[Federal Register Volume 81, Number 233 (Monday, December 5, 2016)]
[Proposed Rules]
[Pages 87486-87493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29017]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 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. 81, No. 233 / Monday, December 5, 2016 / 
Proposed Rules  

[[Page 87486]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 33 and 35

[Doc. No. AMS-FV-14-0099; FV15-33/35-1 PR]


Regulations Issued Under Authority of the Export Apple Act and 
Export Grapes and Plums; Changes to Export Reporting Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would change the reporting of export 
certificate information under regulations issued pursuant to the Export 
Apple Act (7 CFR part 33) and the Export Grape and Plum Act (7 CFR part 
35). This change would require shippers of apples and grapes exported 
from the United States to electronically enter an Export Form 
Certificate number or a USDA-defined exemption code into the Automated 
Export System (AES). This rule would also define ``shipper,'' shift the 
current file retention requirement from carriers to shippers, and 
require shippers to provide, upon request, copies of the certificates 
to the Agricultural Marketing Service (AMS). These changes would enable 
AMS to track exported apple and grape shipments to ensure that exports 
meet inspection and certification requirements. This action is also 
required to support the International Trade Data System (ITDS), a key 
White House economic initiative that will automate the filing of export 
and import information by the trade. This proposal would also remove 
obsolete regulations and make clarifying changes. It also announces 
AMS' intention to request revision to a currently approved information 
collection for exported apples and grapes.

DATES: Comments must be received by January 4, 2017.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. 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; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. All 
comments should reference the document number and the date and page 
number of this issue of the Federal Register and will be made available 
for public inspection in the Office of the Docket Clerk during regular 
business hours, or can be viewed at: http://www.regulations.gov. All 
comments submitted in response to this proposal 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: Shannon Ramirez, Compliance and 
Enforcement Specialist, or Vincent Fusaro, Compliance and Enforcement 
Branch Chief, Marketing Order and Agreement Division, Specialty Crops 
Program, AMS, USDA; Telephone: (202) 720-2491, Fax: (202) 720-8938, or 
Email: [email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Antoinette Carter, Marketing Order and 
Agreement Division, Specialty Crops Program, AMS, USDA, 1400 
Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; 
Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: 
[email protected].

SUPPLEMENTARY INFORMATION: This proposed rule is issued under the 
Export Apple Act (7 U.S.C. 581-590) and the Export Grape and Plum Act 
(7 U.S.C. 591-599) (together hereinafter referred to as the ``Export 
Fruit Acts''). The Export Fruit Acts promote foreign trade of U.S.-
grown fruit by authorizing the implementation of regulations related to 
quality, container markings, and inspection requirements. These 
regulations are contained in 7 CFR part 33 (Regulations Issued under 
the Export Apple Act) and 7 CFR part 35 (Export Grapes and Plums).

Executive Order 12866 and Executive Order 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 has been designated as a ``non-significant regulatory 
action'' under section 3(f) of Executive Order 12866. Accordingly, the 
Office of Management and Budget (OMB) has waived the review process.

Executive Order 13175

    This action has been reviewed in accordance with the requirements 
of Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments. The review reveals that this regulation would not 
have substantial and direct effects on Tribal governments and would not 
have significant Tribal implications.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This proposed rule is not intended to have 
retroactive effect and shall not abrogate nor nullify any other 
regulations, whether State or Federal, dealing with the same subjects. 
It is intended that all such regulations shall remain in full force and 
effect except in so far as they are inconsistent herewith or repugnant 
hereto (7 U.S.C. 587; 7 U.S.C. 597).
    The Export Fruit Acts provide for administrative proceedings that 
must be exhausted before parties may file suit in court. Pursuant to 7 
U.S.C. 586 and sections 33.13 and 33.14 of the regulations (for apples) 
and 7 U.S.C. 596 and sections 35.14 and 35.15 of the regulations (for 
grapes), any person subject to the Export Fruit Acts may file with USDA 
a request for hearing, along with a written responsive answer to 
alleged violations of the provisions of the Export Fruit Acts and 
regulations, no later than 10 days after service of notice of alleged 
violations. After opportunity for hearing, the Secretary is

[[Page 87487]]

