[Federal Register Volume 67, Number 81 (Friday, April 26, 2002)]
[Rules and Regulations]
[Pages 20607-20613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-10298]



 ========================================================================
 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. 67, No. 81 / Friday, April 26, 2002 / Rules 
and Regulations  

[[Page 20607]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 925

[Docket No. FV02-925-2 IFR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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

SUMMARY: This rule revises container and pack requirements prescribed 
under the California grape marketing order (order). The 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 adds four new 
containers (38L, 38M, CP, and CP1) to the list of containers authorized 
for use by grape handlers regulated under the grape order, allows 
reusable plastic containers (RPCs) in shipping grapes, revises lot 
stamping requirements for RPCs, exempts master containers containing 
individual consumer packages from the minimum net weight requirements 
specified under the order, and revises marking and minimum net weight 
requirements for clarity. This rule is expected to help handlers 
compete more effectively in the marketplace, better meet the needs of 
buyers, and to improve producer returns.

DATES: April 29, 2002; comments received by June 25, 2002, 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: (202) 720-8938, or E-mail: [email protected]. 
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: Rose Aguayo, California Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA, 2202 Monterey Street, suite 102B, 
Fresno, California 93721; telephone: (559) 487-5901, Fax: (559) 487-
5906; 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: (202) 720-2491, Fax: (202) 720-8938.
    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: (202) 720-
2491, Fax: (202) 720-8938, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order 
No. 925 (7 CFR part 925), as amended, regulating the handling of grapes 
grown in California, hereinafter referred to as the ``order.'' The 
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 (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. A 
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 revises container and pack requirements prescribed under 
the California grape order. The order regulates the handling of grapes 
grown in a designated area of Southeastern California and is 
administered locally by the Committee. This rule adds four new 
containers (38L, 38M, CP, and CP1) to the list of containers authorized 
for use by grape handlers regulated under the grape order, allows RPCs 
in shipping grapes, revises lot stamping requirements for RPCs, and 
exempts master containers containing individual consumer packages from 
the minimum net weight requirements specified under the order. This 
rule is expected to help handlers compete more effectively in the 
marketplace, better meet the needs of buyers, and to improve producer 
returns. The Committee unanimously recommended these changes at its 
February 12, 2002, meeting and clarified via a fax vote on February 21, 
2002.

Addition of Four New Containers and Usage of RPCs

    Section 925.52(a)(4) of the grape order provides authority to 
regulate size, capacity, weight, dimensions, marking, 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 
be packed in containers which are new and clean and which otherwise 
meet the requirements of Secs. 1380.14, 1380.19(n), 1436.37, and 
1436.38 of Title 3: California Code of Regulations (CA Code of 
Regulations).
    Currently, Sec. 925.304(b)(1)(i) through (b)(1)(iii) of the order's 
rules and

[[Page 20608]]

regulations authorize ten containers (28, 39J, 39K, 38Q, 38R, 38S, 38T, 
38U, 38V, 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 Code of 
Regulations and are incorporated by reference and that a notice of any 
change in these materials will be published in the Federal Register.
    Container requirements prescribed under the California grape order 
were last revised in January 1998 (63 FR 655, January 7, 1998). In 
March 1998, the 38L grape lug was added to the CA Code of Regulations, 
but has not yet been added to the list of approved containers under the 
Federal order. The 38L grape lug is defined as any container with an 
inside depth of 7\5/8\ inches, an outside width of 13\11/16\ inches, 
and an outside length of 16 inches.
    Since that time, many retailers have asked handlers to pack grapes 
in specific RPCs, corrugated lugs, and master containers that are not 
authorized as containers under Sec. 925.304(b)(1)(i). There are several 
manufacturers of these containers, and each manufacturer's container 
dimensions vary slightly. During previous seasons, handlers applied for 
and obtained Committee approval to use these containers on an 
experimental basis.
    Recently, the Grape and Tree Fruit League (League) petitioned the 
California Department of Food and Agriculture (CDFA) to add the 38M 
grape lug to the list of standardized containers in the CA Code of 
Regulations. Standard containers represent container types that are 
recognized by the industry and adopted by the retail trade. The CDFA 
expects the 38M grape lug to be standardized in the CA Code of 
Regulations by May 2002.
    At its February 12, 2002, meeting, the Committee unanimously 
recommended adding most of the containers previously approved as 
experimental containers, including the 38M grape lug, to the list of 
containers authorized under the order's rules and regulations. In 
reviewing container dimensions, the Committee concluded that the depth, 
width, and length dimensions for the 38L, 38M, CP, and CP1 grape lug's 
encompass the dimensions of the containers previously approved by the 
Committee for experimental purposes. Therefore, the Committee 
unanimously recommended, through a fax vote on February 21, 2002, that 
the following four containers be added to the list of containers 
authorized in the order's rules and regulations:

