Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Rules and Regulations 76379

Order 12866 and 12988. Moreover, 

pursuant to 5 U.S.C. 553, notice of 

proposed rulemaking and opportunity 

for comment are not required for this 

rule, and it may be made effective less 

than 30 days after publication in the 

Federal Register. In addition, under 5 

U.S.C. 804, this rule is not subject to 

congressional review under the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, Pub. L. 104–121. 

Finally, this action is not a rule as 

defined by 5 U.S.C. 601 et seq., the 

Regulatory Flexibility Act, and thus is 

exempt from the provisions of that Act.

List of Subjects in 7 CFR Part 371

Authority delegations (Government 

agencies), Organization and functions 

(Government agencies).

■ Accordingly, 7 CFR part 371 is 

amended as follows:

PART 371—ORGANIZATIONS, 

FUNCTIONS, AND DELEGATIONS OF 

AUTHORITY

■ 1. The authority citation for part 371 

continues to read as follows:

Authority: 5 U.S.C. 301.

■ 2. In § 371.6, paragraph (b)(2) is revised 

to read as follows:

§ 371.6 Wildlife Services.

* * * * *

(b) * * *

(2) Providing direction and 

coordination for programs authorized by 

the Act of March 2, 1931 (7 U.S.C. 426 

and 426b, as amended) and the Act of 

December 22, 1987 (7 U.S.C. 426c).

* * * * *

Done in Washington, DC, this 14th day of 

December, 2004. 

Elizabeth E. Gaston, 

Acting Administrator, Animal and Plant 

Health Inspection Service.

[FR Doc. 04–27879 Filed 12–20–04; 8:45 am] 

BILLING CODE 3410–34–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service 

7 CFR Part 920

[Docket No. FV04–920–2 FIR] 

Kiwifruit Grown in California; 

Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, 

USDA.

ACTION: Final rule.

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

final rule which decreased the 

assessment rate established for the 

Kiwifruit Administrative Committee 

(committee) for the 2004–05 and 

subsequent fiscal periods from $0.045 

per 22-pound volume-fill container or 

container equivalent to $0.002 per 

pound of kiwifruit. The committee 

locally administers the marketing order 

which regulates the handling of 

kiwifruit grown in California. 

Authorization to assess kiwifruit 

handlers enables the committee to incur 

expenses that are reasonable and 

necessary to administer the program. 

The fiscal period began August 1 and 

ends July 31. The assessment rate will 

remain in effect indefinitely unless 

modified, suspended, or terminated.

DATES: Effective January 20, 2005.

FOR FURTHER INFORMATION CONTACT: Toni 

Sasselli, Program Analyst, or Terry 

Vawter, Marketing Specialist, California 

Marketing Field Office, Fruit and 

Vegetable Programs, AMS, USDA, 2202 

Monterey Street, Suite 102B, Fresno, 

California 93721; telephone: (559) 487–

5901; fax: (559) 487–5906; or George 

Kelhart, Technical Advisor, Marketing 

Order Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue, SW., STOP 

0237, Washington, DC 20250–0237; 

telephone: (202) 720–2491, fax: (202) 

720–8938. 

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.’’

USDA is issuing this rule in 

conformance with Executive Order 

12866. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. Under the marketing order now 

in effect, California kiwifruit handlers 

are subject to assessments. Funds to 

administer the order are derived from 

such assessments. It is intended that the 

assessment rate as issued herein will be 

applicable to all assessable kiwifruit 

beginning on August 1, 2004, and 

continue until amended, suspended, or 

terminated. 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. Such 

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 rule continues in effect the 

action that decreased the assessment 

rate established for the committee for 

the 2004–05 and subsequent fiscal 

periods from $0.045 per 22-pound, 

volume-fill container or container 

equivalent to $0.002 per pound of 

kiwifruit. The California kiwifruit 

marketing order provides authority for 

the committee, with the approval of 

USDA, to formulate an annual budget of 

expenses and collect assessments from 

handlers to administer the program. The 

members of the committee are 

producers of California kiwifruit. They 

are familiar with the committee’s needs 

and the costs for goods and services in 

their local area and are thus in a 

position to formulate an appropriate 

budget and assessment rate. The 

assessment rate is formulated and 

discussed at a public meeting. Thus, all 

directly affected persons have an 

opportunity to participate and provide 

input. 

