[Federal Register Volume 74, Number 50 (Tuesday, March 17, 2009)]
[Rules and Regulations]
[Pages 11275-11277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5731]



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

[[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: 
<a href="/cdn-cgi/l/email-protection#266c4348484f40435408614754454f4766474b55085355424708414950"><span class="__cf_email__" data-cfemail="054f606b6b6c6360772b426477666c64456468762b707661642b626a73">[email protected]</span></a> or <a href="/cdn-cgi/l/email-protection#6c27191e18422705010109002c0d011f42191f080d420b031a"><span class="__cf_email__" data-cfemail="19526c6b6d37527074747c755978746a376c6a7d78377e766f">[email protected]</span></a>.
    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: <a href="/cdn-cgi/l/email-protection#bcf6ddc592fbc9d9ceded9cefcddd1cf92c9cfd8dd92dbd3ca"><span class="__cf_email__" data-cfemail="6a200b13442d1f0f18080f182a0b0719441f190e0b440d051c">[email protected]</span></a>.

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=MarketingOrdersSmallBusinessGuide. 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


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