[Federal Register Volume 62, Number 107 (Wednesday, June 4, 1997)]
[Rules and Regulations]
[Pages 30429-30432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14650]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 62, No. 107 / Wednesday, June 4, 1997 / Rules
and Regulations
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 911 and 944
[Docket No. FV-97-911-1A IFR]
Limes Grown in Florida and Imported Limes; Change in Regulatory
Period
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This interim final rule changes the regulatory period
currently prescribed under the lime marketing order and the lime import
regulations. The marketing order regulates the handling of limes grown
in Florida and is administered locally by the Florida Lime
Administrative Committee (committee). This rule revokes the temporary
suspension of grade and size requirements and maintains continuous,
year round, implementation of regulations. This rule will maintain
quality standards ensuring continued customer satisfaction with fresh
limes. The change in import requirements is necessary under section 8e
of the Agricultural Marketing Agreement Act of 1937.
EFFECTIVE DATE: This interim final rule becomes effective June 9, 1997;
comments received by July 7, 1997, 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, Southeast Marketing Field
Office, Marketing Order Administration Branch, F&V, AMS, USDA, P.O. Box
2276, Winter Haven, Florida 33883; telephone: (941) 299-4770, Fax:
(941) 299-5169; or Anne Dec, Marketing Order Administration Branch,
F&V, AMS, USDA, room 2522-S, P.O. Box 96456, Washington, DC 20090-6456;
telephone: (202) 720-2491, Fax: (202) 720-5698. Small businesses may
request information on compliance with this regulation by contacting:
Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable
Division, AMS, USDA, P.O. Box 96456, Room 2525-S, Washington, DC 20090-
6456; telephone: (202) 720-2491, Fax: (202) 720-5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 126 and Marketing Order No. 911 (7 CFR part 911), both as
amended, regulating the handling of limes grown in 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.''
This interim final rule is also issued under section 8e of the Act,
which provides that whenever certain specified commodities, including
limes, are regulated under a Federal marketing order, imports of these
commodities into the United States are prohibited unless they meet the
same or comparable grade, size, quality, or maturity requirements as
those in effect for the domestically produced commodities.
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 date of the entry of the ruling.
There are no administrative procedures which must be exhausted
prior to any judicial challenge to the provisions of import regulations
issued under section 8e of the Act.
This interim final rule revokes the temporary suspension of
regulations currently prescribed under the lime marketing order and the
lime import regulations. The temporary suspension was published in the
Federal Register on August 21, 1996 (61 FR 43141) and suspended both
the domestic and import regulations for the period June 1, 1997,
through December 31, 1997. This rule keeps the regulations in effect
beginning with its effective date and through the remainder of 1997.
Section 911.48 of the lime marketing order provides authority to
issue regulations establishing specific pack, container, grade and size
requirements. These requirements are specified under Sections 911.311,
911.329 and 911.344. Prior to this rule, the requirements specified
under Sections 911.311, 911.329 and 911.344 were temporarily suspended
from June 1, 1997, through December 31, 1997.
Beginning with its effective date, this rule revokes the suspension
of regulations. The committee met on February 5, 1997, and, on a
unanimous vote, recommended terminating the scheduled suspension.
The suspension of regulations was first published, as a proposed
rule, in the May 8, 1996, Federal Register (60 FR 20754). A notice,
published in the June 26, 1996, Federal Register (61 FR 33047),
extended the comment period of the proposed rule from June 7, 1996, to
July 8, 1996. The final rule was
[[Page 30430]]
published in the August 21, 1996, Federal Register (61 FR 43141).
In its deliberations, the committee noted that this issue has been
argued and debated by the committee since its original proposal to
suspend regulations. The committee was divided, passing the measure on
a split vote of six in favor and four opposed, January 10, 1996.
Comments from growers and grower/handlers concerning the changes in the
proposed rule expressed concern that the loss of regulation and the
associated quality standards would result in poor quality limes on the
market and consumer dissatisfaction.
The committee, upon further discussion, shared these concerns. In
fact, the committee revisited the issue on April 17, 1996. After
deliberations on the possibilities of what could occur without
regulations, the committee recommended, on a vote of seven in support,
none against and one abstention, that the original proposal be modified
from a permanent change to a one year experiment. This action was taken
to provide the committee with an opportunity to study the effects the
suspension of the handling regulations would have on the industry and
market versus the cost savings derived from it.
The change was originally to have begun on June 1, 1996. However,
an extended comment period, and the requested modifications to the
proposal itself, resulted in the start date being delayed to June 1,
1997. This one year delay in implementation has allowed the committee
time to reevaluate the need to suspend regulations.
