[Federal Register Volume 76, Number 51 (Wednesday, March 16, 2011)]
[Rules and Regulations]
[Pages 14275-14277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6130]



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 Rules and Regulations
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  Federal Register / Vol. 76, No. 51 / Wednesday, March 16, 2011 / 
Rules and Regulations  

[[Page 14275]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 35

[Doc. No. AMS-FV-10-0091; FV11-35-1 FR]


Regulations Issued Under the Export Grape and Plum Act; Revision 
to the Minimum Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule revises the requirements under the Export Grape and 
Plum Act. This rule changes the minimum bunch weight requirement for 
grapes exported to Japan, Europe, and Greenland from one-half pound to 
one-quarter pound. This rule also updates the list of European 
countries defined in the regulation and removes the additional 2 
percent tolerance for sealed berry cracks on the Exotic grape variety. 
This action was recommended by the California Grape and Tree Fruit 
League (League).

DATES: Effective Date: March 17, 2011.

FOR FURTHER INFORMATION CONTACT: Dawana J. Clark, Marketing Specialist, 
or Kenneth G. Johnson, Regional Manager, DC Marketing Field Office, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA; Telephone: (301) 734-5243, Fax: (301) 734-5275, or E-mail: 
[email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Antoinette Carter, 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: 
[email protected].

SUPPLEMENTARY INFORMATION: This final rule is issued under authority of 
the Export Grape and Plum Act, as amended (7 U.S.C. 591-599), 
hereinafter referred to as the ``Act.'' The Act promotes the foreign 
trade of U.S. grown grapes and plums by authorizing the implementation 
of regulations with minimum grade, quality, container, container 
marking, and inspection requirements.
    This final rule amends ``Regulations Issued Under Authority of the 
Export Grape and Plum Act'' (regulations) (7 CFR part 35). The 
regulated entities are shippers, exporters, and carriers of table 
grapes for export.
    This final rule has been determined not significant for purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule is not intended to have retroactive 
effect.
    Section 35.11 of the regulations establishes minimum size and 
quality requirements for export shipments of any variety of vinifera 
species table grapes. Currently, such grapes shipped to Japan, Europe, 
or Greenland must meet a minimum grade of U.S. Fancy Table as specified 
in the U.S. Standards for Grades of Table Grapes (U.S. Standards) (7 
CFR part 51, Sec. Sec.  51.880-51.992), with the additional requirement 
that bunches must each weigh at least one-half pound. Section 35.11 
also defines the countries in Europe for which the export regulation 
applies. Finally, Sec.  35.11 provides an additional 2 percent 
tolerance for sealed berry cracks on both the Ribier and Exotic 
varieties, which must otherwise meet the minimum requirements for the 
U.S. No. 1 Table grade as contained in the U.S. Standards.
    This final rule revises Sec.  35.11(a) of the order's 
administrative rules and regulations by changing the minimum bunch 
weight requirement for grapes exported to Japan, Europe, and Greenland 
from one-half pound to one-quarter pound. This final rule further 
revises Sec.  35.11(a) by updating the list of European countries 
defined in the regulation. Finally, this rule revises Sec.  35.11(b) by 
removing the additional 2 percent tolerance for sealed berry cracks on 
the Exotic grape variety.
    The Board of Directors of the League, which represents a 
substantial portion of the fresh table grape industry, unanimously 
recommended that the one-half pound bunch size minimum requirement be 
removed from Sec.  35.11(a) of the regulations. This makes the minimum 
bunch size requirement one-quarter pound as defined in the U.S. 
Standards for the U.S. Fancy Table grade.
    There has been an increasing retail demand for table grapes 
packaged in plastic clamshells, particularly for export markets. One of 
the most popular package sizes is the 500 gram (approximately 1.1 
pounds) clamshell. However, shippers find it difficult to fit two 
larger (minimum one-half pound) grape bunches into the 500 gram 
clamshell. This change allows shippers to use smaller (minimum one-
quarter pound) bunches to fill the smaller clamshell packages. This 
change offers shippers greater flexibility in packaging and allows them 
to pack a greater portion of the crop into the clamshell packages that 
are popular in the marketplace. The League believes this change 
positions shippers and exporters to better meet market demand while 
maintaining pack quality.
    The League further recommended that the list of countries used to 
define the term Europe in Sec.  35.11(a) of the regulations be updated 
to include the current names of European countries for which the export 
regulations apply. Specifically, the names ``Czechoslovakia,'' ``East 
Germany,'' ``West Germany,'' and ``Yugoslavia'' are deleted, and the 
following countries are added to the remaining list: Bosnia, Croatia, 
Czech Republic, Germany, Herzegovina, Macedonia, Montenegro, Serbia, 
and Slovenia. Such action clarifies the European destinations for which 
the export regulations are applicable.
    Finally, the League recommended that Sec.  35.11(b) be revised by 
removing the additional 2 percent tolerance for sealed berry cracks on 
Exotic variety grapes. This variety is no longer produced on a 
commercial basis, and the additional tolerance is no longer warranted.

