Kiwifruit Grown in California and Imported Kiwifruit; Relaxation of Minimum Grade Requirement, 43758-43761 [2013-17462]

Download as PDF 43758 * * Federal Register / Vol. 78, No. 140 / Monday, July 22, 2013 / Rules and Regulations * * * Larry Mitchell, Administrator, Grain Inspection, Packers and Stockyards Administration. [FR Doc. 2013–17452 Filed 7–19–13; 8:45 am] BILLING CODE 3410–KD–P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Parts 920 and 944 [Doc. No. AMS–FV–13–0032; FV13–920–1 IR] Kiwifruit Grown in California and Imported Kiwifruit; Relaxation of Minimum Grade Requirement Agricultural Marketing Service, USDA. ACTION: Interim rule with request for comments. AGENCY: This rule relaxes the minimum grade requirement under the marketing order for kiwifruit grown in California (order), and for kiwifruit imported into the United States that are shipped to the fresh market, by increasing the tolerance of kiwifruit which is ‘‘badly misshapen’’ from 7 percent to 16 percent. The order is administered locally by the Kiwifruit Administrative Committee (Committee). This change is intended to facilitate the packing of fruit to meet the minimum grade requirement of ‘‘KAC No. 1’’, and reduce costs associated with re-sorting and repacking this grade of fruit. The change in the import regulation is required under section 8e of the Agricultural Marketing Agreement Act of 1937. DATES: July 25, 2013; comments received by September 20, 2013 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 and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250–0237; Fax: (202) 720–8938; or Internet: https:// www.regulations.gov. All comments should reference the document 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: https://www.regulations.gov. All comments submitted in response to this rule will be included in the record and ehiers on DSK2VPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 14:52 Jul 19, 2013 Jkt 229001 will be made available to the public. Please be advised that the identity of the individuals or entities submitting the comments will be made public on the Internet at the address provided above. FOR FURTHER INFORMATION CONTACT: Kathie M. Notoro, Marketing Specialist, or Martin Engeler, Regional Director, California Marketing Field Office, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA; Telephone: (559) 487– 5901, Fax: (559) 487–5906, or Email: Kathie.Notoro@ams.usda.gov or Martin.Engeler@ams.usda.gov. Small businesses may request information on complying with this regulation by contacting Jeffrey Smutny, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250–0237; Telephone: (202) 720– 2491, Fax: (202) 720–8938, or Email: Jeffrey.Smutny@ams.usda.gov. SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order No. 920, as amended (7 CFR part 920), regulating the handling of kiwifruit 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.’’ This rule is also issued under section 8e of the Act, which provides that whenever certain specified commodities, including kiwifruit, are regulated under a Federal marketing order, imports of these commodities into the United States are prohibited unless they meet the same or comparable grade, size, quality, or maturity requirements as those in effect for the domestically produced commodities. 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. 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 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 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 not later than 20 days after the date of the entry of the ruling. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of import regulations issued under section 8e of the Act. Under the terms of the marketing order, fresh market shipments of California kiwifruit are required to be inspected and are subject to grade, size, maturity, pack, and container requirements. Current requirements include specifications that such shipments be at least Size 45, grade at least KAC No. 1 quality, and contain a minimum of 6.2 percent soluble solids. This rule relaxes the minimum grade requirement under the definition for KAC No. 1 kiwifruit quality by increasing the tolerance for ‘‘badly misshapen’’ fruit from 7 percent to 16 percent. The Committee unanimously recommended these changes at a meeting on March 27, 2013. Section 920.52 of the order provides, in part, the authority to regulate the handling of kiwifruit and specifically, in paragraph (a)(1), the Secretary may limit, during any period or periods, the shipment of any particular grade, size, quality, maturity, or pack, or any combination thereof, of any variety or varieties of kiwifruit grown in the production area. Section 920.302 establishes regulations regarding grade, size, pack, and container regulations. Paragraph (a) (1) specifies that the minimum grade be at least KAC No.1 quality and paragraph (b) defines that the term KAC No. 1 quality means kiwifruit that meets the requirements of the U.S. No. 1 grade as defined in the United States Standards for Grades of Kiwifruit (7 CFR 51.2335 through 51.2340) except that the kiwifruit shall be ‘‘not badly misshapen,’’ and a tolerance of 7 percent is provided for kiwifruit that is ‘‘badly misshapen,’’ and except that all varieties of kiwifruit are exempt from the ‘‘tightly packed’’ standard as defined in § 51.2338(a) of the U.S. Standards for Grades of Kiwifruit. The terms fairly uniform in size and diameter mean the same as defined in the U.S. Standards for Grades of Kiwifruit. At its meeting, the Committee recommended revising paragraph (b) of 920.302 to increase the tolerance for ‘‘badly misshapen’’ fruit from 7 percent to 16 percent. ‘‘Badly misshapen fruit’’ is defined in the United States E:\FR\FM\22JYR1.SGM 22JYR1 ehiers on DSK2VPTVN1PROD with RULES Federal Register / Vol. 78, No. 140 / Monday, July 22, 2013 / Rules and Regulations Standards for Kiwifruit as fruit that is so decidedly deformed that its appearance is seriously affected. Most kiwifruit naturally grow in an ‘‘egg’’ shape. A small percentage of fruit develop into a flat, wide, almost square shape. Such fruit, if it is wider than it is tall, is considered to be