For the 2002–03 and subsequent fiscal 

periods, the committee recommended, 

and USDA approved, an assessment rate 

that would continue in effect from fiscal 

period to fiscal period unless modified, 

suspended, or terminated by USDA 

upon recommendation and information 

submitted by the committee or other 

information available to USDA. 

The committee met on July 15, 2004, 

and unanimously recommended 2004–

05 fiscal period expenditures of $91,839 

and an assessment rate of $0.002 per 

pound of kiwifruit. In comparison, last 

fiscal period’s budgeted expenditures 

were $88,659. The assessment rate of 

$0.002 per pound of kiwifruit is 

76380 Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Rules and Regulations 

$0.000045 per pound lower than the 

rate previously in effect and is based 

upon a per-pound unit rather than upon 

a 22-pound, volume-fill container or 

container equivalent. 

The committee unanimously 

recommended decreasing the 

assessment rate slightly because the 

2004–05 fiscal period kiwifruit crop is 

expected to be 8,550,000 pounds larger 

than the 2003–04 crop of 41,850,000 

pounds. Revenue from assessments, 

along with other revenue from interest 

income and reserve carryover funds, 

should allow the committee to meet its 

expenses. The reserve at the end of the 

fiscal period should be about $30,686, 

which is within the maximum amount 

permitted under the marketing order. 

The following table compares major 

budget expenditures recommended by 

the committee for the 2003–04 and 

2004–05 fiscal periods:

Budget expense

categories 2003–04 2004–05

Administrative Staff & 

Field Salaries ............ $57,600 $61,000

Travel ............................ 7,200 6,500

Office Costs/Annual 

Audit .......................... 14,075 14,555

Vehicle Expense Account ......................... 9,784 9,784

The assessment rate recommended by 

the committee was derived by the 

following formula: The anticipated 

2004–05 fiscal period expenses 

($91,839) minus the 2003–04 fiscal 

period carry forward ($21,725), plus the 

2005–06 fiscal period anticipated 

reserve ($30,686), divided by the total 

estimated 2004–05 fiscal period 

shipments (50,400,000 pounds of 

kiwifruit). This results in an assessment 

rate of $0.002 per-pound. This rate 

should provide sufficient funds in 

combination with reserve funds to meet 

the anticipated expenses of $91,839 and 

result in a reserve of $30,686 in July 

2005, which is acceptable to the 

committee. This reserve is also within 

the maximum permitted by the order, 

approximately one fiscal period’s 

expenses (§ 920.41). 

The assessment rate will continue in 

effect indefinitely unless modified, 

suspended, or terminated by USDA 

upon recommendation and information 

submitted by the committee or other 

available information. 

Although this assessment rate is 

effective for an indefinite period, the 

committee will continue to meet prior to 

or during each fiscal period to 

recommend a budget of expenses and 

consider recommendations for 

modification of the assessment rate. The 

dates and times of committee meetings 

are available from the committee or 

USDA. Committee meetings are open to 

the public and interested persons may 

express their views at these meetings. 

USDA will evaluate committee 

recommendations and other available 

information to determine whether 

modification of the assessment rate is 

needed. Further rulemaking will be 

undertaken as necessary. The 

committee’s 2004–05 fiscal period 

budget and those for subsequent fiscal 

periods will be reviewed and, as 

appropriate, approved by USDA. 