Final Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) 
has considered the economic impact of this action on small entities. 
Accordingly,

[[Page 14276]]

AMS has prepared this final 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.
    Because California table grapes represent the bulk of U.S. 
production, it is assumed that an analysis of the effects of this final 
rule upon members of the California table grape industry is 
representative of the entire U.S. industry. According to industry 
statistics, at least 98 percent of U.S. table grapes are produced in 
California. Approximately 35 percent of the U.S. table grape crop is 
exported. There are approximately 550 table grape producers in 
California, and approximately 75 table grape shippers. The number of 
table grape exporters and carriers is unknown.
    Small agricultural producers are defined as those having annual 
receipts of less than $750,000; and small agricultural service firms, 
including shippers, exporters, and carriers, are defined by the Small 
Business Administration (SBA) (13 CFR 121.201) as those having annual 
receipts of less than $7,000,000. USDA's National Agricultural 
Statistics Service reports that California table grape production for 
2009 was 755,000 tons, valued at $510 per ton or $385,050,000. Average 
receipts for California's 550 producers would thus be approximately 
$700,090, which is lower than the SBA threshold of $750,000 for small 
producers. According to USDA's Foreign Agricultural Service, 335,300 
tons of fresh grapes, valued at $588,461,000, were exported from the 
U.S. in 2009. Assuming that 98 percent of exported grapes were produced 
in California, average 2009 receipts for California's 75 shippers would 
have been around $7,700,000, which is higher than the SBA threshold of 
$7,000,000 for small agricultural firms.
    Based upon the preceding calculations, it could be concluded that 
the majority of California (and therefore, U.S.) table grape producers 
could be classified as small entities, and that the majority of 
shippers could be classified as large entities, according to SBA 
definitions. However, the League believes that a small number of 
shippers ship a majority of the volume, and that the majority of 
California table grape shippers could be classified as small entities 
under SBA's standards. No information regarding the number or size of 
U.S. table grape exporters and carriers is available.
    This final rule is issued under authority of the Export Grape and 
Plum Act, as amended (7 U.S.C. 591-599). This rule amends the 
``Regulations Issued Under Authority of the Export Grape and Plum Act'' 
(7 CFR part 35) by changing the minimum bunch weight requirement 
specified in Sec.  35.11(a) for grapes exported to Japan, Europe, and 
Greenland from one-half pound to one-quarter pound. This rule further 
revises Sec.  35.11(a) by updating the list of European countries 
defined in the regulation. Finally, this rule revises Sec.  35.11(b) by 
removing the additional 2 percent tolerance for sealed berry cracks on 
the Exotic grape variety.
    The League met on June 24, 2010, and unanimously recommended 
revising the minimum size requirements to allow a one-quarter pound 
minimum bunch size, instead of the one-half pound minimum bunch size 
currently specified in the regulations. The one-quarter pound minimum 
bunch size is specified in the U.S. Standards for U.S. Fancy Table 
grade grapes, which are incorporated by reference in the regulations. 
The League also recommended updating the list of European countries 
defined in the regulation to reflect the currently recognized names of 
those countries. Finally, the League recommended removing the 
additional 2 percent tolerance for sealed berry cracks in the Exotic 
grape variety. This variety is no longer in commercial production, and 
an additional tolerance for defects in that variety is no longer 
warranted.
    The League believes that adhering to the smaller bunch size 
requirement currently specified in the U.S. Standards for U.S. Fancy 
Table grade will have a beneficial impact on the entire industry. It is 
difficult to fill the smaller clamshells with the larger bunches of 
grapes, thus limiting the number of clamshells that can be shipped. It 
is easier to fill the clamshells with smaller bunches, which fit into 
the packages better. Therefore, the League believes that the industry 
will be able to ship a greater number of 500 gram clamshells to meet 
market demand. Although they did not identify any potential additional 
costs to making this change, the League believes that the impact of any 
additional costs will be outweighed by the advantage of presenting U.S. 
table grapes in packages most desirable in the retail market. The 
benefits of this action will be a gain in the overall amount of product 
sold and an increase in returns to producers, shippers, exporters, and 
carriers, regardless of size.
    Updating the list of European countries for which the export 
regulations apply and removing the additional 2 percent tolerance for 
sealed berry cracks on the obsolete Exotic variety merely update the 
regulations to reflect current terminology and industry trends. These 
changes are not expected to have any economic impact on large or small 
entities.
    The League recommended that these changes be effective for the 2011 
harvesting season, which begins approximately May 1, 2011. These 
changes will remain in effect on a continuing basis, beginning with the 
2011 season. These actions allow for more practical and efficient 
packaging while maintaining the overall quality of exported table 
grapes. These recommended actions are intended to allow shippers and 
exporters to be more competitive in the marketplace, thereby selling 
more product.
    This final rule will not impose any additional reporting or 
recordkeeping requirements on either small or large table grape 
shippers, exporters, or carriers. As with all Federal regulatory 
marketing 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 final 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 proposed rule concerning this action was published in the Federal 
Register on December 13, 2010 (75 FR 77561). Copies of the rule were 
sent to the League, and the rule was made available through the 
Internet by USDA and the Office of the Federal Register. A 30-day 
comment period ending January 12, 2011, was provided to allow 
interested persons to respond to the proposal.
    One comment was received during the comment period. The commenter, 
representing a large grower of California table grapes, opposed the 
proposed change. The commenter disagreed with the analysis in the 
proposed rule that the change would maintain the overall quality of 
exported table grapes. The commenter claimed the overall quality would 
be diminished by this change, stating that smaller bunches mean lower 
quality, and reduced weight per bunch results in a more rapid 
postharvest deterioration of grapes.
    The export grape regulations issued under the Act are tied to a 
U.S. Fancy Table grade as specified in the U.S. Standards. The size 
requirement for a

