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[Federal Register: September 15, 2010 (Volume 75, Number 178)]
[Rules and Regulations]               
[Page 55942-55944]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se10-2]                         

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 915

[Doc. No. AMS-FV-10-0067; FV10-915-1 IR]

 
Avocados Grown in South Florida; Increased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule increases the assessment rate established for the 
Avocado Administrative Committee (Committee) for the 2010-11 and 
subsequent fiscal periods from $0.27 to $0.37 per 55-pound bushel 
container of Florida avocados handled. The Committee locally 
administers the marketing order which regulates the handling of 
avocados grown in South Florida. Assessments upon Florida avocado 
handlers are used by the Committee to fund reasonable and necessary 
expenses of the program. The fiscal period begins April 1 and ends 
March 31. The assessment rate will remain in effect indefinitely unless 
modified, suspended, or terminated.

DATES: Effective September 16, 2010. Comments received by November 15, 
2010, 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 Internet: http://www.regulations.gov. Comments should reference the document number and 
the date and page number of this issue of the Federal Register and will 
be available for public inspection in the Office of the Docket Clerk 
during regular business hours, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this rule 
will be included in the record and will be made available to the 
public. Please be advised that the identity of the individuals or 
entities submitting the comments will be made public on the Internet at 
the address provided above.

FOR FURTHER INFORMATION CONTACT: Doris Jamieson, Marketing Specialist 
or Christian D. Nissen, Regional Manager, 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: Doris.Jamieson@ams.usda.gov or Christian.Nissen@ams.usda.gov.
    Small businesses may request information on complying with this 
regulation by contacting Antoinette Carter, 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: 
Antoinette.Carter@ams.usda.gov.

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 Order 12866.
    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 April 1, 2010, 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,

[[Page 55943]]

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 2010-11 and subsequent fiscal periods from $0.27 to 
$0.37 per 55-pound bushel container of Florida avocados.
    Section 915.29(c) of 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 2005-06 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 July 22, 2010, and unanimously recommended 
2010-11 expenditures of $351,502 and an assessment rate of $0.37 per 
55-pound bushel container of avocados. In comparison, last year's 
budgeted expenditures were $259,400. The assessment rate of $0.37 is 
$0.10 higher than the rate currently in effect.
    The Committee held an emergency meeting to discuss an increase in 
the assessment rate in order to fund research to find an insecticide 
that will kill or control the Red Bay Ambrosia beetle. The beetle 
carries the Laurel Wilt fungus which can infect and kill avocado trees. 
Research into the beetle and fungus had been funded by the University 
of Florida. However, the Committee was informed that funding ceased on 
August 1, 2010. Without funding, researchers will be unable to continue 
testing to determine which insecticides work best to kill/control the 
beetle and at what application rate. The Committee believes it is 
essential for the industry that the research continues. Therefore, they 
voted to increase the assessment rate to provide the additional 
research money.
    The major expenditures recommended by the Committee for the 2010-11 
year include $110,000 for research, $98,732 for salaries, $48,000 for 
employee benefits, and $25,300 for insurance and bonds. Budgeted 
expenses for these items in 2009-10 were $25,000, $94,030, $48,000, and 
$25,300, respectively.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of Florida 
avocados. Florida avocado shipments for the year are estimated at 
1,000,000 55-pound bushel containers which should provide $370,000 in 
assessment income. Income derived from handler assessments, along with 
interest income and funds from the Committee's authorized reserve, will 
be adequate to cover budgeted expenses. Funds in the reserve (currently 
$242,000) will be kept within the maximum permitted by the order 
(approximately three fiscal periods' expenses as stated 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 is effective 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 2010-11 budget and those 
for subsequent fiscal periods will be reviewed and, as appropriate, 
approved by USDA.

