[Federal Register: October 3, 2006 (Volume 71, Number 191)]
[Rules and Regulations]
[Page 58246-58249]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03oc06-2]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 920
[Docket No. FV06-920-1 IFR]
Kiwifruit Grown in California; Relaxation of Container Marking
Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This rule relaxes the container marking requirements for
kiwifruit covered 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). Currently, kiwifruit that has been inspected,
meets applicable grade and size requirements, and is subsequently
placed into new containers must, be positive lot identified, which
requires reinspection. This rule establishes procedures for handlers to
ship such kiwifruit without positive lot identification (PLI), and
announces the Agricultural Marketing Service's intention to request
emergency approval by the Office of Management and Budget (OMB) of a
new information collection. This rule is intended to reduce handler
inspection costs and facilitate the marketing of kiwifruit.
DATES: Effective October 4, 2006. Pursuant to the Paperwork Reduction
Act, comments on the information collection burden that will result
from this rule must be received by December 4, 2006 which will be
considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent to the Docket Clerk,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC
20250-0237; Fax: (202) 720-8938, E-mail: moab.docketclerk@usda.gov, or
Internet: http://www.regulations.gov. All 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, or can be viewed at:
http://www.ams.usda.gov/fv/moab.html.
FOR FURTHER INFORMATION CONTACT: Shereen Marino, Marketing Specialist,
or Kurt J. Kimmel, Regional Manager, California Marketing Field Office,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, telephone: (559) 487-5901, Fax: (559) 487-5906, or E-mail:
Shereen.Marino@usda.gov, or Kurt.Kimmel@usda.gov.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202)
720-2491, Fax: (202) 720-8938, or E-mail: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This 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 (USDA) is issuing this rule in
conformance with Executive Order 12866.
This rule has been 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 USDA 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, USDA 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 USDA's ruling on the petition,
provided an action is filed
[[Page 58247]]
not later than 20 days after the date of the entry of the ruling.
This rule relaxes the container marking requirements for kiwifruit
covered under the order. Currently, kiwifruit that has been inspected,
meets applicable grade and size requirements, and is subsequently
placed into new containers, must be positive lot identified, which
requires reinspection. This rule establishes procedures for handlers to
ship such kiwifruit without PLI. This rule is intended to reduce
handler inspection costs and facilitate the marketing of kiwifruit. The
Committee unanimously recommended this change at its April 6, 2006,
meeting.
Section 920.52(a) of the order provides authority for grade, size,
pack, container, and container marking requirements for shipments of
fresh kiwifruit. Section 920.55 of the order requires inspection and
certification of kiwifruit prior to shipment by Federal or Federal-
State Inspection Service (FSIS). Section 920.302 of the order's
regulations specifies applicable grade, size, pack, and container
requirements and Sec. 920.303 specifies applicable container marking
requirements.
Paragraph (d) of Sec. 920.303 requires that containers of
kiwifruit be positive lot identified prior to shipment. PLI helps to
ensure that a specific load or lot of kiwifruit can be linked to an
inspection certificate and provides verification that the fruit was
inspected. No less than 75 percent of the containers of kiwifruit on a
pallet must be marked with a lot stamp number corresponding to the lot
inspection conducted by the FSIS. This lot stamp number is a PLI number
that can be matched to an inspection certificate. Individual consumer
packages within a master container, and containers being directly
loaded into a vehicle for export under FSIS supervision are exempt from
PLI. Individual consumer packages placed directly on a pallet, and
plastic containers of kiwifruit must be positive lot identified.
Currently, kiwifruit that has been inspected and certified, and is
subsequently placed into new containers, must be positive lot
identified. When such kiwifruit is placed into new containers, the PLI
mark on the container is lost and thus the lot is not easily
identified. The new containers must be reinspected and marked with a
new PLI number. Reinspection costs for such kiwifruit account for
roughly 20 percent of annual inspection costs for handlers.
