[Federal Register Volume 60, Number 218 (Monday, November 13, 1995)]
[Rules and Regulations]
[Pages 56935-56936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27813]



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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