Limes and Avocados Grown in Florida; Relaxation of Container Marking Requirements

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 911 and 915

[Docket No. FV96-911-4IFR]

Limes and Avocados Grown in Florida; Relaxation of Container

Marking Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule relaxes the container marking

requirements for limes and avocados packed under the Federal marketing

orders for limes and avocados grown in Florida. This relaxation reduces

the number of lime and avocado containers required to be marked with

the lot stamp number. This rule reduces handling costs and provides

more flexibility in lime and avocado packing operations.

DATES: Effective June 20, 1996; comments received by July 19, 1996 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 in triplicate to the Docket

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

96456, Washington, DC 20090-6456, Fax # (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, Marketing Order Administration

Branch, F&V, AMS, USDA, P.O. Box 2276, Winter Haven, Florida 33883;

telephone: (941) 299-4770; or Britthany Beadle, Marketing Specialist,

Marketing Order Administration Branch, F&V, AMS, USDA, room 2522-S,

P.O. Box 96456, Washington, DC 20090-6456: telephone: (202) 720-3923.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order

Nos. 911 and 915 (7 CFR parts 911 and 915), as amended, regulating the

handling of limes and avocados grown in Florida, hereinafter referred

to as the ``orders.'' These orders 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 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 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 date of the entry of the ruling.

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.

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 10 handlers of limes and 65 handlers of

avocados who are subject to regulation under the respective marketing

order and approximately 40 lime and 100 avocado producers in the

regulated areas. Small agricultural service firms are defined by the

Small Business Administration (13 CFR 121.601) as those having annual

[[Page 31005]]

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 these handlers and producers may be classified as small

entities.

Under the terms of the marketing orders, fresh market shipments of

Florida limes and avocados are required to be inspected and are subject

to grade, size, maturity, pack and container requirements. Current

requirements include specifications that all authorized containers of

limes and avocados shall be plainly marked with a Federal-State

Inspection lot stamp number corresponding to the lot inspection

conducted by an authorized inspector.

This rule changes the container marking requirements currently

issued under the orders. This rule relaxes the lot stamping

requirements on containers of limes and avocados that have been

palletized prior to block inspections. The Florida Lime and Avocado

Administrative Committees (committees), the agencies responsible for

local administration of the marketing orders, met on March 13, 1996,

and recommended this action by unanimous vote.

The marketing orders authorize under Sec. 911.48 and Sec. 915.51

the establishment of container marking requirements. Sections

911.311(b) and 915.306(a)(4)(5) of the rules and regulations outline

the lot stamp number container marking requirements for fresh limes and

avocados packed under the orders.

There are two basic types of inspection in the industry; in-line

and block. In-line inspection is performed during the packing process,

prior to palletization and storage. In block inspection, the inspection

occurs after the pallets have been packed, strapped, and placed in

storage. Large handling facilities tend to have inspectors on site when

they are packing. These facilities use in-line inspection which allows

the containers to be lot stamped prior to being palletized. Smaller

handling facilities do not run enough fruit to justify the continuous

presence of an inspector. Therefore, they call for a block inspection

after a lot is run, palletized and ready to ship. Requiring the

inspector to lot stamp each container necessitates tearing down all the

pallets. This results in significant cost and loss of time.

The committees recommended relaxing the number of containers

required to be marked with the lot stamp number to assist small

handlers. This relaxation revises the lot stamping requirements for

containers that have been palletized prior to inspection. Under this

change, all exterior, exposed boxes, on all four sides of a pallet,

will be lot stamped, rather than each box. The committees anticipate

that this recommended relaxation would avoid prohibitive costs to small

handlers.

Less than 25 percent of all lime and avocado shipments are shipped

by small packing houses using block inspection. Under this revised

procedure, most of the containers they pack would be lot stamp

numbered. The center tiers of randomly selected pallets are inspected

by the Federal-State Inspection Service for all marketing order

requirements. The committees' recommendation to relax the container

marking requirement would not lower the number of containers being

inspected.

