FR Doc E7-23827

[Federal Register: December 10, 2007 (Volume 72, Number 236)]
[Proposed Rules]
[Page 69624-69628]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10de07-27]

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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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[[Page 69624]]

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 915 and 944

[Docket No. AMS-FV-07-0054; FV07-915-2 PR]

Avocados Grown in South Florida and Imported Avocados; Revision
of the Maturity Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule would revise the maturity requirements currently
prescribed for avocados grown in South Florida and for avocados
imported into the United States that are shipped to the fresh market.
The Avocado Administrative Committee (Committee) which locally
administers the marketing order for avocados grown in South Florida
recommended the change for Florida avocados. A corresponding change in
the import regulation would also be required under section 8e of the
Agricultural Marketing Agreement Act of 1937 if this rule was
implemented. This rule would require that avocados which fail the
maturity requirements and are reworked and presented for reinspection
must meet the maturity requirements which correspond to the date of the
original inspection. This rule would help ensure only mature avocados
are shipped to the fresh market.

DATES: Comments must be received by February 8, 2008.

ADDRESSES: Interested persons are invited to submit written comments
concerning this proposal. Comments should be sent to the Docket Clerk,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC
20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov.
All comments should reference the docket 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: http://www.regulations.gov
.

FOR FURTHER INFORMATION CONTACT: William G. Pimental, Marketing
Specialist, or Christian D. Nissen, Regional Manager, Southeast
Marketing Field Office, Marketing Order Administration Branch, Fruit
and Vegetable Programs, AMS, USDA; Telephone: (863) 324-3375, Fax:
(863) 325-8793, or E-mail:
William.Pimental@usda.gov or Christian.Nissen@usda.gov, respectively.

Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202)
720-2491, Fax: (202) 720-8938, or E-mail: Jay.Guerber@usda.gov.

SUPPLEMENTARY INFORMATION: 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,
hereinafter referred to as the ``order.'' The order is effective under
the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C.
601-674), hereinafter referred to as the ``Act.''
This proposed rule is also issued under section 8e of the Act,
which provides that whenever certain specified commodities, including
avocados, are regulated under a Federal marketing order, imports of
these commodities into the United States are prohibited unless they
meet the same or comparable grade, size, quality, or maturity
requirements as those in effect for the domestically produced
commodities.
The Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Order 12866.
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This action is not intended to have retroactive
effect. This proposed rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with USDA a petition
stating that the order, any provision of the order, or any obligation
imposed in connection with the order is not in accordance with law and
request a modification of the order or to be exempted therefrom. A
handler is afforded the opportunity for a hearing on the petition.
After the hearing USDA would rule on the petition. The Act provides
that the district court of the United States in any district in which
the handler is an inhabitant, or has his or her principal place of
business, has jurisdiction to review USDA's ruling on the petition,
provided an action is filed not later than 20 days after the date of
the entry of the ruling.
There are no administrative procedures which must be exhausted
prior to any judicial challenge to the provisions of import regulations
issued under section 8e of the Act.
This proposal invites comments on a revision to the maturity
requirements currently prescribed under the order for avocados grown in
South Florida. This rule would require that avocados which fail the
maturity requirements and are reworked and presented for reinspection
must meet the maturity requirements which correspond to the date of the
original inspection. This action, unanimously recommended by the
Committee, would help ensure that only mature avocados are shipped to
the fresh market.
Section 915.51 of the order provides the authority to issue
regulations establishing specific maturity requirements for avocados
grown in South Florida. Section 915.332 of the order's rules and
regulations establishes the requisite maturity requirements for
avocados. The maturity requirements specify minimum weights, diameters,
and shipping dates for approximately 60 different varieties of
avocados. These dates and requirements are reflected in the avocado
maturity schedule as it appears in Table I of Sec. 915.332(a)(2).
Under the terms of the marketing order, fresh market shipments of
Florida avocados are required to be inspected and are subject to grade,
pack, container, and maturity requirements. The maturity requirements
are intended to prevent the shipment of immature

