[Federal Register Volume 65, Number 56 (Wednesday, March 22, 2000)]
[Rules and Regulations]
[Pages 15203-15205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-7085]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 915

[Docket No. FV00-915-1 FIR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (Department) is adopting, as a 
final rule, with minor editorial changes, the provisions of an interim 
final rule changing the container and pack requirements prescribed 
under the Florida avocado marketing order (order). The marketing order 
regulates the handling of avocados grown in South Florida and is 
administered locally by the Avocado Administrative Committee 
(Committee). This rule continues in effect the removal of 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.

EFFECTIVE DATE: April 21, 2000.

FOR FURTHER INFORMATION CONTACT: Doris Jamieson, Marketing Specialist, 
Southeast Marketing Field Office, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, 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: [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 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

[[Page 15204]]

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. 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 continues in effect the removal of the requirement that 
avocados packed in 33-pound containers must weigh at least 16 ounces. 
This change provides 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.
    Before the interim final rule became effective, the requirements of 
section 915.305(a)(1) specified that avocados packed in 33-pound 
containers must weigh at least 16 ounces. Avocados weighing less than 
16 ounces were to 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 gives 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 continues the 
removal of 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 allows handlers to use the smaller avocados to create 
a tighter pack with less open space inside the containers. The tighter 
pack restricts movement of the avocados during shipment which prevents 
damage to the fruit. This improves the quality of the fruit reaching 
the consumer, saves handling costs, and provides 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 final 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 121.201) 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.
    The average price for fresh avocados during the 1998-99 season was 
$17.90 per 55-pound bushel box equivalent for all domestic shipments 
and the total shipments were 890,859 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 continues to change section 915.305(a)(1) of the rules 
and regulations concerning the pack and container requirements for 
avocados. This rule continues to remove 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 continue to 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 is particularly beneficial to small 
handlers since a single container can be used to ship avocados to 
retail customers. This reduces 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 packed in

[[Page 15205]]

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 and, 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 will continue to give handlers the 
flexibility to pack both large and small avocados in one container. 
Florida avocado handlers would like to continue 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 continues to remove 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 allows handlers to use the smaller avocados to create 
a tighter pack with less open space inside the containers. The tighter 
pack restricts movement of the avocados during shipment which prevents 
damage to the fruit. This continues to save handling costs and provides 
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 sector agencies. 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 were invited to submit information on the 
regulatory and informational impacts of this action on small business.
    An interim final rule concerning this action was published in the 
Federal Register on December 13, 1999. Copies of the rule were mailed 
by the Committee's staff to all Committee members and avocado handlers. 
In addition, the rule was made available through the Internet by the 
Office of the Federal Register. That rule provided for a 60-day comment 
period which ended February 11, 2000. No comments were received.
    Changes to the interim final rule have been made to correct some 
typographical errors. Editorial changes have also been made to make the 
language easier to understand.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at the 
following web site: 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 
finalizing the interim final rule, with changes, as published in the 
Federal Register (64 FR 69380, December 13, 1999) will tend to 
effectuate the declared policy of the Act.

List of Subjects 7 CFR Part 915

    Avocados, Marketing agreements, Reporting and recordkeeping 
requirements.


    Accordingly, the interim final rule amending 7 CFR part 915 which 
was published at 64 FR 69380 on December 13, 1999, is adopted as a 
final rule with the following changes:

PART 915--AVOCADOS GROWN IN SOUTH FLORIDA

    1. The authority citation for 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 than 33 pounds net weight of 
avocados, except that for avocados of unnamed varieties, which are 
avocados that have not been given varietal names, and for Booth 1, 
Fuchs, and Trapp varieties, such weight shall be not less than 31 
pounds. Not more than 10 percent, by count, of the individual 
containers in any lot may fail to meet the applicable specified weight. 
No container in any lot may contain a net weight of avocados exceeding 
2 pounds less than the specified net weight; or
* * * * *

    Dated: March 16, 2000.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 00-7085 Filed 3-21-00; 8:45 am]
BILLING CODE 3410-02-P