01-23654. Oranges and Grapefruit (Texas and States Other Than Florida, California and Arizona); Grade Standards

AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Interim final rule with request for comments.

SUMMARY:

This rule revises the United States Standards for Grades of Oranges (Texas and States other than Florida, California and Arizona) and the United States Standards for Grades of Grapefruit (Texas and States other than Florida, California and Arizona). The revisions change the requirements for standard pack and standard sizing for oranges and the requirements for standard pack for grapefruit. The purpose of these revisions is to reflect current cultural and marketing practices and to give industry greater flexibility in marketing and packaging using developing technologies. The Agricultural Marketing Service (AMS), in cooperation with industry and other interested parties, develops and improves standards of quality, condition, quantity, grade and packaging in order to facilitate commerce by providing buyers, sellers and quality assurance personnel with uniform language and criteria for describing various levels of quality and condition as valued in the marketplace.

DATES:

This rule is effective September 25, 2001. Comments must be received by November 23, 2001.

ADDRESSES:

Interested parties are invited to submit written comments concerning this 1 interim final rule. Comments must be sent to the Standardization Section, Fresh Products Branch, Fruit and Vegetable Programs, Agricultural Marketing Service, U.S. Department of Agriculture, 1400 Independence Avenue, SW, Room 2065 South Building, Stop 0240, Washington, DC 20250; Fax [phone], E-mail [e-mail]. Comments should make reference to the date and page number of this issue of the Federal Register and will be made available for public inspection in the above office during regular business hours.

FOR FURTHER INFORMATION CONTACT:

David L. Priester, at the above address or call [phone]; E-mail [e-mail].

Executive Order 12988 and 12866

SUPPLEMENTARY INFORMATION:

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action 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. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of the rule.

The Department of Agriculture (Department) is issuing this rule in conformance with Executive Order 12866.

Background

The United States Standards for Grades of Oranges (Texas and States other than Florida, California and Arizona), and the United States Standards for Grades of Grapefruit (Texas and States other than Florida, California and Arizona) were last revised in October 1969. Members of the Texas industry have requested that the standards be revised for the next season in order to bring them into conformity with current packaging and marketing practices and technologies and with similar provisions in the Texas Marketing Order for oranges and grapefruit (7 CFR part 906).

The main purpose of the revision is to achieve closer conformity with current marketing practices used in the industry. The major changes requested include revising the standard pack sections of the orange and grapefruit standards, and the standard sizing section of the orange standard by redefining the requirements in each section. In addition, the standards have been reviewed for need, clarity and effectiveness as part of a periodic review. Accordingly, this rule will revise the standards as discussed below.

As a result of the industry request, the following changes are being made to the United States Standards for Grades of Oranges (Texas and States other than Florida, California, and Arizona) and to the U.S. Standards for Grades of Grapefruit (Texas and States other than Florida, California, and Arizona). Section 51.691 paragraph (a), is revised by changing the statement “Fruit shall be fairly uniform in size, unless specified as uniform in size, and shall be place packed in boxes or cartons and arranged according to the approved and recognized methods” to “Fruits shall be fairly uniform in size and shall be packed in containers according to approved and recognized methods.” New packing technologies, such as mechanical filling of containers, are utilizing containers other than boxes and cartons. Reusable plastic containers are now being used throughout the industry.

Section 51.691, paragraph (b) states “All containers shall be tightly packed and well filled but the contents shall not show excessive or unnecessary bruising because of overfilled containers. When oranges are packed in wire-bound boxes or cartons, each container shall be at least level full at time of packing,” is removed. Since the preceding paragraph states that the fruit shall be packed and arranged according to approved and recognized methods, paragraph (b) is not necessary. There is no definition for “excessive or unnecessary bruising” and since injury by bruising is addressed in the defects portion of the standards there is no need for a reference to this defect in the pack section. Also, with the advent of new packaging technologies, wire-bound crates are not commonplace in the orange industry so there is no need for reference to this type of package.

Section 51.630, paragraph (b) of the grapefruit standards contains basically the same requirements as the orange standards and is being removed for the same reasons.

Section 51.691, Table III, currently includes the size and count of oranges when packed in 12/5 or 7/10 bushel containers. Because the industry no longer packs oranges in 12/5 bushel containers, the table will be revised to include size and count of oranges packed in 7/10 bushel containers only. In addition, the sizes will be revised to update the current sizes now being used in the orange industry and consistent with the provisions in the regulations in the Texas marketing order. The following tables show the changes.