----------------------------------------------------------------------------------------------------------------
                            Container                              Depth inside    Width outside  Length outside
----------------------------------------------------------------------------------------------------------------
38L Grape Lug...................................................          7\5/8\       13\11/16\              16
38M Grape Lug...................................................   4\1/4\-5\3/4\      15\3/8\-16      23\1/2\-24
CP Grape Lug....................................................   3\15/16\-4\3/   15\3/4\-15\9/   23\1/2\-23\3/
                                                                              4\             16\              4\
CP1 Grape Lug...................................................        4\3/4\-5      19\1/2\-20      23\3/4\-24
----------------------------------------------------------------------------------------------------------------

    These containers may be constructed of several different materials 
(e.g., plastic or fiberboard) but should conform to the range of 
dimensions listed above.
    These containers are an integral part of the marketing efforts used 
by many handlers to meet market demands. Some of these containers are 
RPCs. Retailers have requested that fruit be shipped in RPCs, as it can 
be cooled quickly in these containers. This, in turn, helps ensure that 
the grapes are fresh when they arrive at destination. The use of RPCs 
may result in substantial savings to retailers for storage and disposal 
as retailers return RPCs to a central area for cleaning and 
redistribution. Cost savings may accrue to handlers, as well, since 
they do not have to buy new containers for each shipment.
    Section 925.304(b)(1) of the rules and regulations requires grapes 
to be packed in new and clean containers. Containers, other than RPCs, 
are intended to be used once and discarded. Grapes packed in RPCs are 
typically delivered to the retailer, emptied, and returned to the 
clearinghouse for cleaning and redistribution. As RPCs are reusable, 
the Committee recommended that the rules and regulations be revised to 
allow RPCs to be reused, provided such containers are cleaned. Allowing 
RPCs to be reused is expected to reduce the burden on handlers as they 
will not have to apply and obtain Committee approval annually to 
utilize them.
    Adding these four containers to the rules and regulations will 
enable handlers to meet their customer requirements this season. This 
action will help the industry in providing consumers with high quality 
grapes, promoting buyer satisfaction, and improving producer returns. 
This action will not impact the grape import requirements.

Lot Stamping Requirements

    Section 925.55 of the order requires inspection and certification 
of grapes, handled by handlers.
    Section 925.304(b)(4) of the grape order's rules and regulations 
requires containers of grapes to be plainly marked with the lot stamp 
number corresponding to the lot inspection conducted by an authorized 
inspector, and specifies that such requirement shall not apply to 
containers in the center tier of a 3 box by 3 box pallet configuration.
    Each lot will be traceable through the lot stamp, since the lot 
stamp number on the pallet tag corresponds to the lot stamp number 
annotated on the inspection certificate.
    During the 2001 season, the Committee approved the use of RPCs for 
experimental purposes. RPCs are made of plastic and retailers send 
these reusable containers to a central clearinghouse after use for 
cleaning and sanitizing. Because RPCs are reusable, these plastic 
containers do not support markings that are permanently affixed to the 
container. All markings must be printed on cards which slip into tabs 
on the front or sides of the containers. The cards are easily inserted 
and removed, and further contribute to the efficient use of the 
container. Because of their unique portability, the industry and 
inspection service are concerned that the cards on pallets of inspected 
containers could easily be moved to pallets of uninspected containers.
    The industry experimented last season with round adhesive labels on 
RPCs. The lot stamp number was stamped on the round adhesive label and 
placed on the RPCs. However, it was difficult to remove the adhesive 
label in the wash cycle. Additionally, handlers found that workers 
needed to affix the adhesive label to the RPCs, and inspectors needed 
to stamp the lot stamp number on the adhesive labels, outside of cold 
storage facilities. During July 2001, temperatures in the production 
area reached 100 to 118

