[Federal Register Volume 59, Number 64 (Monday, April 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7890]


[[Page Unknown]]

[Federal Register: April 4, 1994]


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DEPARTMENT OF AGRICULTURE
7 CFR Part 944

[Docket No. FV-91-288-PR]

 

Fruits; Imported (Avocados); Reinstatement and Revision of 
Avocado Import Maturity Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would reinstate, with revision, temporarily 
suspended maturity requirements based on minimum sizes (diameters and 
weights) and skin color for avocados imported into the United States. 
These maturity requirements were temporarily suspended to provide the 
United States Trade Representative (USTR) adequate time to review 
contemplated changes in the import requirements. This proposed rule 
would also add an exemption for certain varieties of avocados, and 
remove the exemption for avocados grown in the southern hemisphere. 
This proposed rule would also add exemptions from maturity requirements 
for avocados imported for certain uses. This proposed rule is needed so 
that imported avocados meet the same minimum size and color maturity 
requirements as those established for avocados under the Federal 
marketing order covering Florida avocados, consistent with section 8e 
of the Agricultural Marketing Agreement Act of 1937.

DATES: Comments must be received by May 4, 1994.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule. Comments must be sent in triplicate to 
the Docket Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 
96456, room 2523-S, Washington, D.C. 20090-6456, or by facsimile at 
202-720-5698. Comments should reference the docket 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.

FOR FURTHER INFORMATION CONTACT: Caroline C. Thorpe, Marketing 
Specialist, Marketing Order Administration Branch, Fruit and Vegetable 
Division, AMS, USDA, P.O. Box 96456, room 2523-S, Washington, DC 20090-
6456; telephone: 202-720-5331; or Aleck J. Jonas, Southeast Marketing 
Field Office, USDA/AMS, P.O. Box 2276, Winter Haven, Florida 33883; 
telephone: 813-299-4770.

