Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Proposed Rules 7981 

(b) From subsection (d) (Access to Records) 

because access to the records contained in 

this system of records could inform the 

subject of an investigation of an actual or 

potential criminal, civil, or regulatory 

violation to the existence of that investigation 

and reveal investigative interest on the part 

of DHS or another agency. Access to the 

records could permit the individual who is 

the subject of a record to impede the 

investigation, to tamper with witnesses or 

evidence, and to avoid detection or 

apprehension. Amendment of the records 

could interfere with ongoing investigations 

and law enforcement activities and would 

impose an unreasonable administrative 

burden by requiring investigations to be 

continually reinvestigated. In addition, 

permitting access and amendment to such 

information could disclose security-sensitive 

information that could be detrimental to 

homeland security. 

(c) From subsection (e)(1) (Relevancy and 

Necessity of Information) because in the 

course of investigations into potential 

violations of federal law, the accuracy of 

information obtained or introduced 

occasionally may be unclear, or the 

information may not be strictly relevant or 

necessary to a specific investigation. In the 

interests of effective law enforcement, it is 

appropriate to retain all information that may 

aid in establishing patterns of unlawful 

activity. 

(d) From subsection (e)(2) (Collection of 

Information from Individuals) because 

requiring that information be collected from 

the subject of an investigation would alert the 

subject to the nature or existence of the 

investigation, thereby interfering with that 

investigation and related law enforcement 

activities. 

(e) From subsection (e)(3) (Notice to 

Subjects) because providing such detailed 

information could impede law enforcement 

by compromising the existence of a 

confidential investigation or reveal the 

identity of witnesses or confidential 

informants. 

(f) From subsections (e)(4)(G) and (H) (I) 

and (f) (Agency Requirements) because 

portions of this system are exempt from the 

individual access provisions of subsection (d) 

and thus would not require DHS to apply 

rules for records or portions of records which 

are exempted from access or amendment 

upon request. Access to, and amendment of, 

system records that are not exempt or for 

which exemption is waived may be obtained 

under procedures described in the related 

system of records notice (SORN) or Subpart 

B of this Part. 

(g) From subsection (e)(5) (Collection of 

Information) because with the collection of 

information for law enforcement purposes, it 

is impossible to determine in advance what 

information is accurate, relevant, timely, and 

complete. Compliance with subsection (e)(5) 

would preclude DHS agents from using their 

investigative training and exercise of good 

judgment to both conduct and report on 

investigations. 

(h) From subsection (e)(8) (Notice on 

Individuals) because compliance would 

interfere with DHS’s ability to obtain, serve, 

and issue subpoenas, warrants, and other law 

enforcement mechanisms that may be filed 

under seal and could result in disclosure of 

investigative techniques, procedures, and 

evidence. 

(i) From subsection (g) (Civil Remedies) to 

the extent that the system is exempt from 

other specific subsections of the Privacy Act. 

Dated: January 21, 2010. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. 2010–3361 Filed 2–22–10; 8:45 am] 

BILLING CODE 9110–9M–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 920 

[Doc. No. AO–FV–08–0174; AMS–FV–08– 

0085; FV08–920–3] 

Kiwifruit Grown in California; 

Secretary’s Decision and Referendum 

Order on Proposed Amendments to 

Marketing Order No. 920 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule and referendum 

order. 

SUMMARY: This decision proposes 

amendments to Marketing Order No. 

920 (order), which regulates the 

handling of kiwifruit grown in 

California, and provides growers with 

the opportunity to vote in a referendum 

to determine if they favor the changes. 

The amendments are based on proposals 

by the Kiwifruit Administrative 

Committee (committee), which is 

responsible for local administration of 

the order. These proposed amendments 

would redefine the districts into which 

the production area is divided and 

reallocate committee membership 

among the districts, revise committee 

nomination and selection procedures, 

authorize the committee to conduct 

research and promotion programs, and 

revise committee meeting and voting 

procedures. The proposals are intended 

to improve the operation and 

administration of the order and provide 

the industry with additional tools for 

the marketing of kiwifruit. 

