[Federal Register Volume 63, Number 216 (Monday, November 9, 1998)]
[Rules and Regulations]
[Pages 60204-60209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29936]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 911 and 915
[Docket No. FV98-911-2 FIR]
Limes and Avocados Grown in Florida; Relaxation of Container
Dimension, Weight, and Marking Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Agriculture (Department) is adopting, as a
final rule, without change, the provisions of an interim final rule
changing the container requirements prescribed under the Florida lime
and avocado marketing orders. The marketing orders regulate the
handling of limes grown in Florida and avocados grown in South Florida
and are administered locally by the Florida Lime Administrative
Committee and the Avocado Administrative Committee (Committees). This
rule continues in effect changes to simplify container marking
requirements for both limes and avocados by reducing the number of
times the size for limes and the grade for avocados need to appear on a
container. This rule also continues in effect the removal of weight
limits on lime and avocado containers packed within a master container,
and the relaxation of certain minimum weight requirements on containers
of avocados. In addition, this rule continues in effect the elimination
of specific container dimension requirements for both limes and
avocados, but maintains net weight requirements. These changes are
needed to reduce handling costs and provide greater flexibility in lime
and avocado packing operations.
EFFECTIVE DATE: December 9, 1998.
[[Page 60205]]
FOR FURTHER INFORMATION CONTACT: Doris Jamieson, Marketing Specialist,
Southeast Marketing Field Office, Marketing Order Administration
Branch, F&V, AMS, USDA, P.O. Box 2276, Winter Haven, Florida 33883;
telephone: (941) 299-4770, Fax: (941) 299-5169; or George Kelhart,
Technical Advisor, Marketing Order Administration Branch, Fruit and
Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456, Washington,
DC 20090-5456; telephone: (202) 720-2491, Fax: (202) 205-6632. Small
businesses may request information on complying with this regulation,
or obtain a guide on complying with fruit, vegetable, and specialty
crop marketing agreements and orders 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, or E-mail:
Jay__N__Guerber@usda.gov. You may view the marketing agreement and
order small business compliance guide at the following web site: http:/
/www.ams.usda.gov/fv/moab.html.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 126 and Marketing Order No. 911, both as amended (7 CFR
part 911), regulating the handling of limes grown in Florida, and
Marketing Agreement No. 121 and Marketing Order No. 915, both as
amended (7 CFR part 915), regulating the handling of avocados grown in
Florida, hereinafter referred to as the ``orders.'' The marketing
agreements and orders 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 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 continues in effect several changes to the orders' pack
and container rules and regulations. It continues in effect changes in
container marking requirements for both limes and avocados that reduce
the number of times the size for limes and the grade for avocados need
to appear on a container. In addition, this rule continues in effect
the removal of net weight limits on lime and avocado containers packed
within a master container, and the relaxation of certain minimum net
weight requirements on containers of avocados. This rule also continues
in effect the elimination of specific container dimension requirements
for both limes and avocados. Therefore, this rule reduces handling
costs and provides greater flexibility in lime and avocado packing
operations. The committees met several times to discuss and recommend
changes needed in the container regulations. The committees met and
unanimously recommended these changes on July 9, 1997, August 13, 1997,
and February 11, 1998.
Sections 911.48 and 915.51 of the orders provide authority to issue
regulations establishing specific pack and container requirements for
limes and avocados, respectively. These requirements are specified
under sections 911.311, 911.329 and 911.344 for limes, and under
sections 915.305 and 915.306 for avocados. These sections specify, in
part, container size, weight, and marking requirements.
This rule makes several changes to the pack and container
provisions under the orders. The first change reduces the number of
times the size for limes and the grade for avocados need to appear on a
container. Sections 911.311(5)(d) and 915.306(a)(6) of the rules and
regulations outline the container marking requirements for limes for
size and avocados for grade, respectively. Prior to this change,
requirements specified that the size for limes be marked in letters at
least one inch in height on two sides of the container. For avocados,
the grade was to be stamped in letters at least one inch in height on
the top and two sides of the lid. This rule relaxes these requirements
by establishing that containers be stamped only once, anywhere except
the bottom of the container.
The size and grade information on a container is usually applied
automatically by machine, or stamped individually by hand. Each time a
container is stamped, there is an associated cost. The committees
recommended reducing the number of times a container must be stamped,
as well as expanding the possible stamp location, to provide handlers
additional flexibility, and to reduce costs.
The committees believe this change will benefit both large and
small packing operations. Larger operations use automated stamping.
