[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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