Oranges and Grapefruit Grown in Lower Rio Grande Valley in Texas; Changes to Pack Requirements

Federal RegisterDec 13, 1999

Ask Donna

What actually matters in this document.

Text

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 906

[Docket No. FV99-906-3 FIR]

Oranges and Grapefruit Grown in Lower Rio Grande Valley in Texas;

Changes to Pack Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

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

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

which changed the pack requirements prescribed under the marketing

order covering oranges and grapefruit grown in the Lower Rio Grande

Valley in Texas. The marketing order regulates the handling of such

fruit and is administered locally by the Texas Valley Citrus Committee

(Committee). This rule continues in effect the changes to the orange

and grapefruit pack sizes so that each pack size reflects the actual

number of fruit in a \7/10\ bushel carton. It also more closely aligns

the pack sizes for Texas oranges with the pack sizes used by shippers

of California oranges. The rule also continues in effect conforming

changes to the pack size references in the minimum size regulations.

Continuation of these changes will enable Texas handlers to compete

more effectively in the marketplace.

EFFECTIVE DATE: January 12, 2000.

FOR FURTHER INFORMATION CONTACT: Belinda G. Garza, Regional Manager,

McAllen Marketing Field Office, Marketing Order Administration Branch,

Fruit and Vegetable Programs, AMS, USDA, 1313 E. Hackberry, McAllen,

Texas 78501; telephone: (956) 682-2833, Fax: (956) 682-5942; 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) 720-

5698.

Small businesses may request information on complying with this

regulation by contacting Jay Guerber, Marketing Order Administration

Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 96456, room

2525-S, Washington, DC 20090-6456; telephone (202) 720-2491, Fax: (202)

720-5698, or E-mail: Jay.G[email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement and Order No. 906, as amended (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

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 changes to the previous orange

and grapefruit pack sizes from a 1\2/5\ bushel box basis to pack sizes

based upon the actual number of fruit packed in a \7/10\ bushel carton.

The orange pack sizes will also be more closely aligned to the pack

sizes and size tolerances used by California orange shippers. The rule

also continues in effect the conforming changes to the pack size

references in the minimum size regulations for oranges and grapefruit

so the minimum size requirements remain the same as previously

specified. Continuation of these changes will enable handlers to

compete more effectively in the marketplace.

The Committee's Grade and Size Subcommittee met on April 20 and 29,

and May 4, 1999, and discussed possible changes to the order's pack

requirements. At a meeting on May 13, 1999, the Subcommittee

recommended and the Committee unanimously approved changes to the

regulations. On July 1, 1999, the Committee met again and unanimously

recommended the following changes to the orange and grapefruit pack and

conforming changes to the size regulations.

(1) Eliminate two pack size tables for different orange varieties,

change the pack sizes to a \7/10\ bushel carton basis for all orange

varieties to be consistent with California pack sizes, and add a pack

size 64 to the California sizes. The changes resulted in one pack size

chart ranging from pack size 24 to 138 with minimum and maximum

diameter size ranges for all oranges, and, when packed in \7/10\ bushel

containers, the pack sizes reflect the actual number of fruit in the

container;

(2) Replace the 1\2/5\ bushel box references in the regulations

with \7/10\ bushel carton references;

(3) Change the grapefruit pack sizes based on a 1\2/5\ bushel box

to pack sizes based upon the actual number of fruit packed in a \7/10\

bushel carton; and

(4) Make conforming changes to the size requirements in

Sec. 906.365 based on the above changes to keep the minimum size

requirements for oranges and grapefruit the same as previously

specified.

Under the terms of the order, fresh market shipments of oranges and

grapefruit grown in the Lower Rio Grande Valley in Texas are required

to be inspected and meet grade, size, container, and pack requirements.

Section 906.40 authorizes the issuance of pack regulations. Section

906.340(a)(2) of the order's rules and regulations outlines pack

requirements for fresh shipments of Texas oranges and grapefruit.

[[Page 69376]]

Changes to the Pack Requirements for Oranges

Section 906.340(a)(2)(i) specifies pack requirements for oranges.

It previously included two tables specifying pack sizes in terms of

minimum and maximum diameters for each specified pack size, for

different varieties of oranges. Packing tolerances for off-size

continue to be specified, together with standard pack requirements.

