[Federal Register Volume 60, Number 78 (Monday, April 24, 1995)]
[Proposed Rules]
[Pages 20062-20064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9973]



[[Page 20062]]

DEPARTMENT OF AGRICULTURE

7 CFR Part 920

[Docket No. FV95-920-1PR]


Kiwifruit Grown in California; Proposed Relaxation of Pack 
Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would relax the pack requirements for 
kiwifruit packed in Size 45 containers under the Federal marketing 
order (order) for kiwifruit grown in California. This relaxation would 
increase the size variation tolerance for all Size 45 containers of 
kiwifruit from 5 percent, by count, to 10 percent, by count. This rule 
would reduce grower and handler costs and enable more fruit to be 
packed and sold. Several editorial changes are also being proposed to 
clarify the current kiwifruit handling requirements.

DATES: Comments must be received by May 24, 1995.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be submitted in triplicate to the 
Docket Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, 
Room 2523-S, Washington, DC 20090-6456, or by facsimile at (202) 720-
5698. Comments should reference this docket number and the date and 
page number of this issue of the Federal Register and will be made 
available for public inspection in the Office of the Docket Clerk 
during regular business hours.

FOR FURTHER INFORMATION CONTACT: Rose Aguayo, California Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Division, AMS, USDA, 2202 Monterey Street, Suite 102B, 
Fresno, California 93721; telephone (209) 487-5901; or Charles Rush, 
Marketing Order Administration Branch, Fruit and Vegetable Division, 
AMS, USDA, P.O. Box 96456, Room 2526-S, Washington, DC 20090-6456, 
telephone (202) 690-3670.

