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TITLE 7-AGRICULTURE

CHAPTER IX-AGRICULTURAL MARKETING SERVICE

(Marketing Agreements and Orders)

SUBCHAPTER B-PROHIBITIONS OF IMPORTED COMMODITIES

PART 1070-CUCUMBERB

Cucumber Regulation-Amendment 3–In Relief of Restrictions Pursuant to regulations issued under Marketing Agreement No. 118 and Order No. 115 (22 F. R. 6083), regulating the handling of cucumbers grown in Florida, and in accordance with the requirements of g 8e of the Agricultural Marketing Agreement Act of 1937, as amended (48 Stat. 31, as amended ; 7 U. S. C. 601 et seq.; 68 Stat. 906, 1047), paragraph (b) Import restrictions of $1070.1 (Cucumber Regulation No. 1; 22 F. R. 9045, 9690, 9917), is amended to read as follows:

(6) Import restrictions. During the period from December 8, 1957, to July 31, 1958, both dates inclusive, and subject to the General Regulations (7 CFR Part 1060) applicable to the importation of listed commodities and the requirements of this section, no person shall import any cucumbers of any variety unless such cucumbers meet the requirements of U. S. No. 2, or better, grade; Provided, That during the period from February 21, 1958, through April 12, 1958, both dates inclusive, the requirements of this paragraph, except for decay, shall not be applicable to cucumbers of the Kirby, MR 17, and other pickling type cucumbers of similar varietal characteristics.

It is hereby found that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice, engage in public rule making procedure, and postpone the effective date of this amendatory regulation beyond that herein specified (5 U. S. C. 1001 et seq.) in that (i) the requirements established by this amended import regulation are issued pursuant to $ 8e of the Agricultural Marketing Agreement Act of 1937, as amended (48 Stat. 31, as amended ; 7 U.S. C. 601 et seq. ; 68 Stat. 906, 1047), which make such amended regulation mandatory; (ii) the regulations hereby established for cucumbers that may be imported into the United States comply with grade, size quality and maturity restrictions imposed upon domestic cucumbers under Marketing Agreement No. 118 and Order No. 115 (7 CFR 1015.301 ; 22 F. R. 8148, 8219, 8810, 8976, 9251, 9589, 9916, 9917); (iii) compliance with this cucumber import regulation should not require any special preparation by importers which cannot be completed by the effective date hereof; and (iv) this amendment relieves restrietions on the importation of cucumbers. (Sec. 5, 49 Stat. 753, as amended; 7 U. 8. C. 608c. Interprets or applies Sec. 401, 68 Štat. 906, 1047; 7 U. S. C. 608e) Dated: February 19, 1958, to become effective February 21, 1958.

S. R. SMITH, Director, Fruit and Vegetable Division,

Agricultural Marketing Service. Mr. HAGEN. I have another letter from the National Council of American Importers, Inc., dated March 5, and signed by Harry S. Radcliffe, executive vice president; also a letter from the Biscuit & Cracker Manufacturers' Association of America, dated March 6, 1958, and signed by Joseph M. Creed, counsel, a statement from the Date Packers Council of California, and a few letters for inclusion in the record at this point. (The letters referred to are as follows:)

THE BISCUIT & CRACKER MANUFACTURERS'

AssOCIATION OF AMERICA,

Chicago, Ill., March 6, 1958. Hon. GEORGE M. GRANT,

Chairman, Subcommittee on Domestic Marketing, House Committee on

Agriculture, House of Representatives, Washington, D. C. DEAR CONGRESSMAN GRANT: On Tuesday, February 25, the Subcommittee on Marketing held a hearing for the purpose of consideration of H. R. 7760, introduced by Congressman Sisk, which would amend section 8 (e) of the Agricultural Marketing Agreement Act of 1937, as amended. The proposed amendment would extend the restrictions of section 8 (e) of said act to all imported citrus fruits and to sliced figs, dried figs, and fig paste. Because notice of the hearing did not reach our office in time, we were unable to prepare adequate testimony for the hearing on the proposed legislation. We are, therefore, submitting this statement and request that it be made a part of the record of the hearing. Since the hearings were ld, a new bill, H. R. 11056, incorporating the provisions of H. R. 7760 but expanded to include certain other commodities, has been introduced by Congressman Sisk. Our objections are pertinent to that bill as well as to H. R. 7760.