Former stamping requirements meant that each packing line needed to
have at least two in-line stamp rollers or ink jet printers. In cases
where the line had only one stamping device, the containers had to be
reversed and run through the line a second time for limes, and three
times for avocados. This could take a considerable amount of time. This
change allows containers to move more rapidly through the packing line,
reduces the number of stamping machines required, and decreases the
costs associated with these activities.
Most smaller operations stamp the containers by hand. To meet the
prior requirements, each box had to be rotated and stamped in more than
one location. This increased the time and effort needed to pack each
box. Reducing the number of times a container must be stamped will
decrease the amount of labor needed and the associated stamping costs
required to meet these requirements.
The requirement that containers be stamped more than once with size
or grade information originated from the way limes and avocados were
marketed by retailers in the past. Limes and avocados were, at one
time, marketed and sold out of the containers in which the fruit was
originally packed. Having the information on the container appear in
several locations was done so that the customer could read it. However,
the way limes and avocados are marketed has changed. Rather than being
presented in the shipping container, retailers move the fruit to
display bins.
The stamping of containers with required information benefits the
retailer and helps the committees check that the lots (shipments) meet
order requirements. Retailers tend to buy in large lots, purchasing a
specified size and grade. The number of times an individual box needs
to be stamped is less important. The committees anticipate that this
change will reduce costs and give handlers additional flexibility under
the rules and
[[Page 60206]]
regulations. Therefore, the committees recommended relaxing the
stamping requirements for both limes and avocados.
The next change this rule makes is to the weight limits on
individual containers that are packed inside larger master containers.
Prior to this rule, sections 911.329(a)(3) and 915.305(b) specified
that individual packages of limes or avocados contained within master
containers were not to exceed four pounds in weight. This rule relaxes
this weight limit, allowing packaged limes or avocados contained within
master containers to exceed four pounds in weight.
The committees are always looking for ways to strengthen and expand
the market for limes and avocados. One way they do this is through the
approval of experimental containers not currently included under the
regulations. This is done for market research purposes. The committees
use such research to determine the benefits and acceptance of different
containers in the marketplace.
The use of master containers packed with limes and avocados in
packages in excess of 4 pounds has been approved on an experimental
bases. The approvals were made to allow handlers to meet specific
requests from their customers. Consequently, these larger sized
packages within a master container have been shown to have a market
potential.
The committees both discussed the merits of eliminating the four
pound limit on packages within a master container. The committees
believe this change will provide handlers with additional marketing
flexibility, increased sales potential, and with more opportunities to
satisfy customers with special needs. Based on the information
collected from the use of the trial containers, the committees
recommended that the four pound limit on packages within a master
container be removed.
This rule also lowers certain minimum net weight requirements for
containers of avocados. Section 915.305 specifies minimum weight
requirements for avocados packed under the marketing order for avocados
grown in Florida. Prior to this rule, regulations specified that
avocados be packed in containers of 8.5, 12\1/2\, 25, 32, or 34 pounds
designated net weights. This rule reduces the net weight requirements
of 12\1/2\, 25, 32, and 34 pounds to 12, 24, 31, and 33 pounds, as
recommended by the Avocado Administrative Committee (AAC). AAC members
agreed that the problems prompting this change were more prevalent in
the containers associated with the last four weights. Therefore, no
change was recommended for the 8.5 pound designated net weight.
Handlers use containers that are associated by size with the
minimum weights listed under the rules and regulations. These weight
requirements closely match the capacity of the containers. These
containers are inspected by the Federal-State Inspection Service
(FSIS). One of the things FSIS checks is whether the packed containers
meet the established minimum weight requirements.
An allowable tolerance for variation from the requirements is
specified under the rules and regulations. With respect to each lot of
containers of minimum weights 12\1/2\ and 25 pounds, only 5 percent or
less, by count, of the individual containers in the lot may fail to
meet the applicable specified weight. The tolerance is 10 percent for
minimum weights of 32 and 34 pounds. If the allowable tolerances are
exceeded, the lot fails inspection and would need to be reworked and
repacked before it could meet inspection.
Failing inspection and having to rework a lot after it has been
packed results in a considerable loss of time and money for the
individual handler. One AAC member used the example of a 12\1/2\ pound
net weight container packed with 16 ounce avocados in a single layer
with 12 avocados per layer to illustrate the problem. He said that when
FSIS found the minimum weight to be 8 ounces short in enough boxes to
exceed the tolerance, they would fail the lot, requiring it to be
redone. Handlers then are forced to make a choice between adding an
additional avocado to each container, or risk the possibility of
failing the minimum net weight requirement. AAC members concurred with
the problem presented by this particular situation. Several handlers
stated that rather than risk being underweight, they would force an
additional avocado into the container. The handlers agreed that in many
cases, this meant that they were literally giving one avocado per pack
away.