[[Page 20609]]

degrees Fahrenheit. Committee members estimated that for each hour that 
grapes were outside of cold storage after harvest, a day's shelf life 
was lost. Handler members calculated that affixing adhesive labels to 
RPCs cost the grape industry approximately $0.10 per grape lug in 
materials and labor. The inspection service and the Committee have 
presented their concerns to the manufacturers of these types of grape 
lugs. One manufacturer has indicated a willingness to address the 
problem by offering an area on the principal display panel where the 
container markings will adhere to the box. However, the manufacturer 
believes that this change may not be feasible in the near future.
    To address the additional time and cost of affixing adhesive labels 
to containers, the Committee unanimously recommended that the lot 
numbers be stamped on two USDA-approved pallet tags, with each pallet 
tag affixed to opposite sides of each pallet of containers. The pallets 
will be wrapped with clear plastic immediately after inspection, 
ensuring the tags cannot be easily removed, although the tags remain 
visible beneath the wrap. The Committee estimated that affixing lot 
stamp numbers to pallet tags would reduce handler costs by $950,000, 
make handler operations more efficient, and will provide consumers with 
high quality grapes. Additionally, each lot will be traceable through 
the lot stamp, since the lot stamp number on the pallet tag corresponds 
to the lot stamp number annotated on the inspection certificate. This 
action will not affect imports.

Minimum Net Weight Requirements

    Section 925.52(a)(4) of the grape order provides authority to fix 
the size, capacity, weight, dimensions, markings, materials, and pack 
of the container, which may be used in the handling of grapes.
    Section 925.304(b)(2) specifies that the minimum net weight of 
grapes in any container, except for containers containing grapes packed 
in sawdust, cork, excelsior or similar packing material or packed in 
bags or wrapped in plastic or paper, and experimental containers, shall 
be 20 pounds based on the average net weight of grapes in a 
representative sample of containers.
    Section 925.340(b)(2) further specifies that containers of grapes 
packed in bags or wrapped in plastic or paper prior to being placed in 
these containers shall meet a minimum net weight requirement of 18 
pounds.
    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. 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 the 
container minimum net weights should be reduced to 18 and 20 pounds. 
Based on these conclusions, the Committee recommended and USDA approved 
reducing the minimum net weight requirements in March 1996 to enhance 
the deliverability of grapes (61 FR 11129, March 19, 1996).
    Since that time, grape handlers have packed grapes in 18 and 20-
pound containers and marked such containers as 18 and 20 pounds. The 
minimum net weight of grapes in 20-pound containers is based on the 
average net weight of grapes in a representative sample of containers. 
The minimum net weight of grapes for the 18-pound containers also is 
based on an average net weight of grapes in a representative sample of 
containers. The language in Sec. 925.304 (b)(2) is changed to 
specifically provide that containers containing grapes packed in bags 
or wrapped in plastic or paper prior to being placed in these 
containers must meet a minimum net weight requirement of 18 pounds 
based on an average net weight of grapes in a representative sample of 
containers.
    Approximately 95 percent of all grapes shipped during the 2001 
season were shipped in 18-pound containers. Grapes normally lose 
moisture during shipment. To address mislabeling concerns, it is common 
practice in the industry to pack containers of grapes slightly over the 
minimum net weight required to allow for shrink, and to mark these 
containers as 18 or 20 pounds, respectively. Last season, some 
containers were packed with slightly more than 21 pounds and marked as 
21 pounds. Marking containers other than 18 or 20 pounds causes 
confusion in the marketplace and impacts on handler assessments and 
statistical reporting. Thus, the Committee unanimously recommended at 
its February 12, 2002, meeting, that containers packed with slightly 
more than 18 or 20 pounds shall be marked as 18 and 20 pounds, 
respectively. To address this issue, the text of this interim final 
rule provides that containers other than master containers containing 
individual consumer packages are to be marked with the net weight of 18 
or 20 pounds, as appropriate.
    Recently, retailers have requested master containers containing 
individual consumer packages that weigh a total of 24 pounds, 16 
pounds, or 10 pounds. An individual consumer package is a package that 
is customarily produced and distributed for sale to individuals for 
their personal consumption.
    The Committee discussed the best means of allowing handlers to meet 
orders for master containers containing individual consumer packages 
that had different minimum net weight requirements. The Committee 
estimated that approximately 2 percent of the crop is shipped in master 
containers containing individual consumer packages and unanimously 
recommended revising Sec. 925.304(b)(2) to exempt master containers 
containing individual consumer packages from the minimum net weight 
requirements of 18 or 20 pounds. These revisions will enable handlers 
to compete more effectively in the marketplace and to better meet the 
needs of buyers. These revisions do not impact the grape import 
regulation.

