Avocados Grown in South Florida; Relaxation of Container and Pack Requirements

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 915

[Docket No. FV00-915-1 IFR]

Avocados Grown in South Florida; Relaxation of Container and Pack

Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule changes the container and pack requirements

currently prescribed under the Florida avocado marketing order. The

marketing order regulates the handling of avocados grown in South

Florida and is administered locally by the Avocado Administrative

Committee (Committee). Currently, avocados packed in 33-pound

containers must weigh at least 16 ounces. Avocados weighing less than

16 ounces must be packed in smaller containers. This rule removes the

requirement that avocados packed in 33-pound containers must weigh at

least 16 ounces. This change will provide greater flexibility in

avocado packing operations.

DATES: Effective December 14, 1999; comments received by February 11,

2000 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 to the Docket Clerk, Fruit

and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456,

Washington, DC 20090-6456; Fax: (202) 720-5698; or E-mail:

[email protected]. 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.

[[Page 69381]]

FOR FURTHER INFORMATION CONTACT: Doris Jamieson, Marketing Specialist,

Southeast Marketing Field Office, Marketing Order Administration

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

telephone: (863) 299-4770, Fax: (863) 299-5169; or Anne Dec, Team

Leader, Marketing Order Administration Branch, Fruit and Vegetable

Programs, AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-

6456; telephone: (202) 720-2491, Fax: (202) 720-5698. Small businesses

may request information on complying with this regulation by contacting

Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable

Programs, AMS, USDA, P.O. Box 96456, room 2525-S, Washington, DC 20090-

6456; telephone (202) 720-2491, Fax: (202) 720-5698, or E-mail:

Jay.G[email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement No. 121 and Marketing Order No. 915, both as amended (7 CFR

part 915), regulating the handling of avocados grown in South Florida,

hereinafter referred to as the ``order.'' The marketing agreement and

order 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 12988, 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 the date of the entry of the ruling.

Under the terms of the order, fresh market shipments of Florida

avocados are required to be inspected and are subject to grade, size,

maturity, and pack and container requirements. Current pack and

container requirements outline the designated net weight of the

containers used to pack avocados and the minimum weight of the avocados

packed in the containers.

This rule removes the requirement that avocados packed in 33-pound

containers must weigh at least 16 ounces. This change will provide

greater flexibility in avocado packing operations. The Committee met on

September 8, 1999, and unanimously recommended this change.

Section 915.51 of the order provides authority to issue regulations

establishing specific pack and container requirements. Section 915.52

further authorizes the Committee to make recommendations to the

Secretary to modify, suspend, or terminate regulations, including pack

and container requirements. The pack and container requirements are

specified under sections 915.305 and 915.306. These sections specify,

in part, container weight and other applicable requirements, including

the minimum weight of the avocados packed in the containers. Current

regulations authorize the use of 33-pound, 31-pound, 24-pound, and 12-

pound containers, and 8.5-pound containers for export shipments only.

The requirements of Section 915.305(a)(1) currently specify that

avocados packed in 33-pound containers must weigh at least 16 ounces.

Avocados weighing less than 16 ounces must be packed in smaller

containers. The Committee has determined that retailers prefer

shipments of avocados packed in larger containers. The size of the

fruit is not a concern to retailers. By allowing smaller fruit to be

packed in the larger containers, the retailer is able to offer avocados

to the consumer in a variety of sizes. The larger containers are ideal

for displaying the fruit. Upon receipt of the avocado shipment, the

retailer can remove the lid from the larger container. Without removing

the fruit from the box, fruit can be offered for consumers to purchase.

This is time saving for retailers.

Removing the requirement that avocados packed in 33-pound

containers weigh at least 16 ounces would give handlers the flexibility

to pack both large and small avocados in one container. California

avocado handlers have already adopted the practice of shipping smaller

avocados in larger containers with a great deal of success. Florida

avocado handlers would like to remain competitive with other avocado

growing areas. In order to meet the needs of the customer and remain

competitive with other avocado handlers, this rule removes the

requirement that avocados packed in 33-pound containers must weigh at

least 16 ounces. The avocados must meet all other requirements of the

marketing order, including maturity requirements.

In addition, the flexibility to pack both large and small avocados

in one container would allow handlers to use the smaller avocados to

create a tighter pack with less open space inside the containers. The

tighter pack would restrict movement of the avocados during shipment

which would prevent damage to the fruit. This would improve the quality

of the fruit reaching the consumer, save handling costs, and provide

greater returns to the grower.

Section 8e of the Act provides that when certain domestically

produced commodities, including avocados, are regulated under a Federal

marketing order, imports of that commodity must meet the same or

comparable grade, size, quality, and maturity requirements. This rule

changes the pack and container requirements currently in effect which

do not apply to imports. Therefore, no change is necessary in the

avocado import regulations.

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. Accordingly, AMS has

prepared this initial regulatory flexibility analysis.

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 the 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 141 avocado producers in the production

area and approximately 49 avocado handlers subject to regulation under

the marketing order. Small agricultural service firms have been defined

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

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

producers are defined as those having annual receipts of less than

$500,000.

[[Page 69382]]

The average price for fresh avocados during the 1997-98 season was

$14.60 per 55 pound bushel box equivalent for all domestic shipments

and the total shipments were 937,568 bushels. Many avocado handlers

ship other tropical fruit and vegetable products which are not included

in the Committee's data but would contribute further to handler

receipts. Using these prices, about 90 percent of avocado handlers

could be considered small businesses under the SBA definition. The

majority of Florida avocado producers and handlers may be classified as

small entities.

