46306 Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Rules and Regulations 

(3) In the absence of a signed 

marketing agreement, the issuance of 

this amendatory order is the only 

practical means pursuant to the 

declared policy of the Act of advancing 

the interests of producers of oranges, 

grapefruit, tangerines, and tangelos in 

the production area. 

Order Relative to Handling of Oranges, 

Grapefruit, Tangerines, and Tangelos 

Grown in Florida 

It is therefore ordered, That on and 

after the effective date hereof, all 

handling of oranges, grapefruit, 

tangerines, and tangelos grown in 

Florida shall be in conformity to, and in 

compliance with, the terms and 

conditions of the said order as hereby 

amended as follows: 

The provisions of the proposed order 

further amending the order contained in 

the Secretary’s Decision issued by the 

Administrator on April 6, 2009, and 

published in the Federal Register on 

April 13, 2009 (74 FR 16798), shall be 

and are the terms and provisions of this 

order amending the order and set forth 

in full herein. 

List of Subjects in 7 CFR Part 905 

Grapefruit, Marketing agreements, 

Oranges, Reporting and recordkeeping 

requirements, Tangelos, Tangerines. 

■ For the reasons set forth in the 

preamble, Title 7, Chapter IX of the 

Code of Federal Regulations is amended 

by amending part 905 to read as follows: 

PART 905—ORANGES, GRAPEFRUIT, 

TANGERINES, AND TANGELOS 

GROWN IN FLORIDA 

■ 1. The authority citation for 7 CFR 

part 905 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Amend § 905.22 by revising 

paragraphs (a)(2) and (b)(2) to read as 

follows: 

§ 905.22 Nominations. 

(a) * * * 

(2) Each nominee shall be a producer 

in the district from which he or she is 

nominated. In voting for nominees, each 

producer shall be entitled to cast one 

vote for each nominee in each of the 

districts in which he or she is a 

producer. At least two of the nominees 

and their alternates so nominated shall 

be affiliated with a bona fide 

cooperative marketing organization. 

(b) * * * 

(2) Nomination of at least two 

members and their alternates shall be 

made by bona fide cooperative 

marketing organizations which are 

handlers. Nominations for not more 

than six members and their alternates 

shall be made by handlers who are not 

so affiliated. In voting for nominees, 

each handler or his or her authorized 

representative shall be entitled to cast 

one vote, which shall be weighted by 

the volume of fruit by such handler 

during the then current fiscal period. 

■ 3. Revise § 905.23 to read as follows: 

§ 905.23 Selection. 

(a) From the nominations made 

pursuant to § 905.22(a) or from other 

qualified persons, the Secretary shall 

select one member and one alternate 

member to represent District 2 and two 

members and two alternate members 

each to represent Districts 1, 3, 4, and 

5 or such other number of members and 

alternate members from each district as 

may be prescribed pursuant to § 905.14. 

At least two such members and their 

alternates shall be affiliated with bona 

fide cooperative marketing 

organizations. 

(b) From the nominations made 

pursuant to § 905.22(b) or from other 

qualified persons, the Secretary shall 

select at least two members and their 

alternates to represent bona fide 

cooperative marketing organizations 

which are handlers, and the remaining 

members and their alternates to 

represent handlers who are not so 

affiliated. 

■ 4. In § 905.29, redesignate paragraph 

(b) as paragraph (c), and add a new 

paragraph (b) to read as follows: 

§ 905.29 Inability of members to serve. 

* * * * * 

(b) If both a member and his or her 

respective alternate are unable to attend 

a committee meeting, such member may 

designate another alternate to act in his 

or her place in order to obtain a quorum: 

Provided, That such alternate member 

represents the same group affiliation as 

the absent member. If the member is 

unable to designate such an alternate, 

the committee members present may 

designate such alternate. 

* * * * * 

■ 5. Revise paragraph (c) of § 905.34 to 

read as follows: 

§ 905.34 Procedure of committees. 

