[Federal Register Volume 64, Number 145 (Thursday, July 29, 1999)]
[Rules and Regulations]
[Pages 41010-41019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19092]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 920
[Docket No. FV98-920-4 FR]
Kiwifruit Grown in California; Changes in Minimum Size, Pack,
Container, and Inspection Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule revises the minimum size, pack, container, and
inspection requirements prescribed under the California kiwifruit
marketing order. The marketing order regulates the handling of
kiwifruit grown in California and is administered locally by the
Kiwifruit Administrative Committee (Committee). This rule specifies
minimum size requirements for all kiwifruit as a maximum of 55 pieces
of fruit in an 8-pound sample regardless of pack style; requires that
individual consumer packages placed directly on a pallet be stamped
with the applicable inspection lot number; and makes minor changes to
clarify pack and container marking requirements for several containers.
In addition, this rule continues, for the 1999-2000 season, the
suspension of minimum net weight requirements for kiwifruit tray packs
scheduled to expire at the end of the 1998-1999 season. Also, continued
for the 1999-2000 season is the suspension of the requirement that
fruit must be reinspected if it has not been shipped by specified
dates. These changes clarify the minimum size, pack, and container
requirements, and are expected to reduce handler packing costs,
increase producer returns, and enable handlers to compete more
effectively in the marketplace.
EFFECTIVE DATE: This final rule becomes effective August 1, 1999. The
suspension of Secs. 920.302(a)(4)(iii), and 920.155 expires on August
1, 2000.
FOR FURTHER INFORMATION CONTACT: Rose M. Aguayo, Marketing Specialist,
California Marketing Field Office, Marketing Order Administration
Branch, F&V, AMS, USDA, 2202 Monterey Street, suite 102B, Fresno,
California 93721; telephone: (559) 487-5901, Fax: (559) 487-5906; or
George Kelhart, Technical Advisor, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box
96456, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202)
720-5698. Small businesses may request information on complying with
this regulation or obtain a guide on complying with fruit, vegetable,
and specialty crop marketing agreements and orders by contacting Jay
Guerber, Marketing Order Administration Branch, Fruit and Vegetable
Programs, AMS, USDA, P.O. Box 96456, room 2525-S, Washington, DC 20090-
6456; telephone: (202) 720-2491, Fax: (202) 720-5698, or E-mail
Jay.Guerber@usda.gov. You may view the marketing agreement and order
small business compliance guide at the following web site: http://
www.ams.usda.gov/fv/moab.html.
SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing
Order No. 920, as amended (7 CFR part 920), 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 rule in
conformance with Executive Order 12866.
This final 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 the date of the entry of the ruling.
This final rule revises the minimum size, pack, container, and
inspection requirements prescribed under the California kiwifruit
marketing order. The marketing order regulates the handling of
kiwifruit grown in California and is administered locally by the
Committee.
This rule specifies the minimum size requirements for all kiwifruit
as a maximum of 55 pieces of fruit in an 8-pound sample regardless of
pack style; requires that individual consumer packages placed directly
on a pallet be stamped with the applicable inspection lot number; and
makes minor changes to clarify pack and container marking requirements
for several containers.
In addition, this rule continues, for the 1999-2000 season, the
suspension of the minimum net weight requirements in Sec. 920.302
(a)(4)(iii) for kiwifruit packed in containers with cell compartments,
cardboard fillers, or molded trays scheduled to expire at the end of
the 1998-1999 season. This suspension action was implemented by an
interim final rule published last September (63 FR 46861; September 3,
1998). No comments were received pursuant to the request for comments
in the interim final rule. A final rule published last August suspended
the requirement in Sec. 920.155 that fruit must be reinspected if it
has not been shipped by specified dates for the 1998-1999 season (63 FR
41390; August 4, 1998). This rule also continues the suspension of this
requirement for the 1999-2000 season. These changes were unanimously
recommended by the Committee. Clarification of the minimum size, pack,
and container requirements are expected to reduce handler packing
costs, increase producer returns, and enable handlers to compete more
effectively in the marketplace.
The interim final rule published last September also increased the
size variation tolerance, from 10 percent, by count, in any one
container, to 25 percent, by count, for Size 42 kiwifruit, and the
maximum number of fruit per 8-pound sample for Sizes 42, 39, 36, 33,
and 30 of kiwifruit packed in bags,
[[Page 41011]]
volume fill, or bulk containers for the 1998-1999 and future seasons.
This action does not change these provisions.
In early November 1998, the Department determined that suspending
the minimum net weight requirements as specified in
Sec. 920.302(a)(4)(iii) without redefining the size designation
definition in Sec. 920.302 (b)(2) had inadvertently limited application
of the minimum size requirements to volume fill packs.
The Committee met on November 19, 1998, and clarified that its
original intent had been to maintain the minimum size requirement on
all kiwifruit regardless of pack style. The Committee discussed
changing the regulatory language so that minimum size applied to all
pack styles for the remainder of the 1998-1999 season, but concluded
that it would be unfair to growers and handlers to change this
requirement in mid-season. The Committee believed that orderly
marketing would continue as harvest was nearly completed at the time of
the November 1998 meeting and because a small amount of minimum size
kiwifruit had been packed in trays.
The Committee met again on January 13, 1999, to discuss industry
issues and to make preliminary recommendations for the 1999-2000
season. The Committee concluded that the recommended changes made for
the 1998-1999 season had benefitted the industry. Both small and large
handlers were able to reduce packing costs and compete more effectively
in the marketplace because of the relaxations made to the requirements.
The Committee made the following preliminary recommendations for
the 1999-2000 season: (1) Specify that minimum size requirements apply
to all kiwifruit regardless of pack style and define Size 45 in terms
of weight and not pack requirements; (2) make minor changes to clarify
pack and container marking requirements for several containers; (3)
continue the suspension of the requirement that fruit must be
reinspected if it has not been shipped by specified dates for the 1999-
2000 season; and (4) continue the suspension of the minimum net weight
requirements for kiwifruit packed in containers with cell compartments,
cardboard fillers, or molded trays for the 1999-2000 season.
Later in January, the kiwifruit industry held meetings in Northern
and Southern California to further study the minimum size issue.
Studies showed that while Size 45 fruit filled Size 45 cell cups well
during the 1998-1999 season, the fruit packed would not have met the
suspended minimum net weight requirement of 6.5 pounds because of the
cup size used in the Size 45 tray, and also because the shape and
density of fruit varies from year to year. A Size 45 tray of kiwifruit
weighing a minimum of 6.5 pounds is equivalent to a maximum of 55
pieces of fruit in an 8-pound sample. Based on these findings, the
Committee determined that the minimum net weight requirements for Size
45 should be studied further.