authorized to refuse the issuance of certificates under the Export 
Fruit Acts for a period not exceeding 90 days.
    This proposed rule would change the reporting of export certificate 
information under regulations issued pursuant to both the Export Apple 
Act and the Export Grape and Plum Act (7 CFR part 33, ``Regulations 
Issued Under Authority of the Export Apple Act,'' and 7 CFR part 35, 
``Export Grapes and Plums,'' respectively). Shippers of apples and 
grapes exported from the United States subject to inspection would be 
required to enter the certificate number from inspection certificates 
(i.e., Export Form Certificates) into AES. For apples shipped to Canada 
in bulk containers, which are exempt from inspection requirements, 
shippers would be required to enter a special USDA-defined exemption 
code in lieu of an Export Form Certificate number. Shippers would also 
be required to maintain paper or electronic copies of the certificates 
and to provide copies to AMS upon request. AMS is responsible for 
monitoring apple and grape export shipments, and these proposed 
regulatory changes would help ensure that these shipments comply with 
inspection and certification requirements.
    This proposed rule would also define ``shipper'' and would remove 
the requirement that carriers of exported apples and grapes retain 
certificates on file (because the requirement to retain the 
certificates would shift to shippers of exported apples and grapes). It 
would also remove regulations that are no longer applicable to grape 
exports and add structure and language to clarify the regulations.
    Plums are not currently regulated under the Export Grape and Plum 
Act; therefore, this change would not impact shipments of plums 
exported from the United States. If plums exported from the United 
States are regulated in the future under the Export Grape and Plum Act, 
the reporting of export certificate information similar to what is 
being proposed herein for exported grapes and apples would be proposed.
    Sections 33.11(a) and 35.12(b) of the regulations issued under the 
Export Fruit Acts for apples and grapes, respectively, specify that, 
prior to export, the fruit must be inspected by the Federal or Federal-
State Inspection Service (unless the fruit is otherwise exempted from 
inspection under the Export Fruit Acts). These sections further specify 
that Export Form Certificates must be issued by the inspection service 
and must contain a statement indicating the fruit meets the 
requirements of the Export Fruit Acts. Additionally, these sections 
currently require that shippers provide a copy of the certificates to 
the export carrier or, in those instances where the fruit is inspected 
and certified at any location other than the port of exportation, to 
the agent of the first carrier who transports the fruit to port for 
exportation. These two sections also currently contain requirements 
related to the retention of certificates by export carriers and spray 
residue tolerance.
    Section 33.12 of the export apple regulations specifies those 
apples that are not subject to regulation, including apples shipped to 
Canada in bulk containers (Sec.  33.12(d)), which are containers that 
hold a quantity of apples weighing more than 100 pounds.
    Sections 33.2 and 33.4 of the export apple regulations and 
Sec. Sec.  35.2 and 35.4 of the export grape regulations define 
``person'' and ``carrier,'' respectively. The term ``shipper'' is used 
in parts 33 and 35 but is not currently defined in either of those 
regulations.

Filing Export Information in the Automated Export System (AES)

    The Foreign Relations Authorization Act (FRAA) (Pub. L. 107-228) 
authorizes regulations requiring that all persons who are required to 
file export information under Chapter 9 of Title 13 of the U.S. Code 
(Collection and Publication of Foreign Commerce and Trade Statistics) 
file such information through the Automated Export System (AES) for all 
shipments where a paper Shipper's Export Declaration was previously 
required. As such, shippers of most U.S.-grown apples and grapes are 
required to electronically file export shipment information in AES.
    AES is a joint venture between U.S. Customs and Border Protection 
(CBP) and the U.S. Census Bureau (Census) that was implemented in 
phases, starting in 1995. It is a nationwide system, available at all 
U.S. ports, that serves as a central point for the electronic 
collection of export data that are used by several different Federal 
government agencies including Census and CBP. Census regulations issued 
under the authority of the FRAA and related to AES include the Foreign 
Trade Regulations (15 CFR part 30) and the Export Clearance 
Requirements (15 CFR part 758).
    AMS is responsible for enforcing the regulations under the Export 
Fruit Acts, including verifying that exported apples and grapes that 
are subject to regulation are inspected and certified as meeting 
quality requirements. However, the Export Fruit Acts regulations do not 
currently require that shippers provide AMS with information about 
inspected and certified fruit.
    AMS has determined that access to the Census Bureau's AES data 
would allow AMS to monitor compliance with and enforce the regulations 
issued under the Export Fruit Acts. As a result, AMS and Census have 
entered into a Memorandum of Understanding that will give AMS access to 
certain specific data in the AES related to apple and grape exports, 
including an Export Form Certificate number that is associated with 
each lot of inspected and certified fruit or, in lieu of a certificate 
number, a USDA-defined exemption code (BULK CONTRS) for apples shipped 
to Canada in bulk containers.
    For those apples and grapes subject to inspection, information 
about each inspected lot of apples or grapes is noted on an Export Form 
Certificate (FV-205 or FV-207 paper form; FV-205e and FV-207e 
electronic form) that is completed by an inspector. In addition to 
stating whether the lot meets the export requirements, the certificate 
also contains information about the date and place of inspection; the 
name of the applicant; and the quantity, variety, and identification 
marks of the lot. The certificate is provided to the shipper and is 
identified with a unique certificate number. The inspection service 
that inspects and certifies the export shipment will also 
electronically maintain the certificate information.
    AMS believes that the most effective way to verify that apple and 
grape exports meet export inspection and certification requirements 
would be to have shippers enter the unique Export Form Certificate 
numbers into the AES. AMS would then verify the validity of a 
certificate number by cross-referencing it and the associated shipment 
information with inspection data (e.g., certificate number, variety, 
quantity) that AMS would receive from its Specialty Crops Inspection 
(SCI) Division.
    Some exported apples and grapes are exempt from the inspection 
requirements of the Export Fruit Acts regulations pursuant to Sec.  
33.12 for apples and Sec. Sec.  35.12 and 35.13 for grapes. In most 
instances, information about a shipment (e.g., the weight and 
destination of the shipment) that is entered by a shipper (or shipper's 
agent) into AES will determine if the shipper is required to also enter 
an Export Form Certificate number in AES. As an example, a shipment of 
apples weighing less than 5,000 pounds exported to any foreign country 
is exempt from inspection requirements. If a shipment of apples 
weighing 4,000 pounds is destined for Canada, this information