Final 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 rule 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 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 270 

producers of kiwifruit in the production 

area and approximately 45 handlers 

subject to regulation under the 

marketing order. The Small Business 

Administration (13 CFR 121.201) 

defines small agricultural producers as 

those having annual receipts less than 

$750,000, and defines small agricultural 

service firms as those whose annual 

receipts are less than $5,000,000. 

None of the 45 handlers subject to 

regulation have annual kiwifruit sales of 

$5,000,000. In addition, only six 

producers have annual sales of at least 

$750,000. Thus, the majority of handlers 

and producers of kiwifruit may be 

classified as small entities. 

This rule continues in effect the 

action that decreased the assessment 

rate established for the committee and 

collected from handlers for the 2004–05 

and subsequent fiscal periods from 

$0.045 per 22-pound, volume-fill 

container or container equivalent to 

$0.002 per pound of kiwifruit. The 

committee unanimously recommended 

2004–05 fiscal period expenditures of 

$91,839 and an assessment rate of 

$0.002 per pound of kiwifruit. The 

assessment rate of $0.002 per pound of 

kiwifruit is $0.000045 lower than the 

rate during the 2003–04 fiscal period, 

and is based upon a per-pound 

assessable unit rather than upon a 22-

pound container or container 

equivalent. The quantity of assessable 

kiwifruit for the 2004–05 fiscal period is 

estimated to be 50,400,000 pounds of 

kiwifruit. Thus, the $0.002 per-pound 

rate should provide $100,800 in 

assessment income and be adequate to 

meet this fiscal period’s expenses.

The following table compares major 

budget expenditures recommended by 

the committee for the 2003–04 and 

2004–05 fiscal periods:

Budget expense 

categories 2003–04 2004–05

Administrative Staff 

& Field Salaries $57,600 $61,000

Travel .................... 7,200 6,500

Office Costs/Annual Audit .......... 14,075 14,555

Vehicle Expense 

Account ............. 9,784 9,784

The committee reviewed and 

unanimously recommended 2004–05 

fiscal period expenditures of $91,839, 

which included increases in salaries 

and office/annual audit costs, and a 

decrease in travel expenses. Prior to 

arriving at this budget, the committee 

considered alternative expenditure 

levels and varying crop sizes, but 

ultimately decided that the 

recommended levels were reasonable to 

properly administer the order. 

The assessment rate recommended by 

the committee was derived by the 

following formula: The anticipated 

2004–05 fiscal period expenses 

($91,839) minus the 2003–04 fiscal 

period carry forward ($21,725), plus the 

2005–06 fiscal period anticipated 

reserve ($30,686), divided by the total 

estimated 2004–05 fiscal period 

shipments (50,400,000 pounds of 

kiwifruit). This results in an assessment 

rate of $0.002 per-pound. This rate 

should provide sufficient funds in 

combination with reserve funds to meet 

the anticipated expenses of $91,839 and 

result in a reserve of $30,686 in July 

2005, which is acceptable to the 

committee. This reserve is also within 

the maximum permitted by the order, 

approximately one fiscal period’s 

expenses (§ 920.41). 

A review of historical information and 

preliminary information pertaining to 

the 2004–05 fiscal period indicates that 

the grower price could range between 

$9.50 and $13.00 per pound of kiwifruit. 

Therefore, the estimated assessment 

revenue for the 2004–05 fiscal period as 

a percentage of total grower revenue 

could range between 0.015 and 0.021 

percent. 

This action continues in effect the 

action that decreased the assessment 

Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Rules and Regulations 76381

obligation imposed on handlers. 

Assessments are applied uniformly on 

all handlers, and some of the costs may 

be passed on to producers. However, 

decreasing the assessment rate reduces 

the burden on handlers, and may reduce 

the burden on producers. In addition, 

the committee’s meeting was widely 

publicized throughout the California 

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 July 15, 2004, 

meeting was a public meeting and all 

entities, both large and small, were able 

to express views on this issue. 

