[Federal Register: January 7, 1998 (Volume 63, Number 4)]
[Rules and Regulations]               
[Page 655-658]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ja98-1]






Rules and Regulations
                                                Federal Register
________________________________________________________________________

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[[Page 655]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 925

[Docket No. FV98-925-2 IFR]

 
Grapes Grown in a Designated Area of Southeastern California; 
Revision to Container Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule revises the container requirements currently 
prescribed under the California grape marketing order. The marketing 
order regulates the handling of grapes grown in a designated area of 
southeastern California and is administered locally by the California 
Desert Grape Administrative Committee (Committee). This rule revises 
the dimensions of three containers currently authorized for use by 
grape handlers regulated under the marketing order, adds two new 
containers, and makes several conforming and formatting changes. This 
revision to container requirements will bring the container 
requirements into conformity with those recently adopted by the State 
of California, will address the marketing and shipping needs of the 
grape industry, is expected to improve returns for handlers and 
producers, and is in the interest of consumers.

DATES: Effective on January 8, 1998; comments must be received by March 
9, 1998 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 in triplicate to the Docket 
Clerk, Fruit and Vegetable Programs, AMS, USDA, room 2523-S, P.O. Box 
96456, Washington, DC 20090-6456; Fax: (202) 205-6632. All comments 
should reference the docket number and the date and page number of this 
issue of the Federal Register and will be available for public 
inspection in the Office of the Docket Clerk during regular business 
hours.

FOR FURTHER INFORMATION CONTACT: Rose M. Aguayo, Marketing Specialist, 
or Kurt J. Kimmel, Regional Manager, California Marketing Field Office, 
Marketing Order Administration Branch, F&V, AMS, USDA, 2202 Monterey 
Street, suite 102B, Fresno, California 93721; telephone: (209) 487-
5901, Fax: (209) 487-5906, or George Kelhart, Marketing Order 
Administration Branch, F&V, AMS, USDA, room 2525-S, P.O. Box 96456, 
Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 205-
6632. Small businesses may request information on compliance with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, F&V, AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 
20090-6456; telephone: (202) 720-2491, Fax: (202) 205-6632.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order 
No. 925 (7 CFR Part 925), regulating the handling of grapes grown in a 
designated area of southeastern California, hereinafter referred to as 
the ``order.'' The marketing order is 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 (Department) 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 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 his or her 
principal place of business, has jurisdiction to review the Secretary's 
ruling on the petition, provided an action is filed not later than 20 
days after date of the entry of the ruling.
    This rule modifies language in Sec. 925.304 of the order's rules 
and regulations by revising the dimensions of three containers 
currently authorized for use by grape handlers, by adding two 
containers, and by making several conforming and formatting changes. 
The revision to container requirements in Sec. 925.304(b) will bring 
the container requirements into conformity with those recently adopted 
by the State of California, will address the marketing and shipping 
needs of the grape industry, is expected to improve returns for 
handlers and producers, and is in the interest of consumers. In 
addition, this rule also will change a California Department of Food 
and Agriculture (CDFA) reference from ``California Administrative Code 
(Title 3)'' to ``Title 3: California Code of Regulations'' (CCR) in 
paragraphs (a), (b), and (f) of Sec. 925.304, will remove an incorrect 
CCR section number referenced in Sec. 925.304(b), and add a new section 
number to that paragraph to conform with the State of California.
    Section 925.52(a)(4) of the grape marketing order provides 
authority to regulate the size, capacity, weight, dimensions, markings, 
materials, and pack of containers which may be used in the handling of 
grapes.
    Section 925.304(b)(1) of the order's rules and regulations outlines 
container and pack requirements for grapes and requires such grapes to 
meet the requirements of sections 1380.19(14), 1436.37, and 1436.38 of 
the California Administrative Code (Title 3).
    Currently, Sec. 925.304(b)(1)(i) through (b)(1)(ix) of the order's 
rules and regulations authorize eight containers (28, 38J, 38K, 38Q, 
38R, 38S, 38T, and a 5 kilo) for use by grape handlers, and also 
authorize the Committee to approve other types of containers for 
experimental or research purposes.