DATES: The referendum will be 

conducted from March 12 through 

March 26, 2010. The representative 

period for the purpose of the 

referendum is August 1, 2008, through 

July 31, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Laurel May or Kathleen Finn, 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: 

Laurel.May@ams.usda.gov or 

Kathy.Finn@ams.usda.gov. 

Small businesses may request 

information on this proceeding by 

contacting Antoinette Carter, 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, E-mail: 

Antoinette.Carter@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: Prior 

documents in this proceeding: Notice of 

Hearing issued on January 24, 2008, and 

published in the November 19, 2008, 

issue of the Federal Register (73 FR 

69588), and a Recommended Decision 

issued on November 5, 2009, and 

published in the November 12, 2009, 

issue of the Federal Register (74 FR 

58216). 

This action is governed by the 

provisions of sections 556 and 557 of 

title 5 of the United States Code and is 

therefore excluded from the 

requirements of Executive Order 12866. 

Preliminary Statement 

The proposed amendments are based 

on the record of a public hearing held 

December 9, 2008, in Modesto, 

California, to consider such 

amendments to the order. Notice of this 

hearing was published in the Federal 

Register on November 19, 2008 (73 FR 

69588). The hearing was held pursuant 

to the provisions of the Agricultural 

Marketing Agreement Act of 1937, as 

amended (7 U.S.C. 601–674), hereinafter 

referred to as the ‘‘Act,’’ and the 

applicable rules of practice and 

procedure governing the formulation of 

marketing agreements and orders (7 CFR 

part 900). The notice of hearing 

contained four proposals submitted by 

the committee. 

The amendments included in this 

decision would: 

1. Redefine the districts into which 

the production area is divided and 

reallocate committee membership 

positions among the districts; 

2. Revise committee nomination and 

selection procedures; 

3. Add authority for research and 

promotion programs; and 

4. Revise the committee’s meeting and 

voting procedures. 

The Agricultural Marketing Service 

(AMS) also proposed to make any such 

changes to the order as may be 

necessary, if any of the proposed 

changes are adopted, so that all of the 

order’s provisions conform to the 

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7982 Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Proposed Rules 

effectuated amendments. AMS proposed 

making a clarifying conforming change 

to the order language in § 920.20 that 

cross references § 920.31(l). 

Upon the basis of evidence 

introduced at the hearing and the record 

thereof, the Administrator of AMS on 

November 5, 2009, filed with the 

Hearing Clerk, U.S. Department of 

Agriculture (USDA), a Recommended 

Decision and Opportunity to File 

Written Exceptions thereto by December 

14, 2009. None were filed. 

Small Business Considerations 

Pursuant to the requirements set forth 

in the Regulatory Flexibility Act (5 

U.S.C. 601–612) (RFA), 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 so that 

small businesses will not be unduly or 

disproportionately burdened. Marketing 

orders and amendments thereto are 

unique in that they are normally 

brought about through group action of 

essentially small entities for their own 

benefit. 

Small agricultural service firms, 

which include handlers regulated under 

the order, have been defined by the 

Small Business Administration (SBA) 

(13 CFR 121.201) as those having annual 

receipts of less than $7,000,000. Small 

agricultural growers have been defined 

as those with annual receipts of less 

than $750,000. 

There are approximately 30 handlers 

of kiwifruit subject to regulation under 

the order and approximately 220 

growers of kiwifruit in the regulated 

area. Information provided at the 

hearing indicates that the majority of the 

handlers would be considered small 

agricultural service firms. Hearing 

testimony also suggests that the majority 

of growers would be considered small 

entities according to the SBA’s 

definition. 

The order regulates the handling of 

kiwifruit grown in the State of 

California. Total bearing kiwifruit 

acreage has declined from a peak of 

approximately 7,300 acres in 1992–93 to 

about 4,000 acres in 2007–08. 

Approximately 24,500 tons of kiwifruit 

were produced in California during the 

2007–08 season—a decline of 

approximately 27,800 tons compared to 

the 1992–93 season. According to 

evidence provided at the hearing, 

approximately 30 percent of the 2007– 

08 California kiwifruit crop was shipped 

to export markets, including Canada, 

Mexico, Central American, and Asian 

destinations. 