In an effort to reduce handler costs, the Committee recommended
establishing procedures for handlers to ship previously inspected
kiwifruit placed in new containers without PLI. Handlers will have the
option of having such kiwifruit reinspected and marked with a PLI
number or requesting a verification number under a new verification
process. Such kiwifruit must be of the same grade and size as
originally inspected. The handler must contact the FSIS to obtain a
verification number prior to shipment, and plainly mark one end of each
container with the letter ``R'' and the verification number. The letter
``R'' and the verification number must not be less than one-half inch
in height. The handler must submit a Kiwifruit Verification Form to the
FSIS within 3 business days of such request, and provide the following
information from the original inspection: (i) The positive lot
identification numbers; (ii) the identity of the handler; (iii) the
inspection certificate numbers; (iv) the grade and size of the
kiwifruit; (v) the number and type of containers; and (v) the handler's
brand; and the following information on the kiwifruit placed into new
containers: (i) The number and type of containers; and (ii) the
applicable brand. The verification number will be linked to the PLI
number, thus providing a method to trace the fruit back to the original
inspection certificate. The FSIS will maintain the Kiwifruit
Verification Forms. The Committee will make use of completed forms to
audit handlers as needed to ensure compliance, pursuant to authority
provided in Sec. 920.61.
Accordingly, a new paragraph (f) is added to Sec. 920.303 that
establishes the verification procedures described above. Additionally,
a new sentence is added to the beginning of paragraph (d) in that
section to clarify that except as provided in the new paragraph (f),
containers of kiwifruit must be positive lot identified prior to
shipment in accordance with specified requirements. Paragraph (d) is
modified further for clarification purposes to change the term ``lot
stamp number'' to ``positive lot identified,'' and to change the term
``plastic container'' to ``reusable plastic container.''
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this action on small entities. Accordingly, AMS has
prepared this initial 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 37 handlers of kiwifruit subject to
regulation under the marketing order and approximately 220 growers in
the production area. Small agricultural service firms are defined by
the Small Business Administration (13 CFR 121.201) as those whose
annual receipts are less than $6,500,000, and small agricultural
producers are defined as those whose annual receipts are less than
$750,000. None of the 37 handlers subject to regulation have annual
kiwifruit sales of $6,500,000. In addition, six growers subject to
regulation have annual sales exceeding $750,000. Therefore, all of the
kiwifruit handlers and a majority of the growers may be classified as
small entities.
This rule relaxes the container marking requirements currently
specified in Sec. 920.303. Currently, kiwifruit that has been
inspected, meets applicable grade and size requirements, and is
subsequently placed into new containers must be positive lot
identified, which requires reinspection. This rule establishes
procedures for handlers to ship such kiwifruit without PLI. This rule
adds a new paragraph (f) to Sec. 920.303 that establishes the
verification procedures. Handlers must obtain a verification number
from the FSIS, mark their new containers with such number and the
letter ``R,'' and submit a Kiwifruit Verification Form to the FSIS. The
verification number can be linked to the original PLI number, thereby
providing a method to trace the fruit back to the original inspection
certificate. This action is intended to reduce handler inspection costs
and facilitate the marketing of kiwifruit. This rule also makes minor
modifications to paragraph (d) of Sec. 920.303 for clarification
purposes. Authority for this action is provided in Sec. Sec.
902.52(a)(3) and 920.55 of the order.
The impact of this change on handlers was discussed by the
Committee. Reinspection costs due to current PLI requirements account
for roughly 20 percent of annual inspection costs for the industry.
Additionally, an average of 20 percent of the crop is placed into new
containers annually. The following table shows inspection costs for in-
line inspection, lot inspection, and kiwifruit placed into new
containers for 2001 to 2005.
[[Page 58248]]
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New
Year In-line Lot containers Total cost
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2001-02..................................................... $107,702 $15,254 $38,411 $161,367
2002-03..................................................... 96,376 24,866 35,521 156,763
2003-04..................................................... 111,228 12,064 29,197 152,489
2004-05..................................................... 129,197 24,319 31,415 184,931
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This change reduces inspection costs because handlers have the
option of using the new verification process instead of having
kiwifruit reinspected to conform to PLI requirements. Additionally,
reinspection can delay shipments because kiwifruit cannot be shipped
until reinspection has been completed by the FSIS.