[[Page 656]]

    Section 925.304(f) states that certain container and pack 
requirements cited in this regulation are specified in the California 
Administrative Code (Title 3) and are incorporated by reference and 
that a notice of any change in these materials will be published in the 
Federal Register.
    Several years ago, the California Table Grape Commission 
(Commission) funded a 3-year research project designed to determine if 
current practices were getting the product to the retailer and 
ultimately the consumer in the best possible condition. A study of 
grape packaging was conducted by Dr. Harry Shorey of the University of 
California at Davis and the University of California at Kearney 
Agricultural Center at Parlier. Dr. Shorey looked at multiple varieties 
of grapes grown in California, packed in cartons of a wide variety of 
materials, dimensions, and packing depths. He monitored numerous 
shipments from the field to the grocery store. The study concluded that 
the California grape industry should modify container dimensions so 
that containers will fit better on the standard 48-x 40-inch pallets 
and that container minimum net weights should be reduced by 2 pounds.
    Based on these conclusions, the Committee recommended and the 
Secretary approved in March 1996 (61 FR 11129, March 19, 1996) reducing 
the minimum net weight requirements, and adding the 38S and 38T 
containers to enhance the deliverability of grapes.
    Since that time, the CDFA has published several amendments to the 
CCR which added the 38U and 38V containers. It is noted that the 
dimensions of the 38Q, 38R, and 38T authorized in 
Sec. 925.304(b)(1)(iv), (v), and (vii) do not conform to those adopted 
by the State of California and they should. The comparisons below for 
these three containers are based on the State of California dimensions, 
not those specified in Sec. 925.304(b).
    The Committee met on November 12, 1997, and unanimously recommended 
modifying the language in Sec. 925.304 of the order's administrative 
rules and regulations. The Committee recommended the following changes 
to Section 925.304(b):
    (1) That the width of the 38Q container be decreased from 11\1/2\ 
inches (inside) to 11\1/4\ inches (inside), and that the depth be 
decreased from 6 \3/4\ inches (inside) to 6\1/4\ inches (inside);
    (2) That the width of the 38R container be expanded from 15\3/4\ 
inches (outside) to 15\3/4\ to 16 inches (outside), and that the length 
be expanded from 19\11/16\ inches (outside) to 19\11/16\ to 20 inches 
(outside);
    (3) That the depth of the 38T container be decreased from 6\5/8\ to 
7\1/2\ inches (inside) to 5\1/2\ to 7\1/2\ inches (inside), that the 
width be expanded from 13\1/8\ inches (outside) to 13\1/8\ to 13\5/16\ 
inches (outside), and that the length be expanded from 15\7/8\ inches 
(outside) to 15\5/16\ to 16 inches (outside);
    (4) That containers 38U and 38V, as defined in the CCR, be added to 
the regulations; and
    (5) That several conforming and formatting changes be made to 
clarify which sections of the CCR pertain to grapes, and make the 
regulations more reader friendly. Specifically, reference to 
Sec. 1380.19(14) needs to be removed because no such section exists. 
The incorrect section number was inadvertently placed in the 
regulation. The correct sections that apply to grapes are Secs. 1380.14 
and 1380.19(n). These sections need to be added to the regulation to 
make them consistent with the State of California's code. In addition, 
