[Federal Register Volume 70, Number 23 (Friday, February 4, 2005)]
[Rules and Regulations]
[Pages 5915-5917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2154]



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 Rules and Regulations
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  Federal Register / Vol. 70, No. 23 / Friday, February 4, 2005 / Rules 
and Regulations  

[[Page 5915]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 905

[Docket No. FV04-905-3 FIR]


Oranges, Grapefruit, Tangerines, and Tangelos Grown in Florida; 
Limiting the Volume of Small Red Seedless Grapefruit

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule removes the weekly percentages established for the 
first 22 weeks of the 2004-05 season beginning September 20, 2004. The 
Citrus Administrative Committee voted to take this action following the 
crop losses the industry sustained from Hurricanes Charley, Frances, 
and Jeanne. It is expected that this action will provide more red 
seedless grapefruit for shipment to the fresh fruit market.

DATES: Effective February 5, 2005.

FOR FURTHER INFORMATION CONTACT: Doris Jamieson, Southeast Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA, 799 Overlook Drive, Suite A, Winter 
Haven, Florida 33884; Telephone: (863) 324-3375; Fax: (863) 325-8793; 
or George Kelhart, Technical Advisor, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 
720-2491; Fax: (202) 720-8938.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 
720-2491, Fax: (202)720-8938, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement No. 84 and Marketing Order No. 905, both as amended (7 CFR 
part 905), regulating the handling of oranges, grapefruit, tangerines, 
and tangelos 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.''
    USDA is issuing this rule in conformance with Executive Order 
12866.
    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule removes the weekly percentages established 
for the first 22 weeks of the 2004-05 season beginning September 20, 
2004. 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 USDA 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 USDA 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 USDA's ruling on the petition, 
provided an action is filed not later than 20 days after the date of 
the entry of the ruling.
    This rule terminates an interim final rule published in the Federal 
Register on August 16, 2004 (69 FR 50269) which established limits on 
the volume of small red seedless grapefruit entering the fresh market. 
This rule removes the weekly percentages established for the first 22 
weeks of the 2004-05 season beginning September 20, 2004. The Committee 
voted to terminate this action following its crop losses from 
Hurricanes Charley, Frances, and Jeanne. It is expected that this 
action will provide more red seedless grapefruit for shipment to the 
fresh fruit market.
    Section 905.52 of the order provides authority to limit shipments 
of any grade or size, or both, of any variety of Florida citrus. Such 
limitations may restrict the shipment of a portion of a specified grade 
or size of a variety. Under such a limitation, the quantity of such 
grade or size a handler may ship during a particular week is 
established as a percentage of the total shipments of such variety 
shipped by that handler during a prior period, established by the 
Committee and approved by USDA.
    Section 905.153 of the regulations provides procedures for limiting 
the volume of small red seedless grapefruit entering the fresh market. 
The procedures specify that the Committee may recommend that only a 
certain percentage of sizes 48 and 56 red seedless grapefruit be made 
available for shipment into fresh market channels for any week or weeks 
during the regulatory period. The regulation period is 22 weeks long 
and begins the third Monday in September. Under such limitation, the 
quantity of sizes 48 and 56 red seedless grapefruit that may be shipped 
by a handler during a regulated week is calculated using the 
recommended percentage.
    An interim final rule was published in the Federal Register which 
limited the volume of sizes 48 (3\9/16\ inches minimum diameter) and 56 
(3\5/16\ inches minimum diameter) red seedless grapefruit entering the 
fresh market by instituting weekly percentages for the first 22 weeks 
of the 2004-05 season. The rule established weekly percentages at 45 
percent for the first three weeks (September 20, 2004 through October 
10, 2004, 36 percent for weeks 4 through 18 (October 11, 2004 through 
January 23, 2005), 40 percent for weeks 19 and 20 (January 23, 2005 
through February 6, 2005), and 45 percent for weeks 21 and 22 (February 
7, 2005 through February 20, 2005). The Committee recommended this 
action unanimously at a meeting June 15, 2004. Similar limitations were 
implemented during the previous seven seasons.
    On August 13, 2004, Hurricane Charley hit the west coast of 
Florida, doing considerable damage to the 2004 citrus crop. On 
September 5, 2004, Hurricane Frances hit the east coast of

[[Page 5916]]

Florida, the primary growing region for red seedless grapefruit. Again, 
there was a great deal of damage to the citrus industry. Then on 
September 26, 2004, Hurricane Jeanne hit Florida, nearly following the 
same path as Hurricane Frances, further damaging the citrus crop. The 
extent of the loss is evident in the official USDA crop estimate for 
grapefruit during the 2004-05 season. The estimate is now 13 million 4/
5 bushel cartons. This is about 70 percent less than last year's 
estimate.
    At its November 16, 2004, meeting, the Committee discussed the 
percentage of size rule which went into effect on September 20, 2004. 
The percentage of size regulation helps reduce the detrimental market 
effects of small-sized red seedless grapefruit over-supplies. With the 
loss of so much of the red seedless grapefruit crop due to the 
hurricanes, the Committee believes that a percentage size regulation 
for 2004-05 is not needed. In fact, the Committee believes that there 
may be an insufficient amount of fruit to supply the demand for fresh 
fruit. There will be less large-sized red seedless grapefruit in 2004-
05, so more of the smaller sizes will be needed to supply consumer 
demand. Consequently, the reasons for regulating the amount of small 
red seedless grapefruit entering the fresh market during the 2004-05 
season are no longer applicable.
    Therefore, the Committee unanimously recommended terminating the 
rule currently in effect.

