[Federal Register Volume 63, Number 203 (Wednesday, October 21, 1998)]
[Proposed Rules]
[Pages 56096-56098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28238]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 63, No. 203 / Wednesday, October 21, 1998 / 
Proposed Rules  

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 51

[Docket Number FV-98-302]


Table Grapes (European or Vinifera Type); Grade Standards

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would revise the United States Standards 
for Grades of Table Grapes (European or Vinifera Type). These standards 
are issued under the Agricultural Marketing Act of 1946. The proposal 
would change the specific varietal reference throughout the standard 
from the present ``Superior Seedless'' to ``Sugraone.'' This revision 
will result in a benefit to the table grape industry by providing a 
uniform, apropos reference ensuring proper application of the grade 
standards.

DATES: Comments must be received by December 21, 1998.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments must be sent to the Standardization 
Section, Fresh Products Branch, Fruit and Vegetable Programs, 
Agricultural Marketing Service, U.S. Department of Agriculture, P.O. 
Box 96456, Room 2065 South Building, Washington, DC 20090-6456; Fax 
(202) 720-8871; E-mail Francis--J.OS[email protected]. Comments should 
make reference to the date and page number of this issue of the Federal 
Register and will be made available for public inspection in the above 
office during regular business hours.

FOR FURTHER INFORMATION CONTACT: Frank O'Sullivan, at the above address 
or call (202) 720-2185.

SUPPLEMENTARY INFORMATION: The Department of Agriculture (Department) 
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. There are no administrative procedures which must be exhausted 
prior to any judicial challenge to the provisions of the rule.
    AMS provides inspection and grading services and issues grade and 
quality standards for commodities such as grapes. The agency does not 
determine varietal names for such commodities. However, in 1995 the 
Agricultural Marketing Service (AMS) received a request from Sun World 
International, Inc. (Sunworld) to replace the varietal reference 
``Superior Seedless'' with ``Sugraone'' in the table grape standards in 
7 CFR Part 51.880--51.914. Sunworld, a grower/shipper with proprietary 
rights to the term ``Superior,'' advised AMS that ``Superior Seedless'' 
was a registered trademark name and not the varietal name for this 
table grape variety. ``Sugraone,'' according to Sunworld, was the 
correct varietal name. On March 15, 1995, therefore, when AMS issued a 
proposed rule (Federal Register, Vol. 60, No. 50, pp. 13889--14200) to 
change the bunch size requirements for the U.S. No. 1 Institutional 
grade, the agency also proposed to change the varietal name 
designation, assuming that this revision was purely a technical step to 
keep the standard consistent with current industry terminology.
    In proposing to change the wording to reflect ``Sugraone'' as a 
varietal name AMS intended to correct what the agency understood to be 
an out-of-date reference in the grade standards. However, after 
reviewing the comments pertaining to the proposed change and conducting 
further research on this question, AMS found that the varietal name 
issue was a complicated one involving a number of interests.
    Ten comments were received as a result of the March 19, 1996, 
proposal pertaining to this specific issue from growers, shippers, and/
or receivers. Five comments were in favor of the proposed change, five 
were against the change. The comments in favor of the change stated 
that it would promote consistency in regard to international trade of 
the table grape. The comments in opposition were generally of the view 
that the change would create confusion in regard to international 
trade. Based on the comments, AMS withdrew the proposal to change the 
name ``Superior Seedless'' to ``Sugraone'' when the final rule was 
published (Federal Register, Vol. 61, No. 54, pp. 11125-11127) on March 
19, 1996.
    Sunworld believes that because of the current widespread use of 
``Sugraone'' as the varietal name by the table grape industry, trade 
associations, and various government agencies, AMS should reconsider 
this decision. In support of its view, Sunworld argues: (1) As a result 
of a decision by the California Department of Food and Agriculture 
(CDFA)(No. L-9607066; August 9, 1996), the California table grape 
industry, which grows and ships the entire U.S. production of this 
variety, now uses the varietal reference ``Sugraone;'' (2) The proposal 
would eliminate any confusion in the use of the appropriate varietal 
name worldwide; (3) The proposed change furthers the objectives of the 
Uruguay Round Agreement by harmonizing the identity of the grape; and 
(4) By adopting the name ``Sugraone'' the U.S. would be consistent with 
terms used by most relevant international organizations. Additionally, 
Sunworld notes that as a result of the California State Administrative 
Hearing and resultant change to the California regulations, both buyers 
and sellers of table grapes now recognize ``Sugraone'' as the 
designated varietal name. For example, the Produce Marketing 
Association Electronic Identification Board has issued a Price Look-Up 
(PLU) number for the ``Sugraone'' variety of table grape.
    AMS therefore proposes that sections 51.882, 51.884, and 51.885 of 
the U.S. Standards for Grades of Table Grapes (European or Vinifera 
Type) be amended to change the varietal name to ``Sugraone.''
    The actual grade requirements for this variety will remain 
unchanged. Accordingly, the proposed revision will have no substantive 
effect in the application of grade standards to regulated domestic and 
imported grapes under the Agricultural Marketing Agreement Act of 1937 
(7 U.S.C. 601-674), specifically those at 7 CFR part 925, and 7 CFR 
part 944, or grapes regulated under the Export Grape and

