APPENDIX TO STATEMENT BY MALCOLM W. JENSEN

(State responses to inquiry of April 25, 1966, regarding proposed repeal of Standard Container Acts of 1916 and 1928)

Mr. CONABLE. Would you tell me the reason that the States that opposed repeal advanced for opposing it?

Mr. JENSEN. Generally it was that the standard containers are still used in the States.

Mr. ROUSH. There is a proliferation of the State requirements, I take it?

Mr. JENSEN. Basically the requirements among the States are quite similar in that (1) they permit the use of standard containers without labeling and (2) any other container of any package must be properly labeled as to commodity identification, quantity of contents, and manufacturers, packers, or distributor.

Mr. CONABLE. Does this bill have any connection with the truthin-packaging bill which has had a rather erratic course through Congress?

Mr. JENSEN. I see no direct connection, because, if S. 17 were to become law and the standards abolished, the containers still will have to be properly labeled under Federal law, and also under State laws. Mr. ROUDEBUSH. Mr. Chairman.

Mr. ROUSH. Mr. Roudebush.

Mr. ROUDEBUSH. A question did occur to me that I would like to ask.

On studying S. 17, I know it repeals the act of 1928 as well as the act of 1916, I believe.

The act of 1928 provides dimensions and sizes in bushel hampers, for example, and other measurements. Where under law is the size of a bushel established, other than in the Standard Container Act?

Mr. JENSEN. The contents of a bushel in cubic inches is not established by law, but by administrative act by the National Bureau of Standards. A bushel is 2,150.42 cubic inches, but the dimensions are not fixed, any more than the dimensions of a gallon.

Mr. ROUDEBUSH. And there is no law, except you might say the statement or the order from the Bureau of Standards, on the size? Mr. JENSEN. That is correct-although the Congress has authority to fix the standards of weight and measure by the Constitution.

Mr. ROUDEBUSH. If we do act favorably on S. 17 and agree with the Senate, then there would be no sizes established by law; is that correct? Mr. JENSEN. That is correct. Not by the Federal Government. Mr. ROUSH. Mr. Boone.

Mr. BOONE. Does this mean you have not published in the Federal Register the cubic content of a bushel?

Mr. JENSEN. Very definitely not.

Mr. BOONE. Then it is not a regulation in that sense?

But it would have almost the effect of a statute by having it published in the Federal Register?

Mr. JENSEN. There is however, no doubt that the sizes of physical measurements in the United States are firmly fixed, not only bushels, but gallons and pounds.

Mr. BOONE. In other words, there is a standard by which the Departments of Agriculture or HEW can determine what the cubic content of any measure should be?

Mr. JENSEN. Yes, sir; that is correct.

Mr. ROUSH. Then the Department does have regulatory power over these standards?

Mr. JENSEN. I think probably I should not answer that. I am not an attorney.

Mr. ROUSH. Don't you have your counsel with you?

Mr. JENSEN. Mr. Farrar.

Mr. ROUSH. Would you identify yourself for the record?

Mr. FARRAR. My name is Allen Farrar. I am the legal adviser for the National Bureau of Standards.

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Under section 2(a) of the act of March 3, 1901, as amended (15) U.S.C. 272(a)), the Secretary of Commerce is authorized to undertake "the custody, maintenance, and development of the national standards of measurement This authority has been delegated to the Director of the National Bureau of Standards. In carrying out this authority, the Director has caused to be published National Bureau of Standards Miscellaneous Publication 233, "Units of Weight and Measure-Definitions and Tables of Equivalents," dated December 20, 1960, in which are set forth the precise standards of measurement for such units as bushels, pounds, gallons, yards, and the like. As a historical reference, additional information on this subject can be found in National Bureau of Standards Circular 593, dated June 5, 1958, entitled "The Federal Basis for Weights and Measures."

Mr. ROUSH. Thank you.

Any other questions?