[[Page 14277]]

U.S. Fancy Table grade is a bunch size of not less than one-quarter 
pound. In terms of international trade, the Codex standard and the 
United Nations Economic Commission for Europe standard for table grapes 
both set minimum bunch size at 75 grams. All three standards are 
established through extensive research and are used to define and 
measure quality.
    Considering these three standards of domestic and international 
quality, this relaxation would continue to meet U.S. Standards and 
exceed international standards (one-quarter pound equals 113.4 grams). 
Additionally, size is just one element of table grape quality, with 
overall quality measured by numerous characteristics. Under this 
change, all other characteristics such as maturity, firmness, shatter, 
development, appearance, damage, and decay, remain the same. 
Consequently, overall quality should remain largely unaffected by this 
change.
    Further, a review of table grape research did not identify any 
information that would indicate this reduction in bunch size would 
affect overall quality.
    In terms of postharvest deterioration, research suggests that 
deterioration is most impacted by the handling and treatment of the 
grape prior to shipment. The factors most frequently referred to in the 
research focusing on postharvest deterioration were water loss, 
temperature, and proper fumigation.
    In addition, information provided by the University of California 
\1\ regarding the postharvest movement of table grapes indicates that 
overpacking containers can have a detrimental effect on quality, 
resulting in increased bruising and damage to the fruit. The change to 
allow a smaller bunch size was recommended because it can be difficult 
to fit one-half pound bunches into the smaller clamshells. One-quarter 
pound bunches fit this particular packaging better. As such, for this 
particular package, the reduction in bunch size may actually improve 
overall postharvest quality and reduce deterioration during shipment.
---------------------------------------------------------------------------

    \1\ Kadar, A.A., Postharvest Technology of Horticultural Crops, 
University of California, Agriculture and Natural Resources, 2002.
---------------------------------------------------------------------------

