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

3247

Vol. 63, No. 14

Thursday, January 22, 1998

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 905 and 944

[Docket No. FV98–905–2 IFR]

Oranges, Grapefruit, Tangerines, and

Tangelos Grown in Florida and

Imported Grapefruit; Relaxation of the

Minimum Size Requirement for Red

Seedless Grapefruit

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Interim final rule with request

for comments.

SUMMARY: This interim final rule makes

changes in the regulations under the

Florida citrus marketing order and the

grapefruit import regulations. This rule

relaxes the minimum size requirement

for red seedless grapefruit and for red

seedless grapefruit imported into the

United States from size 48 (39⁄16 inches

diameter) to size 56 (35⁄16 inches

diameter). The Citrus Administrative

Committee (Committee), the agency that

locally administers the marketing order

for oranges, grapefruit, tangerines, and

tangelos grown in Florida, unanimously

recommended this change. This change

allows handlers and importers to ship

size 56 red seedless grapefruit through

November 8, 1998.

DATES: Effective January 23, 1998,

through November 8, 1998; comments

received by March 23, 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 in triplicate to the Docket Clerk,

Fruit and Vegetable Division, AMS,

USDA, Room 2525–S, P.O. Box 96456,

Washington, D.C. 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

available for public inspection in the

office of the Docket Clerk during regular

business hours.

FOR FURTHER INFORMATION CONTACT:

William G. Pimental, Southeast

Marketing Field Office, F&V, AMS,

USDA, P.O. Box 2276, Winter Haven,

Florida 33883; telephone: (941) 299–

4770, Fax: (941) 299–5169; or Anne M.

Dec, Marketing Order Administration

Branch, F&V, AMS, USDA, room 2522–

S, P.O. Box 96456, Washington, DC

20090–6456; telephone: (202) 720–2491,

Fax: (202) 720–5698. Small businesses

may request information on compliance

with this regulation by contacting Jay

Guerber, Marketing Order

Administration Branch, F&V, AMS,

USDA, room 2525–S, P.O. Box 96456,

Washington, DC 20090–6456; telephone:

(202) 720–2491, Fax: (202) 720–5698.

SUPPLEMENTARY INFORMATION: This rule

is issued under Marketing Agreement

No. 84 and Marketing Order No. 905 (7

CFR Part 905), as amended, regulating

the handling of oranges, grapefruit,

tangerines, and tangelos grown in

Florida, 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.

This rule is also issued under section

8e of the Act, which provides that

whenever specified commodities,

including grapefruit, are regulated

under a Federal marketing order,

imports of these commodities into the

United States are prohibited unless they

meet the same or comparable grade,

size, quality, or maturity requirements

as those in effect for the domestically

produced commodities.

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 the date of the

entry of the ruling.

There are no administrative

procedures which must be exhausted

prior to any judicial challenge to the

provisions of import regulations issued

under section 8e of the Act.

The order for Florida citrus provides

for the establishment of minimum grade

and size requirements with the

concurrence of the Secretary. The grade

and size requirements are designated to

provide fresh markets with fruit of

acceptable quality and size, thereby

maintaining consumer confidence for

fresh Florida citrus. This helps create

buyer confidence and contributes to

stable marketing conditions. This is in

the interest of growers, handlers, and

consumers, and is designed to increase

returns to Florida citrus growers. The

current minimum grade standard for red

seedless grapefruit is U.S. No. 1. The

minimum size requirement for domestic

shipments is size 56 (at least 35⁄16 inches

in diameter) through November 8, 1997,

and size 48 (39⁄16 inches in diameter)

thereafter. The current minimum size

for export shipments is size 56

throughout the year.

This interim final rule invites

comments on a change to the order’s

rules and regulations relaxing the

minimum size requirement for domestic

shipments of red seedless grapefruit.

