[Federal Register: March 30, 2007 (Volume 72, Number 61)]
[Proposed Rules]
[Page 15056-15063]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30mr07-16]
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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; Recommended Decision on Proposed
Amendments of Marketing Order No. 915
AGENCY: Agricultural Marketing Service (AMS), USDA.
ACTION: Proposed rule and opportunity to file exceptions.
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SUMMARY: This is a recommended decision regarding proposed
[[Page 15057]]
amendments to Marketing Order No. 915 (order), which regulates the
handling of avocados grown in Florida. The amendments were proposed by
the Florida Avocado Administrative Committee (Committee), which is
responsible for local administration of the order. The amendments
included in this recommended 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 proposed amendments are intended to improve the
operation and functioning of the marketing order program. This
recommended decision invites written exceptions on the proposed
amendments. This rule also announces AMS's intention to request
approval by the Office of Management and Budget (OMB) of a new
information collection.
DATES: Written exceptions must be filed by April 30, 2007. Pursuant to
the Paperwork Reduction Act, comments on the information collection
burden must be received by May 29, 2007.
ADDRESSES: Written exceptions should be filed with the Hearing Clerk,
U.S. Department of Agriculture, room 1081-S, Washington, DC 20250-9200,
Fax: (202) 720-9776 or via the Internet at http://www.regulations.gov.
All comments should reference the docket number and the date and page
number of this issue of the Federal Register. Comments will be made
available for public inspection in the Office of the Hearing Clerk
during regular business hours, or can be viewed at: http://www.regulations.gov
.
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, 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).
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
Notice is hereby given of the filing with the Hearing Clerk of this
recommended decision with respect to the proposed amendments to
Marketing Order 915 regulating the handling of avocados grown in
Florida, and the opportunity to file written exceptions thereto. Copies
of this decision can be obtained from Marc McFetridge whose address is
listed above.
This recommended decision is issued 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 orders (7 CFR part 900).
The proposed amendments are based on the record of a public hearing
held August 16, 2006, in Homestead, Florida. Notice of this hearing was
published in the Federal Register on July 24, 2006 (71 FR 41740). The
notice of hearing contained proposals submitted by the Committee.
The proposed amendments are the result of the Committee's review of
the order. The Committee met several times in 2005 and drafted proposed
amendments to the order and presented them at industry meetings. The
proposed amendments were then unanimously approved by the Committee.
The amendments are intended to streamline organization and
administration of the marketing order program. The Committee's request
for a public hearing was submitted to the USDA on May 1, 2006.
The Committee's proposed amendments to the order are summarized
below:
1. Amend the order to provide the Committee authority to borrow
funds. This proposal would amend Sec. 915.41, Assessments.
2. Amend the order by revising the voting requirements for changing
the assessment rate. This change would remove the current voting
requirement for rate increases above $0.20 per bushel that provides for
a quorum of eight Committee members and eight concurring votes for
approval. The new voting requirement would be applicable to all
assessment rate increases and would provide for a quorum of seven
Committee members and a two-thirds majority vote of those in attendance
for approval. This proposal would amend Sec. 915.30, Procedure.
3. Amend the order to allow District 1 nominations to be conducted
by mail. District 2 nomination procedures already provide that
authority. This proposal would amend Sec. 915.22, Nomination.
4. Add authority to the order for the Committee to accept voluntary
contributions. This proposal would add a new Sec. 915.43,
Contributions.
USDA also proposes to make changes to the order as may be
necessary, if any of the proposed changes are adopted, so that all of
the order's provisions conform to the effectuated amendments.
Nine industry witnesses testified at the hearing. These witnesses
represented fresh avocado producers and handlers in the production
area. All of the witnesses testified in support of the proposed
amendments to the order.
Industry witnesses addressed the need for adding authority to
borrow funds. Witnesses indicated that multiple years of weather-
related disasters have led to economic hardships for the Florida
avocado industry and, as a result, lower assessment collections to fund
the administrative costs of the Committee. The authority to borrow
funds would enable the Committee access to an additional source for
cash flow in addition to assessments, thereby providing the Committee
with flexibility in covering their operational costs during times of
economic hardship.
