[Federal Register: February 26, 2008 (Volume 73, Number 38)]
[Proposed Rules]
[Page 10185-10187]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26fe08-14]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 10185]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 51
[Docket AMS-FV-07-0140]
United States Standards for Grades of Table Grapes (European or
Vinifera Type)
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would revise the United States Standards
for Grades of Table Grapes (European or Vinifera Type). These standards
are issued under the Agricultural Marketing Act of 1946. The changes
being proposed are based on the request of the California Grape and
Tree Fruit League (CGTFL) to revise the tolerances to include an
allowance for shattered berries due to the change of pack style from
mostly plain pack to consumer size units. The Agricultural Marketing
Service (AMS) of the Department of Agriculture (USDA), is proposing a
revision to the voluntary standards to add a 5 percent allowance for
shattered berries in consumer containers for shipment that are en route
or at destination. The standards provide industry with a common
language and a uniform basis for trading, thus promoting the orderly
and efficient marketing of European or Vinifera Type table grapes.
DATES: Comments must be received by March 27, 2008.
ADDRESSES: Interested persons are invited to submit written comments on
the internet at: http://www.regulations.gov or to the Standardization
Section, Fresh Products Branch, Fruit and Vegetable Programs,
Agricultural Marketing Service, U.S. Department of Agriculture, 1400
Independence Ave. SW., Room 1661 South Building, Stop 0240, Washington,
DC 20250-0240; Fax (202)720-8871. Comments should make reference to the
dates and page number of this issue of the Federal Register and will be
made available for public inspection in the above office during regular
business hours.
FOR FURTHER INFORMATION CONTACT: Vincent J. Fusaro, Standardization
Section, Fresh Products Branch, (202) 720-2185. The United States
Standards for Grades of Table Grapes (European or Vinifera Type) are
available by accessing the Fresh Products Branch Web site at: http://
www.ams.usda.gov/standards/stanfrfv.htm.
SUPPLEMENTARY INFORMATION: Section 203(c) of the Agricultural Marketing
Act of 1946 (7 U.S.C. 1621-1627), as amended, directs and authorizes
the Secretary of Agriculture (To develop and improve standards of
quality, condition, quantity, grade and packaging and recommend and
demonstrate such standards in order to encourage uniformity and
consistency in commercial practices.( AMS is committed to carrying out
this authority in a manner that facilitates the marketing of
agricultural commodities and makes copies of official standards
available upon request.
Executive Order 12866 and 12988
The Office of Management and Budget has waived the review process
required by Executive Order 12866 for this action. This rule has been
reviewed under Executive Order 12988, Civil Justice Reform. This action
is not intended to have retroactive effect. This rule will not preempt
any State or local laws, regulations, or policies, unless they present
an irreconcilable conflict with this rule. There are no administrative
procedures which must be exhausted prior to any judicial challenge to
the provisions of the rule.
Regulatory Flexibility Act and Paperwork Reduction Act
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA), AMS has considered the economic impact of this
action on small entities. The purpose of the RFA is to fit regulatory
actions to the scale of businesses subject to such actions in order
that small businesses will not be unduly or disproportionately
burdened. Accordingly, AMS has prepared this initial regulatory
flexibility analysis. Interested parties are invited to submit
information on the regulatory and informational impacts of this action
on small businesses. Comments also are specifically requested on the
number and size of producers and handlers of table grapes in the United
States.
This rule will revise the U.S. Standards for Grades of Table Grapes
(European or Vinifera Type) that were issued under the Agricultural
Marketing Act of 1946. Standards issued under the 1946 Act are
voluntary.
Small agricultural service firms, which include handlers, have been
defined by the Small Business Administration (SBA) (13 CFR 121.201) as
those having annual receipts of less than $6,500,000, and small
agricultural producers are defined as those having annual receipts of
less than $750,000. According to the National Agricultural Statistics
Service (NASS) report of the 2002 Census of Agriculture, there are
23,856 grape farms in the United States. Using additional data from the
Noncitrus Fruits and Nuts 2005 Summary, total fresh utilization of
grapes was 995,370 tons. Furthermore, the price per ton for grapes in
2005 was $570.00 and the value of grapes utilized as fresh products was
$567,523,000. Based on the number of farms (23,856), the average
producer revenue from the sale of fresh grapes is estimated at
approximately $23,789 per year. Therefore, the majority of fresh grape
producers may be classified as small entities.
The number of table grape handlers in the United States is not
known. There are approximately twenty handlers regulated under the
Marketing Order 925 (7 CFR part 925). Last year, fourteen of the twenty
handlers subject to regulation had annual grape sales of less than
$6,500,000. Accordingly, we estimate that the majority of Table grape
handlers in the United States are small entities. We welcome
information that the public may offer as to the number and size of
handlers in the United States.
The effects of this rule are not expected to be disproportionately
greater or smaller for small handlers or producers than for larger
entities.
