[Federal Register Volume 64, Number 238 (Monday, December 13, 1999)]
[Rules and Regulations]
[Pages 69380-69383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32230]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 915
[Docket No. FV00-915-1 IFR]
Avocados Grown in South Florida; Relaxation of Container and Pack
Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This rule changes the container and pack requirements
currently prescribed under the Florida avocado marketing order. The
marketing order regulates the handling of avocados grown in South
Florida and is administered locally by the Avocado Administrative
Committee (Committee). Currently, avocados packed in 33-pound
containers must weigh at least 16 ounces. Avocados weighing less than
16 ounces must be packed in smaller containers. This rule removes the
requirement that avocados packed in 33-pound containers must weigh at
least 16 ounces. This change will provide greater flexibility in
avocado packing operations.
DATES: Effective December 14, 1999; comments received by February 11,
2000 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) 720-5698; or E-mail:
moab.docketclerk@usda.gov. 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.
[[Page 69381]]
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: (863) 299-4770, Fax: (863) 299-5169; or Anne Dec, Team
Leader, 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) 720-5698. Small businesses
may request information on complying 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) 720-5698, or E-mail:
Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 121 and Marketing Order No. 915, both as amended (7 CFR
part 915), regulating the handling of avocados grown in South 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.''
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.
Under the terms of the order, fresh market shipments of Florida
avocados are required to be inspected and are subject to grade, size,
maturity, and pack and container requirements. Current pack and
container requirements outline the designated net weight of the
containers used to pack avocados and the minimum weight of the avocados
packed in the containers.
This rule removes the requirement that avocados packed in 33-pound
containers must weigh at least 16 ounces. This change will provide
greater flexibility in avocado packing operations. The Committee met on
September 8, 1999, and unanimously recommended this change.
Section 915.51 of the order provides authority to issue regulations
establishing specific pack and container requirements. Section 915.52
further authorizes the Committee to make recommendations to the
Secretary to modify, suspend, or terminate regulations, including pack
and container requirements. The pack and container requirements are
specified under sections 915.305 and 915.306. These sections specify,
in part, container weight and other applicable requirements, including
the minimum weight of the avocados packed in the containers. Current
regulations authorize the use of 33-pound, 31-pound, 24-pound, and 12-
pound containers, and 8.5-pound containers for export shipments only.
The requirements of Section 915.305(a)(1) currently specify that
avocados packed in 33-pound containers must weigh at least 16 ounces.
Avocados weighing less than 16 ounces must be packed in smaller
containers. The Committee has determined that retailers prefer
shipments of avocados packed in larger containers. The size of the
fruit is not a concern to retailers. By allowing smaller fruit to be
packed in the larger containers, the retailer is able to offer avocados
to the consumer in a variety of sizes. The larger containers are ideal
for displaying the fruit. Upon receipt of the avocado shipment, the
retailer can remove the lid from the larger container. Without removing
the fruit from the box, fruit can be offered for consumers to purchase.
This is time saving for retailers.
Removing the requirement that avocados packed in 33-pound
containers weigh at least 16 ounces would give handlers the flexibility
to pack both large and small avocados in one container. California
avocado handlers have already adopted the practice of shipping smaller
avocados in larger containers with a great deal of success. Florida
avocado handlers would like to remain competitive with other avocado
growing areas. In order to meet the needs of the customer and remain
competitive with other avocado handlers, this rule removes the
requirement that avocados packed in 33-pound containers must weigh at
least 16 ounces. The avocados must meet all other requirements of the
marketing order, including maturity requirements.
In addition, the flexibility to pack both large and small avocados
in one container would allow handlers to use the smaller avocados to
create a tighter pack with less open space inside the containers. The
tighter pack would restrict movement of the avocados during shipment
which would prevent damage to the fruit. This would improve the quality
of the fruit reaching the consumer, save handling costs, and provide
greater returns to the grower.
Section 8e of the Act provides that when certain domestically
produced commodities, including 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 pack and container requirements currently in effect which
do not apply to imports. Therefore, no change is necessary in the
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 initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 141 avocado producers in the production
area and approximately 49 avocado handlers subject to regulation under
the marketing order. Small agricultural service firms have been defined
by the Small Business Administration (SBA) (13 CFR 121.601) as those
having annual receipts of less than $5,000,000, and small agricultural
producers are defined as those having annual receipts of less than
$500,000.
[[Page 69382]]
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. Many avocado handlers
ship other tropical fruit and vegetable products which are not included
in the Committee's data but would contribute further to handler
receipts. Using these prices, about 90 percent of avocado handlers
could be considered small businesses under the SBA definition. The
majority of Florida avocado producers and handlers may be classified as
small entities.
Under sections 915.51 and 915.52 of the marketing order for
avocados grown in South Florida, the Committee has the authority to
recommend to the Secretary changes to the pack and container
requirements for avocados handled under the order. Current pack and
container requirements outline the designated net weight of the
containers used to pack avocados and the minimum weight of the avocados
packed in the containers. Current regulations authorize the use of 33-
pound, 31-pound, 24-pound, and 12-pound containers, and 8.5-pound
containers for export shipments only.
