[Federal Register: March 17, 2009 (Volume 74, Number 50)]
[Rules and Regulations]
[Page 11275-11277]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17mr09-1]
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Rules and Regulations
Federal Register
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[[Page 11275]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 925 and 944
[Doc. No. AMS-FV-08-0106; FV09-925-1 IFR]
Grapes Grown in a Designated Area of Southeastern California and
Imported Table Grapes; Relaxation of Handling Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This rule relaxes the handling requirements prescribed under
the California table grape marketing order (order) and the table grape
import regulation. The order regulates the handling of table grapes
grown in a designated area of southeastern California and is
administered locally by the California Desert Grape Administrative
Committee (committee). The import regulation is authorized under
section 8e of the Agricultural Marketing Agreement Act of 1937 and
regulates the importation of table grapes into the United States. This
rule relaxes the one-quarter pound minimum bunch size requirement for
the 2009 season for grapes packed in containers holding 2 pounds net
weight or less. Under the relaxation, up to 20 percent of the weight of
such containers may consist of single, unattached stems or clusters of
at least five berries each. This action provides California desert
grape handlers and importers the flexibility to respond to a marketing
opportunity on a test basis for one season to meet consumer needs.
DATES: Effective March 20, 2009; comments received by May 18, 2009 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, Fruit
and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., Stop
0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet:
http://www.regulations.gov. All comments should reference the document
number and the date and page number of this issue of the Federal
Register and will be available for public inspection in the Office of
the Docket Clerk during regular business hours, or can be viewed at:
http://www.regulations.gov. All comments submitted in response to this
rule will be included in the record and will be made available to the
public. Please be advised that the identity of the individuals or
entities submitting the comments will be made public on the Internet at
the address provided above.
FOR FURTHER INFORMATION CONTACT: Jennifer Garcia, Marketing Specialist,
or Kurt J. Kimmel, Regional Manager, California Marketing Field Office,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or e-mail:
Jennifer.Garcia@ams.usda.gov or Kurt.Kimmel@ams.usda.gov.
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@ams.usda.gov.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order
No. 925, as amended (7 CFR part 925), regulating the handling of grapes
grown in a designated area of southeastern 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.''
This rule is also issued under section 8e of the Act, which
provides that whenever certain specified commodities, including table
grapes, are regulated under a Federal marketing order, imports of these
commodities into the United States are prohibited unless they meet the
same or comparable grade, size, quality, or maturity requirements as
those in effect for the domestically produced commodities.
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 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.
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.
There are no administrative procedures which must be exhausted
prior to any judicial challenge to the provisions of import regulations
issued under section 8e of the Act.
This rule relaxes the minimum bunch size requirement for the 2009
season for grapes packed in containers holding 2 pounds net weight or
less. Under the relaxation, up to 20 percent of the weight of such
containers may consist of single clusters weighing less than one-
quarter pound, but with at least five berries each. This action
provides California desert grape handlers and importers the flexibility
to respond to a marketing opportunity on a test basis for one season to
meet consumer needs. The committee met on November 14, 2008, and
unanimously recommended the change for California desert grapes. The
change in the import regulation is required under section 8e of the
Act.
Section 925.52(a)(1) of the order provides authority to regulate
the
[[Page 11276]]
handling of any grade, size, quality, maturity, or pack of any and all
varieties of grapes during the season. Section 925.53 provides
authority for the committee to recommend to USDA changes to regulations
issued pursuant to Sec. 925.52. Section 925.55 specifies that when
grapes are regulated pursuant to Sec. 925.52, such grapes must be
inspected by the Federal or Federal-State inspection service to ensure
they meet applicable requirements.
Section 925.304(a) of the order's rules and regulations requires
grapes to meet the minimum grade requirements of U.S. No. 1 Table, or
U.S. No. 1 Institutional, or to meet all the requirements of U.S. No. 1
Institutional, except that a tolerance of 33 percent is provided for
off-size bunches. The requirements for the U.S. No. 1 Table and U.S.
No. 1 Institutional grades are set forth in the United States Standards
for Grades of Table Grapes (European or Vinifera Type) (7 CFR 51.880
through 51.914) (Standards). The regulatory period runs from April 10
through July 10 each year.
Currently, U.S. No. 1 Table grade grapes must meet a minimum bunch
size requirement of one-quarter pound. Recently, there has been
interest in packing grapes in individual consumer packages known as
clamshells. These containers, used most commonly to pack strawberries,
are made of a clear, rigid plastic and typically hold a half pound or a
pound of fruit. Some retailers prefer these containers because they are
of the same net weight, and can be scanned at check-out. This is
particularly convenient for retailers that do not have facilities for
weighing produce, such as convenience stores and fast food outlets.