The original rule suspending regulations was issued in response to
changes in the market, rising costs of production and the cost of
replanting in the aftermath of Hurricane Andrew. The committee
commented that when the change was originally recommended on January
10, 1996, the industry's position and future prospects appeared quite
different from today. At that time, many of the lime trees were less
than 3 years old and too young to bear fruit. These lime trees had been
replanted after Hurricane Andrew. Money was being expended on
replanting and no revenue was coming in from these young non-bearing
trees. Further, last year citrus leaf minor was a new threat to the
lime trees and at that time predictions called for expensive control
methods that may or may not have worked. Throughout the industry, the
concern to save money was great, and the suspension of regulations was
thought to be a money saving avenue. By reducing the regulatory period
and its associated costs, the committee hoped to provide a decrease in
industry expenses. The committee hoped the reduced costs of no
regulations, no inspection fees and reduced committee expenses,
resulting from fewer meetings and less compliance monitoring, would
benefit the industry and foster growth.
The industry's present situation is much improved over what it was
when the changes to the regulation were proposed and made final. The
young lime trees are now 3 and 4 years old and bearing fruit, resulting
in a larger crop and more revenue. Citrus leaf minor is far less a
threat than originally presumed, due, in part, to native insect
predation against it. This has resulted in less funds being required to
combat this pest.
Also, the lime committee operated off reserves last season with a
zero assessment, and it has budgeted to work off reserves with a zero
assessment for the current season. This will result in industry savings
of approximately $75,000 each season. The committee believes that all
of these factors have eliminated the critical need for the further cost
savings which prompted the original request for the change.
Reviewing the past year, committee members stated that fresh limes
sold were generally plentiful and of good quality. However, they also
noted that even with quality regulations in effect, some poor quality
limes do reach the retail market. The committee is now concerned that
removing quality regulations, even for an experimental period, may
result in even larger quantities of poor quality fruit reaching the
retail market, resulting in consumer dissatisfaction and product
substitution. Committee members commented that past experience has
indicated the difficulty of enticing customers to return to a product
once substitution has taken place.
Committee members maintain that although some poor quality limes
still appear on the market, the regulations have done much to reduce
the number and help provide uniform quality. This, in turn, has ensured
customer satisfaction with fresh limes which is a primary concern to
the industry. Thus, the committee believes the benefits of the quality
regulations outweigh the now diminished need to take action that would
result in cost savings.
Section 8e of the Act provides that when certain domestically
produced commodities, including limes, are regulated under a Federal
marketing order, imports of that commodity must meet the same or
comparable grade, size, quality, and maturity requirements. Since this
rule will change the regulatory period under the domestic handling
regulations, a corresponding change to the import regulations must also
be made.
Minimum grade and size requirements for limes imported into the
United States are currently in effect under Section 944.209 [7 CFR
944.209]. This interim final rule revokes the temporary suspension
period for both the domestic and import regulations. Beginning with its
effective date, this rule leaves the lime import regulations in effect
throughout the remainder of 1997. This reflects the same changes being
made under the order for Florida limes. The minimum size and grade
requirements for Florida limes are specified in section 911.344 under
marketing order 911. The minimum size and grade requirements are not
specifically stated in the lime import regulation. Therefore, no change
is needed in the text of Section 944.209.
Mexico is the largest exporter of limes to the United States.
During the 1995-96 season, Mexico exported 5,591,451 bushels to the
United States, while all other import sources shipped a combined total
of 167,832 bushels during the same time period. From June 1, 1996,
through December 31, 1996, Mexico exported 4,151,867 bushels of limes
to the United States, approximately 67 percent of the total, 6,190,321
bushels, shipped during the 1996-97 season that ended in March. Mexico
exported 559,525 bushels of limes to the United States for the month of
June 1996, approximately 9 percent of the total, 6,190,321 bushels,
shipped in the 1996-97 season.
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 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 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. Import regulations issued under
the Act are based on those established under Federal marketing orders.
There are approximately 10 handlers subject to regulation under the
order and about 50 producers of Florida limes. There are approximately
35 importers of limes. Small agricultural service firms, which include
lime handlers and
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importers, have been defined by the Small Business Administration (13
CFR 121.601) as those whose annual receipts are less than $5,000,000,
and small agricultural producers are defined as those whose annual
receipts are less than $500,000.