SUPPLEMENTARY INFORMATION: This proposed rule is issued under Marketing 
Order No. 920 (7 CFR part 920), as amended, regulating the handling of 
kiwifruit grown in California, hereinafter referred to as the 
``order.'' The order is effective under the Agricultural Marketing 
Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter 
referred to as the ``Act.''
    The Department of Agriculture (Department) is issuing this proposed 
rule in conformance with Executive Order 12866.
    This proposed rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. This action is not intended to have retroactive 
effect. This proposed rule would not preempt any State or local laws, 
regulations, or policies, unless they present an irreconcilable 
conflict with this rule.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with the Secretary a 
petition stating that the order, any provision of the order, or any 
obligation imposed in connection with the order is not in accordance 
with law and request a modification of the order or to be exempted 
therefrom. A handler is afforded the opportunity for a hearing on the 
petition. After the hearing the Secretary would rule on the petition. 
The Act provides that the district court of the United States in any 
district in which the handler is an inhabitant, or has his or her 
principle place of business, has jurisdiction in equity to review the 
Secretary's ruling on the petition, provided a bill in equity is filed 
not later than 20 days after date of the entry of the ruling.
    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Administrator of the Agricultural Marketing Service 
(AMS) has considered the economic impact of this rule on small 
entities.
    The purpose of the RFA is to fit regulatory actions to the scale of 
business subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and rules issued thereunder, are unique in that 
they are brought about through group action of essentially small 
entities acting on their own behalf. Thus, both statutes have small 
entity orientation and compatibility.
    There are approximately 65 handlers of California kiwifruit subject 
to regulation under the order and approximately 600 kiwifruit producers 
in the production area. Small agricultural service firms are defined by 
the Small Business Administration (13 CFR 121.601) as those whose 
annual receipts are less than $5,000,000, and small agricultural 
producers have been defined as those having annual receipts of less 
than $500,000. A majority of handlers and producers of California 
kiwifruit may be classified as small entities.
    This proposal is in accordance with Sec. 920.52(a)(3) of the order 
which authorizes regulations to establish the pack of the container or 
containers which may be used in the packaging or handling of kiwifruit. 
Under the terms of the marketing order, fresh market shipments of 
California kiwifruit are required to be inspected and are subject to 
grade, size, maturity, pack and container requirements. Among the pack 
requirements, is a size variation tolerance requirement which specifies 
that not more than 5 percent, by count, of kiwifruit in any container 
may fail to meet the pack requirements of Sec. 920.302(a)(4). The size 
variation tolerance does not apply to other pack requirements such as 
how the fruit fills the cell compartments, cardboard fillers, or molded 
trays, or any weight requirements.
    The Kiwifruit Administrative Committee (committee), the agency 
responsible for local administration of the marketing order, met on 
February 8, 1995, and recommended by unanimous vote to relax the 
current size variation tolerance from 5 percent to 10 percent for bag, 
volume fill, bulk, cell compartments, cardboard fillers, or molded tray 
containers of Size 45 kiwifruit for pack under the Federal marketing 
order for kiwifruit grown in California.
    The order authorizes under Sec. 920.52 the establishment of pack 
requirements. Section 920.302(a)(4) of the rules and regulations 
outlines the pack requirements for fresh shipments of California 
kiwifruit. Section 920.302(a)(4)(i) outlines pack requirements for 
proper size, and size variation, and contains a table that provides 
minimum net weights for count designation of kiwifruit packed in 
containers with cell compartments, cardboard fillers, or molded trays. 
Section 920.302(a)(4)(ii) outlines pack requirements for fruit size 
variation in bags, volume fill and bulk containers and includes a table 
that specifies numerical size designations that are used to determine 
kiwifruit sizes. These size designations are defined by numerical 
counts, which establish the maximum number of fruit per 8-pound sample 
for each of the established sizes.
    The committee recommended increasing the size variation tolerance 
for Size 45 containers from 5 percent to 10 percent, by count, of 
kiwifruit in any container, because handlers cannot visually determine 
if fruit in a Size 45 container would meet the 5 percent tolerance.
    Packout by fruit size, of Size 45 containers, increased from 1.80 
percent for the 1993-94 season to 14.34 percent for the 1994-95 season. 
This increase in packout, of Size 45 fruit, is a result of blending 
Size 49 fruit into Size 45 fruit containers and as a result of weather 
conditions in the central and southern [[Page 20063]] parts of 
California which produced a larger percentage of smaller and flatter 
kiwifruit. Generally Size 45 fruit is a rounder fruit. Blending occurs 
because adjoining size designations have size tolerances that partially 
overlap and kiwifruit within either size tolerance may be packed in 
either size designation. In larger sized fruit, handlers see more of a 
variety of shapes and pack boxes of round fruit and boxes of flat fruit 
