[Federal Register Volume 59, Number 124 (Wednesday, June 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15721]
[[Page Unknown]]
[Federal Register: June 29, 1994]
VOL. 59, NO. 124
Wednesday, June 29, 1994
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 920 and 944
[Docket No. FV94-920-1PR]
Kiwifruit Grown in California and Imported Kiwifruit; Proposed
Increase in Minimum Size Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would increase the current minimum size
requirements for kiwifruit grown in California and for kiwifruit
imported into the United States that are shipped to the fresh market.
The minimum size requirements would be increased from Size 49, which is
defined as 60 pieces of fruit per 8-pound sample, to Size 45, which
would be defined as 55 pieces of fruit per 8-pound sample. This rule
would prevent shipments of low-quality, undersized kiwifruit from
having a negative effect on the market.
DATES: Comments must be received by July 29, 1994.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposal. Comments should be sent in triplicate to the
Docket Clerk, Fruit and Vegetable Division, AMS, USDA, Room 2525-S,
P.O. Box 96456, Washington, DC 20090-6456 or by FAX at (202) 720-5698.
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: Mark Hessel, Marketing Order
Administration Branch, AMS, USDA, P.O. Box 96456, Room 2526-S,
Washington, DC 20090-6456; telephone (202) 720-5127; or Rose Aguayo,
California Marketing Field Office, AMS, USDA, 2202 Monterey Street,
Suite 102 B, Fresno, California 93721; telephone (209) 487-5901.
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.
This proposed rule is also issued under section 8e of the Act,
which provides that whenever certain specified commodities, including
kiwifruit, are regulated under a Federal marketing order, imports of
these commodities into the United States are prohibited unless they
meet the same or comparable grade, size, quality, or maturity
requirements as those in effect for the domestically produced
commodities.
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 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 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.
There are no administrative procedures which must be exhausted
prior to any judicial challenge to the provisions of import regulations
issued under section 8e of the Act.
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA), the Administrator of the Agricultural Marketing
Service (AMS) has considered the economic impact of this proposed 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. Import regulations issued under
the Act are based on those established under Federal marketing orders.
There are approximately 65 handlers subject to regulation under the
order and about 600 producers of California kiwifruit. There are
approximately 75 importers of kiwifruit. Small agricultural service
firms, which include kiwifruit handlers and importers, have been
defined by the Small Business Administration [13 CFR 121.601] as those
whose annual receipts are less than $3,500,000, and small agricultural
producers are defined as those whose annual receipts are less than
$500,000. A majority of these handlers, importers, and producers may be
classified as small entities.
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. Current
requirements include specifications that such shipments be at least
Size 49, grade at least KAC No. 1 quality, and contain a minimum of 6.5
percent soluble solids.
The production of California kiwifruit for the 1993 season was
approximately 12.3 million tray equivalents, compared to the 1992
season production of 13.3 million tray equivalents. This represents an
8 percent decrease in California kiwifruit production from 1992 to
1993.
The Kiwifruit Administrative Committee (committee), the agency
responsible for local administration of the marketing order, met on
February 10, 1993, and recommended increasing the minimum size
requirement from Size 49, which is defined as 60 pieces of fruit per 8-
pound sample, to Size 45, which would be defined as 55 pieces of fruit
per 8-pound sample.
The marketing order authorizes under Sec. 920.52(a)(2) the
establishment of minimum size requirements. Sec. 920.302(a)(2) of the
rules and regulations outlines the minimum size requirements for fresh
shipments of California kiwifruit. Section 920.302(a)(4)(ii) 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 size designation
table defines ten different sizes, beginning with Size 21 (the largest
size) and ending with Size 49 (the smallest size). The committee
recommended eliminating the Size 49 designation (60 pieces of fruit per
8-pound sample) and redefining the Size 45/46 designation (57 pieces of
fruit per 8-pound sample) as a Size 45 designation (55 pieces of fruit
per 8-pound sample).
The committee recommended increasing the minimum size requirement
because of the blending and packing of undersized fruit into containers
using the Size 49 designation. Current pack requirements specify that
kiwifruit designated as Size 45/46 or below must be packed within a \1/
4\ inch size tolerance. Undersized fruit (Size 49 kiwifruit near or
below the lower limit of the size tolerance) is often blended into the
Size 49 designation. It is a common practice throughout the industry to
blend and pack kiwifruit that could be designated as either undersized
fruit, Size 49, or Size 45/46 into a Size 49 container.