The members of the Biscuit and Cracker Association, a national trade association for the biscuit and cracker industry, are the largest users of domestically grown and imported figs and fig paste. The quantity of figs grown in the United States is insufficient to meet the requirements of the biscuit and cracker industry for the manufacture of fig bars, which is the principal use of figs and fig paste. Imported figs are an absolute necessity to supplement the domestic supply. The reports of the Tariff Commission to the President, following section 22 proceedings in 1956 and 1957, set forth in detail the statistical picture. Copies of these reports-reports to the President on investigations No. 12 and 18 under section 22 of the Agricultural Adjustment Act, as amended-are in the committee's files.

Section 8 (e) of the Agricultural Marketing Agreement Act authorizes the Secretary of Agriculture to prohibit the importation of any product enumerated in that section which does not comply with the grade, size, quality, and maturity provisions of a marketing order for similar domestic products. Practically, the only question involved for figs and fig paste is one of quality of the products from the standpoint of wholesomeness and absence of adulteration. Or to put it another way, quality regulations can only determine whether figs are fit for human consumption. If not, they are not merchantable. Unlike citrus fruits, the matter of size, grade, color, etc., is not an element of quality in figs that are used in the manufacture of fig bars. It is the variety of the fig that gives it desirability for a given use. Thus the quality requirements of the Secretary's marketing order on figs is substantially the same as the Federal Food and Drug requirements. The Tariff Commission in its 1957 report on investigation No. 22 came to this conclusion stating, "We conclude, therefore, that the quality standards under order No. 64 are substantially equivalent to the standards enforced under the pure food laws and that the price-enhancing features of the quality controls under order No. 64 do not result in the removal of any substantial quantity of merchantable figs from normal channels of trade."

The Food and Drug Administration, under the applicable provisions of the Federal Food, Drug, and Cosmetic Act, has always inspected all imported figs as well as domestic figs to determine their quality and wholesomeness. Section 402 (a) (3), which is the applicable provision of that act, clearly and without ambiguity states that a food shall be deemed to be adulterated “if it consists in whole or in part of any filthy, putrid, or decomposed substance or if it is otherwise unfit for food." This provision has stood the test of time and it is doubtful, to say the least, that the Department of Agriculture can promulgate any more stringent quality regulation. There is, therefore, no basis for duplication of these functions by the Department of Agriculture as contemplated by the proposed amendment.

It is a well-known fact in the trade that the domestic fig growers have been seeking to restrict imports of figs and fig paste into this country so as to establish a monopoly control on figs and fig prices. To accomplish this objective, they sought and obtained a marketing order from the United States Department of Agriculture, despite the existence of an effective State marketing order in California. The ostensible purpose was to supplement the State marketing order. The real purpose, as recognized by fig users and borne out by subsequent events. was to provide a legal basis for seeking a section 22 proceeding before the Tariff Commission to try to restrict imports of figs and fig paste.

Following the issuance of the marketing order in 1955, three requests on behalf of the domestic fig growers were made to the President by the Secretary of Agriculture for a section 22 proceeding. The first was denied; the second was sent to the Tariff Commission for an investigation. The Commission found, after public hearings and consideration of all the facts, that there was no interference with the marketing order and so reported to the President with the recommendation that no restriction on imports of dried figs and fig paste be imposed. This recommendation was accepted by the President. The following year, 1957, a similar application to the President was made and again referred to the Tariff Commission. The Commission once, more found that imports were not interfering with the marketing order and recommended that no-restrictions on imports be imposed. Again the President accepted the recommendation.

Aware that the Department of Agriculture will be more inclined to see things from their standpoint than from the standpoint of the consumer, the California fig growers are now seeking, through legislation, to restrict imports of figs and fig paste without the necessity of having the issue reviewed by an intervening agency which would consider the facts objectively. Passage of this bill is not only unnecessary from the standpoint of quality control of figs imported into this country, but will saddle the taxpayer and consumer with additional costs and permit monopoly control of a deficit commodity by the domestic fig growers. The Congress has established the Tariff Commission to make investigations and recommendations to the President in matters involving imports. This effort to circumvent the orderly procedure provided by the Congress for a present expediency should be rejected as unsound in principle.

We respectfully urge your subcommittee not to approve the proposed amendment to section 8(e) as embodied in H. R. 7760, H. R. 11056, or in any similar bill to the extent that figs and fig paste would be brought within coverage of that section. Sincerely,

JOSEPH M. CREED, Counsel.