[[Page 87488]]

would be entered into AES. From that AES shipment information, the 
system would determine that entry of an Export Form Certificate number 
was not required because the shipment is exempt from inspection 
requirements.
    In comparison, if a shipment of apples weighing 6,000 pounds in 
bulk containers is destined for Canada, the shipper's entry of that 
shipment's weight and destination into AES would trigger the 
requirement that the shipper enter an Export Form Certificate number 
because the weight and destination of the shipment would meet the 
parameters associated with mandatory inspection. However, apples in 
bulk containers destined for Canada are exempt from inspection 
requirements pursuant to Sec.  33.12(d). Currently, there is no 
mechanism within AES that will recognize this exemption, so USDA has 
created a special exemption code (BULK CONTRS) that shippers of these 
apples would enter in the Export Form Certificate field in lieu of a 
certificate number. Entry of this special USDA-defined exemption code 
would enable shippers of apples in bulk containers destined for Canada 
to complete the entry of information in AES.
    In the future, AMS intends to work with Census to develop a new 
harmonized tariff schedule (HTS) code specifically for exported apples 
in bulk containers that are destined for Canada. Once this HTS code is 
developed, shippers would enter that code into AES, which would signal 
to AES that the shipment is exempt and would therefore not require 
entry of the special exemption code. Once this new HTS code becomes 
available, changes to the regulations would be proposed to remove the 
requirement to enter the special BULK CONTRS exemption code.
    As noted earlier, most shippers are accustomed to entering data 
about exports into AES to create mandatory Electronic Export 
Information (EEI) about each shipment. There are various methods for 
filing EEI into AES, such as through AES-certified software from a 
third-party vendor or through AESDirect, a free Internet application 
supported by Census. The EEI contains basic information about an export 
including but not limited to the names and addresses of the parties to 
a transaction; the Harmonized Tariff Schedule number; and the 
description, quantity, and value of the exported items. In 2014, the 
Census Bureau agreed to mandate entry of the Export Form Certificate 
number (or the exemption code for apples shipped in bulk containers to 
Canada) by shippers in the AES for AMS' tracking and enforcement 
purposes. Shippers would be required to electronically enter Export 
Form Certificate numbers or the exemption code for bulk container 
apples destined for Canada (BULK CONTRS) in AES. To require that 
shippers enter the Export Form Certificate number or, when applicable, 
the BULK CONTRS exemption code, the Export Fruit Acts regulations would 
be revised to add a new Sec.  33.11(b) for apples and a new Sec.  
35.12(d) for grapes.
    This proposed action would also require a shipper to maintain and 
submit, upon request, a paper or electronic copy of the Export Form 
Certificate to AMS. As previously noted, AMS would compare EEI from AES 
against inspection information from its SCI Division. However, there 
could be instances when AMS might need further verification of 
inspection and would, therefore, need to request a copy of the Export 
Form Certificate from the shipper. For example, if a certificate number 
in AES does not match any certificate numbers in SCI-provided data, AMS 
might require that the shipper provide a copy of an Export Form 
Certificate to AMS so that the information on that certificate could be 
compared against the EEI from AES. These proposed changes would give 
AMS the ability to track exports of apples and grapes to confirm that 
quality requirements are being met. Accordingly, this requirement would 
be added to the Export Fruit Acts regulations in Sec.  33.11(c) for 
apples and Sec.  35.12(c) for grapes.
    In conjunction with these proposed new recordkeeping requirements, 
this proposed action would also remove the requirement in Sec.  
33.11(a) for apples and Sec.  35.12(c) for grapes that carriers of 
exported fruit retain a copy of the Export Form Certificate. This 
requirement would no longer be necessary for AMS compliance monitoring 
because, as proposed herein, shippers would be required to retain a 
copy of the certificate (and upon request, the shipper would be 
required to provide such copy, electronically or in paper form, to 
AMS).

Streamlining the Export Process Under the International Trade Data 
System (ITDS)

    Changing the Export Fruit Acts regulations to provide for the 
electronic entry of an Export Form Certificate number supports the 
International Trade Data System (ITDS), a key White House economic 
initiative that has been under development for over ten years and is 
mandated for completion by December 31, 2016 (pursuant to Executive 
Order 13659, Streamlining the Export/Import Process for America's 
Businesses, signed by President Obama on February 19, 2014; 79 FR 
10657). Under ITDS, the export and import trade will file shipment data 
through an electronic ``single window,'' instead of completing multiple 
paper-based forms to report the same information to different 
government agencies. ITDS will greatly reduce the burden on America's 
export and import trade while still providing information necessary for 
the United States to ensure compliance with its laws.
    By the end of 2016, the ITDS ``single window'' will be presented to 
the export and import trade through CBP's Automated Commercial 
Environment (ACE) platform. ACE will be the primary system through 
which the global trading community will file information about imports 
and exports so that admissibility into the U.S. may be determined and 
government agencies may monitor compliance.
    In March 2014, AES functionality was incorporated into ACE, and 
export transactions are now processed in ACE. The migration of AES 
functionality to ACE was, for the most part, transparent to filers of 
export shipment data. This system migration supports the ITDS ``single 
window'' because, as noted earlier, ACE will be the system primarily 
used by the trade community to file import and export shipment data, 
with the functionality of AES embedded within that system.
    Prior to the implementation of the ITDS ``single window,'' CBP is 
requiring that the 47 partnering government agencies (PGAs) that are 
participating in the ITDS project, including AMS, ensure that agency 
regulations provide for the electronic entry of export and/or import 
information.
    AMS' Marketing Order and Agreement Division (MOAD) is currently 
developing the functionality of a new automated system called the 
Compliance and Enforcement Management System (CEMS) that will store and 
analyze data in support of ITDS. CEMS will receive export data from the 
ACE system that will be utilized in monitoring compliance with 
regulations under the Export Fruit Acts.
    The revised reporting requirements for exported apples and grapes 
will meet CBP's requirements for ITDS/ACE by providing for the 
electronic entry of the Export Form Certificate number (or the special 
BULK CONTRS exemption code, when applicable).

