[Federal Register Volume 86, Number 153 (Thursday, August 12, 2021)]
[Proposed Rules]
[Pages 44286-44290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17235]


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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.

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Federal Register / Vol. 86, No. 153 / Thursday, August 12, 2021 / 
Proposed Rules

[[Page 44286]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 915 and 944

[Doc. No. AMS-SC-20-0082; SC20-915-2]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would change the maturity requirements 
currently prescribed under the Florida avocado marketing order. The 
order regulates the handling of avocados grown in South Florida and is 
administered locally by the Avocado Administrative Committee 
(Committee). The proposed change would establish beginning and end 
dates for the annual maturity shipping schedule. A corresponding change 
would be made to the avocado import regulation as required under 
section 8e of the Agricultural Marketing Agreement Act of 1937.

DATES: Comments must be received by October 12, 2021.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule. Comments must be sent to the Docket 
Clerk, Marketing Order and Agreement Division, Specialty Crops Program, 
AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 
20250-0237; or submitted to internet: https://www.regulations.gov. 
Comments should reference the document number and the date and page 
number of this issue of the Federal Register and will be available for 
public inspection in the Office of the Docket Clerk during regular 
business hours or can be viewed at: https://www.regulations.gov. All 
comments submitted in response to this proposed rule 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 the 
comments will be made public on the internet at the address provided 
above.

FOR FURTHER INFORMATION CONTACT: Abigail Campos, Marketing Specialist, 
or Christian D. Nissen, Regional Director, Southeast Marketing Field 
Office, Marketing Order and Agreement Division, Specialty Crops 
Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or 
Email: <a href="/cdn-cgi/l/email-protection#4504272c22242c296b062428352a3605303621246b222a33"><span class="__cf_email__" data-cfemail="703112191711191c5e33111d001f0330050314115e171f06">[email protected]</span></a> or <a href="/cdn-cgi/l/email-protection#783b100a110b0c1119165636110b0b1d16380d0b1c19561f170e"><span class="__cf_email__" data-cfemail="7033180219030419111e5e3e190303151e30050314115e171f06">[email protected]</span></a>.
    Small businesses may request information on complying with this 
regulation by contacting Richard Lower, Marketing Order and Agreement 
Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue 
SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, or 
Email: <a href="/cdn-cgi/l/email-protection#7b291218131a091f5537140c1e093b0e081f1a551c140d"><span class="__cf_email__" data-cfemail="2a784349424b584e0466455d4f586a5f594e4b044d455c">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, 
proposes an amendment to regulations issued to carry out a marketing 
order as defined in 7 CFR 900.2(j). This proposed rule is issued under 
Marketing Agreement No. 121 and Marketing Order No. 915, both 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 a public member.
    This rule 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 Department of Agriculture (USDA) is issuing this proposed rule 
in conformance with Executive Orders 12866 and 13563. 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. This action falls within 
a category of regulatory actions that the Office of Management and 
Budget (OMB) exempted from Executive Order 12866 review.
    This proposed rule has been reviewed under Executive Order 13175--
Consultation and Coordination with Indian Tribal Governments, which 
requires agencies to consider whether their rulemaking actions would 
have tribal implications. In accordance with Executive Order 13175, AMS 
has not identified any tribal implications as a result of this proposed 
rule.
    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This proposed 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 (7 U.S.C. 608c(15)(A)), 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. 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 no later than 20 
days after the date of the entry of the ruling (7 U.S.C. 608c(15)(B)).
    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 rule would change the maturity requirements under the 
Order. This action would establish April 16 to April 15 of the 
following year as the beginning and end dates for the annual maturity 
shipping schedule, with an

[[Page 44287]]

