Federal Register / Vol. 63, No. 115 /Tuesday, June 16, 1998 /Rules and Regulations 32717

* * * * *

Dated: June 5, 1998.

James R. Baker,

Administrator.

[FR Doc. 98–15751 Filed 6–15–98; 8:45 am]

BILLING CODE 3410–EN–P

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.

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
32718 Federal Register / Vol. 63, No. 115 /Tuesday, June 16, 1998 /Rules and Regulations

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 rowfaced 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 § 922.306, paragraph (a)(4) is

revised to read as follows:

§ 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