[Federal Register Volume 89, Number 183 (Friday, September 20, 2024)]
[Proposed Rules]
[Pages 77037-77040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-21522]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 89, No. 183 / Friday, September 20, 2024 / 
Proposed Rules

[[Page 77037]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 915 and 944

[Doc. No. AMS-SC-23-0084]


Avocados Grown in South Florida and Imported Avocados; Change in 
Maturity Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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

SUMMARY: This proposed rulemaking would implement a recommendation from 
the Avocado Administrative Committee (Committee) to change the maturity 
requirements under the marketing order for avocados grown in South 
Florida. This action would update the avocado maturity shipping 
schedule to allow certain sizes and weights of the Beta avocado variety 
to be shipped earlier. A corresponding change would be made to the 
avocado import regulation as required under the Agricultural Marketing 
Agreement Act of 1937.

DATES: Comments must be received by November 19, 2024.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rulemaking. Comments can be sent to the Docket 
Clerk, Market Development Division, Specialty Crops Program, AMS, USDA, 
1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237. 
Comments can also be sent to the Docket Clerk electronically by Email: 
<a href="/cdn-cgi/l/email-protection#aae7cbd8c1cfdec3c4cde5d8cecfd8e9c5c7c7cfc4deeadfd9cecb84cdc5dc"><span class="__cf_email__" data-cfemail="4a072b38212f3e23242d05382e2f38092527272f243e0a3f392e2b642d253c">[email protected]</span></a> or via the internet at: https://www.regulations.gov. Comments should reference the document number and 
the date and page number of this issue of the Federal Register. 
Comments submitted in response to this proposed rulemaking will be 
included in the record and will be made available to the public and can 
be viewed at: https://www.regulations.gov. Please be advised that the 
identity of the individuals or entities submitting the comments will be 
made public on the internet at the address provided above.

FOR FURTHER INFORMATION CONTACT: Jennie M. Varela, Marketing 
Specialist, or Christian D. Nissen, Branch Chief, Southeast Region 
Branch, Market Development Division, Specialty Crops Program, AMS, 
USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or Email: 
<a href="/cdn-cgi/l/email-protection#7b311e1515121e552d1a091e171a3b0e081f1a551c140d"><span class="__cf_email__" data-cfemail="c882ada6a6a1ade69ea9baada4a988bdbbaca9e6afa7be">[email protected]</span></a> or <a href="/cdn-cgi/l/email-protection#52113a203b21263b333c7c1c3b2121373c12272136337c353d24"><span class="__cf_email__" data-cfemail="d390bba1baa0a7bab2bdfd9dbaa0a0b6bd93a6a0b7b2fdb4bca5">[email protected]</span></a>.
    Small businesses may request information on complying with this 
regulation by contacting Richard Lower, Market Development Division, 
Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 
0237, Washington, DC 20250-0237; Telephone: (202) 720-8085, or Email: 
<a href="/cdn-cgi/l/email-protection#96c4fff5fef7e4f2b8daf9e1f3e4d6e3e5f2f7b8f1f9e0"><span class="__cf_email__" data-cfemail="8bd9e2e8e3eaf9efa5c7e4fceef9cbfef8efeaa5ece4fd">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, 
proposes to amend regulations issued to carry out a marketing order as 
defined in 7 CFR 900.2(j). This proposed rulemaking is issued under 
Marketing Order No. 915, as amended (7 CFR part 915), regulating the 
handling of avocados grown in South Florida. Part 915 referred to as 
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.'' The Committee locally administers the Order and is 
comprised of growers and handlers of avocados operating within the 
production area, and one public member.
    This proposed rulemaking is also issued under section 8e of the Act 
(7 U.S.C. 608e-1), 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 domestically 
produced commodities.
    The Agricultural Marketing Service (AMS) is issuing this proposed 
rulemaking in conformance with Executive Orders 12866, 13563, and 
14094. Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 14094 reaffirms, supplements, and updates Executive 
Order 12866 and further directs agencies to solicit and consider input 
from a wide range of affected and interested parties through a variety 
of means. This proposed action falls within a category of regulatory 
actions that the Office of Management and Budget (OMB) exempted from 
Executive Order 12866 review.
    This proposed rulemaking has been reviewed under Executive Order 
13175--Consultation and Coordination with Indian Tribal Governments, 
which requires Federal agencies to consider whether their rulemaking 
actions would have Tribal implications. AMS has determined that this 
proposed rulemaking is unlikely to have substantial direct effects on 
one or more Indian Tribes, on the relationship between the Federal 
Government and Indian Tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian Tribes.
    This proposed rulemaking 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 8c(15)(A) of the 
Act (7 U.S.C. 608c(15)(A)), any handler subject to an order may file 
with the U.S. Department of Agriculture (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. Such 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.