The Committee met on February 25, 1999, and unanimously recommended
the following changes and clarifications for the 1999-2000 season: (1)
Specify that the minimum size requirements be defined as a maximum of
55 pieces of fruit in an 8-pound sample and that the minimum size
requirements should apply to all kiwifruit regardless of pack style;
(2) require that individual consumer packages placed directly on a
pallet be stamped with the applicable inspection lot number; (3) make
minor changes to clarify pack and container marking requirements for
several containers; (4) continue the suspension of the minimum net
weight requirements for kiwifruit packed in containers with cell
compartments, cardboard fillers, or molded trays for the 1999-2000
season; and (5) continue the suspension of the requirement that fruit
must be reinspected if it has not been shipped by specified dates for
the 1999-2000 season. The Committee further recommended that all rule
and regulation changes begin as soon as possible to enable handlers to
make operational decisions in time for the 1999-2000 harvest and
shipping season.
Revisions for the 1999-2000 Season
Clarification of the Minimum Size Requirements
Under the terms of the order, fresh market shipments of kiwifruit
grown in California are required to be inspected and meet grade, size,
maturity, pack, and container requirements. Section 920.52 authorizes
the establishment of minimum size, pack, and container requirements.
Section 920.302(a)(2) of the order's rules and regulations outlines the
minimum size requirements for fresh shipments of California kiwifruit
and provides that such kiwifruit shall be at least a minimum Size 45.
Section 920.302(a)(4)(iii) specifies minimum net weight
requirements for fruit of various sizes packed in containers with cell
compartments, cardboard fillers, or molded trays.
Section 920.302(b)(2) of the order's rules and regulations defines
size designation to mean the same as defined in the table in paragraph
(a)(4)(iii) of this section.
As previously mentioned, the Committee unanimously recommended
suspending the minimum net weight requirements specified in
Sec. 920.302(a)(4)(iii) for the 1998-1999 season. This recommendation
was implemented through an interim final rule published September 3,
1998 (63 FR 46861).
In early November 1998, the Department determined that suspending
Sec. 920.302(a)(4)(iii) without redefining the size designation
definition in Sec. 920.302(b)(2) had inadvertently limited application
of the minimum size requirements to bulk bins, bags, consumer packs,
master containers, and volume fill containers.
The Committee members attended a meeting in November 1998 and again
in January 1999 wherein they clarified their initial intent, and set
preliminary recommendations for the 1999-2000 season.
The Committee met on February 25, 1999, unanimously recommended
that kiwifruit be at least a minimum Size 45, and that Size 45 be
defined in terms of weight and not pack requirements. Size 45 was
defined as a maximum of 55 pieces of fruit in an 8-pound sample. This
recommendation reflected the Committee's original intent to apply
uniform minimum size requirements to all kiwifruit regardless of pack
style. To further clarify its intent, the Committee recommended adding
the size definition to the size requirements in Sec. 920.302(a)(2),
deleting the size designation definition in Sec. 920.302(b)(2), and
defining Size 45 in terms of weight and not pack.
The Committee considered establishing a count of 58 or 59 pieces of
slightly smaller fruit for the Size 45 trays, but concluded that the
count should remain a maximum of 55 pieces of fruit per 8-pound sample
because the current minimum size continues to prevent shipments of low-
quality, undersized fruit, and because repacking problems during the
1998-1999 season resulted from an outdated cup size in the Size 45 tray
and not from the current minimum size.
Over the years, the size designation for Size 45 has changed, but
the tray inserts for this size fruit have not changed. In 1989, the
size designation for Size 45 was changed to 57 pieces of fruit per 8-
pound sample and remained there until 1994, when Size 45 became the
minimum size and was defined as 55 pieces of fruit per 8-pound sample.
Kiwifruit was not packed in Size 45 trays during the three seasons
preceding the 1998-1999 season as it was not
[[Page 41012]]
profitable for growers. A small amount of kiwifruit of this size was
packed during the 1998-1999 season. The Committee believes the molded
trays utilized during the 1998-1999 season were manufactured prior to
1994, that the cell cups of these molded trays were designed to fit
smaller fruit, and that the size of the cups contributed to the packing
problems associated with Size 45 trays during the 1998-1999 season.
Tray manufacturers attending Committee meetings in January and
February 1999 expressed interest in working with the industry in
developing molded tray inserts with slightly larger cell cups for Size
45 trays. These slightly larger cell cups allow slightly larger fruit
to be packed and thus enable the minimum size requirements to be met.
As a result, the Committee unanimously recommended that the minimum
size for all pack styles be established as a maximum of 55 pieces of
fruit in an 8-pound sample. These changes will not impact the kiwifruit
import regulation implemented under section 8e of the Act, because this
recommendation will only clarify that the minimum size requirements
apply to all shipments.
The Committee further recommended that all rules and regulation
changes begin as soon as possible to enable handlers to make
operational decisions in time for the 1999-2000 harvest and shipping
season.
Lot Stamp Requirement
Section 920.303 of the order's rules and regulations outlines
container marking requirements for fresh shipments of California
kiwifruit.
Section 920.303(d) requires all exposed or outside containers of
kiwifruit, but not less than 75 percent of the total containers on a
pallet, to be plainly marked with the lot stamp number corresponding to
the lot inspection conducted by an authorized inspector. Individual
consumer packages and containers that are being directly loaded into a
vehicle for export shipment under the supervision of the Federal or
Federal-State Inspection Service are not subject to these requirements.
Prior to the 1998-1999 season, handlers did not place individual
consumer packages directly on pallets for shipping. Individual consumer
packages were placed in master containers and the master containers
bore the container marking requirements.
During the 1998-1999 season, new individual consumer packages that
interlock and fit on a pallet were utilized. These individual consumer
packages are stacked six packages by six packages on a pallet resulting
in 36 individual consumer packages per layer. Pallets are normally
stacked 8-10 layers high. The Committee determined that this style of
container will not meet the current marking requirements of not less
than 75 percent of the total containers on a pallet being plainly
marked with the lot stamp number. Due to the size and configuration of
the interlocking individual consumer packages, approximately 57 percent
of the individual consumer packages will be marked if all exposed or
outside containers are marked with the lot stamp number.
Therefore, when the Committee met on February 25, 1999, they
unanimously recommended adding language to Sec. 920.303(d) to require
individual consumer packages placed directly on a pallet to have all
exposed containers plainly marked with the lot stamp number
corresponding to the lot inspection conducted by an authorized
inspector or that a total of four placards be applied to the pallet of
kiwifruit. The Committee believes that relaxing the requirement to have
all exposed or outside containers and at least 75 percent of the
containers on the pallet marked with the lot stamp number, will allow
handlers to ship individual consumer packages without incurring the
additional costs of marking containers that are not exposed, and
slowing down the packing line to mark the containers.
Changes To Clarify Pack and Container Marking Requirements
Section 920.303 of the order's rules and regulations outlines
container marking requirements for fresh shipments of California
kiwifruit.