Under the order, outgoing grade, size, 

pack, and container regulations are 

established for kiwifruit shipments, and 

shipping and inventory information is 

collected. Program activities 

administered by the committee are 

designed to support large and small 

kiwifruit growers and handlers. The 12- 

member committee is comprised of 

eleven grower representatives from the 

production area, as well as a public 

member. Committee meetings in which 

regulatory recommendations and other 

decisions are made are open to the 

public. All members are able to 

participate in committee deliberations, 

and each committee member has an 

equal vote. Others in attendance at 

meetings are also allowed to express 

their views. 

Following several discussions within 

the kiwifruit industry, the committee 

considered adding authority to conduct 

research and promotion programs to 

provide maximum flexibility to the 

order. An amendment subcommittee 

was appointed to develop 

recommendations for this and other 

possible order revisions. The 

subcommittee developed a list of 

proposed amendments to the order, 

which was then presented to the 

committee. 

The committee met to review and 

discuss the subcommittee’s proposals at 

its meetings on January 30, 2008, April 

22, 2008, and July 9, 2008. At those 

meetings, the committee voted 

unanimously to support the four 

proposed amendments that were 

forwarded to AMS and subsequently 

considered at the hearing. 

The proposed amendments are 

intended to provide the committee and 

the industry with additional flexibility 

in administering the order and 

producing and marketing California 

kiwifruit. Record evidence indicates 

that the proposals are intended to 

benefit all growers and handlers under 

the order, regardless of size. 

All grower and handler witnesses 

supported the proposed amendments at 

the hearing. Several witnesses 

commented on the implications of 

implementing research and promotion 

programs under the order. In that 

context, witnesses stated that they 

expected the benefits to growers and 

handlers to outweigh any potential 

costs. 

A description of the proposed 

amendments and their anticipated 

economic impact on small and large 

entities is discussed below. 

Proposal 1—Districts and 

Representation 

Proposal 1 would amend the order by 

redefining the districts into which the 

production area is divided and 

providing for the allocation of 

committee membership positions 

between the districts. Such allocation 

would be based upon five-year 

production averages, or upon another 

basis approved by the Secretary. This 

proposal would also provide for 

concurrent terms of office for all 

committee members, who would be 

selected biannually. 

At the time the order was 

promulgated, kiwifruit acreage was 

more widespread throughout California 

and there were many more growers 

involved in kiwifruit production. The 

order originally provided for eight 

grower districts within the production 

area, with one membership seat 

apportioned to each district, and an 

additional seat reallocated annually to 

each of the three districts with the 

highest production in the preceding 

year. The structure was designed to 

afford equitable representation for all 

districts on the committee. 

The concentration of planted acreage 

into two main regions and the decline 

in the number of growers over time has 

prompted the committee to evaluate the 

appropriateness of the current 

committee structure. The committee 

believes that consolidating the districts 

and providing for reallocation of grower 

seats as proposed would better reflect 

the current composition of the industry. 

The revisions would ensure that the 

interests of all large and small entities 

are represented appropriately during 

committee deliberations. Synchronizing 

all the terms of office to begin and end 

at the same time would simplify 

administration of the order and reduce 

disruptions to committee business. 

Adoption of the proposed amendment 

would have no economic impact on 

growers or handlers of any size. 

Proposal 2—Nominations and 

Vacancies 

Proposal 2 would amend the order by 

specifying that grower nomination 

meetings be held by June 1 of each 

nomination year and that mid-term 

vacancies may be filled by selections 

made by the Secretary after 

consideration of recommendations that 

may be submitted by the committee, 

unless such selection is deemed 

unnecessary by the Secretary. 

Currently, the order requires that 

nomination meetings be held by July 15 

of each year, but that deadline does not 

allow for timely processing of the 

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Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Proposed Rules 7983 

nominations and selections of new 

members prior to the August 1 

beginning of the terms of office. The 

committee has been conducting 

nomination meetings earlier than 

prescribed by the order and proposed 

this revision to codify what has become 

normal practice. 

Any vacancies that occur under the 

current order provisions must be filled 

by repeating the nomination and 

selection process outlined for new 

members. Allowing the Secretary to fill 

vacancies as proposed would streamline 

the process of filling vacancies and 

reduce disruption to committee 

business. 

