[Federal Register Volume 59, Number 205 (Tuesday, October 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26459]
Federal Register / Vol. 59, No. 205 / Tuesday, October 25, 1994 /
[[Page Unknown]]
[Federal Register: October 25, 1994]
VOL. 59, NO. 205
Tuesday, October 25, 1994
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 920
[Docket No. FV94-920-2FR]
Kiwifruit Grown in California; Revision of Pack and Reporting
Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule revises pack and reporting requirements
established under the Federal marketing order for kiwifruit grown in
California. The first change standardizes packaging for certain volume
filled containers packed by weight. For the 1994/95 season only, volume
filled containers packed by weight will 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 will be effective. The
second change streamlines 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 merely formalizes existing
industry use of the KISS form.
EFFECTIVE DATE: This final rule becomes effective October 25, 1994.
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 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 final 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 rule in
conformance with Executive Order 12866.
This final rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This rule is not intended to have retroactive
effect. This final 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 will 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 will not be affected by this change. Also, containers
of less than 10-pounds or more than 35-pounds net weight will not be
affected by this revised weight standard. Thus the industry will
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
will 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 will 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 will be effective for the 1995-96
and subsequent seasons.
This final rule will 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 will be shipped in 23-pound containers during
the 1994/95 season. 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 will 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 will 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, will
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; and (3) The ``KISS/Shipments'' requires all handlers
to report shipments by size and container type.
All three sections of the KISS form will 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, will 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 Inventory 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 the 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 will eliminate the submission of duplicate
information.
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 approved by the Office of Management and Budget (OMB)
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 will take an
average of .5 hours for each of the approximately 65 handlers of
kiwifruit to complete the KISS form. Thus the finalized change will
increase the overall burden by 325 hours because the KISS form is filed
with the committee more frequently.
A proposed rule concerning this action was published in the Federal
Register on August 14, 1994 [59 FR 41717], with a 30-day comment period
ending September 14, 1994. No comments were received.
Based on the above, the Administrator of the AMS has determined
that this action will not have a significant economic impact on a
substantial number of small entities.
After consideration of all relevant matter presented, including the
information and recommendations 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.
It is further found that good cause exists for not postponing the
effective date of this rule until 30 days after publication in the
Federal Register [5 U.S.C. 553] because: (1) Handlers have begun
labeling boxes in preparation of shipping kiwifruit for the 1994/1995
season which began in mid-September; (2) Handlers are aware of this
rule, which was unanimously recommended by the committee at a public
meeting; and (3) a 30-day comment period was provided for in the
proposed rule.
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.
2. 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
3. In Sec. 920.302, paragraph (a)(4)(iv) is revised to read as
follows:
Sec. 920.302 Grade, size, pack and container regulations.
* * * * *
(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.
* * * * *
(4) Any other adjustments which increase or decrease posted handler
inventory.
* * * * *
Dated: October 19, 1994.
Eric M. Forman,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 94-26459 Filed 10-20-94; 4:30 pm]
BILLING CODE 3410-02-P