[Federal Register Volume 75, Number 35 (Tuesday, February 23, 2010)]
[Proposed Rules]
[Pages 7981-7985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3477]


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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.

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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: 
<a href="/cdn-cgi/l/email-protection#0e426f7b7c6b6220436f774e6f637d207b7d6a6f20696178"><span class="__cf_email__" data-cfemail="d79bb6a2a5b2bbf99ab6ae97b6baa4f9a2a4b3b6f9b0b8a1">[email protected]</span></a> or <a href="/cdn-cgi/l/email-protection#9ad1fbeef2e3b4dcf3f4f4dafbf7e9b4efe9fefbb4fdf5ec"><span class="__cf_email__" data-cfemail="e8a3899c8091c6ae818686a889859bc69d9b8c89c68f879e">[email protected]</span></a>.
    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: <a href="/cdn-cgi/l/email-protection#87c6e9f3e8eee9e2f3f3e2a9c4e6f5f3e2f5c7e6eaf4a9f2f4e3e6a9e0e8f1"><span class="__cf_email__" data-cfemail="05446b716a6c6b607171602b466477716077456468762b707661642b626a73">[email protected]</span></a>.

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

[[Page 7982]]

effectuated amendments. AMS proposed making a clarifying conforming 
change to the order language in Sec.  920.20 that cross references 
Sec.  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

[[Page 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 
non-assembled 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

[[Page 7984]]

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: <a href="/cdn-cgi/l/email-protection#88c3fdfafca6c3e1e5e5ede4c8e9e5fba6fdfbece9a6efe7fe"><span class="__cf_email__" data-cfemail="b0fbc5c2c49efbd9ddddd5dcf0d1ddc39ec5c3d4d19ed7dfc6">[email protected]</span></a> or 
<a href="/cdn-cgi/l/email-protection#7a3e1f1818131f542d081b033a1b1709540f091e1b541d150c"><span class="__cf_email__" data-cfemail="6a2e0f0808030f443d180b132a0b0719441f190e0b440d051c">[email protected]</span></a>, 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
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    \1\ This order shall not become effective unless and until the 
requirements of Sec.  900.14 of the rules of practice and procedure 
governing proceedings to formulate marketing agreements and 
marketing orders have been met.
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    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 Sec.  920.12 to read as follows:


Sec.  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 Sec.  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 Sec.  920.20 to read as follows:


Sec.  920.20  Establishment and Membership

    There is hereby established a Kiwifruit Administrative Committee

[[Page 7985]]

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 Sec.  920.31(l), 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. 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 Sec.  920.21 to read as follows:


Sec.  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 Sec.  920.22, revise the first sentence of paragraph (a) to 
read as follows:


Sec.  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 Sec.  920.26 to read as follows:


Sec.  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 Sec.  920.20.
    7. Revise Sec.  920.27 to read as follows:


Sec.  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 Sec.  920.32 to read as follows:


Sec.  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 Sec. Sec.  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 Sec.  920.45 to read as follows:


Sec.  920.45  Contributions.

    The committee may accept voluntary contributions, but these shall 
only be used to pay expenses incurred pursuant to Sec.  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 Sec.  920.47 to read as follows:


Sec.  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 Sec. Sec.  920.41 and 920.45.

[FR Doc. 2010-3477 Filed 2-22-10; 8:45 am]
BILLING CODE 3410-02-P


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