Under sections 915.51 and 915.52 of the marketing order for

avocados grown in South Florida, the Committee has the authority to

recommend to the Secretary changes to the pack and container

requirements for avocados handled under the order. Current pack and

container requirements outline the designated net weight of the

containers used to pack avocados and the minimum weight of the avocados

packed in the containers. Current regulations authorize the use of 33-

pound, 31-pound, 24-pound, and 12-pound containers, and 8.5-pound

containers for export shipments only.

This rule makes changes to section 915.305(a)(1) of the rules and

regulations concerning the pack and container requirements for

avocados. This rule removes the requirement that avocados packed in 33-

pound containers must weigh at least 16 ounces. The avocados must meet

all other requirements, including maturity requirements. This change

will provide greater flexibility in avocado packing operations.

This rule will have a positive impact on affected entities. The

change was recommended to provide additional flexibility in packing

avocados. None of the changes are expected to increase costs associated

with the pack and container requirements. This rule may, in fact,

reduce costs associated with the pack and container requirements.

The Committee believes this change will benefit both large and

small packing operations. It would be particularly beneficial to small

handlers since a single container can be used to ship avocados to

retail customers. This would reduce the need to maintain a large

inventory of smaller containers. Further, the Committee has determined

that retailers prefer the larger containers; the size of the fruit in

those containers is of lesser concern to the retailer. By allowing

smaller fruit to be packing in the larger containers, the retailer is

able to offer avocados to the consumer in a variety of sizes. The

larger containers are ideal for displaying the fruit. Upon receipt of

the avocado shipment, the retailer can remove the lid from the larger

container. Without removing the fruit from the box, fruit can be

offered for consumers to purchase. This is time saving for retailers.

Removing the requirement that avocados packed in 33-pound

containers weigh at least 16 ounces would give handlers the flexibility

to pack both large and small avocados in one container. Florida avocado

handlers would like to remain competitive with other avocado growing

areas. For example, California avocado handlers have already adopted

the practice of shipping smaller avocados in larger containers with a

great deal of success. In order to meet the needs of the customer and

remain competitive with other avocado handlers, this rule removes the

requirement that avocados packed in 33-pound containers must weigh at

least 16 ounces. The avocados must meet all other requirements of the

marketing order, including maturity requirement.

In addition, the flexibility to pack both large and small avocados

in one container would allow handlers to use the smaller avocados to

create a tighter pack with less open space inside the containers. The

tighter pack would restrict movement of the avocados during shipment

which would prevent damage to the fruit. This would save handling costs

and provide greater returns to the grower.

Other alternatives to the action were considered by the Committee

prior to making the recommendation. One alternative discussed by the

Committee was to continue to require that avocados packed in 33-pound

containers weigh at least 16 ounces. The Committee believed that this

alternative provided little benefit and would still limit flexibility.

This rule will not impose any additional reporting or recordkeeping

requirements on either small or large avocado handlers. As with all

Federal marketing order programs, reports and forms are periodically

reviewed to reduce information requirements and duplication by industry

and public sectors. In addition, the Department has not identified any

relevant Federal rules that duplicate, overlap or conflict with this

rule.

Further, the Committee's meeting was widely publicized throughout

the avocado industry and all interested persons were invited to attend

the meeting and participate in Committee deliberations. Like all

Committee meetings, the September 8, 1999, meeting was a public meeting

and all entities, both large and small, were able to express their

views on this issue. The Committee itself is composed of 10 members, of

which 5 are growers, 4 are handlers, and one is a public member.

Finally, interested persons are invited to submit information on the

regulatory and informational impacts of this action on small

businesses.

A small business guide on complying with fruit, vegetable, and

speciality crop marketing agreements and orders may be viewed at the

following website: http://www.ams.usda.gov/fv/moab.html. Any questions

about the compliance guide should be sent to Jay Guerber at the

previously mentioned address in the FOR FURTHER INFORMATION CONTACT

section.

After consideration of all relevant material presented, including

the Committee's recommendation, and other information, it is found that

this interim final rule, as hereinafter set forth, will tend to

effectuate the declared policy of the Act.

This rule invites comments on a change to the pack and container

requirements currently prescribed under the Florida avocado marketing

order. Any comments timely received will be considered prior to

finalization of this rule.

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 avocados; (2) the

Committee unanimously recommended this change at a public meeting and

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

relaxes pack requirements; (4) Florida avocado handlers are aware of

this rule and need no additional time to comply with the relaxed

requirements; and (5) this rule provides a 60-day comment period and

any comments timely 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:

[[Page 69383]]

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. In Sec. 915.305, paragraph (a)(1) is revised to read as follows:

Sec. 915.305 Florida Avocado Container Regulation 5.

(a) * * *

(1) Containers shall not contain less that 33-pounds net weight of

avocados, except that for avocados of unnamed varieties, which are

avocados than have not been given varietal names, and for Booth 1,

Fuchs, and Trapp varieties, such weight shall be not less than 31

pounds. With respect to each lot of such containers, not to exceed 10

percent, by count, of the individual containers in the lot may fail to

meet the applicable specified weight, but no container in such lot may

contain a net weight of avocados exceeding 2 pounds less than the

specified net weight; or

* * * * *

Dated: December 8, 1999.

James R. Frazier,

Acting Deputy Administrator, Fruit and Vegetable Programs.

[FR Doc. 99-32230 Filed 12-10-99; 8:45 am]

BILLING CODE 3410-02-P