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Rules and Regulations Federal Register

80209 

Vol. 76, No. 247 

Friday, December 23, 2011 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 920 

[Doc. No. AMS–FV–11–0041; FV11–920–1 

FR] 

Kiwifruit Grown in California; Change 

in Reporting Requirements and New 

Information Collection 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule changes the 

reporting requirements currently 

prescribed under the marketing order 

that regulates the handling of kiwifruit 

grown in California. The order is 

administered locally by the Kiwifruit 

Administrative Committee (Committee). 

This rule requires handlers to file two 

new end-of-season reports with the 

Committee. One report contains price 

and handler shipment information and 

the other report contains grower 

shipment information. The Committee 

uses this information to determine 

appropriate grower representation on 

the Committee, to conduct grower 

nominations, to verify shipments for 

assessment collections, and to prepare 

the annual report and the annual 

marketing policy, as required under the 

order. 

DATES: Effective Date: December 24, 

2011. 

FOR FURTHER INFORMATION CONTACT: 

Kathie M. Notoro, Marketing Specialist, 

or Kurt J. Kimmel, Regional Manager, 

California Marketing Field Office, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (559) 487– 

5901, Fax: (559) 487–5906, or Email: 

Kathie.Notoro@ams.usda.gov or Kurt.

Kimmel@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Laurel May, 

Marketing Order and Agreement 

Division, 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 Email: 

Laurel.May@ams.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 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

This final 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. 

This final rule adds two new 

reporting requirements and two new 

forms to those currently specified in the 

order’s administrative rules and 

regulations. These changes allow the 

Committee to collect annual, end-ofseason price, shipment, and grower 

information (grower entity/farm name, 

mailing address, location of farm by 

county, shipments by pack style, and 

acreage) from all kiwifruit handlers. 

Under this regulation, both reports are 

due from each handler within 30 days 

after such handler has completed 

current season shipments. The 

Committee will use this information to 

determine appropriate grower 

representation on the Committee, to 

conduct grower nominations, to verify 

shipments for assessment collections, 

and to prepare the annual report and the 

annual marketing policy, as required 

under the order. This rule was 

unanimously recommended by the 

Committee at a meeting on March 17, 

2011. 

Section 920.12 of the order defines 

the Districts within the production area, 

and Section 920.20 provides, in part, 

that ‘‘* * * district representation on 

the committee shall be based upon the 

previous five-year average production in 

the district and shall be established so 

as to provide an equitable relationship 

between membership and districts.’’ 

Section 920.22 of the order defines 

the nomination procedures, allowing for 

nominations to be conducted via mail, 

and provides that growers are eligible to 

participate in nominations in the 

district they produce kiwifruit. 

Section 920.34 of the order requires 

that the Committee prepare an annual 

report for presentation to the Secretary 

and the industry. The annual report 

provides a cumulative review of 

industry statistics as well as information 

about program activities and 

expenditures. 

Section 920.41 of the order provides 

authority to assess each person who first 

handles kiwifruit a pro rata share of the 

expenses which are reasonable and 

likely to be incurred by the Committee 

during a fiscal period. 

Section 920.50 of the order requires 

the Committee to prepare an annual 

marketing policy for submission to the 

Secretary. The marketing policy 

describes expected kiwifruit production, 

quality, and marketing conditions. 

Along with other pertinent information, 

the marketing policy provides the basis 

for the recommendation of appropriate 

kiwifruit handling regulations for the 

upcoming season. 

Section 920.60 of the order authorizes 

the Committee to require handlers to file 

reports and provide other information as 

may be necessary for the Committee to 

perform these duties. 

Section 920.61 (Compliance) of the 

order provides that all handlers must 

conform to the provisions and 

regulations set forth in the order, and 

the Committee is to verify handler 

compliance with order provisions. 


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80210 Federal Register / Vol. 76, No. 247 / Friday, December 23, 2011 / Rules and Regulations 

The Committee’s current reporting 

requirements are specified in § 920.160 

of the order’s administrative rules and 

regulations. This section currently 

requires that handlers submit: (1) A 

report of shipment and inventory data 

which provides monthly data regarding 

the reporting period, name and 

identification of the shipper, and the 

number of containers by type and 

weight by shipment destination category 

of all kiwifruit; (2) a Kiwifruit Inventory 

Shipping System (KISS) form, which 

consists of three sections: KISS/Add 

Inventory, KISS/Deduct Inventory, and 

KISS/Shipment and which provides 

beginning inventory by size and 

container type, quantity of the fruit lost 

in repack or repacked into other 

container types, total domestic and 

export shipments by size and container 

type; and any other adjustments which 

increase or decrease handler inventory; 

(3) a Return Receipt of Kiwifruit to 

Grower Form which reports fruit 

returned by a handler to a grower(s); 

and (4) a KISS Price/Shipment report 

which contains handler information, 

reporting period, total fresh market 

shipments, and gross f.o.b. sales of nonorganic kiwifruit by pack style and size. 