Miscellaneous Proposed Changes

    In addition to the previously described changes, this action would 
make changes to update and clarify the regulations. First, a definition 
of

[[Page 87489]]

``shipper'' would be added to the regulations in Sec.  33.9 for apples 
and Sec.  35.9 for grapes. This change is intended to provide clarity 
about a commonly used term.
    Additionally, gender-specific language would be changed from ``he'' 
to ``he or she'' in new Sec.  33.11(d) and Sec.  35.12(e).
    In addition, existing Sec.  35.12(d) would be removed because it is 
no longer needed. The requirements in Sec.  35.12(d) were enacted to 
fulfill provision 2 of the Export Grape and Plum Act (7 U.S.C. 592), 
which provides that grapes could be shipped in fulfillment of contracts 
that were entered into prior to the effective date of the Export Grape 
and Plum Act regulations, as long as those grapes were shipped within 2 
months of the date of the contracts. The intent of Sec.  35.12(d) was 
to provide exporters with an opportunity to meet prior contractual 
obligations and comply with the newly enacted regulations without 
meeting additional requirements. Because the need for Sec.  35.12(d) no 
longer exists, this section would be removed.
    Finally, in addition to new paragraphs being added to Sec. Sec.  
33.11 and 33.12, existing Sec. Sec.  33.11(a) and 35.12(b)(2) would be 
reorganized into multiple paragraphs in an effort to make the 
regulations easier to read, understand, and follow. Adding additional 
requirements to already lengthy paragraphs might cause confusion and 
misunderstanding; therefore, reorganization was deemed to be 
appropriate. To further improve the overall readability of Sec. Sec.  
33.11 and 35.12, headings would also be added at the beginning of each 
paragraph to help the reader quickly identify the paragraph's content.

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. Small agricultural 
service firms, including shippers and carriers, are defined by the 
Small Business Administration (SBA) as those having annual receipts of 
less than $7,500,000, and small agricultural producers are defined as 
those having annual receipts of less than $750,000 (13 CFR 121.201).
    This proposed rule would change the reporting of export certificate 
information under regulations issued pursuant to the Export Apple Act 
and the Export Grape and Plum Act (7 CFR part 33, ``Regulations Issued 
Under Authority of the Export Apple Act,'' and 7 CFR part 35, ``Export 
Grapes and Plums,'' respectively) by requiring shippers of apples and 
grapes exported from the United States to enter into AES the 
certificate numbers of Export Form Certificates for such exports (or, 
in lieu of certificate numbers, the exemption code BULK CONTRS for 
apples in bulk bins destined for Canada). It would also require 
shippers to provide, upon request, paper or electronic copies of the 
certificates to AMS. It would also remove the requirement that carriers 
retain copies of the certificates. Plums are not currently regulated 
under 7 CFR part 35, so this change has no impact on exporters or 
carriers of plums.
    Requiring shippers of apples and grapes to electronically enter an 
export certificate number (or the BULK CONTRS exemption code) would 
have very little impact on them. The certificate number is currently 
provided to shippers on the certificate they receive from the Federal 
or Federal-State Inspection Service, and AMS is providing the special 
BULK CONTRS exemption code to shippers for those instances when it is 
required. Also, shippers already use AES to enter Electronic Export 
Information (EEI) about shipments, currently approved for collection 
under OMB No. 0607-0152, and entry of the certificate number or 
exemption code would be part of that EEI process.
    Finally, shippers currently provide copies of Export Form 
Certificates to other parties, such as carriers, as required by the 
Export Fruit Acts regulations. Therefore, requiring shippers to provide 
AMS with a copy of an Export Form Certificate (upon request, when other 
methods of compliance verification are not available to AMS) would be a 
usual and customary practice. This proposed action would also require 
that shippers maintain certificates (electronic or paper) on file for a 
minimum of three (3) years in the event AMS would require that a 
shipper provide proof of inspection for compliance purposes. 
Maintaining records, such as export certificates, is a standard 
business practice and, therefore, should not have a major economic 
impact on shippers.
    These proposed changes would create a minimal burden on shippers 
while providing AMS with the ability to properly monitor export 
shipments for compliance with the regulations.
    Removing the requirement that carriers of exported apples and 
grapes retain copies of inspection certificates (Export Form 
Certificates) would reduce the recordkeeping burden on those carriers.
    According to apple industry statistics, there are approximately 60 
shippers of exported apples subject to regulation under the Export 
Apple Act. USDA's Foreign Agricultural Service (FAS) data estimates the 
value of fresh apple exports subject to regulation in 2015 was 
approximately $1.0 billion. Therefore, the estimated receipts for 
shippers of exported apples is well over $7,500,000.
    According to grape industry information, there are approximately 14 
shippers of exported grapes subject to regulation under the Export 
Grape and Plum Act. Data provided by FAS indicate that the estimated 
value of grape exports in 2015 that were subject to these regulations 
was $512 million. Therefore, the estimated receipts for shippers of 
exported grapes is well over $7,500,000.
    USDA estimates there are approximately 15 carriers of exported 
apples and 5 carriers of exported grapes that would be impacted by the 
lessening of regulatory requirements proposed by this action. USDA does 
not have access to data about the business sizes of these carriers.
    Based on the above information, it may be concluded that a majority 
of shippers of exported apples and grapes would not be classified as 
small businesses. USDA is unable to make a determination about whether 
carriers of exported apples and grapes could be classified as small 
businesses.
    This proposed rule is issued under the authority of the Export 
Apple Act (7 U.S.C. 581-590), and the Export Grape and Plum Act (7 
U.S.C. 591-599). This proposed rule proposes changing ``Regulations 
Issued under Authority of the Export Apple Act'' (7 CFR part 33) and 
``Export Grapes and Plums'' (7 CFR part 35). This action would require 
shippers of apples and grapes exported from the United States to enter 
the Export Form Certificate number for those exports into the U.S. 
Census Bureau's Automated Export System (AES) (or, in lieu of a 
certificate number, to enter exemption code BULK CONTRS for apples in 
bulk containers destined for Canada). It would also require shippers to 
maintain and provide, upon request, a paper or electronic copy of the 
Export Form Certificate to AMS and would remove the requirement that 
carriers retain copies of the certificates. These changes to the 
reporting requirements would allow AMS to

