This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

32713

Vol. 63, No. 115

Tuesday, June 16, 1998

DEPARTMENT OF AGRICULTURE

Grain Inspection, Packers and

Stockyards Administration

7 CFR Part 800

RIN 0580–AA59

Fees for Official Inspection and Official

Weighing Services

AGENCY: Grain Inspection, Packers and

Stockyards Administration, USDA.

ACTION: Final rule.

SUMMARY: The Grain Inspection, Packers

and Stockyards Administration (GIPSA)

is implementing an increase of

approximately 2.9 percent in certain

service fees for official inspection and

weighing services performed in the

United States under the United States

Grain Standards Act (USGSA), as

amended. The increase covers hourly

rates and certain unit rates on tests

performed at other than an applicant’s

facility. The increase is designed to

generate additional revenue required to

recover operational costs created by

cost-of-living increases to Federal

salaries in fiscal year 1998.

EFFECTIVE DATE: July 1, 1998.

FOR FURTHER INFORMATION CONTACT:

George Wollam, USDA, GIPSA, ART,

Stop 3649, Washington, D.C. 20250–

3649, telephone (202) 720–0292, or FAX

(202) 720–4628. Electronic mail or

Internet to: gwollam@fgisdc.usda.gov.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This rule has been determined to be

nonsignificant for the purpose of

Executive Order 12866 and, therefore,

has not been reviewed by the Office of

Management and Budget.

Executive Order 12988

This final rule has been reviewed

under Executive Order 12988, Civil

Justice Reform. This action is not

intended to have a retroactive effect.

The USGSA provides in § 87g that no

subdivision may require or impose any

requirements or restrictions concerning

the inspection, weighing, or description

of grain under the Act. Otherwise, this

final rule will not preempt any State or

local laws, regulations, or policies

unless they present irreconcilable

conflict with this final rule. There are

no administrative procedures which

must be exhausted prior to any judicial

challenge to provisions of this final rule.

Effects on Small Entities

James R. Baker, Administrator,

GIPSA, has determined that this final

rule will not have a significant

economic impact on a substantial

number of small entities as defined in

the Regulatory Flexibility Act (5 U.S.C.

601 et seq.). Many users of GIPSA

inspection and weighing services do not

meet the requirements for small entities.

GIPSA is required by statute to make

services available and to recover costs of

providing such services, as nearly as

practicable.

The final fee revision is primarily

applicable to entities engaged in the

export of grain. Under provisions of the

USGSA, most grain exported from U.S.

export port locations must be officially

inspected and weighed. Mandatory

inspection and weighing services are

provided by GIPSA on a fee basis at 37

export facilities. All of the export

facilities are owned and managed by

multi-national corporations, large

cooperatives, or public entities that do

not meet the criteria for small entities as

defined under the Regulatory Flexibility

Act and the regulations issued

thereunder. Some users of the service

who request non-mandatory official

inspection and weighing services (most

of which represent appeals) at other

than export locations could be

considered small entities. However, this

fee increase merely reflects the cost-ofliving increases in Federal salaries for

hourly and certain unit fees.

In fiscal year 1997, GIPSA’s

obligations were $22,972,026 with

revenue of $21,527,695, resulting in a

loss of $1,444,331 and retained earnings

of negative $419,417. In fiscal year 1998,

as of April 30, GIPSA’s obligations were

$13,658,981 with revenue of

$13,454,057 and retained earnings of

negative $254,728. GIPSA cannot absorb

the 2.9 percent increase in salary costs

with the existing deficit in retained

earnings. Additionally, GIPSA will

continue to monitor its costs to improve

operating efficiencies, and adopt cost

saving measures, where possible and

practicable.

The approximate 2.9 percent increase

in fees would not have a significant

impact on either small or large entities.

GIPSA estimates an annual increase of

$509,000 in revenue based on a work

volume of 74,045,472 metric tons, the

equivalent to fiscal year 1997.

Information Collection and

Recordkeeping Requirements

In compliance with the Paperwork

Reduction Act of 1995 (44 U.S.C.

Chapter 35), the information collection

and recordkeeping requirements in Part

800 have been previously approved by

the Office of Management and Budget

under control number 0580–0013.

Background

On March 27, 1998, GIPSA published

in the Federal Register (63 FR 14840) a

proposal to increase by approximately

2.9 percent certain fees it charges for

official inspection and weighing

services.

