Fruits; Imported (Avocados); Reinstatement and Revision of Avocado Import Maturity Requirements

DEPARTMENT OF AGRICULTURE

7 CFR Part 944

[Docket No. FV-91-288-PR]

Fruits; Imported (Avocados); Reinstatement and Revision of

Avocado Import Maturity Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would reinstate, with revision, temporarily

suspended maturity requirements based on minimum sizes (diameters and

weights) and skin color for avocados imported into the United States.

These maturity requirements were temporarily suspended to provide the

United States Trade Representative (USTR) adequate time to review

contemplated changes in the import requirements. This proposed rule

would also add an exemption for certain varieties of avocados, and

remove the exemption for avocados grown in the southern hemisphere.

This proposed rule would also add exemptions from maturity requirements

for avocados imported for certain uses. This proposed rule is needed so

that imported avocados meet the same minimum size and color maturity

requirements as those established for avocados under the Federal

marketing order covering Florida avocados, consistent with section 8e

of the Agricultural Marketing Agreement Act of 1937.

DATES: Comments must be received by May 4, 1994.

ADDRESSES: Interested persons are invited to submit written comments

concerning this proposed rule. Comments must be sent in triplicate to

the Docket Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box

96456, room 2523-S, Washington, D.C. 20090-6456, or by facsimile at

202-720-5698. 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.

FOR FURTHER INFORMATION CONTACT: Caroline C. Thorpe, Marketing

Specialist, Marketing Order Administration Branch, Fruit and Vegetable

Division, AMS, USDA, P.O. Box 96456, room 2523-S, Washington, DC 20090-

6456; telephone: 202-720-5331; or Aleck J. Jonas, Southeast Marketing

Field Office, USDA/AMS, P.O. Box 2276, Winter Haven, Florida 33883;

telephone: 813-299-4770.

SUPPLEMENTARY INFORMATION: This proposed rule is issued under section

8e (7 U.S.C. section 608e-1) of the Agricultural Marketing Agreement

Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as

the Act. Section 8e of the Act provides that whenever 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 Secretary has determined that minimum weight

and diameter maturity import requirements for avocados imported into

the United States should be the same as such requirements applied to

avocados grown in Florida under Marketing Order No. 915 (7 CFR part

915), hereinafter referred to as the order.

The Department is issuing this rule in conformance with Executive

Order 12866.

This proposed rule has been reviewed under Executive Order 12778,

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. There are no administrative procedures which

must be exhausted prior to any judicial challenge to the provisions of

this rule.

Pursuant to requirements set forth in the Regulatory Flexibility

Act (RFA), the Administrator of the Agricultural Marketing Service

(AMS) has considered the economic impact of this action on small

entities.

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. Thus, both statutes have small

entity orientation and compatibility. Import regulations issued under

the Act are based on those established under Federal marketing orders.

There are about 20 avocado importers who would be subject to the

proposed avocado import maturity requirements. Small agricultural

service firms, which include importers, have been defined by the Small

Business Administration (13 CFR 121.601) as those whose annual receipts

are less than $3,500,000. A majority of these importers may be

classified as small entities.

Minimum size (weight and diameter) and skin color maturity

requirements for imported avocados in Sec. 944.31 (7 CFR 944.31) were

continuously in effect for several years prior to their suspension by a

final rule issued May 15, 1991 (56 FR 23009, May 20, 1991). The avocado

import maturity requirements were temporarily suspended to provide the

USTR adequate time to review contemplated changes in those

requirements, as required by section 8e of the Act. Suspension of the

avocado import maturity requirements became necessary when the Florida

avocado maturity requirements in Sec. 915.332 (7 CFR 915.332), upon

which the avocado import maturity requirements were based, were revised

on May 15, 1991 (56 FR 23005, May 20, 1991). This revision was

finalized on September 4, 1991 (56 FR 46224, September 11, 1991).

Section 915.332 was most recently amended to make calendar date

adjustments in the shipping schedule for several varieties of Florida

avocados on June 29, 1993 (58 FR 34684, June 29, 1993), and that rule

was finalized on October 4, 1993 (58 FR 46759, September 3, 1993).

