[Federal Register Volume 63, Number 64 (Friday, April 3, 1998)]
[Rules and Regulations]
[Pages 16387-16390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8785]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 63, No. 64 / Friday, April 3, 1998 / Rules 
and Regulations  

[[Page 16387]]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 925

[Docket No. FV98-925-2 FIR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Agriculture (Department) is adopting, as a 
final rule, without change, an interim final rule which revised the 
container requirements prescribed under the California grape marketing 
order. This rule continues in effect revised dimensions for three 
containers currently authorized for use by grape handlers regulated 
under the marketing order, the addition of two new containers, and 
several conforming and formatting changes to the container 
requirements. The revised container requirements conform with those 
recently adopted by the State of California, address the marketing and 
shipping needs of the grape industry, are expected to improve returns 
for handlers and producers, and are in the interest of consumers.

EFFECTIVE DATE: May 4, 1998.

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, Technical Advisor, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
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, Fruit and Vegetable 
Programs, 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 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 the date of the entry of the ruling.
    This rule continues in effect language in Sec. 925.304 of the 
order's rules and regulations which revised dimensions for three 
containers authorized for use by grape handlers, added two containers, 
and made several conforming and formatting changes to the grape 
container requirements. The revision to container requirements in 
Sec. 925.304(b) brought the requirements into conformity with those 
recently adopted by the State of California, addressed 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 continues in effect a change to 
paragraphs (a), (b), and (f) of Sec. 925.304 wherein a California 
Department of Food and Agriculture (CDFA) reference was changed from 
``California Administrative Code (Title 3)'' to ``Title 3: California 
Code of Regulations'' (CCR), continues in effect the removal of an 
incorrect CCR section number referenced in Sec. 925.304(b), and the 
addition of the correct CCR section number in Sec. 925.304(b) of the 
order's rules and regulations.
    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.
    Prior to the publication of the interim final rule (63 FR 655, 
January 7, 1998), Sec. 925.304(b)(1) of the order's rules and 
regulations required grapes handled under the marketing order to meet 
the requirements of Secs. 1380.19 (14), 1436.37, and 1436.38 of the 
California Administrative Code (Title 3); section 925.304(b)(1)(i) 
through (b)(1)(ix) of the order's rules and regulations authorized 
eight containers (28, 38J, 38K, 38Q, 38R, 38S, 38T, and a 5 kilo) for 
use by grape handlers and also authorized the Committee to approve 
other types of containers for experimental or research purposes; and 
Sec. 925.304(f) stated that certain container and pack requirements 
cited in the container regulation are specified in the California 
Administrative Code (Title 3) and are incorporated by reference, and 
that 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

[[Page 16388]]

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 changed the name of the California 
Administrative Code (Title 3) to Title 3: California Code of 
Regulations (CCR), and published several amendments to the CCR which 
added the 38U and 38V containers. It was noted that the dimensions of 
the 38Q, 38R, and 38T authorized in Sec. 925.304(b)(1)(iv), (v), and 
(vii) did not conform to those adopted by the State of California and 
that conforming changes were needed in those subparagraphs.
    The Committee met on November 12, 1997, and unanimously recommended 
modifying the language in Sec. 925.304 of the order's rules and 
regulations. The Committee recommended the following changes to 
Sec. 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\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, the conforming and formatting recommendations 
included removing Sec. 1380.19(14) because no such section existed in 
the CCR; adding CCR Secs. 1380.14 and 1380.19(n) to the regulation to 
make the regulation consistent with the State of California's code; and 
listing the authorized containers and dimensions in chart form, rather 
than narrative form.
    Imported grapes are not impacted by this action. Container and pack 
requirements are not required under the section 8e table grape import 
regulation (7 CFR part 944.503).
    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 final 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, excluding receipts from any other 
sources, 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 continues in effect modifications to language in 
Sec. 925.304 of the order's rules and regulations which revised the 
dimensions of three containers authorized for use by grape handlers, 
added two containers, and made several conforming and formatting 
changes. The revision to container requirements in Sec. 925.304(b) 
brought the container requirements into conformity with those recently 
adopted by the State of California, addressed 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 continues in effect changes in paragraphs (a), (b), 
and (f) of Sec. 925.304, wherein the term ``California Administrative 
Code (Title 3)'' was changed to ``Title 3: California Code of 
Regulations'' (CCR), continues in effect the removal of an incorrect 
CCR section number referenced in Sec. 925.304(b), and the addition of 
the correct CCR section number in Sec. 925.304(b) of the order's rules 
and regulations.
    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.
    Prior to the publication of an interim final rule (63 FR 655, 
January 7, 1998), Sec. 925.304(b)(1) of the order's rules and 
regulations outlined container and pack requirements which required 
grapes to meet the requirements of Secs. 1380.19 (14), 1436.37, and 
1436.38 of the California Administrative Code (Title 3). Section 
925.304(b)(1)(i) through (b)(1)(ix) of the order's rules and 
regulations authorized eight containers (28, 38J, 38K, 38Q, 38R, 38S, 
38T, and a 5 kilo) for use by grape handlers and also authorized the 
Committee to approve other types of containers for experimental or 
research purposes. Section 925.304(f) stated that certain container and 
pack requirements cited in the container regulation are specified in 
the California Administrative Code (Title 3) and are incorporated by 
reference, and that 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 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