Based on the Florida Agricultural Statistic Service and committee
data for the 1995-96 season, the average annual f.o.b. price for fresh
Florida limes during the 1995-96 season was $16.50 per 55 pound bushel
box equivalent for all domestic shipments, and the total shipments for
the 1995-96 season were 371,413. Approximately 20 percent of all
handlers handled 86 percent of Florida lime shipments. In addition,
many of these handlers ship other tropical fruit and vegetable products
which are not included in committee data but would contribute further
to handler receipts. Using the average f.o.b. price, about 80 percent
of lime handlers could be considered small businesses under SBA's
definition and about 20 percent of the handlers could be considered
large businesses. The majority of lime handlers, producers, and
importers may be classified as small entities.
Section 911.48 of the lime marketing order provides authority to
issue regulations establishing specific grade and size requirements,
and section 8e of the Act requires that when such regulations are in
effect for limes, the same or comparable requirements be applied to
imports.
This interim final rule changes the regulatory period currently
prescribed under the lime marketing order and the lime import
regulations. Beginning on its effective date, this interim final rule
revises both the domestic and import regulations by removing a
temporary suspension of regulations and thereby maintaining handling
regulations for the remainder of 1997. The regulations are specified in
sections 911.311, 911.329 and 911.344 and establish pack, container,
grade and size requirements. The committee recommended this change to
maintain the quality of limes in the marketplace. Additionally, the
need to suspend regulations to reduce handling costs has diminished.
This interim final rule will have a positive impact on growers,
handlers and importers, as fruit and vegetable prices are quite
responsive to quality differentials. This action is intended to
maintain quality. At the meeting, the committee discussed the impact of
this change on handlers and producers in terms of cost. Any costs to
handlers and importers caused by this action will be the loss of
projected savings from the suspension. The majority of possible cost
savings would have resulted from eliminating inspection fees during the
suspension.
The scheduled suspension period would have only been effective for
one year, resulting in limited cost savings. The industry is already
used to budgeting for inspection and associated regulation costs. The
Federal/State Inspection Service assesses fees to provide their
service. The cost for inspection is equitable. Small and large handlers
are charged the same base rate, with the overall cost determined by a
handler's volume.
During this season, and the season prior, the committee voted to
operate on reserves rather than assessing the industry. This will
result in an industry cost savings of approximately $75,000, the
approximate cost of operating the committee for a year, during each of
these two years. This will do much to offset any costs that result from
the revocation of the suspension period. Assessments, when they are
applied, are based on the amount of fruit handled, therefore, the costs
are borne proportionally by small and large operations. Consequently,
the benefits of no assessments are received equally. Importers do not
have to pay assessments to maintain the marketing order.
Since the recommendation to establish the suspension period was
made, industry needs for cost savings have diminished. The focus has
shifted to the need for stable markets and returns. Customers are
willing to pay for quality, and complementary studies show that
customers return purchase rate declines considerably if they are
disappointed by the quality of the original purchase. The current cost
of inspection is $.14 per 55 pound equivalent. However, a drop in
quality could result in a price reduction measured in dollars rather
than cents on the same equivalent. Thus, the benefits of a quality
standard outweigh the minimal cost savings that may have resulted from
the suspension. Maintaining quality to the consumer will result in a
strong and stable market, benefiting growers, handlers and importers.
Shipments of Florida limes for the 1994-95 season were 289,213
bushels, for the 1995-96 season they were 371,413 bushels, and for the
current 1996-97 season shipments were 398,279 bushels. A steady
increase in production is indicated. Mexican exports have also
increased from 2,626,707 bushels in the 1990-91 season to 6,190,321
bushels in the 1996-97 season.
Committee members have considered alternatives to rescinding the
suspension period. The committee considered a continuous period of no
regulations for the months of June through December. They reconsidered
the merits of such an action, determining that removing regulations to
save money may have costs, such as lost market share, which would
overshadow any potential savings. The committee determined that in the
time that had passed since the original consideration of a suspension
period, the need for cost savings measures had passed, and that the
benefits of the quality standards outweighed the cost savings that may
have been realized. The committee was unanimous in its belief that the
need for the suspension has passed. Accordingly, the committee
unanimously recommended this change as outlined.
This action will not impose any additional reporting or
recordkeeping requirements on either small or large lime handlers. As
with all Federal marketing order programs, reports and forms are
periodically reviewed to reduce information requirements and
duplication by industry and public sector agencies.
The Department has not identified any relevant Federal rules that
duplicate, overlap or conflict with this proposed rule. However, limes
must meet the requirements as specified in the U.S. Standards for
Grades of Persian Limes (7 CFR 51.1000 through 51.1016) issued under
the Agricultural Marketing Act of 1946 (7 U.S.C. 1621 through 1627).