SUPPLEMENTARY INFORMATION: This proposed rule is issued under section 
8e (7 U.S.C. section 608e-1) of the Agricultural Marketing Agreement 
Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as 
the Act. Section 8e of the Act provides that whenever specified 
commodities, including avocados, are regulated under a Federal 
marketing order, imports of these commodities into the United States 
are prohibited unless they meet the same or comparable grade, size, 
quality, or maturity requirements as those in effect for domestically 
produced commodities. The Secretary has determined that minimum weight 
and diameter maturity import requirements for avocados imported into 
the United States should be the same as such requirements applied to 
avocados grown in Florida under Marketing Order No. 915 (7 CFR part 
915), hereinafter referred to as the order.
    The Department is issuing this rule in conformance with Executive 
Order 12866.
    This proposed rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. This action is not intended to have retroactive 
effect. This proposed rule will not preempt any state or local laws, 
regulations, or policies, unless they present an irreconcilable 
conflict with this rule. There are no administrative procedures which 
must be exhausted prior to any judicial challenge to the provisions of 
this rule.
    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Administrator of the Agricultural Marketing Service 
(AMS) has considered the economic impact of this action on small 
entities.
    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 rules issued thereunder, are unique in that 
they are brought about through group action of essentially small 
entities acting on their own behalf. Thus, both statutes have small 
entity orientation and compatibility. Import regulations issued under 
the Act are based on those established under Federal marketing orders.
    There are about 20 avocado importers who would be subject to the 
proposed avocado import maturity requirements. Small agricultural 
service firms, which include importers, have been defined by the Small 
Business Administration (13 CFR 121.601) as those whose annual receipts 
are less than $3,500,000. A majority of these importers may be 
classified as small entities.
    Minimum size (weight and diameter) and skin color maturity 
requirements for imported avocados in Sec. 944.31 (7 CFR 944.31) were 
continuously in effect for several years prior to their suspension by a 
final rule issued May 15, 1991 (56 FR 23009, May 20, 1991). The avocado 
import maturity requirements were temporarily suspended to provide the 
USTR adequate time to review contemplated changes in those 
requirements, as required by section 8e of the Act. Suspension of the 
avocado import maturity requirements became necessary when the Florida 
avocado maturity requirements in Sec. 915.332 (7 CFR 915.332), upon 
which the avocado import maturity requirements were based, were revised 
on May 15, 1991 (56 FR 23005, May 20, 1991). This revision was 
finalized on September 4, 1991 (56 FR 46224, September 11, 1991). 
Section 915.332 was most recently amended to make calendar date 
adjustments in the shipping schedule for several varieties of Florida 
avocados on June 29, 1993 (58 FR 34684, June 29, 1993), and that rule 
was finalized on October 4, 1993 (58 FR 46759, September 3, 1993).
    Prior to suspension, the avocado import maturity requirements were 
based on minimum weights and diameters applied to avocados grown in all 
foreign countries, except for those grown in southern hemisphere 
countries. Such requirements were applied to each variety for a 
specific time period during the first part of the shipping period. The 
minimum weights or diameters were not applied to avocados grown in 
southern hemisphere countries, such as Chile, where practically all 
imported southern hemisphere avocados have originated in recent years, 
because the southern hemisphere's avocado growing season and various 
shipping periods differed from those in Florida. The import maturity 
requirements based on minimum weights or diameters were applied to 
avocados grown in northern hemisphere countries, such as those in the 
Bahamas and the Dominican Republic, where practically all northern 
hemisphere imported avocados have originated in recent years, because 
their growing season and various shipping periods are similar to those 
in Florida.
    The avocado import maturity requirements based on skin color for 
certain varieties of avocados which turn red or purple when mature were 
applied to avocados imported from all foreign countries in both the 
southern and northern hemispheres. Such requirements applied to all 
avocados grown in both hemispheres, because all such avocados turn 
color when mature regardless of where they were grown.
    This proposed rule would also reinstate the minimum size (weight 
and diameter) requirements for avocados and the skin color maturity 
requirements for avocados imported from all foreign countries by 
lifting the suspended provisions of Sec. 944.31. However, this proposed 
rule would exempt the Hass, Fuerte, Zutano, and Edranol varieties of 
avocados from such import maturity requirements, because such varieties 
are not grown in commercial quantities in Florida and regulated under 
the Florida avocado maturity requirements in Sec. 915.332.
    This proposed rule would obviate the need for exempting avocados 
imported from the southern hemisphere, since the major varieties 
imported from the southern hemisphere are the Hass, Fuerte, Zutano, and 