badly misshapen. Identification of badly misshapen fruit is performed visually during the packing process, and this fruit is manually sorted out by packinghouse employees. The flat/wide fruit is separated from the cylindrical fruit and packed into different boxes so that there is a uniformity of shape within the containers. However, during the inspection process, badly misshapen fruit is identified using calipers that precisely measure the dimensions of the fruit. Consequently, fruit that appears to meet the grade requirement based on visual observation occasionally fails to meet the requirements when measured with calipers. Containers of packed KAC No. 1 fruit sometimes exceed the tolerance for misshapen fruit by two or three pieces of fruit and are required to be resorted and repacked, resulting in increased costs. The end of season packout by grade for kiwifruit for 2011/12 resulted in 1 percent U.S. Fancy, 94 percent U.S. No. 1, and 5 percent KAC No. 1. Although it accounts for only 5 percent of the industry pack, KAC No. 1 fruit is the most difficult to pack because of the discrepancy between visually identifying misshapen fruit and identifying such fruit with calipers during the inspection process. Increasing the tolerance for badly misshapen fruit is expected to reduce the incidence of containers of KAC No. 1 fruit failing to meet grade requirements, thereby reducing costs associated with repacking and re-sorting failing fruit. It is also expected to help facilitate and streamline the packing process by avoiding disruptions associated with repacking and re-sorting fruit. Section 8e of the Act provides that when certain domestically produced commodities, including kiwifruit, are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, and maturity requirements. Since this action would relax the minimum grade requirement by increasing the tolerance of kiwifruit which is ‘‘badly misshapen’’ from 7 percent to 16 percent under the domestic handling regulations, a corresponding change to the import regulations must also be considered. VerDate Mar<15>2010 14:52 Jul 19, 2013 Jkt 229001 Minimum grade, size, quality, and maturity requirements for kiwifruit imported into the United States are currently in effect under § 944.550 (7 CFR 944.550). Paragraph (a) of this section specifies a tolerance of 7 percent for badly misshapen fruit. This rule would increase the tolerance for imported kiwifruit that is badly misshapen from 7 percent to 16 percent to be consistent with the requirements for California kiwifruit regulated under the order. The increase in the tolerance for imports is expected to reduce the incidence of product that fails to meet the minimum grade requirement of KAC No. 1. This would help reduce costs associated with product that fails to meet import requirements, and would help to facilitate the importation of kiwifruit. Initial Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612), 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. Import regulations issued under the Act are based on those established under Federal marketing orders. There are approximately 178 kiwifruit growers subject to regulation under the marketing order and approximately 28 handlers in the production area. There are approximately 53 importers of kiwifruit. Small agricultural service firms, which include kiwifruit handlers and importers, are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those having annual receipts less than $750,000. The California Agricultural Statistical Service (CASS) reported total California kiwifruit production for the 2011–12 season at 37,700 tons, with an average price of $775 per ton. Based on the average price and shipment information provided by the CASS and the Committee, the majority of kiwifruit handlers would be considered small businesses under the SBA definition. Based on kiwifruit production and price PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 43759 information, as well as the total number of California kiwifruit growers, the average annual grower revenue is less than $750,000. Thus, the majority of California kiwifruit producers may also be classified as small entities. In addition, based on data from the U.S. Census Bureau, Department of Commerce, the value of imported kiwifruit for 50 of the 53 importers was less than $7,000,000. Thus, it can be concluded that the majority of kiwifruit importers may be classified as small entities. This rule relaxes the minimum grade requirement currently specified in § 920.302 (b) of the regulations under the order by increasing the tolerance for kiwifruit that is ‘‘badly misshapen’’ from 7 percent to 16 percent under the definition for KAC No. 1 quality. This action does not impose any additional costs on the industry. It is expected to reduce costs to handlers and growers of kiwifruit, and to increase efficiencies in the packing process. Containers of packed kiwifruit occasionally fail to meet the minimum grade requirement of KAC No. 1 quality because two or three pieces of misshapen fruit in a container cause the container to exceed the allowable tolerance for such fruit. The fruit in these containers must then be re-sorted and repacked to meet the minimum grade requirement. There are costs associated with re-sorting and repacking. Assuming a labor cost of $8.50 per hour and an estimated time of five to ten minutes to re-sort and repack a container of fruit, the direct additional cost per container of fruit could be up to $1.40. Other costs associated with repacking and re-sorting fruit include employee supervision, and the unstacking and re-stacking of pallets in order to do the work. These latter types of costs are difficult to estimate due to differences in various packing operations. Some of these costs incurred by handlers are passed on to the growers. In addition to these costs, the re-sorting and repacking of fruit causes inefficiencies in the packing process, as packing lines can be interrupted and employees are diverted from other duties to repack fruit. Increasing the tolerance for misshapen fruit will reduce the amount of product that fails to meet the minimum grade, thus reducing resorting