04-15583. Raisins Produced From Grapes Grown in California; Change to Reporting Requirements Regarding Other Seedless Raisins

AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Interim final rule.

SUMMARY:

This rule invites comments on changing the reporting requirements regarding Other Seedless (OS) raisins under the Federal marketing order for California raisins (order). The order regulates the handling of raisins produced from grapes grown in California and is administered locally by the Raisin Administrative Committee (RAC). The order provides authority for volume and quality regulations and reporting requirements by varietal type of raisin. The OS varietal type includes raisins produced from Flame Seedless (Flames) and other red grapes. This rule requires handlers to report to the RAC information on acquisitions, shipments, inventories, and inter-handler transfers of the different types of OS raisins, including Flames. The RAC will evaluate this data to determine whether segregating Flames into a separate varital type is warranted.

DATES:

Effective July 12, 2004; comments received by September 7, 2004, 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: [phone], e-mail: [e-mail], or http://www.regulations.gov. 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:

Maureen T. Pello, Senior Marketing Specialist, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey Street, suite 102B, Fresno, California 93721; telephone: [phone], Fax: [phone]; 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: [phone], fax: [phone].

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: [phone], fax: [phone], or e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

This rule is issued under Marketing Agreement and Order No. 989 (7 CFR part 989), both as amended, regulating the handling of raisins produced from grapes grown in California, hereinafter referred to as the “order.” The marketing agreement and order are 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 the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such 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 invites comments on revising the reporting requirements regarding OS raisins under the order. The order provides authority for volume and quality regulations and reporting requirements by varietal type of raisin. The OS varietal type includes raisins produced from Flames and other red grapes. This rule requires handlers to report to the RAC information on acquisitions, shipments, inventories, and inter-handler transfers of the different types of OS raisins, including Flames. The RAC will evaluate this data to determine whether segregating Flames into a separate varietal type is warranted. This action was unanimously recommended by the RAC at a meeting on April 13, 2004.

Section 989.73 of the order provides authority for the RAC to collect reports from handlers. Paragraph (d) of that section provides that, upon request of the RAC, with approval by the Secretary, handlers shall furnish to the RAC other information as may be necessary to enable it to exercise its powers and perform its duties. The RAC meets routinely to make decisions on various programs authorized under the order such as volume regulation and quality control. The RAC utilizes information collected under the order in its decision-making. Section 989.173 of the order's administrative rules and regulations specifies certain reports that handlers are currently required to submit to the RAC.

Many of the reports submitted by handlers under the order require information to be segregated by varietal type of raisin. Section 989.10 defines varietal type to mean raisins generally recognized as possessing characteristics differing form other raisins in a degree sufficient enough to warrant separate identification and classification. Section 989.110 of the order's administrative rules and regulations contains a list and description of the nine varietal types currently segregated under the order.

One of these varietal types, OS raisins, includes raisins produced from Flames and other similar seedless red grapes. There has been some discussion in recent years regarding whether Flames should be segregated into a separate varietal type. Between the 1995-96 and 2000-01 crop years, volume regulation had not been implemented for OS raisins, and handlers were able to market all of the OS raisins they acquired. During this period, some handlers had expanded their market for Flames. When volume regulation was in effect for OS raisins for the 2001-02 crop year, some Flame handlers had difficulty meeting their market needs.

Thus, the RAC recommended revising the order's regulations to require handlers to report data on acquisitions, shipments (dispositions), inventories, and inter-handler transfers of Flames and other OS raisins to the RAC beginning with the 2004-05 crop year which starts on August 1, 2004. The RAC will review this information and determine whether segregating Flames into a separate varietal type is warranted. A separate varietal type would allow the RAC to consider the application of the order's volume regulation provisions for Flames separate from the other types of OS raisins. Accordingly, paragraphs (a) (inventory), (b) (acquisitions), (c) dispositions, and (d) inter-handler transfers in § 989.173 are revised. Paragraph (g) in § 989.173 regarding similar reports for organic raisins is also revised.

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 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 raisins who are subject to regulation under the order and approximately 4,500 raisin producers in the regulated area. Small agricultural firms are defined by the Small Business Administration (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. Thirteen of the 20 handlers subject to regulation have annual sales estimated to be at least $5,000,000, and the remaining 7 handlers have sales less than $5,000,000. No more than 7 handlers, and a majority of producers, of California raisins may be classified as small entities.

This rule revises § 989.173 to require handlers to report acquisitions, shipments, inventories, and inter-handler transfers of the different types of raisins within the OS varietal type. This action is needed so that the RAC can collect accurate data on Flames, a particular type of OS raisin, and evaluate this information to determine whether Flames should be segregated into a separate varietal type under the order. This would permit the RAC to consider application of the order's volume regulation provisions to Flames separate from the other types of OS raisins. Authority for this action is provided in § 989.73 of the order.

Regarding the impact of this action on affected entities, this action imposes no measurable burden on OS raisin handlers. OS handlers will be required to separate out different types of OS raisins on reports that they are already submitting to the RAC. Most handlers have been doing this voluntarily in recent years. This action has no impact on raisin producers.

The RAC considered alternatives to the recommended action. The RAC formed a work group to review the concerns raised by Flame handlers. One alternative considered was to proceed with informal rulemaking to establish a separate varietal type for Flames. Another alternative considered was to try to have all handlers voluntarily separate Flames from the other OS raisins on certain reports. After much discussion, the work group determined that the best course of action would be to collect data on Flames, evaluate the data, and then determine whether segregating Flames into a separate varietal type was warranted.