[[Page 87490]]

verify that shipments of exported apples and grapes are in compliance 
with the quality requirement regulations.
    There are estimated to be 60 shippers of U.S.-grown apples, 14 
shippers of U.S.-grown grapes, and 20 carriers of these apples and 
grapes subject to the Export Fruit Acts regulations. The shippers 
currently receive copies of Export Form Certificates from the Federal 
or Federal-State Inspection Service upon completion of an inspection of 
apples or grapes destined for export. The regulations currently require 
that the shippers provide copies of the certificates to the export 
carriers who transport the fruit, and these carriers are, in turn, 
required to keep these certificates on file for at least three years 
following the date of export. The burden of recordkeeping for the 
maintenance of these certificates is currently approved by the Office 
of Management and Budget (OMB) under OMB No. 0581-0143, ``Export Fruit 
Acts'' (7 U.S.C. 581-590 and 7 U.S.C. 591-599).
    Regarding alternatives to this proposed action, AMS considered 
making no changes to the Export Fruit Acts regulations. However, AMS 
determined that having the Export Form Certificate number for apples 
and grapes exported from the United States is necessary for monitoring 
compliance of these shipments with the regulations. AMS also considered 
not requiring shippers of apples in bulk containers destined for Canada 
to enter a special USDA-defined exemption code in lieu of a certificate 
number. However, until a new HTS code is created for these exempt 
apples, shipments of bulk containers of apples destined for Canada will 
require entry of data in the AES export certificate number field; 
therefore, the BULK CONTRS exemption code would enable shippers of 
these apples to complete the electronic entry of export data in AES.
    AMS also considered requiring shippers to provide AMS with a paper 
or electronic copy of all Export Form Certificates (rather than just 
upon request) but determined that entering the certificate number in 
AES would be less burdensome for shippers. AMS also determined that 
this change would meet CBP's requirement that all government agencies 
who are partnering with CBP on the ITDS project (including AMS) update 
their regulations to provide for the electronic entry of export and 
import shipment data.
    AMS also considered not requesting a shipper to submit a copy of an 
Export Form Certificate upon request; however, there may be some unique 
cases where additional verification of compliance would be required if 
AES or SCI data were not sufficient.
    Finally, AMS considered keeping the requirement that carriers 
maintain copies of the Export Form Certificates on file; however, AMS 
determined that the other changes proposed herein would make this 
requirement redundant and burdensome. Therefore, alternatives to this 
proposed rule were rejected.
    This proposed rule would revise the information collection 
currently approved under OMB No. 0581-0143 by increasing the existing 
recordkeeping burden on shippers and reducing the existing 
recordkeeping burden on carriers. These changes in burden will be 
further explained in the Paperwork Reduction Act section below.
    AMS is responsible for enforcing the regulations of the Export 
Fruit Acts, including verification that export shipments of apples and 
grapes meet quality requirements. Currently, the regulations do not 
require shippers of these export fruits to provide AMS with proof of 
inspection and certification compliance. Without this proposed change 
to the regulations, AMS will lack the ability to effectively meet its 
duty of enforcement.
    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.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this proposed rule.
    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/MarketingOrdersSmallBusinessGuide. Any questions 
about the compliance guide should be sent to Antoinette Carter at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    A 30-day comment period is provided to allow interested persons to 
respond to this proposal. Thirty days is deemed appropriate because (1) 
the export industry is fully aware of ITDS and its goal to streamline 
and automate paper-based processes and has attended annual ITDS Trade 
Support Network plenary sessions conducted by the U.S. government over 
the past few years, and (2) CPB is requiring the timely update of 
import and export regulations to meet the ITDS electronic data 
submission requirement. All written comments timely received will be 
considered before a final determination is made on this matter.
    All written comments timely received will be considered before a 
final determination is made on this matter.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
chapter 35), AMS announces its intention to submit a revision to a 
currently approved information collection.
    Title: Export Fruit Acts, 7 U.S.C. 581-590 and 7 U.S.C. 591-599.
    OMB Number: 0581-0143.
    Type of Request: Revision.
    Abstract: The information collection requirements contained in this 
request are necessary for the administration of proposed amendments to 
regulations authorized by the Export Apple Act and the Export Grape and 
Plum Act (``Export Fruit Acts''). These regulations are found at 7 CFR 
part 33, ``Regulations Issued under Authority of the Export Apple 
Act,'' and 7 CFR part 35, ``Export Grape and Plum Act.''
    Under the Export Fruit Acts regulations, unless otherwise exempted 
by those Acts, each shipment of fresh apples and grapes must be 
inspected by the Federal or Federal-State Inspection Service to ensure 
the fruit meets quality and other requirements effective under the 
Acts. This inspection and certification must occur prior to export. If 
the inspection service determines that a lot of apples or grapes 
intended for export meets the applicable quality requirements, the 
inspector completes an Export Form Certificate (currently, a paper FV-
207 or electronic FV-207e for non-Canadian export destinations and a 
paper FV-205 or electronic FV-205e for exports to Canada), certifying 
the fruit meets quality export requirements and providing shipping 
identification information. This certificate is provided to the shipper 
of the apples or grapes. In turn, the shipper must then provide a copy 
of the certificate to the export carrier or, if the fruit is inspected 
and certified somewhere other than the port of exportation, to the 
agent of the first carrier who transports the fruit to port for 
exportation. Currently, export carriers must keep these certificate 
copies on file for at least three years after the date of export.
    A shipper does not currently complete any form or file with USDA 
any form or form-related information as part of this inspection and 
certification process.
    This proposed action would establish a requirement that shippers 
enter the Export Form Certificate number assigned to each inspection 
certificate into the Automated Export System (AES), an existing system 
that facilitates

