[Federal Register Volume 60, Number 125 (Thursday, June 29, 1995)]
[Rules and Regulations]
[Pages 33679-33681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15949]



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DEPARTMENT OF AGRICULTURE
7 CFR Parts 926 and 944

[Docket No. FV95-926-1FR]


Termination of Marketing Order 926 Covering Tokay Grapes Grown in 
San Joaquin County, California, and Tokay Grape Import Regulation

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Termination order.

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SUMMARY: This action terminates the Federal marketing order for Tokay 
grapes grown in San Joaquin County, California, and the rules and 
regulations issued thereunder. For Tokay grapes imported into the 
United States, this order terminates the applicable Tokay grape import 
regulation under section 8e of the amended Agricultural Marketing 
Agreement Act of 1937 (Act). The Secretary of Agriculture has 
determined that the marketing order no longer tends to effectuate the 
declared policy of the Act because continuance of the program is no 
longer supported by growers.

EFFECTIVE DATE: July 31, 1995.

FOR FURTHER INFORMATION CONTACT: Kenneth G. Johnson, Marketing Order 

[[Page 33680]]
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O. 
Box 96456, room 2525-S, Washington, DC 20090-6456, telephone (202) 720-
5127, or Rose Aguayo, California Marketing Field Office, 2202 Monterey 
Street, suite 102B, Fresno, California 93721, telephone (209) 487-5901.

SUPPLEMENTARY INFORMATION: This termination order is governed by the 
provisions of 608c(16)(A) of the Agricultural Marketing Agreement Act 
of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the 
``Act.''
    This termination order is issued under Marketing Order No. 926 (7 
CFR part 926), as amended, regulating the handling of Tokay grapes 
grown in San Joaquin County, California, hereinafter referred to as the 
``order.''
    This termination order is also issued under section 8e of the Act, 
which requires the Secretary of Agriculture to issue grade, size, 
quality, or maturity requirements for certain listed commodities 
imported into the United States that are the same as, or comparable to, 
those imposed upon the domestic commodities under Federal marketing 
orders.
    The Department of Agriculture (Department) is issuing this 
termination order in conformance with Executive Order 12866.
    This termination order has been reviewed under Executive Order 
12778, Civil Justice Reform. This order is not intended to have 
retroactive effect. This termination order will not preempt any State 
or local laws, regulations, or policies, unless they present an 
irreconcilable conflict with this order.
    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 the Secretary 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 the Secretary 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 a principal 
place of business, has jurisdiction in equity to review the Secretary's 
ruling on the petition, provided a bill in equity is filed not later 
than 20 days after 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.
    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Administrator of the Agricultural Marketing Service 
(AMS) has considered the economic impact of this action on small 
entities.
    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 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. Import regulations issued under 
the Act are based on those established under Federal marketing orders.
    In recent seasons, 15 California Tokay grape growers within the 
production area and 3 handlers have been subject to regulation under 
the marketing order. There are no known importers of Tokay grapes. 
Small agricultural producers have been defined by the Small Business 
Administration (13 CFR 121.601) as those having annual receipts of less 
than $500,000, and small agricultural service firms are defined as 
those whose annual receipts are less than $5,000,000. The majority of 
the Tokay grape handlers and growers may be classified as small 
entities.
    Marketing Order No. 926 has been in effect since August 20, 1940. 
The marketing order provides for the establishment of grade, size, 
quality, maturity, volume, pack and container requirements. In 
addition, the order authorizes marketing research and development 
projects.
    This order terminates the provisions of the marketing order 
regulating the handling of Tokay grapes grown in San Joaquin County, 
California, and the rules and regulations issued thereunder.
    In recent years, it has been difficult for Tokay grape handlers to 
find a market for their inventory. Lack of demand and increasing 
production costs have left growers with few outlets and little 
incentive to produce Tokay grapes. Acreage has declined due to the lack 
of a market for fresh shipments of Tokay grapes thereby resulting in 
vines continually being pulled or re-grafted with other varieties. 
Wineries are less inclined to use Tokay grapes due to competition from 
other varietal grapes. The number of handlers and growers has also 
declined.
    The Industry Committee (committee), which is responsible for local 
administration of the order, held a public meeting on October 21, 1994. 
Growers and handlers were informed of the time, place and date of the 
meeting. At the meeting, attendees signed a petition requesting that 
the marketing order be terminated. The industry recommended that the 
marketing order be terminated at the end of the 1994-95 fiscal period 
which is March 31, 1995. The industry recommended terminating the 
marketing order because only three handlers were shipping to the fresh 
market. The decline in the number of handlers, increased difficulty in 
finding outlets for their inventory and increased production costs, led 
to the request.
    All of the 15 growers who signed the petition at the October 21, 
1994, public meeting, favored termination. This was 100 percent of the 
growers who produced for market in 1994. As all known growers in the 
industry participated in the public meeting, there was 100 percent 
representation.
    Given the high level of grower participation at the public meeting, 
as well as the demonstrated lack of grower support for the order, these 
results are a reliable indicator of industry sentiment, and clearly 
demonstrate that growers do not favor continuation of the order.
    Section 926.78(b) of the order provides that the Secretary may 
terminate or suspend the operation of any or all of the provisions of 
the order whenever he/she finds that any such provision obstructs or 
does not tend to effectuate the declared policy of the Act.
    Therefore, based on the foregoing considerations, pursuant to 
section 608c(16)(A)(i) of the Act, and Sec. 926.78(b) of the marketing 
order, it is found that Marketing Order No. 926, covering Tokay grapes 
grown in San Joaquin County, California, no longer tends to effectuate 
the declared policy of the Act and is hereby terminated.
    Section 8c(16)(A) of the Act requires the Secretary to notify 
Congress 60 days in advance of the termination of a Federal marketing 
order. Congress was so notified on February 24, 1995.
    This rule also terminates all regulations in effect under the order 
pertaining to Tokay grapes grown in San Joaquin County, California 
which are shipped to domestic and foreign markets. These regulations 
cover grade, size, quality, maturity, volume, pack and container 
requirements.
    Based on the unanimous recommendation of the industry, the 
Secretary has determined that all members of the Industry Committee 
will serve as trustees in order to oversee the administrative affairs 
of the order.
    The trustees will be responsible for completing the order's 
unfinished 