exception for the requirements listed under Guatemalan seedling, which 
would run from June 9 to June 8 of the following year. This rule would 
provide clarity regarding the schedule and dates in effect, assist with 
compliance to help ensure a quality product reaches consumers, and 
reflect current industry practices. These changes were unanimously 
recommended by the Committee at its October 14, 2020, meeting.
    Section 915.51 of the Order provides, in part, authority to 
establish maturity requirements under the Order. 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 regulations are designed to prevent the shipment of 
immature avocados and include the annual shipping schedule to help 
ensure only mature fruit reaches the market. Avocado varieties mature 
at different times, and varieties can vary considerably in terms of 
size and weight. Consequently, the schedule establishes shipping dates 
and maturity requirements by variety. Varieties not specifically listed 
on the schedule are covered by the requirements for West Indian 
seedling or Guatemalan seedling. These maturity dates and requirements 
are established based on a testing procedure developed by 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 requirements for a variety are 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 handled until the earliest date, the A date, 
specified for that variety on the shipping schedule so only the 
largest, most mature fruits are available for market for each variety 
early in its season. The final date, the D date, for each variety 
correlates to the end of its season when all fruits of that variety 
should be mature and releases all remaining sizes and weights for 
shipment.
    While the maturity schedule includes dates and maturity 
requirements for individual varieties, the regulations do not specify 
beginning and end dates for the annual maturity schedule itself. In the 
past, there was a gap in shipments in April, which created a natural 
break from one season's schedule to the next, with the first varieties 
appearing on the maturity schedule in May. This break served as the 
indicator of where the requirements of one annual schedule ended, and 
the new annual schedule began.
    Such a differentiation between schedules is important as it 
clarifies which schedule is in place, so handlers know which maturity 
requirements need to be met. Specifically, this demarcation makes it 
clear the D dates for one schedule do not stretch to the A dates of the 
new schedule. Such a delineation between schedules provides a gap 
between the D dates and the A dates. This helps to ensure avocados are 
not shipped early to take advantage of the relaxed maturity 
requirements of the D-date, which could result in the shipment of 
immature fruit, and would circumvent the requirement that avocados may 
not be handled prior to the earliest date specified by the A date for 
that variety.
    However, with the development of late-season varieties, there has 
been an increase in shipments under the Guatemalan seedling category in 
March, April, and May. Consequently, there is no longer a break in 
shipments between annual schedules, which has created an overlap from 
one annual schedule to the next. With this overlap, questions have 
arisen regarding the schedule, and when one annual schedule ends and 
another begins.
    In discussing this issue, the Committee supported establishing 
beginning and end dates for the maturity schedule to address the 
overlap, and to address questions regarding which maturity schedule and 
dates were in effect. The Committee believes doing so would provide 
clarity regarding the schedule and would help assist with any 
compliance issues related to the dates established.
    The Committee agreed that using an end date of April 15 for the 
shipping schedule, with an exception for avocados handled under the 
Guatemalan seedling category would be appropriate. This date reflects 
the break in schedules the industry has used to delineate one schedule 
from the next, and it remains applicable for all listings on the 
shipping schedule apart from the Guatemalan seedling.
    For most avocados covered under the schedule, the normal harvest 
cycle, from the A date when the harvest of a particular variety begins 
to when all fruit of that variety has been picked, is around three 
months. The last A date listed on the schedule for a specific variety 
is for the Monday nearest December 12, with a D date of the following 
Monday nearest January 23. Using these dates, April 15 would provide 
more than enough time to harvest and ship those varieties listed on the 
schedule, other than Guatemalan seedling.
    While the A date for the ``Guatemalan Seedling'' appears on the 
maturity schedule in September, the listing provides the maturity 
requirements for avocados of the Guatemalan type varieties and 
seedlings, as well as hybrid varieties and seedlings, and unidentified 
seedlings not listed elsewhere in Table I. Consequently, the 
requirements for the Guatemalan seedling cover numerous varieties with 
shipments extending into March, April, and May for some of the 
varieties in this category.
    Recognizing the shipments under the Guatemalan seedling and related 
varieties and seedlings do not conform to the same seasonal schedule as 
the other varieties listed on the maturity schedule, the Committee 
considered alternative dates for the beginning and end dates for the 
maturity requirements for those varieties covered under this category. 
In discussing dates for the Guatemalan seedling, Committee members were 
concerned about establishing an end date that was beyond the proper 
maturity timeframe for this fruit, which could allow inferior fruit to 
enter the market.
    Avocados mature on the tree and start the ripening process as they 
are picked. Avocados can be held on the tree to delay shipments or to 
lengthen the harvest period. However, if they remain on the tree too 
long, they will pass their optimal maturity. This can negatively impact 
the quality of the fruit resulting in fruit that is overmature or 
overripe.
    In past seasons, the industry had been considering June 30 as an 
end date for the annual requirements for Guatemalan seedling. However, 
Committee members agreed this date was too late in the season and could 
result in poor quality fruit reaching the market, as some overripe 
avocados had appeared at the wholesale level. Committee members believe 
setting an end date earlier in the month would address the issues 
related to overmature fruit, improving the quality of avocados entering 
the market,