Section 920.303(c)(3) establishes how the quantity shall be marked
on bulk bins and requires the quantity to be indicated in terms of the
size designation and net weight, or in terms of the size designation,
net weight, and count.
Section 920.303(c)(5) establishes how the quantity shall be marked
on individual consumer packages and requires that the quantity shall be
indicated in terms of either net weight or count (or both) for
individual consumer packages. It further requires that if count is
used, it must be accompanied by the size designation.
At the February 25, 1999, meeting, the Committee recommended the
following changes to pack requirements in Secs. 920.302(a)(4)(ii) and
(iv): (1) Change language in the first table of Sec. 920.302(a)(4)(ii)
as follows: Change ``Sizes'' to ``Count,'' change ``30 or larger'' to
``30 or less,'' and change ``39 or smaller'' to ``39 or more'; (2) add
language to Sec. 920.302(a)(4)(ii) to exclude individual consumer
packages from the list of containers that utilize the size variation
tolerance table for kiwifruit packed in containers with cell
compartments, cardboard fillers, or molded trays; (3) change language
in the second table of Sec. 920.302(a)(4)(ii) from ``Sizes'' to ``Size
Designation'; (4) change language in Sec. 920.302(a)(4)(ii) to add
individual consumer packages to the list of containers which specifies
size variation tolerances for kiwifruit packed in bags, volume fill, or
bulk containers; and (5) change language in Sec. 920.302(a)(4)(iv) by
adding ``individual consumer packages'' to the list of containers in
the table specifying the numerical size and maximum number of fruit per
8-pound sample; delete the word ``numerical'' when describing size; and
delete the words ``Column 1,'' ``Column 2,'' and ``Numerical Count''
from the size designation table in Sec. 920.302(a)(4)(iv) as they are
not necessary.
These changes will: (1) Reflect current industry practices; (2)
clarify that the size variation tolerances which are applied to fruit
packed in volume fill containers are also applied to individual
consumer packages; (3) clarify that the size designation chart is
utilized to determine the maximum number of fruit per 8-pound sample
for individual consumer packages; and (4) delete unnecessary language.
The Committee also recommended the following changes to container
requirements in Secs. 920.303(c)(3) and (5) as follows: (1) Change
language in Sec. 920.303(c)(3) by adding ``individual consumer packages
not within a master container'' to the list of containers in the size
designation table specifying the size and maximum number of fruit per
8-pound sample; (2) delete the word ``bins'' and replace it with
``containers'; (3) delete the words ``net weight'' as they are not
necessary; and (4) change language in Sec. 920.302(a)(5) by adding
``within a master container'' after individual consumer packages.
These changes will ensure that marking requirements are clearly
defined for individual consumer packages placed directly on a pallet as
well as those packed within a master container.
[[Page 41013]]
Continuation of 1998-1999 Season Suspended Actions for the 1999-
2000 Season
Continued Suspension of Minimum Net Weight Requirements for Trays
Section 920.302(a)(4) of the order's rules and regulations outlines
pack requirements for fresh shipments of California kiwifruit.
Section 920.302(a)(4)(iii) specifies minimum net weight
requirements for fruit of various sizes packed in containers with cell
compartments, cardboard fillers, or molded trays.
Prior to the 1989-1990 season, there were no minimum tray weight
requirements although 73.5 percent of the crop was packed in trays.
During the 1989-1990 season, minimum tray weights were mandated, as
there were many new packers involved in the kiwifruit packing process
and stricter regulations were viewed as necessary to provide uniform
container weights for each size. However, since that season the
proportion of the crop packed in trays has steadily declined.
During the 1997-1998 season, only 15.5 percent of the crop was
packed into molded trays and less than 1 percent of this fruit was
rejected for failure to meet minimum tray weights. As a consequence,
the Committee believed that minimum tray weight requirements might no
longer be necessary to maintain uniformity in the marketplace.
Prior to the 1998-1999 season handlers were required to meet the
minimum net weight requirements as shown in the following chart:
------------------------------------------------------------------------
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........................................... 6.5
------------------------------------------------------------------------
The Committee met on July 8, 1998, and unanimously recommended
suspension of the minimum net weight requirements for kiwifruit packed
in cell compartments, cardboard fillers, or molded trays for the 1998-
1999 season. Section 920.302(a)(4)(iii) was suspended for the 1998-1999
season by an interim final rule published September 3, 1998 (63 FR
14861).
As previously mentioned, both small and large handlers were able to
reduce packing costs and to compete more effectively in the market
during the 1998-1999 season because of the relaxation in packing
requirements. The industry continued to pack well filled trays without
having to spend the extra time weighing them. There was no reduction in
the uniform appearance of fruit packed into trays.
Therefore, when the Committee met on January 13, 1999, to consider
its preliminary recommendations for the season, it concluded that
minimum net weight requirements for trays should continue to be
suspended for the 1999-2000 season.
The Committee met on February 25, 1999, and unanimously recommended
continuing the suspension of Sec. 920.302(a)(4)(iii) for the 1999-2000
season. The 1999-2000 season ends July 31, 2000. The Committee plans to
further evaluate the benefits during the 1999-2000 season.
Continued Suspension of Reinspection Requirement
Section 920.55 of the order requires that prior to handling any
variety of California kiwifruit, such kiwifruit shall be inspected by
the Federal or Federal-State Inspection Service (inspection service)
and certified as meeting the applicable grade, size, quality, or
maturity requirements in effect pursuant to Sec. 920.52 or Sec. 920.53.
Section 920.55(b) provides authority for the establishment, through
the order's rules and regulations, of a period prior to shipment during
which inspections must be performed.
Prior to its suspension for the 1998-1999 season, Sec. 920.155 of
the order's rules and regulations specified that the certification of
grade, size, quality, and maturity of kiwifruit pursuant to Sec. 920.52
or Sec. 920.53 during each fiscal year is valid until December 31 of
such year or 21 days from the date of inspection, whichever is later.
Any inspected kiwifruit to be shipped after the certification period
lapses was required to be reinspected and recertified before shipment.
Section 920.155 was suspended for the 1998-1999 season by a final
rule published August 1, 1998 (63 FR 41390). The Committee recommended
this suspension to lessen the expenses upon the many kiwifruit growers
who had either lost money or merely recovered their production costs in
recent years. It concluded that the cost of reinspecting kiwifruit was
too high to justify requiring it in view of the limited benefit
reinspection provides. The Committee also believed it was no longer
necessary to have fruit reinspected to provide consumers with a high
quality product because storage and handling operations had improved in
the industry.
During the 1998-1999 season, handlers voluntarily checked stored
fruit prior to shipment to ensure that the condition of the fruit had
not deteriorated. This enabled handlers to ship quality kiwifruit
during the 1998-1999 season without the necessity for reinspection and
recertification and the costs associated with such requirements. The
Committee had estimated that handlers would save $50,000 by conducting
their own reinspection during the 1998-1999 season.
