[Federal Register Volume 68, Number 77 (Tuesday, April 22, 2003)]
[Rules and Regulations]
[Pages 19708-19711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-9843]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 925

[Docket No. FV03-925-2 IFR]


Grapes Grown in a Designated Area of Southeastern California; 
Establishment of Safeguards and Procedures for Suspension of Packing 
Holidays

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule establishes safeguards and procedures for the 
suspension of packing holidays prescribed under the California grape 
marketing order (order). The order regulates the handling of grapes 
grown in a designated area of Southeastern California and is 
administered locally by the California Desert Grape Administrative 
Committee (Committee). The procedures and safeguards will be used by 
the Committee when considering and making decisions on packing holiday 
suspension requests. Additionally, this rule clarifies existing 
maturity requirements for Flame Seedless variety grapes and corrects 
errors in the regulatory text regarding references to the California 
Code of Regulations (CCR).

DATES: Effective date: April 23, 2003; Comment period: comments 
received by June 23, 2003, 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 E-mail: [email protected]. 
All comments should reference the docket 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.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Rose Aguayo, California Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA, 2202 Monterey Street, suite 102B, 
Fresno, California 93721; telephone: (559) 487-5901, Fax: (559) 487-
5906; or George Kelhart, Technical Advisor, 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.
    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: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order 
No. 925 (7 CFR part 925), regulating the handling of grapes grown in 
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.''
    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. 
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

[[Page 19709]]

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.
    This rule establishes safeguards and procedures for suspension of 
packing holidays prescribed under the California grape order. The 
explicitly stated procedures and safeguards will be used for all 
requests received to suspend packing holidays. Additionally, this rule 
clarifies existing maturity requirements for Flame Seedless variety 
grapes and corrects errors in the regulatory text regarding references 
to the CCR.

Establishment of Safeguards and Procedures for Suspension of Packing 
Holidays

    Section 925.52(a)(5) of the grape order provides authority to 
establish holidays by prohibiting the packing of all varieties of 
grapes during a specified period or periods.
    Section 925.304(e) of the order's rules and regulations provides 
that the Committee may suspend the prohibition against packing or 
repacking grapes on any Saturday, Sunday, or on the Memorial Day or 
Independence Day holidays of each year, to permit the handling of 
grapes provided such handling complies with procedures and safeguards 
specified by the Committee.
    A decision by an Administrative Law Judge on November 7, 2002, 
invalidated the authority for the Committee to suspend or modify 
packing holidays, because there were no safeguards or procedures 
established for the Committee to follow when it makes its decisions on 
whether to suspend packing holidays.
    As a result, the Committee met on December 12, 2002, and 
recommended specifying the following safeguards and procedures for the 
suspension of packing holidays to Sec.  925.304(e) of the order's rules 
and regulations: (1) All requests for suspension of a packing holiday 
shall be in writing, shall state the reasons the suspension is being 
requested, and shall be submitted to the Committee manager by noon on 
Wednesday or at least 3 days prior to the requested suspension date; 
(2) upon receipt of a written request, the Committee manager shall 
promptly give reasonable notice to producers and handlers and to USDA 
that an assembled Committee meeting will be held to discuss the 
request(s). A USDA representative shall attend the Committee meeting 
via speakerphone or in person, and all votes of the Committee members 
shall be cast in person; (3) the Committee members shall consider 
marketing conditions (i.e., supplies of competing commodities including 
quantities in inventory, the expected demand conditions for grapes in 
different markets, and any pertinent documents which provide data on 
market conditions), weather conditions, labor shortages, the size of 
the crop remaining to be marketed, and other pertinent factors in 
reaching a decision on whether or not to suspend packing holidays; (4) 
once a vote is taken, any documents utilized during the meeting will be 
forwarded immediately to the USDA representative and a summary of the 
Committee's action and reasons for recommending approval or disapproval 
will be prepared and also forwarded by the Committee; and (5) the USDA 
representative shall notify the Committee manager of approval or 
disapproval of the request prior to commencement of the suspended 
packing holiday and the Committee manager shall notify handlers and 
producers of USDA's decision.
    In previous seasons, the Committee used informal safeguards and 
procedures when processing and considering requests to suspend packing 
holidays. The established safeguards and procedures are intended to 
address the concerns expressed in the administrative action. The 
specific safeguards and procedures will be added to Sec.  925.304(e) of 
the order's administrative rules and regulations. The Committee vote 
was 8 in favor, 0 opposed, and 1 abstained. These revisions do not 
impact the grape import regulation.

