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contains regulatory documents having general

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Rules and Regulations Federal Register

51041 

Vol. 78, No. 161 

Tuesday, August 20, 2013 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 915 

[Doc. No. AMS–FV–12–0067; FV13–915–1 

FR] 

Avocados Grown in South Florida; 

Change in Minimum Grade 

Requirements 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule increases the 

minimum grade requirements currently 

prescribed under the Florida avocado 

marketing order (order). The order 

regulates the handling of avocados 

grown in South Florida, and is 

administered locally by the Avocado 

Administrative Committee (Committee). 

This action increases the current 

minimum grade requirement from a U.S. 

No. 2 to a U.S. Combination grade for 

avocados shipped to destinations 

outside of the production area. 

Increasing the minimum grade 

requirement aligns marketing order 

regulations with current industry 

practices to the benefit of growers, 

handlers, and consumers. 

DATES: Effective Date: August 21, 2013. 

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) 325–7893, 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.’’ 

The Department of Agriculture 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

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 

entry of the ruling. 

This final rule revises the minimum 

grade requirements currently prescribed 

under the order. This rule increases the 

current minimum grade requirement 

from a U.S. No. 2 to a U.S. Combination 

grade for avocados shipped to 

destinations outside of the production 

area and was recommended by the 

Committee at a meeting on October 10, 

2012. 

Section 915.51 of the order provides, 

in part, authority to issue regulations 

establishing specific grade 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, that no handler shall 

handle any variety of avocados grown in 

the production area unless such 

avocados grade at least U.S. No. 2. 

While marketing order regulations 

specify a minimum grade requirement 

of a U.S. No. 2, it is standard industry 

practice to ship avocados to destinations 

outside of the production area at the 

higher grade of a U.S. Combination, 

especially at the beginning of the 

season. The minimum requirement for a 

U.S. Combination grade provides that at 

least 60 percent of the fruit in the pack 

must meet the U.S. No. 1 grade and the 

remaining fruit must meet at least a U.S. 

No. 2 grade. Handlers have voluntarily 

shipped the higher grade fruit in order 

to get the best price for growers and to 

provide quality fruit to consumers. 

During the first four months of the 

2012–13 season, the volume of U.S. No. 

2 grade fruit was 13 percent higher than 

shipments of that grade during the 

comparable period of the previous 

season. Buyers were reluctant to pay a 

higher price for the better grade fruit 

when they could purchase the lower 

grade fruit for less. This negatively 

affected the price of the U.S. 

Combination grade fruit and resulted in 

the loss of sales of the higher grade fruit. 

During several meetings, Committee 

members expressed concern that 

volume of the U.S. No. 2 grade fruit may 

continue to increase and negatively 

impact price. Further, the Florida 

avocado industry has established a 

reputation for providing consumers 

with high quality fruit and the 

Committee believes shipping U.S. No. 2 

grade fruit outside of the production 

area could lower that standard. 

As the majority of handlers are 

currently shipping at the higher grade, 

it is not anticipated that this change will 

reduce overall shipments. Even though 

there was an increase in shipments of 

U.S. No. 2 grade fruit to destinations 

outside of the production area during 

the 2012–13 season, Committee data 

indicates total shipments of U.S. No. 2 

grade fruit represented only about one 

percent of total shipments this season, 

which were over 1.1 million 55-pound 

bushel containers. 


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51042 Federal Register / Vol. 78, No. 161 / Tuesday, August 20, 2013 / Rules and Regulations 

Consequently, the Committee 

recommended raising the minimum 

grade requirement to a U.S. 

Combination for avocados shipped to 

destinations outside of the production 

area. Fruit shipped within the 

production area will continue to be 

required to meet the current minimum 

grade of a U.S. No. 2, which will 

provide an outlet for U.S. No. 2 grade 

not utilized in the U.S. Combination 

pack. This final rule aligns marketing 

order regulations with current industry 

practices to the benefit of growers, 

handlers, and consumers. This rule will 

help maintain the industry’s reputation 

for providing consumers with high 

quality avocados from Florida, while 

continuing to provide handlers with an 

outlet for their U.S. No. 2 fruit. 

One member of the Committee voted 

against the recommendation. He stated 

that the minimum grade requirement 

should be raised, but only during the 

beginning of the season when domestic 

production was minimal. He believed 

that when imports begin arriving in 

October, the minimum grade should 

revert back to a U.S. No. 2 in order for 

the Florida avocado industry to compete 

with imported fruit. However, the 

majority of the Committee agreed that 

the quality of the fruit was the most 

important issue and shipping the lower 

grade fruit undermined the high 

standard established by the Florida 

avocado industry. Other members of the 

Committee also commented that they 

believe raising the minimum grade for 

Florida avocados will cause the quality 

of imported fruit to improve to match 

the industry’s higher standard. 

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. 

The changes in this rule apply only to 

shipments outside of the production 

area. The current, less restrictive 

regulations will continue to apply to 

shipments within the production area 

and to imported avocados. A 

clarification will be made to the import 

regulation in a separate action. 

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. 

There are approximately 30 handlers 

of Florida avocados subject to regulation 

under the order and approximately 300 

producers of avocados in the production 

area. Small agricultural service firms, 

which include avocado handlers, 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 

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. Consequently, the majority of 

avocado handlers and producers may be 

classified as small entities. 