Previously, oranges were divided into two categories for the

purpose of pack regulations: (1) Navel, Valencia, and similar late-type

oranges, and (2) all other varieties of oranges. For all types of

oranges, 13 pack sizes ranging from pack size 46 (the largest fruit) to

pack size 324 (the smallest fruit) were specified. The minimum

diameters for Navel, Valencia, and similar late-type oranges for each

of the pack sizes were \2/16\ inch smaller than those specified for all

other oranges, while the maximum diameters for all varieties of oranges

in the 13 pack sizes were the same.

All oranges, however, must have been at least pack size 288, except

that the minimum diameter limit was 2\6/16\ inches.

The previous orange pack sizes and minimum and maximum diameters

are shown in the following tables:

Table I (Section 906.304(a)(2)(i)(a))

Table I--Oranges, Except Navels, Valencias, and Similar Late-Type

Oranges

[1\2/5\ bushel box]

------------------------------------------------------------------------

Diameter in inches

Pack size -------------------------

Minimum Maximum

------------------------------------------------------------------------

46's.......................................... 4\5/16\ 5

54's or 56's.................................. 4\2/16\ 4\12/16\

64's.......................................... 3\15/16\ 4\8/16\

70's or 72's.................................. 3\13/16\ 4\5/16\

80's.......................................... 3\10/16\ 4\2/16\

100's......................................... 3\7/16\ 3\13/16\

112's......................................... 3\5/16\ 3\11/16\

125's......................................... 3\3/16\ 3\9/16\

163's......................................... 2\15/16\ 3\5/16\

200's......................................... 2\11/16\ 3\1/16\

252's......................................... 2\7/16\ 2\12/16\

288's......................................... 2\4/16\ 2\9/16\

324's......................................... 2\3/16\ 2\8/16\

------------------------------------------------------------------------

Table II (Section 906.340(a)(2)(i)(c))

Table II--Navels, Valencia and Similar Late-Type Oranges

[1\2/5\ bushel box]

------------------------------------------------------------------------

Diameter in inches

Pack size -------------------------

Minimum Maximum

------------------------------------------------------------------------

46............................................ 4\3/16\ 5

54............................................ 4 4\12/16\

64............................................ 3\13/16\ 4\8/16\

70 or 72...................................... 3\11/16\ 4\5/16\

80............................................ 3\8/16\ 4\2/16\

100........................................... 3\5/16\ 3\13/16\

112........................................... 3\3/16\ 3\11/16\

125........................................... 3\1/16\ 3\9/16\

163........................................... 2\13/16\ 3\5/16\

200........................................... 2\9/16\ 3\1/16\

252........................................... 2\5/16\ 2\12/16\

288........................................... 2\2/16\ 2\9/16\

------------------------------------------------------------------------

All oranges must have been at least Pack Size 288, except that the

minimum diameter limit for Pack Size 288 oranges in any lot was 2\6/16\

inches.

The Committee recommended changing the orange pack sizes to the

pack sizes used by the California citrus industry. A study by the

Committee indicated that approximately 39 percent of Texas oranges are

sold in Texas, and about 36 percent in California. Almost 90 percent of

Texas oranges are marketed west of the Mississippi River. California

dominates the western domestic orange market with fruit available on a

year-round basis. Texas, on the other hand, is a relatively small

producer of oranges with a marketing season from late September through

May. Previously, the pack sizes for California oranges were different

from those for Texas oranges. Furthermore, as mentioned before, Texas

previously had two orange size tables--one for Navels, Valencia, and

similar late-type oranges, and another for all other varieties.

Since California dominates the orange market, produce buyers are

much more familiar with California orange pack sizes than pack sizes

previously used by the Texas citrus industry. Buyers' computers tended

to have California pack sizes listed, but not Texas'. This put handlers

of Texas oranges at a competitive disadvantage. Further, Texas did not

previously pack a size 138 orange because this size was not a specified

pack size. The closest Texas sizes were 126 and 144. As a result, the

Texas orange industry could not take advantage of size 138 business.