This action allows for the continued

shipment of size 56 grapefruit. This rule

relaxes the minimum size from size 48

(39⁄16 inches diameter) to size 56 (3 5⁄16

inches diameter) through November 8,

1998. Absent this change, the minimum

size would be size 48 (39⁄16 inches

diameter). The Committee met on

October 14 and December 16, 1997, and

unanimously recommended this action.
3248 Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 /Rules and Regulations

Section 905.52 of the order, in part,

authorizes the Committee to recommend

minimum grade and size regulations to

the Secretary. Section 905.306 (7 CFR

905.306) specifies minimum grade and

size requirements for different varieties

of fresh Florida grapefruit. Such

requirements for domestic shipments

are specified in § 905.306 in Table I of

paragraph (a), and for export shipments

in Table II of paragraph (b). This rule

adjusts Table I to reflect the minimum

size of 56 through November 8, 1998.

Minimum grade and size requirements

for grapefruit imported into the United

States are currently in effect under

§ 944.106 (7 CFR 944.106). Export

requirements are not changed by this

rule.

The Committee originally met to

discuss this issue on October 14, 1997,

and recommended releasing size 56 red

grapefruit for a limited time period this

season. They voted to allow handlers to

ship size 56 red seedless grapefruit

through January 11, 1998, to give the

Committee time to determine the market

effect of size 56.

The Committee met again on

December 16, 1997, through an

emergency telephone meeting. The

meeting was called to determine

whether the Committee wanted to

release size 56 for the remainder of the

season. The Committee voted

unanimously to extend the release of

size 56 through November 8, 1998.

While wanting to give handlers the

opportunity to continue to market size

56, the Committee also wanted the

opportunity to review the effect of size

56 on the domestic market after the

percentage of size rule expired

November 30, 1997 (62 FR 58633;

October 30, 1997). The percentage of

size rule controlled the volume of sizes

48 and 56 that was shipped in a given

week, to both domestic and export

markets. There is a limited market for

small sizes. However, the largest part of

this market is to export markets. The

Committee is not sure to what extent

there is domestic demand for size 56.

This minimum size change pertains to

the domestic market, and does not

change the minimum size for export

shipments which will continue at size

56 throughout the season.

To determine if there is a domestic

market for size 56, and the effect of its

presence on the market, the Committee

recommended, on October 14, 1997,

allowing shipments of size 56 red

seedless grapefruit through January 11,

1998. The Committee agreed to revisit

the issue to evaluate the impact of size

56 on the market after the expiration of

volume regulation.

The Committee revisited the issue

during the meeting December 16, 1997,

and determined that size 56 should not

be released until November 8, 1998. In

making its recommendation, the

Committee considered estimated

supplies and current shipments. The

Committee examined the size

distribution information available for

the current season. On December 12,

1997, the Florida Agricultural Statistics

Service (FASS) reduced the marketable

crop estimate for red seedless grapefruit

by two million boxes, or approximately

seven percent for the 1997–98 season.

FASS also reported that red seedless

grapefruit size as measured in

November, was 30.6 percent size 56 and

smaller as compared to 35.5 percent as

measured in November last year. This in

turn compares to only 16.8 percent

measuring size 56 or smaller in

November of 1995. So, even though red

seedless grapefruit are running larger

than last season, there are a fair number

of small grapefruit.

The Committee also reviewed

shipment data available through

November 23 of this season. Thus far,

size 56 red seedless grapefruit

represents only 3.7 percent of total

domestic shipments. Comparatively,

through the same time period, 11

percent of all red seedless grapefruit

shipments from Florida, domestic and

export was size 56. Of the size 56 red

seedless grapefruit shipped, 18 percent

went to the domestic market, while 82

percent was shipped to the export

market.