Some consumers also prefer the convenience of prepackaged individual
portions of fruit.
To meet changing market requirements, California grape handlers
would like to be able to pack clamshells containing 2 pounds net weight
or less. However, current bunch size requirements make it difficult.
Grape bunches normally range in weight from one-quarter pound to 3
pounds. Portions of bunches, weighing less than one-quarter pound,
would have to be used to fill the new packages to the weights desired
by buyers.
Thus, the committee unanimously recommended relaxing the one-
quarter pound minimum bunch size requirement for the 2009 season for
U.S. No. 1 Table grade grapes packed in clamshells containing 2 pounds
net weight or less. Under the relaxation, up to 20 percent of the
weight of such containers may consist of single clusters weighing less
than one-quarter pound, but with at least five berries each. This
change will provide handlers with the flexibility to respond to a
marketing opportunity on a test basis for one season to meet consumer
needs. Section 925.304(a) is modified accordingly.
Under section 8e of the Act, minimum grade, size, quality, and
maturity requirements for table grapes imported into the United States
are established under Table Grape Import Regulation 4 (7 CFR 944.503)
(import regulation). Section 944.503(a)(1) specifies the minimum bunch
size requirement for U.S. No. 1 Table grade grapes as set forth in the
Standards. The change to the order's minimum bunch size requirement for
the 2009 season requires a corresponding change to the minimum bunch
size requirement for imported table grapes. Similar to the domestic
industry, this change will allow importers the flexibility to respond
to a marketing opportunity on a test basis for one season to meet
consumer needs. Section 944.503(a)(1) is revised accordingly.
Initial 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 rule 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.
There are approximately 14 handlers of southeastern California
grapes who are subject to regulation under the order and about 50 grape
producers in the production area. In addition, there are approximately
123 importers of grapes. Small agricultural service firms are 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 are defined as those whose annual receipts are less than
$750,000. Nine of the 14 handlers subject to regulation have annual
grape sales of less than $7,000,000. Based on data from the National
Agricultural Statistics Service and the committee, the average crop
value for 2008 is about $53,040,000. Dividing this figure by the number
of producers (50) yields an average annual producer revenue estimate of
about $1,060,800, which is above the SBA threshold of $750,000. Based
on the foregoing, it may be concluded that a majority of grape handlers
and none of the producers may be classified as small entities. The
average importer receives $2.8 million in revenue from the sale of
grapes. Therefore, it may be concluded that the majority of importers
may be classified as small entities.
This rule revises Sec. 925.304(a) of the rules and regulations of
the California desert grape order and Sec. 944.503(a)(1) of the table
grape import regulation. This rule relaxes the one-quarter pound
minimum bunch size requirement for the 2009 season for U.S. No. 1 Table
grade grapes packed in small consumer packages containing 2 pounds net
weight or less. Under the relaxation, up to 20 percent of the weight of
each clamshell container may consist of single clusters weighing less
than one-quarter pound, but with at least five berries each. Authority
for the change to the California desert grape order is provided in
Sec. Sec. 925.52(a)(1) and 925.53. Authority for the change to the
table grape import regulation is provided in section 8e of the Act.
Regarding the impact of this rule on affected entities, this rule
provides both California desert grape handlers and importers the
flexibility to respond to a marketing opportunity on a test basis for
one season to meet consumer needs. Handlers and importers will be able
to provide buyers in the retail sector more packaging choices. The
relaxation may result in increased shipments of consumer-sized grape
packs, which would have a positive impact on producers, handlers, and
importers.
There is general agreement in the industry for the need to relax
the minimum bunch size requirement for grapes packed in clamshells to
allow for more packaging options. One suggestion was to relax the
minimum bunch size requirement for U.S. No. 1 Table grade grapes packed
in clamshells containing net weights of 2, 3, and 4 pounds. The
committee discussed this alternative and decided that there is not a
problem with clamshells containing net weights of 3 and 4 pounds
meeting the minimum requirements at this time. Ultimately, the
committee unanimously agreed that the relaxation for grapes packed in
clamshells containing 2 pounds net weight or less was appropriate as a
test for one season.
AMS is committed to complying with the E-Government Act, to promote
the use of the Internet and other information technologies to provide
[[Page 11277]]
increased opportunities for citizen access to Government information
and services, and for other purposes.