The use of grading services and grading standards is voluntary
unless required by a specific Act, Federal Marketing Order or
Agreement, or other regulations governing domestic, import or export
shipments.
USDA has not identified any Federal rules that duplicate, overlap,
or conflict
[[Page 10186]]
with this rule. Although there is a marketing order program which
regulates the handling of European or Vinifera type table grapes under
the order, the revision being proposed in this action only affects
shattered berries in consumer size containers en route or at
destination. As such, the proposed action would not effect table grapes
under Marketing Order or under Section 8e of the Agricultural Marketing
Agreement Act of 1937.
After considering the request of the CGTFL, AMS is proposing to
revise the standard by adding a 5 percent allowance for shattered
berries in shipments that are en route or at destination. This revision
will make the standards more consistent and uniform with marketing
trends and commodity characteristics. This proposed action will not
impose any additional reporting or record keeping requirements on
either small or large grape producers or handlers.
Background
In November of 2005, AMS received two petitions requesting a
revision to the United States Standards for Grades of Table Grapes
(European or Vinifera Type). These petitions were received from the
CGTFL on November 9, 2005 and Western Growers on November 23, 2005.
These two trade associations represent more than 85 percent of the
European or Vinifera type table grape production in the United States.
They requested an additional 10 percent allowance for shattered berries
en route or at destination for grapes in consumer containers. The
petitioners stated that they feel change, specific to consumer
containers, is warranted as the majority of table grapes are now being
sold in consumer containers which allows shattered berries to be fully
utilized/sold.
On January 24, 2006, AMS published in the Federal Register (71 FR
3818) an Advanced Notice of Proposed Rulemaking (ANPR) soliciting
comments on the proposed revision to the United States Standards for
Grades of Table Grapes (European or Vinifera Type), which included a 10
percent allowance for shattered berries en route or at destination only
in consumer units; the comment period ended on March 27, 2006. AMS
received fourteen comments in response to this notice.
Twelve comments supported the proposal; one from a regional
agriculture trade association, one from a table grape association, and
ten from members of the table grape association. Each of these comments
indicated that new improvements to consumer packaging resulted in less
shrinkage and a more sellable product to consumers, and with this
improvement, a revision of how shatter is scored was needed.
One comment opposing the proposal was received from a national
trade association representing wholesale produce receivers. The
receivers' association stated that an additional allowance for
shattered berries would be unfairly damaging to receivers and
consumers.
Finally, one comment was received from a trade association of
shippers of table grapes from the State of Sonora, Mexico. The
shippers' association supported the idea of revisiting the standards
for table grapes, however, it wanted to investigate the potential
effects of an added ten percent allowance during the upcoming season
before supporting this revision. The association indicated that the 10
percent allowance seemed high.
As a result of the comments received from the ANPR, AMS published
in the Federal Register (71 FR 55367) a proposed rule on September 22,
2006. Taking into account the comments received, AMS believed that it
would be more beneficial to the overall industry to fully utilize
shattered berries that are not otherwise defective, in consumer
containers. The majority of table grapes are now sold in consumer
containers. A 60-day comment period was allowed for interested parties
to comment on the proposed revision. The comment period ended on
November 21, 2006.
In response to the proposed rule, AMS received fourteen comments.
Twelve comments supported the proposal. Two comments were from regional
agricultural trade associations; one comment was from a national table
grape association; and nine comments were from members of an
agricultural trade association representing growers, packers, shippers
and exporters of table grapes. These comments were almost identical to
the majority of comments received from the ANPR regarding current
packaging and marketing procedures. The comments indicated that because
of changes in packaging and marketing practices, a revision of how
shatter is scored was warranted.
Two comments opposed the proposal. One comment was received from a
national trade association representing wholesale produce receivers,
and one from a grower and shipper of table grapes. The receivers'
association stated that they saw no reason to provide a special
allowance for shattered berries in consumer containers. The comment
stated that the proposed allowance would enable more lower-quality
product to qualify for the U.S. No. 1 grade. The comment also argued
that the proposal actually allows 22 percent shatter at destination.
The commentor also noted that the percentage would be higher if the
Perishable Agricultural Commodities Act (PACA) Good Delivery tolerances
were taken into account. PACA tolerances may be taken into account when
AMS resolves contract disputes under the PACA.
The comment received from the grower and shipper of table grapes
opposing the revision stated that it was not appropriate to change the
current grade standards and thereby downgrade the industry's and
consumers' perception of table grapes in general. The comment also
proposed a new grade, ``U.S. No. 1 High Shatter'' as an alternative.
However, the original proposal was for an additional allowance for en
route or destination inspections only. Developing a new grade would
have resulted in that grade needing to be applied at shipping point in
order for it to be applied en route or at destination. Therefore,
developing an additional grade was and is not being considered at this
time.
One request for a reopening of the comment period was received from
a receiver/wholesaler after the comment period ended. At that time, AMS
believed that reopening the comment period would not facilitate
resolution and would only prolong the then current state of
uncertainty, with regard to whether a 10 percent allowance for
shattered berries would be allowed.