In its discussion, the Committee

recognized that fruit was continuing to

size. One member commented that fruit

that had measured size 56 in October,

had sized up one size. This was helping

to match supplies of size 56 with

demand. The Committee did have

several concerns. One topic that was

raised was the currency and economic

problems currently facing the Pacific

Rim countries. These countries

traditionally have been good markets for

size 56 grapefruit. The Committee was

concerned that current conditions could

reduce demand, and alternative outlets

would need to be available. The

Committee agreed that it would be

advantageous to have the ability to ship

size 56 red seedless grapefruit to the

domestic market should problems

materialize in the export market.

One Committee member asked

whether Texas was planning to market

size 56 grapefruit this season. The

Committee was informed that Texas

would be selling size 56 for the entire

season. The Committee believes that

some domestic markets may have been

developed for size 56 and that handlers

should continue to supply those

markets.

Based on the available information,

the Committee unanimously

recommended that the minimum size

for shipping red seedless grapefruit to

the domestic market should be size 56

through November 8, 1998.

This rule will have a beneficial

impact on producers and handlers since

it will permit Florida grapefruit

handlers to make available those sizes of

fruit needed to meet anticipated market

demand for the 1997–98 season. This

will provide for the maximization of

shipments to fresh market channels

during this period. Additionally,

importers will be favorably affected by

this change since the relaxation of the

minimum size regulation will also apply

to imported grapefruit.

Section 8e of the Act provides that

when certain domestically produced

commodities, including grapefruit, are

regulated under a Federal marketing

order, imports of that commodity must

meet the same or comparable grade,

size, quality, and maturity requirements.

Since this rule relaxes the minimum

size requirement under the domestic

handling regulations, a corresponding

change to the import regulations is

necessary.

Minimum grade and size

requirements for grapefruit imported

into the United States are currently in

effect under § 944.106 [7 CFR 944.106].

This rule relaxes the minimum size

requirements for imported red seedless

grapefruit to 35⁄16 inches in diameter

(size 56) for the remainder of the 1997–

1998 season ending on November 8,

1998, to reflect the relaxation being

made under the order for grapefruit

grown in Florida.

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 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.

Import regulations issued under the Act

are based on those established under

Federal marketing orders.

There are approximately 80 Florida

citrus handlers subject to regulation
Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 /Rules and Regulations 3249

under the marketing order, about 11,000

Florida citrus producers, and about 25

grapefruit importers. Small agricultural

service firms, which include grapefruit

handlers and importers, have been

defined by the Small Business

Administration (13 CFR 121.601) as

those whose annual receipts are less

than $5,000,000, and small agricultural

producers are defined as those whose

annual receipts are less than $500,000.

Based on the Florida Agricultural

Statistics Service and Committee data

for the 1995–96 season, the average

annual f.o.b. price for fresh Florida red

grapefruit during the 1995–96 season

was $5.00 per 4⁄5 bushel cartons for all

grapefruit shipments, and the total

shipments for the 1995–96 season were

23 million cartons of grapefruit.

Approximately 20 percent of all

handlers handled 60 percent of Florida

grapefruit shipments. In addition, many

of these handlers ship other citrus fruit

and products which are not included in

Committee data but would contribute

further to handler receipts. Using the

average f.o.b. price, about 80 percent of

grapefruit handlers could be considered

small businesses under the SBA

definition and about 20 percent of the

handlers could be considered large

businesses. The majority of handlers,

growers, and importers may be

classified as small entities.

Florida shipped approximately

44,224,000 cartons of grapefruit to the

fresh market during the 1996–97 season.

Of these cartons, about 25,586,000 were

exported. In the past three seasons,

domestic shipments of Florida

grapefruit averaged about 18,798,000

cartons. During the period 1991 through

1996, imports have averaged 734,800

cartons a season. Imports account for

less than five percent of domestic

shipments.

Section 905.52 of the order, in part,

authorizes the Committee to recommend

minimum grade and size regulations to

the Secretary. Section 905.306 (7 CFR

905.306) specifies minimum grade and

size requirements for different varieties

of fresh Florida grapefruit. This rule

relaxes the minimum size requirement

for domestic shipments of red seedless

grapefruit from size 48 (39⁄16 inches

diameter) to size 56 (35⁄16 inches

diameter) through November 8, 1998.