The Committee considered the alternative of maintaining the status
quo, but this was not viable. As an option to reinspection, identity of
the lot can be achieved through the verification number, which provides
a trace back to the original inspection certificate. Additionally, such
kiwifruit has already met the minimum requirements of the marketing
order. It is anticipated that the rule provides a cost savings to
handlers.
This action imposes an additional reporting and recordkeeping
burden on California kiwifruit handlers. This action requires a new
Committee form that must be completed by handlers and provided to the
FSIS. The information collection requirement is discussed later in this
document. 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. Finally, USDA has
not identified any relevant Federal rules that duplicate, overlap, or
conflict with this rule.
In addition, the Committee's meeting was widely publicized
throughout the kiwifruit industry and all interested persons were
invited to attend the meeting and participate in Committee
deliberations on all issues. Like all Committee meetings, the April 6,
2006, meeting was a public meeting and all entities, both large and
small, were encouraged to express their views on these issues. Finally,
interested persons are invited to submit information on the regulatory
and informational impacts of this action on small businesses.
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.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), this notice announces that AMS is requesting emergency
approval from the Office of Management and Budget (OMB) for a new
information collection request under OMB No. 0581-NEW. Upon approval by
OMB, this collection will be merged with the forms currently approved
for use under OMB No. 0581-0189, ``Generic OMB Fruit Crops.'' The
emergency request was necessary because insufficient time was available
to follow normal clearance procedures.
Title: Kiwifruit Grown in California, Marketing Order No. 920.
OMB No.: 0581-NEW.
Expiration Date of Approval: Emergency request.
Type of Request: New collection.
Abstract: The information collection requirement in this request is
essential to provide handlers with a procedure to ship kiwifruit that
has been inspected, meets applicable grade and size requirements, and
is subsequently placed into new containers without PLI.
On April 6, 2006, the Committee unanimously recommended relaxing
the container marking requirements prescribed under the order.
Currently, kiwifruit that has been inspected, meets applicable grade
and size requirements, and is subsequently placed into new containers
must be positive lot identified, which requires reinspection. This rule
establishes procedures for handlers to ship such kiwifruit without PLI.
Kiwifruit handlers must submit a new Kiwifruit Verification Form to the
FSIS and report information prior to shipment. On this form, handlers
must report information from the original inspection certificate (PLI
and inspection certification numbers, handler name, grade and size,
number and type of containers, and brand), and information for such
kiwifruit placed into new containers (number and type of container, and
brand). The FSIS will assign verification numbers for lots of such
kiwifruit in order to provide a trace back to the original inspection
certificate. This action is intended to reduce handler inspection costs
and facilitate the marketing of kiwifruit.
The information collected is used only by authorized
representatives of USDA, including AMS, Fruit and Vegetable Programs
regional and headquarters' staff, and authorized employees and agents
of the Committee. Authorized Committee employees, agents, and the
industry are the primary users of the information and AMS is the
secondary user.
Kiwifruit Verification Form
Estimate of Burden: Public reporting burden for this collection of
information is estimated to be no more than .25 hour per response.
Respondents: Kiwifruit handlers.
Estimated Number of Respondents: 30.
Estimated Number of Responses per Respondent: 150.
Estimated Total Annual Burden on Respondents: 1,125 hours.
Comments: Comments are invited on: (1) Whether the collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information will have practical
utility; (2) the accuracy of the agency's estimate of the burden of the
collection of information, including the validity of the methodology
and assumptions used; (3) ways to enhance the quality, utility, and
clarity of the information to be collected; and (4) ways to minimize
the burden of the collection of information on those who are to
respond, including the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology.
Comments should reference OMB No. 0581-NEW and the California
kiwifruit marketing order, and be sent to the USDA in care of the
Docket Clerk at the previously mentioned address. All comments received
will be available for public inspection during regular business hours
at the same address.
All responses to this notice will be summarized and included in the
request for OMB approval. All comments will also become a matter of
public record. As previously mentioned, because there was insufficient
time for a normal clearance procedure and prompt implementation is
needed, AMS is requesting emergency approval for the use of this form
by October 11, 2006, because the season began August 1. As previously
mentioned, upon OMB
[[Page 58249]]
approval, this collection will be merged with the forms currently
approved for use under OMB No. 0581-0189 ``Generic OMB Fruit Crops.''