The USGSA requires GIPSA to charge

and collect reasonable fees for

performing official inspection and

weighing services. The fees are to cover,

as nearly as practicable, GIPSA’s costs

for performing these services, including

related administrative and supervisory

costs.

The 2.9 percent fee increase will

generate additional revenue required to

recover operational costs created by a

January 1998 cost-of-living increase to

Federal salaries. The average salary

increase for GIPSA employees in

calendar year 1998 is approximately 2.9

percent. This final action is being taken

to ensure that service fees charged by

GIPSA generate adequate revenue to

cover the additional cost created by the

January 1998 Federal salary increase.

The current USGSA fees covering

hourly rates and certain unit rates on

tests performed at other than an

applicant’s facility were published in

the Federal Register on June 11, 1997

(62 FR 31701), and became effective on

June 15, 1997. They appear in the 1998

edition of 7 CFR 800.71, Schedule A,

Fees for Official Inspection and

Weighing Services Performed in the

United States. The hourly fees covered

by this final rule will generate revenue
32714 Federal Register / Vol. 63, No. 115 /Tuesday, June 16, 1998 /Rules and Regulations

to cover the basic salary, benefits, and

leave for those employees providing

direct service delivery. GIPSA has also

identified certain unit fees, for services

not performed at an applicant’s facility,

that contain direct labor costs. This final

rule increases those unit fees based on

a 2.9 percent increase to the labor cost

of each unit. Other associated costs,

including overhead, are collected

through additional fees contained in the

published fee schedule and are not

included under this final rule.

The amount of revenue collected as a

result of this final rule is a direct

function of the work volume. GIPSA

estimates an annual increase of

$509,000 in revenue based on a work

volume of 74,045,472 metric tons, the

equivalent to fiscal year 1997. If GIPSA

foregoes this adjustment, GIPSA will

incur a net loss equivalent to 2.9 percent

for every hour worked by an employee

providing direct service delivery.

In fiscal year 1997, GIPSA’s

obligations were $22,972,026 with

revenue of $21,527,695, resulting in a

loss of $1,444,331 and retained earnings

of negative $419,417. In fiscal year 1998,

as of April 30, GIPSA’s obligations were

$13,658,981 with revenue of

$13,454,057 and retained earnings of

negative $254,728. GIPSA cannot afford

to absorb an additional $509,000 loss

due to the 2.9 percent increase in salary

costs with the existing deficit in

retained earnings. Additionally, GIPSA

will continue to monitor its costs to

improve operating efficiencies and

adopt cost saving measures, where

possible and practicable.

Comment Review

GIPSA received two comments, one

from an industry exporter and the other

from an industry trade association

representing grain, feed, and processing

companies during the 60-day comment

period. One commenter opposed the

proposed increase. This commenter

raised several concerns, including that

the fees charged by GIPSA are spiraling

upward out of control; that they had no

other option but to use our service since

inspection and weighing services on

export grain are mandatory; and that

private business were not allowed to

compete with GIPSA in providing

official services, noting that the service

GIPSA provides is a totally noncompetitive service.

The second commenter did not

oppose the fee increase, but indicated

that it was disappointed that GIPSA was

again proposing to increase user fees for

official services. The commenter

indicated that GIPSA must begin to

anticipate the yearly salary increases

and take action that will offset their

effects by implementing cost cutting

measures, improving productivity, or a

combination of both. The commenter

stated that it remained concerned about

the continued financial deterioration in

the official inspection system, the

continued losses, the depleted operating

reserve, and weak imports. The

commenter reiterated its view that

GIPSA should not rely on fee increases

as the primary tool to reverse the

declining financial condition of the

inspection and weighing programs and

it went on to state that the Agency

should continue its efforts to

significantly and quickly reduce costs

and increase productivity. The

commenter stated that GIPSA should

review its operating structure to

determine and identify cost savings

efficiencies as discussed in the

comment.

The proposed fee increase, a cost-ofliving increase, covers the hourly rate

and certain unit fees on tests performed

at other than an applicant’s facility.

These fees cover only the basic salary,

benefit, and leave costs associated with

those employees directly providing

service to the applicant. The hourly cost

to the industry is directly related to the

number of employees required to

perform service at any particular

facility.

GIPSA continually monitors its

overall costs and has implemented

numerous cost cutting measures. GIPSA

has streamlined, restructured, and

reorganized to respond to changes in

marketing practices and industry

structure. Restructuring efforts have

focused on streamlining headquarters

and administrative operations and

consolidating the field structure into

fewer, but better staffed and equipped

offices. Other associated costs,

including overhead, are collected

through other published fees. Any

increases to those fees would be

addressed through separate rulemaking.

