[Federal Register Volume 60, Number 78 (Monday, April 24, 1995)]
[Proposed Rules]
[Pages 20062-20064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9973]
[[Page 20062]]
DEPARTMENT OF AGRICULTURE
7 CFR Part 920
[Docket No. FV95-920-1PR]
Kiwifruit Grown in California; Proposed Relaxation of Pack
Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule would relax the pack requirements for
kiwifruit packed in Size 45 containers under the Federal marketing
order (order) for kiwifruit grown in California. This relaxation would
increase the size variation tolerance for all Size 45 containers of
kiwifruit from 5 percent, by count, to 10 percent, by count. This rule
would reduce grower and handler costs and enable more fruit to be
packed and sold. Several editorial changes are also being proposed to
clarify the current kiwifruit handling requirements.
DATES: Comments must be received by May 24, 1995.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be submitted in triplicate to the
Docket Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456,
Room 2523-S, Washington, DC 20090-6456, or by facsimile at (202) 720-
5698. Comments should reference this 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.
FOR FURTHER INFORMATION CONTACT: Rose Aguayo, California Marketing
Field Office, Marketing Order Administration Branch, Fruit and
Vegetable Division, AMS, USDA, 2202 Monterey Street, Suite 102B,
Fresno, California 93721; telephone (209) 487-5901; or Charles Rush,
Marketing Order Administration Branch, Fruit and Vegetable Division,
AMS, USDA, P.O. Box 96456, Room 2526-S, Washington, DC 20090-6456,
telephone (202) 690-3670.
SUPPLEMENTARY INFORMATION: This proposed rule is issued under Marketing
Order No. 920 (7 CFR part 920), as amended, regulating the handling of
kiwifruit 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 (Department) is issuing this proposed
rule in conformance with Executive Order 12866.
This proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This action is not intended to have retroactive
effect. This proposed rule would 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
principle place of business, has jurisdiction in equity to review the
Secretary's ruling on the petition, provided a bill in equity is filed
not later than 20 days after date of the entry of the ruling.
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.
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 65 handlers of California kiwifruit subject
to regulation under the order and approximately 600 kiwifruit 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. A majority of handlers and producers of California
kiwifruit may be classified as small entities.
This proposal is in accordance with Sec. 920.52(a)(3) of the order
which authorizes regulations to establish the pack of the container or
containers which may be used in the packaging or handling of kiwifruit.
Under the terms of the marketing order, fresh market shipments of
California kiwifruit are required to be inspected and are subject to
grade, size, maturity, pack and container requirements. Among the pack
requirements, is a size variation tolerance requirement which specifies
that not more than 5 percent, by count, of kiwifruit in any container
may fail to meet the pack requirements of Sec. 920.302(a)(4). The size
variation tolerance does not apply to other pack requirements such as
how the fruit fills the cell compartments, cardboard fillers, or molded
trays, or any weight requirements.
The Kiwifruit Administrative Committee (committee), the agency
responsible for local administration of the marketing order, met on
February 8, 1995, and recommended by unanimous vote to relax the
current size variation tolerance from 5 percent to 10 percent for bag,
volume fill, bulk, cell compartments, cardboard fillers, or molded tray
containers of Size 45 kiwifruit for pack under the Federal marketing
order for kiwifruit grown in California.
The order authorizes under Sec. 920.52 the establishment of pack
requirements. Section 920.302(a)(4) of the rules and regulations
outlines the pack requirements for fresh shipments of California
kiwifruit. Section 920.302(a)(4)(i) outlines pack requirements for
proper size, and size variation, and contains a table that provides
minimum net weights for count designation of kiwifruit packed in
containers with cell compartments, cardboard fillers, or molded trays.
Section 920.302(a)(4)(ii) outlines pack requirements for fruit size
variation in bags, volume fill and bulk containers and includes a table
that specifies numerical size designations that are used to determine
kiwifruit sizes. These size designations are defined by numerical
counts, which establish the maximum number of fruit per 8-pound sample
for each of the established sizes.
The committee recommended increasing the size variation tolerance
for Size 45 containers from 5 percent to 10 percent, by count, of
kiwifruit in any container, because handlers cannot visually determine
if fruit in a Size 45 container would meet the 5 percent tolerance.
Packout by fruit size, of Size 45 containers, increased from 1.80
percent for the 1993-94 season to 14.34 percent for the 1994-95 season.