[[Page 77038]]

    There are no administrative procedures that must be exhausted prior 
to any judicial challenge to the provisions of import regulations 
issued under section 8e of the Act.
    This proposed rulemaking would change the maturity requirements 
prescribed under the Order. This action would update the avocado 
maturity shipping schedule to allow certain sizes and weights of the 
Beta avocado variety to be shipped to the fresh market earlier than 
presently allowable. With this change, the maturity schedule would 
better reflect the current maturity rate for the Beta variety, 
facilitating the shipment of this variety as it matures. The proposal 
was unanimously recommended by the Committee at its August 9, 2023, 
meeting.
    Section 915.51 of the Order provides, in part, authority to 
establish maturity requirements for avocados. Section 915.52 of the 
Order provides authority for the modification, suspension, or 
termination of established regulations. Section 915.332 of the Order's 
rules and regulations establishes the maturity requirements for 
avocados grown in Florida. These requirements are specified in table I 
of Sec.  915.332(a) and establish minimum weights and diameters to 
delineate specific shipping time frames for avocados shipped under the 
Order. Maturity requirements for avocados imported into the United 
States are currently in effect under Sec.  944.31.
    The maturity requirements are designed to prevent the shipment of 
immature avocados and to include the annual shipping schedule to help 
ensure only mature fruit reaches the market. This helps to provide 
buyer confidence and consumer satisfaction essential for the successful 
marketing of the crop. Avocado varieties mature at different times, and 
varieties can vary considerably in terms of size and weight. The 
maturity requirements for the various varieties of avocados are 
different, as each variety has different growing and maturation 
characteristics. These maturity dates and requirements are established 
based on a testing procedure developed in conjunction with USDA.
    The shipping schedule in table I specifies the individual maturity 
requirements for the numerous avocado varieties shipped each season. As 
larger fruit within a variety matures earliest, the schedule makes the 
larger sized fruit available for market first, followed by other dates 
to incrementally release smaller sizes for shipment as they mature. As 
such, the maturity schedule is usually divided into A, B, C, and D 
dates, which are associated with specific weights and sizes reflecting 
when a particular variety matures.
    Avocados may not be shipped until the earliest date, the A date, 
specified for that variety on the shipping schedule so that only mature 
fruits are available for market for each variety early in its season. 
The D date marks the end of a variety's season when all fruit of that 
variety should be mature and releases all sizes and weights for 
shipment.
    The Committee staff regularly tests the maturity level of different 
varieties based on reported changes in maturity. The Committee also has 
a maturity subcommittee that reviews this, other information, and 
trends in maturity. Using this information, this subcommittee 
recommends which varieties may need to be tested to see if adjustments 
need to be made to the dates on the maturity schedule. The subcommittee 
heard from growers that the Beta variety was maturing ahead of the 
established schedule and recommended to the full Committee that the 
Beta variety be tested for changes in maturity. At the direction of the 
Committee, Committee staff began sampling the Beta variety across 
different farms and testing the level of maturity.
    After three years of testing, the Committee staff provided the 
subcommittee with the maturity data they had collected. Based on their 
review of the data, the subcommittee agreed the fruit was maturing 
before the current shipping dates. They reported to the full Committee 
that due to changes in climate conditions and cultural practices the 
Beta variety was maturing earlier than the dates in the schedule.
    The Committee met on August 9, 2023, and reviewed the report from 
the subcommittee. The subcommittee recommended, and the full Committee 
agreed, that the A, B, C, and D dates for the Beta should each be moved 
up two weeks, respectively. The Committee concluded these revised dates 
would better reflect the current maturity rate for Beta. The Committee 
believes this change would allow growers to send mature quality fruit 
of this variety to the market earlier. It would also reduce limb 
breakage and fruit loss by enabling timely harvesting, allowing the 
larger, heavier fruit to be removed from the tree sooner. Consequently, 
the Committee unanimously approved this recommendation.
    This rule would change the A and the B date for Beta listed on the 
maturity schedule from August 8 to July 25 and from August 15 to August 
1, respectively. This rule would also change the C date for Beta from 
August 29 to August 15, and the D date from September 5 to August 22. 
The corresponding sizes and weights associated with these dates will 
remain unchanged. The dates on the maturity schedule are the basis for 
calculating the actual shipping dates (A, B, C, D dates) for each 
individual season. The actual shipping dates for an individual year are 
established as the Monday nearest to the date listed in the maturity 
schedule as specified in Sec.  915.332.
    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, and maturity requirements. Maturity 
requirements for avocados imported into the United States are currently 
in effect under Sec.  944.31. As this rule would revise the maturity 
requirements for the Beta variety under the domestic handling 
regulations, a corresponding change to the import regulations must also 
be considered.
    This action would update the avocado maturity shipping schedule to 
allow certain sizes and weights of the Beta avocado variety to be 
shipped to the fresh market up to two weeks earlier than presently 
allowed. This change should facilitate moving mature fruit to the 
market, benefitting domestic growers and handlers as well as importers. 
This proposed change would only impact the maturity requirements under 
the Order and the import regulation and would make no change to the 
current grade requirements.
    The Hass, Fuerte, Zutano, and Edranol varieties of avocados are 
currently exempt from the maturity requirements under the Order and the 
import regulation and continue to be exempt under this rule. However, 
these varieties are not exempt from the grade regulations specified 
under the Order and import regulation, which are not being changed by 
this action.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of 
this proposed rulemaking 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 the rules issued thereunder, are unique in 
that they are brought about through group action of essentially