NATIONAL COUNCIL OF AMERICAN IMPORTERS, INC.,

New York, N. Y., March 5, 1958. Hon. HARLAN HAGEN,

Chairman, Subcommittee on Domestic Marketing, Committee on Agricul

ture, House of Representatives, Washington, D. C. DEAR MR. HAGEN: Our organization is strongly opposed to H. R. 7760 by Hon. B. F. Sisk, to H. R. 7937 by Hon. D. S. Saund, and to all other bills containing provisions for transferring the task of inspecting imported agricultural commodities from the Food and Drug Administration to the Department of Agriculture. From all the reports we get, the Food and Drug Administration is doing an excellent job in inspecting agricultural commodities offered for entry into this country. For this reason, we cannot understand why this procedure should be transferred to the Department of Agriculture.

We strongly suspect that the main reason for the proposed transfer is the desire to restrict imports by applying irrelevant and arbitrary color and size tests which have no bearing on the hygienic condition of the products involved, nor to their quality or wholesomeness. It seems to us that this is an attempt to dictate to the consumer what particular agricultural products he must use, and to make him pay high prices for them. Why should a consumer who, for some reason or other, wants to use Iranian dates or figs from the Mediterranean, products which have their own peculiar and well-defined characteristics, be required to buy products of a different type.

There is no doubt that the proposals in these bills will injure the products of Greece, Iraq, Iran, and Turkey. Here we are spending billions of dollars to keep these allies in the most strategic bastions of the Western World free and strong, and then by means of these bills, we place unnecessary impediments in the importation of the desirable products they send to us.

For the above reasons, we hope that your subcommittee, as well as the full Committee on Agriculture will disapprove all of the bills mentioned, and insert this letter in the records of your subcommittee. Respectfully submitted.

HARRY S. RADCLIFFE, Executive Vice President.

CONGRESS OF THE UNITED STATES,

HOUSE OF REPRESENTATIVES,

Washington, D.O., February 28, 1958. Hon. GEORGE M. GRANT, Chairman, Domestic Marketing Subcommittee,

House Office Building, Washington, D.C. DEAR GEORGE: Some of our Chicago residents are quite interested in H. R. 7937 which I understand is scheduled to be heard by your subcommittee on Thursday, March 6.

I received a telegram from Pandaleon Bros., date importers and packers, which reads as follows:

“Very much interested bill H. R. 7937. Subcommittee on Agriculture hearing scheduled Thursday, March 6. Would appreciate your contacting members subcommittee to exclude imported dates. California interests endeavoring legislate out imported dates. Full facts covered by Tariff Commission investigation 19 under section 22 of AAA, November 1957. Four or five Commissioners after consideration of facts ruled imported dates did not interfere with Federal date marketing program. If this bill passed there will be no more imported dates."

As you will note, according to these packers, a Tariff Commission investigation ruled that the imported dates did not interfere with the Federal date marketing program, and, I hope your good committee will give full consideration to our import problems.

I would like to have this letter made part of the record.
With kind regards.
Respectfully,

TIMOTHY P. SHEEHAN,

Member of Congre88.

A STATEMENT BY THE DATE PACKERS COUNCIL OF CALIFORNIA This statement is made on behalf of the Date Packers Council of California in support of H. R. 11056. The council represents over 90 percent of the growers and handlers of domestic dates.

BACKGROUND

Under the Agricultural Marketing Agreement Act of 1937, as amended, the date industry of the Coachella Valley of California, which produces approxi. mately 90 percent of the dates grown in the United States, voted to operate under a marketing order to promote thereby the orderly marketing of dates. Since the effective date of the marketing order, domestic dates are marketed under strict grade regulations, established by the Secretary of Agriculture based on grades set forth in the current United States Standards for Grades of Dates to effectuate thereby the declared purpose of the act by assuring consumers of receiving dates which comply not only with the provisions of the Federal Food, Drug, and Cosmetic Act, but which in addition are free from various inherent fruit defects.

The date industry found that its objective of promoting orderly marketing through the means of its grade regulation is not possible to achieve because imported dates, which are directly competitive with domestic dates, are not subject to the same strenuous grade requirements. Because of this, it requested its representative to sponsor the above-mentioned bill to provide equality in marketing dates and to assure consumers of receiving high-quality dates, free from unsanitary factors and physiological defects. In no way is it intended that this bill should prevent in any manner the importations of quality dates.