This increase in packout, of Size 45 fruit, is a result of blending
Size 49 fruit into Size 45 fruit containers and as a result of weather
conditions in the central and southern [[Page 20063]] parts of
California which produced a larger percentage of smaller and flatter
kiwifruit. Generally Size 45 fruit is a rounder fruit. Blending occurs
because adjoining size designations have size tolerances that partially
overlap and kiwifruit within either size tolerance may be packed in
either size designation. In larger sized fruit, handlers see more of a
variety of shapes and pack boxes of round fruit and boxes of flat fruit
for each size in order to stay within the size variation requirements.
For economic and practical reasons, most handlers pack boxes that
include both the round Size 45 fruit, as well as smaller flat fruit.
During the past season, a number of handlers experienced increased
difficulty in meeting the size variation tolerance in the Size 45
containers. Currently, a variation of \1/4\-inch (6.4 mm) difference is
allowed between the widest and narrowest pieces of fruit in a Size 45
pack for all containers. There is a tolerance of 5 percent for fruit
that exceeds that \1/4\-inch variation, meaning that up to 5 percent of
the fruit in any one container may exceed the \1/4\-inch variation. As
the size of the fruit increases, so does the size of the variation
allowed. In the larger fruit sizes, failure to meet the required size
variation standards results in packs that are visibly irregular in
size. In Size 45, however, when the 5 percent tolerance is exceeded,
the variation is difficult to detect visually. During the packing
operation, a mechanical sizer routinely sorts the fruit by shape and
size. The fruit which is missed by the mechanical sizer must be
correctly sorted by the handler. Since it is not economically feasible
for each handler to be equipped with a caliper to measure size
variation, they rely on their visual judgment. During inspection,
calipers are utilized by the inspectors to determine if the size
variation is met for Size 45 containers. The 5 percent tolerance
requirement is seldom met, but the fruit is found to vary slightly
above the allowed tolerance of 5 percent (within 6-8 percent
tolerance). Handlers have found that it is cost-prohibitive to slow
down their operations in an attempt to stay within the current
tolerance levels and to recondition the fruit that fails inspection.
The committee's intention in recommending this increase in the size
variation tolerance is to set an acceptable size variation tolerance
that can be visually discerned while the packing operation is in
progress and results in a Size 45 container that is uniform in size.
There is support in the industry to increase the size variation
tolerance to 10 percent, by count, for the fruit in any Size 45
container. An alternative studied by the committee field staff and
considered by the committee was to increase the degree, or size of the
variation allowed, from \1/4\-inch to \3/8\-inch. Throughout the
season, fruit was measured and sample boxes were made up depicting this
increased variation. It was the consensus of the field staff,
inspection service and industry handlers that such an increase would
allow for the blending up of undersize fruit. The end result would be a
box that visibly showed a variation of fruit size, including undersize
fruit. This was deemed not acceptable as the industry desires to pack a
uniform box of fruit.
Another alternative examined and proposed herein is to increase the
5 percent size variation tolerance level to 10 percent. Throughout the
season, field staff observed and polled handlers and inspectors on
problems encountered with Size 45. The overwhelming majority of the
cases where Size 45 fruit was rejected for size variation, the
tolerance level was in the 6 percent to 8 percent range. It was not
possible to distinguish a box at 10 percent variation from one at 5
percent, without the use of a caliper. The general consensus was that
once a 10 percent tolerance was exceeded, the variation became more
visibly apparent and the handlers would recognize the need for
repacking before calling for inspection.
Relaxing the tolerance for Size 45 packs would allow an increased
number of Size 45 kiwifruit in a container that are not within the \1/
4\-inch variance. For example, the pieces of fruit, which vary more
than \1/4\-inch in a 22-pound volume fill container, could increase
from 2 pieces to 5 pieces. This tolerance increase would not allow for
the blending of additional sizes beyond those currently blended, but
would grant more flexibility for varying shapes of the fruit. This
relaxation would be beneficial to both growers and handlers. The
proposed 10 percent size variation tolerance would decrease the amount
of handler repacking and reduce inspection time and cost, thereby
making it more cost effective for handlers. This would also result in
no visual difference in uniformity.
Section 920.302(a)(4) would be amended by revising paragraphs (i)
through (iv) and adding new paragraphs (v) and (vi). Included in these
changes are editorial changes made for clarity. Diameter variances
would be specified for kiwifruit packed in cell compartments, cardboard
fillers or molded trays. These provisions appear in Sec. 51.2338(d) of
the United States Standards for Grades of Kiwifruit (7 CFR 51.2338(d)).
Also, these changes would delete the phrase: ``Provided, That for the
season ending July 31, 1995, such containers may also hold 23-pounds
net weight of kiwifruit'' in Sec. 920.320(a)(4)(iv) (59 FR 53565). This
phrase is no longer needed as it applied to the 1994-95 season.
