38 inches in depth by 26 to 26\1/2\

inches in height: Provided, That the crib has a Mullen or Cady test of

at least 1,300 pounds, and that it is used only once for the shipment

of citrus fruit: Provided further, That the crib may be used to pack

any approved poly or mesh bags authorized in this section or bulk

fruit.

(x) Poly or vexar bag having capacity of four pounds of fruit:

Provided, That only oranges are to be packed in this bag.

(xi) Mesh type bag having a capacity of ten pounds of fruit.

(xii) Such types and sizes of containers as may be approved by the

committee for testing in connection with a research project conducted

by or in cooperation with the committee: Provided, That the handling of

each lot of fruit in such test containers shall be subject to prior

approval and under the supervision of the committee.

3. Section 906.120 is amended by revising paragraph (c)(4)(ii) to

read as follows:

Sec. 906.120 Fruit exempt from regulations.

* * * * *

(c) * * *

(4) * * *

(ii) Such oranges and/or grapefruit constitute at least one-third

by volume of the contents of any container, and any such container is

not larger than a \7/10\ bushel carton.

* * * * *

Dated: December 6, 1994.

Eric M. Forman,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-30416 Filed 12-8-94; 8:45 am]

BILLING CODE 3410-02-P