[Federal Register: September 3, 2003 (Volume 68, Number 170)]
[Rules and Regulations]
[Page 52325-52329]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03se03-1]
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Rules and Regulations
Federal Register
________________________________________________________________________
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[[Page 52325]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 905
[Docket No. FV03-905-1 IFR]
Oranges, Grapefruit, Tangerines, and Tangelos Grown in Florida;
Extension and Modification of the Exemption for Shipments of Tree Run
Citrus
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This rule extends for one season the exemption for tree run
citrus under the Florida citrus marketing order (order). The order
regulates the handling of oranges, grapefruit, tangerines, and tangelos
grown in Florida and is administered locally by the Citrus
Administrative Committee (committee). Under this rule, shipments of
tree run citrus are exempt from grade, size, and assessment
requirements for the 2003-04 season. This rule also increases the limit
on the amount of citrus a grower can ship from 1,500 boxes to 3,000
boxes per variety and requires growers to identify their containers
with their name and address. The committee believes this action may be
a way to increase fresh market shipments, develop new markets, and
improve grower returns.
DATES: Effective September 4, 2003; comments received by November 3,
2003 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 to the Docket Clerk,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC
20250-0237; Fax: (202) 720-8938, or E-mail: moab.docketclerk@usda.gov.
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, or can be viewed at: http://www.ams.usda.gov/fv/moab.html
.
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 33884-1671; 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: Jay.Guerber@usda.gov.
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 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 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 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 extends for one season an exemption to ship tree run
citrus free from grade, size, and assessment requirements under the
order. This rule also increases the limit on the total amount of citrus
a grower can ship under the exemption from 1,500 boxes to 3,000 boxes
per variety and requires growers to identify their containers with
their name and address. This extension is for the 2003-04 season only.
The committee believes this action may be a way to increase fresh
market shipments, develop new markets, and improve grower returns. This
action was recommended unanimously by the committee at its meeting on
July 1, 2003.
Section 905.80 of the order provides authority for the Committee to
exempt certain types of shipments from regulation. Exemptions can be
implemented for types of shipments of any variety in such minimum
quantities, or for such purposes as the committee with the approval of
USDA may specify. No assessment is levied on fruit so shipped. The
committee shall, with the approval of USDA, prescribe such rules,
regulations, or safeguards as it deems necessary to prevent varieties
handled under the provisions of this section from entering channels of
trade for other than the purposes authorized by this section.
Section 905.149 of the order's rules and regulations defines grower
tree run citrus and outlines the procedures to be used for growers to
apply to the committee to ship their own tree run citrus exempt from
grade, size, and assessment requirements. The provisions of this
section were originally established just for the 2002-
[[Page 52326]]
03 season. It allowed growers to ship a maximum of 150 1\3/5\ bushel
boxes per variety per shipment up to a seasonal total of 1,500 boxes
per variety of their tree run fruit free from order requirements.
This rule amends Sec. 905.149 and extends its provisions for
another season. This rule extends the exemption to ship tree run citrus
free from grade, size, and assessment requirements as specified in
Sec. 905.149 for the 2003-04 season. This rule also amends Sec.
905.149 by increasing the limit on the amount of citrus a grower can
ship during the season from 1,500 boxes to 3,000 boxes per variety and
by requiring that each container in each shipment be labeled with or
contain the name and address of the grower. Growers must receive
approval from the committee before they can utilize this exemption.
According to Florida Department of Citrus (FDOC) regulation 20-
35.006, ``Tree run grade is that grade of naturally occurring sound and
wholesome citrus fruit which has not been separated either as to grade
or size after severance from the tree.'' Also, FDOC regulation 20-
62.002 defines wholesomeness as fruit free from rot, decay, sponginess,
unsoundness, leakage, staleness, or other conditions showing physical
defects of the fruit. By definition, this fruit is handled by the
grower and bypasses normal handler operations. Prior to implementation
of the exemption, all tree run citrus had to meet all requirements of
the marketing order, as well as State of Florida Statutes and Florida
Department of Citrus regulations. Even with this rule, tree run citrus
must continue to meet applicable State of Florida Statutes and Florida
Department of Citrus regulations, including inspection and any
container marking requirements. However, growers will be able to pick,
box, and ship directly to buyers, and avoid the costs incurred when
citrus is handled by packinghouses.