[[Page 33681]]
business, including ensuring termination of all outstanding agreements 
and contracts, and the payment of all obligations. The trustees will be 
responsible for safeguarding program assets, holding committee records, 
and arranging for a financial audit to be conducted. All such actions 
by the trustees are subject to the approval of the Secretary. Those 
designated as trustees are John Graffigna, Duane M. Jungblut, Jeryl R. 
Fry, Jr., Burgess R. Mettler, Bruce A. Mettler, James R. Lauchland, and 
George H. Mettler. The trustees shall continue in their capacity until 
discharged by the Secretary.
    The remainder of the reserves, after immediate expenses are paid, 
will be held by the trustees to be used to cover unforeseen, 
outstanding expenses obligated by the trustees.
    In accordance with section 8e of the Act (7 U.S.C. 608e), imported 
Tokay grapes are subject to the same minimum requirements as 
domestically produced Tokay grapes. With no effective order for 
domestic Tokay grapes, there is no basis upon which to continue the 
import regulation as provided for in sections 944.503(a)(3), 
944.503(e), (7 CFR 944.503) and 944.605 (7 CFR 944.605). This order 
revises provisions of Sec. 944.503 Table Grape Import Regulation 4, 
paragraph(a)(3), by deleting the reference to Tokay grape import 
requirements for the period April 20 through August 11 of each year. 
This order also deletes provisions of Sec. 944.503 paragraph(e) which 
provide import requirements for Tokay grapes imported into the United 
States during the period, April 20 through August 11. This order 
redesignates 944.503(f) as 944.503(e) and terminates section 944.605 in 
its entirety.
    This order also revises Sec. 944.350 Safeguard procedures for 
avocados, grapefruit, kiwifruit, limes, olives, oranges, table grapes, 
and Tokay grapes exempt from grade, size, quality, and maturity 
requirements. Specifically, Sec. 944.350(a)(1) and (2) are revised by 
deleting all references to Tokay grapes.
    In accordance with section 8e of the Act, the United States Trade 
Representative has concurred with the issuance of this termination 
order.
    Based on available information, the Administrator of the AMS has 
determined that this rule will not have a significant economic impact 
on a substantial number of small entities.
    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 additional preliminary notice, or to engage in further 
public procedure with respect to this action, because (1) this action 
relieves restrictions on handlers by terminating the provisions of part 
926 and applicable provisions of part 944; (2) only three handlers were 
shipping fruit to the fresh market in fiscal period 1994-1995, and (3) 
the industry recommended terminating the marketing order at a public 
meeting held on October 21, 1994.

List of Subjects

7 CFR Part 926

    Grapes, Marketing Agreements, 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 926 and 944 
are amended as follows:

PART 926--TOKAY GRAPES GROWN IN SAN JOAQUIN COUNTY, CALIFORNIA

    1. The authority citation for 7 CFR parts 926 and 944 continues to 
read as follows:

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

PART 926--[REMOVED]

    2. Accordingly, 7 CFR part 926 is removed.

PART 944--FRUITS; IMPORT REGULATIONS

    3. Sec. 944.503 is amended by revising paragraph (a) (3), removing 
(e) and redesignating paragraph(f) as paragraph (e) to read as follows:


Sec. 944.503  Table Grape Import Regulation 4.

    (a) * * *
    (3) All regulated varieties of grapes offered for importation shall 
be subject to the grape import requirements contained in this section 
effective April 20 through August 15.
* * * * *


Sec. 944.605  [Removed]

    4. Sec. 944.605 is removed.


Sec. 944.350  [Amended]

    5. Sec. 944.350 is amended by removing the words ``Tokay grapes'' 
wherever they appear.

    Dated: June 22, 1995.
David R. Shipman,
Acting Deputy Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 95-15949 Filed 6-28-95; 8:45 am]
BILLING CODE 3410-02-P