No change is being made in the

minimum size requirement for export

shipments of size 56. Absent this rule,

the minimum size requirement for

domestic shipments would be size 48.

The motion to allow shipments of size

56 red seedless grapefruit through

November 8, 1998, was passed by the

Committee unanimously.

The Committee originally met to

discuss this issue on October 14, 1997,

and recommended releasing size 56 red

grapefruit for a limited time period this

season. They voted to allow handlers to

ship size 56 red seedless grapefruit

through January 11, 1998, to give the

Committee time to determine the market

effect of size 56.

The Committee met again on

December 16, 1997, through an

emergency telephone meeting. The

meeting was called to determine

whether the Committee wanted to

release size 56 for the remainder of the

season. The Committee voted

unanimously to extend the release of

size 56 through November 8, 1998.

In its discussion, the Committee

recognized that fruit was continuing to

size. One member commented that fruit

that had measured size 56 in October,

had sized up one size. This was helping

to match supplies of size 56 with

demand. The Committee did have

several concerns. One topic that was

raised was the currency and economic

problems currently facing the Pacific

Rim countries. These countries

traditionally have been good markets for

size 56 grapefruit. The Committee was

concerned that current conditions could

reduce demand, and alternative outlets

would need to be available. The

Committee agreed that it would be

advantageous to have the ability to ship

size 56 red seedless grapefruit to the

domestic market should problems

materialize in the export market.

One Committee member asked

whether Texas was planning to market

size 56 grapefruit this season. The

Committee was informed that Texas

would be selling size 56 for the entire

season. The Committee believes that

some domestic markets may have been

developed for size 56 and that handlers

should continue to supply those

markets.

During the discussion of this rule, the

Committee considered the costs and

benefits of this action. Several members

stated that with the volume of grapefruit

available, the stagnant demand, and

concerns regarding the Asian export

markets, it was important to take

advantage of any market available.

There was also discussion that Texas

was planning to ship size 56 this season.

Some members stated that if they

eliminated size 56, they would be losing

markets. Members agreed that

maximizing fresh shipments helps

grower returns. The Committee has

released size 56 for the past seven

seasons. There should be no production

adjustment costs associated with this

rule.

This rule is expected to have a

positive impact on growers and

handlers, as it will permit the shipment

of smaller sized red seedless grapefruit

to the domestic market, allowing the

industry to meet anticipated demand

through November 8, 1998. This will

provide for the maximization of

shipments to fresh market channels

during this period.

This regulation lowers the minimum

size to size 56. This minimum applies

to all handlers of red seedless grapefruit.

The costs or benefits of this rule are not

expected to be disproportionately more

or less for small handlers or growers

than for larger entities.

In 1996, imports of grapefruit totaled

15,000 tons (approximately 705,880

cartons). The Bahamas were the

principal source, accounting for 95

percent of the total. Remaining imports

were supplied by the Dominican

Republic and Israel. Imported grapefruit

enters the United States from October

through May. Imports account for less

than five percent of domestic

shipments.

Section 8e of the Act provides that

when certain domestically produced

commodities, including grapefruit, are

regulated under a Federal marketing

order, imports of that commodity must

meet the same or comparable grade,

size, quality and maturity requirements.

Because this rule changes the minimum

size for domestic red seedless grapefruit

shipments, this change will also be

applicable to imported grapefruit. This

rule relaxes the minimum size to size

56. This regulation will benefit

importers to the same extent that it

benefits Florida grapefruit producers

and handlers because it allows

shipments of size 56 red seedless

grapefruit into U.S. markets through

November 8, 1998.

The Committee discussed alternatives

to this action. One alternative discussed

was the elimination of size 56 grapefruit

all together. Several members expressed

concern that a viable market has been

developed for a portion of the size 56

grapefruit crop. Not allowing handlers

to supply this market could result in

throwing business and money away.