[[Page 56097]]

Plum Act (7 U.S.C. 591-599). In addition, as the maturity requirements 
in the U.S. grade standards have been established by incorporating the 
applicable portions of the California Code of Regulations (Title 3, 
Subchapter 4, Fresh Fruits, Nuts and Vegetables, Article 25 Table 
Grapes and Raisins, February 28, 1992) and since California has revised 
these state regulations by replacing ``Superior Seedless'' with 
``Sugraone,'' Section 51.888 (a)(2) of the U.S. standard will also be 
revised to incorporate by reference the new California regulations (The 
California Code of Regulations, Title 3, Subchapter 4, Fresh Fruits, 
Nuts, and Vegetables, Article 25 Table Grapes and Raisins, November 16, 
1996).
    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA), AMS has considered the economic impact of this 
action on small entities and AMS has prepared this initial regulatory 
flexibility analysis. Interested parties are invited to submit 
information on the regulatory and informational impacts of this action 
on small businesses.
    The purpose of the RFA is to fit regulatory actions to the scale of 
businesses subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened.
    This rule will revise the U.S. Standards for Grades of Table Grapes 
(European or Vinifera Type) that were issued under the Agricultural 
Marketing Act of 1946. Although, the regulations under Marketing Order 
No. 925 (7 CFR Part 925), as issued under the Agricultural Marketing 
Agreement Act of 1937, reference the U.S. standards for Grades of Table 
Grapes (European or Vinifera Type), the revision being proposed in this 
action changes only the varietal name appearing in the standards and 
has no substantive effect on the standards themselves or the marketing 
order. Specifically the grade, size, and maturity requirements of this 
marketing order are those listed in the U.S. standards, 7 CFR 51.884, 
this rulemaking leaves them unchanged. Similarly, as Section 8e of the 
Agricultural Marketing Agreement Act of 1937 requires, whenever the 
Secretary of Agriculture issues grade, size, quality or maturity 
regulations under domestic marketing orders for certain specified 
commodities, the same or comparable regulations on imports of those 
commodities be issued, this proposed revision would apply to but have 
no practical effect upon imported grapes.
    The U.S. Standards for Grade of Table Grapes (European or Vinifera 
Type) are also referenced in Export Grape and Plum Act and the 
regulations issued thereunder (7 CFR Part 35). The Export Grape and 
Plum Act was created to promote the foreign trade of the U.S. in grapes 
and plums, to protect the reputation of American-grown grapes and plums 
in foreign markets, to prevent deception of misrepresentation as to the 
quality of such products moving in foreign commerce, and to provide for 
the commercial inspection of such products entering such commerce and 
for other purposes. The regulations issued under the act require that 
any such variety for export to destinations in various countries 
throughout the world must meet the minimum requirement of either the 
U.S. Fancy Table or U.S. No. 1 Table grape grade. As, the proposed 
revision leaves those requirements unchanged, this rulemaking will have 
no effect on the application of the regulations for table grapes for 
export.
    According to 1997 USDA National Agricultural Statistics Service 
reports, there are approximately 800 fresh market table grape growers/
shippers in the United States which produced 939,665 short tons of 
table grapes (all varieties). Of these 800 growers/handlers, 
approximately 650 are from California and produce approximately 80 
percent (750,000 short tons) of the crop. Approximately 10 growers from 
Arizona produced 2 percent (23,000 short tons) of the 1997 fresh market 
table grape crop. The bulk of the remaining 18 percent of production 
was produced by the remaining three of the top five States of table 
grape production: Georgia, Arkansas, and New York. In 1997, California 
produced approximately 26,572 short tons of the ``Sugraone'' variety, 
representing approximately 3 percent of the total U.S. table grape 
production and 100 percent of the U.S. production of this variety.
    Small agricultural service firms, which includes handlers, have 
been defined by the Small Business Administration (SBA) (13 CFR 
121.601) as those having annual receipts of less than $5,000,000, and 
small agricultural producers are defined as those having annual 
receipts of less than $500,000. The table grape industry is 
characterized by growers and handlers whose farming operations 
generally involve more than one type (such as fresh market utilization 
versus processed market utilization) and variety of table grape, and 
whose income from farming operations is not exclusively dependent on 
one table grape variety or even one commodity. Typical table grape 
growers and shippers produce multiple varieties of fresh market table 
grapes and juice grapes within a single year. Therefore, it is 
difficult to obtain an exact number of table grape growers and, more 
specifically, sugraone table grape growers and shippers, that can be 
classified as small entities based on the SBA's definition. However, 
the majority of the producers do have annual receipts greater than 
$500,000. Additionally, there are approximately 127 importers that 
receive an average of $2.8 million in grape revenue. (Table grapes 
received by these importers are subject to the requirements of Section 
8e of the Agricultural Marketing Agreement Act of 1937 referenced 
above.) Therefore, it is estimated that the majority of table grape 
growers do not fit the SBA's definition of a small entity while the 
majority of handlers/importers are small entities.
    This rule changes the reference of ``Superior Seedless'' to 
``Sugraone'' for the purpose of applying the appropriate grade standard 
requirements. The actual requirements for this variety will remain 
unchanged. Further, USDA does not determine or issue varietal names for 
table grapes. The changes being proposed are merely technical; the 
references are necessary to provide inspection personnel and other 
parties using the grade standards with clear, concise, up-to-date 
information. Specifically, in Sec. 51.882 U.S. Fancy, paragraph 
(i)(1)(ii), ``Superior Seedless'' will be changed to ``Sugraone.'' 
Accordingly, in Sec. 51.884 U.S. No. 1 Table, paragraph (i)(1)(i), 
which specifies berry size for the U.S. No. 1 Table grade, ``Superior 
Seedless'' will also be changed to ``Sugraone.'' A similar change will 
be made to Sec. 51.885 U.S. No. 1 Institutional, paragraph (h)(1)(i), 
which also references berry size for that particular grade.
    Finally, as the maturity requirements specified in the standards 
incorporate applicable portions of The California Code of Regulations, 
and the State has revised these regulations by replacing ``Superior 
Seedless'' with ``Sugraone,'' Section 51.888 (a)(2) of the U.S. grade 
standards will be revised to incorporate the new state regulations by 
reference to The California Code of Regulations, Title 3, Subchapter 4, 
Fresh Fruits, Nuts, and Vegetables, Article 25 Table Grapes and 
Raisins, November 16, 1996.
    The benefits of this rule are not expected to be disproportionately 
greater or smaller for small handlers or producers than for larger 
entities.
    Alternatives were considered for this action. One alternative would 
be to not issue a proposed rule. However, as the popularity of this 
variety increases, and as imports of this variety also increase,

