Avocados Grown in South Florida; Secretary's Decision and Referendum Order on Proposed Amendment of Marketing Agreement No. 121 and Order No. 915, 38027-38030 [07-3408]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 72, Number 133 (Thursday, July 12, 2007)]
[Proposed Rules]
[Pages 38027-38030]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-3408]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 72, No. 133 / Thursday, July 12, 2007 / 
Proposed Rules

[[Page 38027]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 915

[Docket No. AO-254-A10; AMS-FV-06-0220; FV06-915-2]


Avocados Grown in South Florida; Secretary's Decision and 
Referendum Order on Proposed Amendment of Marketing Agreement No. 121 
and Order No. 915

AGENCY: Agricultural Marketing Service (AMS), USDA.

ACTION: Proposed rule and referendum order.

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SUMMARY: This decision proposes amendments to Marketing Agreement No. 
121 and Order No. 915 (order), which regulate avocados grown in South 
Florida, and provides growers with the opportunity to vote in a 
referendum to determine if they favor the changes. The amendments are 
based on those proposed by the Florida Avocado Administrative Committee 
(Committee), which is responsible for local administration of the 
order. The amendments would: Add authority for the Committee to borrow 
funds; revise voting requirements for changing the assessment rate; 
allow for District 1 nominations to be conducted by mail; and add 
authority for the Committee to accept voluntary contributions. The 
proposed amendments are intended to improve the operation and 
functioning of the marketing order program.

DATES: The referendum will be conducted from July 23 through August 6, 
2007. The representative period for the purpose of the referendum is 
April 1, 2006, through March 31, 2007.

FOR FURTHER INFORMATION CONTACT: Marc McFetridge or Melissa Schmaedick, 
Marketing Specialists, Fruit and Vegetable Programs, Marketing Order 
Administration Branch (MOAB), AMS, USDA, 1400 Independence Ave., SW., 
Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-
8938, or e-mail: Marc.McFetridge@usda.gov or 
Melissa.Schmaedick@usda.gov.
    Small businesses may request information on this proceeding 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: Prior documents in this proceeding: Notice 
of Hearing issued on July 18, 2006, and published in the July 24, 2006, 
issue of the Federal Register (71 FR 41740), and a Recommended Decision 
issued on March 23, 2007, and published in the March 30, 2007, issue of 
the Federal Register (72 FR 15056).
    This action is governed by the provisions of sections 556 and 557 
of Title 5 of the United States Code and is therefore excluded from the 
requirements of Executive Order 12866.

Preliminary Statement

    The proposed amendments are based on the record of a public hearing 
held August 16, 2006, in Homestead, Florida. The hearing was held to 
consider such amendments to the order. The hearing was held pursuant to 
the provisions of the Agricultural Marketing Agreement Act of 1937, as 
amended (7 U.S.C. 601 et seq.), hereinafter referred to as the ``Act,'' 
and the applicable rules of practice and procedure governing the 
formulation of marketing agreements and marketing orders (7 CFR part 
900). The Notice of Hearing was published in the Federal Register on 
July 24, 2006 (71 FR 41740), and contained amendment proposals 
submitted by the Committee.
    The amendments included in this decision would:
    1. Add the authority for the Committee to borrow funds;
    2. Revise the voting requirements for changing the assessment rate;
    3. Allow the District 1 nominations to be conducted by mail; and
    4. Add the authority for the Committee to accept voluntary 
contributions.
    In addition, AMS proposed to make changes as may be necessary to 
the order, if any of the proposed changes are adopted, so that all of 
the order's provisions conform to the effectuated amendments. To the 
extent necessary, conforming changes have been identified and made to 
the amendments.
    Upon the basis of evidence introduced at the hearing and the record 
thereof, the Administrator of AMS on March 23, 2007, filed with the 
Hearing Clerk, U.S. Department of Agriculture, a Recommended Decision 
and Opportunity to File Written Exceptions thereto by April 30, 2007. 
That document also announced AMS's intent to request approval of new 
information collection requirements to implement the program. Written 
exceptions on the proposed information collection requirements were due 
by May 29, 2007. None were filed.

Small Business Consideration

    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA), 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 so that small businesses will not be 
unduly or disproportionately burdened. Marketing orders and amendments 
thereto are unique in that they are normally brought about through 
group action of essentially small entities for their own benefit.
    Small agricultural producers have been defined by the Small 
Business Administration (SBA) (13 CFR 121.201) as those having annual 
receipts of less than $750,000. Small agricultural service firms, which 
include handlers regulated under the order, are defined as those with 
annual receipts of less than $6,500,000.