Edranol varieties.
    This proposed rule would also add language to Sec. 944.31 to cite 
the minimum size (weight and diameter) and skin color maturity 
requirements, and define the term ``diameter''.
    This proposed rule also would exempt imported avocados under 
Sec. 944.31, from minimum weight, diameter, and color maturity 
requirements if they are to be used in certain specified outlets. 
Similar exemptions from grade requirements established for imported 
avocados under Sec. 944.28 were implemented by an interim final rule 
published in the Federal Register (58 FR 69182, December 30, 1993), 
with an effective date of January 1, 1994.
    The avocado import maturity regulation (7 CFR 944.31) is based on 
the maturity requirements in effect for avocados grown in Florida under 
the order throughout the year. Under the order, any person may handle 
avocados without regard to established grade, size, quality, or 
maturity requirements provided that such avocados are handled for: (1) 
Consumption by charitable institutions; (2) distribution by relief 
agencies; (3) commercial processing into products; (4) seed; or (5) 
individual shipments of up to 55 pounds. Prior to issuance of this 
rule, the only exemption allowed under the avocado import regulation 
was that for individual shipments of up to 55 pounds. Thus, this 
proposed rule would add consumption by charitable institutions, 
distribution by relief agencies, seed, and commercial processing into 
products to the list of exemptions allowed under the avocado import 
regulation.
    To ensure that imported avocados exempt from the maturity 
requirements are utilized in exempt outlets, this rule proposes that 
such avocados be subject to the safeguard procedures for imported fruit 
established in Sec. 944.350 (58 FR 69182, December 30, 1993).
    Under these procedures, an importer wishing to import avocados 
covered herein for uses in other than regulated commercial channels, 
would complete in triplicate, prior to importation, an ``Importer's 
Exempt Commodity Form.'' One copy would notify the Marketing Order 
Administration Branch (MOAB) of the Fruit and Vegetable Division, AMS, 
and the second copy would notify the U.S. Customs Service of the 
importer's intent to import a commodity under an exemption. The third 
copy would accompany the exempt lot to the receiver.
    The form could be obtained from either the inspection or customs 
offices serving the port of entry. The form could also be obtained from 
the MOAB in Washington, DC or from its Marketing Field Offices in 
Fresno, California; Portland, Oregon; McAllen, Texas; or Winter Haven, 
Florida.
    At the time the commodity enters the United States the importer 
would complete the form; surrender a copy of the completed form to the 
U.S. Customs at the time the commodity is offered for importation; and 
would forward a copy of the completed form to MOAB within 15 days after 
completeion of the form. Information called for on the ``Importer's 
Exempt Commodity Form'' would include:
    (1) The commodity and the variety (if known) being imported,
    (2) The date and place of inspection, if applicable,
    (3) Identifying marks or numbers on the containers,
    (4) Identifying numbers on the railroad car, truck or other 
transportation vehicle transporting product to the receiver,
    (5) The name and address of the importer,
    (6) The place and date of entry,
    (7) The quantity imported,
    (8) The name and address of the intended receiver (eg. processor, 
feeder, charity, or other exempt receiver),
    (9) Intended use of the exempt commodity,
    (10) The U.S. Customs Service entry number and harmonized tariff 
code number, and
    (11) Such other information as may be necessary to ensure 
compliance with this regulation.
    For purposes of this regulation, a lot would be considered to be 
imported when it is released by the Customs Service for entry into 
commercial markets or other channels. Lots that are exempt from 
maturity requirements of the import regulations would not be subject to 
the inspection and certification requirements in such regulations. An 
imported lot intended for normal commercial channels, or any portion of 
such a lot, that fails established maturity requirements, could be 
disposed of in exempt outlets, as specified in the pertinent avocado 
import requirements.
    The third copy of the form would accompany the exempt lot to its 
intended destination. The receiver would certify that the lot has been 
received and it will be utilized in an exempt outlet. After the 
certification is signed by the receiver, the form would be returned to 
MOAB by the receiver, within 15 days of receipt of the lot. The 
information collection requirements contained in this proposed rule 
have been previously approved by the Office of Management and Budget 
(OMB) in accordance with the Paperwork Reduction Act of 1980 (44 U.S.C. 
chapter 35), and have been assigned OMB number 0581-0167.
    In accordance with section 8e of the Act, the USTR has concurred 
with the issuance of this proposed rule.
    Based on the above, the Administrator of the AMS has determined 
that this proposed rule would not have a significant economic impact on 
a substantial number of small entities.
    This proposed rule reflects the Department's appraisal of the need 
to reinstate the suspended avocado import maturity requirements and 
make the specified changes in the avocado import maturity requirements, 
as hereinafter set forth, in accordance with section 8e of the Act.

