[Federal Register Volume 81, Number 115 (Wednesday, June 15, 2016)]
[Rules and Regulations]
[Pages 38883-38885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14149]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 915

[Doc. No. AMS-SC-15-0083; SC16-915-2 FR]


Avocados Grown in South Florida; Increased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule implements a recommendation from the Avocado 
Administrative Committee (Committee) for an increase of the assessment 
rate established for the 2016-17 and subsequent fiscal periods from 
$0.30 to $0.35 per 55-pound bushel container of Florida avocados 
handled under the marketing order (order). The Committee locally 
administers the order and is comprised of growers and handlers of 
avocados operating within the area of production. Assessments upon 
Florida avocado handlers are used by the Committee to fund reasonable 
and necessary expenses of the program. The fiscal period began on April 
1 and ends March 31. The assessment rate will remain in effect 
indefinitely unless modified, suspended, or terminated.

DATES: Effective June 16, 2016.

FOR FURTHER INFORMATION CONTACT: Doris Jamieson, Marketing Specialist, 
or Christian D. Nissen, Regional Director, Southeast Marketing Field 
Office, Marketing Order and Agreement Division, Specialty Crops 
Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or 
Email: [email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Antoinette Carter, Marketing Order and 
Agreement Division, Specialty Crops Program, AMS, USDA, 1400 
Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; 
Telephone: (202) 720-2491, Fax: (202)720-8938, or Email: 
[email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order 
No. 915, as amended (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 of Agriculture (USDA) is issuing this rule in 
conformance with Executive Orders 12866, 13563, and 13175.
    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. Under the marketing order now in effect, Florida 
avocado handlers are subject to assessments. Funds to administer the 
order are derived from such assessments. It is intended that the 
assessment rate as issued herein will be applicable to all assessable 
Florida avocados beginning on April 1, 2016, and continue until 
amended, suspended, or terminated.
    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. Such 
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 increases the assessment rate established for the 
Committee for the 2016-17 and subsequent fiscal periods from $0.30 to 
$0.35 per 55-pound bushel container of avocados.
    The Florida avocado marketing order provides authority for the 
Committee, with the approval of USDA, to formulate an annual budget of 
expenses and collect assessments from handlers to administer the 
program. The members of the Committee are producers and handlers of 
Florida avocados. They are familiar with the Committee's needs and with 
the costs for goods and services in their local area, and are thus in a 
position to formulate an appropriate budget and assessment rate. The 
assessment rate is formulated and discussed in a public meeting. Thus, 
all directly affected persons have an opportunity to participate and 
provide input.
    For the 2013-14 and subsequent fiscal periods, the Committee 
recommended, and USDA approved, an assessment rate that would continue 
in effect from fiscal period to fiscal period unless modified, 
suspended, or terminated by USDA upon recommendation and information 
submitted by the Committee or other information available to USDA.
    The Committee met on December 9, 2015, and recommended 2016-17 
expenditures of $302,553 and an assessment rate of $0.35 per 55-pound 
bushel container of avocados. In comparison, last year's budgeted 
expenditures were $602,553. The assessment rate of $0.35 is $0.05 
higher than the rate currently in effect. During the 2015-16 season, 
the Committee used its authorized reserves to fund several large 
research projects to address the Laurel Wilt fungus, which can infect 
and kill avocado trees. This

[[Page 38884]]

substantially reduced the funds in the Committee's reserves to 
$214,733. Further, at the current assessment rate, assessment income 
would equal only $300,000, an amount insufficient to cover the 
Committee's anticipated expenditures of $302,553. By increasing the 
assessment rate by $0.05, assessment income will be approximately 
$350,000. This amount should provide sufficient funds to meet 2016-2017 
anticipated expenses and add money back into the Committee's authorized 
reserves.
    The major expenditures recommended by the Committee for the 2016-17 
year include $119,483 for salaries, $51,500 for employee benefits, and 
$25,500 for insurance and bonds. Budgeted expenses for these items in 
2015-16 were $119,483, $51,500, and $25,500, respectively.
    The assessment rate recommended by the Committee was derived by 
reviewing anticipated expenses, expected shipments of Florida avocados, 
and the level of funds in reserve. As mentioned earlier, avocado 
shipments for the year are estimated at one million 55-pound bushel 
containers which should provide $350,000 in assessment income. Income 
derived from handler assessments, along with interest income, should be 
adequate to cover budgeted expenses. Funds in the reserve (currently 
$214,733) will be kept within the maximum permitted by the order 
(approximately three fiscal periods' expenses as authorized in Sec.  
915.42).
    The assessment rate established in this rule will continue in 
effect indefinitely unless modified, suspended, or terminated by USDA 
upon recommendation and information submitted by the Committee or other 
available information.
    Although this assessment rate will be in effect for an indefinite 
period, the Committee will continue to meet prior to or during each 
fiscal period to recommend a budget of expenses and consider 
recommendations for modification of the assessment rate. The dates and 
times of Committee meetings are available from the Committee or USDA. 
Committee meetings are open to the public and interested persons may 
express their views at these meetings. USDA will evaluate Committee 
recommendations and other available information to determine whether 
modification of the assessment rate is needed. Further rulemaking will 
be undertaken as necessary. The Committee's 2016-17 budget and those 
for subsequent fiscal periods would be reviewed and, as appropriate, 
approved by USDA.