Avocado Industry Background and Overview

    The record indicates that there are an estimated 352 producers of 
avocados in the production area and 32 handlers subject to regulation 
under the order.
    According to the National Agricultural Statistics Service (NASS) 
and Committee data, the average price for Florida avocados during the 
2005-06 season was around $46.75 per 55-pound bushel container, and 
total shipments were near 470,000 55-pound bushel equivalent. Using 
this average price and shipment information, the majority of avocado 
handlers could be considered

[[Page 38028]]

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 less than 
$750,000. Thus, the majority of Florida avocado producers may also be 
classified as small entities.
    The NASS reported that in 2005, total Florida avocado bearing acres 
were 5,300 and the average yield per acre was 2.26 tons. The total 
Florida production reported in 2005 was 12,000 tons, with growers 
receiving an average (farm gate) price of $940/ton. The estimated total 
value of 2005 Florida avocado production was $11.28 million.
    Over the past 30 years the U.S. avocado industry has seen many 
changes. According to NASS, the total U.S. production acres for 
avocados have decreased by 13 percent, from 78,000 acres in 1982 to 
67,600 acres in 2005. Prices have trended upward from 1959 to 2005, 
although there has been significant variability in prices from year to 
year. The average grower price for the U.S. in 1959 was $109 per ton 
and in 2005 the average grower price was $1,280 per ton. The total 
value of U.S. avocado production has increased dramatically since 1959, 
reaching a peak of $394 million in 2003. The per capital consumption of 
fresh avocados has risen significantly since 1970. Between 1970 and 
2004, per capital consumption increased almost five-fold to 2.9 pounds 
per person in 2004. According to the hearing record, one of the factors 
that may be contributing to this increase is the new year-round 
availability of avocados due to the volume of imported avocados in 
addition to domestically produced avocados.
    Comparatively, Florida's avocado industry has seen similar trends. 
According to NASS, the production acreage has decreased by 53 percent 
over the last three decades. According to record evidence, the rapid 
decrease in Florida production acreage compared to that of U.S. acreage 
can be directly associated with crop damage resulting from recent 
hurricanes. Florida's production trended upward to 34,700 tons in the 
early 1980's and has shown great variability since. Production in 2005 
was at a 10 year low of 12,000 tons. After Hurricane Andrew, which 
affected the value of production in 1992 and 1993, the value of 
Florida's production has ranged from a high of $17.2 million in 2003 to 
a low of $11.3 million in 2005.

Material Issues

    The amendments included in this decision would: Add authority for 
the Committee to borrow funds; revise voting requirements for changing 
the assessment rate; allow for District 1 nominations to be conducted 
by mail; and add authority for the Committee to accept voluntary 
contributions.
    The proposals set forth in this Decision would streamline program 
organization, but are not expected to result in a significant change in 
industry production, handling or distribution activities. In discussing 
the impacts of the proposed amendments on growers and handlers, record 
evidence indicates that the changes are expected to be positive because 
the administration of the programs would be more efficient, and 
therefore more effective, in executing Committee duties and 
responsibilities. There would be no significant cost impact on either 
small or large growers or handlers.
    Interested persons were invited to present evidence at the hearing 
on the probable regulatory and informational impact of the proposed 
amendments to the order on small entities. In addition, the Recommended 
Decision invited exceptions from interested persons on the information 
collection burden. None were received. The record evidence is that the 
amendments are designed to increase efficiency in the functioning of 
the order.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap or conflict with this proposed rule. These amendments are 
designed to enhance the administration and functioning of the order to 
benefit the South Florida avocado industry.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), this notice announces that AMS is seeking approval from 
OMB for a new information collection request for Avocados Grown in 
South Florida, Marketing Order No. 915, under OMB No. 0581-NEW. Upon 
OMB approval, the additional burden will be merged into the information 
collection currently approved under OMB No. 0581-0189, ``Generic OMB 
Fruit Crops.''
    Title: Avocados Grown in South Florida, Marketing Order No. 915.
    OMB No.: 0581-NEW.
    Expiration Date of Approval: Three years from OMB date of approval.
    Type of Request: New collection.
    Abstract: The information collection requirement in this request is 
essential to provide growers and handlers with ballots so that 
nominations for the Committee can be conducted by mail.
    This information collected is used only by authorized 
representatives of USDA, including AMS, Fruit and Vegetable Programs 
regional and headquarters' staff, and authorized employees and agents 
of the Committee. Authorized Committee employees, agents, and the 
industry are the primary users of the information and AMS is the 
secondary user.