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 the 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 80 producers of grapes in the production 
area and approximately 26 handlers subject to regulation under the 
order. Small agricultural producers are defined by the Small Business 
Administration (SBA)(13 CFR 121.201) as those having annual receipts 
less than $750,000, and small agricultural service firms are defined as 
those whose annual receipts are less than $5,000,000.
    Last year, about 69 percent of the handlers could be considered 
small businesses under SBA's definition and about 31 percent could be 
considered large businesses. It is estimated that about 88 percent of 
the producers have annual receipts of less than $750,000. Therefore, 
the majority of handlers and

[[Page 20610]]

producers of grapes may be classified as small entities.
    This rule invites comments on revisions to container and pack 
requirements prescribed under the California grape order. This rule 
adds four new containers (38L, 38M, CP, and CP1) to the list of 
containers authorized for use by grape handlers regulated under the 
grape order, which covers grapes grown in a designated area of 
Southeastern California. This rule also allows handlers to ship grapes 
in RPCs, revises lot stamping requirements for RPCs, and exempts master 
containers containing individual consumer packages from the minimum net 
weight requirements specified under the grape order. Additionally, this 
rule clarifies marking requirements for 18 and 20 pound containers and 
removes obsolete language contained in Secs. 925.304(a) and 
925.304(b)(iii) that was applicable to the period June 1, 1998, through 
August 15, 1998.
    The order regulates the handling of grapes grown in California and 
is administered locally by the Committee. This rule is expected to help 
handlers compete more effectively in the marketplace, better meet the 
needs of buyers, and to improve producer returns. The Committee 
unanimously recommended these changes. Authority for these actions is 
provided in Secs. 925.52 and 925.55 of the order.

Addition of Four New Containers and Usage of RPCs

    Section 925.304(b)(1) of the order's rules and regulations outlines 
container and pack requirements for grapes and requires such grapes to 
be packed in containers which are new and clean and which otherwise 
meet the requirements of Secs. 1380.14, 1380.19(n), 1436.37, and 
1436.38 of the Code of Regulations.
    Currently Sec. 925.304(b)(1)(i) through (b)(1)(iii) of the order's 
rules and regulations authorize ten containers (28, 39J, 39K, 38Q, 38R, 
38S, 38T, 38U, 38V, 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 Code of 
Regulations and are incorporated by reference and that a notice of any 
change in these materials will be published in the Federal Register.
    Container requirements prescribed under the California grape order 
were last revised in January 1998 (63 FR 655, January 7, 1998). In 
March 1998, the 38L grape lug was added to the Code of Regulations, but 
has not yet been added to the list of approved containers under the 
order. The 38L grape lug is defined as any container with an inside 
depth of 7\5/8\ inches, an outside width of 13\11/16\ inches, and an 
outside length of 16 inches.
    Since that time, many retailers have asked handlers to pack grapes 
in specific RPCs, corrugated lugs, and master containers that are not 
authorized as containers under Sec. 925.304(b)(1)(i). There are several 
manufacturers of these containers, and each manufacturer's container 
dimensions vary slightly. During previous seasons, handlers applied for 
and obtained Committee approval to use these containers on an 
experimental basis.
    Recently, the League petitioned the CDFA to add the 38M grape lug 
to its list of standardized containers in the Code of Regulations. 
Standard containers represent container types that are recognized by 
the industry and adopted by the retail trade.
    The range of dimensions allowed for the 38M grape lug encompasses 
the dimensions of many of the containers used experimentally during 
previous seasons, including some RPCs. The CDFA expects the 38M grape 
lug to be standardized in the Code of Regulations by May 2002.
    At its February 12, 2002, meeting, the Committee unanimously 
recommended adding most of the containers previously approved as 
experimental containers during the 2001 season, including the 38M grape 
lug, to the list of containers authorized under the rules and 
regulations. In reviewing container dimensions, the Committee concluded 
that the 38L, 38M, CP, and CP1 grape lugs' depth, width, and length 
dimensions will encompass the containers previously approved by the 
Committee for experimental purposes. Therefore, the Committee 
unanimously recommended, through a fax vote on February 21, 2002, that 
the following four containers be added to the list of containers 
authorized in the order's rules and regulations:

------------------------------------------------------------------------
                                      Depth        Width        Length
            Container                 inside      outside      outside
------------------------------------------------------------------------
38L Grape Lug....................       7\5/8\    13\11/16\           16
38M Grape Lug....................  4\1/4\-5\3/   15\3/8\-16   23\1/2\-24
                                            4\
CP Grape Lug.....................    3\15/16\-     15\3/4\-     23\1/2\-
                                        4\3/4\     15\9/16\      23\3/4\
CP1 Grape Lug....................     4\3/4\-5   19\1/2\-20   23\3/4\-24
------------------------------------------------------------------------

These containers may be constructed of several different materials 
(e.g., plastic or fiberboard), but should conform to the range of 
dimensions listed above.
    The Committee discussed alternatives to this change, including 
making no changes to the list of containers authorized under the grape 
order's rules and regulations. The Committee determined that the 38L, 
38M, CP, and CP1 grape lugs should be added to the rules and 
regulations as these containers are an integral part of the marketing 
efforts used by many handlers to meet market demands. Some of these 
containers are RPCs. Retailers have requested that fruit be shipped in 
RPCs, as it can be cooled quickly in them, helping to ensure freshness. 
The use of RPCs may result in substantial savings to retailers for 
storage and disposal as retailers return RPCs to a central area for 
cleaning and redistribution. Cost savings may accrue to handlers, as 
well, since they do not have to buy new containers for each shipment.
    Section 925.304(b)(1) of the rules and regulations requires such 
grapes to be packed in new and clean containers. Containers, other than 
RPCs, are intended to be used once and discarded. Grapes packed in RPCs 
are typically delivered to the retailer, emptied, and returned to the 
clearinghouse for cleaning and redistribution. As RPCs are reusable, 
the Committee recommended that the rules and regulations be revised to 
allow RPCs to be reused, provided such containers are cleaned. Allowing 
cleaned RPCs to be reused is expected to help handlers better meet 
buyer needs.
    Adding these four containers to the rules and regulations will 
enable handlers to meet their customer's requirements this season. This 
action will help the industry in providing consumers with high quality 
grapes, promoting buyer satisfaction, and improving producer returns. 
This action will not impact grape imports.

[[Page 20611]]