Other members pointed out that it could

be detrimental to supply this market for

smaller sizes if that market is not

profitable and the result is depressed

prices for all sizes of grapefruit.

In addition, the Committee recognized

that through November, regulation was

in place to control the amount of size 56

red seedless grapefruit entering the

market. Under the percentage of size

rule, the quantity of sizes 48 and/or 56

red seedless grapefruit that may be

shipped by a handler during a particular
3250 Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 /Rules and Regulations

week is calculated using a

recommended percentage. This

percentage of size rule was in effect

through November 30, 1997. The

Committee agreed that, for the

remainder of the 1997–1998 season, no

further restriction on size 56 was

necessary. A motion to eliminate size 56

was rejected.

This rule will not impose any

additional reporting or recordkeeping

requirements on either small or large

red seedless grapefruit handlers or

importers. As with all Federal marketing

order programs, reports and forms are

periodically reviewed to reduce

information collection 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. However, red seedless

grapefruit must meet the requirements

as specified in the U.S. Standards for

Grades of Florida Grapefruit (7 CFR

51.760 through 51.784) issued under the

Agricultural Marketing Act of 1946 (7

U.S.C. 1621 through 1627).

Further, the Committee’s October

meeting was widely publicized

throughout the citrus industry and all

interested persons were invited to

attend the meeting and participate in

Committee deliberations. Like all

Committee meetings, the October 14,

1997, meeting was a public meeting and

all entities, both large and small, were

able to express their views on this issue.

Finally, interested persons are invited to

submit information on the regulatory

and informational impacts of this action

on small businesses.

In accordance with section 8e of the

Act, the United States Trade

Representative has concurred with the

issuance of this interim final rule.

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.

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 action until 30 days

after publication in the Federal Register

because: (1) This rule relaxes the

minimum size requirement currently in

effect for red seedless grapefruit grown

in Florida and red seedless grapefruit

imported into the United States; (2)

Florida grapefruit handlers are aware of

this action which was unanimously

recommended by the Committee, and

they will need no additional time to

comply with the relaxed size

requirement; (3) shipments of the 1997–

98 season Florida red seedless grapefruit

crop are underway; and (4) this rule

provides a 60-day comment period, and

any comments received will be

considered prior to any finalization of

this interim final rule.

List of Subjects

7 CFR Part 905

Grapefruit, Marketing agreements,

Oranges, Reporting and recordkeeping

requirements, Tangelos, Tangerines.

7 CFR Part 944

Avocados, Food grades and standards,

Grapefruit, Grapes, Imports, Kiwifruit,

Limes, Olives, Oranges.

For the reasons set forth above, 7 CFR

parts 905 and 944 are amended as

follows:

1. The authority citation for 7 CFR

parts 905 and 944 continues to read as

follows:

Authority: 7 U.S.C. 601–674.

PART 905—ORANGES, GRAPEFRUIT,

TANGERINES, AND TANGELOS

GROWN IN FLORIDA

2. Section 905.306 is amended by

adding entries in Table 1 of paragraph

(a) for ‘‘seedless, red grapefruit’’ to read

as follows:

§ 905.306 Orange, Grapefruit, Tangerine,

and Tangelo Regulation.

(a) * * *

TABLE I

Variety

(1)

Regulation period

(2)

Minimum grade

(3)

Minimum diameter

(inches)

(4)

GRAPEFRUIT

* * * * * * *

Seedless, red:

1/23/98–11/8/98 ........................................ U.S. No. 1 ................................................. 3–5⁄16

On and after 11/9/98 ................................. U.S. No. 1 ................................................. 3–9⁄16

* * * * * * *

* * * * * PART 944—FRUITS; IMPORT

REGULATIONS

4. Section 944.106 is amended by

adding entries in the table in paragraph

(a) for ‘‘seedless red grapefruit’’ to read

as follows:

§ 944.106 Grapefruit import regulation.