Clarification/Removal of Section Numbers

    Section 925.52(a)(2) of the grape order provides authority to limit 
the handling of any grade, size, quality, maturity, or pack of grapes 
differently for different varieties, or any combination of the 
foregoing during any period or periods.
    Section 925.304(a)(2) of the grape order's administrative rules and 
regulations provides that grapes of the Flame Seedless variety shall be 
considered mature if the juice contains not less than 15 percent 
soluble solids and the soluble solids are equal to or in excess of 20 
parts to every part acid contained in the juice in accordance with 
applicable sampling and testing procedures specified in sections 
1436.3, 1436.5, 1436.6, 1436.7, 1436.12, and 1436.17 of the CCR. These 
provisions do not, but should, specify that this variety of grapes also 
is considered mature under the grape marketing order if the juice meets 
or exceeds 16.5 percent soluble solids. To correct this oversight, this 
rule adds language to Sec.  925.304(a)(2) indicating that Flame 
Seedless variety grapes shall be considered mature if the juice meets 
or exceeds 16.5 percent soluble solids.
    Section 925.304(b)(4) of the grape order's rules and regulations 
requires containers of grapes to be plainly marked with the lot stamp 
number corresponding to the lot inspection conducted by an authorized 
inspector, and specifies that such requirement shall not apply to 
containers in the center tier of a 3 box by 3 box pallet configuration, 
as provided in Sec. Sec.  1460.30 and 1359 of the CCR. The references 
to Sec. Sec.  1460.30 and 1359 were incorrectly added to Sec.  
925.304(b)(4) on August 23, 2002 (67 FR 54567). This rule removes these 
references from Sec.  925.304(b)(4) and adds references to Sec. Sec.  
1436.30 and 1359 of the CCR to Sec.  925.304(b)(3), as should have been 
done last August.
    Section 925.304(f) states that certain container and pack 
requirements cited in the grape order are specified in the CCR and are 
incorporated by reference and that a notice of any change in these 
materials will be published in the Federal Register.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), 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. Thus, both statutes have small 
entity orientation and compatibility.
    There are approximately 20 handlers of California grapes who are 
subject to regulation under the order and about 50 producers of grapes 
in the production area. Small agricultural service firms are defined by 
the Small Business Administration (SBA)(13 CFR 121.201) 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 
$750,000.

[[Page 19710]]

Eight of the 20 handlers subject to regulation have annual grape sales 
of $5,000,000. In addition, 10 of the 50 producers have annual sales of 
at least $750,000. Therefore, a majority of handlers and producers are 
classified as small entities.
    This rule establishes safeguards and procedures for suspension of 
packing holidays prescribed under the California grape order. The 
specification of procedures and safeguards for suspending packing 
holidays are expected to facilitate the Committee's discussions and 
decision-making on such requests received from handlers. Additionally, 
this rule clarifies existing maturity requirements for Flame Seedless 
variety grapes and corrects errors in regulatory text regarding 
references to the CCR.