Adoption of this proposal would have 

no economic impact upon growers or 

handlers of any size. 

Proposal 3—Research and Promotion 

Proposal 3 would amend the order by 

adding authority for the committee to 

conduct research and promotion 

projects and to accept voluntary 

contributions to assist with funding 

those projects. This proposal would also 

amend the order by requiring the 

concurring vote of eight members for 

any action with respect to research and 

promotion. Currently, the committee is 

not authorized to conduct research or 

promotion programs, and it is not 

authorized to accept voluntary 

contributions for any purpose. 

Historically, kiwifruit research has 

been conducted by other industry 

organizations and funded through 

private as well as public revenues. 

Currently, the California Kiwifruit 

Commission, a State marketing program, 

is authorized to conduct research and 

promotion projects for the industry. 

According to the hearing record, the 

committee has not identified any 

specific projects that it wants to conduct 

at this time, nor does it intend to 

duplicate the efforts of the State 

program. However, it would like to add 

authority to conduct such projects in the 

event that a need for new projects arises. 

Further, the committee proposed 

adding authority to accept voluntary 

funds to conduct research and 

promotion projects to augment the 

assessment revenues they might budget 

for such purposes. The order specifies a 

cap on the rate handlers may be 

assessed to support the committee’s 

programs and activities. According to 

witnesses, the current assessment rate is 

well below the established cap, but 

supporting research and promotion 

projects in the future could require more 

money than what the shrinking industry 

is likely to collect through assessments. 

Voluntary contributions could also 

augment matching funds required from 

the committee for participation in 

USDA-sponsored market development 

programs. 

Finally, the committee recommended 

adding a provision that all actions with 

respect to research and promotion 

would require eight concurring 

committee votes. Witnesses explained 

that this supermajority approval would 

ensure that research and promotion 

projects undertaken by the committee 

would benefit the industry as a whole. 

Adding authority to conduct research 

and promotion projects would not, of 

itself, have any economic impact on 

growers or handlers of any size. If 

research and promotion projects were 

implemented under this authority in the 

future, the assessment rate for handlers 

would likely increase to cover the cost 

of those expenditures. The value of any 

proposed projects, as well as 

recommendations for increased 

assessment rates, would be evaluated by 

the committee and approval would 

require the concurring vote of eight 

members. Any increases in cost would 

be borne proportionately by handlers 

according to the volume of kiwifruit 

they ship. Those costs could be offset by 

voluntary contributions. Witnesses 

testified that any increases in cost due 

to implementation of this proposal 

would be offset by benefits expected to 

accrue to growers and handlers as 

improved production and post-harvest 

handling methods and new market 

opportunities are developed. Any 

increased costs would be proportional 

to a handler’s size and would not 

unduly or disproportionately impact 

small entities. 

Proposal 4—Meeting and Voting 

Procedures 

Proposal 4 would amend the order by 

allowing the committee to designate 

substitute alternates to represent absent 

members from the same district at 

meetings if necessary to secure a 

quorum. Currently, under most 

circumstances, only a member’s 

respective alternate may represent the 

member if the member is unable to 

attend a meeting. For districts with only 

one member, there is no provision for 

when both the member and his or her 

alternate are unavailable for a meeting. 

In the past, meetings have been 

cancelled at the last minute because 

attendance was insufficient to meet 

quorum requirements. 

If implemented, the proposed 

amendment would allow alternates not 

otherwise representing absent members 

to represent other members at 

committee meetings in order to secure a 

quorum. This would help ensure that 

quorum requirements could be met and 

that committee business could be 

addressed in a timely manner. 

This proposal would further authorize 

the committee to meet by telephone or 

other means of communication. Video 

conference meetings would be 

considered assembled meetings and 

votes taken at such meetings would be 

considered in-person. Votes by 

telephone or other types of nonassembled meetings would be by roll 

call. 

Witnesses testified that this 

amendment would provide the 

committee with greater flexibility in 

scheduling meetings and would be 

consistent with current practices in 

other kiwi industry settings. The use of 

telephone and other means of 

communication would allow greater 

access to committee meetings for 

members as well as other interested 

persons. Additionally, administration of 

the order would be improved as urgent 

committee business could be addressed 

in a timely manner. 