Given the status of the inspection and

weighing programs in terms of costs,

revenues, and operating reserves, we

believe that these fee changes are the

most responsible and reasonable action

that can be taken at this time in the

administration of these programs. The

Agency has embarked upon cost savings

initiatives, including reductions-in-force

over the past several years. These efforts

will continue to play a central role in

GIPSA’s efforts to reduce costs. At the

same time, we do note that some costs,

such as salary increases, require close

attention and become more significant

and compelling when the Agency’s

financial condition is such that

operating reserves are depleted. The

USGSA explicitly identifies the

structure and makeup of the Federal,

State and private agency relationship for

performance of official services. The Act

also requires GIPSA to charge and

collect reasonable fees for performing

official inspection and weighing

services. We believe that GIPSA should

continue to work closely with the FGIS

Advisory Committee and the industry

itself in order to provide the most cost

efficient and productive program

services possible.

It is found that good cause exists for

not postponing the effective date of this

rule until 30 days after publication in

the Federal Register (5 U.S.C. 553)

because: (1) Projected exports and the

associated requests for official services

for such grain are projected to decrease

in the coming months due to seasonal

and other adjustments; (2) given the

current level of the operating reserve,

the fee increase should be implemented

as soon as possible; and (3) the effective

date coincides with the beginning of a

billing cycle.

Final Action

GIPSA is applying an approximate 2.9

percent increase to those hourly and

certain unit rates in 7 CFR 800.71, Table

1—Fees for Official Services Performed

at an Applicant’s Facility in an Onsite

GIPSA Laboratory; Table 2—Services

Performed at Other Than an Applicant’s

Facility in a GIPSA Laboratory; and

Table 3—Miscellaneous Services.

In reviewing the fee schedule to

identify fees that would require an

approximate 2.9 percent increase,

GIPSA has identified several fees that,

under the current fee schedule, are at

levels that would not require any

change. Accordingly, these fees would

remain the same at this time.

List of Subjects in 7 CFR Part 800

Administrative practice and

procedure, Grains.

For the reasons set out in the

preamble, 7 CFR part 800 is amended as

follows:

PART 800—GENERAL REGULATIONS

1. The authority citation for part 800

continues to read as follows:

Authority: Pub. L. 94–582, 90 Stat. 2867,

as amended (7 U.S.C. 71 et seq.)

2. Section 800.71, paragraph (a),

Schedule A is revised to read as follows:

§ 800.71 Fees assessed by the Service.

(a) * * *
Federal Register / Vol. 63, No. 115 /Tuesday, June 16, 1998 /Rules and Regulations 32715

Schedule A.—Fees for Official Inspection and Weighing Services Performed in the United States

TABLE 1.—FEES FOR OFFICIAL SERVICES PERFORMED AT AN APPLICANT’S FACILITY IN AN ONSITE FGIS LABORATORY 1

Monday to

Friday

(6 a.m to 6

p.m.)

Monday to

Friday

(6 p.m. to 6

a.m.)

Saturday,

Sunday,

and overtime 2

Holidays

(1) Inspection and Weighing Services Hourly Rates (per service representative)

1-year contract .................................................................................................................. $24.40 $26.40 $34.40 $41.40

6-month contract ............................................................................................................... 26.80 28.60 36.60 47.80

3-month contract ............................................................................................................... 30.60 31.60 39.80 49.40

Noncontract ...................................................................................................................... 35.40 37.40 45.40 55.80

(2) Additional Tests (cost per test, assessed in addition to the hourly rate) 3

(i) Aflatoxin (other than Thin Layer Chromatography) ................................................................................................................................... $8.50

(ii) Aflatoxin (Thin Layer Chromatography method) ...................................................................................................................................... 20.00

(iii) Soybean protein and oil (one or both) ..................................................................................................................................................... 1.50

(iv) Wheat protein (per test) ........................................................................................................................................................................... 1.50

(v) Sunflower oil (per test) ............................................................................................................................................................................. 1.50

(vi) Vomitoxin (qualitative) ............................................................................................................................................................................. 7.50

(vii) Vomitoxin (quantitative) .......................................................................................................................................................................... 12.50

(viii) Waxy corn (per test) .............................................................................................................................................................................. 1.50

(ix) Fees for other tests not listed above will be based on the lowest noncontract hourly rate.