This final rule revises the minimum 

grade requirements currently prescribed 

for Florida avocados under § 915.306 of 

the order. This change raises the 

minimum grade from a U.S. No. 2 to a 

U.S. Combination grade for avocados 

shipped to destinations outside of the 

production area and aligns marketing 

order regulations with current industry 

practices. This rule was recommended 

by the Committee at a meeting on 

October 10, 2012. Authority for this 

action is provided in §§ 915.51 and 

915.52 of the order. 

Any additional costs associated with 

this change are anticipated to be 

minimal. The order requires that all 

containers be marked with the grade of 

the fruit in the container. However, the 

vast majority of handlers are currently 

shipping at the higher grade 

requirement, and marking their 

containers accordingly. Any containers 

currently in inventory that have been 

pre-stamped with a U.S. No. 2 can be 

used for shipments within the 

production area. Therefore, this change 

should not yield any additional costs. 

As previously stated, the volume of 

U.S. No. 2 grade Florida avocados 

shipped during a season represents less 

than one percent of total annual 

shipments. In addition, the U.S. 

Combination grade requires that at least 

60 percent of the fruit in the pack be a 

U.S. No. 1 grade and the remaining fruit 

must meet a U.S. No. 2 grade. 

Consequently, U.S. No. 2 fruit can be 

utilized in the U.S. Combination pack. 

Further, U.S. No. 2 grade avocados can 

still be shipped to destinations within 

the production area. Therefore, 

implementation of this rule is not 

expected to impact the overall volume 

of U.S. No. 2 fruit being utilized as 

adequate uses for such fruit will 

continue to exist. 

Raising the minimum grade 

requirement aligns marketing order 

requirements with current industry 

practices. Consumers benefit as a result 

of the higher quality pack available in 

the marketplace. It also builds consumer 

confidence and improves grower 

returns. The benefits of this rule are not 

expected to be disproportionately 

greater or smaller for small handlers or 

growers than for large entities. 

The Committee considered 

alternatives to this recommended 

change. The Committee discussed 

raising the minimum grade to U.S. 

Combination grade during the early part 

of the season and then reverting back to 

the minimum grade requirement of a 

U.S. No. 2 in October when imported 

fruit typically begins arriving in the U.S. 

There was concern that having the 

higher grade requirements in effect 

when imports begin arriving would 

make it difficult for the domestic 

industry to compete. However, the 

Committee agreed that the quality of the 

fruit was the most important issue and 

shipping the lower grade fruit 

undermined the high standard 

established by the Florida avocado 

industry. Also, Committee members 

stated that they believe raising the 

minimum grade for Florida avocados 

shipped outside of the production area 

for the entire season would result in 

improved quality of both domestic and 

imported avocados, as importers would 

likely strive to match the quality 

standards set by the Florida avocado 

industry. Therefore, this alternative was 

rejected. 

The Committee also considered 

changing the minimum grade 

requirements for all Florida avocados 

handled, regardless of market 

destination. However, maintaining the 

current minimum grade requirement for 

avocados shipped to destinations within 

the production area provides an outlet 

for U.S. No. 2 grade fruit not utilized in 


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Federal Register / Vol. 78, No. 161 / Tuesday, August 20, 2013 / Rules and Regulations 51043 

the higher grade packs. Therefore, the 

Committee also rejected this alternative. 

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. 

This final rule revises the minimum 

grade requirement under the Florida 

avocado marketing order. 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. Further, no comments 

were received concerning the initial 

regulatory flexibility analysis. 

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 addition, 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 

October 10, 2012, 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 May 23, 2013 (78 FR 30782). 

Copies of the rule were mailed or sent 

via facsimile to all Committee members 

and 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 June 24, 2013, 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: 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. 

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) as handlers are already 

shipping avocados for the 2013–14 

season. Further, 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, and no comments were received. 

List of Subjects in 7 CFR Part 915 

Avocados, Reporting and 

recordkeeping requirements. 

For the reasons set forth in the 

preamble, 7 CFR part 915 is 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 avocadoes 

handled to destinations within the 

production area grade U.S. No. 2 and 

except further that such avocados may 

be placed in containers with avocados 

of dissimilar varietal characteristics. 

* * * * * 

Dated: August 14, 2013. 

Rex A. Barnes, 

Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2013–20274 Filed 8–19–13; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 929 

[Doc. No. AMS–FV–12–0042; FV12–929–2 

FR] 

Cranberries Grown in States of 

Massachusetts, Rhode Island, 

Connecticut, New Jersey, Wisconsin, 

Michigan, Minnesota, Oregon, 

Washington, and Long Island in the 

State of New York; Revising 

Determination of Sales History 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule revises the 

determination of sales history 

provisions currently prescribed under 

the cranberry marketing order (order). 

The order regulates the handling of 

cranberries grown in Massachusetts, 

Rhode Island, Connecticut, New Jersey, 

Wisconsin, Michigan, Minnesota, 

Oregon, Washington, and Long Island in 

the State of New York, and is 

administered locally by the Cranberry 

Marketing Committee (Committee). This 

rule modifies sales history calculations 

so that they are applicable for future 

seasons and adjusts the number of years 

that can be considered when 

determining the highest four years of 

past sales. 

DATES: Effective Date: August 21, 2013. 

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 

Agreement and Order No. 929, as 

amended (7 CFR part 929), regulating 

the handling of cranberries produced in 

Massachusetts, Rhode Island, 

Connecticut, New Jersey, Wisconsin, 

Michigan, Minnesota, Oregon, 

Washington, and Long Island in the 


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