for each size in order to stay within the size variation requirements. 
For economic and practical reasons, most handlers pack boxes that 
include both the round Size 45 fruit, as well as smaller flat fruit.
    During the past season, a number of handlers experienced increased 
difficulty in meeting the size variation tolerance in the Size 45 
containers. Currently, a variation of \1/4\-inch (6.4 mm) difference is 
allowed between the widest and narrowest pieces of fruit in a Size 45 
pack for all containers. There is a tolerance of 5 percent for fruit 
that exceeds that \1/4\-inch variation, meaning that up to 5 percent of 
the fruit in any one container may exceed the \1/4\-inch variation. As 
the size of the fruit increases, so does the size of the variation 
allowed. In the larger fruit sizes, failure to meet the required size 
variation standards results in packs that are visibly irregular in 
size. In Size 45, however, when the 5 percent tolerance is exceeded, 
the variation is difficult to detect visually. During the packing 
operation, a mechanical sizer routinely sorts the fruit by shape and 
size. The fruit which is missed by the mechanical sizer must be 
correctly sorted by the handler. Since it is not economically feasible 
for each handler to be equipped with a caliper to measure size 
variation, they rely on their visual judgment. During inspection, 
calipers are utilized by the inspectors to determine if the size 
variation is met for Size 45 containers. The 5 percent tolerance 
requirement is seldom met, but the fruit is found to vary slightly 
above the allowed tolerance of 5 percent (within 6-8 percent 
tolerance). Handlers have found that it is cost-prohibitive to slow 
down their operations in an attempt to stay within the current 
tolerance levels and to recondition the fruit that fails inspection.
    The committee's intention in recommending this increase in the size 
variation tolerance is to set an acceptable size variation tolerance 
that can be visually discerned while the packing operation is in 
progress and results in a Size 45 container that is uniform in size.
    There is support in the industry to increase the size variation 
tolerance to 10 percent, by count, for the fruit in any Size 45 
container. An alternative studied by the committee field staff and 
considered by the committee was to increase the degree, or size of the 
variation allowed, from \1/4\-inch to \3/8\-inch. Throughout the 
season, fruit was measured and sample boxes were made up depicting this 
increased variation. It was the consensus of the field staff, 
inspection service and industry handlers that such an increase would 
allow for the blending up of undersize fruit. The end result would be a 
box that visibly showed a variation of fruit size, including undersize 
fruit. This was deemed not acceptable as the industry desires to pack a 
uniform box of fruit.
    Another alternative examined and proposed herein is to increase the 
5 percent size variation tolerance level to 10 percent. Throughout the 
season, field staff observed and polled handlers and inspectors on 
problems encountered with Size 45. The overwhelming majority of the 
cases where Size 45 fruit was rejected for size variation, the 
tolerance level was in the 6 percent to 8 percent range. It was not 
possible to distinguish a box at 10 percent variation from one at 5 
percent, without the use of a caliper. The general consensus was that 
once a 10 percent tolerance was exceeded, the variation became more 
visibly apparent and the handlers would recognize the need for 
repacking before calling for inspection.
    Relaxing the tolerance for Size 45 packs would allow an increased 
number of Size 45 kiwifruit in a container that are not within the \1/
4\-inch variance. For example, the pieces of fruit, which vary more 
than \1/4\-inch in a 22-pound volume fill container, could increase 
from 2 pieces to 5 pieces. This tolerance increase would not allow for 
the blending of additional sizes beyond those currently blended, but 
would grant more flexibility for varying shapes of the fruit. This 
relaxation would be beneficial to both growers and handlers. The 
proposed 10 percent size variation tolerance would decrease the amount 
of handler repacking and reduce inspection time and cost, thereby 
making it more cost effective for handlers. This would also result in 
no visual difference in uniformity.
    Section 920.302(a)(4) would be amended by revising paragraphs (i) 
through (iv) and adding new paragraphs (v) and (vi). Included in these 
changes are editorial changes made for clarity. Diameter variances 
would be specified for kiwifruit packed in cell compartments, cardboard 
fillers or molded trays. These provisions appear in Sec. 51.2338(d) of 
the United States Standards for Grades of Kiwifruit (7 CFR 51.2338(d)). 
Also, these changes would delete the phrase: ``Provided, That for the 
season ending July 31, 1995, such containers may also hold 23-pounds 
net weight of kiwifruit'' in Sec. 920.320(a)(4)(iv) (59 FR 53565). This 
phrase is no longer needed as it applied to the 1994-95 season.
    This proposed rule would impact all handlers in the same manner. 
The increased size variation tolerance would ease some of the burden 
associated with packing and sizing kiwifruit and enable handlers to 
pack and sell more kiwifruit. This change would reduce costs for 
handlers and growers.
    Based on the above, the Administrator of the AMS has determined 
that this action would not have a significant economic impact on a 
substantial number of small entities.
    A 30-day comment period is provided to allow interested persons an 
opportunity to respond to this proposal. All written comments timely 
received will be considered before a final determination is made on 
this matter.

