[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