In addition, members stated that this practice of over packing the
containers was having a negative effect on the avocados during
shipment. The AAC discussed that some shipments were being received out
of the production area in poor condition due to the over filling of
containers to ensure compliance with the minimum net weight
requirements. The containers were so tightly packed that the avocados
were bruised or damaged in transit.
The AAC understands the benefits of a uniform pack. However, in
this case, the requirements were having a negative effect on the
condition of the avocados. Changing container sizes to better
accommodate the required weights would be difficult and costly.
Handlers have containers in inventory, and have their equipment
adjusted to those containers. By lowering the minimum net weights,
handlers will be able to use the boxes they have. This change will also
reduce the need to add additional avocados to meet net weight
requirements. In addition, it will help reduce the possibility of
containers failing the minimum weight requirement, and save handlers
the expense of reworking failed lots of avocados. This change also will
benefit growers by providing greater packouts and additional grower
revenue. Therefore, the AAC recommended lowering the minimum net
weights of 12\1/2\, 25, 32, and 34 pounds to 12, 24, 31, and 33 pounds
designated net weights. However, this action does not change the
established tolerances or the requirement for a fairly tight pack.
The final change made by this rule is the elimination of specific
container dimension requirements from both orders' rules and
regulations. Prior to this rule, requirements included dimensions for
all authorized containers of limes and avocados, specifying specific
measurements for height, width, and depth. This rule eliminates the
specific dimension constraints, but maintains the container net weight
requirements.
Sections 911.329 and 915.305 of the rules and regulations outlined
container dimension requirements for limes and avocados, respectively.
These sections established specific interior dimensions in inches for
containers approved for use under the orders. The dimensions varied
from a small 5.5 pound container with measurements of 7\1/2\ x 11\7/
8\ x 4\1/4\ inches to a large 42 pound container with measurements of
12\3/4\ x 15\1/4\ x 10\3/4\ inches for limes. Avocados also had
similar specific interior dimensions, from a small 8.5 pound container
with dimensions of 16\1/2\ x 13\1/2\ x 3\1/4\ inches to a large 34
pound container with dimensions of 11 x 16\1/4\ x 10\3/4\ inches.
A recent review of the containers in use throughout the industry
revealed that interior dimensions varied from handler to handler, and
in many cases, were different than those specified in the rules and
regulations. Some of the differences occurred in the box manufacturing
process, where tolerances were granted to allow for equipment
adjustments.
While the dimensions of containers have varied throughout the
industry, the adherence to the net weight
[[Page 60207]]
requirements has not. Under current inspection procedures, the
containers are being weighed and checked for compliance with net weight
requirements. This means that even though container dimensions may vary
somewhat among individual handlers, the essential volume among like
containers is the same. Therefore, rather than revising the rules and
regulations to incorporate numerous additional containers with specific
dimensions, the committees voted to eliminate the references to set
measurements while maintaining the container net weight requirements.
The committees concluded that requiring handlers to use containers
with specific dimensions is not necessary as long as the containers
used contain a net weight specified in the requirements. The committees
believe that even with this change, the rules and regulations continue
to promote the shipment of a uniform product. The committees also
anticipate that this change will reduce costs by allowing handlers to
use boxes in inventory, rather than ordering new containers and making
adjustments to equipment. They thought that removing specific container
dimension requirements provided handlers with additional packing
flexibility under the rules and regulations. They also agreed this
change made more sense than trying to add the dimensions of all the
containers currently in use to the requirements. Therefore, the
committees recommended removing the regulations requiring specific
interior dimensions for containers. However, all containers must
continue to meet the specific net weight requirements as they appear in
the rules and regulations.
Section 8e of the Act provides that when certain domestically
produced commodities, including limes and avocados, are regulated under
a Federal marketing order, imports of that commodity must meet the same
or comparable grade, size, quality, and maturity requirements. This
rule changes the container marking and minimum net weight requirements
currently issued under these orders. Therefore, no change is necessary
in the lime or avocado import regulations.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this action on small entities. Accordingly, AMS has
prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly 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 111 lime producers and 141 avocado
producers in the production area and approximately 33 lime handlers and
49 avocado handlers subject to regulation under the marketing orders.
Small agricultural producers have been defined by the Small Business
Administration (SBA) as those having annual receipts less than
$500,000, and small agricultural service firms are defined as those
whose annual receipts are less than $5,000,000 (13 CFR 121.601).