the authorized containers and dimensions are listed in chart form, 
rather than narrative form.
    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 rule 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 27 handlers of California grapes subject to 
regulation under the order and approximately 80 grape producers in the 
production area. Small agricultural service firms are defined by the 
Small Business Administration (13 CFR 121.601) as those whose annual 
receipts are less than $5,000,000, and small agricultural producers 
have been defined as those having annual receipts of less than 
$500,000. Ten of the 27 handlers subject to regulation have annual 
grape sales of at least $5,000,000, excluding receipts from any other 
sources. In addition, 70 of the 80 producers subject to regulation have 
annual sales of at least $500,000 and the remaining 10 producers have 
annual sales less than $500,000, excluding receipts from any other 
sources. Therefore, a majority of handlers and a minority of producers 
are classified as small entities.
    This rule modifies language in Sec. 925.304 of the order's rules 
and regulations by revising the dimensions of three containers 
currently authorized for use by grape handlers, by adding two 
containers, and by making several conforming and formatting changes. 
The revision to container requirements in Sec. 925.304(b) will bring 
the container requirements into conformity with those recently adopted 
by the State of California, will address the marketing and shipping 
needs of the grape industry, is expected to improve returns for 
handlers and producers, and is in the interest of consumers. In 
addition, this rule will also change a California Department of Food 
and Agriculture (CDFA) reference from ``California Administrative Code 
(Title 3)'' to ``Title 3: California Code of Regulations'' (CCR) in 
paragraphs (a), (b), and (f) of Sec. 925.304, will remove an incorrect 
CCR section number referenced in Sec. 925.304(b), and add a new section 
number to that paragraph to conform with the State of California.
    Section 925.52(a)(4) of the grape marketing order provides 
authority for size, capacity, weight, dimensions, markings, materials, 
and pack of containers which may be used in the handling of grapes.
    Section 925.304(b)(1) of the order's rules and regulations outlines 
container and pack requirements for grapes and requires such grapes to 
meet the requirements of sections 1380.19(14), 1436.37, and 1436.38 of 
the California Administrative Code (Title 3).
    Currently, Sec. 925.304(b)(1)(i) through (b)(1)(ix) of the order's 
rules and regulations authorize eight containers (28, 38J, 38K, 38Q, 
38R, 38S, 38T, and a 5 kilo) for use by grape handlers, and also 
authorize the Committee to approve other types of containers for 
experimental or research purposes.
    Section 925.304(f) states that certain container and pack 
requirements cited in this regulation are specified in the California 
Administrative Code (Title 3) and are incorporated by reference and 
that a notice of any change in these materials will be published in the 
Federal Register.
    Several years ago, the Commission funded a 3-year research project 
designed to determine if current practices were getting the product to 
the retailer and ultimately the consumer in the best possible 
condition. A study of grape packaging was conducted by Dr. Harry Shorey 
of the University of California at Davis and the University of 
California at Kearney Agricultural