and repacking costs and reducing inefficiencies in the packing process. The quality of fruit to consumers is not expected to be significantly affected. Based on Committee data, 95 percent of kiwifruit under the order is packed to a higher grade standard than the E:\FR\FM\22JYR1.SGM 22JYR1 ehiers on DSK2VPTVN1PROD with RULES 43760 Federal Register / Vol. 78, No. 140 / Monday, July 22, 2013 / Rules and Regulations minimum grade of KAC No.1. Of the 5 percent packed as KAC No.1, only a small percentage of those shipments will be affected by allowing two or three additional misshapen pieces of fruit in the container. Regarding alternatives to this action, the Committee discussed changing the current parameters for misshapen fruit; from ‘‘fruit that is not wider than tall’’ to fruit that is a certain percentage wider than it is tall. This alternative would allow for flatter/wider fruit to be packed than what is currently allowed and would be even more difficult to accurately sort fruit visually. The industry does not want to pack more fruit that is flatter and wider; they want to make it easier to accurately identify and pack the KAC No. 1 grade fruit as it is currently defined. Therefore, the Committee rejected this alternative. In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the order’s information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581–0189, Generic Fruit Crops. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval. This rule will not impose any additional reporting or recordkeeping requirements on either small or large kiwifruit handlers in California or importers. 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. 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 addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule. Further, the Committee meeting was widely publicized throughout the California kiwifruit industry. All interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the March 27, 2013, meeting was a public meeting. All entities, both large and small, were able to express their views on this issue. Also, the embassies of those countries that export fruit to the United States and known kiwifruit importers will be notified of this interim rule upon its VerDate Mar<15>2010 14:52 Jul 19, 2013 Jkt 229001 publication. Finally, interested persons are invited to submit comments on this interim rule, including 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: www.ams.usda.gov/ MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Jeffrey Smutny at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. This rule invites comments on relaxing the minimum grade requirements for domestic and imported kiwifruit. Any comments received will be considered prior to finalization of this rule. In accordance with section 8e of the Act, the United States Trade Representative has concurred with the issuance of this rule. After consideration of all relevant material presented, including the Committee’s recommendation, and other information, it is found that this interim 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 upon 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 that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) This action relaxes the current minimum grade requirement under the order; (2) this change needs to be in effect by September 15, 2013; (3) the Committee recommended these changes at a public meeting and interested parties had an opportunity to provide input; and (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 7 CFR Part 920 Kiwifruit, Marketing agreements. 7 CFR Part 944 Avocados, Food grades and standards, Grapefruit, Grapes, Imports, Kiwifruit, Limes, Olives, Oranges. For the reasons set forth in the preamble, 7 CFR parts 920 and 944 are amended as follows: PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 PART 920—KIWIFRUIT GROWN IN CALIFORNIA 1. The authority citation for 7 CFR parts 920 and 944 continues to read as follows: ■ Authority: 7 U.S.C. 601–674. 2. In § 920.302, revise paragraph (b) to read as follows: ■ § 920.302 Grade, size, pack, and container regulations. * * * * * (b) Definitions. The term KAC No. 1 quality means kiwifruit that meets the requirements of the U.S. No. 1 grade as defined in the United States Standards for Grades of Kiwifruit (7 CFR 51.2335 through 51.2340) except that the kiwifruit shall be ‘‘not badly misshapen,’’ and an additional tolerance of 16 percent is provided for kiwifruit that is ‘‘badly misshapen,’’ and except that all varieties of kiwifruit are exempt from the ‘‘tightly packed’’ standard as defined in § 51.2338(a) of the U.S. Standards for Grades of Kiwifruit. The terms fairly uniform in size and diameter mean the same as defined in the U.S. Standards for Grades of Kiwifruit. * * * * * PART 944—FRUITS; IMPORT REGULATIONS 3. In § 944.550, revise paragraph (a) to read as follows: ■ § 944.550 Kiwifruit import regulation. (a) Pursuant to section 8e of the Agricultural Marketing Agreement Act of 1937, as amended, the importation into the United States of any kiwifruit is prohibited unless such kiwifruit meets all the requirements of a U.S. No. 1 grade as defined in the United States Standards for Grades of Kiwifruit (7 CFR 51.2335 through 51.2340), except that the kiwifruit shall be ‘‘not badly misshapen,’’ and an additional tolerance of 16 percent is provided for kiwifruit that is ‘‘badly misshapen,’’ and except that such kiwifruit shall have a minimum of 6.2 percent soluble solids. Such fruit shall be at least Size 45, which means there shall be a maximum of 55 pieces of fruit and the average weight of all samples in a specific lot must weigh at least 8 pounds (3.632 kilograms), provided that no individual sample may be less than 7 pounds 12 ounces (3.472 kilograms). * * * * * E:\FR\FM\22JYR1.SGM 22JYR1 Federal Register / Vol. 78, No. 140 / Monday, July 22, 2013 / Rules and Regulations Dated: July 16, 2013. Rex A. Barnes, Associate Administrator, Agricultural Marketing Service. FOR FURTHER INFORMATION CONTACT: [FR Doc. 2013–17462 Filed 7–19–13; 8:45 am] BILLING CODE 3410–02–P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA–2012–1222; Directorate Identifier 