List of Subjects in 7 CFR Part 944

    Avocados, Food grades and standards, Grapefruit, Grapes, Imports, 
Kiwifruit, Limes, Olives, Oranges.

    For the reasons set forth in the preamble, 7 CFR part 944 is 
proposed to be amended as follows:

PART 944--FRUITS; IMPORT REGULATIONS

    1. The authority citation for 7 CFR part 944 continues to read as 
follows:

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

    2. The suspension of Sec. 944.31 is lifted and the section is 
revised to read as follows:


Sec. 944.31  Avocado import maturity regulation.

    (a) Pursuant to section 8e (7 U.S.C. 608e-1) of the Agricultural 
Marketing Agreement Act of 1937, as amended (7 U.S.C 601-674), and part 
944--Fruits; Import Regulations, the importation into the United States 
of any avocados, except the Hass, Fuerte, Zutano, and Edranol 
varieties, is prohibited unless:
    (1) Any portion of the skin of the individual avocados has changed 
to the color normal for that fruit when mature for those varieties 
which normally change color to any shade of red or purple when mature, 
except for the Linda variety; or
    (2) Such avocados meet the minimum weight or diameter requirements 
for the Monday nearest each date specified, through the Sunday 
immediately prior to the nearest Monday of the specified date in the 
next column, for each variety listed in the following TABLE I: 
Provided, That avocados may not be handled prior to the earliest date 
specified in column A of such table for the respective variety: 
Provided further, There are no restrictions on size or weight on or 
after the date specified in column D: Provided further, That up to a 
total of 10 percent, by count to the individual fruit in each lot may 
weigh less than the minimum specified or be less than the specified 
diameter, except that no such avocados shall be over 2 ounces lighter 
than the minimum weight specified for the variety: Provided further, 
That up to double such tolerance shall be permitted for fruit in an 
individual container in a lot.

