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

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 922

[Docket No. FV98-922-1 IFR]

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 the container requirements currently

prescribed under the Washington apricot marketing order. The marketing

order regulates the handling of apricots grown in designated counties

in Washington and is administered locally by the Washington Apricot

Marketing Committee (Committee). This rule removes the requirement to

use a top pad when apricots are packed loose in closed containers that

weigh not less than 24 pounds. This revision will allow handlers

greater flexibility in determining the need for a top pad depending on

apricot variety or container dimensions. This change is expected to

increase returns to producers and to improve the quality of apricots

available to consumers.

DATES: Effective June 17, 1998. Comments received by August 17, 1998

will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments

concerning this rule. Comments must be sent to the Docket Clerk, Fruit

and Vegetable Programs, AMS, USDA, Room 2525-S, P.O. Box 96456,

Washington, DC 20090-6456; Fax: (202) 205-6632. 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: Teresa L. Hutchinson, Northwest

Marketing Field Office, Marketing Order Administration Branch, F&V,

AMS, USDA, 1220 SW Third Avenue, Room 369, Portland, Oregon 97204;

telephone: (503) 326-2724, Fax: (503) 326-7440; or George Kelhart,

Technical Advisor, Marketing Order Administration Branch, Fruit and

Vegetable Programs, AMS, USDA, Room 2525-S, P.O. Box 96456, Washington,

DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 205-6632. Small

businesses may request information on compliance with this regulation

by contacting Jay Guerber, Marketing Order Administration Branch, Fruit

and Vegetable Programs, AMS, USDA, Room 2525-S, P.O. Box 96456,

Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 205-

6632.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement No. 132 and 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 marketing

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 12988, 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 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 to review the Secretary's

ruling on the petition, provided an action is filed not later than 20

days after date of the entry of the ruling.

This rule revises the order's container regulations by removing the

requirement to use a top pad when apricots are packed loose in closed

containers that weigh not less than 24 pounds. A top pad is a pad made

of various materials, typically paper, which is placed on top of fruit

packed in a closed container. This change will allow handlers greater

flexibility in determining the need for a top pad depending on apricot

variety or container dimensions. This change is expected to increase

returns to producers and handlers, and to improve the quality of

apricots available to consumers.

Section 922.52 of the order provides authority for container

regulations and section 922.53 allows the modification, suspension, or

termination of the container regulations. The container regulations are

prescribed in section 922.306. Paragraph (a)(4) of that section

currently requires handlers to use a top pad when apricots are packed

loose in closed containers that weigh not less than 24 pounds.

At its May 14, 1998, meeting the Committee unanimously recommended

removing the requirement requiring mandatory use of a top pad in

apricots packed loose in closed containers weighing not less than 24

pounds. This requirement for a top pad was intended to protect apricots

from bouncing and bruising during transportation to market. However,

some varieties of apricots, typically the newer and larger varieties,

are often damaged from rubbing against a top pad. The Committee

believed that some varieties of apricots, typically the older and

smaller varieties, still derive benefit from the use of a top pad.

Therefore, the Committee believed that handlers should have the

flexibility to determine whether or not to use a top pad in these

closed containers depending on apricot variety or container dimensions.

Currently, the container regulations require the use of a top pad

regardless of the apricot variety or the dimensions of the closed

container. This rule provides handlers greater flexibility to use

different packaging techniques for different varieties, and to develop

new packaging techniques that do not require a top pad. This rule also

provides handlers greater flexibility to use containers with different

dimensions because some containers may not have sufficient space for a

top pad. This change is expected to increase returns to producers and

handlers because of the elimination of the cost of a top pad (ranging

in cost from 4 cents per pad for paper to 25 cents per pad for foam)

and to improve the quality of apricots available to consumers because

of decreased fruit damage during transit. The removal of the

requirement requiring mandatory use of a top pad for apricots packed

loose in closed containers weighing not less than 24

[[Page 32718]]

pounds will save producers and handlers the cost of a top pad when the

pad is not needed.

An editorial change which removes, for clarity, reference in

section 922.306(a)(4) to containers being row-faced or tray-packed does

not eliminate the current requirement in section 922.306(a)(2) which

applies to all containers with a net weight of apricots greater than 14

pounds.

