[Federal Register: June 24, 2005 (Volume 70, Number 121)]
[Rules and Regulations]
[Page 36467-36470]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jn05-1]
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Rules and Regulations
Federal Register
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 915
[Docket No. FV05-915-2 IFR]
Avocados Grown in South Florida; Changes in Container and
Reporting Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This rule changes the container and reporting requirements
currently prescribed under the marketing order for avocados grown in
South Florida. The marketing order regulates the handling of avocados
grown in South Florida and is administered locally by the Avocado
Administrative Committee (Committee). This rule prohibits the handling
of fresh market avocados in 20 bushel plastic field bins to
destinations inside the production area. This rule also requires
handlers to provide, at the time of inspection, information regarding
the number of avocados packed per container (count per container).
These changes are expected to help reduce packing costs and facilitate
the distribution of useful marketing information.
DATES: Effective June 25, 2005; comments received by August 23, 2005
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; E-mail: moab.docketclerk@usda.gov; or
Internet: http://www.regulations.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: William G. Pimental, Marketing
Specialist, 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: Jay.Guerber@usda.gov.
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 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 prohibits the handling of fresh market avocados in 20
bushel plastic field bins to destinations inside the production area.
This rule also requires handlers to provide, at the time of inspection,
information regarding the avocado count per container, which will, in
turn, provide the Committee and the industry with information regarding
the sizes of avocados packed. These changes are expected to decrease
packing costs by reducing the annual loss of field bins and provide
handlers with additional marketing information. The Committee
unanimously recommended these changes at meetings held on September 8,
2004, and November 10, 2004.
Section 915.51(4) of the order provides authority for establishing
container requirements for the handling of avocados. Section 915.51(6)
of the order provides that any or all requirements effective pursuant
to Sec. 915.51(4) shall be different for the handling of avocados
within the production area and outside the production area. Section
915.305 of the order's rules and regulations specifies the avocado
container requirements.
Section 915.60 of the order provides authority for the Committee to
require handlers to file reports and provide other information as may
be necessary for the Committee to perform its duties. Section 915.150
specifies the requisite reporting requirements.
This rule amends Sec. 915.305 by adding a prohibition to the
handling of fresh market avocados in 20 bushel plastic field bins to
all destinations within the regulated production area. This rule also
amends Sec. 915.150 by adding a requirement that handlers provide
[[Page 36468]]
additional pack information at the time of inspection.
Currently, there are no specific container net weight or dimension
requirements for avocados handled to destinations within the production
area. However, shipments of avocados within the production area must
meet maturity requirements and be inspected.
Prior to this action, 20 bushel plastic field bins (bins) were
commonly being used for the purpose of moving avocados into the current
of commerce within the production area (handling). Following the
successful inspection of avocados packed in bins, the inspector would
place a cardboard cover over the top of the bin and seal it with
official Federal-State Inspection Service tape. The bins could then be
transported and sold at the various markets throughout the production
area. It should be noted that current container regulations do not
authorize the use of field bins for shipments of avocados from within
the production area to any point outside of the production area.
At the September 8, 2004, meeting, Committee members raised the
issue that, each year, a large number of bins are apparently
misappropriated during the avocado season. Committee consensus is that
the ongoing loss of the bins has been costly to the industry, with the
average cost of a bin about $150 each. By Committee estimates, over 700
bins were lost during the previous season at a cost of over $100,000 to
the bins' owners.
In the harvesting of avocados, field bins have the primary function
of transporting avocados from grove to packing facility. These bins are
usually owned by individual packinghouses, or handlers, and are either
delivered to, or picked up at, the packing facility by the harvester.
Handlers have found that, much too often, field bins are not returned
to the proper packinghouse, but are instead apparently misappropriated
and used for other purposes. Because of their durability, many of the
bins are acquired and reused by small cash handlers to pack and
transport fruit in the production area. Often these bins are then
abandoned at various market locations throughout the production area.
Once the bins are transported to different market locations
throughout the production area, they become very difficult to recover.
The avocado groves and packinghouses are situated around the Homestead,
Florida area. However, the production area stretches into Central
Florida. Consequently, bins often end up in locations over 100 miles
away in cities such as Tampa and Orlando. Once the avocados have been
marketed, the bins are purportedly used for many different purposes and
may be dispersed even further from the originating packinghouse.
Handlers are thus provided very little chance of recovering them for
their own use.
The Committee believes that once bins are no longer authorized for
use as containers for inspection, transportation, and sale of fresh
avocados to markets within the production area, the movement of these
containers will be limited, thus helping to reduce the number of lost
bins. Cash handlers--generally handlers without packing facilities that
tend to buy bulk avocados directly from the growers--will have to use
different containers to pack and transport avocados within the
production area. Committee members suggested that one such option could
be a commonly available 20 bushel field bin constructed of cardboard
rather than plastic, but at a much lower cost of about $10 each.
