[Federal Register Volume 79, Number 218 (Wednesday, November 12, 2014)]
[Rules and Regulations]
[Pages 67037-67039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26663]



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  Federal Register / Vol. 79, No. 218 / Wednesday, November 12, 2014 / 
Rules and Regulations  

[[Page 67037]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 915 and 944

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


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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

SUMMARY: This rule changes the minimum grade requirements currently 
prescribed under the Florida avocado marketing order (order) and makes 
a technical correction to the avocado import regulation. The order 
regulates the handling of avocados grown in South Florida, and is 
administered locally by the Avocado Administrative Committee 
(Committee). For South Florida-grown avocados, this rule aligns the 
regulations with current industry practices. It removes language 
permitting the commingling of avocados with dissimilar characteristics 
in containers for shipment within the production area. All avocado 
shipments within the production area 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 also makes a 
technical correction to the avocado import regulation to clarify that 
the minimum grade requirements for imported avocados remains unchanged 
at a U.S. No. 2.

DATES: Effective November 17, 2014.

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 final rule is issued under Marketing 
Order No. 915, as amended (7 CFR part 915), regulating the handling of 
avocados grown in South Florida, hereinafter referred to as the 
``order.'' The order is effective under the Agricultural Marketing 
Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter 
referred to as the ``Act.''
    This final 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 final rule in 
conformance with Executive Orders 12866, 13563, and 13175.
    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule 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 final rule revises the grade requirements currently prescribed 
under the order and the avocado import regulation. This rule removes 
language permitting the commingling of avocados with dissimilar 
characteristics for shipment within the production area. This requires 
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 also makes 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 regulatory language in 
the Florida avocado regulations in regards to grade for shipments 
within the production area. The Committee responded that the language 
permitting commingling was added to the

[[Page 67038]]

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 removes the language permitting the commingling 
of avocados with dissimilar characteristics, requiring all avocados 
shipped within the production area to meet the requirements of a U.S. 
No. 2 grade, as provided in the United States Standards for Grades of 
Florida Avocados.
    This action also makes 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 continues to apply to 
shipments within the production area and to imported avocados. As 
indicated in the final rule, this action makes 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.

Final 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 final 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 final rule removes language permitting the commingling of 
avocados with dissimilar characteristics for shipments within the 
production area. This requires 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 revises the grade requirements currently prescribed for 
Florida avocados shipped within the production area under Sec.  915.306 
of the regulations. This change aligns 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 also makes 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 the 
season is small, representing less than one percent of total annual 
shipments. Further, any impact from this action is limited to the 
volume of fruit shipped within the production area. Therefore, 
implementation of this rule is not expected to impact the volume of 
fruit being utilized nor impact the total volume of Florida avocados on 
the market. There is no anticipated impact on import volume, as the 
change to those requirements is merely a clarification. The effects of 
this 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

[[Page 67039]]

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 will 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.
    As noted in the initial regulatory flexibility analysis, USDA has 
not identified any relevant Federal rules that duplicate, overlap or 
conflict with this final rule. However, as previously stated, imported 
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.
    A proposed rule concerning this action was published in the Federal 
Register on June 23, 2014 (79 FR 35498). Copies of the rule were mailed 
or sent via facsimile to all Committee members and Florida avocado 
handlers. Finally, the rule was made available through the Internet by 
USDA and the Office of the Federal Register. A 30-day comment period 
ending July 23, 2014, was provided to allow interested persons to 
respond to the proposal. No comments were received. Accordingly, no 
changes will be made to the rule as proposed.
    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.
    After consideration of all relevant matter presented, including the 
information and recommendation submitted by the Committee and other 
available information, it is hereby found that this rule, as 
hereinafter set forth, will tend to effectuate the declared policy of 
the Act.
    In accordance with section 8e of the Act, the United States Trade 
Representative has concurred with the issuance of this final rule.
    It is further found that good cause exists for not postponing the 
effective date of this rule until 30 days after publication in the 
Federal Register (5 U.S.C. 553) because Florida avocado handlers began 
shipping in mid-May, and the technical correction to the import 
regulation is to clarify that the grade requirement is unchanged. In 
addition, handlers are aware of this rule, which was recommended at a 
public meeting. Also, a 30-day comment period was provided for in the 
proposed rule.

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 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:


Sec.  944.28  Avocado Import Grade Regulation.

    (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: November 5, 2014.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2014-26663 Filed 11-10-14; 8:45 am]
BILLING CODE 3410-02-P