[[Page 77039]]

small entities acting on their own behalf.
    There are 201 growers of Florida avocados in the production area 
and 21 handlers subject to regulation under the Order. The Small 
Business Administration (SBA) defines small agricultural growers as 
those having annual receipts of no more than $3,500,000 for Other 
Noncitrus Fruit Farming (NAICS code 111339), and small agricultural 
service firms, including handlers, are defined as those whose annual 
receipts are less than $34,000,000 for Postharvest Crop Activities 
(NAICS code 115114) (13 CFR 121.201).
    According to the National Agricultural Statistical Service (NASS), 
the average grower price paid for Florida avocados in 2022 was $22.00 
per 55-pound bushel container. Utilized production was equivalent to 
648,727 55-pound bushels for a total value of $14,272,000 ($22.00 
multiplied by 648,727 55-pound bushels equals $14,272,000). Dividing 
the crop value by the estimated number of growers yields an estimated 
average receipt per grower of $71,005 ($14,272,000 divided by 201), so 
the majority of growers would have annual receipts of less than 
$3,500,000.
    USDA Market News reported average shipping point prices for green 
skinned avocados were $57.29 per 55-pound bushel equivalent in October 
of 2022. Using this price and the total utilization, the total 2022 
handler crop value is estimated at $37,165,570 ($57.29 multiplied by 
648,727 55-pound bushels equals $37,165,570). Dividing this figure by 
the number of handlers yields estimated average annual handler receipts 
of $1,769,790 ($37,165,570 divided by 21), which is below the SBA 
threshold for small agricultural service firms.
    In 2022, the Dominican Republic, Peru, Columbia, Mexico, and 
Jamaica were the major countries exporting avocado varieties other than 
Hass to the United States. In 2020, shipments of these types of 
avocados imported into the United States totaled around 33,454 metric 
tons. Of that amount, about 33,075 metric tons were imported from the 
Dominican Republic. Information from USDA's Global Agricultural Trade 
System database indicates the dollar value of these avocados to be 
approximately $48,386,000. There are approximately 20 importers of 
green skin avocados. Using the total value and the number of importers, 
the average importer would have annual receipts of less than $34 
million.
    Based on these estimates, the majority of Florida avocado producers 
and handlers, and importers may be classified as small entities.
    This proposed rulemaking would update the avocado maturity shipping 
schedule to allow certain sizes and weights of the Beta avocado variety 
to be shipped to the fresh market up to two weeks earlier than 
presently allowed. With this change, the maturity schedule would better 
reflect the current maturity rate for the Beta variety, facilitating 
the shipment of this variety as it matures, which would benefit 
growers, handlers, importers, and consumers. A corresponding change 
would be made to the import regulations. This proposed rulemaking would 
revise Sec.  915.332. Authority for this change is provided in 
Sec. Sec.  915.51 and 915.52. This proposed rulemaking would also 
change Sec.  944.31 in the avocado import regulation, as is required by 
section 8e of the Act. This proposed change would only impact the 
maturity requirements under the Order and import regulation and would 
make no change to the current grade requirements.
    This action is not expected to increase the costs associated with 
the Order's requirements or the avocado import regulation. Rather, it 
is anticipated that this action would have a beneficial impact. Based 
on three seasons of maturity testing, the Committee recommended moving 
the A, B, C, and D dates on the maturity schedule forward two weeks, 
respectively, for the Beta variety allowing the associated sizes and 
weights to be shipped to the fresh market earlier. The revised dates 
better reflect the current maturity rate for Beta and would facilitate 
the shipment of this variety as it matures, while continuing to ensure 
that only mature fruit is shipped to the fresh market. It would also 
help reduce limb breakage and fruit loss and their associated costs by 
enabling timely harvesting, allowing the bigger, heavier fruit to be 