Several other alternatives were suggested during the public

meeting. One alternative discussed by the committees was to require all

containers to continue to be lot stamp numbered. Maintaining the

requirement for lot stamp numbers to be placed on all containers would

not address the burden placed on small handlers. That burden includes

higher handler labor costs, slower handler operations, increased

handler restrapping costs, as well as increased inspection costs. It

was the consensus of the committees that the current requirement is

cost prohibitive as each block-inspected pallet needs to be manually

pulled apart to enable the lot stamp number to be placed on the center

tier containers.

Another alternative suggested was to eliminate the block-inspection

method and require all handlers to use the in-line inspection method.

During in-line inspection, containers would be stamped with the lot

stamp number prior to being stacked on the pallet. This would have a

serious financial impact on the industry, especially among small

handlers, due to a large increase in inspection costs. This suggestion

was unacceptable to the industry as it would be cost prohibitive and

could force small handlers out of business.

This rule relaxes the lot stamping requirements on containers of

limes and avocados that have been palletized prior to block inspection.

Smaller handling facilities are the primary users of block inspection

and will benefit from the cost savings of this relaxation. Therefore,

the AMS has determined that this action will not have a significant

economic impact on a substantial number of small entities.

Section 8(e) of the Act requires that whenever grade, size, quality

or maturity requirements are in effect for certain commodities under a

domestic marketing order, including limes and avocados, imports of that

commodity must meet the same or comparable requirements. This rule

changes the container marking requirements currently issued under the

orders. Therefore, no change is necessary in the lime and avocado

import regulations as a result of this action to relax the lot stamp

number requirement.

After consideration of all relevant material presented, including

the committees' 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) Handlers are currently shipping limes and avocados; (2)

the committees unanimously recommended this rule at public meetings and

all interested persons had an opportunity to provide input; (3) this

rule relaxes container marking requirements; (4) Florida lime and

avocado handlers are aware of this rule and need no additional time to

comply with the relaxed requirements; and (5) this rule provides a 30-

day comment period and any comments received will be considered prior

to finalization of this rule.

List of Subjects

7 CFR Part 911

Marketing agreements, Limes, Reporting and recordkeeping

requirements.

7 CFR Part 915

Marketing agreements, Avocados, Reporting and recordkeeping

requirements.

For the reasons set forth in the preamble, 7 CFR Parts 911 and 915

are amended as follows:

1. The authority citation for both 7 CFR parts 911 and 915

continues to read as follows:

Authority: 7 U.S.C. 601-674.

PART 911--LIMES GROWN IN FLORIDA

2. Section 911.311 is amended by revising paragraph (b) to read as

follows:

Sec. 911.311 Florida lime pack and container marking regulation.

* * * * *

(b) No handler shall handle any limes grown in the production area

in any

[[Page 31006]]

container specified in Sec. 911.329 unless such container is marked

with a Federal-State Inspection Service lot stamp number showing that

the limes have been inspected in accordance with regulations issued

under Sec. 911.48 of the marketing order: Provided, That when

inspection occurs after palletization, only all exposed or outside

containers of limes must be plainly marked with the lot stamp number

corresponding to the lot inspection conducted by an authorized

inspector.

* * * * *

PART 915--AVOCADOS GROWN IN SOUTH FLORIDA

3. In Sec. 915.306, paragraph (a)(4) is revised to read as follows:

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

regulation.

(a) * * *

(4) Such avocados are in containers marked with a Federal-State

Inspection Service lot stamp number, when handled in containers

authorized under Sec. 915.305: Provided, That when inspection occurs

after palletization, only all exposed or outside containers of avocados

must be plainly marked with the lot stamp number corresponding to the

lot inspection conducted by an authorized inspector.

* * * * *

Dated: June 13, 1996.

Sharon Bomer Lauritsen,

Acting Director, Fruit and Vegetable Division.

[FR Doc. 96-15627 Filed 6-18-96; 8:45 am]

BILLING CODE 3410-02-P