Industry witnesses stated their support for revising the voting
requirements for changing the assessment rate. This amendment would
remove the current voting requirement for rate increases above $0.20
per bushel that provides for a quorum of eight Committee members and
eight concurring votes for approval. The new voting requirement would
be applicable to all assessment rate increases and would provide for a
quorum of seven Committee members and a two-thirds majority vote of
those in attendance for approval. Revising these voting requirements
would allow the Committee to become more flexible in responding to
budgetary emergencies due to economic fluctuations in the avocado
industry.
Witnesses also supported the proposal to allow for District 1
nominations to be conducted by mail. While the authority already exists
to conduct nominations in District 2 by mail, voters in District 1 are
required to travel to nomination meetings to cast their vote in
District 1. Many witnesses cited grower reluctance to attend these
meetings because of
[[Page 15058]]
travel related expenses and lost wages due to time away from the
workplace. Thus, voter participation in District 1 nominations has been
consistently lower compared to those held in District 2. Witnesses
stated that this proposal would broaden grower participation in the
Committee nominations for District 1.
Lastly, industry witnesses testified in support of adding authority
to accept voluntary contributions. According to the record, the
authority to accept voluntary contributions would enable the Committee
access to an additional source of revenue besides assessments. Some
witnesses stated that voluntary contributions could also eliminate the
need to raise the assessment rate and could support Committee research
and development activities.
At the conclusion of the hearing, the Administrative Law Judge
stated that the final date for interested persons to file proposed
findings and conclusions or written arguments and briefs based on the
evidence received at the hearing would be 30 days after USDA's posting
of the hearing record transcript. The transcript was posted on
September 13, 2006. Therefore, the briefing period ended October 13,
2006. One brief was filed. The brief stated a need for a technical
change to Sec. 915.11. The brief noted that the name of Dade County
has changed to Miami-Dade County. This correction has been incorporated
as a technical change throughout this amendatory proceeding.
Material Issues
The material issues presented on the record of hearing are as
follows:
(1) Whether to add authority to borrow funds;
(2) Whether to revise the voting requirements for changing the
assessment rate;
(3) Whether to allow for District 1 nominations to be conducted by
mail; and
(4) Whether to add authority to accept voluntary contributions.
Findings and Conclusions
The following findings and conclusions on the material issues are
based on evidence presented at the hearing and the record thereof.
Material Issue Number 1--Authority to Borrow Funds
Section 915.41, Assessments, should be amended to provide the
Committee with authority to borrow funds. Any such funds would be
limited for use by the Committee to meet its administrative
responsibilities under the order during times of economic hardship and
would be subject to prior approval by USDA.
Under the current definition of the order, the Committee does not
have the authority to borrow funds. Witnesses explained that without
the authority to borrow funds or access to other non-assessment
resources, the Committee is reliant on production-related revenue to
fund its administrative operations.
According to the record, multiple years of weather related-
disasters have resulted in lower assessment collections due to heavy
losses of crops and production capacity. As a result, the Committee has
relied on its financial reserves to continue its administrative
operations. After more than five years of consecutive weather damage
and low assessment collections, the Committee has depleted its
reserves. Witnesses stated that the authority to borrow funds would be
essential to the Committee's ability to continue operations during any
future times of economic hardship.
As an example, witnesses cited USDA's grant of special emergency,
short-term authority to borrow funds during fiscal year 2005-2006. It
was indicated that without those borrowed funds, the Committee would
not have been able to continue to operate. The Committee has since
repaid its loan, and witnesses stated that the borrowed funds were
critical to the Committee's ability to continue functioning during that
time.
If implemented, the authority to borrow funds would be limited to
use by the Committee to meet its administrative responsibilities under
the order only during times of economic hardship. According to record
evidence, the Committee's ability to borrow funds would be based on the
financial history and assets of the Committee. If a loan, or a line of
credit, for example, were approved, the Committee would be required to
repay the loan by the end of the fiscal year in which the funds were
borrowed. Loans could be renewed for the following fiscal year and
would be subject to USDA oversight as part of the Committee's annual
budgetary process. Witnesses explained that any interest incurred on
the loan would be offset by the benefit of allowing the Committee to
finance its operations.