Moreover, retailers, wholesalers, food service distributors, and

brokers were much more familiar with California orange pack sizes than

Texas orange pack sizes because California ships a much larger volume

and is present in the marketplace year-round. Having pack sizes

different from California's was a marketing problem that affected all

producers and handlers and caused the Texas industry to lose fresh

orange sales. The Committee believed that the Texas pack sizes needed

to be more closely aligned with the California pack sizes. In addition

to the pack sizes used by the California industry, the Committee

recommended a pack size 64, presently a very popular size for the Texas

industry, ranging from a minimum diameter of 2\11/16\ inches to a

maximum of 3\10/16\ inches.

The Committee unanimously recommended orange pack sizes ranging

from pack size 24 to 138 with minimum and maximum diameters based on

the \7/10\ bushel carton and the actual number of fruit in that size

carton, as shown in the following table:

Oranges

[\7/10\ bushel carton]

------------------------------------------------------------------------

Diameter in inches

Pack size/ number of oranges -------------------------

Minimum Maximum

------------------------------------------------------------------------

24............................................ 3\12/16\ 5\1/16\

32............................................ 3\6/16\ 4\9/16\

36............................................ 3\4/16\ 4\6/16\

40............................................ 3\2/16\ 4\4/16\

48............................................ 2\15/16\ 4

56............................................ 2\13/16\ 3\13/16\

64............................................ 2\11/16\ 3\10/16\

72............................................ 2\9/16\ 3\8/16\

88............................................ 2\8/16\ 3\4/16\

113........................................... 2\7/16\ 3

138........................................... 2\6/16\ 2\12/16\

------------------------------------------------------------------------

Previously, Texas had minimum and maximum orange size diameters in

inches and fractions of an inch for each pack size based on the 1\2/5\

bushel box. The Committee recommended changes to the minimum and

maximum diameter size ranges for the proposed pack sizes to a \7/10\

bushel carton basis as shown in the foregoing table because 1\2/5\

bushel boxes were no longer used by the industry.

Adopting the California orange pack sizes for all varieties of

oranges eliminated the two separate pack size tables previously in the

orange pack regulations. Separate tables for different varieties of

oranges had been established to allow for varietal size differences.

Some varieties tend to be round and others slightly oblong, and older

mechanical fruit sizing equipment could not accurately size the

differently shaped fruit. Present day mechanical fruit sizers, however,

accurately size all varieties of oranges regardless of shape, and two

separate pack size tables for different orange varieties were no longer

necessary.

Language was added to clarify that if \7/10\ bushel containers of

oranges are marked, the count of fruit in each

[[Page 69377]]

container shall not be less than the count marked on the container, but

may exceed the count marked on the container by not more than 8

percent. The 8 percent tolerance is used in California. When packed in

marked containers other than the \7/10\ bushel, the pack sizes

applicable to \7/10\ bushel containers shall also apply to such

containers.

Replace References to the 1\2/5\ Bushel Box With a \7/10\ Bushel

Carton

As discussed earlier, the Texas orange and grapefruit regulations

previously referred to a 1\2/5\ bushel box. The 1\2/5\ bushel box was a

carryover from past years when fruit was packed in a wooden ``Bruce''

box, which is twice the size of the common \7/10\ bushel carton

presently used in commercial business. The Committee recommended

changing all references to the 1\2/5\ bushel box to a \7/10\ bushel

carton. References to the 1\2/5\ bushel box and associated fruit pack

sizes based on that container were confusing to the industry. All

weekly Committee utilization reports, annual reports, and other

documents reference the \7/10\ bushel carton equivalent. With the

elimination of the 1\2/5\ bushel box, the orange pack sizes are in

accordance with the count in a \7/10\ bushel carton.

The \7/10\ bushel carton equivalent and fruit count per carton is

now the accepted unit of measure for oranges and grapefruit within the

Texas industry. Handlers actually pack as to count of fruit in the box.

Eliminating all references to the 1\2/5\ bushel box and related pack

sizes minimizes confusion among all producers and handlers.

