[Federal Register: December 9, 2005 (Volume 70, Number 236)]
[Rules and Regulations]
[Page 73123-73126]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09de05-1]
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Rules and Regulations
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[[Page 73123]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 906
[Docket No. FV05-906-1 FIR]
Oranges and Grapefruit Grown in Lower Rio Grande Valley in Texas;
Changes to Container and Pack Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Agriculture (USDA) is adopting, as a final
rule, without change, an interim final rule that revised the container
and pack requirements prescribed under the marketing order (order)
covering oranges and grapefruit grown in the Lower Rio Grande Valley in
Texas. The order regulates the handling of such fruit and is
administered locally by the Texas Valley Citrus Committee (Committee).
This rule continues in effect the addition of eight new containers to
the list of authorized containers for use by Texas citrus handlers, the
removal of one obsolete container, and the grouping of all the
requirements on authorized bags for easier reference. Other continued
changes correct references to the U.S. grade standards for oranges and
grapefruit grown in Texas. These changes are expected to help handlers
compete more effectively in the marketplace, better meet the needs of
buyers, and improve producer returns.
DATES: Effective Date: January 9, 2006.
FOR FURTHER INFORMATION CONTACT: Belinda G. Garza, Regional Manager,
Texas Marketing Field Office, Marketing Order Administration Branch,
Fruit and Vegetable Programs, AMS, USDA; Telephone: (956) 682-2833,
Fax: (956) 682-5942; or George Kelhart, Technical Advisor, Marketing
Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA,
1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237;
Telephone: (202) 720-2491, Fax: (202) 720-8938.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or E-mail: Jay.Guerber@usda.gov.
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.''
USDA 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 USDA 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 USDA 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 USDA'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 action that revised container and
pack requirements prescribed under the Texas orange and grapefruit
order and made several conforming and formatting changes. The rule
revised the rules and regulations and container requirements by adding
eight new containers to the list of authorized containers for use by
Texas citrus handlers, removing one obsolete container, combining all
of the requirements on authorized bags into one grouping for easier
reference. Other changes included revising incorrect references to the
U.S. grade standards for oranges and grapefruit grown in Texas and
States other than Florida, California, and Arizona (7 CFR part 51.680
through 51.714 for oranges, and 7 CFR part 51.620 through 51.653 for
grapefruit). See 68 FR 46433, August 6, 2003; and 66 FR 48785,
September 24, 2001, for information on changes in the grade standards
that necessitated changes to the Texas citrus handling regulations.
These changes are expected to help handlers compete more
effectively in the marketplace, better meet the needs of buyers, and to
improve producer returns by lessening the chances of confusion in the
marketplace. In addition, this rule is needed to bring the
administrative rules and regulations into conformance with amendments
to the U.S. grade standards. These changes were unanimously recommended
by the Committee on May 26, 2005.
The Committee's Container Subcommittee met on May 26, 2005, and
discussed in detail possible changes to the order's container
requirements. The Subcommittee recommended and the Committee
unanimously approved the following changes to the orange and grapefruit
container requirements and conforming changes to the rules and
regulations to bring them into conformity with current industry
marketing practices:
(1) The addition of eight new containers to the list of approved
containers for use by Texas citrus handlers;
(2) Elimination of one obsolete wire crib from the container list,
combining five approved bags currently listed separately into one
paragraph for easier reference, and removal of some obsolete language
in one container listing;
(3) Removal of references no longer needed in the Texas citrus
regulations
[[Page 73124]]
because of changes made to the U.S. grade standards for Texas oranges
and grapefruit; and
(4) Correction of references to legal citations in the regulations.
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 of the citrus marketing order authorizes the issuance of
container and pack regulations. Section 906.340(a)(1) of the order's
rules and regulations outlines container requirements for fresh
shipments of Texas oranges and grapefruit. Container standardization
helps prevent marketing confusion and helps foster orderly marketing.
Section 906.340 of the rules and regulations previously specified
12 containers authorized for use by Texas citrus handlers in paragraphs
(a)(1)(i) through (xi). Paragraph (a)(1)(xi) of Sec. 906.340 also
authorized the Committee to approve other types of containers for
testing purposes. Such test containers are subject to prior approval
and their use by handlers is supervised by the Committee.