Based on record evidence, USDA recommends modifying the language
for this proposed amendment to clarify that the authority to borrow
funds would only be used in emergency situations, on a short-term basis
and to meet financial obligations as those obligations occur, or to
allow the Committee to adjust its reserve funds to meet such
obligations. In addition, the language should be clarified to specify
that any borrowing activities of the Committee would be subject to
prior review and approval by USDA. These clarifying changes have been
incorporated in the amendatory text section of this recommended
decision.
It is recommended that the order be amended to provide the
Committee with authority to borrow funds. Without access to additional
funds during times of economic hardship the Committee may not be able
to meet their administrative responsibilities. The amount of the loan
would be based on the financial history of the assessments collected by
the Committee and would be repaid by the end of the fiscal year with
the possibility for renewal. Any such loan would require prior approval
by USDA.
For the reasons outlined above, Sec. 915.41 should be amended to
provide the Committee the authority to borrow funds, subject to USDA
approval. USDA recommends modifying the amendatory text of this
proposal so that the authority to borrow funds would only be used in
emergency, short-term situations, and that such authority would be
subject to USDA's prior approval. There was no opposition testimony on
this issue.
Material Issue Number 2--Revision of the Voting Requirements for
Committee Recommendations To Increase the Assessment Rate
Section 915.30, Procedures, should be amended to revise the voting
requirements for Committee recommendations for assessment rate changes
above $0.20 per bushel. This change would remove the current voting
requirement for rate increases above $0.20 per bushel provides for a
quorum of eight Committee members and eight concurring votes for
approval. The new voting requirement would be applicable to all
assessment rate increases and would provide for a quorum of seven
Committee members and a two-thirds majority vote of those in attendance
for approval.
The avocado marketing order provides authority for the Committee,
with approval of USDA, to formulate an annual budget of expenses and
collect assessments from handlers to administer the program. The
members of the Board are producers and handlers of avocados. They are
familiar with the Board'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
[[Page 15059]]
input. The assessment rate can be revised when it is recommended by the
Committee and approved the USDA.
Authority to fix the rate of assessment to be paid by each handler
and to collect such assessment appears in Sec. 915.41 of the order. In
addition, Sec. 915.45 of the order provides that the Committee, with
the approval of USDA, may establish or provide for the establishment of
production research, marketing research, and market development
projects designed to assist, improve, or promote the marketing,
distribution, consumption, or efficient production of avocados. The
expense of such projects is paid from funds collected pursuant to Sec.
915.41 (Assessments).
Under the current definition of the order, the Committee must have
a quorum of eight and at least eight concurring votes to increase
assessment rates above $0.20 per bushel. The Committee consists of ten
members, and the quorum requirement for all other voting purposes is
seven members.
According to record evidence, the Committee has had difficulties
meeting the eight-member quorum and consensus requirement specific to
assessment rate increases above $0.20 per bushel. Witnesses explained
that recommendations to increase the assessment rate above this level
typically arise during periods of economic hardship, such as crop loss
after a hurricane. During the 2004-2005 season, the last time the
assessment rate was changed to a level above $0.20 per bushel, it took
three separate meeting attempts to receive the required quorum votes of
eight. The assessment rate change was needed to increase the reserve
funds for continued operation of the committee because crop estimates
were below expectations and reserve funds had become low. As a result,
the Committee has not been able to be as responsive as it wanted to be
in obtaining adequate funds to operate the Committee.
The Committee's proposal to relax voting requirements for increases
in the assessment rate would facilitate the Committee's ability to be
responsive. The amendment would require that for any change in the
assessment rate a quorum of seven Committee members would be required
and a two-thirds consensus vote of attending members would be needed to
approve the change.
According to the record, the original intent regarding voting
requirements for assessment rates above $0.20 per bushel was to provide
growers with a voice in significant changes in the assessment rate.
Historically there has been tension between growers and handlers, so
the order was written to provide balance between growers and handlers
when changes in the assessment rate above the specified threshold were
proposed. According to witnesses there now exists general unity between
handlers and growers, especially with regard to this specific proposal.