At the February 25, 1999, meeting, the Committee unanimously
recommended suspending Sec. 920.155 for the 1999-2000 season. The
Committee still believes that handlers saved $50,000 by conducting
their own reinspection during the 1998-1999 season even though the
marketed crop was less than projected, more fruit was in-line inspected
than projected, and shipments had started later during the 1998-1999
season than anticipated.
Although freezing temperatures and winds during the spring have
reduced the size of the 1999-2000 crop, the Committee believes the
industry will continue to benefit from conducting its own reinspection.
The Committee plans to evaluate this suspension one more season
before making a decision to permanently remove this requirement from
the rules and regulations. Thus, the Committee unanimously recommended
suspending Sec. 920.155 for the 1999-2000 season. The 1999-2000 season
ends July 31, 2000.
Maintaining Current Regulatory Changes
Maintaining the Current Size Variation Tolerance for Size 42 Kiwifruit
Section 920.302(a)(4) of the order's rules and regulations outlines
pack requirements for fresh shipments of California kiwifruit.
Section 920.302(a)(4)(ii) specifies size variation ranges in terms
of fruit diameter for each size of kiwifruit and size variation
tolerances.
Section 920.302(a)(4)(ii) was revised by an interim final rule
published September 3, 1998 (63 FR 46861) to include a provision to
increase the size variation tolerance for Size 42 kiwifruit from 10
percent, by count, to 25 percent, by count.
During the 1998-1999 season a significantly smaller amount of
kiwifruit was packed into the 40 series sizes than anticipated. Only 7
percent of the fruit was packed into Size 42 containers, and only 15.3
percent was packed into Size 42 and 45 containers. This is
significantly less than the previous two years when 35 percent of the
fruit was packed into the 40 series sizes.
[[Page 41014]]
In addition, size variation was not a problem for Size 42 fruit
during the 1998-1999 season, as the majority of the fruit was round and
short and not a mixture of round and flat fruit. A typical crop has a
mixture of round and flat fruit. A mixture of round and flat fruit is
difficult to pack and slows down the packing line.
The Committee believes that maintaining the increased size
variation tolerance for Size 42 kiwifruit for the 1999-2000 season will
continue to benefit the industry by easing the packing burden and
reducing costs, while maintaining uniform looking boxes of fruit
desired by customers.
Maintaining the Current Maximum Number of Fruit per 8-Pound Sample for
Kiwifruit Packed in Bags, Volume Fill, or Bulk Containers
Section 920.302(a)(4) of the order's rules and regulations outlines
pack requirements for fresh shipments of California kiwifruit.
Section 920.302(a)(4)(iv) establishes a maximum number of fruit per
8-pound sample for each numerical count size designation for fruit
packed in bags, volume fill, or bulk containers.
Section 920.302(a)(4)(iv) was revised by an interim final rule
published September 3, 1998 (63 FR 46861) to include a provision that
increased the maximum number of fruit per 8-pound sample for Sizes 42
through 30. Size 42 fruit is smaller than Size 30 fruit. The size
designation chart below depicts these changes:
------------------------------------------------------------------------
Maximum
number of
Size designation fruit per 8
pound
sample
------------------------------------------------------------------------
21......................................................... 22
25......................................................... 27
27/28...................................................... 30
30......................................................... 33
33......................................................... 36
36......................................................... 42
39......................................................... 48
42......................................................... 53
45......................................................... 55
------------------------------------------------------------------------
Currently, under the rules and regulations, kiwifruit packed in
bags, volume fill, or bulk containers, must not exceed the maximum
number of fruit per an 8-pound sample for each size designation.
Under the current regulations, handlers are better able to meet the
needs of buyers, because kiwifruit sells by the piece, and buyers
desire as much fruit in each container as the container can comfortably
hold. California handlers are applying weight standards that are
similar to those used by importers, thereby lessening confusion in the
marketplace and facilitating the marketing of California kiwifruit.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this action on small entities. Accordingly, AMS has
prepared this final 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 the 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 60 handlers of California kiwifruit subject
to regulation under the marketing order and approximately 450 producers
in the production area. Small agricultural producers are defined by the
Small Business Administration (13 CFR 121.601) as those whose annual
receipts are less than $500,000, and small agricultural service firms
are defined as those whose annual receipts are less than $5,000,000.
One of the 60 handlers subject to regulation has annual kiwifruit
receipts of at least $5,000,000. This figure excludes receipts from any
other sources. The remaining 59 handlers have annual receipts less than
$5,000,000, excluding receipts from other sources. In addition, 10 of
the 450 producers subject to regulation have annual sales of at least
$500,000, excluding receipts from any other sources. The remaining 440
producers have annual sales less than $500,000, excluding receipts from
any other sources. Therefore, a majority of the kiwifruit handlers and
producers may be classified as small entities.
This final rule changes minimum size, pack, container, and
inspection requirements prescribed under the California kiwifruit
marketing order. The marketing order regulates the handling of
kiwifruit grown in California and is administered locally by the
Committee.
This rule specifies the minimum size requirements for all kiwifruit
as a maximum of 55 pieces of fruit in an 8-pound sample regardless of
pack style; requires that individual consumer packages placed directly
on a pallet be stamped with the applicable inspection lot number; and
makes minor changes to clarify pack and container marking requirements
for several containers.
In addition, this rule continues, for the 1999-2000 season, the
suspension of the minimum net weight requirements in Sec. 920.302
(a)(4)(iii) for kiwifruit packed in containers with cell compartments,
cardboard fillers, or molded trays scheduled to expire at the end of
the 1998-1999 season. This suspension action was implemented by an
interim final rule published last September (63 FR 46861; September 3,
1998). A final rule published last August suspended, for the 1998-1999
season, the requirement in Sec. 920.155 that fruit must be reinspected
if it has not been shipped by specified dates (63 FR 41390; August 4,
1998). This rule also continues the suspension of this requirement for
the 1999-2000 season.
These changes were unanimously recommended by the Committee.
Clarification of the minimum size and changes to the pack and container
requirements are expected to reduce handler packing costs, increase
producer returns, and enable handlers to compete more effectively in
the marketplace.
The interim final rule published last September also increased the
size variation tolerance for Size 42 kiwifruit and the maximum number
of fruit for the 8-pound sample for the 1998-1999 and future seasons.
No changes are being made to these provisions by this action.
In early November 1998, the Department determined that suspending
the minimum net weight requirements as specified in
Sec. 920.302(a)(4)(iii) without redefining the size designation
definition in Sec. 920.302(b)(2) had inadvertently limited application
of the minimum size requirements to volume fill packs.