This amendment is expected to 

benefit growers and handlers of all sizes 

by improving committee efficiencies 

and encouraging greater participation in 

industry deliberations. The amendment 

is not expected to result in any 

significant increased costs to producers 

or handlers. 

Interested persons were invited to 

present evidence at the hearing on the 

probable regulatory and informational 

impact of the proposed amendments to 

the order on small entities. The record 

evidence indicates that the proposed 

amendments are intended to benefit all 

producers and handlers under the order, 

regardless of size. Furthermore, the 

record shows that the costs associated 

with implementing regulations would 

be outweighed by the benefits expected 

to accrue to the California kiwifruit 

industry. 

USDA has not identified any relevant 

Federal rules that duplicate, overlap, or 

conflict with this proposed rule. These 

amendments are intended to improve 

the operation and administration of the 

order and to assist in the production 

and marketing of California kiwifruit. 

Paperwork Reduction Act 

Current information collection 

requirements for part 920 are approved 

by the Office of Management and 

Budget (OMB), under OMB Number 

0581–0189—‘‘Generic OMB Fruit 

Crops.’’ No changes in these 

requirements are anticipated as a result 

of this proceeding. Should any such 

changes become necessary, they would 

be submitted to OMB for approval. 

As with all Federal marketing order 

programs, reports and forms are 

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7984 Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / Proposed Rules 

1This order shall not become effective unless and 

until the requirements of § 900.14 of the rules of 

practice and procedure governing proceedings to 

formulate marketing agreements and marketing 

orders have been met. 

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. 

Civil Justice Reform 

The amendments to Marketing Order 

No. 920 proposed herein have been 

reviewed under Executive Order 12988, 

Civil Justice Reform. They are 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 

no later than 20 days after the date of 

the entry of the ruling. 

Findings and Conclusions 

The findings and conclusions, rulings, 

and general findings and determinations 

included in the Recommended Decision 

set forth in the November 12, 2009, 

issue of the Federal Register are hereby 

approved and adopted. 

Marketing Order 

Annexed hereto and made a part 

hereof is the document entitled ‘‘Order 

Amending the Order Regulating the 

Handling of Kiwifruit Grown in 

California.’’ This document has been 

decided upon as the detailed and 

appropriate means of effectuating the 

foregoing findings and conclusions. 

It is hereby ordered, that this entire 

decision be published in the Federal 

Register. 

Referendum Order 

It is hereby directed that a referendum 

be conducted in accordance with the 

procedure for the conduct of referenda 

(7 CFR 900.400–407) to determine 

whether the annexed order amending 

the order regulating the handling of 

kiwifruit grown in California is 

approved or favored by growers, as 

defined under the terms of the order, 

who during the representative period 

were engaged in the production of 

kiwifruit in the production area. 

The representative period for the 

conduct of such referendum is hereby 

determined to be August 1, 2008, 

through July 31, 2009. 

The agents of the Secretary to conduct 

such referendum are hereby designated 

to be Kurt Kimmel and Debbie Wray, 

California Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (559) 487– 

5901, Fax: (559) 487–5906, or E-mail: 

Kurt.Kimmel@ams.usda.gov or 

Debbie.Wray@ams.usda.gov, 

respectively. 

List of Subjects in 7 CFR Part 920 

Kiwifruit, Marketing agreements, 

Reporting and recordkeeping 

requirements. 

Dated: February 17, 2010. 

David R. Shipman, 

Acting Administrator, Agricultural Marketing 

Service. 

Order Amending the Order Regulating 

the Handling of Kiwifruit Grown in 

California 1

Findings and Determinations 

The findings hereinafter set forth are 

supplementary to the findings and 

determinations which were previously 

made in connection with the issuance of 

the marketing agreement and order; and 

all said previous findings and 

determinations are hereby ratified and 

affirmed, except insofar as such findings 

and determinations may be in conflict 

with the findings and determinations set 

forth herein. 