                                                     Table 1                                                    
----------------------------------------------------------------------------------------------------------------
                                   Min.     Min.              Min.     Min.              Min.     Min.          
        Variety          A Date    wt.     diam.    B Date    wt.     diam.    C Date    wt.     diam.    D Date
----------------------------------------------------------------------------------------------------------------
Dr. Dupuis #2.........     5-30       16  3\7/16\     6-13       14  3\5/16\     7-04       12  3\2/16\     7-18
Simmons...............     6-20       16  3\9/16\     7-04       14  3\7/16\     7-18       12  3\1/16\     8-01
Pollock...............     6-20       18  3\11/16                                                               
                                                \     7-04       16  3\7/16\     7-18       14  3\4/16\     8-01
Hardee................     6-27       16  3\2/16\     7-04       14  2\14/16                                    
                                                                           \     7-11       12  .......     7-25
Nadir.................     6-27       14  3\3/16\     7-04       12  3\1/16\     7-11       10  2\14/16         
                                                                                                      \     7-18
Ruehle................     7-04       18  3\11/16                                                               
                                                \     7-11                                                      
                                                      7-18       16                                             
                                                                 14  3\9/16\                                    
                                                                     3\7/16\     8-01                           
                                                                                 8-08       12                  
                                                                                            10  3\5/16\         
                                                                                                3\3/16\     8-15
Bernecker.............     7-18       18  3\6/16\     8-01       16  3\5/16\     8-15       14  3\4/16\     8-29
Miguel (P)............     7-18       22  3\13/16                                                               
                                                \     8-01       20  3\12/16                                    
                                                                           \     8-15       18  3\10/16         
                                                                                                      \     8-29
Nesbitt...............     7-18       22  3\12/16                                                               
                                                \     8-01       16  3\5/16\     8-08       14  3\3/16\     8-22
Tonnage...............     8-01       16  3\6/16\     8-15       14  3\4/16\     8-22       12  3\0/16\     8-29
Waldin................     8-01       16  3\9/16\     8-15       14  3\7/16\     8-29       12  3\4/16\     9-12
Tower.................     8-01       14  3\6/16\     8-15       12  3\4/16\  .......  .......  .......     9-05
Beta..................     8-08       18  3\8/16\     8-15       16  3\5/16\  .......  .......  .......     9-05
Lisa (P)..............     8-08       12  3\2/16\     8-15       11        3  .......  .......  .......     8-22
Black Prince..........     8-15       28  4\1/16\     8-29       23  3\14/16                                    
                                                                           \     9-12       16  3\9/16\    10-03
Loretta...............     8-22       30  4\3/16\     9-05       26  3\15/16                                    
                                                                           \  .......  .......  .......     9-26
Booth 8...............     8-29       16  3\9/16\     9-12       14  3\6/16\     9-26                           
                                                                                10-10       12                  
                                                                                            10  3\3/16\         
                                                                                                3\3/16\    10-24
Booth 7...............     8-29       18  3\13/16                                                               
                                                \     9-12       16  3\10/16                                    
                                                                           \     9-26       14  3\8/16\    10-10
Booth 5...............     9-05       14  3\9/16\     9-19       12  3\6/16\  .......  .......  .......    10-03
Choquette.............     9-26       28  4\4/16\    10-17       24  4\1/16\    10-31       20  3\14/16         
                                                                                                      \    11-14
Hall..................     9-26       26  3\14/16                                                               
                                                \    10-10       20  3\9/16\    10-24       18  3\8/16\    11-07
Lula..................    10-03       18  3\11/16                                                               
                                                \    10-10       14  3\6/16\    10-31       12  3\3/16\    11-14
Monroe................    11-07       26  4\3/16\    11-21       24  4\1/16\    12-05                           
                                                                                12-19       20                  
                                                                                            16  3\14/16         
                                                                                                      \         
                                                                                                3\9/16\     1-02
Arue..................     5-16       16  .......     5-30       14  3\3/16\  .......  .......  .......     7-04
Donnie................     5-23       16  3\5/16\     6-06       14  3\4/16\  .......  .......  .......     7-04
Fuchs.................     6-06       14  3\3/16\     6-20       12  3\0/16\  .......  .......  .......     7-04
K-5...................     6-13       18  3\5/16\     6-27       14  3\3/16\  .......  .......  .......     7-11
West Indian                                                                                                     
 Seedling\1\..........     6-20       18  .......     7-18       16  .......     8-22       14  .......     9-19
Gorham................     7-04       29  4\5/16\     7-18       27  4\3/16\  .......  .......  .......     8-15
Biondo................     7-11       13  .......  .......  .......  .......  .......  .......  .......     8-15
Petersen..............     7-11       14  3\8/16\     7-18       12  3\5/16\     7-25       10  3\2/16\     8-08
232...................     7-18       14  .......     8-01       12  .......  .......  .......  .......     8-15
Pinelli...............     7-18       18  3\12/16                                                               
                                                \     8-01       16  3\10/16                                    
                                                                           \  .......  .......  .......     8-15
Trapp.................     7-18       14  3\10/16                                                               
                                                \     8-01       12  3\7/16\  .......  .......  .......     8-15
K-9...................     8-01       16  .......  .......  .......  .......  .......  .......  .......     8-22
Christina.............     8-01       11  2\14/16                                                               
                                                \  .......  .......  .......  .......  .......  .......     8-22
Catalina..............     8-15       24  .......     8-29       22  .......  .......  .......  .......     9-19
Blair.................     8-29       16  3\8/16\     9-12       14  3\5/16\  .......  .......  .......    10-03
Guatemalan Seedling\2\     9-05       15  .......    10-03       13  .......  .......  .......  .......    12-05
Marcus................     9-05       32  4\12/16                                                               
                                                \     9/19       24  4\5/16\  .......  .......  .......    10-31
Brooks 1978...........     9-05       12  3\4/16\     9-12       10  3\1/16\     9-19        8  2\14/16         
                                                                                                      \    10-10
Rue...................     9-12       30  4\3/16\     9-19       24  3\15/16                                    
                                                                           \    10-03       18  3\9/16\    10-17
Collinson.............     9-12       16  3\10/16                                                               
                                                \  .......  .......  .......  .......  .......  .......    10-10
Hickson...............     9-12       12  3\1/16\     9-26       10  3\0/16\  .......  .......  .......    10-10
Simpson...............     9-19       16  3\9/16\  .......  .......  .......  .......  .......  .......    10-10
Chica.................     9-19       12  3\7/16\    10-03       10  3\1/16\  .......  .......  .......    10-17
Leona.................     9-26       18  3\10/16                                                               
                                                \  .......  .......  .......  .......  .......  .......    10-10
Herman................    10-03       16  3\9/16\    10-17       14  3\6/16\  .......  .......  .......    10-31
Pinkerton (CP)........    10-03       13  3\3/16\    10-17       11  3\0/16\    10-31        9  .......    11-14
Taylor................    10-10       14  3\5/16\    10-24       12  3\2/16\  .......  .......  .......    11-07
Ajax (B-7)............    10-10       18  3\14/16                                                               
                                                \  .......  .......  .......  .......  .......  .......    10-31
Booth 3...............    10-10       16  3\8/16\    10-17       14  3\6/16\  .......  .......  .......    10-31
Booth 1...............    11-14       16  3\12/16                                                               
                                                \    11-28       12  3\6/16\  .......  .......  .......    12-12
Zio (P)...............    11-14       12  3\1/16\    11-28       10  2\14/16                                    
                                                                           \  .......  .......  .......    12-12
Gossman...............    11-28       11  3\1/16\  .......  .......  .......  .......  .......  .......    12-26
Brookslate............    12-05       18  3\13/16                                                               
                                                \    12-12                                                      
                                                     12-19       16                                             
                                                                 14  3\10/16                                    
                                                                           \                                    
                                                                     3\8/16\     1-02                           
                                                                                 1-16       12                  
                                                                                            10  3\5/16\         
                                                                                                .......     1-30
Meya (P)..............    12-12       13  3\2/16\    12-26       11  3\0/16\  .......  .......  .......     1-09
Reed (CP).............    12-12       12  3\4/16\    12-26       10  3\3/16\     1-09        9  3\0/16\     1-23
----------------------------------------------------------------------------------------------------------------
\1\Avocados of the West Indian type varieties and seedlings not listed elsewhere in Table 1.                    
\2\Avocados of the Guatemalan type varieties and seedlings, hybrid varieties and seedlings, and unidentified    
  seedlings not listed elsewhere in Table I.                                                                    