[[Page 87491]]

the electronic entry of information about export shipments. The 
Marketing Order and Agreement Division (MOAD) would cross-reference 
this certificate number and the associated export shipment information 
(EEI) with inspection information provided electronically to MOAD by 
SCI, thereby allowing MOAD to monitor compliance with the regulations. 
The collection of AES data, which would include the Export Form 
Certificate number or the special BULK CONTRS exemption code, is 
approved under the Census Bureau's OMB No. 0607-0152; therefore, the 
estimated burden associated with the electronic entry of the 
certificate number will not be included in this USDA action.
    In addition, this proposed action would require shippers to 
maintain and provide, upon request, a paper or electronic copy of the 
Export Form Certificate to MOAD when needed to monitor compliance with 
regulations. MOAD anticipates that the majority of its compliance 
monitoring would be accomplished by verifying the Export Form 
Certificate number and other EEI entered by a shipper into AES against 
inspection data provided by SCI; however, when needed, MOAD would 
request copies of these certificates from shippers to help verify that 
apple and grape exports meet export inspection and certification 
requirements.
    Finally, this proposed action would remove the requirement that 
carriers retain a copy of the Export Form Certificate. As noted above, 
this action would add a requirement that a shipper maintain and provide 
to MOAD, upon request, a paper or electronic copy of the certificate. 
MOAD would require a shipper to submit a copy of the certificate in 
those cases when it would be needed to monitor compliance. Because 
shippers would be responsible for maintaining and submitting the 
certificates, upon request, MOAD would no longer require a carrier to 
retain a copy of these certificates for its compliance purposes.
    A shipper's failure to provide proof of compliance to MOAD could 
result in a compliance investigation and legal action, if warranted.
    The information collection under OMB No. 0581-0143 was last 
approved in 2013. On June 14, 2016, AMS published a 60-day Notice in 
the Federal Register announcing its intent to renew the collection (81 
FR 38656-57), followed by a 30-day Notice in the Federal Register for 
OMB review (81 FR 55428).
    The currently approved collection authorizes the use of FV-207 
(inspection certificate for export shipments bound for non-Canadian 
destinations). In the 2016 renewal, AMS added the FV-205 form 
(inspection certificate for Canadian-bound export shipments) that is 
also used by SCI (the FV-205 was not previously approved under this or 
any other OMB collection) and revised it to combine information from 
the existing FV-205 and FV-207 forms. As a result, the existing FV-207 
will be discontinued. In the 2016 renewal, AMS is also seeking OMB 
approval to decrease the burden per certificate from the currently 
approved 15 minutes to 5 minutes. This is sufficient time to complete 
the related recordkeeping actions.
    In the last renewal of the collection in 2013, it was reported that 
a total of 102 respondents (68 shippers and 15 carriers for exported 
apples, and 14 shippers and 5 carriers for exported grapes) use FV-207. 
Current industry data indicate a slight reduction in the estimated 
number of export apple shippers (60) but no changes in the estimated 
number of export grape shippers (14) or carriers of export apples (15) 
and grapes (5).
    The 2013 renewal reported the number of certificates per year to be 
approximately one response per respondent. This suggested that there 
were only 102 certificates issued per year. This was reported in error, 
and the 2016 renewal provides more accurate figures. USDA's Foreign 
Agricultural Service estimates that, for the five-year period 2011-
2015, the average number of export apple and grape shipments requiring 
inspection per year was 42,326 for apples and 10,462 for grapes, for a 
total five-year average of 52,788 certificates per year that would need 
to be maintained.
    Based on this information and the proposed decreased burden per 
certificate, the 2016 renewal estimates a total recordkeeping burden of 
4,381 hours, an increase of 4,356 burden hours from the currently 
approved 25 burden hours.
    In addition, AMS estimates it may require shippers to submit 