(x) Other services:

(a) Class Y Weighing (per carrier)

(1) Truck/container .......................................................................................................................................................................... .30

(2) Railcar ........................................................................................................................................................................................ 1.25

(3) Barge .......................................................................................................................................................................................... 2.50

(3) Administrative Fee (assessed in addition to all other applicable fees, only one administrative fee will be assessed when inspection

and weighing services are performed on the same carrier).

(i) All outbound carriers (per-metric-ton): 4

(a) 1–1,000,000 ...................................................................................................................................................................................... $0.1013

(b) 1,000,001–1,500,000 ........................................................................................................................................................................ 0.0923

(c) 1,500,001–2,000,000 ......................................................................................................................................................................... 0.0473

(d) 2,000,001–5,000,000 ........................................................................................................................................................................ 0.0360

(e) 5,000,001–7,000,000 ........................................................................................................................................................................ 0.0192

(f) 7,000,000+ ......................................................................................................................................................................................... 0.0023

1Fees apply for original inspection and weighing, reinspection, and appeal inspection service include, but are not limited to, sampling, grading,

weighing, prior to loading stowage examinations, and certifying results performed within 25 miles of an employee’s assigned duty station. Travel

and related expenses will be charged for service outside 25 miles as found in § 800.72 (a). 2Overtime rates will be assessed for all hours in excess of 8 consecutive hours that result from an applicant scheduling or requesting service

beyond 8 hours, or if requests for additional shifts exceed existing staffing. 3Appeal and reinspection services will be assessed the same fee as the original inspection service.

4The administrative fee is assessed on an accumulated basis beginning at the start of the Service’s fiscal year (October 1 each year).

TABLE 2.—SERVICES PERFORMED AT OTHER THAN AN APPLICANT’S FACILITY IN AN FGIS LABORATORY 1 2

(1) Original Inspection and Weighing (Class X) Services

(i) Sampling only (use hourly rates from Table 1)

(ii) Stationary lots (sampling, grade/factor, & checkloading):

(a) Truck/trailer/container (per carrier) ............................................................................................................................................ $18.00

(b) Railcar (per carrier) .................................................................................................................................................................... 27.50

(c) Barge (per carrier) ...................................................................................................................................................................... 174.25

(d) Sacked grain (per hour per service representative plus an administrative fee per hundredweight) (CWT) ............................ 0.02

(iii) Lots sampled online during loading (sampling charge under (i) above, plus):

(a) Truck/trailer container (per carrier) ............................................................................................................................................ 9.75

(b) Railcar (per carrier) .................................................................................................................................................................... 19.00

(c) Barge (per carrier) ...................................................................................................................................................................... 108.00

(d) Sacked grain (per hour per service representative plus an administrative fee per hundredweight) (CWT) ............................ 0.02

(iv) Other services:

(a) Submitted sample (per sample—grade and factor) .................................................................................................................. 10.50

(b) Warehouseman inspection (per sample) ................................................................................................................................... 17.50

(c) Factor only (per factor—maximum 2 factors) ............................................................................................................................ 4.50

(d) Checkloading/condition examination ( use hourly rates from Table 1, plus an administrative fee per hundredweight if not

previously assessed) (CWT) ........................................................................................................................................................ 0.02

(e) Reinspection (grade and factor only. Sampling service additional, item (i) above) .................................................................. 11.50

(f) Class X Weighing (per hour per service representative) ........................................................................................................... 46.40

(v) Additional tests (excludes sampling):

(a) Aflatoxin (per test—other than TLC method) ............................................................................................................................ 25.50
32716 Federal Register / Vol. 63, No. 115 /Tuesday, June 16, 1998 /Rules and Regulations

TABLE 2.—SERVICES PERFORMED AT OTHER THAN AN APPLICANT’S FACILITY IN AN FGIS LABORATORY 1 2—Continued

(b) Aflatoxin (per test—TLC method) .............................................................................................................................................. 101.50

(c) Soybean protein and oil (one or both) ....................................................................................................................................... 8.00

(d) Wheat protein (per test) ............................................................................................................................................................. 8.00

(e) Sunflower oil (per test) ............................................................................................................................................................... 8.00

(f) Vomitoxin (qualitative) ................................................................................................................................................................. 26.00

(g) Vomitoxin (quantitative) ............................................................................................................................................................. 31.00

(h) Waxy corn (per test) .................................................................................................................................................................. 9.25

(i) Canola (per test—00 dip test) ..................................................................................................................................................... 9.25

(j) Pesticide Residue Testing 3

(1) Routine Compounds (per sample) ..................................................................................................................................... $200.00

(2) Special Compounds (per service representative) .............................................................................................................. 100.00

(k) Fees for other tests not listed above will be based on the lowest noncontract hourly rate from Table 1.