Table III currently reads:

Table III

[When packed in 12/5 bushel or 7/10 bushel containers]

Size and count in 12/5 bushel	Count in 7/10 bushel	Diameter in inches
		Minimum	Maximum
100's	48 or 50	37/16	313/16
125's	64	33/16	39/16
163's	80	215/16	35/16
200's	100	211/16	31/16
252's	125	27/16	212/16
288's	144	24/16	29/16
324's	162	23/16	28/16

Table III will be revised to read:

Table III.—7/10 Bushel Carton

Pack size/number of oranges	Diameter in inches
	Minimum	Maximum
24	312/16	51/16
32	36/16	49/16
36	34/16	46/16
40	32/16	44/16
48	215/16	4
56	213/16	313/16
64	211/16	310/16
72	29/16	38/16
88	28/16	34/16
113	27/16	3
138	26/16	212/16

Section 51.691, paragraph (d) which states, “Uniform in size means that not more than the number of fruits permitted in 51.689, Tables I and II, vary more than the following amounts: (1) 163 size or smaller-not more than four-sixteenths inch in diameter; and (2) 125 size or larger-not more than five-sixteenths inch in diameter.” is removed since the term “uniform in size” is no longer being used.

Technology has advanced to the point where it is no longer customary to “shake down” the contents of the container to become level full. The use of automated or mechanical filling operations have made this practice obsolete. Section 51.692, paragraph (a), will be revised, deleting the last sentence, which reads, “And provided further, that when packed in boxes or cartons the contents have been properly shaken down and the container is at least level full at time of packing.”

Section 51.630, paragraph (b) which states “All packages shall be tightly packed and well filled but the contents shall not show excessive or unnecessary bruising because of overfilled packages. When grapefruit are packed in cartons or in wirebound boxes, each container shall be at least level full at time of packing” will be removed. Since the preceding paragraph already states that the fruit shall be packed and arranged according to approved and recognized methods, paragraph (b) is not necessary. In addition, with the advent of new packaging technologies, wire-bound crates are not commonplace in the grapefruit industry.

Section 51.630, Table III, currently includes the size and count of grapefruit when packed in 12/5 bushel containers. Because the industry no longer packs grapefruit in 12/5 bushel containers, the table will be revised to include size and count of grapefruit packed in 7/10 bushel containers only. In addition, the sizes will be revised to update the current sizes now being used in the grapefruit industry and consistent with the provisions in the regulations in the Texas marketing order. The following tables show the changes.

Table III currently reads:

Table III.—12/5 Bushel Box

[Diameter in inches]

Pack size	Minimum	Maximum
46's	45/16	5
54's or 56's	42/16	412/16
64's	315/16	48/16
70's or 72's	313/16	45/16
80's	310/16	42/16
96's	36/16	314/16
112's or 113's	32/16	310/16
125's or 126's	3	38/16

Table III will be revised to read:

Table III.—7/10 Bushel Carton

Pack size/number of grapefruit	Diameter in inches
	Minimum	Maximum
18	415/16	59/16
23	45/16	5
27	42/16	412/16
32	315/16	48/16
36	313/16	45/16
40	310/16	42/16
48	39/16	314/16
56	35/16	310/16

Since Table III will be revised to reflect the current packing methods being used throughout the grapefruit industry, § 51.630, paragraph (d) which is new paragraph (c) will be revised by changing the statement for “(1) 64 size and smaller-not more than six-sixteenths inch in diameter” to “(1) 32 size and smaller-not more than six-sixteenths inch in diameter” and by changing the statement for “(2) 54 size and larger-not more than nine-sixteenths inch in diameter” to “(2) 27 size and larger-not more than nine-sixteenths inch in diameter.” This change is necessary because the carton sizes are being reduced from 12/5 bushel to 7/10 bushel. In order to maintain consistency with the current practices, because the carton size has been reduced in volume by 50 percent, the number of fruit will also be reduced 50 percent, in order to preserve the equivalent sizes. The smaller number of fruit will now be reflected in the smaller sized carton.

The Regulatory Flexibility Act and Effects on Small Business

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. 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. Accordingly, AMS has prepared this initial regulatory flexibility analysis. Interested parties are invited to submit information on the regulatory and informational impacts of this action on small entities.

There are approximately 315 producers of oranges and grapefruit in the production area and 16 handlers who would be affected by this amendment. Starting August 6, 2001, small agricultural producers have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts less than $750,000 and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000. Under this definition, the majority of orange and grapefruit producers and handlers using the grade standards in this regulation may be classified as small entities.

Using an average f.o.b. price of $8.00 per carton, 11 handlers (69 percent) could be considered small businesses. Of the approximately 315 producers within the production area, few have sufficient acreage to generate sales in excess of $750,000; therefore, a majority of producers of oranges and grapefruit who will be affected by this rule may be classified as small entities.