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. For example, the
current Size 49 designation and the current Size 45/46 designation have
only a 3-count difference per 8-pound sample. This amounts to only a
0.12 ounce difference per individual fruit. The equipment and time
needed to detect such a difference when packing individual fruit would
be cost prohibitive, so instead, handlers choose to blend sizes.
Blending has become more prevalent in recent years because a
greater percentage of kiwifruit is being packed in volume-fill or bulk
containers in which the fruit is packed ``loosely'' instead of in
containers with molded trays. Without the constraints of a molded tray,
there is more freedom to blend sizes.
The committee's intention in recommending this increase in the
minimum size requirement is to eliminate shipments of undersized fruit
that is blended into the Size 49 designation. This undersized kiwifruit
tends to soften more rapidly during storage than larger fruit and
becomes more susceptible to decay. This tendency for undersized fruit
to soften more rapidly than larger fruit becomes more pronounced once
it leaves a controlled environment and enters an uncontrolled one such
as a retail shelf. The end result is that the consumer is more likely
to encounter quality defects with undersized fruit then with larger
fruit.
Eliminating fresh shipments of undersized fruit by increasing the
minimum size requirement would improve overall quality and increase
uniformity of pack size. The consumer would benefit by being offered a
higher quality kiwifruit that would ripen properly without prematurely
shriveling or softening. Also, grower returns are expected to increase
due to less repack loss, better kiwifruit movement, and higher prices
because of a better quality product.
There is also ample evidence to show that the market is adverse to
smaller sizes. The California Kiwifruit Commission funded an
independent survey titled ``Fresh Kiwifruit: Views from the Trade,'' in
1993. This survey indicated that 30% of the trade rejects small sizes
and that 86.1% of the trade prefers Size 42 (defined as 50 pieces of
fruit per 8-pound sample) or larger. Also, 92.1% of the merchandisers
and produce managers claim that their customers reject small sizes.
An example of how consumers reject smaller sizes is when kiwifruit
is sold at the retail level out of 125 pound bulk bins. Consumers
initially pick out the largest and higher quality kiwifruit, and
displays are left with undersized and low quality kiwifruit that is
rejected by later consumers.
The committee's recommendation that the minimum size requirement be
set at Size 45 would not significantly lower the volume of kiwifruit
available in the fresh market. Although the committee reports that
12.1% of the California kiwifruit packout for the 1993/94 season was
designated as Size 49, most of this total could be blended into the
proposed Size 45 designation because of the small difference between
the two size designations. The practice of blending sizes makes it
difficult to predict how much fruit would be eliminated by this
proposal, however, the committee estimates that the total packout would
be reduced by only 1%. In addition, growers could adjust pruning,
thinning, fertilizing, and irrigation techniques so that a larger
percentage of kiwifruit would meet the higher size requirement.
There is general agreement in the industry for the need to
eliminate the packing of undersize fruit. Other alternatives have been
suggested to eliminate shipments of low quality, undersized fruit, but
would not adequately address the problem. One suggestion was to
eliminate the blending of sizes by eliminating the size tolerances.
This is not a realistic alternative, because as mentioned earlier, it
would be cost prohibitive and impossible to achieve using today's
packing methods.
Another suggestion was to measure size by passing a fruit through a
template with an opening large enough for an undersized fruit to fall
through, but too small for a kiwifruit that meets the minimum size
requirement to fall through. This template would be used to determine
whether a fruit was undersized. However, this alternative does not take
into consideration that kiwifruit grows in different shapes so that a
heavier fruit that is short and broad could fall through a template
while a lighter fruit that is long and narrow would not. Weight is
currently used to measure size and is the most accurate measure of a
kiwifruit's size.
Another alternative presented at the meeting was to tighten the
maturity requirements rather than the size standards so that
undersized, immature fruit would not be shipped. However, not all
undersized fruit is immature, but all undersized fruit is more
susceptible to quality problems. Thus, this alternative would not fully
address the problem of blending in undersized fruit of inferior
quality.
