Proposed Rule2021-17235
Avocados Grown in South Florida and Imported Avocados; Change in Maturity Requirements
Primary source
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Published
August 12, 2021
Issuing agencies
Agriculture DepartmentAgricultural Marketing Service
Abstract
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.
Full Text
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
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: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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:
<a href="https://www.ams.usda.gov/rules-regulations/moa/small-businesses">https://www.ams.usda.gov/rules-regulations/moa/small-businesses</a>. 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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