Lot Stamping Requirements

    Section 925.304(b)(4) of the grape order's rules and regulations 
requires containers of grapes to be plainly marked with the lot stamp 
number corresponding to the lot inspection conducted by an authorized 
inspector, and specifies that such requirement shall not apply to 
containers in the center tier in a 3 box by 3 box pallet configuration.
    Each lot will be traceable through the lot stamp, since the lot 
stamp number on the pallet tag corresponds to the lot stamp number 
annotated on the inspection certificate.
    During the 2001 season, the Committee approved usage of RPCs for 
experimental purposes. RPCs are made of plastic and retailers send 
these reusable containers to a central clearinghouse after use for 
cleaning and sanitizing. Because RPCs are reusable, these plastic 
containers do not support markings that are permanently affixed to the 
container. All markings must be printed on cards, which slip into tabs 
on the front or sides of the containers. The cards are easily inserted 
and removed, and further contribute to the efficient use of the 
container. Because of their unique portability, the industry and 
inspection service are concerned that the cards on pallets of inspected 
containers could easily be moved to pallets of uninspected containers.
    The industry experimented last season with round adhesive labels on 
RPCs. The lot stamp number was stamped on the round adhesive label and 
the label was placed on the RPCs. However, manufacturers found that it 
was difficult to remove in the wash cycle. Additionally, handlers found 
that workers need to affix the adhesive label to the RPCs, and 
inspectors needed to stamp the lot stamp number on the adhesive labels, 
outside of cold storage facilities. During July 2001, temperatures in 
the production area reached 100 to 118 degrees Fahrenheit. Committee 
members estimated that for each hour that grapes were outside of cold 
storage after harvest, a day's shelf life was lost. Handler members 
calculated that affixing adhesive labels to RPCs cost the grape 
industry approximately $0.10 per grape lug in materials and labor. The 
inspection service and the Committee have presented their concerns to 
the manufacturers of these types of grape lugs. One manufacturer has 
indicated a willingness to address the problem by offering an area on 
the principle display panel where the container markings will adhere to 
the box, which will meet the needs of the industries, the inspection 
service, and the manufacturer. However, the manufacturer believes that 
this change may not be feasible in the near future.
    To address the additional time and cost of affixing adhesive labels 
to containers, the Committee unanimously recommended that the lot 
numbers be stamped on two USDA-approved pallet tags, with each pallet 
tag affixed to opposite sides of each pallet of containers. The pallets 
will be wrapped with clear plastic immediately after inspection 
ensuring the tags cannot be easily removed, although the tags remain 
visible beneath the wrap. The Committee estimated that affixing lot 
stamp numbers to pallet tags would reduce handler costs by $950,000, 
make handler operations more efficient, and will provide consumers with 
high quality grapes. Additionally, each lot will be traceable through 
the lot stamp, since the lot stamp number on the pallet tag corresponds 
to the lot stamp number annotated on the inspection certificate. This 
action will not affect imports.
    The Committee discussed alternatives to this change, including 
making no changes to the lot stamp-numbering requirement. The Committee 
believed that relaxing the lot stamp numbering requirement under the 
rules and regulations will result in better quality grapes being 
shipped to consumers, a reduction in handler costs, and improved 
producer returns. Thus, the Committee recommended revising 
Sec. 925.304(b)(4) to require the number be stamped on two USDA-
approved pallet tags for RPCs, and that the pallet tags be placed on 
opposite sides of each pallet. This action will not affect imports.

Minimum Net Weight Requirements

    Section 925.52(a)(4) of the grape order provides authority to fix 
the size, capacity, weight, dimensions, markings, materials, and pack 
of the container which may be used in the handling of grapes.
    Section 925.304(b)(2) specifies the minimum net weight of grapes in 
any container, except for containers containing grapes packed in 
sawdust, cork, excelsior or similar packing material or packed in bags 
or wrapped in plastic or paper. It specifies that approved experimental 
containers shall be 20 pounds based on the average net weight of grapes 
in a representative sample of containers.
    Section 925.340(b)(2) further specifies that containers of grapes 
packed in bags or wrapped in plastic or paper prior to being placed in 
these containers shall meet a minimum net weight requirement of 18 
pounds.
    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. 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 the container minimum net weights should be 
reduced to 18 and 20 pounds. Based on these conclusions, the Committee 
recommended and the Secretary approved reducing the minimum net weight 
requirements in March 1996 to enhance the deliverability of grapes (61 
FR 11129, March 19, 1996).
    Since that time, grape handlers have packed grapes in 18 and 20-
pound containers and marked such containers as 18 and 20 pounds. 
Approximately 95 percent of all grapes shipped during the 2001 season 
were shipped in 18-pound containers. Grapes normally lose moisture 
during shipment. To address mislabeling concerns, it is common practice 
in the industry to pack containers of grapes slightly over the minimum 
net weight required to allow for shrink, and to mark these containers 
as 18 or 20 pounds, respectively. Last season, some containers were 
packed with slightly more than 21 pounds and marked as 21 pounds. 
Marking containers other than 18 or 20 pounds causes confusion in the 
marketplace and impacts on handler assessments and statistical 
reporting. Thus, the Committee unanimously recommended at its February 
12, 2002 meeting, that containers packed with slightly more than 18 or 
20 pounds shall be marked as 18 or 20 pounds, as appropriate. To 
address this issue, Sec. 925.304(b)(2) is revised to provide that 
containers other than master containers containing individual consumer 
packages are to be marked with the minimum net weight of 18 or 20 
pounds, as appropriate.
    The Committee discussed alternatives to this change. The Committee 
believes that allowing markings other than 18 or 20-pound markings 
could cause confusion in the marketplace and may not address the 
mislabeling concerns as grapes lose moisture and shrink during 
shipment. Thus, the Committee unanimously recommended at its February 
12, 2002, meeting, that the container marking requirements in 
Sec. 925.304(b)(2) be revised as provided in this interim final rule.

