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contains regulatory documents having general

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are keyed to and codified in the Code of

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Rules and Regulations Federal Register

11275 

Vol. 74, No. 50 

Tuesday, March 17, 2009 

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. 

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 onequarter 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 


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11276 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Rules and Regulations 

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 § 925.52. Section 925.55 specifies that 

when grapes are regulated pursuant to 

§ 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 onequarter 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 § 925.304(a) of the 

rules and regulations of the California 

desert grape order and § 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 onequarter pound, but with at least five 

berries each. Authority for the change to 

the California desert grape order is 

provided in §§ 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 


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Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Rules and Regulations 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.SChile 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=MarketingOrders

SmallBusinessGuide. 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. 

■ For the reasons set forth in the 

preamble, 7 CFR parts 925 and 944 are 

amended as follows: 

■ 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 

§ 925.304 [Amended] 

■ 2. Section 925.304 is amended by 

revising paragraph (a) introductory text 

to read as follows: 

§ 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 

■ 3. In § 944.503, paragraph (a)(1) 

introductory text is revised to read as 

follows: 

§ 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 


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