Finally, another alternative presented in the meeting was to
establish Size 45 as the minimum size, but continue to define it as 57
pieces of fruit instead of 55 pieces of fruit per 8-pound sample as
recommended by the committee. However, because of the approximately
0.12 ounce difference between a Size 45 kiwifruit defined as 57 pieces
of fruit per 8-pound sample and a Size 49 kiwifruit defined as 60
pieces of fruit per 8-pound sample, this alternative would not go far
enough to prevent the blending of undersized fruit.
Section 8e of the Act provides that when certain domestically
produced commodities, including kiwifruit, are regulated under a
Federal marketing order, imports of that commodity must meet the same
or comparable grade, size, quality, and maturity requirements. Since
this rule would increase the minimum size requirement under the
domestic handling regulations, a corresponding change to the import
regulations must also be considered.
Minimum grade, size, quality, and maturity requirements for
kiwifruit imported into the United States are currently in effect under
Sec. 944.550 [7 CFR 944.550]. The minimum size requirement is specified
in paragraph (a) of Sec. 944.550. This proposal would increase the
minimum size requirement for imported kiwifruit from Size 49, which is
defined as 60 pieces of fruit per 8-pound sample, to Size 45, which
would be defined as 55 pieces of fruit per 8-pound sample.
The increase in the minimum size requirement for importers of
kiwifruit would also have a beneficial impact. This rule would
eliminate quality problems associated with undersized imported
kiwifruit as it would for undersized domestic kiwifruit. In addition,
the domestic trade's preference for larger size kiwifruit applies to
imported kiwifruit as well as domestic kiwifruit. Thus, importers would
benefit by improving the overall quality of kiwifruit shipments and
increasing sales.
In accordance with section 8e of the Act, the United States Trade
Representative has concurred with the issuance of this proposed rule.
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 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
7 CFR Part 920
Kiwifruit, Marketing agreements.
7 CFR Part 944
Avocados, Food grades and standards, Grapefruit, Grapes, Imports,
Kiwifruit, Limes, Olives, Oranges.
For the reasons set forth above, 7 CFR Parts 920 and 944 are
proposed to be amended as follows:
1. The authority citation for 7 CFR Parts 920 and 944 continues to
read as follows:
Authority: 7 U.S.C. 601-674.
PART 920--KIWIFRUIT GROWN IN CALIFORNIA
2. In Sec. 920.302, paragraphs (a)(2) and (a)(4)(ii) are revised to
read as follows:
Sec. 920.302 Grade, size, pack, and container regulations.
(a) * * *
(2) Size Requirements. Such kiwifruit shall be at least a minimum
Size 45.
* * * * *
(4) * * *
(ii)(A) Kiwifruit packed in bags, volume fill or bulk containers
may not vary more than \1/2\ inch (12.7 mm) in diameter if Size 30 or
larger; not more than \3/8\ inch (9.5 mm) in diameter if Size 33, 36,
39, or 42; and not more than \1/4\ inch in diameter (6.4 mm) if Size
45. 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
may fail to meet the requirements of this paragraph. The following
table specifies the numerical size designation to be used in packing
such containers as shown in Column 1, and the maximum number of fruit
per 8-pound sample as shown in Column 2.
------------------------------------------------------------------------
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
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(B) 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.
* * * * *
PART 944--FRUITS; IMPORT REGULATIONS
3. In Sec. 944.550, paragraph (a) is revised to read as follows:
Sec. 944.550 Kiwifruit import regulation.
(a) Pursuant to section 8e of the Agricultural Marketing Agreement
Act of 1937, as amended, the importation into the United States of any
kiwifruit is prohibited unless such kiwifruit meets all the
requirements of a U.S. No. 1 grade as defined in the United States
Standards for Grades of Kiwifruit (7 CFR 51.2335 through 51.2340),
except that the kiwifruit shall be ``not badly misshapen,'' and an
additional tolerance of 7 percent is provided for kiwifruit that is
``badly misshapen.'' Such fruit shall be at least Size 45, which means
there shall be a maximum of 55 pieces of fruit and the average weight
of all samples in a specific lot must weigh at least 8 pounds, provided
that no individual sample may be less than 7 pounds 12 ounces.
* * * * *
Dated: June 23, 1994.
Eric M. Forman,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 94-15721 Filed 6-28-94; 8:45 am]
BILLING CODE 3410-02-P