[[Page 20612]]

    Recently, retailers have requested master containers containing 
individual consumer packages that weigh a total of 24 pounds, 16 
pounds, or 10 pounds. An individual consumer package is a package that 
is customarily produced and distributed for sale to individuals for 
their personal consumption.
    The Committee discussed alternatives to this change, including 
making no change to the minimum net weight requirement for master 
containers containing individual consumer packages, but believes that 
providing this exception for master containers is in the best interest 
of handlers. The Committee estimated that approximately 2 percent of 
the crop is shipped in master containers containing individual consumer 
packages. The 2002 crop is estimated to be 9.5 million lugs. Allowing 
master containers containing individual consumer packages will enable 
handlers to market an additional 190,000 lugs of grapes. Therefore, The 
Committee unanimously recommended revising Sec. 925.304(b)(2) to exempt 
master containers containing individual consumer packages from the 
minimum net weight requirements of 18 or 20 pounds.
    Finally, the language in Sec. 925.304(b)(2) is changed for clarity 
to specifically provide that containers containing grapes packed in 
bags or wrapped in plastic or paper prior to being placed in these 
containers must meet a minimum net weight requirement of 18 pounds 
based on an average net weight of grapes in a representative sample of 
containers.
    These revisions will enable handlers to compete more effectively in 
the marketplace and to better meet the needs of buyers. Imported grapes 
will not be affected by this action.

Removal of Obsolete Language

    This rule also makes minor changes to remove obsolete language in 
paragraphs (a) and (b)(1)(iii) of Sec. 925.304. These paragraphs 
include references to the period June 1, 1998, through August 15, 1998, 
which marked the trial usage of the ``DGAC Consumer No. 1 
Institutional'' (DGAC) grade. This rule removes those two obsolete 
references.
    This rule 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.
    In addition, USDA has not identified any relevant Federal rules 
that duplicate, overlap or conflict with this 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. Like all 
Committee meetings, the February 12, 2002, meeting was a public meeting 
and all entities, both large and small, were able to express their 
views on this issue. A fax vote was conducted to clarify the 
recommendation regarding the number and dimensions of containers to be 
added to the list currently authorized under the grape order. All 
handlers were provided information on the number and dimensions of 
containers to be added to the order.
    Finally, 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.
    This rule invites comments on adding four new containers (38L, 38M, 
CP, and CP1) to the list of containers authorized for use by grape 
handlers regulated under the grape order, which covers grapes grown in 
a designated area of Southeastern California, allowing reusable plastic 
containers (RPCs) in shipping grapes, revising lot stamping 
requirements for RPCs, and exempting master containers containing 
individual consumer packages from the minimum net weight requirements 
specified under the order. Additionally, this rule revises marking and 
minimum net weight requirements for 18 and 20-pound containers for 
clarity, and removes obsolete language contained in Secs. 925.304(a) 
and 925.304(b)(iii) that was applicable to the period June 1, 1998, 
through August 15, 1998. This rule is expected to help handlers compete 
more effectively in the marketplace, better meet the needs of buyers, 
and to improve producer returns. Any comments received will be 
considered prior to finalization of this rule.
    After consideration of all relevant material presented, including 
the Committee's recommendation and other information, it is found that 
this interim final 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) This action relaxes handling requirements currently in 
effect for grapes grown in designated areas of southeastern California; 
(2) The Committee unanimously recommended these changes at a public 
meeting and interested parties had an opportunity to provide input; (3) 
California grape shipments begin approximately April 20, 2002, and this 
rule should be in effect as soon as possible, so handlers can take 
advantage of these changes; and (4) this rule provides for 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 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. Section 925.304 is amended by removing the last two sentences in 
paragraph (a) and revising paragraphs (b)(1) introductory text, 
(b)(1)(i), (b)(1)(iii), (b)(2), and (b)(4) to read as follows:


Sec. 925.304  California Desert Grape Regulation 6.

