Avocados Grown in South Florida; Finalize Suspension of Grade Requirements for Certain Florida Avocados

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 915

[Docket No. FV94-915-1-FIR]

Avocados Grown in South Florida; Finalize Suspension of Grade

Requirements for Certain Florida Avocados

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule finalizes without change an interim final rule which

suspended grade requirements for fresh Florida avocados shipped in

certain containers to destinations within the production area in

Florida for the 1994-95 season. The suspension was designed to enable

Florida growers and handlers to continue to market a larger percentage

of their crops in the production area, and was necessary in response to

quality problems associated with the after effects of Hurricane Andrew.

EFFECTIVE DATE: July 29, 1994.

FOR FURTHER INFORMATION CONTACT: Aleck Jonas, Southeast Marketing Field

Office, Fruit and Vegetable Division, AMS, USDA, P.O. Box 2276, Winter

Haven, Florida 33883-2276; telephone: 813-299-4770, or FAX: 813-299-

5169; or Gary D. Rasmussen, Marketing Specialist, Marketing Order

Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.

Box 96456, Room 2523-S, Washington, DC 20090-6456; telephone: 202-720-

5331, or FAX: 202-720-5698.

SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing

Agreement and Order No. 915 (7 CFR Part 915) regulating the handling of

avocados grown in South Florida, hereinafter referred to as the order.

This order is 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 final rule has been reviewed under Executive Order 12778,

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 8c(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 requesting 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 in equity to review the

Secretary's ruling on the petition, provided a bill in equity is filed

not later than 20 days after the date of the entry of the ruling.

Pursuant to the requirements set forth in the Regulatory

Flexibility Act (RFA), the Administrator of the Agricultural Marketing

Service (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. 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.

There are about 65 avocado handlers subject to regulation under the

order covering avocados grown in South Florida, and about 95 avocado

producers in South Florida. Small agricultural service firms are

defined by the Small Business Administration (13 CFR 121.601) as those

having annual receipts of less than $5,000,000, and small agricultural

producers have been defined as those having annual receipts which are

less than $500,000. The majority of these handlers and producers may be

classified as small entities.

The Avocado Administrative Committee (committee) met February 16,

1994, and recommended the suspension of certain grade requirements. The

committee meets prior to and during each season to review the rules and

regulations effective on a continuous basis for avocados regulated

under the order. Committee meetings are open to the public, and

interested persons may express their views at these meetings. The

Department reviews committee recommendations and information, as well

as information from other sources, and determines whether modification,

suspension, or termination of the rules and regulations would tend to

effectuate the declared policy of the Act.

Section 915.306 (7 CFR 915.306) of the order specifies grade, pack,

and container marking regulations for fresh shipments of avocados grown

in Florida. This section was amended by an interim final rule published

at 58 FR 7972 on February 11, 1993, and finalized at 58 FR 34683 on

June 29, 1993. That amendment suspended grade requirements for avocados

shipped to destinations within the production area in Florida in

containers other than those authorized under Sec. 915.305, during the

period February 11, 1993, through March 31, 1994.

This rule finalizes an interim final rule which further amended

Sec. 915.306 by adding a new paragraph (a)(7) to extend the suspension

of grade requirements for avocados shipped to destinations within the

production area in Florida in containers other than those authorized

under Sec. 915.305, during the period April 1, 1994, through March 31,

1995. The interim final rule was issued March 25, 1994, with an

effective date of April 1, 1994, and published in the Federal Register

(59 FR 15313, April 1, 1994). The interim final rule provided a 30-day

comment period ending May 2, 1994, and no comments were received.

The committee recommended that this suspension be extended for

1994-95 season shipments, because more than normal amounts of scarring

and Cercospora spots due to wind damage and the loss of tree canopy are

expected to damage the skin of the fruit for several avocado varieties

during the 1994-95 season. These skin blemishes affect the appearance

of the avocados, and as a result some of the fruit will not meet the

minimum grade requirement of U.S. No. 2 specified in paragraph (a)(1)

of Sec. 915.306. However, such fruit is a wholesome product marketable

within the production area.

This rule will enable Florida avocado producers and handlers to

continue selling fresh avocados in the production area, which would

otherwise be culled out during the packing process, making additional

fruit available to consumers. This suspension is expected to result in

relatively small quantities of lower quality avocados being sold fresh

within the production area during the 1994-95 season.

The committee recommended that this suspension be made effective

for only the 1994-95 season, because it expects that more abundant

supplies of fresh Florida avocados with fewer skin blemishes will be

available for the fresh market by the start of the 1995-96 season.

Florida avocado production continues to recover from the devastation

caused by Hurricane Andrew in August of 1992, but production expected

for the 1994-95 season is still well below the levels reached prior to

the hurricane.

The suspension does not apply to fresh Florida avocados shipped to

destinations outside the production area and to avocados shipped to any

destination in those containers specified in Sec. 915.305. A minimum

grade requirement of U.S. No. 2 continues to apply to such shipments.

Also, the suspension does not change any current maturity, container,

pack, and inspection requirements effective under the order for fresh

Florida avocado shipments.

Avocados imported into the United States must grade at least U.S.

No. 2, as provided in Sec. 944.28 (7 CFR 944.28). Since the interim

final rule did not change the minimum grade requirement of U.S. No. 2

specified in Sec. 915.306 for avocados handled to points outside the

production area, there was no need to change the avocado import

regulation. Section 8e of the Act (7 U.S.C. 608e-1) requires that

whenever specified commodities, including avocados, are regulated under

a Federal marketing order, imports of that commodity into the United

States must meet the same or comparable grade, size, quality, or

maturity requirements as those in effect for the domestically produced

commodity.

This rule reflects the committee's and the Department's appraisal

of the need to maintain the suspension of the grade requirements for

certain Florida avocados shipped during the 1994-95 season. The

Department's view is that this rule will have a beneficial impact on

producers and handlers since it will permit avocado handlers to

continue to make additional supplies of fruit available to meet

consumer needs consistent with expected crop and market conditions.

Based on the above, the Administrator of the AMS has determined

that this rule will not have a significant economic impact on a

substantial number of small entities.

After consideration of all relevant matter presented, the

information and recommendations submitted by the committee, and other

information, it is found that the finalization as set forth below will

tend to effectuate the declared policy of the Act.

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:

PART 915--AVOCADOS GROWN IN SOUTH FLORIDA

Accordingly, the interim final rule amending 7 CFR part 915 which

was published at 59 FR 15313 on April 1, 1994, is adopted as a final

rule without change.

Dated: June 23, 1994.

Robert C. Keeney,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-15722 Filed 6-28-94; 8:45 am]

BILLING CODE 3410-22-P