The Committee met on November 19, 1998, and clarified that the
intent of its July 8, 1998, recommendation had been to maintain the
minimum size requirement on all kiwifruit regardless of pack style. The
Committee discussed changing the regulatory language so that minimum
size applied to all pack styles for the remainder of the 1998-1999
season, but concluded that it would be unfair to growers and handlers
to change this requirement in mid-season. The Committee believed that
orderly marketing would continue as harvest was nearly completed at the
time of the November 1998 meeting and because a small amount of minimum
size kiwifruit had been packed in trays.
The Committee met again on January 13, 1999, to discuss industry
issues and to make preliminary recommendations for the 1999-2000
season. The
[[Page 41015]]
Committee concluded that the recommended changes made for the season
had benefitted the industry. Both small and large handlers were able to
reduce packing costs and compete more effectively in the marketplace in
the 1998-1999 season because of the relaxations made to the
requirements.
The Committee made the following preliminary recommendations for
the 1999-2000 season: (1) Specify that minimum size requirements apply
to all kiwifruit regardless of pack style and define Size 45 in terms
of weight and not pack requirements; (2) make minor changes to clarify
pack and container marking requirements for several containers; (3)
continue the suspension of the requirement that fruit must be
reinspected if it has not been shipped by specified dates for the 1999-
2000 season; and (4) continue the suspension of the minimum net weight
requirements for kiwifruit packed in containers with cell compartments,
cardboard fillers, or molded trays for the 1999-2000 season.
Later in January the kiwifruit industry held meetings in Northern
and Southern California to further study the minimum size issue.
Studies showed that while Size 45 fruit filled Size 45 cell cups well
during the 1998-1999 season, the fruit packed would not have met the
suspended minimum net weight requirement of 6.5 pounds because of the
cup size used in the Size 45 tray, and also because the shape and
density of fruit varies from year to year. A Size 45 tray of kiwifruit
weighing a minimum of 6.5 pounds is equivalent to a maximum of 55
pieces of fruit in an 8-pound sample. Based on these findings, the
Committee determined that the minimum net weight requirements for Size
45 should be further evaluated.
The Committee met on February 25, 1999, and unanimously recommended
the following changes and clarifications for the 1999-2000 season: (1)
Specify that the minimum size requirements be defined as a maximum of
55 pieces of fruit in an 8-pound sample and that the minimum size
requirements should apply to all kiwifruit regardless of pack style;
(2) require that individual consumer packages placed directly on a
pallet be stamped with the applicable inspection lot number; (3) make
minor changes to clarify pack and container marking requirements for
several containers; (4) continue the suspension of the minimum net
weight requirements for kiwifruit packed in containers with cell
compartments, cardboard fillers, or molded trays for the 1999-2000
season; and (5) continue the suspension of the requirement that fruit
must be reinspected if it has not been shipped by specified dates for
the 1999-2000 season. The Committee further recommended that all rule
and regulation changes begin as soon as possible to enable handlers to
make operational decisions in time for the 1999-2000 harvest and
shipping season.
Revisions for the 1999-2000 Season
Clarification of the Minimum Size Requirement
Under the terms of the order, fresh market shipments of kiwifruit
grown in California are required to be inspected and meet grade, size,
maturity, pack, and container requirements. Section 920.52 authorizes
the establishment of minimum size, pack, and container requirements.
Section 920.302(a)(2) of the order's rules and regulations outlines the
minimum size requirements for fresh shipments of California kiwifruit
and provides that such kiwifruit shall be at least a minimum Size 45.
Section 920.302(a)(4)(iii) specifies minimum net weight
requirements for fruit of various sizes packed in containers with cell
compartments, cardboard fillers, or molded trays.
Section 920.302(b)(2) of the order's rules and regulations defines
size designation to mean the same as defined in the table in paragraph
(a)(4)(iii) of this section.
Prior to the 1998-1999 season, the minimum size for kiwifruit was
defined as a maximum of 55 pieces of fruit in an 8-pound sample
regardless of pack style. As previously mentioned, a change of pack
requirements recommended by the Committee last summer and implemented
by an interim final rule published on September 3, 1998 (63 FR 46861)
unintentionally limited application of minimum size requirements to
kiwifruit packed in bulk bins, bags, consumer packs, master containers
and volume fill containers. The Committee members attended a meeting in
November 1998 and again in January 1999 wherein they clarified their
initial intent, and set preliminary recommendations for the 1999-2000
season.
On February 25, 1999, the Committee unanimously recommended that
kiwifruit be at least a minimum Size 45, and that Size 45 be defined in
terms of weight and not pack requirements. The Committee recommended
that Size 45 be defined as a maximum of 55 pieces of fruit in an 8-
pound sample. This recommendation reflected the Committee's original
intent to apply uniform minimum size requirements to all kiwifruit
regardless of pack style. To further clarify its intent, the Committee
recommended adding the size definition to the size requirements in
Sec. 920.302(a)(2), deleting the size designation definition in
Sec. 920.302(b)(2), and defining Size 45 in terms of weight and not
pack.
The Committee considered other alternatives to maintaining Size 45,
defined as a maximum of 55 pieces of fruit in an 8-pound sample, as the
minimum size, but determined that these alternatives will not
adequately address the industry's problems. The Committee discussed
establishing two minimum net weight requirements, a lower net weight
requirement for Size 45 fruit packed into trays and a higher net weight
requirement for Size 45 kiwifruit packed into volume fill containers.
This suggestion was not acceptable as the Committee believed pack style
should not be the deciding factor in what size fruit is acceptable and
that lower weights on trays would discriminate against Size 45
kiwifruit packed into containers other than trays. In addition, members
commented that packers of volume fill containers might then have to
meet a more restrictive minimum size requirement than importers of
kiwifruit, and that two different minimum size requirements could cause
confusion in the marketplace and result in disorderly marketing.
The Committee also considered establishing a count of 58 or 59
pieces of fruit for the Size 45 trays, but concluded that the count
should remain a maximum of 55 pieces of fruit per 8-pound sample
because the current minimum size continues to prevent shipments of low-
quality, undersized fruit, and because repacking problems during the
1998-1999 season resulted from the cup size in the Size 45 tray and the
variance in the shape and density of the fruit from year to year, and
not from the current minimum size.
Over the years, the size designation (pieces of fruit) for Size 45
has changed, but the tray inserts for this size fruit have not changed.
In 1989, the size designation for Size 45 was changed to 57 pieces of
fruit per 8-pound sample and remained there until 1994, when Size 45
became the minimum size and was defined as 55 pieces of fruit per 8-
pound sample.
Kiwifruit was not packed in Size 45 trays during the three seasons
preceding the 1998-1999 season as it was not profitable for growers. A
small amount of kiwifruit was packed during the 1998-1999 season. The
Committee believes that the molded trays utilized during the 1998-1999
season were manufactured prior to 1994, that the cell cups of these
molded trays were
[[Page 41016]]
designed to fit smaller fruit, and that the size of the cups
contributed to the packing problems associated with Size 45 trays
during the 1998-1999 season.
