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

DEPARTMENT OF AGRICULTURE

7 CFR Part 915

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

Avocados Grown in South Florida; Suspension of Grade Requirements

for Certain Florida Avocados

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule extends a suspension of grade requirements for fresh

Florida avocados shipped in certain containers to destinations within

the production area in Florida for the 1994-95 season. This rule will

enable Florida growers and handlers to market a larger percentage of

their crops in the production area, and it is necessary in response to

quality problems associated with the after effects of Hurricane Andrew.

DATES: Effective April 1, 1994. Comments which are received by May 2,

1994 will be considered prior to issuance of any final rule.

ADDRESSES: Interested persons are invited to submit written comments

concerning this interim final rule. Comments must be sent in triplicate

to the Docket Clerk, Marketing Order Administration Branch, F&V, AMS,

USDA, room 2523-S, P.O. Box 96456, Washington, DC 20090-6456; FAX: 202-

720-5698. Comments should reference this 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.

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 interim 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 interim 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 $3,500,000, and small agricultural

producers have been defined as those having annual receipts of 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 that the suspension of grade requirements be

extended. 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. The final rule 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 amends 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 committee recommended that the 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

next 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 rule 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 1992, but production expected for

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

hurricane.

This rule 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, this rule 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 this rule does

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 is 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 extend the suspension of 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 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 extension of the suspension set forth

below 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 rule until 30 days after publication in the

Federal Register because: (1) This rule suspends grade requirements for

certain avocados grown in Florida; (2) Florida avocado handlers are

aware of this suspension which was recommended by the committee at a

public meeting, and they will need no additional time to comply with

this suspension; (3) this rule needs to be made effective by April 1,

1994, to be of maximum benefit to the Florida avocado industry; and (4)

the rule provides a 30-day comment period, and any comments received

will be considered prior to any finalization of this interim final

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:

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. Section 915.306 is amended by revising paragraph (a)(7) to read

as follows:

Note: This section will appear in the annual Code of Federal

Regulations.

Sec. 915.306 Florida avocado grade, pack, and container marking

regulation.

(a) * * *

(7) Notwithstanding the provisions in this section, such avocados

may be handled during the period April 1, 1994, through March 31, 1995,

not subject to the grade requirements specified in paragraph (a)(1) of

this section when they are shipped in containers other than those

authorized under Sec. 915.305 to destinations within the production

area.

* * * *

Dated: March 25, 1994.

Robert C. Keeney,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-7693 Filed 3-31-94; 8:45 am]

BILLING CODE 3410-02-P