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

Federal RegisterJan 7, 1998

Ask Donna

What actually matters in this document.

Text

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.

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

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.