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

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 922

[Docket No. FV98-922-1 FIR]

Apricots Grown in Designated Counties in Washington; Change in

Container Regulations

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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

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

which modified container requirements 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 continues in effect an action which removed the requirement

requiring the use of a top pad when apricots are packed loose in closed

containers weighing not less than 24 pounds. Continuation of that

action will allow handlers greater flexibility in determining the need

for a top pad depending on apricot variety or container dimensions, and

is expected to increase returns to producers and improve the quality of

apricots available to consumers.

EFFECTIVE DATE: November 9, 1998.

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 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 the date of the entry of the ruling.

This rule continues in effect the revision to the language in the

order's container regulations which removed the requirement requiring

the use of a top pad when apricots are packed loose in closed

containers weighing 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. Continuing the removal of that

requirement will allow handlers greater flexibility in determining the

need for a top pad depending on apricot variety or container

dimensions, and 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 Sec. 922.53 provides for the modification, suspension,

or termination of the container regulations due to changed conditions.

The container regulations are prescribed in Sec. 922.306. Paragraph

(a)(4) of that section previously required handlers to use a top pad

when apricots were packed loose in closed containers weighing 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. 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 when using

closed containers depending on apricot variety or container dimensions.

Previously, the container regulations required the use of a top pad

regardless of the apricot variety or the dimensions of the closed

container. This rule continues to give handlers the flexibility to use

different packaging techniques for different varieties, and to develop

new packaging techniques that do not require a top pad. It also gives

them the flexibility to use containers with different dimensions

because some containers may not have sufficient space for a top pad.

Continuing the removal of the top pad requirement is expected to

increase returns to producers and handlers by eliminating the cost of a

top

[[Page 54342]]

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 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

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

not eliminate the current requirement in Sec. 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 final 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,

were 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.

Previously, the container regulations required the use of a top pad

regardless of the apricot variety or the dimensions of the closed

container. This rule continues to provide handlers greater flexibility

by allowing them 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 by

permitting them to use containers with different dimensions because

some containers may not have sufficient space for a top pad. Continuing

the removal of the top pad requirement, is expected to increase returns

to producers and handlers by eliminating the cost of a top pad (ranging

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

when the pad is not necessary, and to improve the quality of apricots

available to consumers because of decreased fruit damage during

transit.

The only alternative identified by the Committee was to continue

the mandatory use of a top pad. However, this alternative was not

adopted because use of the top pad in some containers damaged certain

varieties of apricots during shipment.

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, as noted in the initial regulatory

flexibility analysis, 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.

An interim final rule concerning this action was published in the

Federal Register on June 16, 1998 (63 FR 32717). Copies of the rule

were mailed by the Committee's staff to all Committee members and

apricot handlers. In addition, the rule was made available through the

Internet by the Office of the Federal Register. That rule provided for

a 60-day comment period which ended August 17, 1998. No comments were

received.

After consideration of all relevant material presented, including

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

finalizing the interim final rule, without change, as published in the

Federal Register (63 FR 32717, June 16, 1998) will tend to effectuate

the declared policy of the Act.

List of Subjects in 7 CFR Part 922

Apricots, Marketing agreements, Reporting and recordkeeping

requirements.

PART 922--APRICOTS GROWN IN DESIGNATED COUNTIES IN WASHINGTON

Accordingly, the interim final rule amending 7 CFR part 922 which

was published at 63 FR 32717 on June 16, 1998, is adopted as a final

rule without change.

Dated: October 5, 1998.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable Programs.

[FR Doc. 98-27181 Filed 10-8-98; 8:45 am]

BILLING CODE 3410-02-P