Prior to suspension, the avocado import maturity requirements were

based on minimum weights and diameters applied to avocados grown in all

foreign countries, except for those grown in southern hemisphere

countries. Such requirements were applied to each variety for a

specific time period during the first part of the shipping period. The

minimum weights or diameters were not applied to avocados grown in

southern hemisphere countries, such as Chile, where practically all

imported southern hemisphere avocados have originated in recent years,

because the southern hemisphere's avocado growing season and various

shipping periods differed from those in Florida. The import maturity

requirements based on minimum weights or diameters were applied to

avocados grown in northern hemisphere countries, such as those in the

Bahamas and the Dominican Republic, where practically all northern

hemisphere imported avocados have originated in recent years, because

their growing season and various shipping periods are similar to those

in Florida.

The avocado import maturity requirements based on skin color for

certain varieties of avocados which turn red or purple when mature were

applied to avocados imported from all foreign countries in both the

southern and northern hemispheres. Such requirements applied to all

avocados grown in both hemispheres, because all such avocados turn

color when mature regardless of where they were grown.

This proposed rule would also reinstate the minimum size (weight

and diameter) requirements for avocados and the skin color maturity

requirements for avocados imported from all foreign countries by

lifting the suspended provisions of Sec. 944.31. However, this proposed

rule would exempt the Hass, Fuerte, Zutano, and Edranol varieties of

avocados from such import maturity requirements, because such varieties

are not grown in commercial quantities in Florida and regulated under

the Florida avocado maturity requirements in Sec. 915.332.

This proposed rule would obviate the need for exempting avocados

imported from the southern hemisphere, since the major varieties

imported from the southern hemisphere are the Hass, Fuerte, Zutano, and

Edranol varieties.

This proposed rule would also add language to Sec. 944.31 to cite

the minimum size (weight and diameter) and skin color maturity

requirements, and define the term ``diameter''.

This proposed rule also would exempt imported avocados under

Sec. 944.31, from minimum weight, diameter, and color maturity

requirements if they are to be used in certain specified outlets.

Similar exemptions from grade requirements established for imported

avocados under Sec. 944.28 were implemented by an interim final rule

published in the Federal Register (58 FR 69182, December 30, 1993),

with an effective date of January 1, 1994.

The avocado import maturity regulation (7 CFR 944.31) is based on

the maturity requirements in effect for avocados grown in Florida under

the order throughout the year. Under the order, any person may handle

avocados without regard to established grade, size, quality, or

maturity requirements provided that such avocados are handled for: (1)

Consumption by charitable institutions; (2) distribution by relief

agencies; (3) commercial processing into products; (4) seed; or (5)

individual shipments of up to 55 pounds. Prior to issuance of this

rule, the only exemption allowed under the avocado import regulation

was that for individual shipments of up to 55 pounds. Thus, this

proposed rule would add consumption by charitable institutions,

distribution by relief agencies, seed, and commercial processing into

products to the list of exemptions allowed under the avocado import

regulation.

To ensure that imported avocados exempt from the maturity

requirements are utilized in exempt outlets, this rule proposes that

such avocados be subject to the safeguard procedures for imported fruit

established in Sec. 944.350 (58 FR 69182, December 30, 1993).

Under these procedures, an importer wishing to import avocados

covered herein for uses in other than regulated commercial channels,

would complete in triplicate, prior to importation, an ``Importer's

Exempt Commodity Form.'' One copy would notify the Marketing Order

Administration Branch (MOAB) of the Fruit and Vegetable Division, AMS,

and the second copy would notify the U.S. Customs Service of the

importer's intent to import a commodity under an exemption. The third

copy would accompany the exempt lot to the receiver.

The form could be obtained from either the inspection or customs

offices serving the port of entry. The form could also be obtained from

the MOAB in Washington, DC or from its Marketing Field Offices in

Fresno, California; Portland, Oregon; McAllen, Texas; or Winter Haven,

Florida.

At the time the commodity enters the United States the importer

would complete the form; surrender a copy of the completed form to the

U.S. Customs at the time the commodity is offered for importation; and

would forward a copy of the completed form to MOAB within 15 days after

completeion of the form. Information called for on the ``Importer's

Exempt Commodity Form'' would include:

(1) The commodity and the variety (if known) being imported,

(2) The date and place of inspection, if applicable,

(3) Identifying marks or numbers on the containers,

(4) Identifying numbers on the railroad car, truck or other

transportation vehicle transporting product to the receiver,

(5) The name and address of the importer,

(6) The place and date of entry,

(7) The quantity imported,

(8) The name and address of the intended receiver (eg. processor,

feeder, charity, or other exempt receiver),

(9) Intended use of the exempt commodity,

(10) The U.S. Customs Service entry number and harmonized tariff

code number, and

(11) Such other information as may be necessary to ensure

compliance with this regulation.