Changes to the Pack Requirements for Grapefruit

Section 906.340(a)(2)(ii) specifies pack requirements for

grapefruit based upon the United States Standards for Grades of

Grapefruit (Texas and States other than Florida, California, and

Arizona), hereinafter referred to as the ``grapefruit standards'', with

some exceptions. Grapefruit was previously required to be packed within

the diameter limits specified for the various pack sizes defined in 7

CFR 51.630(c) of the grapefruit standards, based on a 1\2/5\ bushel

box. Exceptions were that the minimum diameter limit for pack size 96

grapefruit was 3\9/16\ inches, and for pack size 112 grapefruit, the

minimum diameter was 3\5/16\ inches. The standard pack and standard

sizing requirements, and packing tolerances remain unchanged.

The grapefruit standards define eight pack sizes. The smallest is

size \125/126\, which ranges from a minimum of 3 inches to a maximum of

3\8/16\ inches in diameter. The largest is size 46 which ranges from

4\5/16\ to 5 inches in diameter. The Texas grapefruit pack regulations

included a size 36 grapefruit, which ranged from 4\15/16\ to 5\9/16\

inches in diameter. This pack size was not in the grapefruit standards.

The minimum diameters for pack sizes 96 and 112 were different from

those specified in the grapefruit standards. The grapefruit standards

specify 3\6/16\ inches and 3\2/16\ inches, and the order requirements

specify 3\9/16\ inches and 3\5/16\ inches, respectively. The maximum

diameters are the same.

The Committee recommended revising the grapefruit pack sizes based

on a \7/10\ bushel carton, as shown in the following table, rather than

the 1\2/5\ bushel box, which was obsolete and confusing. As mentioned

earlier, the Texas citrus industry for many years had used the \7/10\

bushel carton as its standard shipping container. Previously, any

reference to a 1\2/5\ bushel of fruit had to be converted to \7/10\

bushel equivalents. With the elimination of the 1\2/5\ bushel box,

grapefruit pack sizes reference the number of grapefruit that will pack

in a \7/10\ bushel carton.

Grapefruit

[\7/10\ bushel carton]

------------------------------------------------------------------------

Diameter in inches

Pack size/number of grapefruit -------------------------

Minimum Maximum

------------------------------------------------------------------------

18(36)........................................ 4\15/16\ 5\9/16\

23(46)........................................ 4\5/16\ 5

27(\54/56\)................................... 4\2/16\ 4\12/16\

32(64)........................................ 3\15/16\ 4\8/16\

36(\70/72\)................................... 3\13/16\ 4\5/16\

40(80)........................................ 3\10/16\ 4\2/16\

48(96)........................................ 3\9/16\ 3\14/16\

56(112/113)................................... 3\5/16\ 3\10/16\

------------------------------------------------------------------------

(Numbers in parentheses represent previous pack sizes.) Minimum and

maximum diameter ranges for the new pack sizes (not in parentheses)

are the same as currently specified.

Language was also added by the interim final rule to clarify that

if \7/10\ bushel containers of grapefruit are marked, the count of

fruit in the container shall not be less than the count marked on the

container, but may exceed the count marked on the container by not more

than 8 percent. The 8 percent tolerance is used in California. When

packed in marked containers other than \7/10\ bushel, the pack sizes

applicable to \7/10\ bushel containers shall also apply to such

containers.

Conforming Changes to the Size Regulations

Changing the orange pack sizes and minimum and maximum diameter

size ranges required conforming changes to the size regulations for

oranges in Sec. 906.365(a)(2). The minimum size which may be packed

changed from pack size 288 to the new pack size 138, but the minimum

size permitted remained 2\6/16\ inch minimum diameter.

Changing the grapefruit pack sizes from a 1\2/5\ bushel box basis

to pack sizes based on the \7/10\ bushel carton also required

conforming changes to the grapefruit size regulations in

Sec. 906.365(a)(4). The minimum pack size changed from pack size 96 to

pack size 48, but the minimum diameter permitted to be shipped remained

3\9/16\ inches. A reference to the previous pack size 112 in

Sec. 906.365(a)(4) was changed to pack size 56. That paragraph provides

that pack size 56 grapefruit (with a minimum diameter of 3\5/16\

inches) may be packed and shipped if the fruit grades at least U.S. No.

Final Regulatory Flexibility Analysis

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, the 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 315 producers of oranges and grapefruit in

the production area and 16 handlers subject to regulation under the

marketing order. Small agricultural producers have been defined by the

Small Business Administration (SBA) (13 CFR 121.601) as those having

annual receipts 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 Texas orange and grapefruit producers and handlers may

be classified as small entities.

