FR Doc 03-9843

[Federal Register: April 22, 2003 (Volume 68, Number 77)]
[Rules and Regulations]
[Page 19708-19711]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ap03-3]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 925

[Docket No. FV03-925-2 IFR]

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: Interim final rule with request for comments.

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SUMMARY: This rule establishes 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 clarifies existing
maturity requirements for Flame Seedless variety grapes and corrects
errors in the regulatory text regarding references to the California
Code of Regulations (CCR).

DATES: Effective date: April 23, 2003; Comment period: comments
received by June 23, 2003, will be considered prior to issuance of a
final rule.

ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent to the Docket Clerk,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC
20250-0237; Fax: (202) 720-8938, or E-mail: moab.docketclerk@usda.gov.
All comments should reference the docket 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.ams.usda.gov/fv/moab.html
.

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.''
The Department of Agriculture (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

[[Page 19709]]

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 establishes 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
clarifies existing maturity requirements for Flame Seedless variety
grapes and corrects 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 grape order provides authority to
establish holidays by prohibiting the packing of all varieties of
grapes during a specified period or periods.
Section 925.304(e) of the order's rules and regulations provides
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 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 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 are intended to
address the concerns expressed in the administrative action. The
specific safeguards and procedures will be added to Sec. 925.304(e) of
the order's administrative rules and regulations. The Committee vote
was 8 in favor, 0 opposed, and 1 abstained. These revisions do not
impact the grape import regulation.

Clarification/Removal of Section Numbers

Initial 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 initial 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.

[[Page 19710]]

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 establishes 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 clarifies existing maturity requirements for Flame Seedless
variety grapes and corrects errors in regulatory text regarding
references to the CCR.

Establishment of Safeguards and Procedures for Suspension of Packing
Holidays

Section 925.304(e) of the order's rules and regulations provides
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 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 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 are intended to
address the concerns expressed in the administrative action. The
specific safeguards and procedures will be specified in Sec.
925.304(e) of the order's administrative rules and regulations.
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. 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.
Section 925.304(a)(2) of the grape order's administrative rules and
regulations provides 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 Sec. Sec.
1436.3, 1436.5, 1436.6, 1436.7, 1436.12, and 1436.17 of the title 3:
California Code of Regulations (CCR). These provisions do not, but
should, specify 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, this rule adds
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.
Section 925.304(b)(4) of the grape order's rules and regulations
requires containers of grapes to be plainly marked with the lot stamp
number corresponding to the lot inspection conducted by an authorized
inspector, and specifies 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 removes these
references from Sec. 925.304(b)(4) and adds 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, USDA has not identified any relevant Federal rules
that duplicate, overlap or conflict with this rule.
Further, the Committee's meetings were widely publicized throughout
the grape industry and all interested persons were invited to attend
the meetings and participate in the Committee's deliberations. Like all
Committee meetings, the November 14, 2002, and the December 12, 2002,
meetings were public meetings and all entities, both large and small,
were able to express their views on these issues.

[[Page 19711]]

Finally, interested persons are invited to submit information on
the regulatory and informational impacts of this action on small
businesses.
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.
This rules invites comments on the addition of safeguards and
procedures for suspensions of packing holidays, and clarification/
removal of section numbers currently prescribed under the California
grape order. Any comments received will be considered prior to
finalization of this rule.
After consideration of all relevant material presented, including
the Committee's recommendation and other information, it is found that
this interim final rule, as hereinafter set forth, will tend to
effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect and that good cause exists for not postponing the effective date
of this rule until 30 days after publication in the Federal Register
because: (1) This action explicitly states safeguards and procedures to
facilitate Committee discussions on packing holiday suspension
requests; (2) the Committee unanimously recommended the safeguards and
procedures at a public meeting and interested parties had an
opportunity to provide input; (3) California grape shipments begin
approximately April 20, 2003, and this rule should be in effect as soon
as possible; and (4) this rule provides for a 60-day comment period and
any comments received will be considered prior to finalization of this
rule.

List of Subjects in 7 CFR Part 925

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

0
For the reasons set forth in the preamble, 7 CFR part 925 is amended as
follows:

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

0
1. The authority citation for 7 CFR part 925 continues to read as
follows:

Authority: 7 U.S.C. 601-674.

0
2. In Sec. 925.304, paragraphs (a)(2), (b)(3), (b)(4), and (e) are
revised to read as follows:

Sec. 925.304 California Desert Grape Regulation 6.

* * * * *
(a) * * *
(2) Grapes of the Flame Seedless variety shall meet the minimum
berry size requirement of ten-sixteenths of an inch and shall be
considered mature if the juice meets or exceeds 16.5 percent soluble
solids, or 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 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 Article 25 of Title 3: California Code of
Regulations (CCR).
(b) * * *
(3) Such containers of grapes shall be plainly marked with the
minimum net weight of grapes contained therein (with numbers and
letters at least one-fourth inch in height), the name of the variety of
the grapes and the name of the shipper, as provided in Sec. Sec.
1436.30 and 1359 of Title 3: California Code of Regulations.
(4) Such containers of grapes shall be plainly marked with the lot
stamp number corresponding to the lot inspection conducted by an
authorized inspector, except that such requirement shall not apply to
containers in the center tier of a lot palletized in a 3 box by 3 box
pallet configuration: Provided, That pallets of reusable plastic
containers shall have the lot stamp number stamped on two USDA-approved
pallet tags, each affixed to opposite sides of the pallet of
containers, in addition to other required information on the cards of
the individual containers.
* * * * *
(e) Suspension of packing holidays. Upon recommendation of the
committee and approval of the Secretary, the prohibition against
packing or repacking grapes on any Saturday, Sunday or on Memorial Day
or Independence Day holidays of each year, may be modified or suspended
to permit the handling of grapes provided such handling complies with
procedures and safeguards specified by the committee as follows:
(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 the
Secretary that an assembled Committee meeting will be held to discuss
the request(s). The representative of the Secretary shall attend the
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 to include 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 packing holidays;
(4) Once a vote is taken, any documents utilized during the meeting
will be forwarded immediately to the Secretary's 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 Secretary's 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 accordingly.
* * * * *

Dated: April 16, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-9843 Filed 4-21-03; 8:45 am]

BILLING CODE 3410-02-P