2012–NM–134–AD; Amendment 39–17505; AD 2013–13–17] RIN 2120–AA64 Airworthiness Directives; Bombardier, Inc. Airplanes Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. AGENCY: We are superseding airworthiness directive (AD) 2011–13– 08 for certain Bombardier, Inc. Model DHC–8–400 series airplanes. AD 2011– 13–08 required a free-play check for excessive free-play of the shaft swaged bearing installed in the tailstock end of each elevator power control unit (PCU), and replacing any PCU on which the bearing exceeds allowable limits with a serviceable PCU. This new AD adds airplanes to the applicability from that of AD 2011–13–08. This AD was prompted by a determination that additional airplanes are affected by the identified unsafe condition. We are issuing this AD to detect and correct excessive free-play of the swaged bearings, which could lead to excessive airframe vibrations and difficulties in pitch control, and consequent loss of controllability of the airplane. DATES: This AD becomes effective August 26, 2013. The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of August 26, 2013. The Director of the Federal Register approved the incorporation by reference of a certain other publication listed in this AD as of August 1, 2011 (76 FR 37253, June 27, 2011). ADDRESSES: You may examine the AD docket on the Internet at https:// www.regulations.gov or in person at the U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC. ehiers on DSK2VPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 14:52 Jul 19, 2013 Jkt 229001 Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE–171, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228– 7318; fax (516) 794–5531. SUPPLEMENTARY INFORMATION: Discussion We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. The NPRM was published in the Federal Register on December 4, 2012 (77 FR 71729), and proposed to supersede AD 2011–13–08, Amendment 39–16731 (76 FR 37253, June 27, 2011). Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF–2010–28R1, dated June 12, 2012 (referred to after this as the Mandatory Continuing Airworthiness Information, or ‘‘the MCAI’’), to correct an unsafe condition for the specified products. The Mandatory Continuing Airworthiness Information (MCAI) states: Several reports have been received on the elevator power control units (PCUs) where the shaft (tailstock) swaged bearing liners had shown a higher than normal rate of wear. Investigation revealed that the excessive wear was due to the paint contamination between the bearing roller and bearing liner. The bearing paint contamination is known to be abrasive and could seize the bearing. This condition, if not corrected, could lead to excessive airframe vibrations and difficulties in aircraft pitch control. This [TCCA] directive mandates a free-play check of the shaft swaged bearing installed in the elevator PCU tailstock end and replacement of the shaft swaged bearings if excessive free-play is found. This [TCCA] AD is revised to amend the applicability for DHC–8 Series 400 aeroplanes. The unsafe condition is loss of controllability of the airplane. You may obtain further information by examining the MCAI in the AD docket. Comments We gave the public the opportunity to participate in developing this AD. We have considered the comments received. Request To Clarify Applicability Bombardier, Inc. stated that the applicability in the NPRM (77 FR 71729, December 4, 2012) is ‘‘ambiguous.’’ Bombardier noted that the applicability specifies a serial number range of airplanes, but the NPRM could be interpreted to apply to those PCUs or bearings installed on the airplane at the PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 43761 time of manufacture. Bombardier added that the preamble and service information sections of the NPRM contribute to this interpretation by citing paint contamination during airplane manufacture as the basis for bearing wear, in addition to the identification of PCUs and bearings by part number. Bombardier stated that the affected airplanes have a production run between the years 2000 and 2010; the PCUs are line replaceable units and could have been removed from an affected airplane and installed on an airplane outside of the serial number range. Bombardier concluded that if the intent of the NPRM is to apply to PCUs installed at the time of airplane manufacture, there are no provisions to account for those PCUs in the NPRM or in the service information. We infer that the commenter wants clarification of the applicability. We agree to clarify. This AD applies only to those airplanes having serial numbers (S/Ns) 4001 through 4334 inclusive, and 4336, and matches the applicability of Canadian Airworthiness Directive CF– 2010–28R1, dated June 12, 2012. Based on the infrequent removal and replacement of single actuators, we have determined it is not necessary to include additional airplanes in the applicability at this time. To alter the applicability to include additional airplanes would require additional rulemaking. We find that delaying this action would be inappropriate in light of the identified unsafe condition. However, we might consider additional rulemaking to address any airplanes that might be identified in the future as having an affected PCU or bearing. We have made no change to this AD in this regard. Request To Give Credit for Previous Accomplishment of Certain Inspections Bombardier also stated that maintenance review board (MRB) Task 273000–213, ‘‘Functional Check of the Elevator Free Play,’’ was introduced on February 10, 2011, with a 12,000-flighthour interval. Bombardier added that the NPRM (77 FR 71729, December 4, 2012) contains no provisions for giving credit for inspections accomplished using the MRB task, which applies to all airplanes and addresses excessive elevator free-play, regardless of the source. We disagree to give credit for previous accomplishment of the free-play inspections using that MRB task because that task does not meet the requirements in this AD. The free-play inspections in this AD must be performed at the required compliance times in accordance with Bombardier Service E:\FR\FM\22JYR1.SGM 22JYR1