Establishment of Safeguards and Procedures for Suspension of Packing 
Holidays

    Section 925.304(e) of the order's rules and regulations provides 
that the Committee may suspend the prohibition against packing or 
repacking grapes on any Saturday, or Sunday, or on the Memorial Day or 
Independence Day holidays of each year, to permit the handling of 
grapes provided such handling complies with procedures and safeguards 
specified by the Committee.
    A decision issued by an Administrative Law Judge on November 7, 
2002, invalidated the authority for the Committee to suspend or modify 
packing holidays, because there were no safeguards or procedures 
established for the Committee to follow when it makes its decisions on 
whether to suspend packing holidays.
    As a result, the Committee met on December 12, 2002, and 
recommended specifying the following safeguards and procedures for 
suspension of packing holidays to Sec.  925.304(e) of the order's rules 
and regulations to the handling of such requests: (1) All requests for 
suspension of a packing holiday shall be in writing, shall state the 
reasons the suspension is being requested, and shall be submitted to 
the Committee manager by noon on Wednesday or at least 3 days prior to 
the requested suspension date; (2) upon receipt of a written request, 
the Committee manager shall promptly give reasonable notice to 
producers and handlers and to USDA that an assembled Committee meeting 
will be held to discuss the request(s). A USDA representative shall 
attend via speakerphone or in person, and all votes of the Committee 
members on whether or not to approve the request shall be cast in 
person; (3) the Committee members shall consider marketing conditions 
(i.e., supplies of competing commodities including quantities in 
inventory, the expected demand conditions for grapes in different 
markets, and any pertinent documents which provide data on market 
conditions), weather conditions, labor shortages, the size of the crop 
remaining to be marketed, and other pertinent factors in reaching a 
decision to suspend or not suspend packing holidays; (4) once a vote is 
taken, any documents utilized during the meeting will be forwarded 
immediately to the USDA representative and a summary of the Committee's 
action and reasons for recommending approval or disapproval will be 
prepared and also forwarded by the Committee; and (5) the USDA 
representative shall notify the Committee manager of approval or 
disapproval of the requested prior to commencement of the suspended 
packing holiday and the Committee manager shall notify handlers and 
producers of USDA's decision.
    In previous seasons, the Committee used informal safeguards and 
procedures when processing and considering requests to suspend packing 
holidays. The established safeguards and procedures are intended to 
address the concerns expressed in the administrative action. The 
specific safeguards and procedures will be specified in Sec.  
925.304(e) of the order's administrative rules and regulations.
    The Committee discussed alternatives to this change, including not 
making any changes, but determined that safeguards and procedures were 
needed to address the concerns expressed in the administrative action 
and to facilitate the handling of packing holiday suspension requests. 
The Committee vote was 8 in favor, 0 opposed, and 1 abstained. Imported 
grapes will not be affected by this action.

Clarification/Removal of Section Numbers

    Section 925.52(a)(2) of the grape order provides authority to limit 
the handling of any grade, size, quality, maturity, or pack of grapes 
differently for different varieties, or any combination of the 
foregoing during any period or periods.
    Section 925.304(a)(2) of the grape order's administrative rules and 
regulations provides that grapes of the Flame Seedless variety shall be 
considered mature if the juice contains not less than 15 percent 
soluble solids and the soluble solids are equal to or in excess of 20 
parts to every part acid contained in the juice in accordance with 
applicable sampling and testing procedures specified in Sec. Sec.  
1436.3, 1436.5, 1436.6, 1436.7, 1436.12, and 1436.17 of the title 3: 
California Code of Regulations (CCR). These provisions do not, but 
should, specify that this variety of grapes also is considered mature 
under the grape marketing order if the juice meets or exceeds 16.5 
percent soluble solids. To correct this oversight, this rule adds 
language to Sec.  925.304(a)(2) indicating that Flame Seedless variety 
grapes shall be considered mature if the juice meets or exceeds 16.5 
percent soluble solids.
    Section 925.304(b)(4) of the grape order's rules and regulations 
requires containers of grapes to be plainly marked with the lot stamp 
number corresponding to the lot inspection conducted by an authorized 
inspector, and specifies that such requirement shall not apply to 
containers in the center tier of a 3 box by 3 box pallet configuration, 
as provided in Sec. Sec.  1460.30 and 1359 of the CCR. The references 
to Sec. Sec.  1460.30 and 1359 were incorrectly added to Sec.  
925.304(b)(4) on August 23, 2002 (67 FR 54567). This rule removes these 
references from Sec.  925.304(b)(4) and adds references to Sec. Sec.  
1436.30 and 1359 of the CCR to Sec.  925.304(b)(3), as should have been 
done last August.
    Section 925.304(f) states that certain container and pack 
requirements cited in the grape order are specified in the CCR and are 
incorporated by reference and that a notice of any change in these 
materials will be published in the Federal Register.
    This rule is in the interest of handlers, producers and consumers. 
These revisions do not impact the grape import regulation.
    The information collection requirements for the safeguards and 
procedures for the suspension of packing holidays have been previously 
approved by the Office of Management and Budget (OMB) under OMB No. 
0581-0189. 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 meetings were widely publicized throughout 
the grape industry and all interested persons were invited to attend 
the meetings and participate in the Committee's deliberations. Like all 
Committee meetings, the November 14, 2002, and the December 12, 2002, 
meetings were public meetings and all entities, both large and small, 
were able to express their views on these issues.

