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

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 915

[Docket No. FV95-915-1FIR]

Avocados Grown in South Florida; Revision of Grade Requirements

for Certain Florida Avocados

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (Department) is adopting as a

final rule without change, the provisions of an interim final rule

which revised 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 enables Florida growers

and handlers to market a larger percentage of their crop in the

production area, in response to demand.

EFFECTIVE DATE: December 13, 1995.

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 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 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.

An interim final rule was issued on August 11, 1995, and published

in the Federal Register (60 FR 42770, August 17, 1995), with an

effective date of August 17, 1995. That rule provided a 30-day comment

period which ended September 18, 1995. No comments were received.

This rule finalizes an interim final rule which revised 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 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

[[Page 56936]]

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 continued relaxation provides 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 only applies 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 finalizing the interim final rule, without change, as

published in the Federal Register (60 FR 42769, August 17, 1995), 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 60 FR 42769 on August 17, 1995, is adopted as a final

rule without change.

Dated: November 3, 1995.

Sharon Bomer Lauritsen,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 95-27813 Filed 11-9-95; 8:45 am]

BILLING CODE 3410-02-P