Initial 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 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.
    There are approximately 30 handlers of Florida avocados subject to 
regulation under the order and approximately 300 producers of avocados 
in the production area. Small agricultural service firms, which include 
avocado handlers, are defined by the Small Business Administration 
(SBA) as those whose annual receipts are less than $7,000,000, and 
small agricultural producers are defined as those having annual 
receipts less than $750,000 (13 CFR 121.201).
    According to Committee data and information from the National 
Agricultural Statistical Service, the average price for Florida 
avocados during the 2009-10 season was around $16.50 per 55-pound 
bushel container and total shipments were near 900,000 55-pound 
bushels. Using the average price and shipment information provided by 
the Committee, the majority of avocado handlers could be considered 
small businesses under SBA's definition. In addition, based on avocado 
production, producer prices, and the total number of Florida avocado 
producers, the average annual producer revenue is less than $750,000. 
Consequently, the majority of avocado handlers and producers may be 
classified as small entities.
    This rule increases the assessment rate established for the 
Committee and collected from handlers for the 2010-11 and subsequent 
fiscal periods from $0.27 to $0.37 per 55-pound bushel container of 
Florida avocados. The Committee unanimously recommended 2010-11 
expenditures of $351,502 and an assessment rate of $0.37 per 55-poound 
bushel container. The assessment rate of $0.37 is $0.10 higher than the 
2009-10 rate. The quantity of assessable Florida avocados for the 2010-
11 season is estimated at 1,000,000. Thus, the $0.37 rate should 
provide $370,000 in assessment income and be adequate to meet this 
years expenses. Income derived from handler assessments, along with 
interest income and funds from the Committee's authorized reserve fund, 
will be adequate to cover budgeted expenses.
    The major expenditures recommended by the Committee for the 2010-11 
year include $110,000 for research, $98,732 for salaries, $48,000 for 
employee benefits, and $25,300 for insurance and bonds. Budgeted 
expenses for these items in 2009-10 were $25,000, $94,030, $48,000, and 
$25,300, respectively.
    The increase in assessment rate is needed to fund research to find 
an

[[Page 55944]]

insecticide that will kill or control the Red Bay Ambrosia beetle. The 
beetle carries the Laurel Wilt fungus which can infect and kill avocado 
trees. Research into the beetle and fungus had been funded by the 
University of Florida. However, the Committee was informed that funding 
ceased on August 1, 2010. Without funding, researchers will be unable 
to continue testing to determine which insecticides work best to kill/
control the beetle and at what application rate. The Committee believes 
it is essential for the industry that the research continues. 
Therefore, they voted to increase the assessment rate to provide the 
additional research money.
    The Committee reviewed and unanimously recommended 2010-11 
expenditures of $351,502 which included increases in research programs. 
Prior to arriving at this budget, alternative expenditure levels were 
discussed based upon the relative value of various research projects to 
the Florida avocado industry. The assessment rate of $0.37 per 55-pound 
bushel container of assessable Florida avocados was then determined by 
dividing the total recommended budget by the quantity of assessable 
avocados, estimated at 1,000,000 55-pound bushel containers for the 
2010-11 season. This is approximately $18,400 above the anticipated 
expenses, which the Committee determined to be acceptable.
    A review of historical information and preliminary information 
pertaining to the upcoming crop year indicates that the grower price 
for the 2010-11 season could range between $9.00 and $66.00 per 55-
pound bushel container of avocados. Therefore, the estimated assessment 
revenue for the 2010-11 season as a percentage of total grower revenue 
could range between .6 and 4 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. Some of the 
additional costs may be passed on to producers. However, 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 avocados industry and all interested persons 
were invited to attend the meeting and participate in Committee 
deliberations on all issues. Like all Committee meetings, the July 22, 
2010, meeting was a public meeting and all entities, both large and 
small, were able to express views on this issue. Finally, interested 
persons are invited to submit comments on this interim rule, including 
the regulatory and informational impacts of this action on small 
businesses.
    This action 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.
    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.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this rule.
    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/MarketingOrdersSmallBusinessGuide. 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 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 2010-11 fiscal period began on April 1, 2010, 
and the marketing order requires that the rate of assessment for each 
fiscal period apply to all assessable Florida avocados handled during 
such fiscal period; (2) the Committee needs to have sufficient funds to 
pay its expenses which are incurred on a continuous basis; (3) handlers 
are aware of this action which was unanimously recommended by the 
Committee at an emergency, public meeting and is similar to other 
assessment rate actions issued in past years; and (4) this interim rule 
provides a 60-day comment period, and all comments timely received will 
be considered prior to the finalization of this rule.

List of Subjects in 7 CFR Part 915

    Avocados, 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.

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2. Section 915.235 is revised to read as follows:

Sec.  915.235  Assessment rate.

    On and after April 1, 2010, an assessment rate of
    $0.37 per 55-pound container or equivalent is established for 
avocados grown in South Florida.

    Dated: September 10, 2010.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2010-22978 Filed 9-14-10; 8:45 am]
BILLING CODE 3410-02-P
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