    (b) The term diameter means the greatest dimension measured at a 
right angle to a straight line from the stem to the blossom end of the 
fruit.
    (c) The term importation means release from custody of the United 
States Customs Service. The term commercial processing into products 
means the manufacture of avocado product which is preserved by any 
recognized commercial process, including canning, freezing, 
dehydrating, drying, the addition of chemical substances, or by 
fermentation.
    (d) Any person may import up to 55 pounds of avocados exempt from 
the requirements specified in this section.
    (e) The Federal or Federal-State Inspection Service, Fruit and 
Vegetable Division, Agricultural Marketing Service, United States 
Department of Agriculture, is designated as the governmental inspection 
service for certifying the grade, size, quality, and maturity of 
avocados imported into the United States. Inspection by the Federal or 
Federal-State Inspection Service with evidence thereof in the form of 
an official inspection certificate, issued by the respective service, 
applicable to the particular shipment of avocados, is required on all 
such imports. The inspection and certification services will be 
available upon application in accordance with the Regulations Governing 
Inspection, Certification and Standards of Fresh Fruits, Vegetables, 
and Other Products (7 CFR part 51), and in accordance with the 
regulation designating inspection services and procedure for obtaining 
inspection and certification (7 CFR 944.400).
    (f) Any avocados which fail to meet the import requirements prior 
to or after reconditioning and which are not being imported for 
purposes of consumption by charitable institutions, distribution by 
relief agencies, seed, or commercial processing into products may be 
reconditioned or exported, or disposed of under the supervision of the 
Federal or Federal-State Inspection Service with the costs of 
certifying the disposal of such avocados borne by the importer.
    (g) The size, weight, diameter, and color maturity requirements of 
this section shall not be applicable to avocados imported for 
consumption by charitable institutions, distribution by relief 
agencies, seed, or commercial processing into products, but shall be 
subject to the safeguard provisions contained in Sec. 944.350.

    Dated: March 29, 1994.
Robert C. Keeney,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 94-7890 Filed 4-1-94; 8:45 am]
BILLING CODE 3410-02-P