Handlers and growers agree that especially during times of economic
hardships it is beneficial to relax the voting requirements to
facilitate the Committee's ability to be responsive.
The language for this proposed amendment published in the Notice of
Hearing only states a \2/3\ majority requirement but did not clarify
that a quorum was necessary. For this reason, USDA proposes that
proposed amendatory language for Sec. 915.30, Procedure, be modified
to clarify that a quorum of seven Committee members is required in
addition to the two-thirds majority vote to recommend an assessment
rate change. The modified language would read as follows: ``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.''
It is recommended that the order be amended to revise the voting
requirements to increase the assessment rate above $0.20 per bushel.
The ability to recommend any rate change with a two-thirds majority
vote, given that the quorum requirement is met, would allow the
Committee more flexibility in responding to the needs of the industry.
Without this authority, the Committee's ability to react and modify the
assessment rate to cover operational costs would be unnecessarily
limited.
For the reasons above, it is recommended that Sec. 915.30 be
amended. This amendment would remove the current voting requirement for
rate increases above $0.20 per bushel that stipulates a quorum of eight
Committee members and eight concurring votes for approval. The new
voting requirement, modified by USDA as recommended above, would be
applicable to all assessment rate increases and would provide for a
quorum of seven Committee members and a two-thirds majority vote of
those in attendance for approval. There was no opposition testimony on
this issue.
Material Issue Number 3--Allow for District 1 Nominations To Be
Conducted by Mail
Section 915.22, Nomination, should be amended to provide District 1
with the authority to conduct nominations by mail.
Under the current nomination rules of the order, growers residing
in District 1 must vote in person at the designated polling office,
which is located at the Miami-Dade County Extension office. The
proposed amendment would allow growers to vote via mail on nominations
for the Committee. If implemented, this amendment would also remove the
Committee's financial outlays associated with holding a nomination
meeting, and would reduce the financial and other burdens currently
required of growers commuting to vote.
Witnesses testified that a considerable amount of growers in
District 1 do not live within an easily commutable radius of the
nomination meeting location. According to the record, some growers can
spend hours commuting to the meeting due to both distance and traffic
congestion. Witnesses stated that time spent commuting often results in
lost wages because of time spent away from the workplace. Along with
lost wages, growers are also burdened with the costs of fuel for their
commute.
According to witnesses, the burdens of commuting to a nomination
meeting have led to poor voter turnout. Witnesses stated that during
the previous District 1 nomination, voter turnout equaled less than 30
growers, which is fewer than 15% of the total 220 registered growers in
that district. According to the record, growers in District 1 have
stated a reluctance to participate because the burdens associated with
traveling to the meeting are too great.
A witness also testified that the costs associated with conducting
a nomination meeting are not justified due to low voter participation.
The witness stated that both a USDA representative and a Committee
staff member are required to conduct nomination meetings. Given that
few growers in District 1 elect to attend the nomination meetings, two
employee work days are used to accommodate a very low level of grower
participation.
Witnesses also stated that growers in District 2 have the authority
to vote via mail. The benefits of voting by mail in District 1 could be
obtained without additional costs incurred by the Committee. The cost
of mailing the ballots within District 1 would be less than the costs
associated with staffing a voting location.
Also, continuance referenda, considered by witnesses to be the most
important vote that growers participate in, are conducted by mail.
Thus, witnesses stated that the precedence for successful voter
participation by mail exists under the order and should be extended to
nomination voting for District 1.
[[Page 15060]]
Witnesses supported the Committee's recommendation to change the
date for submitting names of the nominees from February 15 to March 1.
The extra time is needed to accommodate mail balloting.
According to the record, the benefits of allowing District 1 vote
by mail include: increased voter grower participation in the District 1
Committee nominations, reduced costs on growers' time and money, and
reduced costs associated with conducting a nomination meeting. Allowing
District 1 to vote by mail would increase grower participation in the
voting process without incurring additional expenses.
For the reasons above, it is recommended that Sec. 915.22 be
amended to provide the Committee with the authority to conduct
nominations by mail in District 1. There was no opposition testimony on
this issue.