During the past few seasons, small producers of Florida citrus have
expressed concerns about problems incurred when trying to sell their
citrus. These concerns include increasing production costs, limited
returns, and the availability of markets. For some growers, there is
limited demand for the variety of citrus they produce or they do not
produce much volume. Consequently, they have difficulty getting
packinghouses to pack their fruit. These problems, along with market
conditions, have driven a fair number of citrus growers out of the
citrus industry.
According to Florida Agricultural Statistics Service, over the past
five years, fresh grapefruit sales have dropped 22 percent and fresh
orange shipments are down 16 percent. This means fewer cartons are
being packed. This can cause problems for varieties that may be out of
favor with handlers and consumers, or for a particular variety of fruit
where there may be a glut on the market. As a result, packinghouses do
not wish to become over stocked with fruit which is difficult to market
and, therefore, will not pack less popular minor varieties of fruit or
fruit that is in oversupply. Packinghouses do not want to pack what
they cannot sell. These factors have caused wholesome fruit to be
shipped to processing plants or left on the tree.
When citrus cannot be sold into the fresh market, it can be sold to
the processing plants. However, the prices received are considerably
lower. During the last five years, only the 1999-2000 season produced
on-tree returns for processed grapefruit that exceeded one dollar per
box. Over the period from 1977 through 2000, the differential between
fresh prices and processed prices has averaged $3.55 per box. The
average on-tree price for processed Florida oranges during the 2001-02
season was $3.08 compared to $4.50 for fresh oranges.
In addition, the costs associated with growing for the fresh market
are greater than the costs for growing for the processed market. While
the costs of growing for the fresh market have been increasing, in many
cases the returns to the grower have been decreasing. The cost of
picking, packing, hauling, and associated handling costs for fresh
fruit is sometimes greater than the grower's return on the fruit. In
some cases, where the cost of harvesting exceeds the returns to the
grower or the grower cannot find a buyer for the fruit, economic
abandonment can occur. According to information from the National
Agricultural Statistics Service, the seasons of 1995-96, 1996-97, 1997-
98, and 2000-01 had an average economic abandonment of two million
boxes or more of red seedless grapefruit alone.
Consequently, growers are looking for other outlets for their fruit
in an effort to increase returns. Some growers believe secondary
markets exist which are not currently being supplied that would provide
additional outlets for their citrus. They think niche markets exist
that could be profitable and want the opportunity to service them. They
believe they can ship quality fruit directly to out-of-state markets
and that it would be well received. These growers contend tree run
citrus does not need a minimum grade and size to be marketable, and
that they can supply quality fruit to secondary markets not served by
packed fruit. However, they believe they need to bypass normal handler
operations and the associated costs for it to be profitable.
To address these concerns, the committee recommended that for the
2002-03 season producers be allowed to ship small quantities of their
own production directly to market exempt from order requirements. The
exemption was for the 2002-03 season and expired July 31, 2003. A final
rule on this action was published in the Federal Register on January
29, 2003 [68 FR 4361]. The committee agreed that following the 2002-03
season they would review the information provided by growers who
applied for and used the tree run exemption to determine if the
exemption should be continued.
During the 2002-03 season, 75 growers were approved to ship under
the exemption. Approximately 25 growers actually used the exemption,
shipping a total of 5,000 1-3/5 bushel boxes of oranges, grapefruit,
tangerines, and tangelos. Those producers who took advantage of the
exemption believe the program was successful. They were able to sell
their fruit and supply markets not already supplied by packed fruit.
The growers who used the exemption believe that one year was not
long enough and that it should be extended. They think more time is
needed to determine the benefits of the exemption and whether it should
be extended on a continuous basis. Growers believe to successfully
develop new markets they must demonstrate they can consistently supply
new markets with quality fruit and this cannot be done in a single
season or without the exemption.