Based on the Florida Agricultural Statistical Service and committee
information, the average on-tree price for fresh limes during the 1996-
97 season was $7.10 per 88 pound box equivalent and shipments totaled
398,279 bushels (55 pound bushel). Approximately 20 percent of all
handlers handled 86 percent of Florida lime shipments.
The average price for fresh avocados during the 1997-98 season was
$14.60 per 55 pound bushel box equivalent for all domestic shipments
and the total shipments were 937,568 bushels. Approximately 10 percent
of all handlers handled 90 percent of Florida avocado shipments. Many
lime and avocado handlers ship other tropical fruit and vegetable
products which are not included in the committees' data but would
contribute further to handler receipts.
Using these prices, about 90 percent of lime and avocado handlers
could be considered small businesses under the SBA definition and about
10 percent of the handlers could be considered large businesses. The
majority of Florida lime and avocado producers and handlers may be
classified as small entities.
Under Sec. 911.48 and Sec. 915.51 of the marketing orders for limes
and avocados grown in Florida, the committees have the authority to
establish and modify pack and container requirements for limes and
avocados handled under the order. Pack and container requirements
outline the types of information and the number of times this
information needs to appear on a container. The requirements also list
the specific requirements as to container size and weight restrictions
the packed container must meet.
This rule makes several changes to Secs. 911.311 and 911.329, and
Secs. 915.305 and 915.306 of the rules and regulations concerning the
pack and container requirements for limes and avocados, respectively.
This rule simplifies container marking requirements for both limes and
avocados by reducing the number of times the size for limes and the
grade for avocados need to appear on a container. This rule also
removes net weight limits on lime and avocado containers packed within
a master container, and relaxes certain minimum net weight requirements
on packed avocados. In addition, this rule eliminates specific
container dimension requirements for both limes and avocados. These
changes will reduce handling costs and provide greater flexibility in
lime and avocado packing operations.
This rule will have a positive impact on affected entities. The
changes were recommended to reduce costs and provide additional
flexibility in packing limes and avocados. None of the changes are
expected to increase costs associated with the pack and container
requirements.
The change in the stamping requirement will allow containers to
move more rapidly through the packing line, reduce the number of
stamping machines and labor needed, and decrease costs associated with
complying with the marking requirements.
The committees believe this change will benefit both large and
small packing operations. Larger operations use automated stamping. The
former stamping requirements meant that each packing line needed to
have at least two in-line stamp rollers or ink jet printers. In cases
where the line had only one stamping device, the containers had to be
reversed and run through the line a second time for limes, and three
times for avocados. This took a considerable amount of time. This
change will allow containers to move more rapidly through the packing
line, reduce the number of stamping machines required, and decrease the
costs associated with these activities.
Most smaller operations stamp the containers by hand. To meet the
prior requirements, each box had to be rotated and stamped in more than
one location. This increased the time and effort needed to pack each
box. Reducing the number of times a container must be stamped will
decrease the amount of labor needed and the associated stamping costs
required to meet these requirements.
The change in net weight of a container packed within a master
container will provide handlers with more options in how they use a
master
[[Page 60208]]
container, and provide handlers greater flexibility in addressing the
needs of customers.
Lowering certain minimum net weight requirements for avocados will
reduce the practice of over filling containers to ensure compliance
with the minimum net weight requirements. Some handlers have been
packing the containers so tightly that the avocados were bruised or
damaged in transit. This change will reduce the need to add additional
avocados to meet net weight requirements, thus, saving on costs from
adding additional fruit to the containers and damaged fruit. This
change also will help reduce the possibility that containers will fail
the minimum weight requirement, saving the handler the expense of
reworking failed lots of avocados. Growers also might benefit from this
change. If less fruit damage results in increased customer satisfaction
and higher f.o.b. prices, some additional revenue might be passed on to
the growers.
A recent review of the containers in use throughout the industry
revealed that the interior dimensions varied with each packer, and in
many cases, were different than those specified in the rules and
regulations. Absent this change eliminating specific container
dimensions, some handlers would need to bear the expense of ordering
new boxes, and take a loss on the boxes they have in inventory, or
petition the committees to expand the list of approved container
dimensions. The elimination of specific container dimension
requirements from both orders' rules and regulations will reduce costs
to handlers by allowing handlers to use boxes in inventory, rather than
having to order new containers.
As long as the containers contain enough limes or avocados to meet
net weight requirements, the committees believe that different
container dimensions are not necessary. The committees believe that
even with this change, the rules and regulations will continue to
promote the shipment of uniform product, while providing handlers
additional latitude in their choice of containers.
