[Federal Register Volume 68, Number 135 (Tuesday, July 15, 2003)]
[Rules and Regulations]
[Pages 41683-41686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17798]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 925

[Docket No. FV03-925-2 FIR]


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: Final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim final rule which established 
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 continues in effect the clarification of existing maturity 
requirements for Flame Seedless variety grapes and the correction of 
errors in the regulatory text regarding references to the California 
Code of Regulations (CCR).

EFFECTIVE DATE: August 14, 2003.

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.''
    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 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 continues in effect established 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 continues in effect the clarification of 
existing maturity requirements for Flame Seedless variety grapes and 
the correction of 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 order's rules and regulations provides 
authority to establish holidays by prohibiting the packing of all 
varieties of grapes during a specified period or periods.
    Previously, Sec.  925.304(e) of the order's rules and regulations 
provided 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

[[Page 41684]]

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, 
including USDA approval, 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, and USDA approval, 
are intended to address the concerns expressed in the administrative 
action. The Committee vote was 8 in favor, 0 opposed, and 1 abstained. 
The specific safeguards and procedures were added to Sec.  925.304(e) 
of the order's administrative rules and regulations (68 FR 19708, April 
22, 2003). 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.
    Prior to issuance of the interim final rule, Sec.  925.304(a)(2) of 
the grape order's administrative rules and regulations provided 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 did not, but 
should have, specified 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, the interim 
final rule added 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.
    Prior to issuance of the interim final rule, Sec.  925.304(b)(4) of 
the grape order's rules and regulations required containers of grapes 
to be plainly marked with the lot stamp number corresponding to the lot 
inspection conducted by an authorized inspector, and specified 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 continues in effect the removal of these references 
from Sec.  925.304(b)(4) and continues the addition of 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.

Final 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 final 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. 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 continues in effect the establishment of 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 continues in effect the 
clarification of existing maturity requirements for Flame Seedless 
variety grapes and the correction of errors in regulatory text 
regarding references to the CCR.

Establishment of Safeguards and Procedures for Suspension of Packing 
Holidays

    Prior to issuance of the interim final rule, Sec.  925.304(e) of 
the order's rules and regulations provided 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

[[Page 41685]]

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, 
including USDA approval, 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, including USDA 
approval, are intended to address the concerns expressed in the 
administrative action. 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. The specific safeguards and procedures were 
added to Sec.  925.304(e) of the order's administrative rules and 
regulations (68 FR 19708, April 22, 2003). 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.
    Previously, Sec.  925.304(a)(2) of the grape order's administrative 
rules and regulations provided 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 
Title 3: California Code of Regulations (CCR). These provisions did 
not, but should have, specified 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, the 
interim final rule added 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.
    Prior to issuance of the interim final rule, Sec.  925.304(b)(4) of 
the grape order's rules and regulations required containers of grapes 
to be plainly marked with the lot stamp number corresponding to the lot 
inspection conducted by an authorized inspector, and specified 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 continues in effect the removal of these references 
from Sec.  925.304(b)(4) and continues the addition of 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, as noted in the initial regulatory flexibility 
analysis, 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 the Committee's deliberations. The 
interim final rule (68 FR 19708, April 22, 2003) stated that this issue 
was discussed at Committee meetings held on November 14, 2002, and 
December 12, 2002. As this issue was not discussed at the November 14, 
2002, meeting, that date has been deleted. Like all Committee meetings, 
the December 12, 2002, meeting was a public meeting and all entities, 
both large and small, were able to express their views on this issue.
    An interim final rule concerning this action was published in the 
Federal Register on April 22, 2003. Copies of the rule were mailed by 
the Committee's staff to all Committee members and grape handlers. In 
addition, the rule was made available through the Internet by the 
Office of the Federal Register and USDA. That rule provided for a 60-
day comment period, which ended June 23, 2003. No comments were 
received.
    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.
    After consideration of all relevant material presented, including 
the

[[Page 41686]]

Committee's recommendation, and other information, it is found that 
finalizing the interim final rule, without change, as published in the 
Federal Register (68 FR 19708, April 22, 2003) will tend to effectuate 
the declared policy of the Act.

List of Subjects in 7 CFR Part 925

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

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

0
Accordingly, the interim final rule amending 7 CFR part 925 which was 
published at 68 FR 19708 on April 22, 2003, is adopted as a final rule 
without change.

    Dated: July 9, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-17798 Filed 7-14-03; 8:45 am]
BILLING CODE 3410-02-P