Agencies

[Federal Register Volume 78, Number 140 (Monday, July 22, 2013)]
[Rules and Regulations]
[Pages 43758-43761]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-17462]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 920 and 944

[Doc. No. AMS-FV-13-0032; FV13-920-1 IR]


Kiwifruit Grown in California and Imported Kiwifruit; Relaxation 
of Minimum Grade Requirement

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule relaxes the minimum grade requirement under the 
marketing order for kiwifruit grown in California (order), and for 
kiwifruit imported into the United States that are shipped to the fresh 
market, by increasing the tolerance of kiwifruit which is ``badly 
misshapen'' from 7 percent to 16 percent. The order is administered 
locally by the Kiwifruit Administrative Committee (Committee). This 
change is intended to facilitate the packing of fruit to meet the 
minimum grade requirement of ``KAC No. 1'', and reduce costs associated 
with re-sorting and repacking this grade of fruit. The change in the 
import regulation is required under section 8e of the Agricultural 
Marketing Agreement Act of 1937.

DATES: July 25, 2013; comments received by September 20, 2013 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 and Agreement Division, Fruit and Vegetable Program, 
AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; or Internet: https://www.regulations.gov. All comments should reference the document 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: https://www.regulations.gov. All comments submitted in response to this rule 
will be included in the record and will be made available to the 
public. Please be advised that the identity of the individuals or 
entities submitting the comments will be made public on the Internet at 
the address provided above.

