FR Doc 03-17798

[Federal Register: July 15, 2003 (Volume 68, Number 135)]
[Rules and Regulations]
[Page 41683-41686]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jy03-2]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 925

[Docket No. FV03-925-2 FIR]

Grapes Grown in a Designated Area of Southeastern California;
Establishment of Safeguards and Procedures for Suspension of Packing
Holidays

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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

SUMMARY: The Department of Agriculture (USDA) is adopting, as a final
rule, without change, an interim final rule which established
safeguards and procedures for the suspension of packing holidays
prescribed under the California grape marketing order (order). The
order regulates the handling of grapes grown in a designated area of
Southeastern California and is administered locally by the California
Desert Grape Administrative Committee (Committee). The procedures and
safeguards will be used by the Committee when considering and making
decisions on packing holiday suspension requests. Additionally, this
rule continues in effect the clarification of existing maturity
requirements for Flame Seedless variety grapes and the correction of
errors in the regulatory text regarding references to the California
Code of Regulations (CCR).

EFFECTIVE DATE: August 14, 2003.

FOR FURTHER INFORMATION CONTACT: Rose Aguayo, California Marketing
Field Office, Marketing Order Administration Branch, Fruit and
Vegetable Programs, AMS, USDA, 2202 Monterey Street, suite 102B,
Fresno, California 93721; telephone: (559) 487-5901, Fax: (559) 487-
5906; or George Kelhart, Technical Advisor, 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.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, 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: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order
No. 925 (7 CFR part 925), regulating the handling of grapes grown in
California, hereinafter referred to as the ``order.'' The order is
effective under the Agricultural Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.''
USDA is issuing this rule in conformance with Executive Order
12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule 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.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with USDA a petition
stating that the order, any provision of the order, or any obligation
imposed in connection with the order is not in accordance with law and
request a modification of the order or to be exempted therefrom. A
handler is afforded the opportunity for a hearing on the petition.
After the hearing USDA would rule on the petition. The Act provides
that the district court of the United States in any district in which
the handler is an inhabitant, or has his or her principal place of
business, has jurisdiction to review USDA's ruling on the petition,
provided an action is filed not later than 20 days after the date of
the entry of the ruling.
This rule continues in effect established safeguards and procedures
for suspension of packing holidays prescribed under the California
grape order. The explicitly stated procedures and safeguards will be
used for all requests received to suspend packing holidays.
Additionally, this rule continues in effect the clarification of
existing maturity requirements for Flame Seedless variety grapes and
the correction of errors in the regulatory text regarding references to
the CCR.

Establishment of Safeguards and Procedures for Suspension of Packing
Holidays

Section 925.52(a)(5) of the order's rules and regulations provides
authority to establish holidays by prohibiting the packing of all
varieties of grapes during a specified period or periods.
Previously, Sec. 925.304(e) of the order's rules and regulations
provided that the Committee may suspend the prohibition against packing
or repacking grapes on any Saturday, Sunday, or on the Memorial Day or
Independence Day holidays of each year, to permit the handling of
grapes provided such

[[Page 41684]]

handling complies with procedures and safeguards specified by the
Committee.
A decision by an Administrative Law Judge on November 7, 2002,
invalidated the authority for the Committee to suspend or modify
packing holidays, because there were no safeguards or procedures
established for the Committee to follow when it makes its decisions on
whether to suspend packing holidays.
As a result, the Committee met on December 12, 2002, and
recommended specifying the following safeguards and procedures,
including USDA approval, for the suspension of packing holidays to
Sec. 925.304(e) of the order's rules and regulations: (1) All requests
for suspension of a packing holiday shall be in writing, shall state
the reasons the suspension is being requested, and shall be submitted
to the Committee manager by noon on Wednesday or at least 3 days prior
to the requested suspension date; (2) Upon receipt of a written
request, the Committee manager shall promptly give reasonable notice to
producers and handlers and to USDA that an assembled Committee meeting
will be held to discuss the request(s). A USDA representative shall
attend the Committee meeting via speakerphone or in person, and all
votes of the Committee members shall be cast in person; (3) The
Committee members shall consider marketing conditions (i.e., supplies
of competing commodities including quantities in inventory, the
expected demand conditions for grapes in different markets, and any
pertinent documents which provide data on market conditions), weather
conditions, labor shortages, the size of the crop remaining to be
marketed, and other pertinent factors in reaching a decision on whether
or not to suspend packing holidays; (4) Once a vote is taken, any
documents utilized during the meeting will be forwarded immediately to
the USDA representative and a summary of the Committee's action and
reasons for recommending approval or disapproval will be prepared and
also forwarded by the Committee; and (5) The USDA representative shall
notify the Committee manager of approval or disapproval of the request
prior to commencement of the suspended packing holiday and the
Committee manager shall notify handlers and producers of USDA's
decision.
In previous seasons, the Committee used informal safeguards and
procedures when processing and considering requests to suspend packing
holidays. The established safeguards and procedures, and USDA approval,
are intended to address the concerns expressed in the administrative
action. The Committee vote was 8 in favor, 0 opposed, and 1 abstained.
The specific safeguards and procedures were added to Sec. 925.304(e)
of the order's administrative rules and regulations (68 FR 19708, April
22, 2003). These revisions do not impact the grape import regulation.