Growers also believe more markets exist. They think more time is
needed to identify and research potential markets. In some cases,
potential markets were not identified until late in the 2002-03 season
when there was not enough fruit available to supply them. Growers want
the opportunity to try to supply these markets in the coming season.
In addition, some interested growers did not take advantage of the
exemption during the past season. Some stated if the exemption were to
be extended for another season, they would use it to try shipping tree
run citrus. By extending the exemption for another season, growers will
have more time to utilize this opportunity and it will provide the
committee with a better indicator of the level of interest and success.
There was also some discussion that the previously established
1,500 box
[[Page 52327]]
limit on the total amount of each variety of citrus a grower could ship
during the season may prevent growers from fully developing new
markets. One concern expressed was that should a buyer want additional
fruit during the season, a grower may not be able to supply it because
they had reached their shipping limit. Another concern was for growers
that only produce one variety of citrus. The limit of 1,500 boxes per
variety for the season may prevent them from utilizing more of their
fruit. Also, a producer may identify two or more potential markets, but
with the limited amount of fruit that can be shipped, the grower can
only supply fruit to one market. Growers believe raising the limit on
the number of boxes per variety they can ship for the season will allow
them to supply the markets previously developed as well as develop
additional markets for their tree run fruit.
The committee reviewed this issue and discussed the concerns of
small growers and the problems encountered during the past season. The
committee determined that offering the exemption for another season
will provide additional information on how fruit shipped under the
exemption was received by the market. It will also provide a better
indication of whether or not other markets exist that packed fruit is
not currently supplying, where these markets are located, and
approximately how much fruit can be sold in such markets. Extending the
exemption also gives other growers an opportunity to try it.
Tree run fruit will be sold primarily to non-competitive, niche
markets, such as farmers' markets, flea markets, roadside stands, and
similar outlets and will not compete with non-exempt fruit shipped
under the order. Fruit is sold in similar markets within the state, and
such markets have been successful. Continuing the exemption for another
season allows growers to sell directly to similar markets outside of
the state, supplying markets that might not otherwise be supplied. The
committee believes this action will allow the industry to service more
non-traditional markets and may be a way to increase fresh market
shipments and to develop new markets.
The committee also discussed the limits on the amount of fruit
growers can ship during the season. Several different combinations of
shipment totals were discussed. The committee determined the previously
established limit of 150 boxes of each variety per shipment was still
appropriate, allowing the grower to ship a sufficient amount of fruit
to make the exemption cost effective, while preventing too much fruit
from entering market channels exempt from order requirements. However,
the committee did agree that by raising the total amount of citrus a
grower can ship during the season, the grower may be able to service
more markets and sell more fruit. The committee supported increasing
the volume limit from 1,500 boxes to 3,000 boxes per variety under the
exemption. This amount provides additional volume for the grower while
limiting the amount of fruit that can be shipped under the exemption.
Maintaining shipments at these levels will help keep this fruit in non-
competitive outlets.
With the potential for additional fruit entering the market under
the exemption, ensuring compliance with the provisions of the exemption
and reducing the chances of tree run fruit getting into regular market
channels is an important consideration. As a means of tracking the
fruit and ensuring compliance, the committee decided that each
container of tree run fruit should contain the name and address of the
grower. Because tree run fruit can be shipped in a variety of
containers, the committee thought requiring a label on the containers
themselves may be impractical. For some containers, such as cardboard
box, having the name and address printed on the outside of the
container would not be problematic. However, on other containers, such
as field boxes, plastic boxes, or mesh bags, it can be difficult to
print the name and address or affix a label. Therefore, the committee
agreed that placing the name and address inside the container provides
a means for identifying the owner of the fruit with the least amount of
difficulty.
Consequently, for the reasons discussed, the committee voted
unanimously to extend the tree run exemption for the 2003-04 season,
raise the limit on the amount of citrus a grower can ship from 1,500
boxes to 3,000 boxes per variety, and require that growers identify
each container with their name and address. The exemption is being
extended for the 2003-04 season only, and will expire on July 31, 2004.