List of Subjects in 7 CFR Part 920

    Kiwifruit, Marketing agreements.

    For the reasons set forth in the preamble, it is proposed that 7 
CFR part 920 be amended as follows:

PART 920--KIWIFRUIT GROWN IN CALIFORNIA

    1. The authority citation for 7 CFR part 920 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.

    2. Section 920.302 is amended by revising paragraphs (a)(4) (i) 
through (iv) and adding new paragraphs (a)(4) (v) and (vi) to read as 
follows:


Sec. 920.302  [Amended]

    (a) * * *
    (4) * * *
    (i) Kiwifruit packed in containers with cell compartments, 
cardboard fillers, or molded trays shall be of proper size for the 
cells, fillers, or molds in which they are packed. Such fruit shall be 
fairly uniform in size.
    (ii)(A) Kiwifruit packed in cell compartments, cardboard fillers or 
molded trays may not vary in diameter more than:

------------------------------------------------------------------------
               Sizes                               Diameter             
------------------------------------------------------------------------
30 or larger.......................  \1/2\-inch (12.7 mm)               
31-38..............................  \3/8\-inch (9.5 mm)                
39 or smaller......................  \1/4\-inch (6.4 mm)                
------------------------------------------------------------------------

    (B) Kiwifruit packed in bags, volume fill or bulk containers, fruit 
may not vary more than:

                                                                        
[[Page 20064]]                                                          
------------------------------------------------------------------------
               Sizes                               Diameter             
------------------------------------------------------------------------
30 or larger.......................  \1/2\-inch (12.7 mm)               
33, 36, 39, and 42.................  \3/8\-inch (9.5 mm)                
45 or smaller......................  \1/4\-inch (6.4 mm)                
------------------------------------------------------------------------

    Not more than 10 percent, by count of the containers in any lot and 
not more than 5 percent, by count, of kiwifruit in any container, 
(except that for Size 45 kiwifruit, the tolerance, by count, in any one 
container, may not be more than 10 percent) may fail to meet the 
requirements of this paragraph.
    (iii) The fruit packed in containers with cell compartments, 
cardboard fillers, or molded trays shall meet the following minimum 
weight requirements at the time of initial inspection:

------------------------------------------------------------------------
                                                             Minimum net
                                                              weight of 
                 Count designation of fruit                     fruit   
                                                               (pounds) 
------------------------------------------------------------------------
34 or larger...............................................        7.5  
35 to 37...................................................        7.25 
38 to 40...................................................        6.875
41 to 43...................................................        6.75 
44 and smaller.............................................        6.50 
------------------------------------------------------------------------

    The average weight of all sample units in a lot must meet the 
specified minimum net weight, but no sample unit may be more than 4 
ounces less than such weight.
    (iv) When kiwifruit is packed in bags, volume fill or bulk 
containers, the following table specifying the numerical size 
designation and maximum number of fruit per 8-pound sample is to be 
used.

------------------------------------------------------------------------
                                                               Column 2 
                                                               Maximum  
          Column 1 Numerical count sizedesignation            number of 
                                                             fruit per 8-
                                                             poundsample
------------------------------------------------------------------------
21.........................................................           22
25.........................................................           27
27/28......................................................           30
30.........................................................           32
33.........................................................           35
36.........................................................           40
39.........................................................           45
42.........................................................           50
45.........................................................           55
------------------------------------------------------------------------

    The average weight of all sample units in a lot must weigh at least 
8 pounds, but no sample unit may be more than 4 ounces less than 8 
pounds.
    (v) For shipments in volume fill containers in which the quantity 
is specified by count, the count must equal three times the size 
designation in accordance with tolerances specified in the U.S. 
Standards for Grades of Kiwifruit (7 CFR 51.2328(c)(2)).
    (vi) All volume fill containers of kiwifruit designated by weight 
shall hold 22-pounds (10-kilograms) net weight of kiwifruit unless such 
containers hold less than 10-pounds or more than 35-pounds net weight 
of kiwifruit.
* * * * *
    Dated: April 17, 1995.
Sharon Bomer Lauritsen,
Director, Fruit and Vegetable Division.
[FR Doc. 95-9973 Filed 4-21-95; 8:45 am]
BILLING CODE 3410-02-P