Pursuant to requirements set forth in the Regulatory Flexibility

Act (RFA), the Agricultural Marketing Service (AMS) has considered the

economic impact of this action on small entities. Accordingly, AMS has

prepared this initial regulatory flexibility analysis.

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 the 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 75 handlers of Washington apricots who are

subject to regulation under the order and approximately 400 apricot

producers in the regulated area. Small agricultural service firms have

been defined by the Small Business Administration (13 CFR 121.601) as

those having annual receipts of less than $5,000,000, and small

agricultural producers are defined as those having annual receipts of

less than $500,000. The majority of Washington apricot handlers and

producers may be classified as small entities.

At its May 14, 1998, meeting the Committee unanimously recommended

removing the requirement requiring mandatory use of a top pad in

apricots packed loose in closed containers weighing not less than 24

pounds. The requirement for a top pad was intended to protect apricots

from bouncing and bruising during transportation to market. However,

some varieties of apricots, typically the newer and larger varieties,

are often damaged from rubbing against a top pad. The Committee

believed that some varieties of apricots, typically the older and

smaller varieties, still derive benefit from the use of a top pad.

Therefore, the Committee believed that handlers should have the

flexibility to determine whether or not to use a top pad in these

closed containers depending on apricot variety or container dimensions.

Currently, the container regulations require the use of a top pad

regardless of the apricot variety or the dimensions of the closed

container. This rule provides handlers greater flexibility to use

different packaging techniques for different varieties, and to develop

new packaging techniques that do not require a top pad. This rule also

provides handlers greater flexibility to use containers with different

dimensions because some containers may not have sufficient space for a

top pad. This change is expected to increase returns to producers and

handlers because of the elimination of the cost of a top pad (ranging

in cost from 4 cents per pad for paper to 25 cents per pad for foam)

and to improve the quality of apricots available to consumers because

of decreased fruit damage during transit.

The removal of the mandatory use of a top pad for apricots packed

loose in closed containers weighing not less than 24 pounds will save

producers and handlers the cost of a top pad when the pad is not

needed.

The only alternative would be to continue the mandatory use of a

top pad to the detriment of the quality of certain varieties of

apricots.

This rule will not impose any additional reporting or recordkeeping

requirements on either small or large apricot handlers. As with all

Federal marketing order programs, reports and forms are periodically

reviewed to reduce information requirements and duplication by industry

and public sectors. In addition, the Department has not identified any

relevant Federal rules that duplicate, overlap or conflict with this

rule.

Further, the Committee's meeting was widely publicized throughout

the Washington apricot industry and all interested persons were invited

to attend the meeting and participate in Committee deliberations. Like

all Committee meetings, the May 14, 1998, meeting was a public meeting

and all entities, both large and small, were able to express their

views on this issue. The Committee itself is composed of 12 members, of

which four are handlers and eight are growers, the majority of whom are

small entities. Finally, interested persons are invited to submit

information on the regulatory and informational impacts of this action

on small businesses.

After consideration of all relevant material presented, including

the Committee's recommendation, and other information, it is found that

this interim final rule, as hereinafter set forth, will tend to

effectuate the declared policy of the Act.

This rule invites comments on a revision to the container

regulations currently prescribed under the Washington apricot marketing

order. Any comments received will be considered prior to finalization

of this rule.

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) This rule removes a requirement to use a top pad in

Washington apricots packed loose in closed containers weighing not less

than 24 pounds; (2) this rule was unanimously recommended by the

Committee at an open public meeting and all interested parties had an

opportunity to express their views and provide input; (3) Washington

apricot handlers are aware of this rule and need no additional time to

comply with the relaxed requirements; (4) June 15, 1998, is the date

1998 season shipments of the Washington apricot crop are expected to

begin; and (5) this rule provides a 60-day comment period and any

comments received will be considered prior to finalization of this

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. In Sec. 922.306, paragraph (a)(4) is revised to read as follows:

Sec. 922.306 Apricot Regulation 6.

(a) * * *

(4) In closed containers containing not less than 24 pounds, net

weight, of apricots when packed loose in such containers; or

* * * * *

Dated: June 12, 1998.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable Programs.

[FR Doc. 98-16092 Filed 6-12-98; 1:41 p.m.]

BILLING CODE 3410-02-P