The Committee believes this change will help to restrict the use of
the expensive plastic field bins to their originally intended purpose
as a method of conveyance of avocados from grove to packinghouse.
Prohibiting the use of these bins for the purpose of handling fresh
market avocados will help prevent them from being transported to
locations far from the originating packinghouse. This, in turn, will
result in the majority of the bins remaining in the local area where
they are much more easily recovered. Reducing the number of lost bins
represents a significant potential cost savings for the industry.
Therefore, the Committee voted unanimously to put this regulation in
place.
This rule also revises the reporting requirements under the order.
Handlers are currently reporting to the inspector at the time of
inspection the number of \1/4\ bushel, \1/2\ bushel, and \4/5\ bushel
containers packed. This rule will not only require that handlers
continue to provide the number and sizes of containers packed, but in
addition, will require handlers to provide information regarding the
number of avocados packed per type of container, or ``count per
container.'' Knowing the actual number of avocados packed per
container, in addition to the number and size of containers packed, the
Committee and the industry will be armed with information regarding the
various sizes of avocados being packed, as well as the quantity of
different sizes being marketed. For example, a handler might report to
the inspector on duty that the current lot being inspected has 500 \1/
4\ bushel containers, 6 count each. This type of information would
provide the Committee with information regarding the quantity of large
avocados being packed.
Prior to this change, no data was collected that provided
information on the various sizes of avocados being packed. During the
Committee's discussion of this issue, handlers agreed that although
they were getting information regarding the number of bushels packed,
it would be valuable to have information regarding the volume of small,
medium, and large avocados packed for market. The Committee believes
the availability of such information will help both grower and handler
when making harvesting and packing decisions.
Committee members agreed having information to help determine if
any sizes are overrepresented or underrepresented in the marketplace
would be valuable when planning and making marketing decisions. There
is a close correlation between size and price. An oversupply of one
size of fruit can negatively impact the price for that size and all
sizes. By reporting count per container, the industry will be better
able to gauge available markets by knowing the volume of what sizes are
available.
An avocado will never reach full maturity unless it is severed from
the tree. Consequently, harvest can be delayed without affecting the
flavor or the quality of the fruit. This fact, in combination with
information on sizes, allows the industry to make harvesting and
marketing decisions based on available markets.
Without good information regarding the sizes available in the
market, the market pipelines for certain sizes can become full, driving
prices down. Having access to this information will help the industry
better balance supply with demand. By knowing which sizes are in short
supply, the industry can determine which sizes need to be harvested.
Such information may help reduce periods of oversupply and the effect
oversupply has on price, providing the industry with another tool to
more efficiently market avocados and maximize industry returns.
Previously, at the time of inspection, handlers have been commonly
reporting container size and quantity to the inspector, who then
includes this information on the inspection certificates. Inspection
certificates are then provided to the Committee, which compiles the
information into reports that are in turn provided to the avocado
industry. Committee members believe this procedure has been working
effectively, and that having handlers report the count per container in
the
[[Page 36469]]
same fashion will be equally effective. In most cases, this is
information the handler already has available, and thus needs only to
supply it to the inspector at the time of inspection. As with the
current report, the Committee will compile the data received and report
it to the industry on a composite basis to aid growers and handlers in
planning their individual operations and in making marketing decisions
during the season.
This change will provide the industry with an indication of the
volume of small, medium, and large sized avocados being shipped to the
fresh market. With this change, handlers believe they will have more
information on which to base their harvesting and marketing decisions.
Consequently, the Committee voted unanimously to make this change.
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. As this
rule changes the container and reporting requirements under the
domestic handling regulations, no corresponding changes to the import
regulations are required.
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 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 150 producers of avocados in the production
area and approximately 35 handlers subject to regulation under the
order. Small agricultural producers are defined by the Small Business
Administration (SBA) as those having annual receipts of less than
$750,000, and small agricultural service firms are defined as those
whose annual receipts are less than $6,000,000 (13 CFR 121.201).
According to the National Agricultural Statistics Service and
Committee data, the average price for Florida avocados during the 2003-
04 season was around $22.22 per 55-pound bushel container, and total
shipments were near 660,000 55-pound bushel equivalents. Approximately
11 percent of all handlers handled 76 percent of Florida avocado
shipments. Using the average price and shipment information provided by
the Committee, nearly all avocado handlers could be considered small
businesses under the SBA definition. In addition, based on avocado
production, grower prices, and the total number of Florida avocado
growers, the average annual grower revenue is approximately $98,000.
Thus, the majority of Florida avocado producers may also be classified
as small entities.
This rule changes the container and reporting requirements
currently prescribed under the order. This rule prohibits the handling
of fresh market avocados in 20 bushel plastic field bins to
destinations within the production area. This rule also requires
handlers to provide information regarding the avocado count per
container, which in turn provides the Committee and the avocado
industry with an indication of the sizes of avocados being packed.