Tray manufacturers attending Committee meetings in January and
February 1999 expressed interest in working with the industry in
developing molded tray inserts with slightly larger cell cups for Size
45 trays. These slightly larger cell cups would allow slightly larger
fruit to be packed and thus enable the minimum size requirements to be
met.
As a result, the Committee unanimously recommended that the minimum
size for all pack styles be established as a maximum of 55 pieces of
fruit in an 8-pound sample. These changes would not impact the
kiwifruit import regulation implemented under section 8e of the Act,
because this recommendation would only clarify that the minimum size
requirement applies to all shipments regardless of pack style.
The Committee further recommended that all rule and regulation
changes begin as soon as possible to enable handlers to make
operational decisions in time for the 1999-2000 harvest and shipping
season.
Lot Stamp Requirement
Section 920.303 of the order's rules and regulations outlines
container marking requirements for fresh shipments of California
kiwifruit.
Section 920.303(d) requires all exposed or outside containers of
kiwifruit, but not less than 75 percent of the total containers on a
pallet, to be plainly marked with the lot stamp number corresponding to
the lot inspection conducted by an authorized inspector. Individual
consumer packages and containers that are being directly loaded into a
vehicle for export shipment under the supervision of the Federal or
Federal-State Inspection Service are not subject to this requirement.
Prior to the 1998-1999 season, handlers did not place individual
consumer packages directly on pallets for shipping. Individual consumer
packages were placed in master containers and the master containers
bore the container marking requirements.
During the 1998-1999 season, new individual consumer packages that
interlock and fit on a pallet were utilized. These individual consumer
packages are stacked six packages by six packages on a pallet resulting
in 36 individual consumer packages per layer. Pallets are normally
stacked 8-10 layers high. The Committee determined that this style of
container would not meet the current marking requirements of not less
than 75 percent of the total containers on a pallet being plainly
marked with the lot stamp number. Due to the size and configuration of
the interlocking individual consumer packages, approximately 57 percent
of the individual consumer packages would be marked if all exposed or
outside containers are marked with the lot stamp number.
Therefore, when the Committee met on February 25, 1999, it
unanimously recommended adding language to Sec. 920.303(d) that would
require individual consumer packages placed directly on a pallet to
have all exposed containers plainly marked with the lot stamp number
corresponding to the lot inspection conducted by an authorized
inspector or that a total of four placards be applied to the pallet of
kiwifruit. The Committee believes that relaxing the requirement to have
all exposed or outside containers and at least 75 percent of the
containers on the pallet marked with the lot stamp number, would allow
handlers to ship individual consumer packages without incurring the
additional costs of marking containers that are not exposed, and
slowing down the packing line to mark the containers.
The Committee considered other alternatives to the requirement to
stamp all exposed or outside containers, or to attach four placards to
the pallet, but determined that these suggestions would not adequately
address the positive lot identification requirements.
One suggestion was to utilize one or two placards, but the industry
believed that four placards (one on each side) would be a more adequate
means of ensuring that the pallet met the positive lot identification
(PLI) requirements.
Another suggestion was to identify each package in such a way that
it could be traced back to the original inspection certificate. Placing
date codes or other types of codes on every container prior to
palletizing and using that as PLI on the inspection certificate was
discussed. The Committee did not adopt this suggestion as it believed
that all containers, including those in the center stacks would have to
be marked with a special code, and that this would be more restrictive
than current requirements for other containers placed on pallets. The
Committee also believed that this might slow down the packing process,
thus resulting in increased packing costs.
After considering the alternatives, the Committee unanimously
recommended that individual consumer packages placed directly on a
pallet have all exposed containers plainly marked with the lot stamp
number corresponding to the lot inspection conducted by an authorized
inspector or that a total of four placards be applied to the pallet of
kiwifruit.
Changes To Clarify Pack and Container Marking Requirements
Section 920.303 of the order's rules and regulations outlines
container marking requirements for fresh shipments of California
kiwifruit.
Section 920.303(c)(3) establishes how the quantity shall be marked
on bulk bins and requires the quantity to be indicated in terms of the
size designation and net weight, or in terms of the size designation,
net weight, and count.
Section 920.303(c)(5) establishes how the quantity shall be marked
on individual consumer packages and requires that the quantity shall be
indicated in terms of either net weight or count (or both) for
individual consumer packages. It further requires that if count is
used, it must be accompanied by the size designation.
At the February 25, 1999, meeting, the Committee recommended the
following changes to pack requirements in Secs. 920.302(a)(4)(ii) and
(iv): (1) Change language in the first table of Sec. 920.302(a)(4)(ii)
as follows: Change ``Sizes'' to ``Count,'' change ``30 or larger'' to
``30 or less,'' and change ``39 or smaller'' to ``39 or more''; (2) add
language to Sec. 920.302(a)(4)(ii) to exclude individual consumer
packages from the list of containers that utilize the size variation
tolerance table for kiwifruit packed in containers with cell
compartments, cardboard fillers, or molded trays; (3) change language
in the second table of Sec. 920.302(a)(4)(ii) from ``Sizes'' to ``Size
Designation''; (4) change language in Sec. 920.302(a)(4)(ii) to add
individual consumer packages to the list of containers which specifies
size variation tolerances for kiwifruit packed in bags, volume fill, or
bulk containers; and (5) change language in Sec. 920.302(a)(4)(iv) by
adding ``individual consumer packages'' to the list of containers that
utilize the table which specifies the numerical size and maximum number
of fruit per 8-pound sample; delete the word ``numerical'' when
describing size; and delete the words ``Column 1,'' ``Column 2,'' and
``Numerical Count'' from the size designation table in
Sec. 920.302(a)(4)(iv) as they are not necessary.
These changes will: (1) Reflect current industry practices; (2)
clarify that the size variation tolerances which are applied to fruit
packed in volume fill containers are also applied to individual
consumer packages; (3) clarify that the
[[Page 41017]]
size designation chart is utilized to determine the maximum number of
fruit per 8-pound sample for individual consumer packages; and (4)
delete unnecessary language.
The Committee also recommended the following changes to container
requirements in Secs. 920.303(c)(3) and (5) as follows: (1) Change
language in Sec. 920.303(c)(3) by adding ``individual consumer packages
not within a master container'' to the list of containers in the size
designation table specifying the size and maximum number of fruit per
8-pound sample; (2) delete the word ``bins'' and replace it with
``containers''; (3) delete the words ``net weight'' as they are not
necessary; and (4) change language in Sec. 920.302(a)(5) by adding
``within a master container'' after individual consumer packages.
These changes clearly define marking requirements for individual
consumer packages placed directly on a pallet as well as those packed
within a master container.
Continuation of 1998-1999 Season Suspended Actions for the 1999-
2000 Season
Continued Suspension of Minimum Net Weight Requirements for Trays
Section 920.302(a)(4) of the order's rules and regulations outlines
pack requirements for fresh shipments of California kiwifruit.