Final Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) 
has considered the economic impact of this rule 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 
businesses 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.
    There are approximately 400 producers of Florida avocados in the 
production area and approximately 25 handlers subject to regulation 
under the marketing order. Small agricultural producers are defined by 
the Small Business Administration (SBA) as those having annual receipts 
less than $750,000, and small agricultural service firms are defined as 
those whose annual receipts are less than $7,500,000 (13 CFR 121.201).
    According to the National Agricultural Statistical Service (NASS), 
the average grower price paid for Florida avocados during the 2014-15 
season was approximately $18.00 per 55-pound bushel container and total 
shipments were slightly higher than 1.2 million 55-pound bushels. Based 
on this information, the majority of avocado producers would have 
annual receipts less than $750,000. In addition, based on Committee 
information, the majority of Florida avocado handlers could be 
considered small business under SBA's definition. Thus, the majority of 
Florida avocado producers and handlers may be classified as small 
entities.
    This rule increases the assessment rate established for the 
Committee and collected from handlers for the 2016-17 and subsequent 
fiscal periods from $0.30 to $0.35 per 55-pound bushel container of 
avocados. The Committee recommended 2016-17 expenditures of $302,553 
and an assessment rate of $0.35 per 55-pound bushel container. The 
assessment rate of $0.35 is $0.05 higher than the previous rate. The 
quantity of assessable avocados for the 2016-17 season is estimated at 
one million 55-pound bushel containers. Thus, the $0.35 rate should 
provide $350,000 in assessment income and be adequate to meet this 
year's expenses.
    The major expenditures recommended by the Committee for the 2016-17 
fiscal period include $119,483 for salaries, $51,500 for employee 
benefits, and $25,500 for insurance and bonds. Budgeted expenses for 
these items in 2015-16 were $119,483, $51,500, and $25,500, 
respectively.
    During the 2015-16 season, the Committee used its authorized 
reserves to fund several large research projects to address the Laurel 
Wilt fungus. This substantially reduced the funds in the Committee's 
reserves. Further, at the current assessment rate and with the 2016-17 
crop estimated to be one million 55-pound bushel containers, assessment 
income would equal only $300,000, an amount insufficient to cover the 
Committee's anticipated expenditures of $302,553. By increasing the 
assessment rate by $0.05, assessment income will be approximately 
$350,000. This amount should provide sufficient funds to meet 2016-17 
anticipated expenses and add money back into the Committee's authorized 
reserves. Consequently, the Committee recommended increasing the 
assessment rate.
    Prior to arriving at this budget and assessment rate, the Committee 
considered information from various sources, such as the Committee's 
Budget and Personnel Committee. Alternative expenditure levels were 
discussed by this group, based upon the relative value of various 
activities to the South Florida avocado industry. The Committee 
ultimately determined that 2016-17 expenditures of $302,553 were 
appropriate, and the recommended assessment rate, along with interest 
income, would generate sufficient revenue to meet its expenses.
    A review of historical information and preliminary information 
pertaining to the upcoming season indicates that the grower price for 
the 2016-17 season should be around $18 per 55-pound bushel container 
of avocados. Therefore, the estimated assessment revenue for the 2016-
17 fiscal period as a percentage of total grower revenue would be 
approximately two percent.
    This action increases the assessment obligation imposed on 
handlers. While assessments impose some additional costs on handlers, 
the costs are minimal and uniform on all handlers. Additionally, these 
costs are offset by the benefits derived by the operation of the 
marketing order. In addition, the Committee's meeting was widely 
publicized throughout the Florida avocado industry and all interested 
persons were invited to attend the meeting and participate in Committee 
deliberations on all issues. Like all Committee meetings, the December 
9, 2015, meeting was a public meeting and

[[Page 38885]]

all entities, both large and small, were able to express views on this 
issue.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the order's information collection requirements have been 
previously approved by the Office of Management and Budget (OMB) and 
assigned OMB No. 0581-0189 (Generic Fruit Crops). No changes in those 
requirements as a result of this action are necessary. Should any 
changes become necessary, they would be submitted to OMB for approval.
    This rule imposes no additional reporting or recordkeeping 
requirements on either small or large Florida 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. As noted in the 
initial regulatory flexibility analysis, USDA has not identified any 
relevant Federal rules that duplicate, overlap, or conflict with this 
final rule.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.
    A proposed rule concerning this action was published in the Federal 
Register on March 16, 2016 (81 FR 14019). Copies of the proposed rule 
were also mailed or sent via facsimile to all Florida avocado handlers. 
Finally, the proposal was made available through the Internet by USDA 
and the Office of the Federal Register. A 30-day comment period ending 
April 15, 2016, was provided for interested persons to respond to the 
proposal. One comment was received in support of the proposal. 
Accordingly, no changes will be made to the rule as proposed, based on 
the comment received.
    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/rules-regulations/moa/small-businesses. Any questions 
about the compliance guide should be sent to Antoinette Carter at the 
previously-mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    After consideration of all relevant material 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.
    Pursuant to 5 U.S.C. 553, it is also found and determined that good 
cause exists for not postponing the effective date of this rule until 
30 days after publication in the Federal Register because handlers are 
already receiving 2016-17 crop avocados from growers, and the fiscal 
period began on April 1, 2016, and the assessment rate applies to all 
Florida avocados received during the 2016-17 and subsequent seasons. 
Further, handlers are aware of this rule which was recommended at a 
public meeting. Also, a 30-day comment period was provided for in the 
proposed 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:

PART 915--AVOCADOS GROWN IN SOUTH FLORIDA

0
1. The authority citation for 7 CFR part 915 continues to read as 
follows:

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


0
2. Section 915.235 is revised to read as follows:


Sec.  915.235  Assessment rate.

    On and after April 1, 2016, an assessment rate of $0.35 per 55-
pound container or equivalent is established for avocados grown in 
South Florida.

    Dated: June 10, 2016.
Elanor Starmer,
Administrator, Agricultural Marketing Service.
[FR Doc. 2016-14149 Filed 6-14-16; 8:45 am]
BILLING CODE P