These changes are expected to decrease packing costs by reducing losses
of field bins and to provide handlers with additional information on
which to base their harvesting and marketing decisions. The Committee
unanimously recommended these changes at meetings held on September 8,
2004, and November 10, 2004. This rule modifies the container and
reporting requirements specified in Sec. Sec. 915.305 and 915.150
respectively. The authorities for these actions are provided for in
Sec. Sec. 915.51 and 915.60.
It is not anticipated that this rule will generate any increased
costs for handlers or producers. The Committee recommended the change
in the container requirements in an effort to reduce the costs stemming
from the misappropriation of bins. According to estimates, more than
700 bins were lost last season, at a cost to the industry of around
$100,000. The primary purpose of these field bins is to provide bulk
conveyance of harvested avocados from the groves to the packinghouses.
However, a segment of the industry has been using them to pack and
transport avocados to markets within the production area. Handlers have
found that bins have been misappropriated, used for the handling of
avocados for sale within the production area, and not subsequently
returned to the rightful owner. With a prohibition on the use of the
plastic bins in the handling of avocados to points within the
production area, the Committee hopes to break this cycle and move those
who prefer this size container to a lower cost alternative. While an
alternative cardboard container that holds an equivalent volume costs
only about $10, an individual plastic bin costs around $150. This
change should result in a cost savings.
By requiring handlers to supply information on the count per
container at the time of inspection, the industry will have access to
additional shipment information. There is little or no cost associated
with this action, as most handlers have this information readily
available and will be supplying it along with information already
provided. However, the industry will be able to use this data when
making harvesting and marketing decisions. As previously noted, there
currently is no reliable information widely available regarding the
sizes of avocados in the channels of commerce. Without good information
regarding the sizes available in the market, handlers have no way to
tell whether a certain size is overly available or in short supply.
Having access to this information will help the industry more
efficiently balance supply with demand, thus reducing periods of
oversupply and price variations, while providing the industry with
another tool to better market its fruit, serve customers, and maximize
returns.
This rule will have a positive impact on affected entities. The
changes were recommended to reduce costs and improve available industry
information. The reduction in costs associated with lost bins is
expected to benefit all handlers regardless of size. The availability
of more timely and accurate industry information will also benefit both
large and small handling operations. Consequently, the opportunities
and benefits of this rule are expected to be equally available to all.
An alternative to the actions recommended by the Committee was
considered prior to making the final recommendations. The alternative
considered was requesting the count per container from handlers on a
voluntary basis. However, by requiring the information under authority
of the order, all handlers will be required to participate, which will
mean more accurate reporting and information. Therefore, this
alternative was rejected.
This rule will require small and large avocado handlers to provide
some additional information at the time of inspection. However,
handlers have access to this information and are already providing
other information at the time of inspection. This action
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requires no additional forms. The information will be recorded by the
inspector on the inspection certificate.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), AMS has received OMB approval for the information
collection requirements for this marketing order program. These
requirements are approved under the Fruit Crops collection package, OMB
No. 0581-0189 OMB. The reporting modifications made by this rule are
small and will have no impact on the overall total burden hours
approved by OMB.
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, 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 avocado industry and all interested persons were invited to attend
and participate in Committee deliberations. Like all Committee
meetings, the September 8, 2004, and November 10, 2004, meetings were
public meetings and all entities, both large and small, were able to
express their views on these issues. Finally, 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 changes to the container and
reporting requirements currently prescribed under the Florida avocado
marketing order. Any comments received will be considered prior to
finalization of this rule.
After consideration of all relevant material presented, including
the Committee's recommendations, 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 that good cause exists for not postponing the effective date
of this rule until 30 days after publication in the Federal Register
because: (1) The Committee unanimously recommended these changes at
public meetings and interested parties had an opportunity to provide
input; (2) growers and handlers are aware of these changes; (3) the
Florida avocado shipping season started May 16, 2005; and (4) this rule
provides a 60-day comment period and any comments received will be
considered prior to finalization of this rule.
List of Subjects in 7 CFR Part 915
Avocados, Marketing agreements, Reporting and recordkeeping
requirements.
0
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 915.150 is amended by adding paragraph (e) to read as
follows:
Sec. 915.150 Reports.
* * * * *
(e) At the time of inspection, each handler shall provide to the
Federal-State Inspection Service the quantity and size of containers
being packed and inspected for the fresh avocado market. In addition,
each handler shall provide the number of avocados packed per container
(count per container).
0
3. Section 915.305 is amended by adding paragraph (c) to read as
follows:
Sec. 915.305 Florida Avocado Container Regulation 5.
* * * * *
(c) No handler shall handle any avocados for the fresh market in 20
bushel plastic field bins to destinations inside the production area.
Dated: June 20, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-12616 Filed 6-21-05; 3:37 pm]
BILLING CODE 3410-02-P