* * * * * 

(c) The committee may provide for 

meeting by telephone, telegraph, or 

other means of communication, and any 

vote cast at such a meeting shall be 

promptly confirmed in writing: 

Provided, That if any assembled meeting 

is held, all votes shall be cast in person. 

* * * * * 

■ 6. Add a new § 905.54 to read as 

follows: 

§ 905.54 Marketing, research and 

development. 

The committee may, with the 

approval of the Secretary, establish, or 

provide for the establishment of, 

projects including production research, 

marketing research and development 

projects, and marketing promotion 

including paid advertising, designed to 

assist, improve, or promote the 

marketing, distribution, and 

consumption or efficient production of 

fruit. The expenses of such projects 

shall be paid by funds collected 

pursuant to § 905.41. Upon conclusion 

of each project, but at least annually, the 

committee shall summarize the program 

status and accomplishments to its 

members and the Secretary. A similar 

report to the committee shall be 

required of any contracting party on any 

project carried out under this section. 

Also, for each project, the contracting 

party shall be required to maintain 

records of money received and 

expenditures, and such shall be 

available to the committee and the 

Secretary. 

Dated: September 2, 2009. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E9–21656 Filed 9–8–09; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 920 

[Doc. No. AMS–FV–08–0017; FV08–920–2 

FR] 

Kiwifruit Grown in California; Change 

in Reporting Requirements 

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 who ship 

100,000 or more trays per season to file 

weekly shipment and price information 

with the Committee. Shipments of 

organic kiwifruit are exempt from this 

requirement. The Committee will use 

this information to prepare its marketing 

policy statements and annual reports 

and to provide timely information to the 

industry to assist them in making 


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Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Rules and Regulations 46307 

marketing decisions throughout the 

season. 

DATES: Effective Date: September 10, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

Debbie Wray, Marketing Specialist, or 

Kurt J. Kimmel, Regional Manager, 

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: 

Debbie.Wray@ams.usda.gov or Kurt.

Kimmel@ams.usda.gov. 

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@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 a new reporting 

requirement and form to those currently 

specified in the order’s administrative 

rules and regulations. This change will 

allow the Committee to collect weekly 

shipment and price information from 

kiwifruit handlers who ship 100,000 or 

more trays per season. Under this 

regulation, handlers will not be required 

to provide weekly shipment and price 

information on shipments of organic 

kiwifruit. The information collected will 

be used by the Committee to prepare its 

marketing policy statement as required 

under the order. The information will 

also be used to generate timely reports 

for the industry as a whole to use in 

making marketing decisions throughout 

the season. This rule was recommended 

by the Committee at its meetings on 

September 6, 2007; January 30, 2008; 

and April 22, 2008. 

Section 920.34 of the order requires 

the Committee to 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 920.50 of the 

order requires the Committee to prepare 

an annual marketing policy report 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. The provisions of 

§ 920.60(c) require that handlers 

maintain copies of all kiwifruit receipts 

and disposals for at least two 

succeeding fiscal years to verify their 

shipping reports. 

The Committee’s current reporting 

requirements are specified in § 920.160 

of the order’s administrative rules and 

regulations. This section includes 

requirements that handlers submit 

shipment reports and the Kiwifruit 

Inventory Shipping System (KISS) form, 

which consists of three reports: KISS/ 

Add Inventory, KISS/Deduct Inventory, 

and KISS/Shipment. 

Handlers who ship fewer than 10,000 

trays per season are only required to file 

the shipment report twice per year and 

are not required to file the KISS form. 

Handlers who ship 10,000 trays or more 

per season are required to file the 

shipment report monthly and all three 

sections of the KISS form monthly or 

semi-monthly during certain months. 

The Committee provides forms to assist 

handlers with supplying the required 

information. 

Kiwifruit shipments generally begin 

in September and continue through 

July. The Committee requires handlers 

who ship 10,000 trays or more to file 

their initial shipment reports by the fifth 

day of the month following the month 

in which their first shipments are made. 

