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Rules and Regulations Federal Register

14275 

Vol. 76, No. 51 

Wednesday, March 16, 2011 

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 onequarter 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: 

Dawana.Clark@ams.usda.gov or 

Kenneth.Johnson@ams.usda.gov. 

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: 

Antoinette.Carter@ams.usda.gov. 

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, §§ 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, § 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 § 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 onequarter pound. This final rule further 

revises § 35.11(a) by updating the list of 

European countries defined in the 

regulation. Finally, this rule revises 

§ 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 § 35.11(a) 

of the regulations. This makes the 

minimum bunch size requirement onequarter 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 § 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 

§ 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, 


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14276 Federal Register / Vol. 76, No. 51 / Wednesday, March 16, 2011 / Rules and Regulations 

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 § 35.11(a) for 

grapes exported to Japan, Europe, and 

Greenland from one-half pound to onequarter pound. This rule further revises 

§ 35.11(a) by updating the list of 

European countries defined in the 

regulation. Finally, this rule revises 

§ 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 onequarter 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 


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Federal Register / Vol. 76, No. 51 / Wednesday, March 16, 2011 / Rules and Regulations 14277 

1 Kadar, A.A., Postharvest Technology of 

Horticultural Crops, University of California, 

Agriculture and Natural Resources, 2002. 

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. 

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 onequarter 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 onequarter 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 onequarter 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 

■ 1. The authority citation for 7 CFR 

part 35 continues to read as follows: 

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

■ 2. In § 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) 

(§§ 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) (§§ 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 


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