Clarification/Removal of Section Numbers

Final Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this action on small entities. Accordingly, 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. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 20 handlers of California grapes who are
subject to regulation under the order and about 50 producers of grapes
in the production area. Small agricultural service firms are defined by
the Small Business Administration (SBA) (13 CFR 121.201) as those
having annual receipts of less than $5,000,000 and small agricultural
producers are defined as those having annual receipts of less than
$750,000. Eight of the 20 handlers subject to regulation have annual
grape sales of $5,000,000. In addition, 10 of the 50 producers have
annual sales of at least $750,000. Therefore, a majority of handlers
and producers are classified as small entities.
This rule continues in effect the establishment of safeguards and
procedures for suspension of packing holidays prescribed under the
California grape order. The specification of procedures and safeguards
for suspending packing holidays are expected to facilitate the
Committee's discussions and decision-making on such requests received
from handlers. Additionally, this rule continues in effect the
clarification of existing maturity requirements for Flame Seedless
variety grapes and the correction of errors in regulatory text
regarding references to the CCR.

Establishment of Safeguards and Procedures for Suspension of Packing
Holidays

Prior to issuance of the interim final rule, Sec. 925.304(e) of
the order's rules and regulations provided that the Committee may
suspend the prohibition against packing or repacking grapes on any
Saturday, or Sunday, or on the Memorial Day or Independence Day
holidays of each year, to permit the handling of grapes provided such

[[Page 41685]]

handling complies with procedures and safeguards specified by the
Committee.
A decision issued by an Administrative Law Judge on November 7,
2002, invalidated the authority for the Committee to suspend or modify
packing holidays, because there were no safeguards or procedures
established for the Committee to follow when it makes its decisions on
whether to suspend packing holidays.
As a result, the Committee met on December 12, 2002, and
recommended specifying the following safeguards and procedures,
including USDA approval, for suspension of packing holidays to Sec.
925.304(e) of the order's rules and regulations to the handling of such
requests: (1) All requests for suspension of a packing holiday shall be
in writing, shall state the reasons the suspension is being requested,
and shall be submitted to the Committee manager by noon on Wednesday or
at least 3 days prior to the requested suspension date; (2) upon
receipt of a written request, the Committee manager shall promptly give
reasonable notice to producers and handlers and to USDA that an
assembled Committee meeting will be held to discuss the request(s). A
USDA representative shall attend via speakerphone or in person, and all
votes of the Committee members on whether or not to approve the request
shall be cast in person; (3) the Committee members shall consider
marketing conditions (i.e., supplies of competing commodities including
quantities in inventory, the expected demand conditions for grapes in
different markets, and any pertinent documents which provide data on
market conditions), weather conditions, labor shortages, the size of
the crop remaining to be marketed, and other pertinent factors in
reaching a decision to suspend or not suspend packing holidays; (4)
once a vote is taken, any documents utilized during the meeting will be
forwarded immediately to the USDA representative and a summary of the
Committee's action and reasons for recommending approval or disapproval
will be prepared and also forwarded by the Committee; and (5) the USDA
representative shall notify the Committee manager of approval or
disapproval of the requested prior to commencement of the suspended
packing holiday and the Committee manager shall notify handlers and
producers of USDA's decision.
In previous seasons, the Committee used informal safeguards and
procedures when processing and considering requests to suspend packing
holidays. The established safeguards and procedures, including USDA
approval, are intended to address the concerns expressed in the
administrative action. The Committee discussed alternatives to this
change, including not making any changes, but determined that
safeguards and procedures were needed to address the concerns expressed
in the administrative action and to facilitate the handling of packing
holiday suspension requests. The Committee vote was 8 in favor, 0
opposed, and 1 abstained. The specific safeguards and procedures were
added to Sec. 925.304(e) of the order's administrative rules and
regulations (68 FR 19708, April 22, 2003). Imported grapes will not be
affected by this action.

