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

final rule, with appropriate modifications, the provisions of an

interim final rule which revised container requirements and added a new

container to those authorized for use by handlers of Texas citrus. This

final rule continues a relaxation of pack requirements by requiring

containers to have at least one-third Texas citrus 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.

EFFECTIVE DATE: April 14, 1995.

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 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 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 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 container requirements be revised. The recommended changes

were 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. These changes were included in an

interim final rule which became effective December 9, 1994 [59 FR

63691].

Two of the containers authorized for use prior to issuance of the

interim final rule were (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 were authorized, respectively, in subparagraphs (iii) and

(viii) of Sec. 906.340(a)(1). They were used as master containers for

shipping bags of fruit or for shipping fruit in bulk. [[Page 13892]]

In recent seasons, handlers have used experimental containers with

different dimensions than those 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) was 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 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, prior to issuance of the

interim final rule specified 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 could 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 provides handlers with

additional flexibility in packing oranges and grapefruit without having

to follow the procedures governing the use of experimental containers.

This rule maintains the revision to subparagraphs (iii), (iv), (vii),

(viii), (ix), and (x) of Sec. 906.340(a)(1). The committee's

recommendation that the master containers utilized experimentally

during the past few seasons become permanent was implemented in the

interim final rule.

The committee's recommendation for a new fiberboard display bin was

added to the list of approved containers and continues in effect. 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. By

adding these containers which were previously approved for experimental

use to the permanent list of containers, there is no longer a

requirement that each lot of fruit shipped in such containers receive

prior approval from the committee.

The interim final rule added 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

prior to issuance of the interim final rule, was that the oranges and/

or grapefruit constitute at least 50 percent by count of the contents

of any container. The rule continues to allow handlers to pack \1/3\

Texas citrus by volume rather than 50 percent by count as authorized in

Sec. 906.120(c)(4)(ii). This change provided 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

change will allow the Texas citrus industry to improve producer

returns.

The Department's opinion is that specifying ``Texas'' is redundant.

As a result the Department did not include the term in the revision of

Sec. 906.120(c)(4)(ii).

The interim final rule concerning this action was published in the

December 9, 1994, Federal Register [59 FR 63691], with a 30-day comment

period ending January 9, 1995.

One comment was received from Ms. Darlene Barter, manager of the

committee. Ms. Barter suggested that the revision to

Sec. 906.120(c)(4)(ii) in the interim final rule should specify ``Texas

citrus.'' The Department's position is that the industry will be better

served by stating ``grown in the production area'' rather than stating

``Texas citrus''. This will encourage handlers to ship oranges and

grapefruit grown in the Lower Rio Grande Valley. While citrus is well

defined in the order, the Department agrees that there is a need for

additional clarity in the order's handling regulations. The best way to

improve the clarity of the handling regulations is by stating ``grown

in the production area''. While Ms. Barter's request is not accepted, a

change in the regulation for clarity will be incorporated.

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.

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.

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.

List of Subjects in 7 CFR Part 906

Grapefruit, Marketing agreements and Reporting and recordkeeping

requirements.

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

amended as follows:

PART 906--[AMENDED]

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

follows:

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

Sec. 906.120 Fruit exempt from regulations.

2. Section 906.120(c)(4) is revised to read as follows:

* * * * *

(c) * * *

(4) Oranges and grapefruit grown in the production area may be

handled exempt from container and pack regulations issued pursuant to

Sec. 906.40(d), under the following conditions:

(i) Such oranges and/or grapefruit grown in the production area are

mixed with other types of fruit;

(ii) Such oranges and/or grapefruit grown in the production area

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.

(iii) Such grapefruit grown in the production area grade at least

U.S. No. [[Page 13893]] 1, and such oranges grown in the production

area grade at least U.S. Combination (with not less than 60 percent, by

count, of the oranges in any lot grading at least U.S. No.1).

* * * * *

Dated: March 9, 1995.

Sharon Bomer Lauritsen,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 95-6368 Filed 3-14-95; 8:45 am]

BILLING CODE 3410-02-W