[[Page 44288]]

and providing customers with a better product.
    According to information from the Committee, avocados declared as 
Guatemalan seedling have typically completed shipping before the first 
week in June. Considering the timing of shipments, and to ensure 
consumers would be receiving a quality product, the Committee 
recommended establishing an end date for the Guatemalan maturity 
requirements of June 8.
    With most shipments ending before the first week in June, a June 8 
end date would provide an additional week for handlers to ship any 
remaining avocados covered by the Guatemalan seedling requirements. 
Also, by having a clear end date defining where one schedule ends, and 
the new schedule becomes applicable, handlers could adjust their 
shipping dates accordingly to meet the requirements.
    As a result, the Committee recommended establishing beginning and 
end dates for the annual maturity shipping schedule of April 16 to 
April 15 of the following year, with an exception for Guatemalan 
seedling which would extend from June 9 to June 8 of the following 
year. The Committee believes establishing these dates would provide 
clarity regarding the schedule, assist with compliance to help ensure a 
quality product reaches consumers, and reflect current industry 
practices and changes in the industry. This proposed change would only 
impact the maturity requirements under the Order and would make no 
change to the current grade requirements.
    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 Florida avocados by establishing beginning and end 
dates for the annual maturity shipping schedule, a corresponding change 
would need to be made to the import regulations.
    Imports and importers would also benefit from these proposed 
changes, which would establish beginning and end dates for the maturity 
requirements. Clarifying the schedule and the requirements that are in 
place, thus helping ensure customers are receiving a quality product 
would be beneficial for the entire industry, including imports.
    The Hass, Fuerte, Zutano, and Edranol varieties of avocados 
currently are exempt from the maturity regulations and continue to be 
exempt under this rule. However, these varieties are not exempt from 
the import grade regulation, which is 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), 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 the 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 325 producers of Florida avocados in the 
production area and 25 handlers subject to regulation under the Order. 
Small agricultural producers are defined by the Small Business 
Administration (SBA) as those having annual receipts less than 
$1,000,000, and small agricultural service firms are defined as those 
whose annual receipts are less than $30,000,000 (13 CFR 121.201).
    According to the National Agricultural Statistical Service (NASS), 
the average grower price paid for Florida avocados during the 2020-21 
season was $21.97 per 55-pound bushel. Utilized production was 
equivalent to 624,364 55-pound bushels for a total value of over 
$13,718,830. Dividing the crop value by the estimated number of 
producers (325) yields an estimated average receipt per producer of 
$42,212, so the average producer would have annual receipts of less 
than $1,000,000.
    USDA Market News reported April 2021 terminal market prices for 
green skinned avocados were about $36.43 per 24-pound container. Using 
this price and the total utilization, the total 2020-21 handler crop 
value is estimated at $52.1 million. Dividing this figure by the number 
of handlers (25) yields an estimated average annual handler receipts of 
slightly over $2 million, which is below the SBA threshold for small 
agricultural service firms.
    In 2020, the Dominican Republic, Peru, Mexico, and Colombia 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 29,630 metric tons. Of that 
amount, 29,133 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 
$41,385,000. There are approximately 20 importers of green skin 
avocadoes. Using the total value and the number of importers, the 
average importer would have annual receipts of less than $30 million.
    Based on these estimates, the majority of Florida avocado producers 
and handlers, and importers may be classified as small entities.
    This proposed rule would change the maturity requirements under the 
Order. This action would establish April 16 to April 15 of the 
following year as the beginning and end dates for the annual maturity 
shipping schedule, with an exception for Guatemalan seedling which 
would run from June 9 to June 8 of the following year. This rule would 
provide clarity regarding the maturity schedule and dates in effect, 
assist with compliance to help ensure a quality product reaches 
consumers, and reflect current industry practices. This proposed rule 
would revise Sec.  915.332. Authority for this change is provided in 
Sec. Sec.  915.51 and 915.52. This proposed rule would also change 
Sec.  944.31 in the avocado import regulation, as is required by 
section 8e of the Act.
    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 by 
providing clarity regarding the maturity schedule and dates in effect, 
assist with compliance, and help ensure a quality product reaches 
consumers.
    This change would provide clarity as to which schedule is in place, 
so producers, handlers, and importers know which maturity requirements 
need to be met. Establishing beginning and end dates for the maturity 
requirements would clearly identify when the requirements of one annual 
schedule end, and the new annual schedule begins. Further, having a 
delineation between schedules would assist with compliance by making it 
clear that the D dates for one schedule do not stretch to the A date of 
the new schedule. This would help ensure that immature avocados are not 
shipped early using the previous season's D date to circumvent the 
requirement that avocados may not be handled prior to the A date 
specified for that variety.