At the end of the season, the committee will review all available
information and decide whether the exemption should be continued on a
permanent basis.
Growers will continue to be required to apply to the committee, on
the ``Grower Tree Run Certificate Application'' form provided by the
committee, for an exemption to ship tree run citrus fruit to interstate
markets. On this form, the grower must provide their name; address;
phone number; legal description of the grove; variety of citrus to be
shipped; and the approximate number of boxes produced in the specified
grove. The grower must also certify that the fruit to be shipped comes
from the grove owned by the grower applicant. The application form will
be submitted to the committee manager and reviewed for completeness and
accuracy. The manager will also verify the information provided. After
the application has been reviewed, the manager will notify the grower
applicant in writing whether the application is approved or denied.
Once the grower has received approval for their application for
exemption and begins shipping fruit, a ``Report of Shipments Under
Grower Tree Run Certificate'' form, also provided by the committee,
must be completed for each shipment. On this form, the grower will
provide the location of the grove, the amount of fruit shipped, the
shipping date, and the type of transportation used to ship the fruit,
along with the vehicle license number. The grower must supply the Road
Guard Station with a copy of the grower certificate report for each
shipment, and provide a copy of the report to the committee. This
report will enable the committee to maintain compliance and gather
data, which will be used to determine the effectiveness of the
exemption. Failure to comply with these requirements may result in the
cancellation of a grower's certificate.
This rule does not affect the provision that handlers may ship up
to 15 standard packed cartons (12 bushels) of fruit per day exempt from
regulatory requirements. Fruit shipped in gift packages that are
individually addressed and not for resale, and fruit shipped for animal
feed are also exempt from handling requirements under specific
conditions. Also, fruit shipped to commercial processors for conversion
into canned or frozen products or into a beverage base are not subject
to the handling requirements under the order.
Section 8e of the Act requires that whenever grade, size, quality,
or maturity requirements are in effect for certain commodities under a
domestic marketing order, including citrus, imports of that commodity
must meet the same or comparable requirements. This rule does not
change the minimum grade and size requirements under the order.
Therefore, no change is necessary in the citrus import regulations as a
result of this action.
Initial 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
[[Page 52328]]
this action on small entities. Accordingly, AMS has prepared this
initial 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 11,000 producers of Florida citrus in the
production area and approximately 75 handlers subject to regulation
under the marketing order. Small agricultural producers are defined by
the Small Business Administration (13 CFR 121.201) as those having
annual receipts less than $750,000, and small agricultural service
firms are defined as those whose annual receipts are less than
$5,000,000.
Based on industry and Committee data, the average annual f.o.b.
price for fresh Florida oranges, grapefruit, tangerines, and tangelos
during the 2002-03 season was approximately $8.55 per 4/5 bushel
carton, and total fresh shipments for the 2002-03 season where around
49.3 million cartons of oranges, grapefruit, tangerines, and tangelos.
Approximately 20 handlers handled 65 percent of Florida's citrus
shipments in 2002-03. Considering the average f.o.b. price, at least 55
percent of the oranges, grapefruit, tangerine, and tangelo handlers
could be considered small businesses under SBA's definition. Therefore,
the majority of Florida citrus handlers may be classified as small
entities. The majority of Florida citrus producers may also be
classified as small entities.
This rule extends the provisions of Sec. 905.149 of the rules and
regulations under the order for one more season. This rule exempts
shipments of small quantities of tree run citrus from the grade, size,
and assessment requirements for the 2003-04 season. This rule also
increases the limit on the amount of citrus a grower can ship from
1,500 boxes to 3,000 boxes per variety during the season and requires
growers to identify their containers with their name and address.
Growers must receive approval from the committee before they can use
this exemption. The committee believes this action may be a way to
increase fresh market shipments, develop new markets, and improve
grower returns. Authority for this action is provided in Sec.
905.80(e).