removed from the tree sooner. The benefits of this rule are expected to 
be equally available to all fresh avocado growers, handlers, and 
importers, regardless of their size.
    One alternative to this action would be to maintain the current 
maturity requirements for the Beta variety. However, the Committee 
recognized that growing conditions and practices have changed over the 
years and the data indicates this fruit is maturing ahead of the 
current dates on the schedule. The Committee believes establishing the 
changes in this proposed rulemaking, rather than the alternative, would 
reflect current maturation and help ensure a quality product reaches 
consumers. Therefore, the Committee rejected this alternative.
    The Committee's meetings are widely publicized throughout the 
Florida avocado industry and all interested persons are invited to 
attend the meetings and participate in Committee deliberations on all 
issues. Like all Committee meetings, the August 9, 2023, meeting was a 
public meeting and 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 rulemaking, including the regulatory 
impacts of this action on small businesses.
    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 OMB and assigned OMB No. 0581-0189 Fruit Crops. 
No changes in those requirements would be necessary as a result of this 
proposed rulemaking. Should any changes become necessary, they would be 
submitted to OMB for approval.
    This proposed rulemaking 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.
    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.
    AMS has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this proposed rulemaking.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 
https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any 
questions about the compliance guide should be sent to Richard Lower at 
the previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    After consideration of all relevant material presented, including 
the information and recommendations submitted by the Committee and 
other available information, USDA has determined that this proposed 
rulemaking is consistent with and would effectuate the purposes of the 
Act.
    In accordance with section 8e of the Act, the United States Trade

[[Page 77040]]

Representative has concurred with the issuance of this proposed 
rulemaking.
    A 60-day comment period is provided to allow interested persons to 
comment on this proposed rulemaking. All written comments timely 
received will be considered before a final determination is made on 
this 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, Plums, Prunes.

    For the reasons set forth in the preamble, the Agricultural 
Marketing Service proposes to amend 7 CFR parts 915 and 944 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.  915.332, Table I, the entry for ``Beta'' is revised to read 
as follows:


Sec.  915.332  Florida avocado maturity regulation.

    (a) * * *
    (2) * * *

                                                                         Table I
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Variety                A date     Min. wt.   Min. diam.    B date     Min. wt.   Min. diam.    C date     Min. wt.   Min. diam.    D date
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Beta............................       7-25          18       38/16        8-01          16       35/16        8-15          14         33/        8-22
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
0
3. In Sec.  944.31, Table I, the entry for ``Beta'' is revised to read 
as follows:


Sec.  944.31  Avocado import maturity regulation.

    (a) * * *
    (2) * * *

                                                                         Table I
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Variety                A date     Min. wt.   Min. diam.    B date     Min. wt.   Min. diam.    C date     Min. wt.   Min. diam.    D date
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Beta............................       7-25          18       38/16        8-01          16       35/16        8-15          14       33/16        8-22
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2024-21522 Filed 9-19-24; 8:45 am]
BILLING CODE P


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