Table Grapes Grown in Southeastern California and Table Grapes Imported into the United States; Revision in Minimum Grade Requirements

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 925 and 944

[Docket No. FV93-925-1FR]

Table Grapes Grown in Southeastern California and Table Grapes

Imported into the United States; Revision in Minimum Grade Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the minimum quality requirements

currently in effect for table grapes grown in southeastern California

under Marketing Order No. 925 and for table grapes imported into the

United States. This final rule will allow for the handling of grapes

which satisfy all the requirements of the U.S. No. 1 Institutional

grade except for bunch size tolerance. The objective of this rule is to

help handlers and importers market grapes which do not meet the U.S.

No. 1 Institutional grade because of a greater variance in bunch size.

EFFECTIVE DATE: January 30, 1995.

FOR FURTHER INFORMATION CONTACT: Charles L. Rush, Marketing Order

Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.

Box 96456, Room 2523-S, Washington, DC 20090-6456, telephone (202) 720-

5127; or Rose Aguayo, California Marketing Field Office, Marketing

Order Administration Branch, Fruit and Vegetable Division, AMS, USDA,

2202 Monterey Street, Suite 102B, Fresno, California 93721, telephone

(209) 487-5901

.SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing

Agreement and Order No. 925 [7 CFR Part 925], regulating the handling

of grapes grown in a designated area of southeastern California. The

marketing agreement and order are authorized under the Agricultural

Marketing Agreement Act of 1937, as amended [7 U.S.C. 601-674],

hereinafter referred to as the Act.

This final rule is also issued pursuant to 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. Table grapes were added to the list of commodities specified in

section 8e in 1982.

The Department of Agriculture (Department) is issuing this rule in

conformance with Executive Order 12866.

This final rule has been reviewed under Executive Order 12778,

Civil Justice Reform. This rule is not intended to have retroactive

effect. This final rule will not preempt any State or local laws,

regulations, or policies, unless they present an irreconcilable

conflict with this action.

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 requesting 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 his or her

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.

There are approximately 20 handlers of California desert grapes

subject to regulation under the marketing order, and approximately 90

producers. In addition, there are approximately 70 importers of table

grapes subject to the requirements of the table grape import

regulation. Small agricultural service firms, which include handlers

and importers, have been defined by the Small Business Administration

[13 CFR 121.601] as those having annual receipts of less than

$5,000,000, and small agricultural producers are defined as those whose

annual receipts are less than $500,000. The majority of the table grape

handlers, producers and importers may be classified as small entities.

Under the marketing order, table grapes grown in southeastern

California are currently subject to a minimum grade requirement of U.S.

No. 1 or U.S. No. 1 Institutional, as set forth in the United States

Standards for Grades of Table Grapes (European or Vinifera Type)

(Standards). The requirements of the U.S. No. 1 Institutional grade are

the same as those of the U.S. No. 1 grade, with two exceptions. The

first relates to bunch size. Under the U.S. No. 1 grade, there is a

minimum bunch size requirement of 4 ounces. Under the U.S. No. 1

Institutional grade, bunches must weigh at least 2 ounces but not more

than 5 ounces. The second difference is that at least 95 percent of the

containers in a lot of grapes grading U.S. No. 1 Institutional must be

legibly marked ``Institutional Pack,'' whereas no such marking

requirement applies under the U.S. No. 1 grade. In order to allow for

variations incident to proper grading and handling, both grades provide

a tolerance of 8 percent for off-size

bunches and for bunches and berries failing to meet other grade

requirements.

The California Desert Grape Administrative Committee (committee),

the agency responsible for local administration of the order, met on

November 4, 1993, and unanimously recommended relaxing the quality

requirements in the handling regulations to allow an additional bunch

size tolerance for grapes which would otherwise grade U.S. No. 1

Institutional.

This final rule provides an additional tolerance of 25 percent, or

a total of 33 percent, for bunches of grapes that would otherwise meet

the U.S. No. 1 Institutional grade.

Prior to the 1992 season, the minimum grade requirement in effect

under the order was U.S. No. 1 grade. The U.S. No. 1 Institutional

grade was authorized as a means of allowing the industry to fulfill

demands of the foodservice industry (e.g., restaurants and schools) for

smaller sized bunches of grapes than are preferred in other markets.