[[Page 56098]]

the exposure and frequency of this varietal designation will also 
increase. Since the purpose of these standards is to expedite the 
marketing of agricultural commodities, not changing this reference 
could result in confusion in terms of the proper application of the 
U.S. grade standards.
    This proposed action will make the standards more consistent and 
uniform with marketing trends and commodity characteristics. This 
proposed action will not impose any additional reporting or 
recordkeeping requirements on either small or large grape producers, 
handlers, or importers. In addition, other than discussed above, the 
Department has not identified any Federal rules that duplicate, 
overlap, or conflict with this rule. Accordingly, AMS proposes to amend 
the United States Standards for Grades of Table Grapes (European or 
Vinifera Type) as follows.

List of Subjects in 7 CFR Part 51

    Agricultural commodities, Food grades and standards, Fruits, Nuts, 
Reporting and recordkeeping requirements, Trees, Vegetables.

    For reasons set forth in the preamble, 7 CFR Part 51 is proposed to 
be amended as follows:

PART 51--[AMENDED]

    1. The authority citation for part 51 continues to read as follows:

    Authority: 7 U.S.C. 1621-1627.


Sec. 51.882  [Amended]

    2. In part 51, Sec. 51.882 (i)(1)(ii) is amended by removing the 
words ``Superior Seedless'' and adding in their place the word 
``Sugraone.''


Sec. 51.884  [Amended]

    3. Section 51.884 (i)(1)(i) is amended by removing the words 
``Superior Seedless'' and adding in their place ``Sugraone.''


Sec. 51.885  [Amended]

    4. Section 51.885 (h)(1)(i) is amended by removing the words 
``Superior Seedless'' and adding in their place ``Sugraone.''


Sec. 51.888  [Amended]

    5. In Sec. 51.888, paragraph (a)(2), the words ``February 28, 
1992'' are revised to read ``November 16, 1996.''

    Dated: October 15, 1998.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 98-28238 Filed 10-20-98; 8:45 am]
BILLING CODE 3410-02-P