[[Page 19711]]

    Finally, interested persons are invited to submit information on 
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/fv/moab.html. 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 rules invites comments on the addition of safeguards and 
procedures for suspensions of packing holidays, and clarification/
removal of section numbers currently prescribed under the California 
grape order. Any comments received will be considered prior to 
finalization 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 explicitly states safeguards and procedures to 
facilitate Committee discussions on packing holiday suspension 
requests; (2) the Committee unanimously recommended the safeguards and 
procedures at a public meeting and interested parties had an 
opportunity to provide input; (3) California grape shipments begin 
approximately April 20, 2003, and this rule should be in effect as soon 
as possible; and (4) this rule provides for a 60-day comment period and 
any comments received will be considered prior to finalization of this 
rule.

List of Subjects in 7 CFR Part 925

    Grapes, Marketing agreements and orders, Reporting and 
recordkeeping requirements.


0
For the reasons set forth in the preamble, 7 CFR part 925 is amended as 
follows:

PART 925--GRAPES GROWN IN A DESIGNATED AREA OF SOUTHEASTERN 
CALIFORNIA

0
1. The authority citation for 7 CFR part 925 continues to read as 
follows:

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


0
2. In Sec.  925.304, paragraphs (a)(2), (b)(3), (b)(4), and (e) are 
revised to read as follows:


Sec.  925.304  California Desert Grape Regulation 6.

* * * * *
    (a) * * *
    (2) Grapes of the Flame Seedless variety shall meet the minimum 
berry size requirement of ten-sixteenths of an inch and shall be 
considered mature if the juice meets or exceeds 16.5 percent soluble 
solids, or contains not less than 15 percent soluble solids and the 
soluble solids are equal to or in excess of 20 parts to every part acid 
contained in juice in accordance with applicable sampling and testing 
procedures specified in sections 1436.3, 1436.5, 1436.6, 1436.7, 
1436.12, and 1436.17 of Article 25 of Title 3: California Code of 
Regulations (CCR).
    (b) * * *
    (3) Such containers of grapes shall be plainly marked with the 
minimum net weight of grapes contained therein (with numbers and 
letters at least one-fourth inch in height), the name of the variety of 
the grapes and the name of the shipper, as provided in Sec. Sec.  
1436.30 and 1359 of Title 3: California Code of Regulations.
    (4) Such containers of grapes shall be plainly marked with the lot 
stamp number corresponding to the lot inspection conducted by an 
authorized inspector, except that such requirement shall not apply to 
containers in the center tier of a lot palletized in a 3 box by 3 box 
pallet configuration: Provided, That pallets of reusable plastic 
containers shall have the lot stamp number stamped on two USDA-approved 
pallet tags, each affixed to opposite sides of the pallet of 
containers, in addition to other required information on the cards of 
the individual containers.
* * * * *
    (e) Suspension of packing holidays. Upon recommendation of the 
committee and approval of the Secretary, the prohibition against 
packing or repacking grapes on any Saturday, Sunday or on Memorial Day 
or Independence Day holidays of each year, may be modified or suspended 
to permit the handling of grapes provided such handling complies with 
procedures and safeguards specified by the committee as follows:
    (1) All requests for suspension of a packing holiday shall be in 
writing, shall state the reasons the suspension is being requested, and 
shall be submitted to the Committee manager by noon on Wednesday or at 
least 3 days prior to the requested suspension date;
    (2) Upon receipt of a written request, the Committee manager shall 
promptly give reasonable notice to producers and handlers and to the 
Secretary that an assembled Committee meeting will be held to discuss 
the request(s). The representative of the Secretary shall attend the 
meeting via speakerphone or in person, and all votes of the Committee 
members shall be cast in person;
    (3) The Committee members shall consider marketing conditions 
(i.e., supplies of competing commodities to include quantities in 
inventory, the expected demand conditions for grapes in different 
markets, and any pertinent documents which provide data on market 
conditions), weather conditions, labor shortages, the size of the crop 
remaining to be marketed, and other pertinent factors in reaching a 
decision to suspend packing holidays;
    (4) Once a vote is taken, any documents utilized during the meeting 
will be forwarded immediately to the Secretary's representative and a 
summary of the Committee's action and reasons for recommending approval 
or disapproval will be prepared and also forwarded by the committee; 
and
    (5) The Secretary's representative shall notify the Committee 
manager of approval or disapproval of the request prior to commencement 
of the suspended packing holiday and the Committee manager shall notify 
handlers and producers accordingly.
* * * * *

    Dated: April 16, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-9843 Filed 4-21-03; 8:45 am]
BILLING CODE 3410-02-P