[Federal Register Volume 60, Number 119 (Wednesday, June 21, 1995)]
[Rules and Regulations]
[Pages 32258-32260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15111]
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DEPARTMENT OF AGRICULTURE
7 CFR Part 920
[Docket No. FV95-920-1FR]
Kiwifruit Grown in California; Relaxation of Pack Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule relaxes the pack requirements for kiwifruit
packed in Size 45 containers under the Federal marketing order (order)
for kiwifruit grown in California. This relaxation increases the size
variation tolerance for all Size 45 containers of kiwifruit from 5
percent, by count, to 10 percent, by count. This rule reduces grower
and handler costs and enables more fruit to be packed and sold. Several
editorial changes have been made to clarify the current kiwifruit
handling requirements.
EFFECTIVE DATE: August 1, 1995.
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 final 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 final
rule in conformance with Executive Order 12866.
This final rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This rule is not intended to have retroactive
effect. This final 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
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 [[Page 32259]] 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.
Section 920.52(a)(3) of the order 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.
Section 920.52 of the order authorizes 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.
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 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 the \1/4\-inch variation, meaning that up to 5 percent of
the fruit in any one container could 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 increasing 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.
The industry supports the increase in 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 effectuated by this rule increases
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.
This rule relaxes the tolerance for Size 45 packs by increasing the
number of Size 45 kiwifruit allowed in the 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 [[Page 32260]] tolerance
increase will not permit blending of additional sizes beyond those
currently blended, but will grant more flexibility for varying shapes
of the fruit. This relaxation is beneficial to both growers and
handlers. The 10 percent size variation tolerance decreases the amount
of handler repacking and reduces inspection time and cost, thereby
making it more cost effective for handlers. This increase will not
result in any visual difference in uniformity.
Section 920.302(a)(4) is 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 are
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 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.
The proposed rule concerning this action was published in the April
24, 1995, Federal Register (60 FR 20062). That proposed rule provided a
30-day comment period which ended May 24, 1995. No comments were
received.
This final rule impacts all handlers in the same manner. The
increased size variation tolerance eases some of the burden associated
with packing and sizing kiwifruit and enables handlers to pack and sell
more kiwifruit. This change reduces costs for handlers and growers.
Based on the above, the Administrator of the AMS has determined
that this action will not have a significant economic impact on a
substantial number of small entities.
After consideration of all relevant matter presented, including the
information and recommendations submitted by the Committee and other
available information, it is hereby found that this relaxation of pack
requirements, as hereinafter set forth, will tend to effectuate the
declared policy of the Act.
List of Subjects in 7 CFR Part 920
Kiwifruit, Marketing agreements, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble 7 CFR part 920 is 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. In section 920.302, paragraphs (a)(4) (i) through (iv) are
revised and new paragraphs (a)(4) (v) and (vi) are added to read as
follows:
Sec. 920.302 Grade, size, pack, and container regulations.
(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) 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).
------------------------------------------------------------------------
Kiwifruit packed in bags, volume fill or bulk containers, fruit may
not vary more than:
------------------------------------------------------------------------
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
Count designation of fruit of 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
number of
Column 1 numerical count size designation fruit per
8-pound
sample
------------------------------------------------------------------------
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: June 15, 1995.
Sharon Bomer Lauritsen,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 95-15111 Filed 6-20-95; 8:45 am]
BILLING CODE 3410-02-P