Grower Ballot To Nominate Members and Alternate Members for District 1 
or District 2

    Avocado growers would use this ballot to nominate members and 
alternative members, either for District 1 or District 2 (whichever is 
applicable), to serve on the Committee. The ballot would be used when 
voting by mail.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.083 hour per response.
    Respondents: Avocado growers.
    Estimated Number of Respondents: 352.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 29 hours.

Handler Ballot To Nominate Members and Alternate Members for District 1 
or District 2

    Avocado handlers would use this ballot to nominate members and 
alternate members for either District 1 or District 2 (whichever is 
applicable), to serve on the Committee. This ballot would be used when 
voting by mail.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 0.083 hour per response.
    Respondents: Avocado handlers.
    Estimated Number of Respondents: 32.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 3 hours.
    The Committee recommended amending the nomination process to allow 
for District 1 nominations to be conducted by mail.
    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.
    AMS is committed to complying with the Government Paperwork 
Elimination Act (GPEA), which requires Government agencies in general 
to provide the public the option of submitting information or 
transacting business electronically to the maximum extent possible.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide

[[Page 38029]]

increased opportunities for citizen access to Government information 
and services, and for other purposes.

Civil Justice Reform

    The amendments to Marketing Order 915 proposed herein have been 
reviewed under Executive Order 12988, Civil Justice Reform. They are 
not intended to have retroactive effect. If adopted, the proposed 
amendments would not preempt any State or local laws, regulations, or 
policies, unless they present an irreconcilable conflict with this 
proposal.
    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 no later than 20 days after the date of the 
entry of the ruling.

Findings and Conclusions

    The findings and conclusions, rulings, and general findings and 
determinations included in the Recommended Decision set forth in the 
March 30, 2007 issue of the Federal Register are hereby approved and 
adopted.

Marketing Agreement and Order

    Annexed hereto and made a part hereof is the document entitled 
``Order Amending the Order Regulating the Handling of Avocados Grown in 
Florida.'' This document has been decided upon as the detailed and 
appropriate means of effectuating the foregoing findings and 
conclusions.
    It is hereby ordered, That this entire decision be published in the 
Federal Register.

Referendum Order

    It is hereby directed that a referendum be conducted in accordance 
with the procedure for the conduct of referenda (7 CFR part 900.400 et 
seq.) to determine whether the annexed order amending the order 
regulating the handling of avocados grown in Florida is approved or 
favored by growers, as defined under the terms of the order, who during 
the representative period were engaged in the production of avocados in 
the production area.
    The representative period for the conduct of such referendum is 
hereby determined to be April 1, 2006, through March 31, 2007.
    The agents of the Secretary to conduct such referendum are hereby 
designated to be William G. Pimental and Christian D. Nissen, Southeast 
Marketing Field Office, Marketing Order Administration Branch, Fruit 
and Vegetable Programs, AMS, USDA; Telephone: (863) 324-3375, Fax: 
(863) 325-8793, or E-mail: William.Pimental@usda.gov or 
Christian.Nissen@usda.gov, respectively.

List of Subjects in 7 CFR Part 915

    Avocados, Marketing agreements, Reporting and recordkeeping 
requirements.

    Dated: July 9, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.

Order Amending the Order Regulating the Handling of Avocados Grown in 
Florida \1\
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    \1\ This order shall not become effective unless and until the 
requirements of Sec.  900.14 of the rules of practice and procedure 
governing proceeding to formulate marketing agreements and marketing 
orders have been met.
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Findings and Determinations

    The findings and determinations hereinafter set forth are 
supplementary to the findings and determinations which were previously 
made in connection with the issuance of the marketing agreement and 
order; and all said previous findings and determinations are hereby 
ratified and affirmed, except insofar as such findings and 
determinations may be in conflict with the findings and determinations 
set forth herein.
    (a) Findings and Determinations Upon the Basis of the Hearing 
Record.
    Pursuant to the provisions of the Agricultural Marketing Agreement 
Act of 1937, as amended (7 U.S.C. 601 et seq.), and the applicable 
rules of practice and procedure effective thereunder (7 CFR part 900), 
a public hearing was held upon the proposed amendments to the Marketing 
Agreement No. 121 and Order No. 915 (7 CFR part 915), regulating the 
handling of avocados grown in Florida. Upon the basis of the evidence 
introduced at such hearing and the record thereof, it is found that:
    (1) The marketing agreement and order, as amended, and as hereby 
proposed to be further amended, and all of the terms and conditions 
thereof, would tend to effectuate the declared policy of the Act;
    (2) The marketing agreement and order, as amended, and as hereby 
proposed to be further amended, regulate the handling of avocados grown 
in the production area in the same manner as, and are applicable only 
to, persons in the respective classes of commercial and industrial 
activity specified in the marketing agreement and order upon which a 
hearing has been held;
    (3) The marketing agreement and order, as amended, and as hereby 
proposed to be further amended, are limited to their application to the 
smallest regional production area which is practicable, consistent with 
carrying out the declared policy of the Act, and the issuance of 
several orders applicable to subdivisions of the production area would 
not effectively carry out the declared policy of the Act;
    (4) The marketing agreement and order, as amended, and as hereby 
proposed to be further amended, prescribe, insofar as practicable, such 
different terms applicable to different parts of the production area as 
are necessary to give due recognition to the differences in the 
production and marketing of avocados grown in the production area; and
    (5) All handling of avocados grown in the production area as 
defined in the marketing agreement and order, is in the current of 
interstate or foreign commerce or directly burdens, obstructs, or 
affects such commerce.