[[Page 69625]]

avocados to the fresh market. This helps to improve buyer confidence in
the marketplace, and fosters increased consumption.
This rule would change the way the maturity requirements are
currently applied. Specifically, this rule would require avocados which
fail maturity requirements and are reworked and presented for
reinspection to meet the maturity requirements which correspond to the
date of the original inspection.
The maturity requirements for avocados are expressed in terms of
minimum weights and diameters in conjunction with specific dates during
the shipping season. Each regulated variety has its own set of dates
and requirements on the maturity schedule. The maturity requirements
for the various varieties are different because each variety has its
own growing season and stages when the fruit is mature and ready to be
harvested.
With avocados, the level of maturity is determined by when the
avocado is harvested. Because the maturity process ceases once the
fruit is severed from the tree, an avocado needs to remain on the tree
until it is mature. According to Paul Harding, a plant physiologist for
the Agricultural Marketing Service, USDA, the stage of maturity of the
fruit when harvested is directly related to its palatability and is the
most important factor that influences eating quality.\1\ Avocados which
are not mature at the time of harvest will not ripen properly. Avocados
that do not ripen properly can have an unpleasant taste and consistency
which negatively affects customer satisfaction. Consequently, the dates
on the maturity schedule have been carefully established based on years
of testing to ensure avocados shipped using the schedule are mature
enough to complete the ripening process.
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\1\ Harding, Paul L. ``The Relation of Maturity to Quality in
Florida Avocados.'' Proceedings of the Florida State Horticultural
Society 67 (1954):276-280.
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The maturity schedule is divided into A, B, C, and D dates which
reflect the different stages of maturity associated with an individual
variety. Larger sized fruit within a variety matures earlier, while
smaller fruit needs to remain on the tree longer to reach maturity.
Consequently, A dates are associated with larger sizes and are
established early in the variety's shipping season. For a majority of
varieties, the schedule also includes B and C dates that fall somewhere
in between the A and D dates for the particular variety. These dates
proceed in stages as the season advances, allowing for the shipment of
progressively smaller sizes and weights as a variety matures. The D
date marks the end of a variety's marketing season and releases all
remaining sizes for shipment to the fresh market. This gradual shift in
the maturity standards from the beginning of the season to its end
helps ensure that all sizes remain on the tree long enough to reach
maturity.
As an example, consider the Simmons variety. The A date for the
Simmons is the Monday nearest June 20, and requires a minimum weight of
16 ounces or a minimum diameter of 3\9/16\ inches for fruit shipped to
the fresh market. The corresponding B date is the Monday nearest July
4, and reduces the minimum weight to 14 ounces or a minimum diameter of
3\7/16\ inches. The C date is the Monday nearest to July 18, and
further reduces the minimum weight and size requirements to 12 ounces
or 3\1/16\ inches, and the requirements end with a scheduled D date of
the Monday nearest to August 1 when all remaining fruit of this variety
can be shipped.
Over the years, the maturity schedule has been determined to be the
best indicator of maturity for the different varieties of avocados
grown in Florida, and growers and handlers rely on the schedule in
making harvesting, packing, and shipping decisions. The maturity
schedule facilitates the shipment of the different varieties of
avocados as they mature, and helps ensure that only mature fruit is
shipped to the fresh market. This in turn helps promote consumer
satisfaction which is essential for the successful marketing of the
crop.
Florida avocados are inspected for compliance with the rules and
regulations established under the order, including the maturity
requirements, by the Federal or Federal State Inspection Service. When
a lot of avocados fails inspection, the handler has the opportunity to
rework the lot to remove the fruit that caused the lot to fail. This
usually entails removing any damaged or undersized fruit from the lot.
Once the lot has been reworked, the lot is presented for reinspection.
However, the Committee has discovered that in some cases where lots
fail for maturity, handlers are only holding the avocados until the
next date under the maturity schedule and then presenting them for
reinspection to benefit from the reduced size and weight requirements
rather than reworking the lots to remove undersized fruit. The
Committee agreed this practice undermines the purpose of the maturity
requirements and results in immature fruit being shipped to the fresh
market.
Committee members stated the maturity requirements were established
to ensure that only mature avocados reach the fresh market. By allowing
a handler to just hold the fruit until the next date on the maturity
schedule, the overall maturity of the lot is not improved. Because the
maturity process ends once the fruit is picked, fruit that fails to
meet the maturity standards at the time of inspection will not develop
in maturity while being held in the box. The only way to increase the
overall maturity of the lot is to remove the fruit which caused the lot
to fail at the time of inspection.
The Committee believes allowing fruit that failed maturity
requirements to be held until the next date on the maturity schedule
without being reworked to remove undersized fruit permits immature
fruit to be shipped to the fresh market. A lot that fails inspection
for maturity can contain a significant amount of avocados which are
undersized or underweight. Based on the schedule, this fruit was picked
too soon, and most likely did not spend enough time on the tree to
reach the proper level of maturity. Because this fruit is immature, it
will frequently not ripen properly, and it would have a negative impact
on the market and would likely result in the loss of future avocado
sales.
The requirements associated with the initial inspection correlate
more closely with the time of picking and as such remain the best
measure of the maturity of the lot. Consequently, the Committee agreed
the maturity requirements specified on the schedule at the time of the
original inspection should be the requirements applied when the
avocados are presented for reinspection.
With this change, when avocados fail inspection for maturity, the
handler would continue to be allowed to immediately rework the lot to
remove undersized and/or underweight fruit and present the lot for
reinspection or hold the lot to rework it later. However, the
reinspection would be conducted using the maturity requirements for the
date the lot was originally presented for inspection regardless of when
it is presented for reinspection. Even if a lot is held until the next
date on the schedule, the requirements specified for the original
inspection would still apply, and the avocados that caused the lot to
fail would have to be removed before the lot would pass under a
reinspection. This change would make sure undersized and underweight
fruit would have to be removed before a lot could meet the necessary
requirements