    The commenter also suggested this change be postponed to allow 
buyers and sellers more time to consider its ramifications. However, 
USDA believes the table grape industry is familiar with this issue and 
the merits of the one-quarter pound bunch size, and sees no compelling 
reason to postpone this action.
    As noted earlier, California produces approximately 98 percent of 
United States table grapes. California table grape shippers already 
pack to a one-quarter pound bunch size for domestic shipments, so they 
are familiar with this bunch size. Also, this change was unanimously 
recommended by the Board of Directors of the League, which represents a 
substantial portion of the fresh table grape industry.
    Further, under the Federal marketing order for California table 
grapes (order), a regulatory change to facilitate the packing of small 
clamshells was also recently discussed and implemented. The change was 
recommended because shippers were having difficulty packing smaller 
clamshells, even at the one-quarter pound bunch size. To address this, 
the minimum bunch size for clamshells of 2 pounds or less was relaxed 
on a one-year trial basis (74 FR 38323; August 3, 2009), and then made 
permanent under the order following the success of the trial period (75 
FR 34343; June 17, 2010). With implementation of this change, 20 
percent of the total weight in smaller clamshell packages may consist 
of grape clusters that weigh less than one-quarter pound and have at 
least five berries each.
    The commenter also stated that if the change is permitted, the rule 
should require container labels to warn buyers that the package 
contains bunches weighing less than one-half pound. USDA finds nothing 
in the proposed change that would warrant any sort of warning label.
    Accordingly, no changes will be made to the rule as proposed, based 
on the comment received.
    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. Any questions about the compliance guide should be 
sent to Antoinette Carter at the previously mentioned address in the 
FOR FURTHER INFORMATION CONTACT section.
    After consideration of all relevant matter presented, including 
information and recommendations submitted by the League and other 
available information, it is hereby found that this rule, as 
hereinafter set forth, will tend to effectuate the declared policy of 
the Act.
    It is further found that good cause exists for not postponing the 
effective date of this rule until 30 days after publication in the 
Federal Register (5 U.S.C. 553) because this change needs to be in 
place prior to the 2011 harvesting season, which begins approximately 
May 1, 2011. Further, shippers are aware of this rule, which was 
recommended by the League on June 24, 2010. Also, a 30-day comment 
period was provided for in the proposed rule.

List of Subjects in 7 CFR Part 35

    Administrative practice and procedures, Exports, Grapes, Plums, 
Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, 7 CFR part 35 is amended 
as follows:

PART 35--Export Grapes and Plums

0
1. The authority citation for 7 CFR part 35 continues to read as 
follows:

    Authority:  48 Stat. 734; 7 U.S.C. 591-599.

0
2. In Sec.  35.11, paragraphs (a) and (b) are revised to read as 
follows:


35.11  Minimum requirements.

* * * * *
    (a) Any such variety for export to destinations in Japan, Europe 
(defined to mean the following countries: Albania, Austria, Belgium, 
Bosnia, Bulgaria, Croatia, Czech Republic, Denmark, England, Finland, 
France, Germany, Greece, Herzegovina, Hungary, Iceland, Ireland, Italy, 
Liechtenstein, Luxembourg, Macedonia, Montenegro, Netherlands, Northern 
Ireland, Norway, Poland, Portugal, Romania, Scotland, Serbia, Slovenia, 
Spain, Sweden, Switzerland, Wales), or Greenland shall meet each 
applicable minimum requirement of the U.S. Fancy Table grape grade as 
specified in the U.S. Standards for Grades of Table Grapes (European or 
Vinifera Type) (Sec. Sec.  51.880-51.912 of this title). The Black 
Corinth variety shall be exempt from bunch and berry size requirements.
    (b) Any such variety for export to any foreign destination, other 
than destinations in Japan, Europe, Greenland, Canada, or Mexico, shall 
meet each applicable minimum requirement of the U.S. No. 1 Table grape 
grade as specified in the U.S. Standards for Grades of Table Grapes 
(European or Vinifera Type) (Sec. Sec.  51.880-51.912 of this title), 
except that an additional 2 percent tolerance for sealed berry cracks 
on the Ribier variety is allowed. The Black Corinth variety shall be 
exempt from bunch and berry size requirements.
* * * * *

    Dated: March 11, 2011.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2011-6130 Filed 3-15-11; 8:45 am]
BILLING CODE 3410-02-P