Mr. VIVIAN. On looking over the list of States to which you refer, I find, for example, that California and Oregon, both shippers of very large quantities of fruit, favor repeal, and Washington is opposed. That is the west coast.

I find that along the Great Lake shore, for example, my own State of Michigan favors repeal. Its neighboring State, Ohio, is opposed and the neighbor on the other side, Indiana, is opposed, whereas Wisconsin, which is in a similar location, favors repeal.

I am sure if I look through other portions of the States I would find similar situations in which there seems to be no relationship between neighboring States, and their views on this matter.

My conclusion is then that there is no clear functional role for the legislation or the absence of legislation.

Mr. JENSEN. I think this is an accurate evaluation. We probably could have helped the States in their answers had we been more specific as to the commercial application of the Federal statutes.

For example, I think if you would read the copies of the responses that were negative, you would find a fear that perhaps the use of these containers would be prohibited if the acts were repealed, and of course, this is not the case. The containers still could be used just as any other containers are used.

We simply asked the question because we did not want in any way to influence a State's response.

Mr. VIVIAN. Let me ask you another question.

If the act of 1916 established standard sizes for climax baskets for certain matters, and standards for baskets and other containers, and now I find that in the statement by Congressman Hathaway that less than 10 percent of the fresh fruits and vegetables currently are being shipped in such containers, and the question I think I have is, what was the requirement, or how could 90 percent be shipped in other containers consistent with the act of 1916?

Mr. JENSEN. A large portion of fruits and vegetables now are sold by weight, not by volume, and this is not in violation of the act as I understand it. Increasingly, commerce is by weight.

As a matter of fact, if a commodity is in a container properly labeled as to weight, the Standard Container Act is not applicable.

Mr. VIVIAN. Did the act of 1916 provide any container labeled by weight, that shipments may be continued in that fashion?

Mr. JENSEN. No, but I think it was not exclusive. I think it did not say all fruits and vegetables shall be sold this way and no other way, rather if they are sold in containers in these sizes, they shall be in these types of containers.

Mr. VIVIAN. The indication is the act of August 1916, according to remarks by Mr. Browne, that the act established standards for baskets and other containers. I presume all containers is meant by "other containers."

Mr. JENSEN. I think Mr. Browne should answer that question, Mr. Vivian. It is under their administration.

Mr. VIVIAN. I Would appreciate hearing a response to that question. Mr. BROWNE. Yes, at that time, as pointed out, practically all of the fresh fruits and vegetables were being shipped in types of containers which are covered by these two acts, and the act of 1916 restricts the use of containers for small fruits, berries, and vegetables, to certain sizes, without regard to type of material from which they are manufactured.

For example, berry baskets, whether they are made from wood veneer or plastic or whatever they may be, the sizes are standardized. That is the extent of this legislation.

Mr. VIVIAN. Let me ask the question, then: Turning to the remarks by the gentleman from Maine, he indicates that less than 10 percent of the fresh fruits and vegetables currently being shipped in interstate commerce are packed in containers governed by the legislation.

What containers are they packed in and why aren't they covered by the earlier laws?

Mr. BROWNE. Because the phrase "baskets and other containers” has been interpreted to mean a particular type of container similar to the berry basket which is referred to here.

Mr. VIVIAN. In other words, an administrative decision was made. as to the interpretation of the law?

Mr. BROWNE. That is right.

Mr. VIVIAN. And this administrative decision led to excluding the preponderance of all packages used for containing fruits and vegetables. Mr. BROWNE. That is right.

Mr. VIVIAN. It could have been interpreted by the Department in a different direction to have included all containers and then these laws would have some effect.

Mr. BROWNE. Mr. Gardner, would you like to comment on that, please?

Mr. GARDNER. My name is Gardner, John J. I am Assistant Chief, Regulatory Branch of the Fruit and Vegetable Division of the Department of Agriculture.

The sizes of container capacities are definitely stated in the act of 1916 and it definitely says when used for small fruits, berries, or vegetables, the capacities will be dry half pint, pint, quart, or multiples of dry quart, and this applies, regardless of what the container is made of.