This report is used to track shipments 

by type, weight, and destination. 

The Committee has established 

November 5 as the deadline for filing 

the initial KISS reports. Subsequent 

reports are to be filed on the fifth day 

of each month throughout the season, 

with biweekly reports required for the 

months of December, January, and 

February. The KISS/Shipment report is 

used to report shipments by fruit size 

and pack type. The KISS/Add Inventory 

and KISS/Deduct Inventory reports are 

used to report changes in inventory. 

This final rule revises § 920.160 by 

adding a new reporting requirement and 

form. Under the new regulation, 

handlers who ship 100,000 tray 

equivalents or more per season will be 

required to submit weekly shipment and 

price data on the new KISS Price/ 

Shipment report form. The information 

collected on the KISS Price/Shipment 

report will include data on gross f.o.b. 

sales and the total number of containers 

shipped by pack, fruit size, grade, and 

market destination. Handlers submitting 

the KISS Price/Shipment report will no 

longer be required to submit the existing 

shipment report or KISS/Shipment 

report as that information will be 

collected on the new KISS Price/ 

Shipment report. However, handlers 

submitting the KISS Price/Shipment 

report will still be responsible for filing 

the KISS/Add Inventory and KISS/ 

Deduct Inventory reports. 

The Committee recommended the 

100,000 tray threshold because handlers 

shipping 100,000 trays or more account 

for approximately 90% of the 

production area’s total shipments in a 

season. Committee members believe that 

information on such shipments will 

provide a sufficiently broad picture of 

ongoing marketing conditions. 

Information about the volume of 

kiwifruit in the current channels of 

commerce will be compiled by the 

Committee and reported to the industry. 

The Committee believes that such 

information provided throughout the 

season will benefit the industry as a 

whole when making marketing 

decisions. 

While information from handlers with 

total shipments of fewer than 100,000 

trays each season might not be 

significant on a weekly basis, such 

information will continue to be 

collected from those handlers on the 

other existing shipment and KISS 


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46308 Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Rules and Regulations 

reports and will be used to generate the 

Committee’s marketing policy 

statements and annual reports. 

The previous reporting requirements 

made no provisions for collecting 

information on kiwifruit prices. The 

Committee believes that the industry as 

a whole will benefit from receiving 

gross f.o.b. sales information that will be 

collected by the Committee each week 

and used to generate timely industry 

reports. In the past, the Committee has 

used information from other sources to 

prepare their mandatory reports and 

provide updates to the industry, but 

Committee members feel that 

information from such sources no longer 

meets their needs. For example, one 

voluntary industry organization collects 

and reports weekly price information 

from participating handlers. Some 

industry members have found this 

information helpful in making 

marketing decisions in the past. 

However, Committee members report 

that the number of participating 

handlers has declined and that the 

information collected from the 

remaining participants may not provide 

as complete a picture of ongoing 

marketing conditions as the Committee 

would like. The Committee believes that 

compiling sales information from all 

large-volume kiwifruit handlers in the 

production area will be more reflective 

of—and will be of greater benefit to—the 

industry as a whole. 

There can be significant differences in 

the price of kiwifruit throughout the 

season, including great fluctuations in 

prices from week to week. The 

Committee believes that having accurate 

and timely sales information will help 

to reduce these price fluctuations and 

promote orderly marketing, resulting in 

increased grower returns. 

Under the change, handlers will not 

be required to report shipments of 

organically-produced (organic) kiwifruit 

on the new KISS Price/Shipment report. 

There are only a small number of 

handlers who handle organic kiwifruit, 

representing a small percentage of total 

shipments. Organic kiwifruit has its 

own unique marketing conditions with 

a pricing structure that differs from that 

of conventionally-produced 

(conventional) kiwifruit. Therefore, the 

Committee recommended that 

shipments of organic kiwifruit should 

be exempt from the new reporting 

requirements. However, organic 

kiwifruit shipments will continue to be 

reported as required on the appropriate 

existing Committee forms. 