(2) Appeal inspection and review of weighing service.4

(i) Board Appeals and Appeals (grade and factor) ................................................................................................................................ 75.25

(a) Factor only (per factor—max 2 factors) ..................................................................................................................................... 39.00

(b) Sampling service for Appeals additional (hourly rates from Table 1)

(ii) Additional tests (assessed in addition to all other applicable fees)

(a) Aflatoxin (per test, other than TLC) ........................................................................................................................................... 25.75

(b) Aflatoxin (TLC) ........................................................................................................................................................................... 111.00

(c) Soybean protein and oil (one or both) ....................................................................................................................................... 15.75

(d) Wheat protein (per test) ............................................................................................................................................................. 15.75

(e) Sunflower oil (per test) ............................................................................................................................................................... 15.75

(f) Vomitoxin (per test—qualitative) ................................................................................................................................................. 36.00

(g) Vomitoxin (per test—quantitative) .............................................................................................................................................. 41.00

(h) Vomitoxin (per test—HPLC Board Appeal) ............................................................................................................................... 128.00

(i) Pesticide Residue Testing 3

(1) Routine Compounds (per sample) ..................................................................................................................................... 200.00

(2) Special Compounds (per service representative) .............................................................................................................. 100.00

(j) Fees for other tests not listed above will be based on the lowest noncontract hourly rate from Table 1.

(iii) Review of weighing (per hour per service representative) .............................................................................................................. 67.40

(3) Stowage examination (service-on-request) 3

(i) Ship (per stowage space) (minimum $250 per ship) ......................................................................................................................... 50.00

(ii) Subsequent ship examinations (same as original) (minimum $150 per ship).

(iii) Barge (per examination) ................................................................................................................................................................... 40.00

(iv) All other carriers (per examination) .................................................................................................................................................. 15.00

1Fees apply for original inspection and weighing, reinspection, and appeal inspection service include, but are not limited to, sampling, grading,

weighing, prior to loading stowage examinations, and certifying results performed within 25 miles of an employee’s assigned duty station. Travel

and related expenses will be charged for service outside 25 miles as found in § 800.72(a). 2An additional charge will be assessed when the revenue from the services in Schedule A, Table 2, does not cover what would have been collected at the applicable hourly rate as provided in § 800.72(b). 3 If performed outside of normal business, 11⁄2 times the applicable unit fee will be charged. 4 If, at the request of the Service, a file sample is located and forwarded by the Agency for an official agency, the Agency may, upon request,

be reimbursed at the rate of $2.50 per sample by the Service.

TABLE 3.—MISCELLANEOUS SERVICES 1

(1) Grain grading seminars (per hour per service representative) 2 ............................................................................................................. $46.40

(2) Certification of diverter-type mechanical samplers (per hour per service representative) 2 .................................................................... 46.40

(3) Special weighing services (per hour per service representative): 2

(i) Scale testing and certification ..................................................................................................................................................... 46.40

(ii) Evaluation of weighing and material handling systems ............................................................................................................. 46.40

(iii) NTEP Prototype evaluation (other than Railroad Track Scales) .............................................................................................. 46.40

(iv) NTEP Prototype evaluation of Railroad Track Scales (plus usage fee per day for test car) .................................................. 46.40

100.00

(v) Mass standards calibration and reverification ........................................................................................................................... 46.40

(vi) Special projects ......................................................................................................................................................................... 46.40

(4) Foreign travel (per day per service representative) ................................................................................................................................. 430.00

(5) Online customized data EGIS service:

(i) One data file per week for 1 year ............................................................................................................................................... 500.00

(ii) One data file per month for 1 year ............................................................................................................................................ 300.00

(6) Samples provided to interested parties (per sample) .............................................................................................................................. 2.50

(7) Divided-lot certificates (per certificate) ..................................................................................................................................................... 1.50

(8) Extra copies of certificates (per certificate) .............................................................................................................................................. 1.50

(9) Faxing (per page) ..................................................................................................................................................................................... 1.50

(10) Special mailing (actual cost)

(11) Preparing certificates onsite or during other than normal business hours (use hourly rates from Table 1)

1Any requested service that is not listed will be performed at $46.40 per hour.

2 Regular business hours—Monday thru Friday—service provided at other than regular hours charged at the applicable overtime hourly rate.
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