For purposes of this regulation, a lot would be considered to be

imported when it is released by the Customs Service for entry into

commercial markets or other channels. Lots that are exempt from

maturity requirements of the import regulations would not be subject to

the inspection and certification requirements in such regulations. An

imported lot intended for normal commercial channels, or any portion of

such a lot, that fails established maturity requirements, could be

disposed of in exempt outlets, as specified in the pertinent avocado

import requirements.

The third copy of the form would accompany the exempt lot to its

intended destination. The receiver would certify that the lot has been

received and it will be utilized in an exempt outlet. After the

certification is signed by the receiver, the form would be returned to

MOAB by the receiver, within 15 days of receipt of the lot. The

information collection requirements contained in this proposed rule

have been previously approved by the Office of Management and Budget

(OMB) in accordance with the Paperwork Reduction Act of 1980 (44 U.S.C.

chapter 35), and have been assigned OMB number 0581-0167.

In accordance with section 8e of the Act, the USTR has concurred

with the issuance of this proposed rule.

Based on the above, the Administrator of the AMS has determined

that this proposed rule would not have a significant economic impact on

a substantial number of small entities.

This proposed rule reflects the Department's appraisal of the need

to reinstate the suspended avocado import maturity requirements and

make the specified changes in the avocado import maturity requirements,

as hereinafter set forth, in accordance with section 8e of the Act.

List of Subjects in 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 part 944 is

proposed to be amended as follows:

PART 944--FRUITS; IMPORT REGULATIONS

1. The authority citation for 7 CFR part 944 continues to read as

follows:

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

2. The suspension of Sec. 944.31 is lifted and the section is

revised to read as follows:

Sec. 944.31 Avocado import maturity regulation.

(a) Pursuant to section 8e (7 U.S.C. 608e-1) of the Agricultural

Marketing Agreement Act of 1937, as amended (7 U.S.C 601-674), and part

944--Fruits; Import Regulations, the importation into the United States

of any avocados, except the Hass, Fuerte, Zutano, and Edranol

varieties, is prohibited unless:

(1) Any portion of the skin of the individual avocados has changed

to the color normal for that fruit when mature for those varieties

which normally change color to any shade of red or purple when mature,

except for the Linda variety; or

(2) Such avocados meet the minimum weight or diameter requirements

for the Monday nearest each date specified, through the Sunday

immediately prior to the nearest Monday of the specified date in the

next column, for each variety listed in the following TABLE I:

Provided, That avocados may not be handled prior to the earliest date

specified in column A of such table for the respective variety:

Provided further, There are no restrictions on size or weight on or

after the date specified in column D: Provided further, That up to a

total of 10 percent, by count to the individual fruit in each lot may

weigh less than the minimum specified or be less than the specified

diameter, except that no such avocados shall be over 2 ounces lighter

than the minimum weight specified for the variety: Provided further,

That up to double such tolerance shall be permitted for fruit in an

individual container in a lot.

Table 1

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Min. Min. Min. Min. Min. Min.

Variety A Date wt. diam. B Date wt. diam. C Date wt. diam. D Date

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Dr. Dupuis #2......... 5-30 16 3\7/16\ 6-13 14 3\5/16\ 7-04 12 3\2/16\ 7-18