The AMS is committed to complying with the E-Government Act, to
promote the use of the Internet and other information technologies to
provide increased opportunities for citizen access to Government
information and services, and for other purposes.
In summary, this rule establishes procedures for handlers to ship
kiwifruit that has been inspected, meets applicable grade and size
requirements, and is subsequently placed into new containers without
PLI. This rule is intended to reduce handler inspection costs and
facilitate the marketing of kiwifruit. The additional reporting
requirement will contribute to the efficient operation of the program
and assist in ensuring handler compliance with marketing order
provisions. Any comments received will be considered prior to
finalization of this rule.
After consideration of all relevant material presented, including
the Committee's recommendation, and other information, it is found that
this interim final rule, as hereinafter set forth, will tend to
effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined in good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect and good cause exists for not postponing the effective date of
this rule until 30 days after publication in the Federal Register
because: (1) This rule should be in place as soon as possible because
the 2006-07 season began on August 1, 2006, and handlers will begin
shipping kiwifruit by mid-September; (2) the Committee unanimously
recommended this change at a public meeting and all interested parties
had an opportunity to provide input; (3) this rule relaxes requirements
currently in effect and kiwifruit producers and handlers are aware of
this rule and need no additional time to comply with the relaxed
requirements; (4) this rule provides a 60-day comment period and any
comments received will be considered prior to finalization of this
rule.
List of Subjects in 7 CFR Part 920
Kiwifruit, Marketing agreements, Reporting and recordkeeping
requirements.
0
For the reasons set forth in the preamble, 7 CFR part 920 is amended as
follows:
PART 920--KIWIFRUIT GROWN IN CALIFORNIA
0
1. The authority citation for 7 CFR part 920 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. In Sec. 920.303, revise paragraph (d), and add a new paragraph (f)
to read as follows:
Sec. 920.303 Container marking regulations.
* * * * *
(d) Except as provided in paragraph (f) of this section, containers
of kiwifruit must be positive lot identified prior to shipment in
accordance with the following requirements. All exposed or outside
containers of kiwifruit, but not less than 75 percent of the total
containers on the pallet, shall be positive lot identified with a plain
mark corresponding to the lot inspection conducted by an authorized
inspector, except for individual consumer packages within a master
container and containers that are being directly loaded into a vehicle
for export shipment under the supervision of the Federal or Federal-
State Inspection Service. Individual consumer packages of kiwifruit
placed directly on a pallet shall have all outside or exposed packages
on a pallet positive lot identified with a plain mark corresponding to
the lot inspection conducted by an authorized inspector or have one
inspection label placed on each side of the pallet. Reusable plastic
containers of kiwifruit, placed on a pallet, shall be positive lot
identified in accordance with Federal or Federal-State Inspection
Service procedures and shall have required information on the cards of
the individual containers, as provided in this section of the
regulations.
* * * * *
(f) Kiwifruit that has been inspected and certified, and is
subsequently placed into new containers, does not have to be positive
lot identified, as prescribed in paragraph (d) of this section:
Provided, That:
(1) Such kiwifruit is of the same grade and size as originally
inspected; and
(2) The handler requests a verification number from the Federal or
Federal-State Inspection Service prior to shipment; plainly marks one
end of each container with such number and the letter ``R,'' both of
which shall be at least one-half inch in height; and submits a
Kiwifruit Verification Form to the Federal or Federal-State Inspection
Service within 3 business days of such request. The handler shall
provide the following information on the Kiwifruit Verification Form.
(i) From the original inspection:
(A) The positive lot identification numbers;
(B) The identity of the handler;
(C) The inspection certificate numbers;
(D) The grade and size of the kiwifruit;
(E) The number and type of containers; and
(F) The handler's brand; and
(ii) On the kiwifruit placed into new containers:
(A) The number and type of containers; and
(B) The applicable brand.
Dated: September 27, 2006.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. E6-16279 Filed 10-2-06; 8:45 am]
BILLING CODE 3410-02-P