Under the act of 1928, only those containers made of veneer are regulated, as for instance corregated board is not.

Now, there has been no regulation of the containers such as boxes, bags, et cetera.

Mr. VIVIAN. But you indicated the act of 1916 did include specifications. Did the act of 1928 supersede those specifications?

Mr. GARDNER. No, it dealt with a different type of containersplint baskets, and handle baskets, hampers, bushel baskets, and it did specify the type, and it does have a provision in the act of 1928 that the provisions of that act will not conflict with the containers covered by the act of 1916.

Mr. VIVIAN. May I ask a different question, then?

If certain types of containers are now free to be made in any size or any shape desired by the shipper, which I have no objection to, personally, and other types are very restricted in shape and size or volume, presumably, why is there any desire to repeal the law? Is there any detriment to the shipper in using standard-sized baskets or containers?

Mr. GARDNER. There is no detriment to using standard-sized baskets or containers. It has just come to the point, with the reduction in the number of manufacturers, that the service to the industry as a whole has been reduced. There has been a consistent decline in a number of manufacturers and the concept of these two laws is different. I believe, than most of your proposed truth in packaging. All we are regulating here is the capacity of a container. We don't know whether it will be filled, half filled, and there is no declaration to be le regarding the contents.

Under the act of 1928, the recent amendment was that they must be marked with the capacity. Under the act of 1916 there is no requirement that they be marked.

Mr. BROWNE. Mr. Vivian, in further response to your original question, I think we could point out that the legislative history regarding the act of 1916 led to the Department issuing regulations which point out that the act applies only to berry boxes and till baskets, where it says "baskets and other containers.'

It is contemplated that it is a particular type of container which is subject to regulation, not all other containers. I think this is the point that you were getting at.

Mr. VIVIAN. I fail as yet to see any reason why those-I read these comments about the numbers of producers going down, and I read the comments about the different sizes going down, and so on, but this is not necessarily significant, because, after all, there is a consolidation of almost all industries into a lower number of producers. What I failed to understand is why is it to the advantage of the consumer, for whom we are principally legislating, to have the standard sizes dropped?

Mr. GARDNER. Basically these two laws cover wholesale containers except for the smaller sizes. The smaller sizes would be your ordinary market baskets. Normally the trade in these baskets has been toward weight-for instance, tomatoes are not sold necessarily as an 8-quart basket or 12-quart basket. They would be sold as an 8- or 10-pound basket, and they would be sold "weight determined."

Of course, berry boxes are an item that is commonly sold at retail. However, the consumer can see exactly what is in the container, whether it is filled, well filled, overfilled, or what the practice of the person may or may not be.

As far as till baskets are concerned, on a wholesale level, they have pretty much well gone out of existence. They are not too commercially important at the present time, and these are the reasons I would offer you for the repeal of the laws.

Mr. VIVIAN. Do any present laws require baskets of fruits and vegetables as affected by this law, that such baskets must be labeled by the total weight of the contents when sold?

Mr. GARDNER. There is a labeling requirement under the Food, Drug, and Cosmetic Act. I am not familiar enough with the statute to tell you just exactly what has to be put on it.

It is my recollection they must have the name and address and must mark the contents. I know there are two or three State laws that require markings on specific commodities, as, for instance, Ohio has a marking requirement which says they must mark it with the name of the packer and weight or count of contents in any closed container. Mr. VIVIAN. Mr. Chairman, I think I will have further questions later, but at the moment I have no questions.

Mr. ROUDEBUSH. Apparently the situation is this: We have two basic acts, the act of 1916 and the act of 1928, and these two basic acts prescribe measurement of two different types of container.

However, we have a new container, a group of new containers_on the market that aren't covered by either act. Now, assuming that the committee does act favorably on S. 17 or reports it favorably to the House and it does become law, would you favor an act to establish measurement, and is this necessary? Should we describe measure