65FR37265 Kiwifruit Grown in California; Temporary Suspension of Inspection and Pack Requirements
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Posting-number: Volume 65, Issue 115, Page 37265
[Federal Register: June 14, 2000 (Volume 65, Number 115)]
[Rules and Regulations]
[Page 37265-37268]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14jn00-1]
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Rules and Regulations
Federal Register
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[[Page 37265]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 920
[Docket No. FV00-920-1 FR]
Kiwifruit Grown in California; Temporary Suspension of Inspection
and Pack Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule continues the temporary suspensions of inspection
and pack requirements prescribed under the California kiwifruit
marketing order (order). The order regulates the handling of kiwifruit
grown in California and is administered locally by the Kiwifruit
Administrative Committee (Committee). This rule continues, for the
2000-2001 season, the suspension of the requirement that fruit must be
reinspected if it has not been shipped by specified dates, and also
continues the suspension of the minimum net weight requirements for
kiwifruit tray packs. Both suspensions are scheduled to expire at the
end of the 1999-2000 season. These suspensions are expected to reduce
handler packing costs, increase grower returns, and enable handlers to
compete more effectively in the marketplace.
EFFECTIVE DATE: This final rule becomes effective August 1, 2000. The
suspension of Secs. 920.302 (a)(4)(iii), and 920.155 expires on July
31, 2001.
FOR FURTHER INFORMATION CONTACT: Rose M. Aguayo, Marketing Specialist,
California Marketing Field Office, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey Street,
suite 102B, Fresno, California 93721; telephone: (559) 487-5901, Fax:
(559) 487-5906; or George Kelhart, Technical Advisor, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room
2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202)
720-2491, Fax: (202) 720-5698.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 96456, room
2525-S, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax:
(202) 720-5698, or E-mail Jay.G...@usda.gov.
SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing
Order No. 920, as amended (7 CFR part 920), 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 was reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This 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
principal place of business, has jurisdiction to review the Secretary's
ruling on the petition, provided an action is filed not later than 20
days after the date of the entry of the ruling.
This final rule continues the temporary suspensions of inspection
and pack requirements prescribed under the order. This rule will
continue, for the 2000-2001 season, the suspension of the requirement
that fruit must be reinspected if it has not been shipped by specified
dates, and the suspension of the minimum net weight requirements for
kiwifruit tray packs. Both suspensions were scheduled to expire at the
end of the 1999-2000 season (July 31, 2000). These suspensions are
expected to reduce handler packing costs, increase grower returns, and
enable handlers to compete more effectively in the marketplace. This
rule was unanimously recommended by the Committee at its February 24,
2000, meeting and will be in effect through July 31, 2001.
Continued Suspension of Reinspection Requirement
Section 920.55 of the order requires that prior to handling any
variety of California kiwifruit, such kiwifruit shall be inspected by
the Federal or Federal-State Inspection Service (inspection service)
and certified as meeting the applicable grade, size, quality, or
maturity requirements in effect pursuant to Sec. 920.52 or Sec. 920.53.
Section 920.55(b) provides authority for the establishment, through
the order's rules and regulations, of a period prior to shipment during
which inspections must be performed.
Prior to its suspension for 1998-1999 season, Sec. 920.155 of the
order's rules and regulations specified that the certification of
grade, size, quality, and maturity of kiwifruit pursuant to Sec. 920.52
or Sec. 920.53 during each fiscal year was valid until December 31 of
such year or 21 days from the date of inspection, whichever is later.
Any inspected kiwifruit shipped after the certification period lapsed
was required to be reinspected and recertified before shipment.
Section 920.155 was suspended for the 1998-1999 season by a final
rule published August 4, 1998 (63 FR 41390). The Committee recommended
this suspension to lessen the expenses upon the many kiwifruit growers
who had either lost money or merely recovered their production costs in
recent years. It concluded that the cost of reinspecting kiwifruit was
too high to justify requiring it in view of the limited benefit
reinspection provided. The Committee also believed it was no longer
necessary to have fruit
[[Page 37266]]
reinspected to provide consumers with a high quality product because
storage and handling operations had improved in the industry.
During the 1998-1999 season, handlers voluntarily checked stored
fruit prior to shipment to ensure that the condition of the fruit had
not deteriorated. Suspension of the reinspection requirement enabled
handlers to ship quality kiwifruit during the 1998-1999 season without
the necessity for reinspection and recertification and the costs
associated with such requirements. However, because the harvest started
later than normal and more fruit was in-line inspected and shipped
directly to buyers, less fruit was repacked and available for
evaluation than anticipated.