Kiwifruit handlers who ship between 

10,000 and 100,000 trays or tray 

equivalents will continue to report by 

submitting monthly shipping reports 

and the existing KISS forms, including 

the KISS/Shipment reports. The 

reporting requirements for handlers 

shipping fewer than 10,000 tray 

equivalents will also remain the same. 

Also, the reporting exemption for 

minimum quantities of kiwifruit 

handled under certain conditions 

specified in § 920.110(b) will remain 

unchanged. 

For the new KISS Price/Shipment 

report, the shipping week will be 

defined as Sunday through Saturday. 

Reports for each shipping week will be 

due no later than 5:00 p.m. (the close of 

business) on Tuesday of the following 

week to insure timely processing of 

current shipment and price information. 

Handlers will begin reporting following 

the first week of the season in which 

they have shipments. In weeks when no 

shipments are made, each handler will 

still be required to file a report 

indicating that no shipments were made 

during the reporting period. This will 

continue until the handler files a final 

report for the season. The new reporting 

form will have a space for handlers to 

indicate when they are filing their final 

reports of the season. The price data and 

shipping information received from all 

affected handlers will be compiled by 

the Committee and presented to the 

industry throughout the season in the 

form of general reports. At the end of 

each year, the information collected will 

be summarized and used to prepare the 

Committee’s annual reports and 

marketing policy statements. 

This rule also makes a correction to 

§ 920.160(b). A final rule published in 

the Federal Register on December 10, 

1996 [61 FR 64959], made changes to 

§ 920.160(b) and inadvertently removed 

part of the section. Specifically, the last 

sentence of § 920.160(b), which 

specifies the frequency with which the 

KISS reports shall be filed as well as 

what information shall be included, was 

removed. This rule restores the language 

that was inadvertently removed. 

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 (5 U.S.C. 

601–612) (RFA), 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 30 handlers of kiwifruit 

subject to regulation under the 

marketing order and approximately 220 

kiwifruit growers in the production 

area. According to information provided 

by the Committee, approximately three 

handlers handle only organic kiwifruit, 

and four handle both conventional and 

organic kiwifruit. 

The National Agricultural Statistical 

Service (NASS) reported total California 

kiwifruit production for the 2008–09 

season at 23,000 tons with an average 

price of $888 per ton. Based on the 

average price and shipment information 

provided by the NASS 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 adds a new 

reporting requirement and form to the 

reporting requirements, which will 

allow the Committee to collect weekly 

shipment and price information from 

kiwifruit handlers who ship 100,000 or 

more trays per season. Handlers will not 

be required to report information on 

shipments of organic kiwifruit on this 

new form but will continue to report 

shipments of organic kiwifruit on 

existing Committee forms. This change 

will help the Committee develop its 

annual reports and marketing policy 

statements as required under the order 

and will enable the Committee to 

provide timely information to the 

industry as a whole to assist with 


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Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Rules and Regulations 46309 

marketing decisions. This rule revises 

§ 920.160, which specifies the reporting 

requirements. In addition to the new 

shipping and price information 

collection, this rule restores a portion of 

§ 920.160(b) that was inadvertently 

removed from the regulation during a 

previous rulemaking action. Authority 

for the collection of shipment and other 

information is provided in § 920.60 of 

the order. 

Requiring shipment and price reports 

on a weekly basis will impose an 

additional reporting burden on handlers 

who handle 100,000 or more tray 

equivalents of kiwifruit. However, this 

data is already being recorded and 

maintained by most handlers as a 

routine part of their business. 

