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

SUMMARY: The Department of Agriculture (Department) is adopting as a

final rule, without change, the provisions of an interim final rule

which established 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 enables repacking shippers to repack and

ship fruit for specialty markets, without incurring the costs of having

the fruit reinspected and recertified.

EFFECTIVE DATE: January 17, 1995.

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-

2431; 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 final rule is issued under Marketing

Agreement No. 84 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 11,970 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 Part 905.80] provides for the shipment of

fruit not subject to grade and size regulations issued under

Sec. 905.52 [7 CFR Part 905.52], and inspection and certification

required under Sec. 905.53 [7 CFR Part 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, prior to the interim final rule, if such citrus fruit was

repacked prior to shipment from the production area, the repacking

shipper was required to have the citrus fruit reinspected and

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

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

the repacked citrus fruit was 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.

Finalizing 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 has 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.

The interim final rule concerning this action was published in the

September 23, 1994, Federal Register [59 FR 48780], with a 30-day

comment period ending October 24, 1994. No comments were received.

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).

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.

After consideration of all relevant matter presented, the

information and recommendations submitted by the committee, and other

information, it is found that finalizing the interim final rule without

change, as published in the Federal Register [59 FR 48780] will tend to

effectuate the declared policy of the Act.

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. Accordingly, the interim final rule amending 7 CFR Part 905

which was published at 59 FR 48780 on September 23, 1994, is adopted as

a final rule without change.

Dated: December 9, 1994.

Eric M. Forman,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-30785 Filed 12-14-94; 8:45 am]

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