Before the suspension action last September,
Sec. 920.302(a)(4)(iii) specified minimum net weight requirements for
fruit of various sizes packed in containers with cell compartments,
cardboard fillers, or molded trays.
Prior to the 1989-1990 season, there were no minimum tray weight
requirements although 73.5 percent of the crop was packed in trays.
During the 1989-1990 season, minimum tray weights were mandated, as
there were many new packers involved in the kiwifruit packing process
and stricter regulations were viewed as necessary to provide uniform
container weights for each size. However, since that season the
proportion of the crop packed in trays has steadily declined.
During the 1997-1998 season, only 15.5 percent of the crop was
packed into molded trays and less than 1 percent of this fruit was
rejected for failure to meet minimum tray weights. As a consequence,
the Committee believed that minimum tray weight requirements might no
longer be necessary to maintain uniformity in the marketplace.
Prior to the 1998-1999 season handlers were required to meet the
minimum net weight requirements as shown in the following chart:
------------------------------------------------------------------------
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................................. 6.5
------------------------------------------------------------------------
The Committee met on July 8, 1998, and unanimously recommended
suspension of the minimum net weight requirements for kiwifruit packed
in cell compartments, cardboard fillers, or molded trays for the 1998-
1999 season. Section 920.302(a)(4)(iii) was suspended for the 1998-1999
season by an interim final rule published September 3, 1998 (63 FR
46861).
As previously mentioned, both small and large handlers were able to
reduce packing costs and to compete more effectively in the market
during the 1998-1999 season because of the relaxation in packing
requirements. The industry continued to pack well filled trays without
having to spend the extra time weighing them. There was no reduction in
the uniform appearance of fruit packed into trays.
Therefore, when the Committee met on January 13, 1999, to consider
its preliminary recommendations for the season, it concluded that
minimum net weight requirements for trays should continue to be
suspended for the 1999-2000 season.
The Committee met on February 25, 1999, and unanimously recommended
continuing the suspension of Sec. 920.302(a)(4)(iii) for the 1999-2000
season. The 1999-2000 season ends July 31, 2000. The Committee plans to
further evaluate the benefits during the 1999-2000 season.
Continued Suspension of Reinspection Requirements
Section 920.55 of the order requires that prior to handling any
variety of California kiwifruit, such kiwifruit shall be inspected by
the Federal or Federal-State Inspection Service (inspection service)
and certified as meeting the applicable grade, size, quality, or
maturity requirements in effect pursuant to Sec. 920.52 or Sec. 920.53.
Section 920.55(b) provides authority for the establishment, through
the order's rules and regulations, of a period prior to shipment during
which inspections must be performed.
Prior to the 1998-1999 season, Sec. 920.155 of the order's rules
and regulations prescribed that the certification of grade, size,
quality, and maturity of kiwifruit pursuant to Sec. 920.52 or
Sec. 920.53 during each fiscal year was valid until December 31 of such
year or 21 days from the date of inspection, whichever was later. Any
inspected kiwifruit to be shipped after the certification period lapses
was required to be reinspected and recertified before shipping.
Section 920.155 was suspended for the 1998-1999 season by a final
rule published August 4, 1998 (63 FR 41390). The Committee recommended
this suspension to lessen the expenses upon the many kiwifruit growers
who had either lost money or merely recovered their production costs in
recent years. It concluded that the cost of reinspecting kiwifruit was
too high to justify requiring it in view of the limited benefit
reinspection provides. The Committee also believed it was no longer
necessary to have fruit reinspected to provide consumers with a high
quality product because storage and handling operations had improved in
the industry.
During the 1998-1999 season, handlers voluntarily checked stored
fruit prior to shipment to ensure that the condition of the fruit had
not deteriorated. This enabled handlers to ship quality kiwifruit
during the 1998-1999 season without the necessity for reinspection and
recertification and the costs associated with such requirements. The
Committee had estimated that handlers will save $50,000 by conducting
their own reinspection during the 1998-1999 season.
At the February 25, 1999, meeting, the Committee unanimously
recommended suspending Sec. 920.155 for the 1999-2000 season. The
Committee still believes that handlers saved $50,000 by conducting
their own reinspection during the 1998-1999 season even though the
marketed crop was less than projected, more fruit was in-line inspected
than projected, and shipments had started later during the 1998-1999
season than anticipated.
Although freezing temperatures and winds during the spring have
reduced the 1999-2000 crop estimate, the Committee believes the
industry will continue to benefit from conducting its own reinspection.
The Committee plans to evaluate this suspension one more season
before making a decision to permanently remove this requirement from
the rules and regulations. Thus, the Committee unanimously recommended
suspending Sec. 920.155 for the 1999-2000 season. The 1999-2000 season
ends July 31, 2000.
[[Page 41018]]
Maintaining Current Regulatory Changes
Maintaining the Current Size Variation Tolerance for Size 42 Kiwifruit
Section 920.302(a)(4) of the order's rules and regulations outlines
pack requirements for fresh shipments of California kiwifruit.
Section 920.302(a)(4)(ii) specifies size variation ranges in terms
of fruit diameter for each size of kiwifruit and size variation
tolerances.
Section 920.302(a)(4)(ii) was revised by an interim final rule
published September 3, 1998 (63 FR 46861) to include a provision to
increase the size variation tolerance for Size 42 kiwifruit from 10
percent, by count, to 25 percent, by count.
During the 1998-1999 season, a significantly smaller amount of
kiwifruit was packed into the 40 series sizes than anticipated. Only 7
percent of the fruit was packed into Size 42 containers, and only 15.3
percent was packed into Size 42 and 45 containers. This is
significantly less than the previous two years when 35 percent of the
fruit was packed into the 40 series sizes.
In addition, size variation was not a problem for Size 42 fruit
during the 1998-1999 season, as the majority of the fruit was round and
short and not a mixture of round and flat fruit. A typical crop has a
mixture of round and flat fruit. A mixture of round and flat fruit is
difficult to pack and slows down the packing line.
The Committee believes that maintaining the increased size
variation tolerance for Size 42 kiwifruit for the 1999-2000 season will
continue to benefit the industry by easing the packing burden and
reducing costs, while maintaining uniform looking boxes of fruit
desired by customers.
Maintaining the Current Maximum Number of Fruit Per 8-Pound Sample for
Kiwifruit Packed in Bags, Volume Fill, or Bulk Containers
Section 920.302(a)(4) of the order's rules and regulations outlines
pack requirements for fresh shipments of California kiwifruit.
Section 920.302(a)(4)(iv) establishes a maximum number of fruit per
8-pound sample for each numerical count size designation for fruit
packed in bags, volume fill, or bulk containers.