Material Issue Number 4--Authority To Accept Voluntary Contributions
A new Sec. 915.43, Contribution, should be added to provide the
Committee with the authority to accept voluntary contributions. Such
contributions should be free from any encumbrances by the donor so that
the Committee would retain complete control of their use.
Under the current order, the Committee does not have the authority
to accept voluntary contributions. All marketing order activities are
funded through handler assessments. Adding Sec. 915.43 to the order
would provide the Committee with the authority to accept voluntary
contributions. According to the record, voluntary contributions could
help the Committee meet its administrative responsibilities under the
order during times of economic hardships and may also provide
additional funds for Committee research and development activities.
Witnesses testified that the authority to accept voluntary
contributions would be beneficial, especially during times of
emergency, and that such monies could potentially assist in averting
the need to increase handler assessments during those times. According
to witnesses, if contributions are available, then the Committee should
have the authority to accept them.
Voluntary contributions could also assist the Committee in
addressing complex crop growth and development issues facing the
avocado industry. Witnesses stated that voluntary contributions could
fund research on disease and pest issues that threaten the industry
which, due to a lack of adequate funds, the Committee has not been able
to address. The proposal to add authority to the order to use voluntary
contributions for production research, marketing research and
development activities was discussed and supported by witnesses at the
hearing. For this reason, and based on supporting evidence found in the
record of hearing, USDA recommends a conforming change to Sec. 915.45,
Production research, marketing research and development, of the order.
This section should be modified to allow for such activities to be to
be paid for by either assessment funds (provided for under Sec.
915.41, Assessments) or any receipts received as contributions
(proposed under the new Sec. 915.43, Contributions). This proposed
conforming change has been included in the regulatory text of this
recommended decision.
It is recommended that the order be amended to add the authority
for the Committee to accept voluntary contributions. Currently the
Committee does not have the authority under the order to accept
voluntary contributions from any source. Providing the Committee with
the authority to accept voluntary contributions could help the
Committee meet its administrative responsibilities under the order.
Also, voluntary contributions could be used to conduct research. For
the reasons above, it is recommended that Sec. 915.43 be added to
provide the authority for the Committee to accept voluntary
contributions. Based on the record, USDA is also recommending a
conforming change to Sec. 915.45, Production research, marketing
research and development, so that voluntary contributions, in addition
to assessments, may be used for activities provided for under this
provision. There was no opposition testimony on this issue.
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 initial
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.
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 business. The record evidence is that
while minimal costs may occur upon implementation of some of the
proposed amendments, those costs would be outweighed by the benefits
expected to accrue to the Florida fresh market avocado industry.
Avocado Industry Background and Overview
There are approximately 300 producers of avocados in the production
area and approximately 35 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 the
average price and shipment information provided by the Committee, the
majority of 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 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
[[Page 15061]]
and 2004, per capital consumption increased almost five-fold to 2.9
pounds per person in 2004. According to the record, the availability of
imported avocados, in addition to domestically produced avocados,
resulting in year-round availability could be contributing to this
increase.
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 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.
Proposal 1, Adding the Authority To Borrow Funds
The proposal described in Material Issue No. 1 would amend Sec.
915.41, Assessments, to add authority for the Committee to borrow
funds. If implemented, the authority to borrow funds would be limited
to use by the Committee to meet its administrative responsibilities
under the order during times of economic hardship.
Witnesses supported this proposal by stating that the authority to
borrow funds would provide the Committee with an alternative revenue
source besides assessments. The industry has experienced multiple years
of economic hardship resulting in decreased production levels. Lower
production levels reduce the amount of assessments collected from the
handlers, which has resulted in depleting the Committee's monetary
reserve over past years.
According to the record, any interest incurred by the Committee on
the borrowed funds would be offset by the benefit of keeping the
Committee operating. Thus, no significant impact on small business
entities is anticipated.
Proposal 2, Revising the Voting Requirements for Committee
Recommendations To Increase the Assessment Rate
The proposal described in Material Issue No. 2 would amend Sec.
