This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

46823 

Vol. 78, No. 149 

Friday, August 2, 2013 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 920 

[Doc. No. AMS–FV–12–0008; FV12–920–1 

PR] 

Kiwifruit Grown in California; 

Proposed Amendments to Marketing 

Order 920 and Referendum Order 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule and referendum 

order. 

SUMMARY: This rule proposes five 

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 or KAC), which 

is responsible for the local 

administration of the order. The five 

amendments would provide authority to 

recommend and conduct production 

and postharvest research, to recommend 

and conduct market research and 

development projects, to receive and 

expend voluntary contributions, to 

specify that recommendations for 

production research and market 

development be approved by eight 

members of the Committee, and to 

update provisions regarding alternate 

members’ service on the Committee. 

These amendments are intended to 

improve administration of and 

compliance with the order, as well as 

reflect current industry practices. 

DATES: The referendum will be 

conducted from August 26, 2013, 

through September 6, 2013. The 

representative period for the purpose of 

the referendum is August 1, 2012, 

through July 31, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Kathleen Bright, Marketing Order and 

Agreement Division, Fruit and 

Vegetable Program, AMS, USDA, 1400 

Independence Avenue SW., Stop 0237, 

Washington, DC 20250–0237; 

Telephone: (202) 205–2830, Fax: (202) 

720–8938, or Email: 

Kathleen.Bright@ams.usda.gov or 

Michelle Sharrow, Marketing Order and 

Agreement Division, Fruit and 

Vegetable Program, AMS, USDA, 1400 

Independence Avenue SW., Stop 0237, 

Washington, DC 20250–0237; 

Telephone: (202) 720–9921, Fax: (202) 

720–8938 or Email: 

Michelle.Sharrow@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Jeffrey Smutny, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Program, 

AMS, USDA, 1400 Independence 

Avenue SW., STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, or Email: 

Jeffrey.Smutny@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Order No. 

920, as amended (7 CFR part 920), 

regulating the handling of kiwifruit 

produced 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.’’ Section 

608c(17) of the Act and the applicable 

rules of practice and procedure 

governing the formulation of marketing 

agreements and orders (7 CFR part 900) 

authorize amendments of the order 

through this informal rulemaking 

action. 

The Department of Agriculture 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

This proposal has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This rule is not intended 

to have retroactive effect. This rule shall 

not be deemed to preclude, preempt, or 

supersede any research and market 

development provisions of any State 

program covering California kiwifruit. 

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 

entry of the ruling. 

Section 1504 of the Food, 

Conservation, and Energy Act of 2008 

(2008 Farm Bill) (Pub. L. 110–246) 

amended section 18c(17) of the Act, 

which in turn required the addition of 

supplemental rules of practice to 7 CFR 

Part 900 (73 FR 49307; August, 21, 

2008). The amendment of section 

18c(17) of the Act and additional 

supplemental rules of practice authorize 

the use of informal rulemaking (5 U.S.C. 

553) to amend Federal fruit, vegetable, 

and nut marketing agreements and 

orders. USDA may use informal 

rulemaking to amend marketing orders 

based on the nature and complexity of 

the proposed amendments, the potential 

regulatory and economic impacts on 

affected entities, and any other relevant 

matters. 

AMS has considered these factors and 

has determined that the amendment 

proposals are not unduly complex and 

the nature of the proposed amendments 

is appropriate for utilizing the informal 

rulemaking process to amend the order. 

A discussion of the potential regulatory 

and economic impacts on affected 

entities is discussed later in the ‘‘Final 

Regulatory Flexibility Analysis’’ section 

of this rule. 

The proposed amendments were 

unanimously recommended by the 

Committee following deliberations at 

public meetings on July 12 and 

December 13, 2011. A proposed rule 

soliciting comments on the proposed 

amendments was issued on February 4, 

2013, and published in the Federal 

Register on February 8, 2013 (78 FR 

9331). Three comments were received. 

Two comments were supportive of the 

proposed amendments. The third 

comment was supportive of some of the 

proposed amendments and not 

supportive of others. These comments 

will be addressed later in this 

document. AMS will conduct a 

producer referendum to determine 


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46824 Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 

support for the proposed amendments. 

If appropriate, a final rule will then be 

issued to effectuate the amendments 

favored by producers in the referendum. 

The Committee’s proposed 

amendments would amend the 

marketing order by: (1) Adding 

authority to recommend and conduct 

production and postharvest research, (2) 

adding authority to recommend and 

conduct market research and 

development projects, (3) adding 

authority to receive and expend 

voluntary contributions, (4) amending 

procedures to specify that 

recommendations for production 

research and market development be 

approved by eight members of the 

Committee, and (5) clarifying provisions 

regarding alternate members’ service on 

the Committee. 

In addition to these proposed 

amendments, AMS proposes to make 

any additional changes to the order as 

may be necessary to conform to any 

amendment that may result from this 

rulemaking action. 