Section 920.302(a)(4)(iv) was revised by an interim final rule
published September 3, 1998 (63 FR 46861) to include a provision that
increased the maximum number of fruit per 8-pound sample for Sizes 42
through 30. Size 42 fruit is smaller than Size 30 fruit. The size
designation chart below depicts these changes:
------------------------------------------------------------------------
Maximum
number of
Size designation Fruit per
8 pound
sample
------------------------------------------------------------------------
21......................................................... 22
25......................................................... 25
27/28...................................................... 30
30......................................................... 33
33......................................................... 36
36......................................................... 42
39......................................................... 48
42......................................................... 53
45......................................................... 55
------------------------------------------------------------------------
Currently, under the rules and regulations, kiwifruit packed in
bags, volume fill, or bulk containers, must not exceed the maximum
number of fruit per an 8-pound sample for each size designation.
Under the current regulations, handlers are better able to meet the
needs of buyers, because kiwifruit sells by the piece, and buyers
desire as much fruit in each container as the container can comfortably
hold. California handlers are applying weight standards that are
similar to those used by importers, thereby lessening confusion in the
marketplace and facilitating the marketing of California kiwifruit.
These changes address the marketing and shipping needs of the
kiwifruit industry and are in the interest of handlers, producers,
buyers, and consumers. The impact of these changes on producers and
handlers is expected to be beneficial for all levels of business.
This action will not impose any additional reporting or
recordkeeping requirements on either small or large kiwifruit handlers.
As with all Federal marketing order programs, reports and forms are
periodically reviewed to reduce information requirements and
duplication by industry and public sectors. In addition, the Department
has not identified any relevant Federal rules that duplicate, overlap,
or conflict with this rule.
Further, the Committee's meetings were widely publicized throughout
the kiwifruit industry and all interested persons were invited to
attend the meetings and participate in Committee deliberations. Like
all Committee meetings, the February 25, 1999, meeting was a public
meeting and all entities, both large and small, were able to express
their views on this issue. The Committee itself is composed of 12
members. Three of these members are handlers and producers, eight are
producers only, and one is a public member. The majority of the
industry are small entities.
A proposed rule covering this action was published in the Federal
Register on June 25, 1999 (64 FR 34144). Copies of the rule were mailed
or sent via facsimile to all Committee members on June 25, 1999.
Finally, the rule was made available through the Internet by the Office
of the Federal Register. A 20-day comment period was provided to allow
interested persons to respond to this proposal. No comments were
received. The interim final rule suspending, for the 1998-1999 season,
the minimum net weight requirements in Sec. 920.302(a)(4)(iii) for
kiwifruit packed in containers with cell compartments, cardboard
fillers, or molded trays was published last September (63 FR 46861;
September 3, 1998). No comments were received.
After consideration of all relevant matter presented, including the
information and recommendation submitted by the Committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
Pursuant to 5 U.S.C. 553, it is also found that good cause exists
for not postponing the effective date of this rule until 30 days after
publication in the Federal Register because: (1) This rule relaxes pack
and inspection requirements; (2) this rule continues to suspend for one
more season, the pack and inspection requirements which were suspended
from August 1, 1998 to July 31, 1999; (3) the 1999-2000 harvest is
expected to begin the end of September, and this rule should be in
effect before that time so producers and handlers can make plans to
operate under the relaxed requirements; and (4) the Committee
unanimously recommended these changes at a public meeting and
interested parties had an opportunity to provide input.
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.
Sec. 920.155 [Suspended]
2. In part 920, Sec. 920.155 is suspended in its entirety effective
August 1, 1999, through July 31, 2000.
3. Section 920.302 is amended:
[[Page 41019]]
A. By revising paragraphs (a)(2), (a)(4)(ii), and (a)(4)(iv)to read
as set forth below;
B. By suspending paragraph (a)(4)(iii) effective August 1, 1999,
through July 31, 2000;
C. By removing paragraph (b)(2) and redesignating paragraph (b)(1)
as the text of paragraph (b).
Sec. 920.302 Grade, size, pack, and container regulations.
(a) * * *
(2) Size Requirements. Such kiwifruit shall be at least a minimum
Size 45. Size 45 is defined as a maximum of 55 pieces of fruit in an 8-
pound sample.
* * * * *
(4) * * *
(ii) (A) Kiwifruit packed in cell compartments, cardboard fillers
or molded trays (excluding individual consumer packages) may not vary
in diameter more than:
------------------------------------------------------------------------
Count Diameter
------------------------------------------------------------------------
30 or less................................ \1/2\-inch (12.7 mm).
31-38..................................... \3/8\-inch (9.5 mm).
39 or more................................ \1/4\-inch (6.4 mm).
------------------------------------------------------------------------
(B) Kiwifruit packed in individual consumer packages, bags, volume
fill, or bulk containers, fruit may not vary more than:
------------------------------------------------------------------------
Size designation 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).
------------------------------------------------------------------------
(C) 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 Sizes 42 and 45 kiwifruit, the tolerance, by count, in
any one container, may not be more than 25 percent) may fail to meet
the requirements of this paragraph.
* * * * *
(iv) When kiwifruit is packed in individual consumer packages,
bags, volume fill or bulk containers, the following table specifying
the size designation and maximum number of fruit per 8-pound sample is
to be used.
------------------------------------------------------------------------
Maximum
number of
Size designation fruit per
8-pound
sample
------------------------------------------------------------------------
21......................................................... 22
25......................................................... 27
27/28...................................................... 30
30......................................................... 33
33......................................................... 36
36......................................................... 42
39......................................................... 48
42......................................................... 53
45......................................................... 55
------------------------------------------------------------------------
* * * * *
4. In Sec. 920.303, paragraphs (c)(3), (c)(5), and (d) are revised
to read as follows:
Sec. 920.303 Container marking regulations.
(c) * * *
(3) For bulk containers or individual consumer packages not within
a master container, the quantity shall be indicated in terms of the
size designation and net weight, or in terms of the size designation
and count.
* * * * *
(5) The quantity shall be indicated in terms of either net weight
or count (or both) for individual consumer packages within a master
container. If count is used, it must be accompanied by the size
designation.
* * * * *
(d) All exposed or outside containers of kiwifruit, but not less
than 75 percent of the total containers on a pallet, shall be plainly
marked with the lot stamp number corresponding to the lot inspection
conducted by an authorized inspector, except for individual consumer
packages within a master container and containers that are being
directly loaded into a vehicle for export shipment under the
supervision of the Federal or Federal-State Inspection Service.
Individual consumer packages of kiwifruit placed directly on a pallet
shall have all outside or exposed packages on a pallet plainly marked
with the lot stamp number corresponding to the lot inspection conducted
by an authorized inspector or have one inspection label placed on each
side of the pallet.
* * * * *
Dated: July 22, 1999.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-19092 Filed 7-28-99; 8:45 am]
BILLING CODE 3410-02-P