Therefore, at its February 25, 1999, meeting, the Committee
unanimously recommended suspending Sec. 920.155 of the order for one
more season. Section 920.155 was suspended for the 1999-2000 season by
a final rule published on July 29, 1999 (64 FR 41010).
During the 1999-2000 season a severe frost reduced the crop size
from the estimated 9 million tray equivalents to 6 million tray
equivalents. A tray equivalent is equal to approximately 7 pounds of
fruit. This significant crop reduction and the excellent quality of the
fruit resulted in limited quantities of fruit remaining in cold storage
for repacking and evaluation. The Committee wanted to fully evaluate
the suspension of the reinspection requirement during a normal season.
Therefore the Committee, at its February 24, 2000, meeting, unanimously
recommended suspending Sec. 920.155 for another season, the 2000-2001
season. This suspension will be in effect until July 31, 2001.
Continued Suspension of Minimum Net Weight Requirements for Trays
Under the terms of the order, fresh market shipments of kiwifruit
grown in California are required to be inspected and meet grade, size,
maturity, pack, and container requirements. Section 920.52 authorizes
the establishment of minimum size, pack, and container requirements.
Section 920.302(a)(4) of the order's rules and regulations outlines
pack requirements for fresh shipments of California kiwifruit.
Section 920.302(a)(4)(iii) specifies minimum net weight
requirements for fruit of various sizes packed in containers with cell
compartments, cardboard fillers, or molded trays.
Prior to the 1989-1990 season, there were no minimum tray weight
requirements although 73.5 percent of the crop was packed in trays.
During the 1989-1990 season, minimum tray weights were mandated, as
there were many new packers involved in the kiwifruit packing process
and stricter regulations were viewed as necessary to provide uniform
container weights for each size. However, since that season the
proportion of the crop packed in trays has steadily declined.
During the 1997-1998 season, only 15.5 percent of the crop was
packed into molded trays, and less than 1 percent of this fruit was
rejected for failure to meet minimum tray weights. As a consequence,
the Committee believed that minimum tray weight requirements might no
longer be necessary to maintain uniformity in the marketplace.
Prior to the 1998-1999 season handlers were required to meet the
minimum net weight requirements as shown in the following chart:
------------------------------------------------------------------------
Minimum
net
Count designation of fruit 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............................................... 6.5
------------------------------------------------------------------------
The Committee met on July 8, 1998, and unanimously recommended
suspension of the minimum net weight requirements for kiwifruit packed
in cell compartments, cardboard fillers, or molded trays for the 1998-
1999 season. Section 920.302(a)(4)(iii) was suspended for the 1998-1999
season by an interim final rule which was published September 3, 1998
(63 FR 14861) and finalized July 29, 1999 (64 FR 41019).
Even though the fruit was shorter, more full-bodied, and heavier
during the 1998-1999 season, handlers were able to reduce packing costs
and to compete more effectively in the market. The industry continued
to pack well-filled trays without having to spend the extra time
weighing them. There was no reduction in the uniform appearance of
fruit packed into trays. The consensus of the industry was that the
absence of tray weights had no impact during the 1998-1999 season due
to the exceptionally heavy weight of the fruit.
The Committee, at its February 25, 1999, meeting unanimously
recommended suspending the minimum net weight requirements for the
1999-2000 season to evaluate the suspended requirements during a season
when the fruit shape and density were normal. This suspension was
implemented by a final rule published on July 29, 1999 (64 FR 41010)
and will be in effect until July 31, 2000.
As previously mentioned, the 1999-2000 crop was approximately three
million tray-equivalents shorter than estimated due to a severe frost
during the spring of 1999. This shortage of fruit resulted in limited
quantities of fruit available for evaluation. Because of the
uncharacteristic fruit in the 1998-1999 season and the short crop in
the 1999-2000 season, the Committee at its February 24, 2000, meeting,
unanimously recommended continuing the suspension of
Sec. 920.302(a)(4)(iii) for another season, the 2000-2001 season. This
suspension will be in effect until July 31, 2001, and is expected to
result in reduced handler packing costs and increased grower returns,
and to enable handlers to compete more effectively in the marketplace.
Final Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) considered the
economic impact of this action on small entities. Accordingly, AMS
prepared this final regulatory flexibility analysis.
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 the 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 60 handlers of California kiwifruit subject
to regulation under the marketing order and approximately 400 producers
in the production area. Small agricultural producers are defined by the
Small Business Administration (13 CFR 121.201) as those whose annual
receipts are less than $500,000, and small agricultural service firms
are defined as those whose annual receipts are less than $5,000,000.
Fifty-nine handlers have annual receipts less than $5,000,000,
excluding receipts from other sources. Three hundred ninety producers
have annual sales less than $500,000, excluding receipts from any other
sources. Therefore, a majority of the kiwifruit handlers and producers
may be classified as small entities.