However, due to the lack of industry consensus concerning the
proposed rule, AMS published in the Federal Register (72 FR 35668) a
notice to withdraw the proposed rule on June 29, 2007. AMS subsequently
met with CGTFL and several of its members. CGTFL stated its continued
interest in an additional allowance of 10 percent for shattered berries
en route or at destination for grapes in consumer containers because
the majority of table grapes are now sold in these, which allows
shattered berries to be utilized.
AMS also met with the North American Perishable Agricultural
Receivers (NAPAR), several of its members and other wholesale produce
receivers. Generally, the receivers stated their opposition to an
additional allowance for shattered berries based on their belief that
such an allowance would be detrimental to the grape industry and
consumers.
On October 5, 2007, AMS received a second petition from the CGTFL
requesting a revision to the United States Standards for Grades of
Table Grapes (European or Vinifera Type). Its petition revision
repeated the original request for an additional 10 percent
[[Page 10187]]
allowance for shattered grapes en route or at destination for grapes in
consumer containers.
The requested change of the petitioners for a 10 percent allowance
for shattered berries in addition to the 12% tolerance for total
defects could potentially allow for 22 percent defects in a lot and
still grade U.S. No. 1 Table. We believe that such a possible
percentage is too high and would not appropriately reflect what is
expected by industry and consumers in a U.S. No. 1 Table grade.
Accordingly, AMS is not proposing this requested 10 percent allowance
because AMS believes it would weaken the standard and reduce consumer
confidence in the grade. However, AMS recognizes that a change in
packaging and marketing has occurred in the Table Grape (European or
Vinifera Type) industry. Additionally, AMS believes that due to
improvements in packaging, marketing, and shipping that a revision to
the current U.S. Standards would be beneficial to both the industry and
consumers.
Therefore, AMS is proposing a 5 percent allowance for shattered
grapes be added to the United States Standards for Grades of Table
Grapes (European or Vinifera Type). The proposed allowance is specific
to table grapes en route or at destination in consumer sized packages.
The standards currently provide in section 51.886, Table II Tolerances
En Route or at Destination, a 12 percent total tolerance for bunches
and berries failing to meet the requirements of grade for en route or
at destination. Revising section 51.886, Table II, by adding a 5
percent allowance for shattered berries would mean that shattered
berries would not be scored as a defect against the 12 percent total
tolerance until the amount of shattered berries exceeds the 5 percent
allowance. For example, if a lot has 17 percent shattered berries, 12
percent would be reported as a defect and the lot would meet the
requirements of the U.S. No. 1 Table grade provided no other defects
were present; however, if a lot of berries has 18 percent shattered
berries 13 percent would be reported as a defect, which would cause the
lot to fail to meet the requirements of the U.S. No. 1 Table grade by
one percentage point.
To enable utilization of this revision in the 2008 season, this
action provides a 30-day comment period for interested parties to
comment on the proposed revision. Also, AMS is particularly interested
in comments and factual data that would demonstrate that this proposed
revision would either positively or negatively impact financially
interested parties. Specifically, data that shows expected financial
losses due to adjustments made by shippers or conversely, expected
additional expenses that would be incurred by receivers due to
shattered berries in amounts of five percent or greater.
Accordingly, AMS proposes to amend the United States Standards for
Grades of Table Grapes (European or Vinifera Type) as follows:
List of Subjects in 7 CFR Part 51
Agricultural commodities, Food grades and standards, Fruits, Nuts,
Reporting and record keeping requirements, Trees, Vegetables.
For reasons set forth in the preamble, 7 CFR part 51 is proposed to
be amended as follows:
PART 51--[AMENDED]
1. The authority citation for Part 51 continues to read as follows:
Authority: 7 U.S.C. 1621--1627.
2. In (51.886, paragraph (b), Table II is revised to read as
follows:
Subpart--United States Standards for Grades of Table Grapes
(European or Vinifera Type)
Sec. 51.886 Tolerances.
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(A) For bunches failing to meet color requirements.............. 10 10 10
(B) For bunches failing to meet requirements for minimum 10 10 10
diameter of berries............................................
(C) For bunches failing to meet stem color requirements......... 10 .............. ..............
(D) For offsize bunches and for bunches and berries failing to 12 12 12
meet the remaining requirements for the grade..................
(a) For shattered berries in consumer size packages an
allowance of 5 percent is provided. Any percent of
shattered berries exceeding the allowance of 5 percent
shall be scored as berries failing to meet the requirements
of the grade...............................................
Including in (D):
(b) For permanent defects................................... 8 8 8
(c) For serious damage...................................... 4 4 4
And, including in (c):
(i) For serious damage by permanent defects................. 2 2 2
(ii) For decay.............................................. 1 1 1
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Dated: February 19, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 08-848 Filed 2-21-08; 12:25 pm]
BILLING CODE 3410-02-P