This action imposes no additional 

reporting or recordkeeping requirements 

on either small or large California 

kiwifruit handlers. As with all Federal 

marketing order programs, reports and 

forms are periodically reviewed to 

reduce information requirements and 

duplication by industry and public 

sector agencies. 

USDA has not identified any relevant 

Federal rules that duplicate, overlap, or 

conflict with this rule. 

An interim final rule concerning this 

action was published in the Federal 

Register on September 16, 2004 (69 FR 

55733). Copies of that rule were also 

mailed or sent via facsimile to all 

kiwifruit handlers. Finally, the interim 

final rule was made available through 

the Internet by USDA and the Office of 

the Federal Register. A 60-day comment 

period was provided for interested 

persons to respond to the interim final 

rule. The comment period ended on 

November 15, 2004, and no comments 

were received. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: http://www.ams.usda.gov/

fv/moab.html. Any questions about the 

compliance guide should be sent to Jay 

Guerber at the previously mentioned 

address in the FOR FURTHER INFORMATION

CONTACT section. 

After consideration of all relevant 

material presented, including the 

information and recommendation 

submitted by the committee and other 

available information, it is hereby found 

that this rule, as hereinafter set forth, 

will tend to effectuate the declared 

policy of the Act.

List of Subjects in 7 CFR Part 920

Kiwifruit, Marketing agreements, 

Reporting and recordkeeping 

requirements.

PART 920—KIWIFRUIT GROWN IN 

CALIFORNIA

■ Accordingly, the interim final rule 

amending 7 CFR part 920 which was 

published at 69 FR 55733 on September 

16, 2004, is adopted as a final rule 

without change.

Dated: December 15, 2004. 

A.J. Yates, 

Administrator, Agricultural Marketing 

Service.

[FR Doc. 04–27908 Filed 12–20–04; 8:45 am] 

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service 

7 CFR Parts 958 and 980

[Docket No. FV04–958–1 FIR] 

Onions Grown in Certain Designated 

Counties in Idaho and Malheur County, 

Oregon; Relaxation of Handling and 

Import Regulations

AGENCY: Agricultural Marketing Service, 

USDA.

ACTION: Final rule.

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

final rule which relaxes the size 

requirement for pearl onions, relaxes the 

minimum grade and size requirements 

for cipolline onion varieties, and 

updates the regulatory text concerning 

certain reporting requirements for 

onions handled under the Idaho-Eastern 

Oregon onion marketing order. The 

marketing order regulates the handling 

of onions grown in Idaho and Eastern 

Oregon and is administered locally by 

the Idaho-Eastern Oregon Onion 

Committee (Committee). This rule also 

continues in effect the action that 

relaxes the requirements for pearl and 

cipolline onions under the import 

regulations as required by section 8e of 

the Agricultural Marketing Agreement 

Act of 1937. Specifically, this rule 

continues in effect the action that 

changes the definition of pearl onions to 

mean onions 2 inches in diameter or 

less, establishes a relaxed minimum 

grade of U.S. No. 2 and relaxed 

minimum diameter of 1–1/2 inches for 

cipolline onions, and adds clarification 

and specificity to the reporting 

requirements for onions handled for 

peeling, chopping, or slicing. The 

changes will facilitate the marketing of 

onions handled under the marketing 

order, improve producer returns, and 

bring the section 8e import regulation 

into conformity with the marketing 

order.

DATES: Effective Date: January 20, 2005.

FOR FURTHER INFORMATION CONTACT:

Robert J. Curry, Northwest Marketing 

Field Office, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1220 

SW. Third Avenue, Suite 385, Portland, 

Oregon 97204; telephone: (503) 326–

2724, Fax: (503) 326–7440; or George 

Kelhart, Technical Advisor, 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. 

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 Agreement 

No. 130 and Marketing Order No. 958, 

both as amended (7 CFR part 958), 

regulating the handling of onions grown 

in certain designated counties in Idaho, 

and Malheur County, Oregon, 

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 onions, 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. 

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