This rule continues the temporary suspensions of inspection and
pack requirements prescribed under the order. This rule continues, for
the 2000-2001 season, the suspension of the
[[Page 37267]]
requirement that fruit must be reinspected if it has not been shipped
by specified dates, and the minimum net weight requirements for
kiwifruit tray packs. Both suspensions were scheduled to expire at the
end of the 1999-2000 season (July 31, 2000). Continuation of the
suspensions is expected to reduce handler packing costs, increase
grower returns, and enable handlers to compete more effectively in the
marketplace. This rule was unanimously recommended by the Committee at
its February 24, 2000, meeting and will be in effect through July 31,
2001.
Continued Suspension of Reinspection Requirement
Section 920.55 of the order requires that prior to handling any
variety of California kiwifruit, such kiwifruit shall be inspected by
the Federal or Federal-State Inspection Service (inspection service)
and certified as meeting the applicable grade, size, quality, or
maturity requirements in effect pursuant to Sec. 920.52 or Sec. 920.53.
Section 920.55(b) provides authority for the establishment, through
the order's rules and regulations, of a period prior to shipment during
which inspections must be performed.
Prior to its suspension for 1998-1999 season, Sec. 920.155 of the
order's rules and regulations specified that the certification of
grade, size, quality, and maturity of kiwifruit pursuant to Sec. 920.52
or Sec. 920.53 during each fiscal year was valid until December 31 of
such year or 21 days from the date of inspection, whichever is later.
Any inspected kiwifruit shipped after the certification period lapsed
was required to be reinspected and recertified before shipment.
Section 920.155 was suspended for the 1998-1999 season by a final
rule published August 4, 1998 (63 FR 41390). The Committee recommended
this suspension to lessen the expenses upon the many kiwifruit growers
who had either lost money or merely recovered their production costs in
recent years. It concluded that the cost of reinspecting kiwifruit was
too high to justify requiring it in view of the limited benefit
reinspection provided. The Committee also believed it was no longer
necessary to have fruit reinspected to provide consumers with a high
quality product because storage and handling operations had improved in
the industry.
During the 1998-1999 season, handlers voluntarily checked stored
fruit prior to shipment to ensure that the condition of the fruit had
not deteriorated. Suspension of the reinspection requirement enabled
handlers to ship quality kiwifruit during the 1998-1999 season without
the necessity for reinspection and recertification and the costs
associated with such requirements. However, because the harvest started
later than normal and more fruit was in-line inspected and shipped
directly to buyers, less fruit was repacked and available for
evaluation than anticipated.
Therefore, at its February 25, 1999, meeting, the Committee
unanimously recommended suspending Sec. 920.155 of the order for one
more season. Section 920.155 was suspended for the 1999-2000 season by
a final rule published on July 29, 1999 (64 FR 41010).
During the 1999-2000 season a severe frost reduced the crop size
from the estimated 9 million tray equivalents to 6 million tray
equivalents. A tray equivalent is equal to approximately 7 pounds of
fruit. This significant crop reduction and the excellent quality of the
fruit resulted in limited quantities of fruit remaining in cold storage
for repacking and evaluation. The Committee wanted to fully evaluate
the suspension of the reinspection requirement during a normal season.
Therefore the Committee, at its February 24, 2000, meeting, unanimously
recommended suspending Sec. 920.155 for another season, the 2000-2001
season. This suspension will be in effect until July 31, 2001.
Continued Suspension of Minimum Net Weight Requirements for Trays
Under the terms of the order, fresh market shipments of kiwifruit
grown in California are required to be inspected and meet grade, size,
maturity, pack, and container requirements. Section 920.52 authorizes
the establishment of minimum size, pack, and container requirements.
Section 920.302(a)(4) of the order?s rules and regulations outlines
pack requirements for fresh shipments of California kiwifruit.
Section 920.302(a)(4)(iii) specifies minimum net weight
requirements for fruit of various sizes packed in containers with cell
compartments, cardboard fillers, or molded trays.
Prior to the 1989-1990 season, there were no minimum tray weight
requirements although 73.5 percent of the crop was packed in trays.
During the 1989-1990 season, minimum tray weights were mandated, as
there were many new packers involved in the kiwifruit packing process
and stricter regulations were viewed as necessary to provide uniform
container weights for each size. However, since that season the
proportion of the crop packed in trays has steadily declined.
During the 1997-1998 season, only 15.5 percent of the crop was
packed into molded trays, and less than 1 percent of this fruit was
rejected for failure to meet minimum tray weights. As a consequence,
the Committee believed that minimum tray weight requirements might no
longer be necessary to maintain uniformity in the marketplace.