[[Page 69626]]

which in turn should help further ensure that only mature fruit is
being shipped to the fresh market.
This change would also make the reinspection procedures for
maturity requirements more consistent with those applied for grade
requirements. The current grade requirement for avocados is a U.S. No.
2 and is constant throughout the year. The only way for a lot that
fails for grade to meet the grade requirement is to have the fruit
which caused the lot to fail removed. The Committee believes the
process for handling avocados which fail the maturity requirements
should be the same. Because the maturity level does not improve by just
holding the avocados, the maturity requirements applied to that lot
should remain constant as it does with grade. This change would ensure
that undersized and underweight fruit are removed prior to
reinspection, maintaining the benefits of the maturity schedule.
Currently, when a lot of avocados fails inspection, the handler has
the option to rework the lot, hold the fruit to be reworked at a later
date, dump or destroy the fruit, send the fruit for processing, or
donate it to charity. With this change, the handler would have the same
options. However, fruit to be reworked for maturity would be segregated
and placed under the supervision of the Federal or Federal-State
Inspection Service using their Positive Lot Identification (PLI)
program to ensure the lot is reworked to meet the minimum maturity
requirements specified at the time of the initial inspection. Once the
lot, or any portion thereof, is reworked, the Federal or Federal-State
Inspection Service would reinspect the avocados applying the maturity
requirements for the date of the original inspection. Also, all fruit
in the lot would need to be accounted for under this process.
Therefore, only fruit meeting the initial maturity requirements would
be allowed to be shipped to the fresh market.
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. Since this
rule would modify maturity requirements under the domestic handling
regulations, a corresponding change to the avocado import maturity
regulations must also be considered.
Minimum grade, quality, and maturity requirements for avocados
imported into the United States are currently in effect under Sec.
944.31 (7 CFR 944.31). The maturity requirements are specified in Sec.
944.31(a)(2). The Hass, Fuerte, Zutano, and Edranol varieties of
avocados are exempt from the maturity schedule, and would continue to
be exempt under this rule. However, these varieties must meet the
minimum grade requirement of a U.S. No. 2 for imported avocados, which
would not be changed by this action.
This proposal would require that imported avocados which fail the
maturity requirements and are reworked and presented for reinspection
must meet the maturity requirements which correspond to the date of the
original inspection. With this change, fruit to be reworked for
maturity would be segregated and placed under the supervision of the
Federal or Federal-State Inspection Service using their PLI program to
ensure the lot is reworked to meet the minimum maturity requirements
specified at the time of the initial inspection.
Once the lot of avocados, or any portion thereof, is reworked, the
Federal or Federal-State Inspection Service would reinspect the lot
applying the maturity requirements for the date of the original
inspection. In addition, all fruit in the lot would need to be
accounted for under this process. This would help ensure only mature
fruit that will ripen properly is shipped to the fresh market.
Consumers prefer fruit that ripens properly. Thus, importers would also
benefit from this change in maturity requirements.
Import data for calendar years 2002 through 2006 reveals the major
exporters of green-skin avocados to the United States are Mexico,
Chile, and the Dominican Republic. Imports of green-skin avocados
totaled approximately 10,163 metric tons in 2002, 13,770 metric tons in
2003, 8,729 metric tons in 2004, 12,411 metric tons in 2005, and 10,389
metric tons in 2006. The Dominican Republic is the largest supplier of
green-skin avocados, accounting for approximately 98 percent of
imports.