(a) Findings and Determinations Upon 

the Basis of the Hearing Record 

Pursuant to the provisions of the 

Agricultural Marketing Agreement Act 

of 1937, as amended (7 U.S.C. 601–612), 

and the applicable rules of practice and 

procedure effective thereunder (7 CFR 

part 900), a public hearing was held 

upon the proposed amendments to 

Marketing Order No. 920 (7 CFR part 

920), regulating the handling of 

kiwifruit grown in California. Upon the 

basis of the evidence introduced at such 

hearing and the record thereof, it is 

found that: 

(1) The marketing order, as amended, 

and as hereby proposed to be further 

amended, and all of the terms and 

conditions thereof, would tend to 

effectuate the declared policy of the Act; 

(2) The marketing order, as amended, 

and as hereby proposed to be further 

amended, regulates the handling of 

kiwifruit grown in the production area 

(California) in the same manner as, and 

is applicable only to, persons in the 

respective classes of commercial and 

industrial activity specified in the 

marketing order upon which a hearing 

has been held; 

(3) The marketing order, as amended, 

and as hereby proposed to be further 

amended, is limited in its application to 

the smallest regional production area 

which is practicable, consistent with 

carrying out the declared policy of the 

Act, and the issuance of several orders 

applicable to subdivisions of the 

production area would not effectively 

carry out the declared policy of the Act; 

(4) The marketing order, as amended, 

and as hereby proposed to be further 

amended, prescribes, insofar as 

practicable, such different terms 

applicable to different parts of the 

production area as are necessary to give 

due recognition to the differences in the 

production and marketing of kiwifruit 

grown in the production area; and 

(5) All handling of kiwifruit grown in 

the production area as defined in the 

marketing order, is in the current of 

interstate or foreign commerce or 

directly burdens, obstructs, or affects 

such commerce. 

For the reasons set forth in the 

preamble, 7 CFR part 920 is proposed to 

be 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. Revise § 920.12 to read as follows: 

§ 920.12 District. 

District means the applicable one of 

the following described subdivisions of 

the production area or such other 

subdivision as may be prescribed 

pursuant to § 920.31: 

(a) District 1 shall include Butte, 

Sutter, and Yuba Counties. 

(b) District 2 shall include Tulare 

County. 

(c) District 3 shall include all counties 

within the production area not included 

in Districts 1 and 2. 

3. Revise § 920.20 to read as follows: 

§ 920.20 Establishment and Membership 

There is hereby established a 

Kiwifruit Administrative Committee 

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consisting of 12 members, each of whom 

shall have an alternate who shall have 

the same qualifications as the member 

for whom he or she is an alternate. The 

12-member committee shall be made up 

of the following: One public member 

(and alternate), and eleven members 

(and alternates). With the exception of 

the public member and alternate, all 

members and their respective alternates 

shall be growers or employees of 

growers. In accordance with § 920.31(l), 

district representation on the committee 

shall be based upon the previous fiveyear average production in the district 

and shall be established so as to provide 

an equitable relationship between 

membership and districts. The 

committee may, with the approval of the 

Secretary, provide such other allocation 

of membership as may be necessary to 

assure equitable representation. 

4. Revise § 920.21 to read as follows: 

§ 920.21 Term of office. 

The term of office of each member 

and alternate member of the committee 

shall be for two years from the date of 

their selection and until their successors 

are selected. The terms of office shall 

begin on August 1 and end on the last 

day of July, or such other dates as the 

committee may recommend and the 

Secretary approve. Provided, That the 

terms of office of all members and 

alternates currently serving will end on 

the last day of the fiscal period in which 

this amended provision becomes 

effective, with nominations for new 

terms of office to be conducted as soon 

as practicable after the effective date of 

the amendment. Members may serve up 

to three consecutive 2-year terms not to 

exceed 6 consecutive years as members. 

Alternate members may serve up to 

three consecutive 2-year terms not to 

exceed 6 consecutive years as alternate 

members. Provided, That any term of 

office less than two years as a result of 

the amendment will not count toward 

tenure. 

5. In § 920.22, revise the first sentence 

of paragraph (a) to read as follows: 

§ 920.22 Nomination. 