* * * * *
    (b) Container and pack. (1) Such grapes shall be packed in one of 
the following containers, which are new and clean, and otherwise meet 
the requirements of sections 1380.14, and 1380.19(n), 1436.37, and 
1436.38 of Title 3: California Code of Regulations, except that 
reusable plastic containers may be reused if such containers are clean:

[[Page 20613]]



                                        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\-8\1/2\ (inside)..  13\1/2\-14\1/2\          16\5/8\-17\1/2\
                                                                 (outside).               (outside)
38L Grape Lug.......................  7\5/8\ (inside).........  13\11/16\ (outside)....  16 (outside)
38M Grape Lug.......................  4\1/4\-5\3/4\ (inside)..  15\3/8\-16 (outside)...  23\1/2\-24 (outside)
38Q Polystyrene Lug.................  6\1/4\-8\1/4\ (inside)..  11\1/4\ (inside).......  18\1/8\ (inside)
38R Grape Lug.......................  4-7 (inside)............  15\3/4\-16 (outside)...  19\11/16\-20 (outside)
38S Grape Lug.......................  5-9 (inside)............  11\11/16\-12 (outside).  19\11/16\--20 (outside)
38T Grape Lug.......................  5\1/2\-7\1/2\ (inside)..  13\1/8\-13\15/16\        15\5/16\-16 (outside)
                                                                 (outside).
38U Grape Lug.......................  6\3/16\-7 (inside)......  13\11/16\ (outside)....  20\1/2\ (outside)
38 V Grape Lug......................  5\3/4\ (inside).........  14 (outside)...........  16 (outside)
CP Grape Lug........................  3\15/16\-4\3/4\ (inside)  15\3/4\-15\9/16\         23\1/2\-23\3/4\
                                                                 (outside).               (outside)
CP1 Grape Lug.......................  4\3/4\-5 (inside).......  19\1/2\-20 (outside)...  23\3/4\-24 (outside)
----------------------------------------------------------------------------------------------------------------

* * * * *
    (iii) Such other types and sizes of containers as may be approved 
by the Committee for experimental or research purposes.
    (2) The minimum net weight of grapes in any such containers, except 
for containers containing grapes packed in sawdust, cork, excelsior or 
similar packing material, or packed in bags or wrapped in plastic or 
paper, and containers authorized in paragraph (b)(1)(iii) of this 
section, shall be 20 pounds based on the average net weight of grapes 
in a representative sample of containers. Grapes in any such containers 
packed in bags, or wrapped in plastic or paper prior to being placed in 
these containers shall meet a minimum net weight of 18 pounds based on 
the average net weight of grapes in a representative sample of 
containers: Provided, That grapes packed in master containers 
containing individual consumer packages are exempt from container 
marking requirements and minimum net weight requirements. Containers of 
grapes other than master containers containing individual consumer 
packages shall be marked with the minimum net weight of 20 or 18 
pounds.
* * * * *
    (4) Such containers of grapes shall be plainly marked with the lot 
stamp number corresponding to the lot inspection conducted by an 
authorized inspector, except that such requirement shall not apply to 
containers in the center tier of a lot palletized in a 3 box by 3 box 
pallet configuration: Provided, That pallets of reusable plastic 
containers shall have the lot stamp number stamped on two USDA-approved 
pallet tags, each affixed to opposite sides of the pallet of 
containers, in addition to other required information on the cards of 
the individual containers, as provided in sections 1460.30 and 1359 of 
Title 3: California Code of Regulations.
* * * * *

    Dated: April 19, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-10298 Filed 4-25-02; 8:45 am]
BILLING CODE 3410-02-P