This rule will not impose any additional reporting or recordkeeping
requirements on either small or large grape handlers or importers. 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 meeting was widely publicized throughout
the grape industry and all interested persons were invited to attend
the meeting and participate in committee deliberations. Like all
committee meetings, the November 14, 2008, meeting was a public meeting
and all entities, both large and small, were able to express their
views on this issue. Also, the World Trade Organization, the Chilean
Technical Barriers to Trade inquiry point for notifications under the
U.S-Chile Free Trade Agreement, the embassies of Argentina, Brazil,
Canada, Chile, Italy, Mexico, Peru, and South Africa, and known grape
importers were notified of this action.
Finally, interested persons are invited to submit comments on this
rule, including 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/AMSv1.0/
ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBus
inessGuide. 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 rule invites comments on relaxing the handling requirements
currently prescribed under the marketing order for grapes grown in
southeastern California and for grapes imported into the United States.
Any comments received will be considered prior to finalization of this
rule.
In accordance with section 8e of the Act, the United States Trade
Representative has concurred with the issuance 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 relaxes the handling requirements
currently in effect for grapes grown in a designated area of
southeastern California and for grapes imported into the United States
for the 2009 season; (2) California desert grape handlers are aware of
this action which was unanimously recommended by the committee at a
public meeting; (3) the shipping season begins on April 10, 2009, and
handlers and importers need sufficient time to prepare for the upcoming
season; and (4) this rule provides a 60-day comment period and any
comments received will be considered prior to finalization of this
rule.
List of Subjects
7 CFR Part 925
Grapes, Marketing agreements and orders, Reporting and
recordkeeping requirements.
7 CFR Part 944
Avocados, Food grades and standards, Grapefruit, Grapes, Imports,
Kiwifruit, Limes, Olives, Oranges.
0
For the reasons set forth in the preamble, 7 CFR parts 925 and 944 are
amended as follows:
0
1. The authority citation for 7 CFR parts 925 and 944 continues to read
as follows:
Authority: 7 U.S.C. 601-674.
PART 925--GRAPES GROWN IN A DESIGNATED AREA OF SOUTHEASTERN
CALIFORNIA
Sec. 925.304 [Amended]
0
2. Section 925.304 is amended by revising paragraph (a) introductory
text to read as follows:
Sec. 925.304 California Desert Grape Regulation 6.
* * * * *
(a) Grade, size, and maturity. Except as provided in paragraphs
(a)(1) and (a)(2) of this section, such grapes shall meet the minimum
grade and size requirements of U.S. No. 1 Table, as set forth in the
United States Standards for Grades of Table Grapes (European or
Vinifera Type 7 CFR 51.880 through 51.914), or shall meet all the
requirements of U.S. No. 1 Institutional with the exception of the
tolerance percentage for bunch size. Such tolerance shall be 33 percent
instead of 4 percent as is required to meet U.S. No. 1 Institutional
grade. Grapes meeting these quality requirements may be marked ``DGAC
No. 1 Institutional'' but shall not be marked ``Institutional Pack.''
In addition, during the period April 10 through July 10, 2009, U.S. No.
1 Table grade grapes may be packed in individual consumer packages
containing 2 pounds net weight or less: Provided, That not more than 20
percent of the weight of such containers may consist of single clusters
weighing less than one-quarter pound, but with at least five berries
each.
* * * * *
PART 944--FRUITS; IMPORT REQUIREMENTS
0
3. In Sec. 944.503, paragraph (a)(1) introductory text is revised to
read as follows:
Sec. 944.503 Table Grape Import Regulation 4.
(a)(1) Pursuant to section 8e of the Act and Part 944--Fruits,
Import Regulations, the importation into the United States of any
variety of Vinifera species table grapes, except Emperor, Calmeria,
Almeria, and Ribier varieties, is prohibited unless such grapes meet
the minimum grade and size requirements specified in 7 CFR 51.884 for
U.S. No. 1 Table, as set forth in the United States Standards for
Grades of Table Grapes (European or Vinifera Type, 7 CFR 51.880 through
51.914), or shall meet all the requirements of U.S. No. 1 Institutional
with the exception of the tolerance for bunch size. Such tolerance
shall be 33 percent instead of 4 percent as is required to meet U.S.
No. 1 Institutional grade. Grapes meeting these quality requirements
shall not be marked ``Institutional Pack'', but may be marked ``DGAC
No. 1 Institutional.'' In addition, during the period April 10 through
July 10, 2009, U.S. No. 1 Table grade grapes may be packed in
individual consumer packages containing 2 pounds net weight or less:
Provided, That not more than 20 percent of the weight of such
containers may consist of single clusters weighing less than one-
quarter pound, but with at least five berries each.
* * * * *
Dated: March 12, 2009.
David R. Shipman,
Acting Administrator.
[FR Doc. E9-5731 Filed 3-16-09; 8:45 am]
BILLING CODE 3410-02-P