(a) Except as provided in paragraph 

(b) of this section, the committee shall 

hold, or cause to be held, not later than 

June 1 of each year in which 

nominations are made, or such other 

date as may be specified by the 

Secretary, a meeting or meetings of 

growers in each district for the purpose 

of designating nominees to serve as 

grower members and alternates on the 

committee. * * * 

* * * * * 

6. Revise § 920.26 to read as follows: 

§ 920.26 Vacancies. 

To fill any vacancy occasioned by the 

failure of any person selected as a 

member or as an alternate member of 

the committee to qualify, or in the event 

of the death, removal, resignation, or 

disqualification of any member or 

alternate member of the committee, a 

successor for the unexpired term of such 

member or alternate member of the 

committee shall be selected by the 

Secretary after consideration of 

recommendations which may be 

submitted by the committee, unless 

such selection is deemed unnecessary 

by the Secretary. The selection shall be 

made on the basis of representation 

provided for in § 920.20. 

7. Revise § 920.27 to read as follows: 

§ 920.27 Alternate members. 

An alternate member of the 

committee, during the absence of the 

member for whom that individual is an 

alternate, shall act in the place and 

stead of such member and perform such 

other duties as assigned. In the event 

both a member and his or her alternate 

are unable to attend a committee 

meeting, the committee may designate 

any other alternate member from the 

same district to serve in such member’s 

place and stead if necessary to secure a 

quorum. In the event of the death, 

removal, resignation, or disqualification 

of a member, the alternate of such 

member shall act for him or her until a 

successor for such member is selected 

and has qualified. 

8. Revise § 920.32 to read as follows: 

§ 920.32 Procedure. 

(a) Eight members of the committee, 

or alternates acting for members, shall 

constitute a quorum, and any action of 

the committee shall require the 

concurring vote of the majority of those 

present: Provided, That actions of the 

committee with respect to expenses and 

assessments, research and promotion 

activities, or recommendations for 

regulations pursuant to §§ 920.50 

through 920.55 of this part shall require 

at least eight concurring votes. 

(b) Committee meetings may be 

assembled or held by telephone, video 

conference, or other means of 

communication. The committee may 

vote by telephone, facsimile, or other 

means of communication. Votes by 

members or alternates present at 

assembled meetings shall be cast in 

person. Votes by members or alternates 

participating by telephone or other 

means of communication shall be by 

roll call; Provided, That a video 

conference shall be considered an 

assembled meeting, and votes by those 

participating through video conference 

shall be considered as cast in person. 

9. Add a new § 920.45 to read as 

follows: 

§ 920.45 Contributions. 

The committee may accept voluntary 

contributions, but these shall only be 

used to pay expenses incurred pursuant 

to § 920.47. Furthermore, such 

contributions shall be free from any 

encumbrances by the donor, and the 

committee shall retain complete control 

of their use. 

10. Add a new § 920.47 to read as 

follows: 

§ 920.47 Production research, marketing 

research and development. 

The committee, with the approval of 

the Secretary, may establish or provide 

for the establishment of production and 

post-harvest research, and marketing 

research and development projects 

designed to assist, improve, or promote 

the marketing, distribution, and 

consumption or efficient production of 

kiwifruit. The expense of such projects 

shall be paid from funds collected 

pursuant to §§ 920.41 and 920.45. 

[FR Doc. 2010–3477 Filed 2–22–10; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1218 

[Document Number AMS–FV–09–0021; FV– 

09–704] 

Blueberry Promotion, Research, and 

Information Order; Withdrawal of a 

Proposed Rule 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Withdrawal of proposed rule. 

SUMMARY: This action withdraws a 

proposed rule published in the Federal 

Register on July 27, 2009 (74 FR 36955), 

to amend the Blueberry Promotion, 

Research, and Information Order (Order) 

by increasing the assessment rate on 

producers and importers who produce 

or import more than 2,000 pounds of 

highbush blueberries annually from $12 

to $24 per ton. The Order is 

administered by the U.S. Highbush 

Blueberry Council (Council). 

Assessments are used by the Council to 

fund a nationally coordinated program 

of research, development, advertising, 

and promotion of highbush blueberries 

in the marketplace. The Council 

recommended increasing the assessment 

rate to expand its promotional and 

mstockstill on DSKH9S0YB1PROD with PROPOSALS