Over the years, the Committee has approved experimental containers
for use by the Texas citrus industry. The need for experimental
containers is reviewed by the Committee at the beginning of each
season. Because buyers, including retailers, have continued to request
an increasing array of containers to meet their various display
objectives, the number of Committee approved experimental containers
had increased to 11.
The Committee recently reviewed its experimental container list and
decided to convert those being used by handlers to permanent status and
to eliminate those that were no longer in use to lessen the chances of
confusion and to reflect current industry practices. The Committee,
therefore, recommended converting to permanent status 8 experimental
containers which are now widely used by the Texas citrus industry. The
following containers were moved from the experimental to the permanent
container list:
(1) A fiberboard box holding two layers of fruit, with approximate
dimensions of 23 inches in length, 15\1/2\ inches in width, and 7
inches in depth;
(2) A fiberboard box with approximate dimensions of 15 inches in
length, 11 inches in width, and 7\1/4\ inches in depth;
(3) A fiberboard box with approximate dimensions of 25\3/4\ inches
in length, 15 inches in width, and 8\3/8\ to 10\1/2\ inches in depth;
(4) A reusable collapsible plastic container with approximate
dimensions of 23 inches in length, 15 inches in width, and 7 to 11
inches in depth;
(5) A reusable collapsible plastic container with approximate
dimensions of 14\1/4\ x 10\3/4\ x 6\3/4\ inches;
(6) A reusable collapsible plastic bin with approximate dimensions
of 36\3/4\ x 44\3/4\ x 27 inches;
(7) An octagonal bulk triple wall fiberboard crib with approximate
dimensions of 37\3/4\ inches in length, 25 inches in width, and 25
inches in height: Provided, That the container has a Mullen or Cady
test of at least 1,100 pounds: And Provided further, That the container
may be used to pack any poly or mesh bags authorized in this section,
or bulk fruit; and
(8) A closed fiberboard carton with approximate dimensions of 16\1/
2\ inches in length, 10\3/4\ inches in width, and 6\15/16\ inches in
height: Provided, That the container has a Mullen or Cady test of at
least 200 pounds.
Retail buyers are highly competitive and experiment frequently with
various in-store displays utilizing many container shapes and sizes.
This on-going experimentation is influenced by European container
development, consumer preferences, evolving handling/racking systems,
and other variables. These forces have combined to demand an ever-
increasing number of containers on the experimental list. The intent of
this action is to reduce the experimental container list to those which
truly are still experimental. The Committee believes that the permanent
container list should include all the containers that the Texas citrus
industry is now using. Adding the widely used containers to the
permanent list and eliminating the unused containers brings the
requirements into conformity with current industry operating practices.
This change does not preclude additional containers being put on the
experimental list, when necessary.
The Committee also recommended eliminating one wire crib on the
permanent list with dimensions of 46\1/2\ by 37 by 30 inches, which was
no longer being used by the industry. In addition, the Committee
recommended combining five separate bag requirements into one paragraph
to allow for easier reference. Previously, paragraph (a)(1) of Sec.
906.340 listed bags with a capacity of five, eight, ten, or 18 pounds
of fruit, and four-pound poly or vexar bags for oranges only, in
paragraphs (iv), (v), (x), and (xi). This action combined all the bag
requirements into one paragraph so all of the authorized bags could be
more easily identified. In addition, the Committee indicated that a
reference to Freight Container Tariff 2G previously in Sec.
906.340(a)(1)(ii) was obsolete and recommended that it be removed.
The U.S. grade standards for Texas oranges and grapefruit were
revised in 2003 to reflect current cultural and marketing practices and
give the industry greater flexibility in marketing and packaging using
developing technologies. The major changes revised the standard pack
sections of the grapefruit and orange standards, and the standard
sizing section of the orange standard by redefining the requirements in
each section. To bring the order regulations into conformity with the
revised grade standards, in paragraphs (c)(3)(iii) and (e) of Sec.