[[Page 16389]]

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 changed the name of the California 
Administrative Code (Title 3) to Title 3: California Code of 
Regulations (CCR), and published several amendments to the CCR which 
added the 38U and 38V containers. It was noted that the dimensions of 
the 38Q, 38R, and 38T authorized in Sec. 925.304(b)(1)(iv), (v), and 
(vii) did not conform to those adopted by the State of California, and 
that the dimensions needed to conform with those requirements.
    The Committee met on November 12, 1997, and unanimously recommended 
modifying the language in Sec. 925.304 of the order's rules and 
regulations. The Committee recommended the following changes to 
Sec. 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 to make the 
regulations more reader friendly. Specifically, the conforming and 
formatting recommendations included removing Sec. 1380.19(14) because 
no such section exists in the CCR; adding CCR Secs. 1380.14 and 
1380.19(n) to the marketing order regulation to make it consistent with 
the State of California's code; and listing the authorized containers 
and dimensions in chart form, rather than narrative form.
    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 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 will 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 shipping 
season.
    The 38Q container depth and width dimensions listed in the 
marketing order did not fit within the new depth and width dimensions 
for the new 38Q container as defined in the CCR. Therefore, handlers 
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 may be passed on to producers.
    The Committee estimated that the 1998 crop will be approximately 
8,000,000 lugs. It is estimated that 2 to 3 percent 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 shipping season, 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, which conform to California state requirements, fit on the 
standard 48x40-inch pallet, address the marketing and shipping needs of 
the grape industry, and 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, and to make the regulations more reader friendly.
    This action imposes no 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.
    In addition, as noted in the initial regulatory flexibility 
analysis, the Department has not identified any relevant Federal rules 
that duplicate, overlap or conflict with this final rule.
    Further, 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 were invited to submit information 
on the regulatory and informational impacts of this action on small 
businesses.
    An interim final rule concerning this action was published in the 
Federal Register on January 7, 1998. Copies of the rule were mailed by 
the Committee's staff to all Committee members and grape handlers. In 
addition, the rule was made available through the Internet by the 
Office of the Federal Register. That rule provided for a 60-day comment 
period which ended March 9, 1998. One comment was received during the 
comment period in response to the interim final rule. The commenter, 
representing the California Grape and Tree Fruit League, expressed 
support for this action. Accordingly, no changes will be made to the 
rule as published, based on the comments received.
    This action does not impact the importation of grapes. Container 
and pack requirements are not required under the section 8e table grape 
import regulation (7 CFR part 944.503).
    After consideration of all relevant material presented, including 
the Committee's recommendation, and other available information, it is 
found that finalizing this interim final rule, without change, as 
published in the Federal Register (63 FR 655, January 7, 1998) will 
tend to effectuate the declared policy of the Act.

List of Subjects in 7 CFR Part 925

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

[[Page 16390]]

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

    Accordingly, the interim final rule amending 7 CFR part 925 which 
was published at 63 FR 655 on January 7, 1998, is adopted as a final 
rule without change.

    Dated: March 30, 1998.
Sharon Bomer Lauritsen,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 98-8785 Filed 4-2-98; 8:45 am]
BILLING CODE 3410-02-P