However, the domestic table grape industry has experienced difficulty

in meeting the requirements of the U.S. No. 1 Institutional grade due

to the 8 percent tolerance for off-sized bunches. The committee

believes that establishing an additional tolerance for off-sized

bunches in the handling regulation will promote sales of grapes packed

for institutional use. Due to the requirements of the current handling

regulation, California table grape handlers are unable to ship smaller

grape bunches because of the 8 percent off-size bunch tolerance of the

U.S. No. 1 Institutional grade. This has required handlers to repack

grapes after they have been packed in the vineyards, resulting in

packing costs that are prohibitively high for the modest prices paid by

buyers of institutional grade grapes. Allowing an additional 25 percent

bunch size tolerance is expected to allow the industry to more fully

utilize its grapes in the marketplace. This final rule allows handlers

to mark containers of grapes meeting the modified requirements as

``DGAC No. 1 Institutional.''

In accordance with section 8e of the Act, table grapes imported

into the United States are subject to the same minimum grade

requirements as those in effect for domestically grown grapes under the

marketing order. Those requirements are found in Table Grape Import

Regulation 4 [7 CFR part 944.503]. Because this final rule will provide

an additional tolerance for off-size bunches of grapes under the

domestic handling regulation, the same change is being made in the

table grape import regulation.

Finally, this rule will also update references to government

contacts and sources of regulatory information in both the domestic and

import regulations.

A proposed rule concerning this revision of minimum grade

requirements was issued on July 11, 1994, and published in the Federal

Register on July 15, 1994, [59 FR 36091]. That rule provided a 15-day

comment period which ended August 1, 1994. One comment was received.

Mr. T. Albert Yamada of Masaoka & Associates, Inc. filed a comment

on behalf of the Fresh Produce Association of the Americas opposed to

the committee's recommendation. Mr. Yamada contends that the proposed

relaxation would degrade the quality of grapes offered to the public,

and allow sales of very small bunches regardless of the quality of the

individual grapes on the bunch. However, Marketing Order regulations

will require that grapes grading U.S. No. 1 Institutional under the

relaxed bunch size tolerance meet the same quality requirements as

before this relaxation. This rule will not impact the quality of

grapes. It will only affect the bunch size tolerance for grapes

destined for foodservice outlets. Therefore, the comment submitted by

Mr. Yamada is denied.

Based on available information, the Administrator of the AMS has

determined that this action will not have a significant economic impact

on a substantial number of small entities.

After consideration of all relevant material presented, including

the information and recommendation submitted by the committee and other

available information, it is hereby found that this rule, as

hereinafter set forth, will tend to effectuate the declared policy of

the Act.

In accordance with section 8e of the Act, the United States Trade

Representative has concurred with the issuance of this final rule.

List of Subjects

7 CFR Part 925

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 925 and 944

are amended as follows:

1. The authority citation for both 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

2. Section 925.304 is amended by revising paragraph (a) to read as

follows:

Sec. 925.304 California Desert Grape Regulation 6.

* * * * *

(a) Grade, size, and maturity. Except as provided under 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, or U.S. No. 1

Institutional, as set forth in the United States Standards for Grades

of Table Grapes (European or Vinifera Type, 7 CFR 51.880 through

51.913) (Standards), 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 8 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.''

(1) Grapes of the Perlette variety shall meet the minimum berry

size requirement of ten-sixteenths of an inch;

(2) Grapes of the Flame Seedless variety shall meet the minimum

berry size requirement of ten-sixteenths of an inch; 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 Article 25 of

the California Administrative Code [Title 3].

* * * * *

3. Section 925.304(f) is amended by removing the zip code ``20250''

and adding in its place ``20090-6456'' and by removing the phone number

``(202) 447-5697'' and adding in its place ``(202) 720-2491''.

Part 944--FRUITS; IMPORT REGULATIONS

4. Section 944.503 is amended by revising paragraph (a)(1) 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 Sec. 51.884 for

U.S. No. 1 Table or in Sec. 51.885 for U.S. No. 1 Institutional grade,

as set forth in the United States Standards for Grades of Table Grapes

(European or Vinifera Type, 7 CFR 51.880 through 51.913), 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 8 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.''

(i) Grapes of the Perlette variety shall meet the minimum berry

size requirement of ten-sixteenths of an inch, and

(ii) 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 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 Article 25 of

the California Administrative Code (Title 3).

* * * * *

5. Section 944.503, paragraph (a)(2) is amended by removing the zip

code ``20250'' and adding in its place ``20090-6456'' and by removing

the phone number ``(202) 447-5697'' and adding in its place ``(202)

720-2491.''

Dated: December 23, 1994.

Eric M. Forman,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-32067 Filed 12-29-94; 8:45 am]

BILLING CODE 3410-02-P