Initial Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), 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
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf. Import regulations issued under
the Act are based on those established under Federal marketing orders.
There are approximately 300 producers of avocados in the production
area and approximately 35 handlers subject to regulation under the
order. There are approximately 65 importers of the type of avocados
that are regulated under the order. Small agricultural producers are
defined by the Small Business Administration (SBA) as those having
annual receipts of less than $750,000, and small agricultural service
firms, which include avocado handlers and importers, are defined as
those whose annual receipts are less than $6,500,000 (13 CFR 121.201).
According to the National Agricultural Statistics Service and
Committee data, the average price for Florida avocados during the 2005-
06 season was around $46.75 per 55-pound bushel container, and total
shipments were near 470,000 55-pound bushel equivalents. Using the
average price and shipment information provided by the Committee, the
majority of avocado handlers have annual receipts of less than
$6,500,000. In addition, based on avocado production, grower prices,
and the total number of Florida avocado growers, the average annual
grower revenue is less than $750,000. Based on information from the
Foreign Agricultural Service, USDA, the dollar value of imported
avocados ranged from around $156.7 million in 2003 to $337.5 million in
2005. Using these numbers, the majority of avocado importers have
annual receipts of less than $6,500,000. Consequently, the majority of
avocado producers, handlers, and importers may be classified as small
entities.
This proposed rule, recommended by the Committee, would revise the
maturity requirements currently prescribed for avocados grown in South
Florida and for avocados imported into the United States that are
shipped to the fresh market. This proposal would require that avocados
which fail the maturity requirements and are reworked and presented for
reinspection must meet the maturity requirements which correspond to
the date of the original inspection. This rule would help ensure that
only mature avocados are shipped to the fresh market. This rule would
revise Sec. 915.332, which specifies the requisite maturity
requirements. Authority for this action is provided in Sec. 915.51 of
the order. This rule would also revise Sec. 944.31, which specifies
the maturity requirements for imported avocados. The change in the
import

[[Page 69627]]