906.120, the words ``which are packed level full,'' and ``the term
level full means that the fruit is level with the top edge of the
bottom section of the carton;'', respectively, were removed. In
addition, in the introductory text of paragraph (a)(2)(i)(A) of Sec.
906.340, the comma after ``and'' and the words ``when place packed in
cartons or other containers,'' were removed. Also, in the introductory
text of paragraph (a)(2)(ii)(A) of Sec. 906.340, the words ``when
place packed in cartons or other containers'' and ``and otherwise meet
the requirements of standard sizing'', when referring to grapefruit
only, were removed.
Furthermore, the interim final rule revised several references to
the U.S. standards for grapefruit and oranges for Texas and States
other than Florida, California, and Arizona in paragraph (b) of Sec.
906.137 in the regulations to correctly identify applicable sections of
the U.S. grade standards. A reference to ``51.685'' of the U.S. grade
standards for grapefruit was incorrect and was revised to ``51.653'' to
accurately reflect sections of the grapefruit standard. Also, an
incorrect reference to ``51.712'' of the U.S. grade standards for
oranges was revised to ``51.714''. In addition, a reference to
``51.652'' in paragraph (c) of Sec. 906.340 was revised to ``51.653''.
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, 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
[[Page 73125]]
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 18 handlers of oranges and grapefruit who
are subject to regulation under the order and approximately 212
producers in the production area. Small agricultural service firms are
defined by the Small Business Administration (SBA) (13 CFR 121.201) as
those having annual receipts of less than $6,000,000, and small
agricultural producers are defined as those having annual receipts of
less than $750,000. The majority of Texas orange and grapefruit
handlers and producers may be classified as small entities.
Last year, 6 of the 18 handlers (33 percent) each shipped over
545,951 7/10 bushel cartons of oranges and grapefruit. Using an average
f.o.b. price of $10.99 per carton, these handlers could be considered
large businesses by the SBA, and the remaining 12 handlers (67 percent)
could be considered small businesses. Of the approximately 212
producers within the production area, few have sufficient acreage to
generate sales in excess of $750,000; therefore, a majority of
producers and handlers of Texas oranges and grapefruit may be
classified as small entities.
This rule continues in effect the action that revised container and
pack requirements prescribed under the Texas orange and grapefruit
order and made several conforming and formatting changes. The interim
final rule revised the rules and regulations and container requirements
by adding eight new containers to the list of authorized containers for
use by Texas citrus handlers, removing one obsolete container,
combining all of the requirements on authorized bags into one grouping
for easier reference. Other changes included revising incorrect
references to the U.S. grade standards for oranges and grapefruit grown
in Texas and States other than Florida, California, and Arizona (7 CFR
part 51.680 through 51.714 for oranges, and 7 CFR part 51.620 through
51.653 for grapefruit). See 68 FR 46433, August 6, 2003; and 66 FR
48785, September 24, 2001, for information on changes to the grade
standards that necessitated changes in the Texas citrus handling
regulations.
These changes are expected to help handlers compete more
effectively in the marketplace, better meet the needs of buyers, and to
improve producer returns by lessening the chances of confusion in the
marketplace. In addition, this rule was needed to bring the order's
rules and regulations into conformance with amendments to the U.S.
grade standards. These changes were unanimously recommended by the
Committee on May 26, 2005.
The Committee's Container Subcommittee met on May 26, 2005, and
discussed in detail possible changes to the order's container
requirements. The Subcommittee recommended and the Committee
unanimously approved the following changes to the orange and grapefruit
container requirements and conforming changes to the rules and
regulations to bring them into conformity with current industry
marketing practices: (1) The addition of eight new containers to the
list of approved containers for use by Texas citrus handlers; (2)
Elimination of one obsolete wire crib from the container list,
combining the requirements of five approved bags currently listed
separately into one paragraph for easier reference, and removing
obsolete language in one container listing; (3) Removal of references
no longer needed in the Texas citrus regulations because of changes
made to the U.S. grade standards for Texas oranges and grapefruit; and
(4) Correction of references to legal citations in the regulations.