[[Page 657]]

Center at Parlier. Dr. Shorey looked at multiple varieties of grapes 
grown in California, packed in cartons of a wide variety of materials, 
dimensions, and packing depths. He monitored numerous shipments from 
the field to the grocery store. The study concluded that the California 
grape industry should modify container dimensions so that containers 
will fit better on the standard 48 x 40-inch pallets and that container 
minimum net weights should be reduced by 2 pounds.
    Based on these conclusions, the Committee recommended and the 
Secretary approved reducing the minimum net weight requirements, and 
adding the 38S and 38T containers in March 1996 to enhance the 
deliverability of grapes (61 FR 11129, March 19, 1996).
    Since that time, the CDFA has published several amendments to the 
CCR which added the 38U and 38V containers. It is noted that the 
dimensions of the 38Q, 38R, and 38T authorized in 
Sec. 925.304(b)(1)(iv), (v), and (vii) do not conform to those adopted 
by the State of California, and they should. The comparisons below for 
these three containers are based on the State of California dimensions, 
not those specified in Sec. 925.304(b).
    The Committee met on November 12, 1997, and unanimously recommended 
modifying the language in Sec. 925.304 of the order's administrative 
rules and regulations. The Committee recommended the following changes 
to Section 925.304(b):
    (1) That the width of the 38Q container be decreased from 11\1/2\ 
inches (inside) to 11\1/4\ inches (inside), and that the depth be 
decreased from 6\3/4\ inches (inside) to 6\1/4\ inches (inside);
    (2) That the width of the 38R container be expanded from 15\3/4\ 
inches (outside) to 15\3/4\ to 16 inches (outside), and that the length 
be expanded from 19\11/16\ inches (outside) to 19\11/16\ to 20 inches 
(outside);
    (3) That the depth of the 38T container be decreased from 6\5/8\ to 
7\1/2\ inches (inside) to 5\1/2\ to 7\1/2\ inches (inside), that the 
width be expanded from 13\1/8\ inches (outside) to 13\1/8\ to 13\5/16\ 
inches (outside), and that the length be expanded from 15\7/8\ inches 
(outside) to 15\5/16\ to 16 inches (outside);
    (4) That containers 38U and 38V, as defined in the CCR, be added to 
the regulations; and
    (5) That several administrative changes be made to clarify which 
sections of the CCR pertain to grapes. Specifically, Sec. 1380.19(14) 
needs to be removed and Secs. 1380.14 and 1380.19(n), need to be added.
    Imported grapes will not be affected by this rule.
    This rule needs to be effective by February 1998 as handlers will 
need to order lugs in preparation for the grape harvest which begins 
the end of April or early May.
    At the meeting, the Committee discussed the impact of these 
revisions on handlers and producers in terms of cost. The new width and 
length dimensions for the 38R and 38T containers listed in the 
marketing order will fit within the dimensions for the new 38R and 38T 
containers as defined in the CCR. Therefore, handlers and producers 
will be able to continue using their current supply of 38R and 38T 
containers or purchase the new containers. This should have minimal 
impact on the industry as the cost for the new containers is expected 
to be less than the 38R and 38T containers utilized last fiscal period.
    The 38Q container depth and width dimensions listed in the 
marketing order will not fit within the new depth and width dimensions 
for the new 38Q container as defined in the CCR. Therefore, handlers 
will need to utilize new containers. The Committee surveyed handlers 
and determined that none have stocks of 38Q containers. According to 
industry members, the new 38Q containers will cost handlers $0.20 less 
per container. This cost savings will be passed on to producers.
    The Committee estimates the 1998 crop will be approximately 
8,000,000 lugs. It is estimated that 2 to 3% of the crop (160,000 to 
240,000) lugs will be packed into 38Q containers. The Committee 
estimated that a minimal amount of grapes will be shipped in the new 
38U and 38V containers this fiscal period, but determined that handlers 
should have these containers available for use.
    The benefits of this rule are not expected to be disproportionately 
greater or less for small handlers or producers than for larger 
entities.
    The Committee discussed alternatives to this revision, including 
not revising the dimensions for the 38Q, 38R, and 38T containers and 
not adding the 38U and 38V containers, but determined that handlers and 
producers should benefit from this change. The new and revised 
containers, conform with California state requirements, which fit on 
the standard 48-  x  40-inch pallet, will address the marketing and 
shipping needs of the grape industry, and will accommodate the reduced 
net weight requirements established by the industry in March 1996. 
Thus, the Committee members unanimously agreed that the 38Q, 38R, and 
38T container dimensions should be revised, that the 38V and 38U 
containers should be added to containers authorized under the marketing 
order, and that conforming and formatting changes should be made to 
reflect the appropriate sections of the CCR.
    This action will not impose any additional reporting or 
recordkeeping requirements on either small or large grape handlers. 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.
    The Department has not identified any relevant Federal rules that 
duplicate, overlap or conflict with this final rule.
    In addition, the Committee's meeting was widely publicized 
throughout the grape industry and all interested persons were invited 
to attend the meeting and participate in Committee deliberations on all 
issues. Like all Committee meetings, the November 12, 1997, meeting was 
a public meeting and all entities, both large and small, were able to 
express views on this issue. The Committee itself is composed of 12 
members, of which 8 are handlers and producers, 1 is a producer only, 
and 2 are handlers only. The twelfth Committee member is the public 
member. Finally, interested persons are invited to submit information 
on the regulatory and informational impacts of this action on small 
businesses.
    After consideration of all relevant material presented, including 
the Committee's recommendation, and other available information, it is 
found that this interim final rule, as hereinafter set forth, will tend 
to effectuate the declared policy of the Act.
    Any comments received on this action will be considered prior to 
finalization of this rule.
    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) This action relaxes handling requirements 
currently in effect for grapes grown in designated areas of 
southeastern California; (2) California grape handlers are aware of 
this action which was unanimously recommended by the Committee at a 
public meeting, and they will need no additional time to comply with 
the relaxed requirements; (3) California grape shipments begin 
approximately

