US Grape Growers Challenge USDA's Change in Import Requirements for Chilean Table Grapes

Three grape grower trade groups filed a complaint on Sept. 13 in the U.S. District Court for the District of Columbia, challenging the Agriculture Department's notice allowing table grapes from Chile to be imported under a "systems approach" as opposed to using the standard fumigation requirements (California Table Grape Commission v. United States Department of Agriculture, D.D.C. # 24-02645).

The groups -- the California Table Grape Commission, the National Grape Research Alliance and the California Table Grape Export Association -- said that the USDA's notice violated the Administrative Procedure Act in two ways. First, the agency failed to establish a notice-and-comment period for the rule, which imposed substantive changes to the grape import procedures. Second, the decision was "untethered from sound science," the groups alleged.

The U.S. grape growers said that, for years, USDA and the Animal and Plant Health Inspection Service have required grapes from Chile to be fumigated before distribution within the U.S. due to the many unique pest threats posed by Chilean agriculture. The complaint said that past efforts to move away from the fumigation requirement have failed.

For instance, in 2008, APHIS sought to replace the fumigation requirement with a "systems approach," which is a set of phytosanitary conditions, at least two of which have an independent effect in mitigating pest risk. Months after the proposed rule, an outbreak of the European grapevine moth in Chile led APHIS to kill the proposal, the brief said.

The Chilean government recently renewed its bid to nix the fumigation requirement, asking APHIS to drop the regulation. In response, the service "prepared a new pest risk assessment, commodity import evaluation document, and a two-page economic effects assessment," in conjunction with a proposed notice in 2022 laying out its "intent to permit a systems approach." APHIS received numerous comments from American grape growers warning of the effects of a switch to the systems approach.

The U.S. didn't adopt the approach for the 2022-23 nor the 2023-24 Chilean season, though the grape growers said it "was reported that the U.S. government decided to use the systems approach as a bargaining chip in broader bilateral negotiations with Chile" on Chile's recognition of particular European geographical indications. In July 2024, the U.S. and Chile reportedly reached a deal on European geographical indications that would allow the labels on various U.S. goods in Chile to stay the same, the complaint said.

APHIS in July 2024, published a notice allowing for the import of table grapes from certain areas in Chile under a systems approach. The U.S. groups said APHIS failed to make public "key details of the systems approach and the obligations of Chile's national plant protection organization, along with APHIS's assessment of the likelihood of efficacy, under the systems approach."

The U.S. grape growers ultimately filed four counts against the notice, the first three of which say that USDA violated the APA. The groups said that APHIS issued the notice "as a legislative rule without observance of the procedure" laid out in the law. The notice has all the characteristics of a legislative rule, including the legislative rules' "general applicability and their focus on future effect, both of which are readily present here."

APHIS also failed to engage in "reasoned decisionmaking," by failing to "take a hard look at the salient problems, including the prevalence of pests in Chile," the pest impact in environments different than Chile's, "the risk of unknown pests, and the risk of accidents or gamesmanship by Chilean producers implementing the systems approach," the complaint said. The service also failed to disclose key information for public comment, the brief said.

Lastly, the complaint contests APHIS' alleged "failure to comply with the National Environmental Policy Act." The Act requires agencies to solicit comments on an environmental impact statement for all actions "significantly affecting the human environment" or prepare an "environmental assessment if the proposed action is neither categorically excluded from the requirement to produce an environmental impact statement nor would clearly require the production of an environmental impact statement."