COMPARABILITY OF DOMESTIC AND IMPORTED DATES It is understood that some importers of dates have maintained that dates produced in the United States and dates produced in other countries and imported into the United States are not comparable. If this understanding is correct, such allegation is entirely untrue. Results of a survey by the United States Department of Agriculture entitled "Homemakers Appraise Citrus Products, Avocados, Dates, and Raisins," published as a preliminary report in September 1957, indicated that domestic dates and imported dates are regarded as comparable items in retail stores. The survey showed that people who purchase dates in packages were either unaware or unconcerned with whether they were purchasing imported dates or domestic dates, nor did they show any particular concern if they were purchasing dates relatively dark in color or relatively light in color.

A limited economic study of the date industry in this country by Dr. Jerry Foytik of the Giannini Foundation of Agricultural Economics entitled "Impact of Imports on the California Date Industry," September 3, 1957, indicates clearly that domestic and imported dates are comparable and competitive in the market. Although Dr. Foytik's report contains a number of economic formulas, the interpretation of which requires a high degree of familiarity with advanced mathematical statistics, it reflects the following evaluation of the impact of

imports on domestic dates. On page 11 of that report Dr. Foytik states the following:

"Our investigation of consumer purchases at retail reveals two significant results: (1) Price ratios fluctuate considerably less than sales ratios, (2) price ratios are inversely correlated to sales ratios. These results suggest that household consumers may not consider imported and domestic dates as unrelated commodities. Apparently, they behave as though changes in relative price do affect the relative quantities of imported and domestic dates purchased. This analysis, however, does not prove this contention. Yet the hypothesis of interchangeability between the two products is not contradicted by the data investigated."

Sometimes it is asserted by importers that comparability does not exist because domestic dates are maintained in cold storage as carryover for each succeeding season and that domestic dates tend to darken after a period, if left standing on a shelf in a store. Imported dates likewise are maintained in cold storage and the survey showed that color was not an important factor to retail purehasers of dates.

Such importers have maintained that there is a substantial difference between domestic and imported dates merely because the domestic industry has been using the connotation "fresh" on its packages for a longer time and more frequently than have the importers. We are sure you are aware that dates, as such, whether they be imported or domestic, are not in fact a seasonal fresh fruit, such as apples, pears, bananas, etc. It is true, however, that domestic dates have been burdened with a railroad shipping classification as a fresh item, thus paying a lower freight rate. The word "fresh" does not make any difference in any other way. We are also sure you are aware that both domestic and imported dates are sold in packages, side by side, in the same areas of markets with such frequency as to leave no doubt that food stores treat them as comparable items. As a matter of fact, the importers themselves are beginning to emphasize the word "fresh" in the advertising and packaging of their dates. Furthermore, the picture of dates appearing on some packages of imported dates is in fact a replica of the date variety mainly marketed by California producers and is not of the variety of dates which are imported.

It is sometimes asserted by importers that inversion of sugar in dates, takes place in imported dates to a greater extent than in domestic dates, and further, that this precludes comparability. Sugar inversion varies between varieties when produced overseas or in the United States and also varies substantially within a given variety, depending upon circumstances. Certainly, the percent of sugar that may or may not be inverted does not preclude comparability as far as consumers are concerned, as indicated by the evidence noted above, nor is it true as far as most manufacturers of baked goods are concerned. Domestic and imported dates can be used completely interchangeably in virtually all bakery items. Whether domestic or imported dates are used is largely a matter of personal preference with manufacturers, aside from price. The domestic date industry can furnish you with many examples to substantiate this.

It has also been stated on occasion that domestic dates seasonably are available at a different time than are imported dates with respect to seasonal market needs. Such statements are entirely untrue. There is much statistical data available, which we can furnish you if you so desire, which shows that the carryover of domestic dates together with the dates received at the beginning of the marketing season are more than sufficient to take care of marketing needs.

We believe the above is evidence enough to indicate that for all practical purposes domestic dates and those dates imported are in fact comparable and competitive items.

UNITED STATES STANDARDS FOR GRADES OF DATES

The standards under which dates are inspected for grade are those contained in the United States Standards for Grades of Dates. These standards have been so set forth that the factors of grade are applicable to all known varieties of dates, regardless of where grown, there being many different varieties produced in the United States of America. When any variety is inspected, the factors of grade apply only to the characteristics unique to that variety of date being inspected. The United States Department of Agriculture, therefore, has stated that under the standards both domestic and imported dates can be inspected for grade with equal ease. We should like here to emphasize that under a grade

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