Simmons............... 6-20 16 3\9/16\ 7-04 14 3\7/16\ 7-18 12 3\1/16\ 8-01

Pollock............... 6-20 18 3\11/16

\ 7-04 16 3\7/16\ 7-18 14 3\4/16\ 8-01

Hardee................ 6-27 16 3\2/16\ 7-04 14 2\14/16

\ 7-11 12 ....... 7-25

Nadir................. 6-27 14 3\3/16\ 7-04 12 3\1/16\ 7-11 10 2\14/16

\ 7-18

Ruehle................ 7-04 18 3\11/16

\ 7-11

7-18 16

14 3\9/16\

3\7/16\ 8-01

8-08 12

10 3\5/16\

3\3/16\ 8-15

Bernecker............. 7-18 18 3\6/16\ 8-01 16 3\5/16\ 8-15 14 3\4/16\ 8-29

Miguel (P)............ 7-18 22 3\13/16

\ 8-01 20 3\12/16

\ 8-15 18 3\10/16

\ 8-29

Nesbitt............... 7-18 22 3\12/16

\ 8-01 16 3\5/16\ 8-08 14 3\3/16\ 8-22

Tonnage............... 8-01 16 3\6/16\ 8-15 14 3\4/16\ 8-22 12 3\0/16\ 8-29

Waldin................ 8-01 16 3\9/16\ 8-15 14 3\7/16\ 8-29 12 3\4/16\ 9-12

Tower................. 8-01 14 3\6/16\ 8-15 12 3\4/16\ ....... ....... ....... 9-05

Beta.................. 8-08 18 3\8/16\ 8-15 16 3\5/16\ ....... ....... ....... 9-05

Lisa (P).............. 8-08 12 3\2/16\ 8-15 11 3 ....... ....... ....... 8-22

Black Prince.......... 8-15 28 4\1/16\ 8-29 23 3\14/16

\ 9-12 16 3\9/16\ 10-03

Loretta............... 8-22 30 4\3/16\ 9-05 26 3\15/16

\ ....... ....... ....... 9-26

Booth 8............... 8-29 16 3\9/16\ 9-12 14 3\6/16\ 9-26

10-10 12

10 3\3/16\

3\3/16\ 10-24

Booth 7............... 8-29 18 3\13/16

\ 9-12 16 3\10/16

\ 9-26 14 3\8/16\ 10-10

Booth 5............... 9-05 14 3\9/16\ 9-19 12 3\6/16\ ....... ....... ....... 10-03

Choquette............. 9-26 28 4\4/16\ 10-17 24 4\1/16\ 10-31 20 3\14/16

\ 11-14

Hall.................. 9-26 26 3\14/16

\ 10-10 20 3\9/16\ 10-24 18 3\8/16\ 11-07

Lula.................. 10-03 18 3\11/16

\ 10-10 14 3\6/16\ 10-31 12 3\3/16\ 11-14

Monroe................ 11-07 26 4\3/16\ 11-21 24 4\1/16\ 12-05

12-19 20

16 3\14/16

\

3\9/16\ 1-02

Arue.................. 5-16 16 ....... 5-30 14 3\3/16\ ....... ....... ....... 7-04

Donnie................ 5-23 16 3\5/16\ 6-06 14 3\4/16\ ....... ....... ....... 7-04

Fuchs................. 6-06 14 3\3/16\ 6-20 12 3\0/16\ ....... ....... ....... 7-04

K-5................... 6-13 18 3\5/16\ 6-27 14 3\3/16\ ....... ....... ....... 7-11

West Indian

Seedling\1\.......... 6-20 18 ....... 7-18 16 ....... 8-22 14 ....... 9-19

Gorham................ 7-04 29 4\5/16\ 7-18 27 4\3/16\ ....... ....... ....... 8-15

Biondo................ 7-11 13 ....... ....... ....... ....... ....... ....... ....... 8-15

Petersen.............. 7-11 14 3\8/16\ 7-18 12 3\5/16\ 7-25 10 3\2/16\ 8-08

232................... 7-18 14 ....... 8-01 12 ....... ....... ....... ....... 8-15

Pinelli............... 7-18 18 3\12/16

\ 8-01 16 3\10/16

\ ....... ....... ....... 8-15

Trapp................. 7-18 14 3\10/16

\ 8-01 12 3\7/16\ ....... ....... ....... 8-15

K-9................... 8-01 16 ....... ....... ....... ....... ....... ....... ....... 8-22

Christina............. 8-01 11 2\14/16

\ ....... ....... ....... ....... ....... ....... 8-22

Catalina.............. 8-15 24 ....... 8-29 22 ....... ....... ....... ....... 9-19

Blair................. 8-29 16 3\8/16\ 9-12 14 3\5/16\ ....... ....... ....... 10-03

Guatemalan Seedling\2\ 9-05 15 ....... 10-03 13 ....... ....... ....... ....... 12-05