915.30, Procedure, to revise the current voting requirements for
Committee recommendations to increase the assessment rate above $0.20
per bushel from eight concurring votes to a two-thirds majority vote of
those Committee members in attendance. If implemented, this proposed
amendment would allow the Committee to be more flexible in dealing with
inflation and economic hardships that impact the Committee's monetary
reserves.
Witnesses supported this proposal by stating that the current
voting requirements have resulted in delaying the Committee's ability
to quickly respond to needs for an increase in assessments. According
to the record, during the 2004-2005 season, the last time the
assessment rate was changed, it took three separate meeting attempts to
receive the required quorum votes of eight. The assessment rate change
was needed to increase the reserve funds for continued operation of the
Committee because crop estimates were below expectations and reserve
funds were low.
Relaxing the voting requirements would reduce the probability that
multiple meetings would need to be held before quorum was met, as well
as increase the Committee's ability to effectively respond to budget
needs. Therefore the costs of revising the voting requirements should
be out weighed by the benefits.
Proposal 3, Allowing for District 1 Nominations To Be Conducted by Mail
The proposal described in Material Issue No. 3 would amend Sec.
915.22, Nomination, to provide the Committee with the authority to
conduct nominations for District 1 by mail.
Under the current nomination rules, growers living in District 1
must vote in person at the designated polling office, which is located
at the Miami-Dade County Extension office. The proposed amendment would
allow growers to vote via mail on nominations for the Committee. If
implemented, this amendment would reduce financial outlays associated
with maintaining a physical voting location, and would reduce the
financial and physical burdens currently required of growers commuting
to vote.
The impact for providing the Committee with the authority to
conduct nominations by mail for District 1 would result with increased
mailing costs. Any increased mailing cost would be less than or equal
to current staffing costs. Witnesses testified that the benefits of
increased grower participation and reduced transportation costs for
growers would offset any possible costs associated with this proposal.
Proposal 4, Adding Authority To Accept Voluntary Contributions
The proposal described in Material Issue No. 4 would add a new
Sec. 915.43, Contributions, and would allow the Committee to accept
voluntary contributions. Contributions would be free from any
encumbrances by the donor and, according to the record, the
contributions could be used to cover operational costs during times of
economic hardships or fund research. According to the hearing record,
the Committee would retain oversight over such contributions.
Witnesses supported this proposal by stating that it would provide
the Committee and the industry with an additional source of revenue to
cover operational costs or to fund research. It is not expected that
this proposal would result in any additional costs to growers or
handlers.
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.
[[Page 15062]]
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.
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 marketing
order to the benefit of the industry.
Committee meetings regarding these proposals as well as the hearing
date were widely publicized throughout the Florida avocado industry,
and all interested persons were invited to attend the meetings, the
hearing and participate in Committee deliberations on all issues. All
Committee meetings and the hearing were public forums and all entities,
both large and small, were able to express views on these issues.
Finally, interested persons are invited to submit information on the
regulatory and informational impacts of this action on small
businesses.
The 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.
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.
Rulings on Briefs of Interested Persons
Briefs, proposed findings and conclusions, and the evidence in the
record were considered in making the findings and conclusions set forth
in this recommended decision. To the extent that the suggested findings
and conclusions filed by interested persons are inconsistent with the
findings and conclusions of this recommended decision, the requests to
make such findings or to reach such conclusions are denied.
General Findings
The findings 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:
(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.
A 30-day comment period is provided to allow interested persons to
respond to this proposal. Thirty days is deemed appropriate so that the
proposed amendments may be implemented as close to the beginning of the
coming crop year as possible. The next crop year begins April 1. All
written exceptions timely received will be considered and a grower
referendum will be conducted before these proposals are implemented.
List of Subjects in 7 CFR Part 915
Avocados, Marketing agreements, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble the Agricultural
Marketing Service proposes to amend title 7 part 915 of the Code of
Federal Regulations as follows:
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:
[[Page 15063]]
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.
(a) * * *
(b) * * *
(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.
(a) * * *
(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.
Dated: March 23, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E7-5792 Filed 3-29-07; 8:45 am]
BILLING CODE 3410-02-P