[Federal Register Volume 77, Number 136 (Monday, July 16, 2012)]
[Proposed Rules]
[Pages 41707-41709]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17229]
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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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Federal Register / Vol. 77, No. 136 / Monday, July 16, 2012 /
Proposed Rules
[[Page 41707]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 51
[Doc. Number FV-11-0046]
United States Standards for Grades of Almonds in the Shell
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: The Agricultural Marketing Service (AMS), of the Department of
Agriculture (USDA), is proposing to revise the United States Standards
for Grades of Almonds in the Shell. AMS received written requests from
the produce industry to amend the standards to align inspection
procedures for incoming inspections (based on the marketing order) and
outgoing inspections (based on the grade standards). Therefore, AMS is
proposing to change the determination of internal defects from count to
weight.
DATES: Comments must be received by August 15, 2012.
ADDRESSES: Interested persons are invited to submit written comments to
the Standardization and Training Branch, Fresh Products Division, Fruit
and Vegetable Programs, Agricultural Marketing Service, U.S. Department
of Agriculture, National Training and Development Center, Riverside
Business Park, 100 Riverside Parkway, Suite 101, Fredericksburg, VA
22406: Fax (540) 361-1199, or on the Web at: www.regulation.gov.
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. Comments
can also be viewed on the www.regulations.gov Web site. The current
United States Standards for Almonds in the Shell, along with the
proposed changes, will be available either through the address cited
above or by accessing the AMS, Fresh Products Division Web site at:
http://www.ams.usda.gov/freshinspection.
FOR FURTHER INFORMATION CONTACT: Dr. Carl Newell, at the above address
or call (540) 361-1120.
SUPPLEMENTARY INFORMATION:
Executive Order 12866 Regulatory Flexibility Act
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866 and, therefore, has not been reviewed
by the Office of Management and Budget.
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the
economic impact of the proposed action on small entities. The purpose
of the RFA is to fit regulatory actions to the scale of businesses
subject to such actions so 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 these
actions on small businesses.
This rule proposes to revise the United States Standards for Grades
of Almonds in the Shell (standards) that were issued under the
Agricultural Marketing Act of 1946 (7 U.S.C. 1621-1627). 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 $7,000,000 and small
agricultural producers have been defined as those having annual
receipts of less than $750,000.
There are approximately 53 handlers of almonds that would
potentially be affected by the changes set forth in this proposed rule
and approximately 6,500 producers of almonds. Information provided by
the Almond Board of California (ABC) indicates that approximately 36
percent of the handlers would be considered small agricultural service
firms.
According to data reported by the National Agricultural Statistics
Service (NASS), the two-year average crop value for 2008-09 and 2009-10
was $2.566 billion. Dividing that average by 6,500 producers yields
average estimated producer revenues of $394,769, which suggests that
the majority of almond producers would be considered small entities
according to the SBA's definition.
The California almond bearing acreage increased approximately 9
percent between 2008 and 2010, from 680,000 to 740,000 acres.
Approximately 1.643 billion pounds (shelled basis) of almonds were
produced during the 2009-10 season. More than two thirds of
California's almond crop is exported to approximately 90 countries
worldwide, and comprises nearly 80 percent of the world's almond
supply.
The changes proposed herein will have the effect of improving
grading methods and accuracy without adding any additional financial
burden to buyers or sellers of almonds in the shell. This rule changes
one step in a multi-step grading procedure (7 CFR 51.2080) and changes
the method of determining one of five tolerances used in determining
grade (7 CFR 51.2075(b)(5)). The outgoing inspection procedure will
become more closely aligned with incoming inspection by shifting the
basis (from count to weight) in the standards for determining the
percentage of internal defects in an inspection sample of almonds in
the shell.
In addition to simplifying the grading process, the weight basis
would yield a more accurate percentage of internal defects. With a
count method, a defect such as shriveling would result in a particular
kernel being counted as one of the 300 kernels in the sample with
internal defects, even if the defect left only a small portion of the
original kernel in the sample. Due to its lower weight relative to a
fully formed kernel, a shriveled kernel has a smaller impact on the
percentage of internal defects when the sample is weighed rather than
counted.
The lower average percentage of internal defects using the weight
method was confirmed by a review of shipping point inspection records,
with 14 examples in which both the count and weight method were used on
the same sample of inshell almonds. The average serious damage
percentages of the count method and the weight method were 1.5 percent
and 0.8 percent, respectively. Smaller percentages of defects in
sampled lots using the weight method will mean
[[Page 41708]]
larger quantities of almonds meet a particular grade, which would
positively affect the quality of the almonds, as it would yield more
accurate percentages of defects, resulting in higher payments to
growers.
Shifting the determination of internal (kernel) defects from a
count basis to a weight basis in the standards is expected to
contribute to efficiencies in the grading process. It would make the
internal defects aspect of the outgoing inspection process consistent
with that of the incoming inspection. Weighing rather than counting the
kernels may result in slightly more time in the inspection process, but
any potential effect on the cost of inspections is expected to be minor
or nonexistent, and would be offset by the benefits.
There is no disproportionate impact on smaller entities; entities
of all sizes will benefit.
This rule would not impose any additional reporting or
recordkeeping requirements on either small or large almond producers,
handlers or exporters and will be done at no cost to the industry.