Since 1984, the California Kiwifruit 

Commission (Commission) has collected 

end-of-season price, shipment, and 

grower information (grower entity/farm 

name, mailing address, location of farm 

by county, shipments by pack style, and 

acreage), on organic and non-organic 

kiwifruit via two Commission forms. 

The Commission has, through an 

agreement, shared this information with 

the Committee. The Committee 

previously used the majority of this 

information to determine appropriate 

grower representation on the 

Committee, to conduct grower 

nominations, to verify shipments for 

assessment collections, and to prepare 

the annual report and the annual 

marketing policy under the order. 

The Commission ceased to exist as of 

September 30, 2011. Thus, the 

Committee no longer has access to this 

previously shared information. As the 

current reporting requirements under 

the order make no provisions for 

collecting end-of-season information 

previously provided by the 

Commission, and as the Committee 

would need this information from all 

handlers, including organic handlers, 

the Committee unanimously 

recommended adding these new 

reporting requirements and two new 

forms, the End-of-Season F.O.B. Sales 

Report and the Final Packout Report, to 

§ 920.160 of the order’s administrative 

rules and regulations. 

Under this final rule, § 920.160 is 

revised by adding two new reporting 

requirements and two new forms, due 

by each handler (organic and nonorganic) within 30 days after such 

handler has completed current season 

shipments. Kiwifruit shipments 

generally begin in September and 

continue through July. The information 

collected on the End-of-Season F.O.B. 

Sales Report includes data on gross 

f.o.b. sales value and number of 

containers for fresh market shipments 

by fruit size and pack style for the 

season. The information collected on 

the Final Packout Report includes 

containers shipped by pack style for 

fresh market shipments, for each grower 

entity during the season. The report also 

includes the grower entity and farm 

name, mailing address, the county 

where the farm is located, and total 

acreage. Both reports also show the 

company name, contact person, and 

phone number of the handler. The 

information obtained from both of the 

two new reports provides data to 

determine appropriate representation on 

the Committee, to conduct grower 

nominations, to verify shipments for 

assessment collections, and to prepare 

the annual report and annual marketing 

policy. 

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. 

This rule only changes the reporting 

requirements under the domestic 

handling regulations. No changes to the 

import regulations will be made. 

Final 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 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 rules issued thereunder, are 

unique in that they are brought about 

through group action of essentially 

small entities acting on their own 

behalf. 

Small agricultural service firms 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 of less than $750,000. 

Based on Committee data, there are 

approximately 27 handlers of kiwifruit 

subject to regulation under the 

marketing order and approximately 176 

kiwifruit growers in the production 

area. 

The California Agricultural Statistical 

Service (CASS) reported total California 

kiwifruit production for the 2010–11 

season at 32,700 tons with an average 

price of $768 per ton. Based on the 

average price, shipment, and grower 

information provided by the CASS and 

the Committee, it could be concluded 

that the majority of kiwifruit handlers 

would be considered small businesses 

under the SBA definition. In addition, 

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. 

This final rule changes the reporting 

requirements currently prescribed under 

the order. This rule revises § 920.160 by 

adding two new reporting requirements 

and two new forms, due by handlers 

within 30 days after such handler has 

completed current season shipments. 

The information collected on the Endof-Season F.O.B. Sales Report includes 

data on gross f.o.b. sales value and 

number of containers for fresh market 

shipments by fruit size and pack style 

for the season. The information 

collected on the Final Packout Report 

includes containers shipped by pack 

style for fresh market shipments, for 

each grower entity during the season. 

The report also includes the grower 

entity and farm name, mailing address, 

the county where the farm is located, 

and total acreage. Both reports also 

show the company name, contact 

person, and phone number of the 

handler. The information obtained from 

both of the two new reports provides 

data to determine appropriate grower 

representation on the Committee, to 

conduct grower nominations, to verify 

shipments for assessment collections, 

and to prepare the annual report and 

annual marketing policy. This final rule 

revises § 920.160, which specifies the 

reporting requirements. 