According to a recent study by the University of Florida--Institute
of Food and Agricultural Sciences, production costs for the 2001-02
season ranged from $1.71 per box for processed oranges to $2.41 per box
for grapefruit grown for the fresh market. The average packing charge
for oranges is approximately $6.50 per box, for grapefruit the charge
is approximately $5.75 per box, and for tangerines the charge can be as
high as $9 per box. In a time when grower returns are weak, sending
fruit to a packinghouse can be cost prohibitive, especially for the
small grower. This rule may provide an additional outlet for fruit that
might otherwise be forced into the processing market or left on the
tree altogether.
This rule will not impose any additional costs on the grower, but
have the opposite effect, providing growers the opportunity to reduce
the costs associated with having fruit handled by a packinghouse. This
action will allow growers to ship small quantities of their tree run
citrus directly into interstate commerce exempt from the order's grade,
size, and assessment requirements and their related costs. With this
action, growers will be able to reduce handling costs and use those
savings toward developing additional markets not serviced by packed
fruit. This will benefit all growers regardless of size, but it is
expected to have a particular benefit for the small grower.
The committee considered alternatives to this action. One possible
alternative was not extending the exemption for another season.
However, the committee believes the exemption does provide other
possible outlets for fruit and may help increase returns to growers, so
this alternative was rejected. Another alternative considered was
removing the limit on the total amount of citrus a grower could ship
during the season. Committee members had concerns about allowing this
exemption without some limit on total shipments. The committee agreed
that an increase in the limit would provide additional opportunities
for growers without causing any market disruption or making it more
difficult to keep tree run fruit in noncompetitive outlets. Therefore,
this alternative was also rejected.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), the information collection requirements contained in this
rule have been previously approved by the Office of Management and
Budget (OMB) and assigned OMB No. 0581-0189. USDA has not identified
any relevant Federal rules that duplicate, overlap or conflict with
this rule. 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 committee's meeting was 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 July 1, 2003, meeting was a public meeting and all
entities, both large and small, were able to express their views on
this issue. Interested persons are invited to submit information on the
regulatory and informational impacts of this action on small
businesses.
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.
This rule invites comments on extending for one season the
exemption to ship tree run citrus free from grade, size, and assessment
requirements under the order. The rule also invites comments on the
increase in the limit on the total amount of citrus a grower can ship
per variety under the exemption from 1,500 boxes to 3,000 boxes and the
requirement that growers identify their citrus with their name and
address. Any comments received will be considered prior to finalization
of this rule.
After consideration of all relevant material presented, including
the committee's recommendation, and other information, it is found that
this interim final 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 upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect and good cause exists for not postponing the effective date of
this rule until 30 days after publication in the Federal Register. This
rule needs to be in place as soon as possible to cover as many
shipments during the 2003-04 season as possible. Growers need to know
this rule is in place so they can begin making plans on how to utilize
the exemption. In addition, growers and handlers are aware of this
rule, which was recommended at a public meeting. Also, a 60-day comment
period is provided for in this rule and any comments
[[Page 52329]]
received will be considered prior to finalization.
List of Subjects in 7 CFR Part 905
Grapefruit, Oranges, Tangelos, Tangerines, Marketing agreements,
Reporting and recordkeeping requirements.
0
For the reasons set forth 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 7 CFR part 905 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. In Sec. 905.149:
0
a. Paragraph (d) is amended by revising ``July 31, 2003.'' to read
``July 31, 2004.''.
0
b. Paragraph (f)(2) is amended by revising ``1,500'' to read ``3,000''.
0
c. Paragraph (f)(3) is amended by revising ``for the 2002-03 season
only'' to read ``during the 2003-04 season only'' and ``July 31,
2003.'' to read ``July 31, 2004.''.
0
d. A new paragraph (f)(6) is added to read as follows:
Sec. 905.149 Procedure for permitting growers to ship tree run citrus
fruit.
* * * * *
(f) * * *
(6) Each container of tree run fruit shipped under a Grower Tree
Run Certificate shall be labeled with or contain the name and address
of the grower shipping under the Grower Tree Run Certificate.
Dated: August 28, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-22414 Filed 9-2-03; 8:45 am]
BILLING CODE 3410-02-P