FOR FURTHER INFORMATION CONTACT: Kathie M. Notoro, Marketing 
Specialist, or Martin Engeler, Regional Director, California Marketing 
Field Office, Marketing Order and Agreement Division, Fruit and 
Vegetable Program, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 
487-5906, or Email: Kathie.Notoro@ams.usda.gov or 
Martin.Engeler@ams.usda.gov.
    Small businesses may request information on complying with this 
regulation by contacting Jeffrey Smutny, Marketing Order and Agreement 
Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or Email: Jeffrey.Smutny@ams.usda.gov.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order 
No. 920, as amended (7 CFR part 920), regulating the handling of 
kiwifruit 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.''
    This rule is also issued under section 8e of the Act, which 
provides that whenever certain specified commodities, including 
kiwifruit, are regulated under a Federal marketing order, imports of 
these commodities into the United States are prohibited unless they 
meet the same or comparable grade, size, quality, or maturity 
requirements as those in effect for the domestically produced 
commodities.
    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.
    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 not later than 20 days after the date of 
the entry of the ruling.
    There are no administrative procedures which must be exhausted 
prior to any judicial challenge to the provisions of import regulations 
issued under section 8e of the Act.
    Under the terms of the marketing order, fresh market shipments of 
California kiwifruit are required to be inspected and are subject to 
grade, size, maturity, pack, and container requirements. Current 
requirements include specifications that such shipments be at least 
Size 45, grade at least KAC No. 1 quality, and contain a minimum of 6.2 
percent soluble solids.
    This rule relaxes the minimum grade requirement under the 
definition for KAC No. 1 kiwifruit quality by increasing the tolerance 
for ``badly misshapen'' fruit from 7 percent to 16 percent. The 
Committee unanimously recommended these changes at a meeting on March 
27, 2013.
    Section 920.52 of the order provides, in part, the authority to 
regulate the handling of kiwifruit and specifically, in paragraph 
(a)(1), the Secretary may limit, during any period or periods, the 
shipment of any particular grade, size, quality, maturity, or pack, or 
any combination thereof, of any variety or varieties of kiwifruit grown 
in the production area.
    Section 920.302 establishes regulations regarding grade, size, 
pack, and container regulations. Paragraph (a) (1) specifies that the 
minimum grade be at least KAC No.1 quality and paragraph (b) defines 
that the term KAC No. 1 quality means kiwifruit that meets the 
requirements of the U.S. No. 1 grade as defined in the United States 
Standards for Grades of Kiwifruit (7 CFR 51.2335 through 51.2340) 
except that the kiwifruit shall be ``not badly misshapen,'' and a 
tolerance of 7 percent is provided for kiwifruit that is ``badly 
misshapen,'' and except that all varieties of kiwifruit are exempt from 
the ``tightly packed'' standard as defined in Sec.  51.2338(a) of the 
U.S. Standards for Grades of Kiwifruit. The terms fairly uniform in 
size and diameter mean the same as defined in the U.S. Standards for 
Grades of Kiwifruit.
    At its meeting, the Committee recommended revising paragraph (b) of 
920.302 to increase the tolerance for ``badly misshapen'' fruit from 7 
percent to 16 percent. ``Badly misshapen fruit'' is defined in the 
United States

[[Page 43759]]