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 of the citrus marketing order authorizes the issuance of
container and pack regulations. Section 906.340(a)(1) of the order's
rules and regulations outlines container requirements for fresh
shipments of Texas oranges and grapefruit. Container standardization
helps prevent marketing confusion.
Section 906.340 of the rules and regulations previously specified
12 containers authorized for use by Texas citrus handlers in paragraphs
(a)(1)(i) through (xi). Paragraph (a)(1)(xi) of Sec. 906.340 also
authorized the Committee to approve other types of containers for
testing purposes. Such test containers are subject to prior approval
and under the supervision of the Committee.
Over the years, the Committee has approved experimental containers
for use by the Texas citrus industry. The need for experimental
containers is reviewed by the Committee at the beginning of each
season. Because buyers, including retailers, have continued to request
an increasing array of containers to meet their various display
objectives, the number of Committee approved experimental containers
had increased to 11.
The Committee recently reviewed its experimental container list and
decided to convert those being used by handlers to permanent status and
to eliminate those that were no longer in use to lessen the chances of
confusion and to reflect current industry practices. The Committee,
therefore, recommended converting to permanent status 8 experimental
containers which are now widely used by the Texas citrus industry. The
following containers were moved from the experimental container list to
the permanent container list:
(1) A fiberboard box holding two layers of fruit, with approximate
dimensions of 23 inches in length, 15\1/2\ inches in width, and 7
inches in depth;
(2) A fiberboard box with approximate dimensions of 15 inches in
length, 11 inches in width, and 7\1/4\ inches in depth;
(3) A fiberboard box with approximate dimensions of 25\3/4\ inches
in length, 15 inches in width, and 8\3/8\ to 10\1/2\ inches in depth;
(4) A reusable collapsible plastic container with approximate
dimensions of 23 inches in length, 15 inches in width, and 7 to 11
inches in depth;
(5) A reusable collapsible plastic container with approximate
dimensions of 14\1/4\ x 10\3/4\ x 6\3/4\ inches;
(6) A reusable collapsible plastic bin with approximate dimensions
of 36\3/4\ x 44\3/4\ x 27 inches;
(7) An octagonal bulk triple wall fiberboard crib with approximate
dimensions of 37\3/4\ inches in length, 25 inches in width, and 25
inches in height: Provided, That the container has a Mullen or Cady
test of at least 1,100 pounds: And Provided further, That the container
may be used to pack any poly or mesh bags authorized in this section,
or bulk fruit; and
(8) A closed fiberboard carton with approximate dimensions of 16\1/
2\ inches in length, 10\3/4\ inches in width, and 6\15/16\ inches in
height: Provided, That the container has a Mullen or Cady test of at
least 200 pounds.
Retail buyers are highly competitive and experiment frequently with
various in-store displays utilizing many container shapes and sizes.
This on-going experimentation is influenced by European container
development, consumer preferences, evolving handling/racking systems,
and other variables. These forces have combined to demand an ever-
increasing number of containers on the experimental list. The intent of
this action is to reduce the experimental container list to those which
truly are still experimental. The
[[Page 73126]]
Committee believes that the permanent container list should include all
the containers the Texas citrus industry is now using. Moving the
widely used containers from the experimental list to the permanent list
and eliminating unused containers brings the container requirements
into conformity with industry operating practices. This change does not
preclude additional containers being put on the experimental list, when
necessary.
The Committee also recommended eliminating one wire crib on the
permanent list with dimensions of 46\1/2\ by 37 by 30 inches, which was
no longer being used by the industry. In addition, the Committee
recommended combining five separate bag requirements into one paragraph
to allow for easier reference. Previously, paragraph (a)(1) of Sec.
906.340 listed bags with a capacity of five, eight, ten, or 18 pounds
of fruit, and four-pound poly or vexar bags for oranges only, in
paragraphs (iv), (v), (x), and (xi). This rule combined all the bag
requirements into one paragraph so all authorized bags could be more
easily identified. In addition, the Committee indicated that a
reference to Freight Container Tariff 2G previously in Sec.
906.340(a)(1)(ii), was obsolete and recommended that it be removed.