Order Relative to Handling

    It is therefore ordered, That on and after the effective date 
hereof, all handling of avocados grown in Florida shall be in 
conformity to, and in compliance with, the terms and conditions of the 
said order as hereby proposed to be amended as follows:
    The provisions of the proposed marketing agreement and order 
amending the order contained in the Recommended Decision issued by the 
Administrator on March 23, 2007, and published in the Federal Register 
(72 FR 15056) on March 30, 2007, will be and are the terms and 
provisions of this order amending the order and are set forth in full 
herein.

PART 915--AVOCADOS GROWN IN SOUTH FLORIDA

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

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

    2. In Sec.  915.11, paragraphs (a) and (b) are revised to read as 
follows:

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Sec.  915.11  District.

* * * * *
    (a) District 1 shall include Miami-Dade County.
    (b) District 2 shall include all of the production area except 
Miami-Dade County.
    3. In Sec.  915.22, paragraph (b)(1) is revised to read as follows:


Sec.  915.22  Nomination.

    (a) * * *
    (b) Successor members. (1) The Committee shall hold or cause to be 
held a meeting or meetings of growers and handlers in each district to 
designate nominees for successor members and alternate members of the 
Committee; or the Committee may conduct nominations in Districts 1 and 
2 by mail in a manner recommended by the Committee and approved by the 
Secretary. Such nominations shall be submitted to the Secretary by the 
Committee not later than March 1 of each year. The Committee shall 
prescribe procedural rules, not inconsistent with the provisions of 
this section, for the conduct of nomination.
* * * * *
    4. In Sec.  915.30, paragraph (c) is revised to read as follows:


Sec.  915.30  Procedure.

* * * * *
    (c) For any recommendation of the Committee for an assessment rate 
change, a quorum of seven Committee members and a two-thirds majority 
vote of approval of those in attendance is required.
    5. In Sec.  915.41, paragraph (b) is revised to read as follows:


Sec.  915.41  Assessments.

* * * * *
    (b) The Secretary shall fix the rate of assessment per 55-pounds of 
fruit or equivalent in any container or in bulk, to be paid by each 
such handler. At any time during or after a fiscal year, the Secretary 
may increase the rate of assessment, in order to secure sufficient 
funds to cover any later finding by the Secretary relative to the 
expense which may be incurred. Such increase shall be applied to all 
fruit handled during the applicable fiscal year. In order to provide 
funds for the administration of the provisions of this part, the 
Committee may accept the payment of assessments in advance, or borrow 
money on an emergency short-term basis. The authority of the Committee 
to borrow money is subject to approval of the Secretary and may be used 
only to meet financial obligations as the obligations occur or to allow 
the Committee to adjust its reserve funds to meet such obligations.
    6. Add a new Sec.  915.43 to read as follows:


Sec.  915.43  Contributions.

    The Committee may accept voluntary contributions. Such 
contributions shall be free from any encumbrances by the donor and the 
Committee shall retain complete control of their use.
    7. Revise Sec.  915.45 to read as follows:


Sec.  915.45  Production research, marketing research and development.

    The committee may, with the approval of the Secretary, establish or 
provide for the establishment of production research, marketing 
research and development projects designed to assist, improve or 
promote the marketing, distribution, and consumption or efficient 
production of avocados. Such products may provide for any form of 
marketing promotion, including paid advertising. The expenses of such 
projects shall be paid from funds collected pursuant to the applicable 
provisions of Sec.  915.41, or from such other funds as approved by the 
USDA.

[FR Doc. 07-3408 Filed 7-9-07; 4:32 pm]
BILLING CODE 3410-02-P