[Federal Register Volume 79, Number 120 (Monday, June 23, 2014)]
[Proposed Rules]
[Pages 35498-35501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-14405]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 915 and 944

[Doc. No. AMS-FV-13-0069; FV13-915-3 PR]


Avocados Grown in South Florida and Imported Avocados; 
Clarification of the Avocado Grade Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule invites comments on changes to the minimum 
grade requirements currently prescribed under the Florida avocado 
marketing order (order) and a technical correction to the avocado 
import regulation. The order regulates the handling of avocados

[[Page 35499]]

grown in South Florida, and is administered locally by the Avocado 
Administrative Committee (Committee). For South Florida-grown avocados, 
this proposed rule would align the regulations with current industry 
practice. It would remove language permitting the commingling of 
avocados with dissimilar characteristics in containers for shipment 
within the production area. All avocado shipments within the production 
area would need to meet the provisions of a U.S. No. 2 grade, as 
provided in the United States Standards for Grades of Florida Avocados. 
For imported avocados, this rule would also make a technical correction 
to the avocado import regulation to clarify that the minimum grade 
requirement for imported avocados remains unchanged at a U.S. No. 2.

DATES: Comments must be received by July 23, 2014.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. 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. All comments should reference the document number 
and the date and page number of this issue of the Federal Register and 
will be made 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 
proposal 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 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 Director, 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: [email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Jeffrey Smutny, 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: [email protected].

SUPPLEMENTARY INFORMATION: This proposal 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.''
    This proposed rule is also issued under section 8e of the Act, 
which provides that whenever certain 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 the domestically produced 
commodities.
    The Department of Agriculture (USDA) is issuing this proposed rule 
in conformance with Executive Orders 12866, 13563, and 13175.
    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This action is not intended to have retroactive 
effect.
    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 not later than 20 days after the date of 
the entry of the ruling.
    There are no administrative procedures which must be exhausted 
prior to any judicial challenge to the provisions of import regulations 
issued under section 8e of the Act.
    This proposal invites comments on revisions to the grade 
requirements currently prescribed under the order and the avocado 
import regulation. This proposed rule would remove language permitting 
the commingling of avocados with dissimilar characteristics for 
shipment within the production area. This would require all avocados 
shipped within the production area to meet the provisions of a U.S. No. 
2 grade, as provided in the United States Standards for Grades of 
Florida Avocados. This rule would also make a technical correction to 
the avocado import regulation to clarify that the minimum grade 
requirement for imported avocados remains unchanged at a U.S. No. 2.
    Section 915.51 of the order provides, in part, authority to issue 
regulations establishing specific grade and pack requirements for 
avocados. Section 915.52 of the order provides authority for the 
modification, suspension, or termination of established regulations.
    Section 915.306 of the order's container and pack regulations 
prescribe grade, pack, and container marking requirements for Florida 
avocados. Paragraph (a)(1) of that section prescribes, in part, the 
grade requirements for avocados shipped within the production area. 
Minimum grade and size requirements for avocados imported into the 
United States are currently in effect under Sec.  944.28.
    In reviewing the Florida avocado regulations, it was noted that 
paragraph (a)(1) of Sec.  915.306 of the regulations currently states 
that avocados must grade at least U.S. No. 2 but also allows for the 
commingling of different shapes and sizes within the same container. 
However, the provisions of the U.S. No. 2 grade require that avocados 
packed in the same container be similar in shape and size.
    USDA requested that the Committee review the Florida avocado 
regulations regulatory language in regards to grade for shipments 
within the production area. The Committee responded that the language 
permitting commingling was added to the regulations in 1992 to allow 
handlers to ship quantities of fruit of different shapes and sizes in 
the same container to make more fruit available for shipment within the 
production area. Committee members agreed that handlers no longer use 
this provision as ample fruit is available to fill the containers with 
avocados of the same shape and size. Consequently, in a June 12, 2013, 
meeting, the Committee recommended removing the language permitting 
commingling to align the regulations with current industry practices 
and with the United States Standards for Grades of Florida Avocados (7 
CFR 51.3050 through 51.3069). This action would remove the language 
permitting the commingling of avocados with dissimilar characteristics, 
requiring all avocados shipped within the production area to meet the 
provisions of a U.S. No. 2 grade, as

[[Page 35500]]

provided in the United States Standards for Grades of Florida Avocados.
    This action would also make a technical correction to the grade 
requirements under the avocado import regulation. Section 8e of the Act 
provides that when certain domestically produced commodities, including 
avocados, are regulated under a Federal marketing order, imports of 
that commodity must meet the same or comparable grade, size, quality, 
or maturity requirements. As it is the only marketing order covering 
avocados, import requirements are based on the marketing order for 
avocados grown in South Florida.
    The minimum grade requirement for Florida avocados shipped outside 
the production area was recently increased by a final rule (78 FR 
51041) from a U.S. No. 2 to a U.S. Combination grade. The change in 
grade applies only to Florida avocados shipped outside the production 
area. The less restrictive U.S. No. 2 grade would continue to apply to 
shipments within the production area and to imported avocados. As 
indicated in the final rule, this action would make a technical 
correction to the import regulation to clarify that the minimum grade 
requirement for imported avocados remains unchanged at a U.S. No. 2, 
which is the same grade requirement for avocados shipped within the 
production area.