This proposed rule would impact all handlers in the same manner.
The increased size variation tolerance would ease some of the burden
associated with packing and sizing kiwifruit and enable handlers to
pack and sell more kiwifruit. This change would reduce costs for
handlers and growers.
Based on the above, the Administrator of the AMS has determined
that this action would not have a significant economic impact on a
substantial number of small entities.
A 30-day comment period is provided to allow interested persons an
opportunity to respond to this proposal. All written comments timely
received will be considered before a final determination is made on
this matter.
List of Subjects in 7 CFR Part 920
Kiwifruit, Marketing agreements.
For the reasons set forth in the preamble, it is proposed that 7
CFR part 920 be amended as follows:
PART 920--KIWIFRUIT GROWN IN CALIFORNIA
1. The authority citation for 7 CFR part 920 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 920.302 is amended by revising paragraphs (a)(4) (i)
through (iv) and adding new paragraphs (a)(4) (v) and (vi) to read as
follows:
Sec. 920.302 [Amended]
(a) * * *
(4) * * *
(i) Kiwifruit packed in containers with cell compartments,
cardboard fillers, or molded trays shall be of proper size for the
cells, fillers, or molds in which they are packed. Such fruit shall be
fairly uniform in size.
(ii)(A) Kiwifruit packed in cell compartments, cardboard fillers or
molded trays may not vary in diameter more than:
------------------------------------------------------------------------
Sizes Diameter
------------------------------------------------------------------------
30 or larger....................... \1/2\-inch (12.7 mm)
31-38.............................. \3/8\-inch (9.5 mm)
39 or smaller...................... \1/4\-inch (6.4 mm)
------------------------------------------------------------------------
(B) Kiwifruit packed in bags, volume fill or bulk containers, fruit
may not vary more than:
[[Page 20064]]
------------------------------------------------------------------------
Sizes Diameter
------------------------------------------------------------------------
30 or larger....................... \1/2\-inch (12.7 mm)
33, 36, 39, and 42................. \3/8\-inch (9.5 mm)
45 or smaller...................... \1/4\-inch (6.4 mm)
------------------------------------------------------------------------
Not more than 10 percent, by count of the containers in any lot and
not more than 5 percent, by count, of kiwifruit in any container,
(except that for Size 45 kiwifruit, the tolerance, by count, in any one
container, may not be more than 10 percent) may fail to meet the
requirements of this paragraph.
(iii) The fruit packed in containers with cell compartments,
cardboard fillers, or molded trays shall meet the following minimum
weight requirements at the time of initial inspection:
------------------------------------------------------------------------
Minimum net
weight of
Count designation of fruit fruit
(pounds)
------------------------------------------------------------------------
34 or larger............................................... 7.5
35 to 37................................................... 7.25
38 to 40................................................... 6.875
41 to 43................................................... 6.75
44 and smaller............................................. 6.50
------------------------------------------------------------------------
The average weight of all sample units in a lot must meet the
specified minimum net weight, but no sample unit may be more than 4
ounces less than such weight.
(iv) When kiwifruit is packed in bags, volume fill or bulk
containers, the following table specifying the numerical size
designation and maximum number of fruit per 8-pound sample is to be
used.
------------------------------------------------------------------------
Column 2
Maximum
Column 1 Numerical count sizedesignation number of
fruit per 8-
poundsample
------------------------------------------------------------------------
21......................................................... 22
25......................................................... 27
27/28...................................................... 30
30......................................................... 32
33......................................................... 35
36......................................................... 40
39......................................................... 45
42......................................................... 50
45......................................................... 55
------------------------------------------------------------------------
The average weight of all sample units in a lot must weigh at least
8 pounds, but no sample unit may be more than 4 ounces less than 8
pounds.
(v) For shipments in volume fill containers in which the quantity
is specified by count, the count must equal three times the size
designation in accordance with tolerances specified in the U.S.
Standards for Grades of Kiwifruit (7 CFR 51.2328(c)(2)).
(vi) All volume fill containers of kiwifruit designated by weight
shall hold 22-pounds (10-kilograms) net weight of kiwifruit unless such
containers hold less than 10-pounds or more than 35-pounds net weight
of kiwifruit.
* * * * *
Dated: April 17, 1995.
Sharon Bomer Lauritsen,
Director, Fruit and Vegetable Division.
[FR Doc. 95-9973 Filed 4-21-95; 8:45 am]
BILLING CODE 3410-02-P