Consequently, any additional costs 

associated with this change are expected 

to be minimal. Also, the benefits of 

having timely information regarding 

shipments and price are expected to 

outweigh any costs associated with the 

increase in reporting burden. While this 

change will impose an additional 

reporting burden on those handlers 

required to submit the KISS Price/ 

Shipment report, those handlers will no 

longer be required to submit the 

shipment report or the KISS/Shipment 

report, which will offset somewhat the 

increase in burden. Further, the benefits 

of this rule are expected to be equally 

available to all industry members, 

regardless of their size. 

The Committee discussed alternatives 

to this action, including making no 

changes to the reporting requirements. 

However, the Committee believes that 

collecting weekly shipment and price 

data will provide valuable information 

to the industry. The Committee also 

considered using weekly sales 

information collected by other entities. 

However, the Committee believes 

including the information collection 

under the order’s rules and regulations 

will make the reports they generate 

more accurate and more reflective of the 

marketing conditions throughout the 

industry. Therefore, both alternatives 

were rejected. 

This final rule establishes a new 

reporting requirement. This action also 

requires a new Committee form, the 

KISS Price/Shipment report. Therefore, 

this final rule will impose an additional 

reporting burden on handlers who 

handle 100,000 tray equivalents or more 

of kiwifruit. The new form has been 

submitted to the Office of Management 

and Budget (OMB) under OMB No. 

0581–NEW. Upon approval of this new 

form by OMB, it will be merged with the 

forms currently approved for use under 

OMB No. 0581–0189, Generic OMB 

Fruit Crops. 

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. 

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 September 6, 

2007; January 30, 2008; and April 22, 

2008; meetings were public meetings 

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 June 4, 2009 (74 FR 26806). 

A notice of the rule was published in 

the Committee’s electronic newsletter 

that is distributed to all kiwifruit 

handlers. Also, the rule was made 

available through the Internet by USDA 

and the Office of the Federal Register. A 

60-day comment period, ending August 

3, 2009, was provided for interested 

persons to submit comments on this 

proposed rule, including the regulatory 

and informational impacts of this action 

on small businesses. 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

/AMSv1/ams.fetchTemplateData.do?

template=TemplateN&page=Marketing

OrdersSmallBusinessGuide. 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 

matters 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 new KISS Price/Shipment 

Report form, prior to the beginning of 

shipments for the 2009–10 crop year. In 

addition, handlers are aware of this rule, 

which was recommended at Committee 

meetings on September 6, 2007; January 

30, 2008; and April 22, 2008. 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. 

§ 920.160 [Amended] 

■ 2. § 920.160 is amended by revising 

the first sentence of paragraph (a), 

revising paragraph (b), and adding 

paragraphs (d) and (e) to read as follows: 

§ 920.160 Reports. 

(a) When requested by the Kiwifruit 

Administrative Committee, each shipper 

who ships kiwifruit, except as provided 

in paragraph (e) of this section, shall 

furnish a report of shipment and 

inventory data to the committee no later 

than the fifth day of the month 

following such shipment, or such other 

later time established by the committee: 

Provided, That each shipper who ships 

less than 10,000 trays, or the equivalent 

thereof, per fiscal year and has qualified 

with the committee shall furnish such 

report of shipment and inventory data to 

the committee twice per fiscal year. 

* * * 

(b) Kiwifruit Inventory Shipping 

System (KISS) form. Each handler, 

except such handlers that ship less than 

10,000 trays, or the equivalent thereof, 

per season and have qualified with the 

committee, shall file with the committee 

the initial Kiwifruit Inventory Shipment 

System (KISS) form, which consists of 

three sections ‘‘KISS/Add Inventory,’’ 

‘‘KISS/Deduct Inventory,’’ and ‘‘KISS/ 

Shipment,’’ on or before November 5th, 

or such other later time as the 

committee may establish. Subsequent 

KISS forms, including all three sections, 

shall be filed with the committee by the 

fifth day and again by the twentieth day 

of each calendar month, or such other 

later time as the committee may 

establish, and will contain the following 

information: 


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46310 Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Rules and Regulations 

(1) The beginning inventory of the 

handler by size and container type; 

(2) The quantity of fruit the handler 

lost in repack and repacked into other 

container types; 

(3) The total domestic and export 

shipments of the handler by size and 

container type; and 

(4) Any other adjustments which 

increase or decrease posted handler 

inventory. 