This rule for the revision of U.S. Standards for Grades of Oranges (Texas and States other than Florida, California, and Arizona) and U.S. Standards for Grades of Grapefruit (Texas and States other than Florida, California, and Arizona) will not impose substantial direct economic cost, recordkeeping, or personnel workload changes on small entities, and will not alter the market share or competitive position of these entities relative to large businesses. In addition, under the Agricultural Marketing Act of 1946, the use of these standards is voluntary.

Pursuant to a request by the Texas fruit and vegetable industry, this rule will revise the U.S. Standards for Grades of Oranges (Texas and States other than Florida, California and Arizona), and the United States Standards for Grades of Grapefruit (Texas and States other than Florida, California and Arizona) that were issued under the Agricultural Marketing Act of 1946. The main purpose for the request was to bring the standards into conformity with current packaging and marketing practices and technologies. This rule specifically revises the standard pack sections of the orange and grapefruit standards and the standard size section of the orange standard by redefining the requirements.

Agencies periodically review existing regulations. An objective of the review is to ensure that the grade standards are serving their intended purpose, the language is clear, and the standards are consistent with AMS policy and authority.

The alternative option to this rule would be to leave the standards in part 51 unchanged. This is not a viable alternative because this amendment reflects current industry practices and is consistent with the regulations under the Texas orange and grapefruit marketing order (7 CFR part 906).

This rule contains no new information or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

Pursuant to 5 U.S.C. 553, it is 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 60 days after publication in the Federal Register because: (1) This rule will make the standards reflect current cultural and marketing practices and give industry greater flexibility in marketing and packaging using developing technologies; (2) this change to the standard should be in effect for the next season (beginning September, 2001); and, (3) this rule provides a 60-day comment period and any comments will be considered prior to finalization of this rule.

List of Subjects in 7 CFR Part 51

• Agricultural commodities
• Food grades and standards
• Fruits
• Nuts
• Reporting and record keeping requirements
• Trees
• Vegetables

For reasons set forth in the preamble, 7 CFR part 51 is amended as follows:

PART 51—[AMENDED]

1. The authority citation for Part 51 continues to read as follows:

Authority: 7 U.S.C. 1621-1627.

2. Section 51.630 is revised to read as follows:

§ 51.630

Standard Pack.

(a) Fruits shall be fairly uniform in size, unless specified as uniform in size. When packed in approved containers, fruit shall be arranged according to the approved and recognized methods.

(b) “Fairly uniform in size” means that not more than the number of fruit permitted in § 51.628, Tables I and II, are outside the ranges of diameters given in Table III.

Table III.—7/10 Bushel Carton

Pack size/number of grapefruit	Diameter in inches
	Minimum	Maximum
18	415/16	59/16
23	45/16	5
27	42/16	412/16
32	315/16	48/16
36	313/16	45/16
40	310/16	42/16
48	39/16	314/16
56	35/16	310/16

(c) “Uniform in size” means that not more than the number of fruit permitted in § 51.628, Tables I and II, vary more than the following amounts:

(1) 32 size and smaller—not more than six-sixteenths inch in diameter; and

(2) 27 size and larger—not more than nine-sixteenths inch in diameter.

(d) In order to allow for variations, other than sizing, incident to proper packing, not more than 5 percent of the packages in any lot may fail to meet the requirements of standard pack.

3. Section 51.691 is revised to read as follows:

§ 51.691

Standard pack for oranges except Temple variety.

(a) Fruit shall be fairly uniform in size. When packed in approved containers, fruit shall be arranged according to the approved and recognized methods.

(b) “Fairly uniform in size” means that not more than the number of fruit permitted in § 51.689, Tables I and II, are outside the ranges of diameters given in Table III:

Table III.—7/10 Bushel Carton

Pack size/number of oranges	Diameter in inches
	Minimum	Maximum
24	312/16	51/16
32	36/16	49/16
36	34/16	46/16
40	32/16	44/16
48	215/16	4
56	213/16	313/16
64	211/16	310/16
72	29/16	38/16
88	28/16	34/16
113	27/16	3
138	26/16	212/16

(c) In order to allow for variations, other than sizing, incident to proper packing, not more than 5 percent of the packages in any lot may fail to meet the requirements of standard pack.

4. In § 51.692, paragraph (a) is revised to read as follows:

§ 51.692

Standard Sizing.

(a) Boxes, cartons, bag packs, or bulk loads in which oranges are not packed according to a definite pattern do not meet the requirements of standard pack, but may be certified as meeting the requirements of standard sizing: Provided, that the ranges are fairly uniform in size as defined in § 51.691.

* * * * *

Dated: September 17, 2001.

Kenneth C. Clayton,

Acting Administrator, Agricultural Marketing Service.