[Federal Register Volume 60, Number 209 (Monday, October 30, 1995)]
[Rules and Regulations]
[Pages 55175-55176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26793]



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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 920

[Docket No. FV95-920-3FR]


Kiwifruit Grown in California; Revision of Inspection 
Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule extends the validation period for initial 
inspection certificates issued for California kiwifruit from December 
15 to December 31 or 21 days from the date of inspection, whichever is 
later. The current period does not allow sufficient time between the 
initial inspection, which may occur between October and December, and 
reinspection which must occur after December 15. This rule will reduce 
costs to the industry because of the increase in time between the 
initial inspection and reinspection.

EFFECTIVE DATE: November 29, 1995.

FOR FURTHER INFORMATION CONTACT: Charles L. 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; or 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.

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 final 
rule in conformance with Executive Order 12866.
    This final rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. This action 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 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 final rule is in accordance with Sec. 920.55(b) of the order. 
This section authorizes the Kiwifruit Administrative Committee (KAC), 
the agency responsible for local administration of the marketing order, 
to establish a period prior to shipment, when inspections must be 
performed.
    Currently, pursuant to Sec. 920.155 of the marketing order, 
certification of any kiwifruit which is inspected and certified as 
meeting grade, size, quality, or maturity requirements in effect 
pursuant to Sec. 920.52 or Sec. 920.53 during each fiscal year shall be 
valid until December 15 of each year or 21 days from the date of 
inspection, whichever is later.
    The KAC met on June 14, 1995, and unanimously recommended revising 
the current inspection requirements. The revision extends the 
validation period for the initial inspection certificate, from the 
current December 15 expiration date to December 31 of each year.
    Kiwifruit grown in California is typically harvested in mid-
October. The fruit is packed shortly after harvest and placed into 
storage until shipment. The shipping season generally extends 
throughout the year.
    About 55 percent of the harvested fruit is inspected as it is being 
packed, prior to storage. While the majority of fruit is inspected 
prior to storage, some handlers have their fruit inspected after 
storage just prior to shipment.
    When kiwifruit is stored, a black sooty mold sometimes appears on 
the 

[[Page 55176]]
fruit's surface. This mold, caused by fruit juice on the surface of the 
fruit, usually begins to show after the kiwifruit has been in storage 
for over a month. In order to control this problem, a time limit on the 
validity of inspection certificates was established. The time limit 
initially established in 1985 was valid until January 15 or 21 days 
from the date of inspection, whichever was later.
    In 1985, it appeared that kiwifruit harvested in October maintained 
its quality through the following mid-January. However, during the 
1988/89 season, problems with black sooty mold once again resulted in 
the KAC reevaluating this position, and as a result the date was 
changed to December 1, to reduce the likelihood of moldy fruit entering 
commercial channels.
    Again in 1991, the KAC changed the expiration date for initial 
inspection certificates from December 1 to the current expiration date 
of December 15. The KAC believed that the December 1 expiration date 
required shippers to have their fruit reinspected too soon after the 
initial inspection. For many shippers this was a financial burden.
    The current period does not allow sufficient time to determine if 
damage from mold may develop. Sufficient time would need to elapse 
between the initial inspection, which may occur between October and 
December, and reinspection, which occurs after December 15. This 
revision would change the current December 15 inspection certificate 
expiration date. It would provide that a certificate remains valid 
until December 31 or 21 days from the date of inspection, whichever is 
later. Thus, the 21-day limitation would be in effect for all inspected 
kiwifruit regardless of the date on which it was inspected. This would 
mean that kiwifruit inspected and packed less than 21 days prior to 
December 31 would not have to be reinspected until 21 days later.
    The KAC estimates that, annually, approximately 25 percent of the 
crop is reinspected. The reinspection rate is expected to be reduced 
slightly by making inspection certificates valid until December 31 or 
21 days from the date of inspection. Extending the inspection 
certificate validation from December 15 to December 31 is not expected 
to have adverse affects on fruit quality.
    Over the last five years, the harvest of California kiwifruit has 
begun later and later. In years past, the kiwifruit harvest began near 
the beginning of October, with a few starting dates recorded in late 
September. In recent years, kiwifruit harvests have begun in mid-
October due to natural conditions as well as increased grower 
consciousness about fruit maturity. Fruit that is mature tends to have 
higher sugar content and is of higher quality. Because of the later 
harvest dates, the time lapse from harvest to reinspection has 
decreased over the years.
    This two-week change to the reinspection date is not expected to 
harm the industry's reputation for shipping quality California 
kiwifruit. Because of research done in the past five years, California 
growers understand the benefits of harvesting kiwifruit with a higher 
soluble solids content, which means harvesting at a later date. This, 
coupled with natural conditions that have also contributed to a delay 
in harvest, have reduced the number of days from harvest until 
reinspection.
    The KAC also discussed the elimination of reinspection requirements 
as an alternative. There is however, strong support throughout the 
industry for maintaining reinspection as a means of assuring fruit 
quality. The KAC also discussed the use of a sliding reinspection date. 
This would allow fruit harvested later to be reinspected at a later 
date. However, it was determined that this would present enforcement 
problems as it would be difficult to track the harvest date of the 
entire California crop. The recommendation to establish the 
reinspection date at December 31 was a compromise agreed to unanimously 
by the KAC.
    A proposed rule concerning this action was published in the August 
25, 1995, Federal Register (60 FR 44282), with a 30-day comment period 
ending September 25, 1995.
    One comment was received. The comment was submitted by the KAC and 
supported implementing the change set forth in the proposed rule. The 
comment stated that the reinspection requirement has always had a 21-
day time period and noted that black sooty mold may develop as early as 
ten days after the fruit has been contaminated. The comment pointed out 
that the aggressive education of growers and packers as to why black 
sooty mold occurs and ways to prevent it has greatly reduced the 
occurrence of this condition over the last four years. The comment 
concluded by stating that the KAC believes that later reinspection is a 
natural and positive change for the industry.
    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 KAC, the comment 
received from KAC 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.

List of Subjects in 7 CFR Part 920

    Kiwifruit, Marketing agreements.

    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. Section 920.155 is revised to read as follows:


Sec. 920.155  Inspection requirement.

    Certification of any kiwifruit which is inspected and certified as 
meeting grade, size, quality, or maturity requirements in effect 
pursuant to Sec. 920.52 or Sec. 920.53 during each fiscal year shall be 
valid until December 31 of such year or 21 days from the date of 
inspection, whichever is later.

    Dated: October 23, 1995.
Sharon Bomer Lauritsen,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 95-26793 Filed 10-27-95; 8:45 am]
BILLING CODE 3410-02-P