Standards for Kiwifruit as fruit that is so decidedly deformed that its 
appearance is seriously affected.
    Most kiwifruit naturally grow in an ``egg'' shape. A small 
percentage of fruit develop into a flat, wide, almost square shape. 
Such fruit, if it is wider than it is tall, is considered to be badly 
misshapen. Identification of badly misshapen fruit is performed 
visually during the packing process, and this fruit is manually sorted 
out by packinghouse employees. The flat/wide fruit is separated from 
the cylindrical fruit and packed into different boxes so that there is 
a uniformity of shape within the containers.
    However, during the inspection process, badly misshapen fruit is 
identified using calipers that precisely measure the dimensions of the 
fruit. Consequently, fruit that appears to meet the grade requirement 
based on visual observation occasionally fails to meet the requirements 
when measured with calipers. Containers of packed KAC No. 1 fruit 
sometimes exceed the tolerance for misshapen fruit by two or three 
pieces of fruit and are required to be re-sorted and repacked, 
resulting in increased costs.
    The end of season packout by grade for kiwifruit for 2011/12 
resulted in 1 percent U.S. Fancy, 94 percent U.S. No. 1, and 5 percent 
KAC No. 1. Although it accounts for only 5 percent of the industry 
pack, KAC No. 1 fruit is the most difficult to pack because of the 
discrepancy between visually identifying misshapen fruit and 
identifying such fruit with calipers during the inspection process.
    Increasing the tolerance for badly misshapen fruit is expected to 
reduce the incidence of containers of KAC No. 1 fruit failing to meet 
grade requirements, thereby reducing costs associated with repacking 
and re-sorting failing fruit. It is also expected to help facilitate 
and streamline the packing process by avoiding disruptions associated 
with repacking and re-sorting fruit.
    Section 8e of the Act provides that when certain domestically 
produced commodities, including kiwifruit, are regulated under a 
Federal marketing order, imports of that commodity must meet the same 
or comparable grade, size, quality, and maturity requirements. Since 
this action would relax the minimum grade requirement by increasing the 
tolerance of kiwifruit which is ``badly misshapen'' from 7 percent to 
16 percent under the domestic handling regulations, a corresponding 
change to the import regulations must also be considered.
    Minimum grade, size, quality, and maturity requirements for 
kiwifruit imported into the United States are currently in effect under 
Sec.  944.550 (7 CFR 944.550). Paragraph (a) of this section specifies 
a tolerance of 7 percent for badly misshapen fruit. This rule would 
increase the tolerance for imported kiwifruit that is badly misshapen 
from 7 percent to 16 percent to be consistent with the requirements for 
California kiwifruit regulated under the order. The increase in the 
tolerance for imports is expected to reduce the incidence of product 
that fails to meet the minimum grade requirement of KAC No. 1. This 
would help reduce costs associated with product that fails to meet 
import requirements, and would help to facilitate the importation of 
kiwifruit.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), 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. Import regulations issued under 
the Act are based on those established under Federal marketing orders.
    There are approximately 178 kiwifruit growers subject to regulation 
under the marketing order and approximately 28 handlers in the 
production area. There are approximately 53 importers of kiwifruit. 
Small agricultural service firms, which include kiwifruit handlers and 
importers, are defined by the Small Business Administration (SBA) (13 
CFR 121.201) as those having annual receipts of less than $7,000,000, 
and small agricultural producers are defined as those having annual 
receipts less than $750,000.
    The California Agricultural Statistical Service (CASS) reported 
total California kiwifruit production for the 2011-12 season at 37,700 
tons, with an average price of $775 per ton. Based on the average price 
and shipment information provided by the CASS and the Committee, the 
majority of kiwifruit handlers would be considered small businesses 
under the SBA definition. Based on kiwifruit production and price 
information, as well as the total number of California kiwifruit 
growers, the average annual grower revenue is less than $750,000. Thus, 
the majority of California kiwifruit producers may also be classified 
as small entities. In addition, based on data from the U.S. Census 
Bureau, Department of Commerce, the value of imported kiwifruit for 50 
of the 53 importers was less than $7,000,000. Thus, it can be concluded 
that the majority of kiwifruit importers may be classified as small 
entities.
    This rule relaxes the minimum grade requirement currently specified 
in Sec.  920.302 (b) of the regulations under the order by increasing 
the tolerance for kiwifruit that is ``badly misshapen'' from 7 percent 
to 16 percent under the definition for KAC No. 1 quality.
    This action does not impose any additional costs on the industry. 
It is expected to reduce costs to handlers and growers of kiwifruit, 
and to increase efficiencies in the packing process. Containers of 
packed kiwifruit occasionally fail to meet the minimum grade 
requirement of KAC No. 1 quality because two or three pieces of 
misshapen fruit in a container cause the container to exceed the 
allowable tolerance for such fruit. The fruit in these containers must 
then be re-sorted and repacked to meet the minimum grade requirement. 
There are costs associated with re-sorting and repacking. Assuming a 
labor cost of $8.50 per hour and an estimated time of five to ten 
minutes to re-sort and repack a container of fruit, the direct 
additional cost per container of fruit could be up to $1.40. Other 
costs associated with repacking and re-sorting fruit include employee 
supervision, and the unstacking and re-stacking of pallets in order to 
do the work. These latter types of costs are difficult to estimate due 
to differences in various packing operations. Some of these costs 
incurred by handlers are passed on to the growers. In addition to these 
costs, the re-sorting and repacking of fruit causes inefficiencies in 
the packing process, as packing lines can be interrupted and employees 
are diverted from other duties to repack fruit.
    Increasing the tolerance for misshapen fruit will reduce the amount 
of product that fails to meet the minimum grade, thus reducing re-
sorting and repacking costs and reducing inefficiencies in the packing 
process.
    The quality of fruit to consumers is not expected to be 
significantly affected. Based on Committee data, 95 percent of 
kiwifruit under the order is packed to a higher grade standard than the

[[Page 43760]]

