Kiwifruit Grown in California and Imported Kiwifruit; Modification of Handling Regulations

DEPARTMENT OF AGRICULTURE <SUBAGY>Agricultural Marketing Service</SUBAGY> <CFR>7 CFR Parts 920 and 944</CFR> <DEPDOC>[Doc. No. AMS-SC-24-0044]</DEPDOC> <SUBJECT>Kiwifruit Grown in California and Imported Kiwifruit; Modification of Handling Regulations</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Agricultural Marketing Service, USDA. <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This proposed rule would implement a recommendation from the Kiwifruit Administrative Committee (Committee) to update the handling regulations for kiwifruit grown in California. Consistent with the Committee's proposal, this rulemaking seeks to amend the Size Designation and Size Variation chart located in the pack requirements of the Marketing Order and relax the minimum size requirements for all kiwifruit varieties, except for those of the <E T="03">Actinidia chinensis</E> species. This rule also proposes to make a corresponding change to the size requirements under the kiwifruit import regulation, as required under section 8e of the Agricultural Marketing Agreement Act of 1937. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received by April 7, 2026. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Interested persons are invited to submit written comments concerning this proposed rule. Comments can be sent to the Docket Clerk, Market Development Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237. Comments can also be sent to the Docket Clerk electronically by email: <E T="03">MarketingOrderComment@usda.gov;</E> or via the internet at: <E T="03">https://www.regulations.gov.</E> Comments should reference the document number and the date and page number of this issue of the <E T="04">Federal Register</E> . Comments submitted in response to this proposed rule will be included in the record, will be made available to the public, and can be viewed at: <E T="03">https://www.regulations.gov.</E> Please be advised that comments are posted to <E T="03">regulations.gov</E> without change. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Bianca Bertrand, Marketing Specialist, or Abigail Maharaj, Chief, West Region Branch, Market Development Division, Specialty Crops Program, AMS, USDA; telephone: (559) 487-5901; or email: <E T="03">BiancaM.Bertrand@usda.gov</E> or <E T="03">Abigail.Maharaj@usda.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> This action, pursuant to 5 U.S.C. 553, proposes to amend regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674) (the Act), amending Marketing Order No. 920 (7 CFR part 920; the Order), regulating the handling of kiwifruit grown in California. The Committee locally administers the Order and is comprised of growers and handlers operating within the production area, and a public member. This proposed rule is also issued under section 8e of the Act (7 U.S.C. 608e-1), 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, and maturity requirements as those in effect for domestically produced commodities. This proposed rule falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. This proposed rule has been reviewed under Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” which requires Federal agencies to consider whether their rulemaking actions would have Tribal implications. AMS has determined this proposed rule is unlikely to have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. This proposed rule has been reviewed under Executive Order 12988, “Civil Justice Reform.” This proposed rule is not intended to have a retroactive effect. Under the Order, fresh market shipments of kiwifruit produced in California are required to be inspected and are subject to grade, size, quality, maturity, pack, and container requirements. This proposed rule would make changes to the Size Designation and Size Variation chart in the Order's pack requirements to facilitate the handling of large sizes of kiwifruit under the Order. In addition, this proposed rule would relax the Order's minimum size requirement for all kiwifruit, other than varieties of the <E T="03">Actinidia chinensis</E> species. As required by section 8e of the Act, the proposed relaxation of the minimum size requirement for non- <E T="03">Actinidia chinensis</E> species varieties would also be applied to the import regulations for kiwifruit in 7 CFR part 944. Section 920.51 of the Order authorizes the Committee to recommend handling regulations to the Secretary. Section 920.52 of the Order authorizes the Secretary to establish such handling regulations. Further, § 920.53 authorizes the Committee to recommend the modification, suspension, or termination of handling regulations when it finds that industry conditions so dictate. Section 920.302 establishes the minimum grade, size, quality, maturity, pack, and container requirements for kiwifruit handled subject to the Order. Section 920.302(a)(2) establishes the Order's minimum size requirements and § 920.302(a)(4) details the Order's pack requirements. Section 920.302(a)(4) includes a Size Designation and Size Variation Chart that specifies the allowable kiwifruit size designations, the maximum number of fruit per 8-pound sample for each size designation, and the corresponding allowable size variation tolerance. Pursuant to 7 CFR 920.53, the Committee determined that the production and marketing conditions for some varieties of kiwifruit have changed and that the Order's handling requirements should be modified accordingly. The Committee met on April 9, 2024, and unanimously recommended, with a vote of twelve in favor and none opposed, relaxing the Order's minimum size requirement in § 920.302(a)(2) for non- <E T="03">Actinidia chinensis</E> species varieties and modifying the Size Designation and Size Variation Chart in § 920.302(a)(4) to conform to the current production and marketing environment for California kiwifruit. At the time that the Order's handling regulations were established in 1985, practically all the kiwifruit grown in California were similar varieties of the <E T="03">Actinidia deliciosa</E> species. Recently, the introduction of a new variety of kiwifruit developed in Greece, known as Mega Kiwi, has resulted in the need for larger sizes to be defined in the Size Designation and Size Variation chart in § 920.302(a)(4). Currently, the largest size designation in the pack requirement chart is size “18 or larger”, defined as a maximum of 25 pieces of kiwifruit per 8-pound sample. The term “or larger” means that larger sizes may be packed, but there is no designation for what those sizes should be or how they might be defined ( <E T="03">e.g.,</E> number of fruit per 8-pound sample). It has been industry practice since the Order was first established that handlers may define their own sizes for fruit that is larger than Size 18. It has been acceptable for each handler to determine their own size (Size 17, 16, 15, 14, 13, etc.) and determine the number of fruit per 8-pound sample, so long as each larger size has fewer fruit per 8-pound sample than the immediately smaller size that they pack. This practice has provided an inconsistent sizing standard for shipments of large size fruit and created complications for inspections. However, until recently, the percentage of total shipments comprised of Size 18 or larger kiwifruit had been relatively small and the lack of definition for such fruit had not created problems for the industry. The Committee also reviewed the current minimum size requirement in 7 CFR 920.302(a)(2) for varieties of the non- <E T="03">Actinidia chinensis</E> species kiwifruit. The industry indicated that for Size 45, 55 pieces of fruit allowed per 8-pound sample was too restrictive of a requirement. The industry consensus was that Size 45 was the appropriate minimum size, but that the number of pieces allowed in an 8-pound sample needed reconsideration. At the April meeting, the Committee indicated that the recent introduction of the Mega Kiwi variety necessitated adding new size designations, including appropriate definitions, and making other modifications in the Size Designation and Size Variation chart in § 920.302(a)(4) to facilitate the regulation of the larger size kiwifruit. Therefore, this proposed rule would amend the Size Designation and Size Variation Chart in 7 CFR 920.302(a)(4) by removing the words “or larger” from the size designation “18 or larger”, leaving only size “18” in its place. Further, this rulemaking would add a Size 12, defined as a maximum of 19 pieces of fruit per 8-pound sample, and a Size 15, defined as maximum of 22 pieces of fruit per 8-pound sample. Both of the proposed new size designations in the chart (12 and 15) would include a 1-inch size variation tolerance. Further, the allowable size variation tolerance for the revised size 18 would increase from <FR>1/2</FR> -inch to 1-inch and the size variation tolerance for size 45 would increase from <FR>1/4</FR> -inch to <FR>3/8</FR> -inch. The maximum number of fruit per 8-pound sample for Size 45 would be increased from 55 pieces to 56 pieces. 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