approximately 10 percent of these certificates (5,279) upon request. 
The estimated burden for maintaining the revised FV-205 form 
certificates as well as for submitting an estimated 10 percent of those 
certificates to AMS, when requested, would be 5 minutes, which is less 
than the current 15-minute recordkeeping burden. As a result of this 
action, the information collection package would be revised to reflect 
a total estimated recordkeeping burden of 4,837 hours. Since carriers 
would no longer be required to keep copies of the certificates, the 
current recordkeeping burden for carriers of apples and grapes would be 
removed. AMS would submit a Justification for Change to OMB for 
approval that encompasses these revisions.
    As noted earlier, the FV-205 form is being revised to combine the 
information contained on the existing FV-205 and FV-207 forms; this 
change will result in discontinuance of the FV-207 form. The FV-205 
update also adds instructions for the shipper regarding entry of the 
Export Form Certificate number in AES for exported apples and grapes 
and revises the text to include a burden statement and other minor 
modifications, such as updating the program name in the form heading. 
SCI will continue to use the existing electronic versions of the forms 
(FV-205e and FV-207e) until SCI's Fresh Electronic Inspection Reporting 
System (FEIRS) is modified to reflect the data contained in the revised 
FV-205 form. FEIRS allows inspectors to electronically enter and report 
inspection data; it is able to electronically transmit a certificate to 
an email address or fax number, or the certificate may be printed. Once 
the necessary FEIRS revisions are completed to enable entry of data to 
the revised FV-205e form, the FV-207e form will be discontinued.
    Estimate of Burden: The public reporting burden for this collection 
of information is estimated to average 5 minutes per response for 
retention of the certificate by shippers and also for submission, upon 
request, of the certificate by shippers to MOAD.
    Respondents: Shippers of apple exports and grape exports.
    Estimated Number of Respondents: 74 (60 for apples and 14 for 
grapes).
    Estimated Total Annual Responses: 58,067 (42,326 certificates 
maintained and 4,233 certificates potentially submitted to MOAD for 
apples; and 10,462 certificates maintained and 1,046 certificates 
potentially submitted to MOAD for grapes).
    Estimated Number of Responses per Respondent: 775 for apples and 
822 for grapes.
    Estimated Total Annual Burden on Respondents: 4,837 hours.
    Comments are invited on: (1) Whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information will have practical 
utility; (2) the accuracy of the agency's estimate of the burden of the 
proposed collection of information including the validity of the 
methodology and assumptions used; (3) ways to enhance the quality, 
utility, and clarity of the information to be collected; and (4) ways 
to minimize the burden of the collection of information

[[Page 87492]]

on those who are to respond, including the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology. Comments should 
reference OMB No. 0581-0143 and ``Export Fruit Acts.'' Comments should 
be sent to USDA in care of the Docket Clerk at the previously mentioned 
address. All comments received will be available for public inspection 
during regular business hours at the same address.
    AMS is committed to compliance with the Government Paperwork 
Elimination Act, which requires government agencies in general to 
provide the public with the option of submitting information or 
transacting business electronically to the maximum extent possible.

List of Subjects

7 CFR Part 33

    Apples, Exports, Pears, Reporting and recordkeeping requirements.

7 CFR Part 35

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

    For the reasons set forth in the preamble, AMS proposes to amend 7 
CFR parts 33 and 35 as follows:

PART 33--REGULATIONS ISSUED UNDER AUTHORITY OF THE EXPORT APPLE ACT

0
1. The authority citation for 7 CFR part 33 continues to read as 
follows:

    Authority:  48 Stat. 124; 7 U.S.C. 581-590.

0
2. Add new Sec.  33.9 to read as follows:


Sec.  33.9   Shipper.

    Shipper means any person who ships or offers for shipment apples to 
any foreign destination.
0
3. Revise Sec.  33.11 to read as follows:


Sec.  33.11   Inspection and certification.