minimum grade of KAC No.1. Of the 5 percent packed as KAC No.1, only a 
small percentage of those shipments will be affected by allowing two or 
three additional misshapen pieces of fruit in the container.
    Regarding alternatives to this action, the Committee discussed 
changing the current parameters for misshapen fruit; from ``fruit that 
is not wider than tall'' to fruit that is a certain percentage wider 
than it is tall. This alternative would allow for flatter/wider fruit 
to be packed than what is currently allowed and would be even more 
difficult to accurately sort fruit visually. The industry does not want 
to pack more fruit that is flatter and wider; they want to make it 
easier to accurately identify and pack the KAC No. 1 grade fruit as it 
is currently defined. Therefore, the Committee rejected this 
alternative.
    In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. 
Chapter 35), the order's information collection requirements have been 
previously approved by the Office of Management and Budget (OMB) and 
assigned OMB No. 0581-0189, Generic Fruit Crops. No changes in those 
requirements as a result of this action are necessary. Should any 
changes become necessary, they would be submitted to OMB for approval.
    This rule will not impose any additional reporting or recordkeeping 
requirements on either small or large kiwifruit handlers in California 
or importers. 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.
    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 addition, USDA has not identified any relevant Federal rules 
that duplicate, overlap or conflict with this rule.
    Further, the Committee meeting was widely publicized throughout the 
California kiwifruit industry. All interested persons were invited to 
attend the meeting and participate in Committee deliberations. Like all 
Committee meetings, the March 27, 2013, meeting was a public meeting. 
All entities, both large and small, were able to express their views on 
this issue. Also, the embassies of those countries that export fruit to 
the United States and known kiwifruit importers will be notified of 
this interim rule upon its publication. Finally, interested persons are 
invited to submit comments on this interim rule, including 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: 
www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about 
the compliance guide should be sent to Jeffrey Smutny at the previously 
mentioned address in the FOR FURTHER INFORMATION CONTACT section.
    This rule invites comments on relaxing the minimum grade 
requirements for domestic and imported kiwifruit. Any comments received 
will be considered prior to finalization of this rule.
    In accordance with section 8e of the Act, the United States Trade 
Representative has concurred with the issuance of this rule.
    After consideration of all relevant material presented, including 
the Committee's recommendation, and other information, it is found that 
this interim 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 upon 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 that good cause exists for not postponing the effective date 
of this rule until 30 days after publication in the Federal Register 
because: (1) This action relaxes the current minimum grade requirement 
under the order; (2) this change needs to be in effect by September 15, 
2013; (3) the Committee recommended these changes at a public meeting 
and interested parties had an opportunity to provide input; and (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

7 CFR Part 920

    Kiwifruit, Marketing agreements.

7 CFR Part 944

    Avocados, Food grades and standards, Grapefruit, Grapes, Imports, 
Kiwifruit, Limes, Olives, Oranges.

    For the reasons set forth in the preamble, 7 CFR parts 920 and 944 
are amended as follows:

PART 920--KIWIFRUIT GROWN IN CALIFORNIA

0
1. The authority citation for 7 CFR parts 920 and 944 continues to read 
as follows:

    Authority: 7 U.S.C. 601-674.


0
2. In Sec.  920.302, revise paragraph (b) to read as follows:


Sec.  920.302  Grade, size, pack, and container regulations.

* * * * *
    (b) Definitions. The term KAC No. 1 quality means kiwifruit that 
meets the requirements of the U.S. No. 1 grade as defined in the United 
States Standards for Grades of Kiwifruit (7 CFR 51.2335 through 
51.2340) except that the kiwifruit shall be ``not badly misshapen,'' 
and an additional tolerance of 16 percent is provided for kiwifruit 
that is ``badly misshapen,'' and except that all varieties of kiwifruit 
are exempt from the ``tightly packed'' standard as defined in Sec.  
51.2338(a) of the U.S. Standards for Grades of Kiwifruit. The terms 
fairly uniform in size and diameter mean the same as defined in the 
U.S. Standards for Grades of Kiwifruit.
* * * * *

PART 944--FRUITS; IMPORT REGULATIONS

0
3. In Sec.  944.550, revise paragraph (a) to read as follows:


Sec.  944.550  Kiwifruit import regulation.

    (a) Pursuant to section 8e of the Agricultural Marketing Agreement 
Act of 1937, as amended, the importation into the United States of any 
kiwifruit is prohibited unless such kiwifruit meets all the 
requirements of a U.S. No. 1 grade as defined in the United States 
Standards for Grades of Kiwifruit (7 CFR 51.2335 through 51.2340), 
except that the kiwifruit shall be ``not badly misshapen,'' and an 
additional tolerance of 16 percent is provided for kiwifruit that is 
``badly misshapen,'' and except that such kiwifruit shall have a 
minimum of 6.2 percent soluble solids. Such fruit shall be at least 
Size 45, which means there shall be a maximum of 55 pieces of fruit and 
the average weight of all samples in a specific lot must weigh at least 
8 pounds (3.632 kilograms), provided that no individual sample may be 
less than 7 pounds 12 ounces (3.472 kilograms).
* * * * *


[[Page 43761]]


    Dated: July 16, 2013.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2013-17462 Filed 7-19-13; 8:45 am]
BILLING CODE 3410-02-P