These changes are intended to reduce costs and provide additional
flexibility for all those covered under the orders. The opportunities
and benefits of this rule are expected to be equally available to all
lime and avocado handlers and growers regardless of their size of
operation.
Other alternatives to the actions approved were considered by the
committees prior to making the recommendations. One alternative
discussed by the committees regarding the stamping question was to
require containers to continue to be stamped on two sides for limes,
and on the top and two sides of the lid for avocados. The committees
believed that this is a duplicate effort that provides little benefit
and increases associated packing costs. They rejected this alternative.
The committees also considered an alternative to the change
recommended regarding the weight of containers packed within a master
container. The committees discussed establishing another net weight
limitation above the current four pound restriction. However, the
committees believed that just increasing the weight limit would still
limit flexibility and rejected that option.
The AAC considered several alternatives to relaxing specific
minimum net weight requirements. One alternative discussed was
increasing the percentage tolerance in terms of the number of
containers that could fail to meet the weight requirements before the
entire lot would fail. Members were concerned that raising the
allowable tolerance would have a negative impact on the uniformity of
the pack, allowing for too much variance from the standard. There was
also concern that this may not fully address the problem. Even with the
increased tolerance, to avoid reaching the limit, there would still be
cause to over pack containers. Another alternative considered was to
change the way the tolerance was measured, changing from containers per
lot to an average of containers packed on a given day. Under this
alternative, a handler would not know if they had exceeded the
allowable tolerance until the end of the packing day. This would mean
that if a handler was found to be out of compliance, they would be out
of compliance for the whole day, requiring a rework of all the fruit
packed that day rather than only the lots that failed. The AAC also
considered changing the container requirements to specify containers
that were wider and longer than present containers. Discussion
concluded that there were already numerous containers and that adding
or changing several containers to cover all the weights, sizes, and
varieties would make things more complicated. It would also increase
the financial burden by requiring the purchase of new boxes, and the
modifying of equipment and pallets to accommodate the change.
Therefore, the AAC dismissed these alternatives.
Two alternatives to eliminating specific container dimension
requirements were presented for discussion. One alternative was to
leave all lime and avocado containers as they are now. A review of the
containers in use throughout the industry revealed that interior
dimensions varied from handler to handler and in many cases, were
different than those specified in the rules and regulations. However,
not making this change could result in additional costs for handlers.
The second alternative centered on adjusting the regulations to
accommodate all the containers currently in use. The committees
rejected the idea of adding more containers to the regulations as
making things overly complicated with little discernible benefit. The
committees believed that the recommended change will continue to
promote the shipment of uniform product, require no additional cost,
and allow handlers additional flexibility in choice of containers.
Based on this discussion, this alternative was rejected.
This rule will not impose any additional reporting or recordkeeping
requirements on either small or large lime or avocado 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 committees' meetings were publicized throughout the
lime and avocado industries and all interested persons were invited to
attend the meetings and participate in the committees' deliberations.
Like all the committees' meetings, the July 9, 1997, August 13, 1997,
and February 11, 1998, meetings were public meetings and all entities,
both large and small, were able to express their views on these issues.
Finally, interested persons were invited to submit information on the
regulatory and informational impacts of this action on small
businesses.
An interim final rule concerning this action was published in the
Federal Register on July 13, 1998. Copies of the rule were mailed by
the committees' staff to all committee members and lime and avocado
handlers. In addition, the rule was made available through the Internet
by the Office of the Federal Register. That rule provided for a 60-day
comment period which ended September 11, 1998. No comments were
received.
After consideration of all relevant material presented, including
the committees' recommendations, and other information, it is found
that finalizing the interim final rule, without change, as published in
the Federal Register (63 FR 37475, July 13, 1998)
[[Page 60209]]
will tend to effectuate the declared policy of the Act.
List of Subjects
7 CFR Part 911
Limes, Marketing agreements, Reporting and recordkeeping
requirements.
7 CFR Part 915
Avocados, Marketing agreements, Reporting and recordkeeping
requirements.
PART 911--LIMES GROWN IN FLORIDA
Accordingly, the interim final rule amending 7 CFR part 911 which
was published at 63 FR 37475 on July 13, 1998, is adopted as a final
rule without change.
PART 915--AVOCADOS GROWN IN SOUTH FLORIDA
Accordingly, the interim final rule amending 7 CFR part 915 which
was published at 53 FR 37475 on July 13, 1998, is adopted as a final
rule without change.
Dated: November 4, 1998.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 98-29936 Filed 11-6-98; 8:45 am]
BILLING CODE 3410-02-P
