20062 Federal Register / Vol. 60, No. 78 / Monday, April 24, 1995 / Proposed Rules

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

§ 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

§ 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 § 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
Federal Register / Vol. 60, No. 78 / Monday, April 24, 1995 / Proposed Rules 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 § 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

§ 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:

§ 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:
20064 Federal Register / Vol. 60, No. 78 / Monday, April 24, 1995 / Proposed Rules

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:

Count designation of fruit

Minimum

net weight

of fruit

(pounds)

34 or larger ............................... 7.5

35 to 37 .................................... 7.25

38 to 40 .................................... 6.875

41 to 43 .................................... 6.75

44 and smaller .......................... 6.50

The average weight of all sample units

in a lot must meet the specified

minimum net weight, but no sample

unit may be more than 4 ounces less

than such weight.

(iv) When kiwifruit is packed in bags,

volume fill or bulk containers, the

following table specifying the numerical

size designation and maximum number

of fruit per 8-pound sample is to be

used.

Column 1

Numerical count size

designation

Column 2

Maximum

number of

fruit per 8-

pound

sample

21 .............................................. 22

25 .............................................. 27

27/28 ......................................... 30

30 .............................................. 32

33 .............................................. 35

36 .............................................. 40

39 .............................................. 45

42 .............................................. 50

45 .............................................. 55

The average weight of all sample units

in a lot must weigh at least 8 pounds,

but no sample unit may be more than

4 ounces less than 8 pounds.

(v) For shipments in volume fill

containers in which the quantity is

specified by count, the count must equal

three times the size designation in

accordance with tolerances specified in

the U.S. Standards for Grades of

Kiwifruit (7 CFR 51.2328(c)(2)).

(vi) All volume fill containers of

kiwifruit designated by weight shall

hold 22-pounds (10-kilograms) net

weight of kiwifruit unless such

containers hold less than 10-pounds or

more than 35-pounds net weight of

kiwifruit.

* * * * *

Dated: 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

7 CFR Part 929

[Docket No. FV95–929–1]

Cranberries Grown in States of

Massachusetts, Rhode Island,

Connecticut, New Jersey, Wisconsin,

Michigan, Minnesota, Oregon,

Washington, and Long Island in the

State of New York

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Referendum order.

SUMMARY: This document directs that a

referendum be conducted among

eligible growers of cranberries to

determine whether they favor

continuance of the marketing order

regulating the handling of cranberries

grown in the States of Massachusetts,

Rhode Island, Connecticut, New Jersey,

Wisconsin, Michigan, Minnesota,

Oregon, Washington, and Long Island in

the State of New York.

DATES: The referendum will be

conducted from May 15 through May

26, 1995. To vote in this referendum,

growers must have been producing

cranberries during the period September

1, 1994, through March 31, 1995.

ADDRESSES: Copies of the marketing

order may be obtained from the Office

of the Docket Clerk, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, P.O.

Box 96456, room 2525–S, Washington,

DC 20090–6456.

FOR FURTHER INFORMATION CONTACT:

Patricia A. Petrella or Kathleen M. Finn,

Marketing Order Administration

Branch, Fruit & Vegetable Division,

Agricultural Marketing Service,

Department of Agriculture, room 2522–

S, P.O. Box 96456, Washington, DC

20090–6456, telephone: (202) 720–1509

or fax (202) 720–5698.

SUPPLEMENTARY INFORMATION: Pursuant

to Marketing Order No. 929 (7 CFR part

929), hereinafter referred to as the

‘‘order’’ and the applicable provisions of

the Agricultural Marketing Agreement

Act of 1937, as amended (7 U.S.C. 601–

674), hereinafter referred to as the

‘‘Act’’, it is hereby directed that a

referendum be conducted to ascertain

whether continuance of the order is

favored by the growers. The referendum

shall be conducted during the period

May 15 through May 26, 1995, among

cranberry growers in the production

area. Only growers that were engaged in

the production of cranberries during the

period of September 1, 1994, through

March 31, 1995, may participate in the

continuance referendum.

The Secretary of Agriculture has

determined that continuance referenda

are an effective means for ascertaining

whether growers favor continuation of

marketing order programs. The

Secretary would consider termination of

the order if less than two-thirds of the

growers voting in the referendum and

growers of less than two-thirds of the

volume of cranberries represented in the

referendum favor continuance. In

evaluating the merits of continuance

versus termination, the Secretary would

not only consider the results of the

continuance referendum. The Secretary

would also consider other relevant

information concerning the operation of

the order; the order’s relative benefits

and disadvantages to growers, handlers,

and consumers; and whether continued

operation of the order would tend to

effectuate the declared policy of the Act.

In any event, section 8c(16)(B) of the

Act requires the Secretary to terminate

an order whenever the Secretary finds

that a majority of all growers affected by

the order favor termination, and such

majority produced for market more than

50 percent of the commodity covered

under such order.

In accordance with the Paperwork

Reduction Act of 1980 (44 U.S.C.

chapter 35), the ballot materials to be

used in the referendum herein ordered

have been submitted to and approved by

the Office of Management and Budget

(OMB) and have been assigned OMB

No. 0581–0103 for cranberries. It has

been estimated that it will take an

average of 20 minutes for each of the

approximately 1,050 growers of

cranberries to cast a ballot. Participation

is voluntary. The voting period is May

15 through May 26, 1995. Ballots

postmarked after May 26, 1995, will not

be included in the vote tabulation.

Patricia A. Petrella and Kathleen M.

Finn of the Marketing Order

Administration Branch, Fruit and

Vegetable Division, Agricultural

Marketing Service, USDA, are hereby

designated as the referendum agents of

the Secretary of Agriculture to conduct

such referendum. The procedure

applicable to the referendum shall be

the ‘‘Procedure for the Conduct of