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[Federal Register Volume 77, Number 127 (Monday, July 2, 2012)]
[Rules and Regulations]
[Pages 39150-39153]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-16063]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 915

[Doc. No. AMS-FV-11-0094; FV12-915-1 IR]

Avocados Grown in South Florida; Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule decreases the assessment rate established for the 
Avocado Administrative Committee (Committee) for the 2012-13 and 
subsequent fiscal periods from $0.37 to $0.25 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 July 3, 2012. Comments received by August 31, 2012, 
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 and Agreement Division, Fruit and Vegetable Program, 
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

[[Page 39151]]

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 and Agreement Division, Fruit and Vegetable 
Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 325-8793, or 
Email: Doris.Jamieson@ams.usda.gov or Christian.Nissen@ams.usda.gov.
    Small businesses may request information on complying with this 
regulation by contacting Laurel May, Marketing Order and Agreement 
Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or Email: Laurel.May@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, 2012, and continue until amended, 
suspended, or terminated.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with USDA a petition 
stating that the order, any provision of the order, or any obligation 
imposed in connection with the order is not in accordance with law and 
request a modification of the order or to be exempted therefrom. Such 
handler is afforded the opportunity for a hearing on the petition. 
After the hearing, USDA would rule on the petition. The Act provides 
that the district court of the United States in any district in which 
the handler is an inhabitant, or has his or her principal place of 
business, has jurisdiction to review USDA's ruling on the petition, 
provided an action is filed not later than 20 days after the date of 
the entry of the ruling.
    This rule decreases the assessment rate established for the 
Committee for the 2012-13 and subsequent fiscal periods from $0.37 to 
$0.25 per 55-pound bushel container of avocados.
    The Florida avocado marketing order provides authority for the 
Committee, with the approval of USDA, to formulate an annual budget of 
expenses and collect assessments from handlers to administer the 
program. The members of the Committee are producers and handlers of 
Florida avocados. They are familiar with the Committee's needs and with 
the costs for goods and services in their local area and are thus in a 
position to formulate an appropriate budget and assessment rate. The 
assessment rate is formulated and discussed in a public meeting. Thus, 
all directly affected persons have an opportunity to participate and 
provide input.
    For the 2010-11 and subsequent fiscal periods, the Committee 
recommended, and USDA approved, an assessment rate that would continue 
in effect from fiscal period to fiscal period unless modified, 
suspended, or terminated by USDA upon recommendation and information 
submitted by the Committee or other information available to USDA.
    The Committee met on December 14, 2011, and unanimously recommended 
2012-13 expenditures of $324,575 and an assessment rate of $0.25 per 
55-pound bushel container of avocados. In comparison, last year's 
budgeted expenditures were $349,575. The assessment rate of $0.25 is 
$0.12 lower than the rate currently in effect. The Committee 
recommended the decrease in assessment rate due to a reduction in 
expenditures for research and to help reduce industry costs.
    The major expenditures recommended by the Committee for the 2012-13 
year include $101,705 for salaries, $75,000 for research, $48,000 for 
employee benefits, and $25,800 for insurance and bonds. Budgeted 
expenses for these items in 2011-12 were $101,705, $100,000, $48,000, 
and $25,800, respectively.
    The assessment rate recommended by the Committee was derived by 
reviewing anticipated expenses, expected shipments of Florida avocados, 
and available reserves. Florida avocado shipments for the year are 
estimated at 1,000,000 55-pound bushel containers which should provide 
$250,000 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 $315,000) 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 2012-13 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.

[[Page 39152]]

    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 (NASS), the average price for Florida 
avocados during the 2011-12 season was around $16.50 per 55-pound 
bushel container and total shipments were near 1,200,000 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 decreases the assessment rate established for the 
Committee and collected from handlers for the 2012-13 and subsequent 
fiscal periods from $0.37 to $0.25 per 55-pound bushel container of 
avocados. The Committee unanimously recommended 2012-13 expenditures of 
$324,575 and an assessment rate of $0.25 per 55-pound bushel container. 
The assessment rate of $0.25 is $0.12 lower than the 2011-12 rate. The 
quantity of assessable Florida avocados for the 2012-13 season is 
estimated at 1,000,000. Thus, the $0.25 rate should provide $250,000 in 
assessment income. Income derived from handler assessments, along with 
interest income and funds from the Committee's authorized reserves, 
will be adequate to cover budgeted expenses.
    The major expenditures recommended by the Committee for the 2012-13 
year include $101,705 for salaries, $75,000 for research, $48,000 for 
employee benefits, and $25,800 for insurance and bonds. Budgeted 
expenses for these items in 2011-12 were $101,705, $100,000, $48,000, 
and $25,800, respectively.
    The Committee recommended the decrease in assessment rate due to a 
reduction in expenditures for research and to help reduce industry 
costs.
    The Committee reviewed and unanimously recommended 2012-13 
expenditures of $324,575 which included decreases 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 $0.25 per 55-lb 
bushel container of assessable avocados was then determined by 
reviewing the total recommended budget, the quantity of assessable 
avocados, estimated at 1,000,000 55-lb bushel containers for the 2012-
13 season, and available reserves. Assessments will be approximately 
$74,575 less than 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 $5.00 and $56.00 per 55-
pound bushel container of avocados. Therefore, the estimated assessment 
revenue for the 2012-13 season as a percentage of total grower revenue 
could range between .4 and 5 percent.
    This action decreases the assessment obligation imposed on 
handlers. Assessments are applied uniformly on all handlers, and some 
of the costs may be passed on to producers. However, decreasing the 
assessment rate reduces the burden on handlers, and may reduce the 
burden on producers. In addition, the Committee's meeting was widely 
publicized throughout the Florida avocado industry and all interested 
persons were invited to attend the meeting and participate in Committee 
deliberations on all issues. Like all Committee meetings, the December 
14, 2011, 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.
    In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. 
chapter 35), the order's information collection requirements have been 
previously approved by the Office of Management and Budget (OMB) and 
assigned OMB No. 0581-0189 Generic OMB Fruit Crops. No changes in those 
requirements as a result of this action are necessary. Should any 
changes become necessary, they would be submitted to OMB for approval.
    This 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: 
www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about 
the compliance guide should be sent to Laurel May 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 2012-13 fiscal period begins on April 1, 
2012, 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 a 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 finalization of this rule.

List of Subjects in 7 CFR Part 915

    Avocados, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, 7 CFR part 915 is 
amended as follows:

[[Page 39153]]

PART 915--AVOCADOS GROWN IN SOUTH FLORIDA

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

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

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

Sec.  915.235  Assessment rate.

    On and after April 1, 2012, an assessment rate of $0.25 per 55-
pound container or equivalent is established for avocados grown in 
South Florida.

    Dated: June 26, 2012.
David R. Shipman,
Administrator, Agricultural Marketing Service.
[FR Doc. 2012-16063 Filed 6-29-12; 8:45 am]
BILLING CODE 3410-02-P
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