(a) * * *

Grapefruit classification

(1)

Regulation period

(2)

Minimum grade

(3)

Minimum

diameter

(inches)

(4)

* * * * * * *

Seedless, red:

1/23/98–11/8/98 ........................................ U.S. No. 1 ................................................. 35⁄16

On and after 11/9/98 ................................. U.S. No. 1 ................................................. 39⁄16
Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 /Rules and Regulations 3251

Grapefruit classification

(1)

Regulation period

(2)

Minimum grade

(3)

Minimum

diameter

(inches)

(4)

* * * * * * *

* * * * *

Dated: January 15, 1998.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable

Programs.

[FR Doc. 98–1430 Filed 1–21–98; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 982

[Docket No. FV98–982–1 IFR]

Hazelnuts Grown in Oregon and

Washington; Establishment of Interim

and Final Free and Restricted

Percentages for the 1997–98 Marketing

Year

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Interim final rule with request

for comments.

SUMMARY: This interim final rule

establishes interim and final free and

restricted percentages for domestic

inshell hazelnuts for the 1997–98

marketing year under the Federal

marketing order for hazelnuts grown in

Oregon and Washington. The

percentages allocate the quantity of

domestically produced hazelnuts which

may be marketed in the domestic inshell

market. The percentages are intended to

stabilize the supply of domestic inshell

hazelnuts to meet the limited domestic

demand for such hazelnuts and provide

reasonable returns to producers. This

rule was recommended unanimously by

the Hazelnut Marketing Board (Board),

which is the agency responsible for

local administration of the order.

DATES: Effective January 23, 1998.

Comments which are received by March

23, 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 in triplicate 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. Comments should reference

the docket number and the date and

page number of this issue of the Federal

Register and will be 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, Fruit and

Vegetable Programs, Agricultural

Marketing Service, USDA, 1220 SW

Third Avenue, Room 369, Portland, OR

97204; telephone: (503) 326–2724, Fax:

(503) 326–7440 or George J. Kelhart,

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, P.O. Box 96456, Room

2525–S, Washington, DC 20090–6456;

telephone: (202) 720–2491, Fax: (202)

205–6632.

SUPPLEMENTARY INFORMATION: This rule

is issued under Marketing Agreement

No. 115 and Order No. 982 (7 CFR part

982), both as amended, regulating the

handling of hazelnuts grown in Oregon

and 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. It is intended that this action

apply to all merchantable hazelnuts

handled during the 1997–98 marketing

year (July 1, 1997, through June 30,

1998). 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 establishes marketing

percentages which allocate the quantity

of inshell hazelnuts that may be

marketed in domestic markets. The

Board is required to meet prior to

September 20 of each marketing year to

compute its marketing policy for that

year and compute and announce an

inshell trade demand if it determines

that volume regulations would tend to

effectuate the declared policy of the Act.

The Board also computes and

announces preliminary free and

restricted percentages for that year.

The inshell trade demand is the

amount of inshell hazelnuts that

handlers may ship to the domestic

market throughout the marketing

season. The order specifies that the

inshell trade demand be computed by

averaging the preceding three ‘‘normal’’

years’ trade acquisitions of inshell

hazelnuts, rounded to the nearest whole

number. The Board may increase the

three-year average by up to 25 percent,

if market conditions warrant an

increase. The Board’s authority to

recommend volume regulations and the

computations used to determine

released percentages are specified in

section 982.40 of the order.

The National Agricultural Statistics

Service (NASS) estimated hazelnut

production at 40,000 tons for the Oregon

and Washington area.

The majority of domestic inshell

hazelnuts are marketed in October,

November, and December. By

November, the marketing season is well

under way.

The quantity marketed is broken

down into free and restricted

percentages to make available hazelnuts

which may be marketed in domestic

inshell markets (free) and hazelnuts

which must be exported, shelled or