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 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 
businesses 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. Import regulations issued under 
the Act are based on those established under Federal marketing orders.
    There are approximately 30 handlers of Florida avocados subject to 
regulation under the order and approximately 300 producers of avocados 
in the production area. There are approximately 260 importers of 
avocados. Small agricultural service firms, which include avocado 
handlers and importers, 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 of less than $750,000 (13 CFR 121.201).
    According to Committee data and information from the National 
Agricultural Statistical Service, the average price for Florida 
avocados during the 2011-12 season was approximately $20.79 per 55-
pound bushel container, and total shipments were slightly higher than 
1.2 million 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. Information from the Foreign 
Agricultural Service, USDA, indicates that the dollar value of imported 
avocados was around $1.1 billion in 2013. Using these values, most 
importers would have annual receipts of less than $7,000,000 for 
avocados. Consequently, the majority of avocado handlers, producers, 
and importers may be classified as small entities.
    Mexico, Chile, Peru, and Dominican Republic are the major 
production areas exporting avocados to the United States. In 2013, 
shipments of avocados imported into the United States totaled nearly 
572,000 metric tons. Mexico accounted for around 509,700 metric tons, 
with 23,400 metric tons from Chile, 21,600 metric tons from Peru, and 
17,000 metric tons were imported from the Dominican Republic.
    This proposed rule would remove language permitting the commingling 
of avocados with dissimilar characteristics for shipments within the 
production area. This would require all avocados shipped within the 
production area to meet the provisions of a U.S. No. 2 grade, as 
provided in the United States Standards for Grades of Florida Avocados. 
This proposal would revise the grade requirements currently prescribed 
for Florida avocados shipped within the production area under Sec.  
915.306 of the regulations. This proposed change would align marketing 
order regulations with current industry practices and with the United 
States Standards for Grades of Florida Avocados. Authority for this 
action is provided in Sec. Sec.  915.51 and 915.52 of the order. This 
action would also make a technical correction to the avocado import 
regulation, Sec.  944.28, to clarify that the minimum grade requirement 
for imported avocados remains unchanged at a U.S. No. 2.
    Any costs associated with this change are anticipated to be 
minimal. Committee members indicated that the industry no longer ships 
containers of dissimilar fruit within the production area. In addition, 
the volume of U.S. No. 2 grade Florida avocados shipped during a season 
is small, representing less than one percent of total annual shipments. 
Further, any impact from this action would be limited to the volume of 
fruit shipped within the production area. Therefore, implementation of 
this proposed rule is not expected to impact the volume of fruit being 
utilized nor would it impact the total volume of Florida avocados on 
the market. There is no anticipated impact on import volume, as the 
proposed change to those requirements is merely a clarification. The 
effects of this proposed rule are not expected to be disproportionately 
greater or less for small handlers or growers than for large entities.
    The only alternative the Committee considered was leaving the 
regulations for shipments within the production area unchanged. 
However, Committee members agreed that this language was outdated as 
the industry no longer commingles shapes and sizes in production area 
shipments. Therefore, this alternative was rejected.
    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.
    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 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.
    Accordingly, this action would not impose any 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.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap or conflict with this proposed rule. However, as previously 
stated, imported

[[Page 35501]]

avocados and those shipped within the production area must meet the 
applicable requirements for grade, as specified in the United States 
Standards for Grades of Florida Avocados (7 CFR 51.3050 through 
51.3069) issued under the Agricultural Marketing Act of 1946 (7 U.S.C. 
1621 through 1627).
    Further, 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 June 12, 2013, meeting was a 
public meeting. All entities, both large and small, were able to 
express views on this issue. Finally, interested persons are invited to 
submit comments on this proposed rule, including the regulatory and 
informational impacts of this action on small businesses.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions 
about the compliance guide should be sent to Jeffrey Smutny at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    In accordance with section 8e of the Act, the United States Trade 
Representative has concurred with the issuance of this proposed rule.
    A 30-day comment period is provided to allow interested persons to 
respond to this proposal. Thirty days is deemed appropriate as this 
proposed rule should be in place as soon as possible because handlers 
begin shipping in mid-May, and the technical correction to the import 
regulation is to clarify that the grade requirement is unchanged. All 
written comments timely received will be considered before a final 
determination is made on this matter.

List of Subjects

7 CFR Part 915

    Avocados, Marketing agreements, Reporting and recordkeeping 
requirements.

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 parts 915 and 944 
are proposed to be amended as follows:

PART 915--AVOCADOS GROWN IN SOUTH FLORIDA

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

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

0
2. In Sec.  915.306, paragraph (a)(1) is revised to read as follows:


Sec.  915.306  Florida avocado grade, pack, and container marking 
regulation.

    (a) * * *
    (1) Such avocados grade at least U.S. Combination, except that 
avocados handled to destinations within the production area grade at 
least U.S. No. 2.
* * * * *

PART 944--FRUITS; IMPORT REGULATIONS

0
3. The authority citation for 7 CFR part 944 continues to read as 
follows:

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

0
4. In Sec.  944.28, paragraph (a) is revised to read as follows:
    (a) Pursuant to section 8e of the Act and Part 944--Fruits; Import 
Regulations, the importation into the United States of any avocados is 
prohibited unless such avocados grade at least U.S. No. 2, as such 
grade is defined in the United States Standards for Grades of Florida 
Avocados (7 CFR 51.3050 through 51.3069).
* * * * *

    Dated: June 16, 2014.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2014-14405 Filed 6-20-14; 8:45 am]
BILLING CODE 3410-02-P