Clarification/Removal of Section Numbers

Section 925.52(a)(2) of the grape order provides authority to limit
the handling of any grade, size, quality, maturity, or pack of grapes
differently for different varieties, or any combination of the
foregoing during any period or periods.
Previously, Sec. 925.304(a)(2) of the grape order's administrative
rules and regulations provided that grapes of the Flame Seedless
variety shall be considered mature if the juice contains not less than
15 percent soluble solids and the soluble solids are equal to or in
excess of 20 parts to every part acid contained in the juice in
accordance with applicable sampling and testing procedures specified in
sections 1436.3, 1436.5, 1436.6, 1436.7, 1436.12, and 1436.17 of the
Title 3: California Code of Regulations (CCR). These provisions did
not, but should have, specified that this variety of grapes also is
considered mature under the grape marketing order if the juice meets or
exceeds 16.5 percent soluble solids. To correct this oversight, the
interim final rule added language to Sec. 925.304(a)(2) indicating
that Flame Seedless variety grapes shall be considered mature if the
juice meets or exceeds 16.5 percent soluble solids.
Prior to issuance of the interim final rule, Sec. 925.304(b)(4) of
the grape order's rules and regulations required containers of grapes
to be plainly marked with the lot stamp number corresponding to the lot
inspection conducted by an authorized inspector, and specified that
such requirement shall not apply to containers in the center tier of a
3 box by 3 box pallet configuration, as provided in Sec. Sec. 1460.30
and 1359 of the CCR. The references to Sec. Sec. 1460.30 and 1359 were
incorrectly added to Sec. 925.304(b)(4) on August 23, 2002 (67 FR
54567). This rule continues in effect the removal of these references
from Sec. 925.304(b)(4) and continues the addition of references to
Sec. Sec. 1436.30 and 1359 of the CCR to Sec. 925.304(b)(3), as
should have been done last August.
Section 925.304(f) states that certain container and pack
requirements cited in the grape order are specified in the CCR and are
incorporated by reference and that a notice of any change in these
materials will be published in the Federal Register.
This rule is in the interest of handlers, producers and consumers.
These revisions do not impact the grape import regulation.
The information collection requirements for the safeguards and
procedures for the suspension of packing holidays have been previously
approved by the Office of Management and Budget (OMB) under OMB No.
0581-0189. As with all Federal marketing order programs, reports and
forms are periodically reviewed to reduce information requirements and
duplication by industry and public sector agencies.
In addition, as noted in the initial regulatory flexibility
analysis, USDA has not identified any relevant Federal rules that
duplicate, overlap or conflict with this rule.
Further, the Committee's meeting was widely publicized throughout
the grape industry and all interested persons were invited to attend
the meeting and participate in the Committee's deliberations. The
interim final rule (68 FR 19708, April 22, 2003) stated that this issue
was discussed at Committee meetings held on November 14, 2002, and
December 12, 2002. As this issue was not discussed at the November 14,
2002, meeting, that date has been deleted. Like all Committee meetings,
the December 12, 2002, meeting was a public meeting and all entities,
both large and small, were able to express their views on this issue.
An interim final rule concerning this action was published in the
Federal Register on April 22, 2003. Copies of the rule were mailed by
the Committee's staff to all Committee members and grape handlers. In
addition, the rule was made available through the Internet by the
Office of the Federal Register and USDA. That rule provided for a 60-
day comment period, which ended June 23, 2003. No comments were
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/fv/moab.html.
Any questions about the compliance
guide should be sent to Jay Guerber at the previously mentioned address
in the FOR FURTHER INFORMATION CONTACT section.
After consideration of all relevant material presented, including
the

[[Page 41686]]

Committee's recommendation, and other information, it is found that
finalizing the interim final rule, without change, as published in the
Federal Register (68 FR 19708, April 22, 2003) will tend to effectuate
the declared policy of the Act.

List of Subjects in 7 CFR Part 925

Grapes, Marketing agreements and orders, Reporting and
recordkeeping requirements.

PART 925--GRAPES GROWN IN A DESIGNATED AREA OF SOUTHEASTERN
CALIFORNIA

0
Accordingly, the interim final rule amending 7 CFR part 925 which was
published at 68 FR 19708 on April 22, 2003, is adopted as a final rule
without change.

Dated: July 9, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-17798 Filed 7-14-03; 8:45 am]

BILLING CODE 3410-02-P