[[Page 658]]

April 20, 1998, and this rule needs to be in effect by February so 
containers can be ordered in time for harvest and shipment; and (4) 
this rule provides a 60-day comment period and any comments received 
will be considered prior to finalization of this rule.

List of Subjects in 7 CFR Part 925

    Grapes, Marketing agreements and orders, Reporting and 
recordkeeping requirements.

    For the reasons set forth in the preamble, 7 CFR part 925 is 
amended to read as follows:

PART 925--GRAPES GROWN IN A DESIGNATED AREA OF SOUTHEASTERN 
CALIFORNIA

    1. The authority citation for 7 CFR part 925 continues to read as 
follows:

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

    2. In part 925, the words ``California Administrative Code (Title 
3)'' are removed and the words ``Title 3: California Code of 
Regulations'' are added in their place everywhere they appear.
    3. In Sec. 925.304:
    (A) Paragraph (b)(1) introductory text is amended by removing the 
number ``1380.19(14)'' and adding in its place the phrase ``1380.14, 
and 1380.19(n)'', and
    (B) Paragraphs (b)(1)(i) through (vii) are removed and paragraphs 
(b)(1)(viii) and (ix) are redesignated as paragraphs (b)(1)(ii) and 
(b)(1)(iii) and a new paragraph (b)(1)(i) is added to read as follows:


Sec. 925.304  California Desert Grape Regulation 6.

* * * * *
    (b) * * *
    (1) * * *
    (i)

                                        Container Descriptions in Inches                                        
----------------------------------------------------------------------------------------------------------------
            Container                    Depth                Width                        Length               
----------------------------------------------------------------------------------------------------------------
28 Sawdust Pack.................  7\3/4\ (inside)....  14\15/16\ (inside).  18\5/8\ (inside).                   
38J Polystyrene Lug.............  6\3/4\ (inside)....  12\1/2\ (inside)...  15\3/8\ (inside).                   
38K Standard Grape..............  4\1/2\ to 8\1/2\     13\1/2\ to 14\1/2\   16\5/8\ to 17\1/2\ (outside).       
                                   (inside).            (outside).                                              
38Q Polystyrene Lug.............  6\1/4\ to 8\1/4\     11\1/4\ (inside)...  18\1/8\ (inside).                   
                                   (inside).                                                                    
38R Grape Lug...................  4 to 7 (inside)....  15\3/4\ to 16        19\11/16\ to 20 (outside).          
                                                        (outside).                                              
38S Grape Lug...................  5 to 9 (inside)....  11\11/16\ to 12      19\11/16\ to 20 (outside).          
                                                        (outside).                                              
38T Grape Lug...................  5\1/2\ to 7\1/2\     13\1/8\ to 13\15/    15\5/16\ to 16 (outside).           
                                   (inside).            16\ (outside).                                          
38U Grape Lug...................  6\3/16\ to 7         13\11/16\ (outside)  20\1/2\ (outside).                  
                                   (inside).                                                                    
38 V Grape Lug..................  5 \3/4\ (inside)...  14 (outside).......  16 (outside).                       
----------------------------------------------------------------------------------------------------------------

* * * * *
    Dated: December 30, 1997.
Sharon Bomer Lauritsen,
Acting Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 98-284 Filed 1-6-98; 8:45 am]
BILLING CODE 3410-02-P