Last year, 5 of the 16 handlers (31 percent) each shipped over

625,000 \7/10\ bushel cartons of oranges and grapefruit. Using an

average f.o.b. price of $8.00 per carton, these handlers could be

considered large businesses by the SBA, and the remaining 11 handlers

(69 percent) could be considered small businesses. Of the approximately

315 producers within the production area, few have sufficient acreage

to generate

[[Page 69378]]

sales in excess of $500,000; therefore, a majority of producers of

Texas oranges and grapefruit may be classified as small entities.

Many producers are still recovering from the 1983 and 1989

devastating freezes that virtually destroyed the Texas citrus industry.

Most trees in the production area were planted within the past ten

years and have not yet reached full maturity. As a result, yields are

still somewhat low and the profit to the producers is marginal. The

1998-99 season grapefruit and orange production levels were 59 percent

and 36 percent of the pre-1983 freeze levels.

This rule continues in effect the changes to the orange and

grapefruit pack sizes currently prescribed under the order to pack

sizes based upon the actual number of fruit packed in a \7/10\ bushel

carton. It also more closely aligns the pack sizes for Texas oranges to

those used by shippers of oranges grown in California. Conforming

changes were also made to the pack size references in the size

regulations for oranges and grapefruit so the minimum sizes permitted

to be shipped remain the same as previously specified.

The Grade and Size Subcommittee met on April 20 and 29, and May 4,

1999, and discussed changes to the order's pack requirements. At a

meeting on May 13, 1999, the Subcommittee recommended and the Committee

unanimously approved changes to the regulations. On July 1, 1999, the

Committee met again and unanimously recommended the following changes

to the orange and grapefruit pack and conforming changes to the size

regulations:

(1) Eliminate two separate pack size tables for different orange

varieties and establish one table for all orange varieties, change the

pack sizes to a \7/10\ bushel carton basis for all orange varieties

consistent with California pack sizes (the Texas pack sizes previously

were based on 1\2/5\ bushel boxes), and add a pack size 64 not

specified in the California sizes. The new pack size table includes

pack sizes for all orange varieties ranging from pack size 24 to 138,

and each pack size has minimum and maximum diameter ranges;

(2) Change the grapefruit pack sizes based on a 1\2/5\ bushel box

to pack sizes based upon the actual number of fruit packed in the \7/

10\ bushel carton; and

(3) Make conforming changes to the size regulations based on the

above recommendations.

Under the terms of the order, fresh market shipments of oranges and

grapefruit grown in the Lower Rio Grande Valley in Texas are required

to be inspected and meet grade, size, container, and pack requirements.

Section 906.40 authorizes the issuance of pack regulations. Section

906.340(a)(2) of the order's rules and regulations outlines pack

requirements for fresh shipments of Texas oranges and grapefruit. Size

requirements are specified under Sec. 906.365.

Changes to the Pack Requirements for Oranges

Section 906.340(a)(2)(i) specifies pack requirements for oranges

and previously included two tables with pack sizes and minimum and

maximum diameter size ranges for different varieties of oranges. These

requirements provided, among other things, that oranges be packed in

accordance with certain minimum and maximum diameters.

Previously, oranges were divided into two categories for the

purpose of pack regulations: (1) Navel, Valencia, and similar late-type

oranges, and (2) all other varieties of oranges. All types of oranges

were to be packed in accordance with 13 pack sizes. The minimum

diameters for Navel, Valencia, and similar late-type oranges for each

of the pack sizes were \2/16\ inch smaller than those specified for all

other oranges, while the maximum diameters for all varieties of oranges

in the 13 pack sizes were the same. The minimum diameter, however, for

all oranges was pack size 288 with a minimum diameter limit of 2\6/16\

inches.

The previous orange pack sizes and minimum and maximum diameters

are shown in the following tables:

Table I (Section 906.304 (a)(2)(i)(a))

Table I.--All Oranges, Except Navels, Valencias, and Similar Late-Type

Oranges

[1\2/5\ bushel box]

------------------------------------------------------------------------

Diameter in inches

Pack Size -------------------------