* * * * * 

(d) KISS Price/Shipment report. Each 

handler who ships 100,000 or more 

trays, or the equivalent thereof, per 

season, shall file the KISS Price/ 

Shipment report with the committee. 

Handlers are not required to report 

organic kiwifruit shipments on this 

report. The handler shall file the report 

weekly following the first week he or 

she makes shipments and shall continue 

filing reports until he or she submits a 

final report for the season. Each such 

report shall be filed with the committee 

no later than 5:00 p.m. (the close of 

business) on the Tuesday immediately 

following the shipping week. For the 

purpose of this subsection, the shipping 

week is defined as Sunday through 

Saturday. The report shall show: 

(1) The company name, contact 

person, and phone number of the 

handler; 

(2) Weekly period covered by the 

report; 

(3) Total fresh market shipments and 

gross f.o.b. sales of kiwifruit by pack 

style and size; and 

(4) Total fresh market shipments and 

gross f.o.b. sales to export markets by 

pack style and size. 

(e) Handlers who file the KISS Price/ 

Shipment report specified in paragraph 

(d) of this section are exempt from filing 

the shipping report specified in 

paragraph (a) of this section and the 

KISS/Shipment report specified in 

paragraph (b) of this section. 

Dated: September 2, 2009. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E9–21657 Filed 9–8–09; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 993 

[Doc. No. AMS–FV–09–0048; FV09–993–1 

IFR] 

Dried Prunes Produced in California; 

Decreased Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Interim final rule with request 

for comments. 

SUMMARY: This rule decreases the 

assessment rate established for the 

Prune Marketing Committee 

(Committee) for the 2009–10 and 

subsequent crop years from $0.30 to 

$0.16 per ton of salable dried prunes. 

The Committee locally administers the 

marketing order that regulates the 

handling of dried prunes in California. 

Assessments upon dried prune handlers 

are used by the Committee to fund 

reasonable and necessary expenses of 

the program. The crop year begins 

August 1 and ends July 31. The 

assessment rate will remain in effect 

indefinitely unless modified, 

suspended, or terminated. 

DATES: Effective September 10, 2009. 

Comments received by November 9, 

2009, will be considered prior to 

issuance of a final rule. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this rule. Comments must be 

sent to the Docket Clerk, Marketing 

Order Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue, SW., STOP 

0237, Washington, DC 20250–0237; Fax: 

(202) 720–8938; or Internet: http:// 

www.regulations.gov. Comments should 

reference the docket number and the 

date and page number of this issue of 

the Federal Register and will be 

available for public inspection in the 

Office of the Docket Clerk during regular 

business hours, or can be viewed at: 

http://www.regulations.gov. All 

comments should reference the docket 

number and the date and page number 

of this issue of the Federal Register and 

will be available for public inspection in 

the Office of the Docket Clerk during 

regular business hours, or can be viewed 

at the Web site referenced above. 

FOR FURTHER INFORMATION CONTACT: 

Debbie Wray, Marketing Specialist, or 

Kurt J. Kimmel, Regional Manager, 

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: 

Debbie.Wray@ams.usda.gov, or 

Kurt.Kimmel@ams.usda.gov. 

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@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Agreement 

No. 110 and Marketing Order No. 993, 

both as amended (7 CFR part 993), 

regulating the handling of dried prunes 

grown in California, hereinafter referred 

to as the ‘‘order.’’ The marketing 

agreement and order are 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 rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. Under the marketing order now 

in effect, California dried prune 

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 dried prunes beginning on 

August 1, 2009, and continue until 

amended, suspended, or terminated. 

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 decreases the assessment 

rate established for the Committee for 

the 2009–10 and subsequent crop years 


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