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 with this rule. However, there is a marketing program which
regulates the handling of almonds under 7 CFR part 981. The revision
being proposed in this action only affects the inspection procedures
for internal defects in the standards. As such, the proposed action
would not affect almonds in the shell under the marketing order.
Alternatives were considered for this action. One alternative would
be to not issue a proposed rule. However, the need for revisions
remains due to differing procedures for incoming and outgoing almond
inspections, and the proposal is the result of a request by industry.
Further, the purpose of these standards is to facilitate the marketing
of agricultural commodities.
Executive Order 12988
The rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This action is not intended to have retroactive effect.
There are no administrative procedures which must be exhausted prior to
any judicial challenge to the provisions of the rule.
Section 203(c) of the Act 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.
Background
On March 11, 2011, AMS received a letter from the Almond Board of
California (Board) requesting that the procedure for measuring internal
(kernel) defects in the United States Standards for Grades of Almonds
in the Shell be changed from a count basis to a weight basis. The
purpose of this change is to align incoming and outgoing inspection
procedures.
Currently, almonds must undergo incoming inspections and may
undergo outgoing inspections. The almond marketing order (part 981--
Almonds Grown in California) mandates that the percentage of inedible
kernels is determined during an incoming inspection. As required in the
marketing order (7 CFR 981.42 and 981.442 (Quality Control)), Federally
licensed state inspectors perform these inspections on 100% of the
product moving from growers to handlers (packers). Inedible kernel is
defined in section 981.8 and 981.408 of the marketing order and is
based on internal (kernel) defects as defined in the standards, in
sections 51.2087 (Decay), 51.2088 (Rancidity), 51.2089 (Damage) and
51.2090 (Serious Damage).
Federally licensed state inspectors also perform outgoing
inspections, which are voluntary, on approximately 75% of all of the
almonds going from the handlers to domestic and international markets,
according to shipping point records maintained by Federal State
Inspection.
The current procedures for determining the percentage of defective
kernels in the two different inspections are not the same. For incoming
inspections, the percentage of inedible kernels is determined on a
weight basis. With outgoing inspections, however, determining the
percentage of internal (kernel) defects, which is one step in a multi-
step procedure specified in the standards for determining U.S. grade,
is done through a combination of count and weight of the nuts in the
sample. This proposed change would more closely align the procedures of
the incoming and outgoing inspections.
A key reason for making this change is the increasing magnitude of
exports of almonds in the shell. Between the 2006/07 and 2009/10
seasons, export shipments of almonds in the shell doubled, rising from
148 to 297 million pounds (inshell basis), according to trade data from
the Foreign Agricultural Service of USDA. During this same time period,
the number of handlers exporting almonds in the shell increased by 42%.
Due to the substantial increase in the number of handlers and volume of
shipments, the Board received numerous inquiries regarding the reasons
for the different procedures for determining internal defects on
incoming and outgoing inspections.
A number of handlers asked the Board's Food Quality and Safety
Committee (committee) to look into how to change the standards to make
outgoing inspections more consistent with the incoming inspection
method. Determining the percentage of nuts with internal defects is the
third of three required steps in section 51.2080 Determination of
Grade. In addition, a 10 percent tolerance for internal (kernel)
defects is one of five tolerances that are specified in section
51.2075(b)(5) for determining whether a lot of inshell almonds is
graded as U.S. No. 1. Committee staff queried handlers that ship
almonds in the shell about changing the determination of internal
defects from a count basis to a weight basis, which would apply to both
of these sections.
AMS is proposing to amend section 51.2075(b)(5) by changing the
word ``count'' in the first line to ``weight.'' The other four
tolerances specified in section 51.2075(b) remain unchanged. AMS is
also proposing to amend section 51.2080 by changing the word ``count''
in the last line to ``weight.'' This would make the internal defects
aspect of the outgoing inspection process consistent with that of the
incoming inspection mandated by the marketing order.
The proposed rule provides for a 30-day comment period for
interested parties to comment on the revisions to the standard.
List of Subjects in 7 CFR Part 51
Agricultural commodities, Food grades and standards, Fruits, Nuts,
Reporting and recordkeeping 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 Sec. 51.2075, paragraph (b)(5) is revised to read as
follows:
[[Page 41709]]
Sec. 51.2075 U.S. No. 1.
* * * * *
(b) * * *
(5) For internal (kernel) defects. 10 percent, by weight, for
almonds with kernels failing to meet the requirements of this grade:
Provided, that not more than one-half of this tolerance or 5 percent
shall be allowed for kernels affected by decay or rancidity, damaged by
insects or mold or seriously damaged by shriveling: And provided
further, that no part of this tolerance shall be allowed for live
insects inside the shell.
* * * * *
3. Sec. 51.2080 is revised to read as follows:
Determination of Grade
Sec. 51.2080 Determination of Grade.
In grading the inspection sample, the percentage of loose hulls,
pieces of shell, chaff and foreign material is determined on the basis
of weight. Next, the percentages of nuts which are of dissimilar
varieties, undersize or have adhering hulls or defective shells are
determined by count, using an adequate portion of the total sample.
Finally, the nuts in that portion of the sample are cracked and the
percentage having internal defects is determined on the basis of
weight.
Dated: July 11, 2012.
David R. Shipman,
Administrator, Agricultural Marketing Service.
[FR Doc. 2012-17229 Filed 7-13-12; 8:45 am]
BILLING CODE 3410-02-P