Requiring the price, shipment, and 

grower information at the end of the 

season imposes a minor increase in the 

reporting burden on all kiwifruit 

handlers. As this data was previously 

provided to the Commission and shared 

with the Committee, these two annual 

end-of-season reports do not 

significantly increase the handlers’ 


srobinson on DSK4SPTVN1PROD with RULES
Federal Register / Vol. 76, No. 247 / Friday, December 23, 2011 / Rules and Regulations 80211 

record keeping burden because the 

primary source of data was already 

being recorded and maintained by 

handlers as a routine part of their daily 

business. The majority of handlers use 

computers to record their data, and this 

information can readily be accessed and 

summarized for these reports. 

Consequently, any additional costs 

associated with these changes are 

expected to be minimal. Also, the 

benefits of having consolidated end-ofseason price, shipping, and grower data 

are expected to outweigh any costs 

associated with the increase in reporting 

burden. Further, the benefits of this rule 

are expected to be equally available to 

all industry members, regardless of their 

size. It is anticipated that the 

transmission of these reports from 

handlers to the Committee will be done 

by either email or facsimile (FAX) 

machines. 

The Committee discussed alternatives 

to this action, including making no 

changes to the reporting requirements, 

but determined that in order to carry out 

the objectives of the marketing order, 

the information collected contained 

within these two new reports is 

necessary. Therefore, this alternative 

was rejected. 

This final rule imposes additional 

reporting burdens on handlers of 

kiwifruit in California. This action 

requires two new Committee forms: The 

End-of-Season F.O.B. Sales Report and 

the Final Packout Report. 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. 

Paperwork Reduction Act 

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 

OMB Fruit Crops. As a result of this 

action, two new Committee forms 

would be created. They have been 

submitted to OMB for review. 

As noted in the initial regulatory 

flexibility analysis, USDA has not 

identified any relevant Federal rules 

that duplicate, overlap or conflict with 

this rule. 

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. 

Further, 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 on all issues. Like all 

Committee meetings, the March 17, 

2011, meeting was a public meeting and 

all entities, both large and small, were 

able to express views on this issue. 

A proposed rule concerning this 

action was published in the Federal 

Register on August 9, 2011 (76 FR 

48742). 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 USDA and the 

Office of the Federal Register. A 60-day 

comment period ending October 11, 

2011, 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: www.ams.usda.gov/

MarketingOrdersSmallBusinessGuide. 

Any questions about the compliance 

guide should be sent to Laurel May 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. 

It is further found that good cause 

exists for not postponing the effective 

date of this rule until 30 days after 

publication in the Federal Register (5 

U.S.C. 553) because the Committee 

requires time to prepare and mail 

handler report packets, which should 

include the End-of-Season F.O.B. Sales 

Report and the Final Packout Report, 

prior to the beginning of shipments for 

the 2011–12 crop year. In addition, 

handlers are aware of this rule, which 

was recommended at a Committee 

meeting on March 17, 2011. Also, a 60- 

day comment period was provided in 

the proposed rule. 

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. 

■ 2. Section 920.160 is amended by 

adding paragraphs (f) and (g) to read as 

follows: 

§ 920.160 Reports. 

* * * * * 

(f) Each handler shall file annually 

with the Committee an End-of-Season 

F.O.B. Sales Report, due within 30 days 

after such handler has completed 

current season shipments, reporting 

gross f.o.b. sales value and number of 

containers by pack style and size for 

fresh market shipments for the season. 

The report shall also show the company 

name, contact person, and phone 

number of the handler. 

(g) Each handler shall file annually 

with the Committee a Final Packout 

Report, due within 30 days after such 

handler has completed current season 

shipments, reporting total containers 

shipped, by pack style for fresh market 

shipments, for each grower entity 

during the season. The report shall also 

include the grower entity and farm 

name, mailing address, the county in 

which the farm is located, and total 

acreage for each reported grower entity. 

Also, the report shall show the company 

name, contact person, and phone 

number of the handler. 

Dated: December 14, 2011. 

David R. Shipman, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2011–32928 Filed 12–22–11; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 948 

[Doc. No. AMS–FV–11–0051; FV11–948–1 

FR] 

Irish Potatoes Grown in Colorado; 

Modification of the Handling 

Regulation for Area No. 3 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule revises the size 

requirements for potatoes under the 

Colorado potato marketing order (order). 

The order regulates the handling of Irish 

potatoes grown in Colorado, and is 

administered locally by the Colorado 


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