[Federal Register Volume 59, Number 156 (Monday, August 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19892]


[[Page Unknown]]

[Federal Register: August 15, 1994]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 920

[Docket No. FV94-920-2PR]

 

Kiwifruit Grown in California; Revision of Pack and Reporting 
Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would revise pack and reporting 
requirements established under the Federal marketing order for 
kiwifruit grown in California. The first change would standardize 
packaging for certain volume filled containers packed by weight. For 
the 1994/95 season only, volume filled containers packed by weight 
would be required to be 22- or 23-pounds net weight if more than 10 
pounds and less than 35 pounds. Thereafter, a 22-pound volume filled 
standard would be effective. The second change would streamline 
information collection requirements under the program by deleting a 
requirement that handlers file a Beginning Inventory Data form and 
adding reporting requirements for a Kiwifruit Inventory Shipment System 
(KISS) form. Since the KISS form is already in use by handlers, this 
requirement would merely formalize existing industry use of the KISS 
form.

DATES: Comments must be received by September 14, 1994.

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 the 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 Mark A. Hessel, 
Marketing Order Administration Branch, Fruit and Vegetable Division, 
AMS, USDA, P.O. Box 96456, Room 2526-S, Washington, DC 20090-6456, 
telephone (202) 720-5127.

SUPPLEMENTARY INFORMATION: This rule is proposed 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 rule in 
conformance with Executive Order 12866.
    This proposed rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. It is not intended to have retroactive effect. 
This proposed rule will not preempt any state or local laws, 
regulations, or policies, unless they present an irreconcilable 
conflict with this rule.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with the Secretary a 
petition stating that the order, any provision of the order, or any 
obligation imposed in connection with the order is not in accordance 
with law and request a modification of the order or to be exempted 
therefrom. A handler is afforded the opportunity for a hearing on the 
petition. After the hearing the Secretary would rule on the petition. 
The Act provides that the district court of the United States in any 
district in which the handler is an inhabitant, or has his or her 
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 the 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.
    Under the terms of the order, fresh market shipments of California 
kiwifruit are required to be inspected and are subject to grade, size, 
maturity, pack, and container requirements.
    The Kiwifruit Administrative Committee (committee), the agency 
responsible for local administration of the order, met on February 10, 
1994, and unanimously recommended the following changes:

Pack Requirements

    The committee recommended standardizing the weight of certain 
volume filled containers by requiring such containers to be marked by 
weight at either 22-pounds or 23-pounds net weight through July 31, 
1995. For subsequent seasons, volume filled containers would be 
standardized at 22 pounds. Paragraph (a)(3) of Sec. 920.52 specifies 
that the Secretary may fix the weight of containers used in the 
handling of kiwifruit.
    In a volume filled container, fairly uniform size kiwifruit are 
loosely packed without cell compartments, cardboard fillers or molded 
trays. Handlers may ship volume filled containers marked by either the 
appropriate count or net weight of kiwifruit. Handler shipments are 
based upon the preference of the receiver. Volume filled containers 
marked by count would not be affected by this change. Also, containers 
of less than 10-pounds or more than 35-pounds net weight would not be 
affected by this revised weight standard. Thus the industry would 
continue to have the flexibility to utilize containers of different 
weights for a variety of buyer preferences.
    Last season the industry standardized the weight of all volume 
filled containers of kiwifruit designated by weight at 23-pounds net 
weight of kiwifruit unless such containers hold less than 10-pounds or 
more than 35-pounds net weight of kiwifruit. The industry has since 
learned that the recognized world standard for volume filled containers 
of kiwifruit is 10-kilograms (10-kg) net weight which is equal to 
approximately 22 pounds. The industry has also become aware that 
neither foreign nor domestic buyers wish to pay more for a 23-pound box 
than for a 22-pound (10-kg) box. As a result, California marketers 
selling 23-pound containers have been disadvantaged in both export and 
domestic markets compared to marketers from other countries selling 22-
pound (10-kg) containers of fruit.
    The change to a standard container weight of 22-pounds net weight 
would enable the industry to mark volume filled containers both in 
terms of a unit of measure in pounds and with a metric weight. 
Standardizing the weight of volume filled containers marked by weights 
recognized in the world market would standardize marketing practices 
for the kiwifruit industry.
    The committee considered immediately standardizing the minimum 
weight for volume filled containers at only 22 pounds (10 kg) rather 
than at 22 pounds or 23 pounds. However, all committee members were in 
favor of allowing handlers to continue to also pack or ship to the 23-
pound standard for the 1994/95 season to enable handlers to utilize 
existing inventories of boxes and labels. Thus the requirement to ship 
only 22-pound net weight containers would be effective for the 1995-96 
and subsequent seasons.
    This proposed rule would impact all handlers in the same manner. 
The same size container currently used for the 23-pound standard can be 
used for the 22-pound (10-kg) standard. It is anticipated that only a 
small number of packages would be shipped in 23-pound containers during 
the 1994/95 season if this proposal is implemented. This is because 
handlers shipping 23-pound containers have already expressed the 
concern that they do not receive a price premium for the extra pound of 
fruit in each container. This concern could be remedied by deleting the 
preprinted marking of 23 pounds, relabeling the container to read 22 
pounds, and filling the container with 22 pounds of fruit. This change 
would impose some minimal costs on those handlers who choose to print 
new labels or convert 23-pound volume filled containers into other 
types of containers. However, the overall benefits to the California 
kiwifruit industry by standardizing volume filled containers at 22 
pounds (10 kg), with the option of using existing labels and boxes for 
the 1994/95 season, would more than offset the costs imposed on 
handlers.