regulation is required under section 8e of the Act.
This rule could result in some additional costs for handlers and
importers. These costs would be associated primarily with the cost to
rework the lot and the added inspection costs associated with having
Federal or Federal-State Inspection Service supervision of lots that
fail for maturity. However, these costs are expected to be minimal and
should apply to no more than a few shipments each year as only a very
small percentage of lots fail for maturity.
The vast majority of handlers and importers are already reworking
lots that fail for maturity to remove the undersized and underweight
avocados that caused the lot to fail. Consequently, reworking lots
which fail for maturity is already a standard practice for most of the
industry, and as such would not represent an additional cost for most
handlers and importers.
In addition, this rule could encourage more careful spot picking to
ensure that the avocados are of the proper size or weight to meet the
requirements of the maturity schedule. However, spot picking is a
standard industry practice, so this should not result in any additional
cost.
Therefore, in most cases, any additional costs resulting from this
change would be from the added inspection costs associated with the
Federal or Federal-State Inspection Service supervision of failing
lots. Based on information provided by the Federal or Federal-State
Inspection Service, the added cost would be based on the time it takes
to apply the PLI program. For most handlers and importers, this should
be accomplished in an hour or less. Consequently, the added cost would
be based on the standard hourly rate charged by the Federal or Federal-
State Inspection Service. These costs could range from as low as $22.00
per hour to $64.00 per hour for a lot of avocados. In situations where
a lot is reworked immediately, the handler or importer may not even
accrue any additional charges.
With average lot sizes ranging from approximately 100 55-pound
cartons of avocados for a small lot to large lots containing
approximately 800 55-pound cartons, and with avocados selling for a
season average of around $46.75 per 55-pound container, the cost of
inspection would be a small percentage of the total value of the lot.
Consequently, considering the possible added costs associated with this
change, and the small number of lots affected, the overall costs
associated with this rule are expected to be minimal.
Florida avocado producers and handlers have found that the maturity
requirements have been beneficial in the successful marketing of their
avocado crop. Experience has shown when immature avocados are found in
market channels, they tend to have a price depressing effect on the
market and negatively affect repeat purchases. Preventing the shipment
of immature avocados improves buyer confidence in the marketplace, and
fosters increased consumption. This change is expected to provide added
assurance that the avocados marketed are of satisfactory maturity and
will ripen properly which is expected to further promote customer
satisfaction.
This proposal is expected to similarly impact importers of
avocados. Non-exempt varieties of imported avocados have met the
minimum weight or diameter maturity requirements in past seasons, and
this is expected to continue. Thus, USDA believes this proposed change
would not limit the quantity of imported avocados or place an undue
burden on exporters, or importers of avocados. The marketplace price
and quality benefits expected for Florida growers and handlers as a
result of this proposal would also benefit exporters and importers of
avocados.
As most handlers and importers are already reworking lots which
fail for maturity to remove undersized and underweight fruit, this
change is not expected to impact the total number of avocado shipments.
It is, however, expected to have a positive effect in the marketplace
by helping to ensure only mature avocados are reaching the market which
in turn should provide a strong price base for the industry.
This proposed rule may impose some additional costs on producers,
handlers, and importers. However, the costs are expected to be minimal,
and would be offset by the benefits of the proposal. This proposed
action would benefit consumers, producers, handlers, and importers by
providing consumers with a better, more mature piece of fruit. The
costs and benefits of this rule are not expected to be
disproportionately greater or less significant for small entities than
for large entities.
One alternative to this action considered was to make no change.
However, the Committee believes this was not an acceptable alternative
as it could result in immature avocados reaching the fresh market. The
Committee agreed that allowing immature avocados to reach the fresh
market would be detrimental to the industry as a whole. Therefore, this
alternative was rejected.
AMS is committed to complying with the E-Government Act, to promote
the use of the Internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes.
This rule would not impose any additional reporting or
recordkeeping requirements on either small or large avocado handlers or
importers. 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. In addition, USDA
has not identified any relevant Federal rules that duplicate, overlap
or conflict with this proposed rule.
Further, the Committee's meeting was widely publicized throughout
the avocado industry and all interested persons were invited to attend
the meeting and participate in Committee deliberations. Like all
Committee meetings, the meeting where this action was recommended 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 information on the regulatory and informational impacts of this
action on small businesses.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html.
Any questions about the compliance

guide should be sent to Jay Guerber 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 proposal. 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 above, 7 CFR parts 915 and 944 are
proposed to be amended as follows:

[[Page 69628]]

PART 915--AVOCADOS GROWN IN SOUTH FLORIDA

1. The authority citation for 7 CFR parts 915 and 944 continues to
read as follows:

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

2. A new paragraph (a)(3) is added to Sec. 915.332 to read as
follows:

Sec. 915.332 Florida avocado maturity regulation.

(a) * * *
(3) Avocados which fail to meet the maturity requirements specified
in this section must be maintained under the supervision of the Federal
or Federal-State Inspection Service using the Positive Lot
Identification program, and when presented for reinspection, must meet
the maturity requirements which correspond to the date of the original
inspection.
* * * * *

PART 944--FRUITS; IMPORT REGULATIONS

3. A new paragraph (a)(3) is added to Sec. 944.31 to read as
follows:

Sec. 944.31 Avocado import maturity regulation.

Dated: December 4, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E7-23827 Filed 12-7-07; 8:45 am]

BILLING CODE 3410-02-P