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

SUMMARY: This interim final rule revises grade requirements for fresh

Florida avocados shipped in certain containers to destinations within

the production area in Florida. The marketing order regulates the

handling of avocados grown in South Florida and is administered locally

by the Florida Avocado Administrative Committee (committee). This rule

will enable Florida growers and handlers to market a larger percentage

of their crop in the production area, in response to demand.

DATES: Effective on August 17, 1995; comments which are received by

September 18, 1995 will be considered prior to issuance of any final

rule.

ADDRESSES: Interested persons are invited to submit written comments

concerning this rule. Comments must be sent in triplicate to the Docket

Clerk, Fruit and Vegetable Division, AMS, USDA, room 2525-S, P.O. Box

96456, Washington, DC 20090-6456, FAX Number (202) 720-5698. 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.

FOR FURTHER INFORMATION CONTACT: Aleck Jonas, Marketing Specialist,

Southeast Marketing Field Office, Fruit and Vegetable Division, AMS,

USDA, P.O. Box 2276, Winter Haven, Florida 33883-2276; telephone: 813-

299-4770; or Caroline C. Thorpe, Marketing Specialist, Marketing Order

Administration Branch, F&V, AMS, USDA, room 2522-S, P.O. Box 96456,

Washington, DC 20090-6456; telephone: (202) 720-8139.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order

No. 915 (7 CFR Part 915), regulating the handling of avocados grown in

South Florida, hereinafter referred to as the order. The 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 rule has been reviewed under Executive Order 12778, Civil

Justice Reform. This rule is not intended to have retroactive effect.

This interim final 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 a 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 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 approximately 65 handlers of avocados who are subject to

regulation under the marketing order and approximately 95 producers of

avocados in the regulated area. 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 are defined as those whose annual receipts are less than

$500,000. The majority of handlers and producers of South Florida

avocados may be classified as small entities.

This rule invites comments on a change in grade requirements for

Florida avocados. This rule revises the order's rules and regulations

by removing all grade requirements for fresh avocados shipped to

destinations within the production area in Florida packed in containers

other than those authorized under Sec. 915.305. The committee met July

12, 1995, and unanimously recommended this action.

Sections 915.50 and 915.52 provide the authority for the committee

to recommend various regulations and modifications, suspension, or

termination of regulations to the Secretary. Section 915.306 of the

regulations specifies grade, pack, and container marking regulations

for fresh shipments of avocados grown in Florida. Currently

Sec. 915.306 of the order specifies that all fresh Florida avocados

must grade at least U.S. No. 2, when shipped in any container.

This rule revises Sec. 915.306 by removing all grade requirements

for fresh avocados shipped to destinations within the Florida

production area packed in containers other than those authorized under

Sec. 915.305. Section 915.306 was amended through a proposed rule

published at 56 FR 4953 on February 7, 1991, and finalized at 56 FR

36079 on July 31, 1991. That amendment established a minimum grade

requirement of U.S. No. 2 and container marking and sealing

requirements for Florida avocados handled to points within the

production

[[Page 42770]]

area (South Florida). This rule was established prior to Hurricane

Andrew when avocados were plentiful. Shipments of poorer quality

avocados to the markets within the production area depressed prices for

better quality avocados and resulted in lower overall returns to

producers. Plentiful supplies of avocados had allowed for higher

quality avocados to be offered at a relatively lower cost, encouraging

consumption by presenting a higher quality product.

However, Hurricane Andrew, in August of 1992, reduced production

acreage from approximately 9,000 acres to less than 6,000 acres with

many non-producing trees in the remaining acreage. Production in the

1991-92 season was 1,110,105 bushels. In the 1992-93 season, production

fell to 283,666 bushels and in the 1993-94 season it was at 174,712

bushels. In response to this reduced production the committee requested

and was granted a temporary suspension of grade requirements for fresh

avocados shipped in certain containers to destinations within the

production area in Florida. The relaxation for the 1993-94 season was

published as a final rule at 58 FR 34684, on June 29, 1993, and for the

1994-95 season by a final rule published at 59 FR 33417 on June 29,

1994. These temporary relaxations were requested and granted under the

assumption that production would return to pre-Hurricane Andrew levels.

Although the 1994-95 season recovered to 778,951 bushels, it is

still well below the levels reached prior to the hurricane. Also,

changing economic and environmental priorities of the South Florida

area are capping the growth on Florida avocado production. Future

production is expected to remain flat at approximately 700,000 bushels

annually, or to increase only slightly. The committee considers

production levels set prior to Hurricane Andrew as unattainable.

The temporary grade relaxations of the last two seasons were

successful in making additional supplies of fruit available to meet

consumer needs consistent with crop and market conditions. The

relaxations demonstrated that there is a market for lower quality

avocados in the production area. Also, better quality avocados did not

suffer depressed prices due to the availability of the lower quality

fruit.

The container and marking requirements clearly identify graded

avocados from non-graded avocados. Those avocados sold in the

production area which are not subject to grade cannot be packed in

regulated containers. This allows customers to readily identify graded

versus those not meeting grade.

This relaxation will provide Florida avocado growers and handlers

with an opportunity to sell, in the production area, fresh avocados

which would otherwise be culled during the packing process, thus making

additional avocados available to consumers. This rule is expected to

facilitate the movement of fresh market avocados sold within the

production area.

This relaxation will only apply to Florida avocados shipped to

destinations within the production area. Thus, the U.S. No. 2 grade

requirement will continue to apply unchanged to avocados shipped to

destinations outside the production area, as well as to all avocados

shipped to any destination in those containers whose size and type are

specified in Sec. 915.305. Also unchanged by this action are current

maturity, container, pack and inspection requirements for all fresh

Florida avocado shipments under the avocado marketing order.

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 relax the grade requirements for certain avocados grown

in Florida. The Department's view is that this action 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 crop and market conditions.

Based on these considerations, 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 material presented, including

the Committee's recommendation, and other available information, it is

found that this interim final rule, as hereinafter set forth, 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 action relaxes grade requirements

currently in effect for avocados grown in Florida; (2) Florida avocado

handlers are aware of this action which was unanimously recommended by

the committee at a public meeting, and they will need no additional

time to comply with the relaxed requirements; (3) since Florida avocado

shipments began on May 29, 1995, this rule needs to be in effect as

soon as possible to cover as much of the crop as possible; and (4) this

rule provides a 30-day comment period and any comments 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:

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:

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

regulation.

(a) * * *

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

may be handled 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: August 11, 1995.

Terry C. Long,

Acting Deputy Director, Fruit and Vegetable Division.

[FR Doc. 95-20352 Filed 8-16-95; 8:45 am]

BILLING CODE 3410-02-P