[[Page 44289]]

    For the Guatemalan seedling, establishing the beginning and end 
dates for the annual maturity requirements would help prevent shipments 
beyond the quality lifecycle of varieties covered under this category. 
This change would set a clear date by which shipments under the D date 
would end, assisting both with compliance and with fruit quality. 
Absent this change, fruit could be shipped past its proper maturity 
period, which could provide the consumer with an inferior product.
    This change would not create any additional burdens for producers, 
handlers, or importers. The April 15 end date reflects the break in 
schedules the industry has used to delineate one schedule from the 
next, and it remains applicable for all listings on the shipping 
schedule, apart from the Guatemalan seedling. The April 15 end date 
would provide more than enough time to harvest and ship those varieties 
listed on the schedule.
    For those varieties covered under the Guatemalan seedling, 
Committee data indicates most shipments are completed before the first 
week in June. This change would provide an additional week beyond June 
1 for handlers to ship any remaining avocados covered by the Guatemalan 
seedling requirements. Also, by establishing a clear end date, handlers 
would be able to adjust their shipping dates accordingly to meet the 
new requirements. Establishing an end date of June 8 for maturity 
requirements for the Guatemalan seedling would provide sufficient time 
for avocados to ship under this designation, while helping prevent the 
shipment of overmature fruit.
    This rule would provide clarity regarding the maturity schedule and 
dates in effect, assist with compliance to help ensure a quality 
product reaches consumers, and reflect current industry practices. The 
benefits of this rule are expected to be equally available to all fresh 
avocado growers, handlers, and importers, regardless of their sizes of 
operations.
    One alternative to this action would be to maintain the current 
maturity requirements without establishing end dates for the maturity 
schedule. However, the Committee recognized that shipments have changed 
over the years and wanted to provide clarity regarding the maturity 
schedule. Another alternative considered was establishing an end date 
for the requirements for Guatemalan seedling of June 30. In discussing 
this date, Committee members expressed concern that this date was past 
the proper maturity for this fruit and would allow inferior fruit to 
enter the market. The Committee believes establishing the changes in 
this proposed rule, rather than the alternatives, would assist with 
compliance and help ensure a quality product reaches consumers. 
Therefore, the Committee rejected these alternatives.
    Committee meetings were widely publicized throughout the avocado 
industry. All interested persons were invited to attend Committee 
meetings and participate in Committee deliberations on all issues. Like 
all Committee meetings, the October 14, 2020, meeting was a public 
meeting and all entities, both large and small, were able to express 
views on this issue. Interested persons are invited to submit comments 
on this proposed rule, including the regulatory and informational 
collection 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 the OMB and assigned OMB No. 0581-0189, Fruit 
Crops. No changes in those requirements would be necessary as a result 
of this proposed rule. Should any changes become necessary, they would 
be submitted to OMB for approval.
    This proposed rule would not impose any additional reporting or 
recordkeeping requirements on either small or large 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.
    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.
    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.
    In accordance with section 8e of the Act, the United States Trade 
Representative has concurred with the issuance of this proposed rule.
    A 60-day comment period is provided to allow interested persons to 
respond to this proposed rule. 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 part 915 continues to read as follows:

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

0
2. Section 915.332 is amended by adding paragraph (a)(4) to read as 
follows:


Sec.  915.332   Florida avocado maturity regulation.

    (a) * * *
    (4) The requirements listed in table I of this section are in 
effect annually from April 16 through April 15 of the following year, 
with an exception for the requirements for Guatemalan seedling which 
are in effect annually from June 9 to June 8 of the following year.
* * * * *

PART 944--FRUITS; IMPORT REGULATIONS

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

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

0
4. Section 944.31 is amended by adding paragraph (a)(4) to read as 
follows:


Sec.  944.31   Avocado import maturity regulation.

    (a) * * *
    (4) The requirements listed in table I of this section are in 
effect annually from April 16 through April 15 of the following year, 
with an exception for the requirements for Guatemalan seedling which 
are in effect annually

[[Page 44290]]

from June 9 to June 8 of the following year.
* * * * *

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2021-17235 Filed 8-11-21; 8:45 am]
BILLING CODE 3410-02-P


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