Marcus................ 9-05 32 4\12/16

\ 9/19 24 4\5/16\ ....... ....... ....... 10-31

Brooks 1978........... 9-05 12 3\4/16\ 9-12 10 3\1/16\ 9-19 8 2\14/16

\ 10-10

Rue................... 9-12 30 4\3/16\ 9-19 24 3\15/16

\ 10-03 18 3\9/16\ 10-17

Collinson............. 9-12 16 3\10/16

\ ....... ....... ....... ....... ....... ....... 10-10

Hickson............... 9-12 12 3\1/16\ 9-26 10 3\0/16\ ....... ....... ....... 10-10

Simpson............... 9-19 16 3\9/16\ ....... ....... ....... ....... ....... ....... 10-10

Chica................. 9-19 12 3\7/16\ 10-03 10 3\1/16\ ....... ....... ....... 10-17

Leona................. 9-26 18 3\10/16

\ ....... ....... ....... ....... ....... ....... 10-10

Herman................ 10-03 16 3\9/16\ 10-17 14 3\6/16\ ....... ....... ....... 10-31

Pinkerton (CP)........ 10-03 13 3\3/16\ 10-17 11 3\0/16\ 10-31 9 ....... 11-14

Taylor................ 10-10 14 3\5/16\ 10-24 12 3\2/16\ ....... ....... ....... 11-07

Ajax (B-7)............ 10-10 18 3\14/16

\ ....... ....... ....... ....... ....... ....... 10-31

Booth 3............... 10-10 16 3\8/16\ 10-17 14 3\6/16\ ....... ....... ....... 10-31

Booth 1............... 11-14 16 3\12/16

\ 11-28 12 3\6/16\ ....... ....... ....... 12-12

Zio (P)............... 11-14 12 3\1/16\ 11-28 10 2\14/16

\ ....... ....... ....... 12-12

Gossman............... 11-28 11 3\1/16\ ....... ....... ....... ....... ....... ....... 12-26

Brookslate............ 12-05 18 3\13/16

\ 12-12

12-19 16

14 3\10/16

\

3\8/16\ 1-02

1-16 12

10 3\5/16\

....... 1-30

Meya (P).............. 12-12 13 3\2/16\ 12-26 11 3\0/16\ ....... ....... ....... 1-09

Reed (CP)............. 12-12 12 3\4/16\ 12-26 10 3\3/16\ 1-09 9 3\0/16\ 1-23

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\1\Avocados of the West Indian type varieties and seedlings not listed elsewhere in Table 1.

\2\Avocados of the Guatemalan type varieties and seedlings, hybrid varieties and seedlings, and unidentified

seedlings not listed elsewhere in Table I.

(b) The term diameter means the greatest dimension measured at a

right angle to a straight line from the stem to the blossom end of the

fruit.

(c) The term importation means release from custody of the United

States Customs Service. The term commercial processing into products

means the manufacture of avocado product which is preserved by any

recognized commercial process, including canning, freezing,

dehydrating, drying, the addition of chemical substances, or by

fermentation.

(d) Any person may import up to 55 pounds of avocados exempt from

the requirements specified in this section.

(e) The Federal or Federal-State Inspection Service, Fruit and

Vegetable Division, Agricultural Marketing Service, United States

Department of Agriculture, is designated as the governmental inspection

service for certifying the grade, size, quality, and maturity of

avocados imported into the United States. Inspection by the Federal or

Federal-State Inspection Service with evidence thereof in the form of

an official inspection certificate, issued by the respective service,

applicable to the particular shipment of avocados, is required on all

such imports. The inspection and certification services will be

available upon application in accordance with the Regulations Governing

Inspection, Certification and Standards of Fresh Fruits, Vegetables,

and Other Products (7 CFR part 51), and in accordance with the

regulation designating inspection services and procedure for obtaining

inspection and certification (7 CFR 944.400).

(f) Any avocados which fail to meet the import requirements prior

to or after reconditioning and which are not being imported for

purposes of consumption by charitable institutions, distribution by

relief agencies, seed, or commercial processing into products may be

reconditioned or exported, or disposed of under the supervision of the

Federal or Federal-State Inspection Service with the costs of

certifying the disposal of such avocados borne by the importer.

(g) The size, weight, diameter, and color maturity requirements of

this section shall not be applicable to avocados imported for

consumption by charitable institutions, distribution by relief

agencies, seed, or commercial processing into products, but shall be

subject to the safeguard provisions contained in Sec. 944.350.

Dated: March 29, 1994.

Robert C. Keeney,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-7890 Filed 4-1-94; 8:45 am]

BILLING CODE 3410-02-P