The committee's meeting was widely publicized throughout the lime
industry and all interested persons were invited to attend the meeting
and participate in committee deliberations on all issues. Like all
committee meetings, the February 5, 1997, meeting was a public meeting
and all entities, both large and small, were able to express views on
these issues. The committee itself is composed of ten members, of which
four are handlers, five are producers and one is a public member. The
majority of committee members represent small entities.
A proposed rule concerning this action was issued by the Department
on April 25, 1997, and published in the Federal Register on Tuesday,
April 29, 1997 (62 FR 23185). That rule also proposed an increase in
the minimum size for the month of June. Copies of the rule were mailed
or sent via facsimile to all Committee members and lime handlers and
producers. The rule was also made available through the Internet by the
Office of the Federal Register.
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A 30-day comment period, ending May 29, 1997, was provided to allow
interested persons to respond to the proposal. Two comments were
received. The commenters, one representing a Mexican exporter and the
other a Mexican exporters' and packers' union, requested that the
comment period for the rule be extended to allow for additional time,
30 days and 90 days, respectively, to analyze the proposal. One
commenter concluded the proposal would have a negative effect on its
business and the other noted that the proposal would have a direct
effect on its business.
The Department has reviewed the requests, and has determined that
an extended period with no minimum quality or size standards in place
would be detrimental to the industry. As previously discussed, the
suspension was originally recommended at a time when cost savings were
of utmost concern to the Florida lime industry. Now, however, the
benefits of maintaining quality and ensuring customer satisfaction and
repeat purchases outweigh the diminished need to take action that would
result in cost savings.
Therefore, the Department is instituting the revocation of the
suspension through this interim final rule which will allow 30
additional days to comment.
However, with regard to increasing the minimum size requirement,
the Department is issuing in a separate Federal Register publication an
extension of the proposed comment period concerning implementing the
increase in minimum size from 1 \7/8\ to 2 inches in diameter for the
month of June. Any additional comments received during the extended
comment period would be considered before the rule is finalized.
This rule also modifies language in the regulations to return the
minimum size requirement of 1 \7/8\ inches from June 1 through December
31. The 1 \7/8\ inch minimum size requirement was inadvertently removed
when the temporary suspension was issued on August 14, 1996 (61 FR
43141).
After consideration of all relevant matter presented, including the
information and recommendation submitted by the committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
In accordance with section 8e of the Act, the United States Trade
Representative has concurred with the issuance of this rule, as it
pertains to limes imported into the United States.
Pursuant to 5 U.S.C. 553, it is also found and determined that it
is impracticable, unnecessary and contrary to the public interest to
give further 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 (5 U.S.C. 553)
because handlers are already shipping limes from the 1997-98 crop. The
industry also needs the regulation in effect as close to June 1 as
possible, to minimize any negative effects caused by a period of
deregulation. Further, handlers are aware of this rule, which was
recommended at a public meeting. A 30-day comment period is provided
for in this interim final rule. A proposed rule was published
previously with opportunity for comments.
List of Subjects
7 CFR Part 911
Limes, Marketing agreements, Reporting and recordkeeping
requirements.
7 CFR Part 944
Avocados, Food grades and standards, Grapefruit, Grapes, Imports,
Kiwifruit, Limes, Olives, Oranges.
For the reasons set forth in the preamble, 7 CFR parts 911 and 944
are amended as follows:
1. The authority citation for 7 CFR parts 911 and 944 continues to
read as follows:
Authority: 7 U.S.C. 601-674.
PART 911--LIMES GROWN IN FLORIDA
Secs. 911.311, 911.329 [Amended]
2. Temporary suspension of Secs. 911.311 and 911.329 is revoked
effective June 9, 1997.
Sec. 911.344 [Amended]
3. Temporary suspension of Sec. 911.344 is revoked effective June
9, 1997, and paragraph (a)(3) is amended by removing the words ``at
least 2 inches diameter'' and adding, in their place, the words ``at
least 2 inches in diameter from January 1 through May 31, and at least
1 \7/8\ inches in diameter from June 1 through December 31''.
PART 944--FRUITS, IMPORT REGULATIONS
Sec. 944.209 [Amended]
4. Temporary suspension of Sec. 944.209 is revoked effective June
9, 1997.
Dated: May 29, 1997.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 97-14650 Filed 6-2-97; 10:02 am]
BILLING CODE 3410-02-P