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Rules and Regulations Federal Register

67037 

Vol. 79, No. 218 

Wednesday, November 12, 2014 

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: 

Doris.Jamieson@ams.usda.gov or 

Christian.Nissen@ams.usda.gov. 

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: 

Jeffrey.Smutny@ams.usda.gov. 

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 

§ 944.28. 

In reviewing the Florida avocado 

regulations, it was noted that paragraph 

(a)(1) of § 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 


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67038 Federal Register / Vol. 79, No. 218 / Wednesday, November 12, 2014 / Rules and Regulations 

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 § 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 §§ 915.51 and 915.52 of the 

order. This action also makes a 

technical correction to the avocado 

import regulation, § 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 


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

■ 1. The authority citation for 7 CFR 

part 915 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. In § 915.306, paragraph (a)(1) is 

revised to read as follows: 

§ 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 

■ 3. The authority citation for 7 CFR 

part 944 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 4. In § 944.28, paragraph (a) is revised 

to read as follows: 

§ 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 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 945 

[Doc. No. AMS–FV–14–0046; FV14–945–2 

FIR] 

Irish Potatoes Grown in Certain 

Designated Counties in Idaho, and 

Malheur County, Oregon; Modification 

of Container Requirements 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Affirmation of interim rule as 

final rule. 

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

rule that modified the container 

requirements prescribed under the 

Idaho-Eastern Oregon potato marketing 

order. The interim rule removed the 

requirement that fiberboard cartons 

used to pack 50-pound quantities of 

U.S. No. 2 grade potatoes be of onepiece construction. This change is in 

response to market demands and 

provides handlers flexibility in shipping 

U.S. No. 2 grade potatoes. In addition, 

this rule corrected a citation reference in 

the handling regulations. 

DATES: Effective November 13, 2014. 

FOR FURTHER INFORMATION CONTACT: Sue 

Coleman, Marketing Specialist, or Gary 

D. Olson, Regional Director, Northwest 

Marketing Field Office, Marketing Order 

and Agreement Division, Fruit and 

Vegetable Program, AMS, USDA; 

Telephone: (503) 326–2724, Fax: (503) 

326–7440, or Email: Sue.Coleman@

ams.usda.gov or GaryD.Olson@

ams.usda.gov. 

Small businesses may obtain 

information on complying with this and 

other marketing order and agreement 

regulations by viewing a guide at the 

following Web site: http://

www.ams.usda.gov/

MarketingOrdersSmallBusinessGuide; 

or by contacting Jeffrey Smutny, 

Marketing Order and Agreement 


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