The U.S. grade standards for Texas oranges and grapefruit were
revised in 2003 to reflect current cultural and marketing practices and
give the industry greater flexibility in marketing and packaging using
developing technologies. The major changes revised the standard pack
sections of the grapefruit and orange standards, and the standard
sizing section of the orange standard by redefining the requirements in
each section. To bring the order regulations into conformity with the
revised grade standards, in paragraphs (c)(3)(iii) and (e) of Sec.
906.120, the words ``which are packed level full,'' and ``the term
level full means that the fruit is level with the top edge of the
bottom section of the carton;'', respectively, were removed. In
addition, in the introductory text of paragraph (a)(2)(i)(A) of Sec.
906.340, the comma after ``and'' and the words ``when place packed in
cartons or other containers,'' were removed. Also, in the introductory
text of paragraph (a)(2)(ii)(A) of Sec. 906.340, the words ``when
place packed in cartons or other containers'' and ``and otherwise meet
the requirements of standard sizing'', when referring to grapefruit
only, were removed.
Furthermore, the interim final rule revised several references to
the U.S. standards for grapefruit and oranges for Texas and States
other than Florida, California, and Arizona in paragraph (b) of Sec.
906.137 in the regulations to correctly identify applicable sections of
the U.S. grade standards. A reference to ``51.685'' of the U.S. grade
standards for grapefruit was incorrect and was revised to ``51.653'' to
accurately reflect sections of the grapefruit standard. Also, an
incorrect reference to ``51.712'' of the U.S. grade standards for
oranges was revised to ``51.714''. In addition, a reference to
``51.652'' in paragraph (c) of Sec. 906.340 was revised to ``51.653''.
The benefits of these changes are expected to be equally available
to all Texas citrus producers and handlers regardless of their size of
operation. The changes offer benefits to the entire Texas citrus
industry. These changes enable handlers to compete more effectively in
the marketplace by lessening the chances of marketing confusion. These
changes also will contribute to the industry's long-term objective of
marketing as much citrus as possible.
These regulation changes are expected to lead to market expansion.
The alternative of leaving the regulations unchanged would not bring
the regulations into conformity with industry operating practices.
Accordingly, in assessing alternatives to the changes provided in this
rule, this action provides the most beneficial results.
This rule will not impose any additional reporting or recordkeeping
requirements on either small or large Texas orange and grapefruit
handlers. As with all Federal marketing order programs, reports and
forms are periodically reviewed to reduce information requirements and
duplication by industry and public sector agencies. In addition, as
noted in the initial regulatory flexibility analysis, USDA 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 Texas orange and grapefruit industry and all interested persons
were invited to attend the meeting and participate in Committee
deliberations. Like all Committee meetings, the May 26, 2005, meeting
was a public meeting and all entities, both large and small, were able
to express their views on this issue.
Also, the Committee has a number of appointed subcommittees to
review certain issues and make recommendations to the Committee. The
Committee's Container Subcommittee met on May 26, 2005, and discussed
this issue in detail. That meeting was also a public meeting and both
large and small entities were able to participate and express their
views.
An interim final rule concerning this action was published in the
Federal Register on August 31, 2005. Copies of the rule were mailed by
the Committee's staff to all Committee members and orange and
grapefruit handlers. In addition, the rule was made available through
the Internet by USDA and the Office of the Federal Register. That rule
provided for a 60-day comment period which ended October 31, 2005. No
comments were received.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html.
Any questions about the compliance
guide should be sent to Jay Guerber at the previously mentioned address
in the FOR FURTHER INFORMATION CONTACT section.
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 (70 FR 51574, August 31, 2005) will tend to effectuate
the declared policy of the Act.
List of Subjects in 7 CFR Part 906
Grapefruit, Marketing agreements, Oranges, Reporting and
recordkeeping requirements.
PART 906--ORANGES AND GRAPEFRUIT GROWN IN LOWER RIO GRANDE VALLEY
IN TEXAS
0
Accordingly, the interim final rule amending 7 CFR part 906 which was
published at 70 FR 51574 on August 31, 2005, is adopted as a final rule
without change.
Dated: December 5, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-23821 Filed 12-8-05; 8:45 am]
BILLING CODE 3410-02-P