Final Regulatory Flexibility Analysis

    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 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 75 grapefruit handlers subject to 
regulation under the order and approximately 11,000 growers of citrus 
in the regulated area. Small agricultural service firms, including 
handlers, are defined by the Small Business Administration (SBA) 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 $750,000 (13 CFR 121.201).
    Based on industry and Committee data, the average annual f.o.b. 
price for fresh Florida red seedless grapefruit during the 2003-04 
season was approximately $7.58 per 4/5-bushel carton, and total fresh 
shipments for the 2003-04 season are estimated at 24.7 million cartons 
of red grapefruit. Approximately 25 percent of all handlers handled 75 
percent of Florida's grapefruit shipments. Using the average f.o.b. 
price, at least 80 percent of the grapefruit handlers could be 
considered small businesses under SBA's definition. Therefore, the 
majority of Florida grapefruit handlers may be classified as small 
entities. The majority of Florida grapefruit producers may also be 
classified as small entities.
    This rule terminates an interim final rule published in the Federal 
Register on August 16, 2004, (69 FR 50269) which set limits on the 
volume of small red seedless grapefruit entering the fresh market. The 
interim final rule established weekly percentages in Sec.  905.350 for 
the first 22 weeks of the 2004-05 season beginning September 20, 2004, 
under the provisions of Sec.  905.153. Authority for this action is 
provided in Sec.  905.52. USDA may terminate a regulation if it does 
not tend to effectuate the declared policy of the Act. The Committee 
unanimously voted to terminate the interim final rule and the 
percentage size regulation at a meeting held on November 16, 2004.
    During the months of August and September the major grapefruit 
growing regions in Florida suffered significant damage and fruit loss 
from multiple hurricanes. The strong winds from the storms blew 
substantial volumes of the setting fruit off the trees. The impact of 
the storms also produced a much higher than normal fruit drop. The 
extent of the loss is evident in the official USDA crop estimate 
supplied for this season which reflects a 70 percent decrease from last 
year's estimate. With the available volume of red seedless grapefruit 
substantially reduced, there is no longer any need to regulate volume 
for the 2004-05 season. Consequently, the Committee voted to terminate 
this action. This action will not create any additional costs for 
growers or handlers.
    This rule will not impose any additional reporting or recordkeeping 
requirements on either small or large citrus 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, as noted in the initial 
regulatory flexibility analysis, USDA has not identified any relevant 
Federal rules that duplicate, overlap or conflict with this rule.
    Further, the Committee's meetings were widely publicized throughout 
the citrus industry and all interested persons were invited to attend 
the meeting and participate in Committee deliberations. Like all 
Committee meetings, the June 15, 2004, and November 16, 2004, meetings 
were public meetings and all entities, both large and small, were able 
to express their views on this issue.
    An interim final rule concerning this action was published in the 
Federal Register on August 16, 2004. Copies of the rule were mailed by 
the Committee's staff to all Committee members and grapefruit handlers. 
In addition, the rule was made available through the Internet by USDA 
and the Office of the Federal Register. That rule provided for a 30-day 
comment period which ended September 15, 2004. One comment was 
received.
    The commenter expressed concern that limiting the volume of 
grapefruit in order to raise prices negatively affected the consumer. 
The comment has been noted. However, the Committee has recommended 
terminating this action, effectively eliminating volume regulations for 
the 2004-05 season. Therefore, no changes will be made as a result of 
the comment.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 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 
terminating the interim final rule, as published in the Federal 
Register (69 FR 502769, August 16, 2004) will tend to effectuate the 
declared policy of the Act. Further, it also is found that 
implementation of the percentage size regulation during the 2004-05 
season would not effectuate the declared policy of the Act.
    Pursuant to 5 U.S.C. 553, it is also found that good cause exists 
for not postponing the effective date of this rule until 30 days after 
publication in the Federal Register because this rule terminates 
percentage size regulations which were not needed for the first 22 
weeks of the 2004-05 shipping season.

[[Page 5917]]

List of Subjects in 7 CFR Part 905

    Grapefruit, Marketing agreements, Oranges, Reporting and 
recordkeeping requirements, Tangelos, Tangerines.


0
For the reasons discussed in the preamble, 7 CFR Part 905 is amended as 
follows:

PART 905--ORANGES, GRAPEFRUIT, TANGERINES, AND TANGELOS GROWN IN 
FLORIDA

0
1. The authority citation for part 905 continues to read as follows:

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


Sec.  905.350  [Removed and reserved]

0
2. Section 905.350 is removed and reserved.

    Dated: January 31, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-2154 Filed 2-3-05; 8:45 am]
BILLING CODE 3410-02-P