```

[Federal Register: April 5, 2010 (Volume 75, Number 64)]
[Rules and Regulations]               
[Page 17031-17034]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ap10-2]                         

-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 925 and 944

[Doc. No. AMS-FV-09-0085; FV10-925-1 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 rule with request for comments.

-----------------------------------------------------------------------

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 2010 and subsequent seasons for grapes packed in consumer packages 
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 
of at least five berries each. This action continues the relaxation 
that was prescribed on a one-year test basis in 2009 and provides 
California desert grape handlers and importers the flexibility to 
respond to an ongoing marketing opportunity to meet consumer needs.

DATES: Effective April 8, 2010; comments received by May 5, 2010 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 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 made 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: Jerry Simmons, 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: 
Jerry.Simmons@ams.usda.gov or Kurt.Kimmel@ams.usda.gov.
    Small businesses may request information on complying with this 
regulation by contacting Antoinette Carter, 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: 
Antoinette.Carter@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.

[[Page 17032]]

    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.
    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 one-quarter pound minimum bunch size 
requirement for the 2010 and subsequent seasons 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 continues the relaxation that was prescribed 
on a test basis for the 2009 regulatory period and provides California 
desert grape handlers and importers the flexibility to respond to an 
ongoing marketing opportunity to meet consumer needs. The committee met 
on November 12, 2009, 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 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 and size 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). In addition, Sec.  
925.304(a) prescribes relaxed handling requirements for the 2009 
regulatory period for U.S. No. 1 Table grapes packed in individual 
consumer packages containing 2 pounds net weight or less. The 
regulatory period runs from April 10 through July 10 each year.
    Prior to the 2009 regulatory period, U.S. No. 1 Table grade grapes 
were required to meet a minimum bunch size requirement of one-quarter 
pound. Since 2009, there has been interest in packing grapes in 
individual consumer packages known as clamshells. These containers have 
been most commonly used to pack strawberries in the past but are also 
being used for other fruit. They are made of a clear, rigid plastic and 
vary in size, typically holding two pounds of fruit or less. Some 
retailers prefer these containers because they are a consistent 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.
    It is difficult to fill these small containers to the desired 
weight using complete bunches weighing one-quarter pound or more. 
Smaller portions of bunches are needed to combine with the larger 
bunches to fill the containers to the desired weight.
    In response to this new market demand, the minimum bunch size 
requirements were relaxed for the regulatory period April 10 through 
July 10, 2009, on a test basis to allow California grape handlers to 
pack consumer packages containing 2 pounds net weight or less with 
portions of bunches weighing less than one-quarter pound. The final 
rule was published in the Federal Register on August 3, 2009 (74 FR 
38323). These smaller portions were needed to fill the containers to 
the weights they were designed to hold.
    Based on the positive results of the 2009 relaxation and an ongoing 
marketing opportunity, the committee unanimously recommended continuing 
relaxation of the one-quarter pound minimum bunch size requirement for 
the 2010 and subsequent seasons for U.S. No. 1 Table grade grapes 
packed in consumer packages containing 2 pounds net weight or less. 
Under this 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 will 
continue to provide handlers with the flexibility to respond to an 
ongoing marketing opportunity 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). The change in the California Desert Grape 
Regulation 6 minimum bunch size requirement for the 2010 and subsequent 
seasons requires a corresponding change to the minimum bunch size 
requirement for imported table grapes. Similar to the domestic 
industry, this action will continue to allow importers the flexibility 
to respond to an ongoing marketing opportunity 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 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.
    There are about 15 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 about 100 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

[[Page 17033]]

and small agricultural producers are defined as those whose annual 
receipts are less than $750,000. Four of the 15 handlers subject to 
regulation have annual grape sales of more than $7,000,000. Based on 
data from the National Agricultural Statistics Service and the 
committee, the average crop value for 2009 was about $55,000,000. 
Dividing this figure by the number of producers (50) yields an average 
annual producer revenue estimate of $1,100,000, 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. It is estimated that the average importer 
receives $3.2 million in revenue from the sale of grapes. Also, 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 2010 and subsequent seasons 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 consumer package weighing two pounds or 
less 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.
    There is general agreement in the industry for the need to continue 
to relax the minimum bunch size requirement for grapes packed in these 
consumer packages to allow for more packaging options. No additional 
alternatives were considered because the 2009 one-year test relaxation 
produced the desired results with no identified problems. The committee 
unanimously agreed that the relaxation for grapes packed in consumer 
packages containing 2 pounds net weight or less was appropriate to 
prescribe for the 2010 and subsequent seasons.
    Regarding the impact of this rule on affected entities, this rule 
provides both California desert grape handlers and importers the 
flexibility to continue to respond to an ongoing marketing opportunity 
to meet consumer needs. This marketing opportunity initially existed in 
the 2009 season, and the minimum bunch size regulations were relaxed 
accordingly during that time on a test basis. As in 2009, 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 packages, which would have a positive impact on 
producers, handlers, and importers.
    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.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.
    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 12, 2009 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, Costa Rica, Egypt, Italy, Mexico, Morocco, 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 
Antoinette Carter at the previously mentioned address in the FOR 
FURTHER INFORMATION CONTACT section.
    This rule invites comments on the continued relaxation of 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 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 continues the 2009 season test 
relaxation of the handling requirements for grapes grown in a 
designated area of southeastern California and for grapes imported into 
the United States for the 2010 and subsequent seasons; (2) California 
desert grape handlers are aware of this action, which was unanimously 
recommended by the committee at a public meeting; (3) the regulatory 
period begins on April 10, 2010; and (4) this rule provides a 30-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. Amend Sec.  925.304 by removing ``during the period April 10 through 
July 10, 2009,'' from the fourth sentence in paragraph (a).

[[Page 17034]]

PART 944--FRUITS; IMPORT REQUIREMENTS

0
3. Amend Sec.  944.503 by removing ``during the period April 10 through 
July 10, 2009,'' from the fourth sentence in paragraph (a)(1).

    Dated: March 26, 2010.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2010-7563 Filed 4-2-10; 8:45 am]
BILLING CODE P
```