Reporting Requirements

    Paragraphs (a) and (b) of Sec. 920.60 authorize reporting 
requirements for kiwifruit handlers under the marketing order. Pursuant 
to Sec. 920.160, the marketing order requires a Beginning Inventory 
Data form to be filed with the committee by each handler no later than 
five days after all fruit has been packed for the season, or such other 
later time as the committee may establish. This information includes 
beginning inventory by container type and by fruit size.
    In 1990, the California Kiwifruit Commission, hereinafter referred 
to as the ``State commission,'' adopted the Kiwifruit Inventory 
Shipment System (KISS) form. The KISS form is comprised of three 
sections: (1) The ``KISS/Add Inventory'' requires all handlers to 
report their beginning inventories by size and container type. 
Inventory includes all fruit packed at harvest. (2) The ``KISS/Deduct 
Inventory'' requires all handlers to report fruit lost in repack, fruit 
repacked into another container type, and adjustments to decrease 
posted inventory. (3) The ``KISS/Shipments'' requires all handlers to 
report shipments by size and container type.
    All three sections of the KISS form would be filed with the 
committee, on or before December 5th, or such other later time as the 
committee may establish. Subsequent KISS forms, including all three 
sections, would be filed with the committee by the fifth day and again 
by the twentieth day of each calendar month, or such other later time 
as the committee may establish.
    The adoption of the KISS form by the State commission resulted in 
redundant reporting requirements in the kiwifruit industry. The KISS 
form collects the same information as the Beginning Information Data 
form. This information is used to verify the total amount of fruit 
available for shipping, to calculate statistics, and to determine if 
assessments billed match reported shipments. In an effort to eliminate 
the redundant reporting requirements, the committee recommended that 
the Beginning Inventory Data form reporting requirement be deleted from 
paragraph (b) of Sec. 920.160 and KISS form reporting requirements be 
added. This rule is intended to enable kiwifruit handlers to 
efficiently file one form to meet the requirements of both the State 
commission and the Federal marketing order. Deleting the requirement 
for the Beginning Inventory Data form in paragraph (b) of Sec. 920.160 
and utilizing the KISS form would eliminate the submission of duplicate 
information.
    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.
    In accordance with the Paperwork Reduction Act of 1980 [44 U.S.C. 
Chapter 35], the information collection requirements contained in this 
rule have been submitted to the Office of Management and Budget (OMB) 
for approval and have been assigned OMB No. 0581-0149. Eliminating the 
Beginning Inventory Data form will decrease the information collection 
burden for the industry by 65 hours. It has been estimated that it 
would take an average of .5 hours for each of the approximately 65 
handlers of kiwifruit to complete the KISS form. Thus the proposed 
change would increase the overall burden by 325 hours because the KISS 
form is filed with the committee more frequently.
    A 30-day comment period is provided to allow interested persons to 
respond to this proposal. All written comments timely received will be 
considered before a final determination is made on this matter.

List of Subjects in 7 CFR Part 920

    Kiwifruit, Marketing agreements, Reporting and recordkeeping 
requirements.

    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. In Sec. 920.302, paragraph (a)(4)(iv) is amended to read as 
follows:


Sec. 920.302   Grade, size, pack, and container regulations.

* * * * *
    (a) * * *
    (4) * * *
    (iv) All volume filled 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. Provided, That for the season ending July 31, 1995, such 
containers may also hold 23-pounds net weight of kiwifruit.
* * * * *
    3. In Sec. 920.160, paragraph (b) is revised to read as follows:


Sec. 920.160   Reports

* * * * *
    (b) Kiwifruit Inventory Shipping System (KISS) form.
    Each handler shall file with the committee the initial Kiwifruit 
Inventory Shipment System (KISS) form, which consists of three sections 
``KISS/Add Inventory,'' ``KISS/Deduct Inventory,'' and ``KISS/
Shipment,'' on or before December 5th, or such other later time as the 
committee may establish. Subsequent KISS forms, including all three 
sections, shall be filed with the committee by the fifth day and again 
by the twentieth day of each calendar month, or such other later time 
as the committee may establish, and will contain the following 
information:
    (1) The beginning inventory of the handler by size and container 
type;
    (2) The quantity of fruit the handler lost in repack and repacked 
into other container types;
    (3) The total domestic and export shipments of the handler by size 
and container type; and
    (4) Any other adjustments which increase or decrease posted handler 
inventory.
* * * * *
    Dated: August 8, 1994.
Terry C. Long,
Acting Deputy Director, Fruit and Vegetable Division.
[FR Doc. 94-19892 Filed 8-12-94; 8:45 am]
BILLING CODE 3410-02-P