This rule slightly modifies the reporting requirements on small and large raisin handlers. All raisin handlers are currently required to submit various reports to the RAC where the data collected is segregated by varietal type of raisin. These reports include:

Form nos.	Form
RAC-1	Weekly Report of Standard Raisin Acquisitions.
RAC-3	Weekly Report of Standard Raisins Received for Memorandum Receipt or Warehousing.
RAC-20	Monthly Report of Free Tonnage Raisin Disposition.
RAC-30	Weekly Off-Grade Summary.
RAC-50	Inventory of Free Tonnage Standard Quality Raisins on Hand.
RAC-51	Inventory of Off-Grade Raisins on Hand.
RAC-1 CO	Weekly Report of Organic Raisin Acquisitions.
RAC-20 CO	Monthly Report of Free Tonnage Organic Raisin Disposition.
RAC-50 CO	Inventory of Free Tonnage Standard Quality Organic Raisins on Hand.
RAC-51 CO	Inventory of Off-Grade Raisins on Hand.

This rule requires that an extra line item be added to these 10 forms so that handlers can separate out Flames from the other types of OS raisins. Handlers will also be required to indicate the type of OS raisin on the Inter-Handler Transfers of Free Tonnage Raisins (RAC-6), the Monthly Free Tonnage Exports by Country of Destination (RAC-21), and the Monthly Free Organic Tonnage Exports by Country of Destination (RAC-21 CO); no change to these forms is needed. The current total annual burden for all 13 of these forms is 873.48 hours. This rule will not add to this burden on handlers.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the information collection requirements referenced above have been approved by the Office of Management and Budget (OMB) under OMB Control No. 0581-0178, Vegetable and Specialty Crops. 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. Finally, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Further, the RAC's work group meetings on February 12 and March 4, 2004, the Administrative Issues Subcommittee and RAC meetings on April 13, 2004, and the RAC's Executive Committee meeting on May 4, 2004, where this action was deliberated were all public meetings widely publicized throughout the raisin industry. All interested persons were invited to attend the meetings and participate in the industry's deliberations. Finally, all 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.

Comments are invited concerning this rule. A 60-day comment period is provided to allow interested persons to respond. All comments received will be considered prior to finalization of this rule.

After consideration of all relevant material presented, including the information and recommendation submitted by the RAC 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.

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) The RAC recommended that this action be in effect beginning with the 2004-05 crop year which begins on August 1, 2004; (2) this action was unanimously recommended by the RAC at a public meeting; (3) this action imposes no additional burden on California raisin handlers; and (4) this interim final rule provides a 60-day period for written comments, and all comments timely received will be considered prior to finalization of this rule.

List of Subjects in 7 CFR Part 989

• Grapes
• Marketing agreements
• Raisins
• Reporting and recordkeeping requirements

For the reasons set forth in the preamble, 7 CFR part 989 is amended as follows:

PART 989—RAISINS PRODUCED FROM GRAPES GROWN IN CALIFORNIA

1. The authority citation for 7 CFR part 989 continues to read as follows:

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

2. Section 989.173 is amended by:

A. Revising paragraph (a) introductory text;

B. Revising the first sentence of paragraph (b)(1)(ii);

C. Revising paragraph (c)(1) introductory text;

D. Revising paragraph (d)(1)(iii); and

E. Revising paragraph (g) to read as follows:

§ 989.173

Reports.

(a) Inventory reports. Each handler shall submit to the Committee as of the close of business on July 31 of each crop year, and not later than the following August 6, an inventory report which shall show, with respect to each varietal type of raisins held by such handler: Provided, That, for the Other Seedless varietal type, handlers shall report the information required in this paragraph separately for the different types of Other Seedless raisins:

* * * * *

(b) * * *

(ii) For each report required to be submitted pursuant to this paragraph, the required information shall be shown separately for each varietal type: Provided, That, for the Other Seedless varietal type, the required information shall be shown separately for the different types of Other Seedless raisins. * * *

* * * * *

(c) Reports of disposition—(1) Free tonnage raisins.

Each month each handler who is not a processor shall furnish to the Committee, on an appropriate form provided by the Committee and so that it is received by the Committee not later than the seventh day of the month, a report showing the aggregate quantity of each varietal type of free tonnage packed raisins and standard natural condition raisins which were shipped or otherwise disposed of by such handler during the preceding month (exclusive of transfers within the State of California between plants of any such handler and from such handler to other handlers): Provided, That, for the Other Seedless varietal type, handlers shall report such information for the different types of Other Seedless raisins. Such required information shall be segregated as to:

* * * * *

(d) * * *

(1) * * *

(iii) The varietal type of raisin, with organically produced raisins as specified in paragraph (g) of this section separated out, net weight, and condition of the raisins transferred: Provided, That, for the Other Seedless varietal type, handlers shall report such information for the different types of Other Seedless raisins; and

* * * * *

(g) Organically produced raisins. For purposes of this section, organically produced raisins means raisins that have been certified by an organic certification organization currently registered with the California Department of Food and Agriculture or such certifying organization accredited under the National Organic Program. Handlers of such raisins shall submit the following reports to the Committee by varietal type: Provided: That, for the Other Seedless varietal type, handlers shall report such information for the different types of Other Seedless raisins.

* * * * *

Dated: July 1, 2004.

A.J. Yates,

Administrator, Agricultural Marketing Service.