    (a) Inspection and certification. Each person shipping, or offering 
for shipment, apples to any foreign destination shall cause them to be 
inspected by the Federal or Federal-State Inspection Service in 
accordance with regulations governing the inspection and certification 
of fresh fruits, and vegetables and other products (Part 51 of this 
title) and certified as meeting the requirements of the Act and this 
part. No carrier shall transport apples, or receive apples for 
transportation to any foreign destination unless they have been so 
inspected and certified. Inspection and certification may be obtained 
at any time prior to exportation of the apples. Such a Federal or 
Federal-State certificate shall be designated as an ``Export Form 
Certificate'' and shall include the following statement: ``Meets 
requirements of Export Apple Act.''
    (b) Export Form Certificate number. The shipper (or shipper's 
authorized agent) shall enter the Export Form Certificate number in the 
Automated Export System (AES), pursuant to the Electronic Export 
Information (EEI) filing requirements under the Foreign Trade 
Regulations (15 CFR part 30) and Export Clearance Requirements (15 CFR 
part 758), except the exemption code BULK CONTRS shall be entered for 
apples in bulk containers destined for Canada.
    (c) Delivery and filing of Export Form Certificate. The shipper 
shall deliver a copy of the Export Form Certificate or Memorandum of 
Inspection to the export carrier. Whenever apples are inspected and 
certified at any point other than the port of exportation, the shipper 
shall deliver a copy of the Export Form Certificate or Memorandum of 
Inspection to the agent of the first carrier that thereafter transports 
such apples, and such agent shall deliver the copy to the proper 
official of the carrier on which the apples, covered by the certificate 
or memorandum, are to be exported. The shipper shall also maintain an 
electronic or paper copy of the Export Form Certificate for a period of 
not less than three (3) years after date of export and shall submit, 
upon request from USDA, an electronic or paper copy of the Export Form 
Certificate to USDA, AMS, Specialty Crops Program, Marketing Order and 
Agreement Division, 1400 Independence Avenue SW., Stop 0237, 
Washington, DC 20250-0237; telephone (202) 720-4607; fax (202) 720-
5698; or email [email protected].
    (d) Spray residue tolerance. If the inspector has reason to believe 
that samples of a lot of apples have been obtained for a determination 
as to compliance with tolerance for spray residue, established under 
the Federal Food, Drug and Cosmetic Act, as amended (52 Stat. 1040; 21 
U.S.C. 301 et seq.), he or she shall not issue a certificate on the lot 
unless it complies with such tolerances.

PART 35--EXPORT GRAPES AND PLUMS

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

    Authority:  74 Stat. 734; 75 Stat. 220; 7 U.S.C. 591-599.

0
5. Add Sec.  35.9 to read as follows:


Sec.  35.9   Shipper.

    Shipper means any person who ships or offers for shipment any 
variety of vinifera species table grapes to any foreign destination.
0
6. Revise Sec.  35.12 to read as follows:


Sec.  35.12   Inspection and certification.

    (a) Inspection. Each person shipping or offering for shipment any 
variety of vinifera species table grapes to any foreign destination 
other than destinations in Canada or Mexico shall cause them to be 
inspected within 14 days prior to date of export by the Federal or 
Federal-State Inspection Service in accordance with regulations 
governing the inspection and certification of fresh fruits, vegetables, 
and other products (part 51 of this title) and certified as meeting the 
requirements of the Act and this part.
    (b) Certification. The Federal or Federal-State certificate shall 
be designated as an ``Export Form Certificate'' and shall include one 
of the following statements as applicable:
    (1) For any variety meeting specifications of paragraph (a) of 
Sec.  35.11 ``Meets requirements of Export Grape and Plum Act'' or (2) 
For any variety meeting specifications of paragraph (b) of Sec.  35.11 
``Meets requirements of Export Grape and Plum Act except for export to 
destinations in Europe, Greenland, or Japan.'' No carrier shall 
transport or receive for transportation any such variety to any foreign 
destination other than Canada or Mexico unless a copy of the Export 
Form Certificate issued thereon showing that the grapes meet 
requirements for the applicable export destination is surrendered to 
such carrier when such variety is received.
    (c) Delivery and filing of Export Form Certificate. The shipper 
shall deliver a copy of the Export Form Certificate covering the 
shipment to the export carrier. Whenever grapes are inspected and 
certified at any point other than port of exportation, the shipper 
shall deliver a copy of the Export Form Certificate to the agent of the 
first carrier that thereafter transports such grapes, and such agent 
shall deliver such copy to the proper official of the carrier on which 
the grapes are to be exported. The shipper shall also maintain an 
electronic or paper copy of the Export Form Certificate for a period of 
not less than three (3) years after date of export and shall submit, 
upon request from USDA, an electronic or paper copy of the Export Form 
Certificate to USDA, AMS, Specialty Crops Program, Marketing Order and 
Agreement

[[Page 87493]]

Division, 1400 Independence Avenue SW., Stop 0237, Washington, DC 
20250-0237; telephone (202) 720-4607; fax (202) 720-5698; or email 
[email protected].
    (d) Export Form Certificate number. The shipper (or shipper's 
authorized agent) shall enter the Export Form Certificate number in the 
U.S. Census Bureau's Automated Export System (AES), pursuant to the 
Electronic Export Information (EEI) filing requirements under the 
Foreign Trade Regulations (15 CFR part 30) and Export Clearance 
Requirements (15 CFR part 758).
    (e) Spray residue tolerance. If the inspector has reason to believe 
that samples of a lot of any variety of vinifera species table grapes 
have been obtained for a determination as to compliance with tolerance 
for spray residue, established under the Federal Food, Drug and 
Cosmetic Act, as amended (52 Stat. 1040; 21 U.S.C. 301 et seq.), he or 
she shall not issue a certificate on the lot unless it complies with 
such tolerances.

    Dated: November 29, 2016.
Elanor Starmer,
Administrator, Agricultural Marketing Service.
[FR Doc. 2016-29017 Filed 12-2-16; 8:45 am]
 BILLING CODE P