Prior to the 1998-1999 season handlers were required to meet the
minimum net weight requirements as shown in the following chart:
------------------------------------------------------------------------
Minimum
net
Count designation of fruit 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............................................... 6.5
------------------------------------------------------------------------
The Committee met on July 8, 1998, and unanimously recommended
suspension of the minimum net weight requirements for kiwifruit packed
in cell compartments, cardboard fillers, or molded trays for the 1998-
1999 season. Section 920.302(a)(4)(iii) was suspended for the 1998-1999
season by an interim final rule published September 3, 1998 (63 FR
14861).
Even though the fruit was shorter, more full-bodied, and heavier
during the 1998-1999 season, handlers were able to reduce packing costs
and to compete more effectively in the market. The industry continued
to pack well-filled trays without having to spend the extra time
weighing them. There was no reduction in the uniform appearance of
fruit packed into trays. The consensus of the industry that season was
that the absence of tray weights had no negative impact during the
1998-1999 season due to the exceptionally heavy weight of the fruit.
The Committee, at its February 25, 1999, meeting, unanimously
recommended suspending the minimum net weight requirements for the
1999-2000 season in order to evaluate the suspended requirements during
a season when the fruit shape and density were normal. This suspension
was implemented by a final rule published on July 29, 1999 (64 FR
41010) and will be in effect until July 31, 2000.
As previously mentioned, the 1999-2000 crop was approximately three
million tray-equivalents shorter than estimated due to a severe frost
during the spring of 1999. This shortage of fruit resulted in limited
quantities of fruit
[[Page 37268]]
available for evaluation. Because of the uncharacteristic fruit in the
1998-1999 season and the short crop in the 1999-2000 season the
Committee wanted to suspend the minimum net weight requirement for
another year of evaluation. Therefore, at its February 24, 2000,
meeting, the Committee, once again, unanimously recommended continuing
the suspension of Sec. 920.302(a)(4)(iii) for another season, the 2000-
2001 season. This suspension will be in effect until July 31, 2001, and
is expected to reduce handler packing costs, increase grower returns,
and enable handlers to compete more effectively in the marketplace.
These changes address the marketing and shipping needs of the
kiwifruit industry and are in the interest of handlers, growers,
buyers, and consumers. The impact of these changes is expected to be
beneficial to all handlers and growers regardless of size.
The Committee discussed alternatives to this change, including
indefinitely suspending these requirements. While the industry
continues to believe that the suspensions have helped handlers reduce
packing costs and compete more effectively in the marketplace, it is
not yet ready to recommend permanent suspension for the 2000-2001 and
future seasons. Both the 1998-1999 and 1999-2000 seasons were abnormal
in some respects, and the Committee wanted to study the results of the
suspensions during a normal season. Thus, the Committee unanimously
agreed to suspend these requirements for the 2000-2001 season.
This rule relaxes inspection and pack requirements under the
kiwifruit marketing order. Accordingly, this action will not impose any
additional reporting or recordkeeping requirements on either small or
large kiwifruit handlers. As with all Federal marketing order programs,
reports and forms are periodically reviewed to reduce information
requirements and duplication by industry and public sector agencies.
As noted in the initial regulatory flexibility analysis, the
Department has not identified any relevant Federal rules that
duplicate, overlap, or conflict with this final rule.
In addition, the Committee's meetings were widely publicized
throughout the kiwifruit industry and all interested persons were
invited to attend the meetings and participate in Committee
deliberations. Like all Committee meetings, the February 24, 2000,
meeting was a public meeting and all entities, both large and small,
were able to express their views on this issue.
A proposed rule concerning this action was published in the Federal
Register on April 24, 2000 (65 FR 21668). Copies of the rule were
mailed or sent via facsimile to all Committee members and kiwifruit
handlers. Finally, the rule was made available through the Internet by
the Office of the Federal Register. A 30-day comment period ending May
24, 2000, was provided to allow interested persons to respond to the
proposal. No comments were received.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at: http:/
/www.ams.usda.gov/fv/moab.html. Any questions about the compliance
guide should be sent to Jay Guerber at the previously mentioned address
in the FOR FURTHER INFORMATION CONTACT section.
After consideration of all relevant matter presented, including the
information and recommendation 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.
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.
Sec. 920.155 [Suspended]
2. In part 920, Sec. 920.155 is suspended in its entirety effective
August 1, 2000, through July 31, 2001.
Sec. 920.302 [Suspended in part]
3. In Sec. 920.302, paragraph (a)(4)(iii) is suspended effective
August 1, 2000, through July 31, 2001.
Dated: June 8, 2000.
James R. Frazier,
Acting Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 00-15015 Filed 6-13-00; 8:45 am]
BILLING CODE 3410-02-P