This rule makes changes to section 915.305(a)(1) of the rules and
regulations concerning the pack and container requirements for
avocados. This rule removes the requirement that avocados packed in 33-
pound containers must weigh at least 16 ounces. The avocados must meet
all other requirements, including maturity requirements. This change
will provide greater flexibility in avocado packing operations.
This rule will have a positive impact on affected entities. The
change was recommended to provide additional flexibility in packing
avocados. None of the changes are expected to increase costs associated
with the pack and container requirements. This rule may, in fact,
reduce costs associated with the pack and container requirements.
The Committee believes this change will benefit both large and
small packing operations. It would be particularly beneficial to small
handlers since a single container can be used to ship avocados to
retail customers. This would reduce the need to maintain a large
inventory of smaller containers. Further, the Committee has determined
that retailers prefer the larger containers; the size of the fruit in
those containers is of lesser concern to the retailer. By allowing
smaller fruit to be packing in the larger containers, the retailer is
able to offer avocados to the consumer in a variety of sizes. The
larger containers are ideal for displaying the fruit. Upon receipt of
the avocado shipment, the retailer can remove the lid from the larger
container. Without removing the fruit from the box, fruit can be
offered for consumers to purchase. This is time saving for retailers.
Removing the requirement that avocados packed in 33-pound
containers weigh at least 16 ounces would give handlers the flexibility
to pack both large and small avocados in one container. Florida avocado
handlers would like to remain competitive with other avocado growing
areas. For example, California avocado handlers have already adopted
the practice of shipping smaller avocados in larger containers with a
great deal of success. In order to meet the needs of the customer and
remain competitive with other avocado handlers, this rule removes the
requirement that avocados packed in 33-pound containers must weigh at
least 16 ounces. The avocados must meet all other requirements of the
marketing order, including maturity requirement.
In addition, the flexibility to pack both large and small avocados
in one container would allow handlers to use the smaller avocados to
create a tighter pack with less open space inside the containers. The
tighter pack would restrict movement of the avocados during shipment
which would prevent damage to the fruit. This would save handling costs
and provide greater returns to the grower.
Other alternatives to the action were considered by the Committee
prior to making the recommendation. One alternative discussed by the
Committee was to continue to require that avocados packed in 33-pound
containers weigh at least 16 ounces. The Committee believed that this
alternative provided little benefit and would still limit flexibility.
This rule will not impose any additional reporting or recordkeeping
requirements on either small or large 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 Committee's meeting was widely publicized throughout
the avocado industry and all interested persons were invited to attend
the meeting and participate in Committee deliberations. Like all
Committee meetings, the September 8, 1999, meeting was a public meeting
and all entities, both large and small, were able to express their
views on this issue. The Committee itself is composed of 10 members, of
which 5 are growers, 4 are handlers, and one is a public member.
Finally, interested persons are invited to submit information on the
regulatory and informational impacts of this action on small
businesses.
A small business guide on complying with fruit, vegetable, and
speciality crop marketing agreements and orders may be viewed at the
following website: http://www.ams.usda.gov/fv/moab.html. Any questions
about the compliance guide should be sent to Jay Guerber at the
previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
After consideration of all relevant material presented, including
the Committee's recommendation, and other information, it is found that
this interim final rule, as hereinafter set forth, will tend to
effectuate the declared policy of the Act.
This rule invites comments on a change to the pack and container
requirements currently prescribed under the Florida avocado marketing
order. Any comments timely received will be considered prior to
finalization of this rule.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect and that good cause exists for not postponing the effective date
of this rule until 30 days after publication in the Federal Register
because: (1) Handlers are currently shipping avocados; (2) the
Committee unanimously recommended this change at a public meeting and
interested persons had an opportunity to provide input; (3) this rule
relaxes pack requirements; (4) Florida avocado handlers are aware of
this rule and need no additional time to comply with the relaxed
requirements; and (5) this rule provides a 60-day comment period and
any comments timely received will be considered prior to finalization
of this rule.
List of Subjects in 7 CFR Part 915
Avocados, Marketing agreements, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 915 is
amended as follows:
[[Page 69383]]
PART 915--AVOCADOS GROWN IN SOUTH FLORIDA
1. The authority citation for 7 CFR part 915 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. In Sec. 915.305, paragraph (a)(1) is revised to read as follows:
Sec. 915.305 Florida Avocado Container Regulation 5.
(a) * * *
(1) Containers shall not contain less that 33-pounds net weight of
avocados, except that for avocados of unnamed varieties, which are
avocados than have not been given varietal names, and for Booth 1,
Fuchs, and Trapp varieties, such weight shall be not less than 31
pounds. With respect to each lot of such containers, not to exceed 10
percent, by count, of the individual containers in the lot may fail to
meet the applicable specified weight, but no container in such lot may
contain a net weight of avocados exceeding 2 pounds less than the
specified net weight; or
* * * * *
Dated: December 8, 1999.
James R. Frazier,
Acting Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-32230 Filed 12-10-99; 8:45 am]
BILLING CODE 3410-02-P