Proposal Number 1—Production and 

Postharvest Research 

This proposal would add section 

920.47 to authorize production and 

postharvest research to assist or improve 

the efficient production and postharvest 

handling of kiwifruit. Adding this 

authority would provide the Committee 

with the ability to conduct production 

research, food quality and handling 

research, and to distribute that 

information. These functions were 

previously conducted by the California 

Kiwifruit Commission (CKC), a State of 

California program, which ceased to 

exist on September 30, 2011. 

Kiwifruit is a relatively new crop to 

California with the first commercial 

crop produced in 1971. The CKC was 

established in 1979, five years prior to 

the kiwifruit marketing order. The CKC 

performed marketing research and 

development programs for the industry. 

When the kiwifruit marketing order was 

established in 1984, its main purpose 

was to implement quality and pack and 

container regulations. The two programs 

worked independently, and the industry 

chose not to add authority for 

production and postharvest research to 

the Federal order at inception to avoid 

duplication. According to the 

Committee, industry leaders believed at 

that time that having programs that 

performed separate and distinct 

functions would best serve the interests 

of the kiwifruit industry. 

Over the past two decades, California 

kiwifruit acreage and the number of 

growers have decreased, from a peak in 

1992 of 7,300 producing acres and 690 

producers to 4,200 producing acres and 

175 growers today, according to data 

from the National Agricultural Statistics 

Service and the Committee. As a result, 

the industry has reduced programs 

supported by industry assessments. In 

the early 2000s, industry leaders began 

to evaluate industry programs in an 

effort to determine which ones were the 

most beneficial and actively sought 

ways to make the administration of 

these programs more cost efficient and 

effective. The need for production and 

postharvest research is repeatedly 

identified as one of the most important 

programs to the industry, along with 

market development programs. 

According to the Committee, there is a 

general consensus throughout the 

industry that the future administration 

of these activities should be done 

through one program, and because there 

is widespread support to maintain the 

quality and pack and container 

requirements, that program should be 

the Federal marketing order. 

The Committee believes that for the 

California kiwifruit industry to remain 

productive and competitive, 

management practices must continue to 

evolve. It further believes that 

production and postharvest research 

was one of the most beneficial activities 

performed by the CKC. Over the years, 

these activities helped growers become 

knowledgeable on how to establish 

vineyards, prune, thin, irrigate, 

pollinate, fertilize, manage diseases, 

harvest, store and transport kiwifruit. 

According to the Committee, the 

industry wants the KAC to conduct 

these activities since the CKC no longer 

exists. 

The Committee believes production 

and postharvest research would have a 

direct and positive impact on producers, 

handlers, and consumers. Diseases such 

as the infectious vine-killing bacterial 

disease known as PSA, confirmed in 

New Zealand in 2010, decimated 28% 

of New Zealand’s orchards. With no 

current organization equipped to 

facilitate research activities, the same 

could happen to California kiwifruit. 

Production research projects sponsored 

by the Committee could help develop 

cultural practices to reduce the 

likelihood of a similar incident in the 

United States. In addition, improving 

food quality and handling practices is 

important to producers, handlers, and 

consumers. The industry desires to take 

a proactive stance to be prepared to 

address any challenges in this area. 

Also, without a research organization, 

the Committee is unable to participate 

in the joint global research effort with 

the International Kiwifruit Organization 

(IKO). The IKO jointly funds research 

activities with other organizations that 

benefit kiwifruit producers and 

consumers on a global basis. Approval 

of this proposal would ensure the 

industry’s ability to participate in these 

activities. 

Adding production research to the 

order is expected to improve returns for 

producers because it will enable the 

industry to develop new technologies to 

increase yields, improve fruit quality 

and production, and facilitate 

postharvest research. 

There is a potential cost to handlers 

of increased assessments to fund 

projects. However, the KAC would 

weigh the costs against the potential 

benefits. The USDA would review and 

approve activities prior to their 

undertaking. In addition, the KAC 

would evaluate activities after they are 

completed to ensure that the goals and 

objectives are met. 

For the reasons stated above, it is 

proposed that section 920.47 be added 

to authorize production and postharvest 

research to assist or improve the 

efficient production and postharvest 

handling of kiwifruit. 

Proposal Number 2—Market Research 

and Development 

This proposal would add section 

920.48 to authorize marketing research 

and development programs to promote, 

assist, or improve the marketing, 

distribution, and consumption of 

kiwifruit. Adding this authority would 

enable the industry to continue to 

conduct these activities that were 

previously conducted by the CKC. 

The California kiwifruit industry, as a 

whole, has undergone many changes 

since the inception of the marketing 

order in 1984. The industry experienced 

significant growth in the 1980s, but 

acreage and production levels have 

since declined. According to the 

Committee, this has caused industry 

leaders to evaluate which programs are 

most beneficial to the industry and the 

most efficient way to conduct such 

programs. Through an industry vote, the 

CKC was discontinued in 2011, as 

previously discussed. The Committee 

believes that marketing research and 

development activities previously 

conducted by the CKC are beneficial to 

the industry, but can be conducted 

under the Federal marketing order. This 

also creates overall efficiencies by using 

a single industry organization to carry 

out the various functions previously 

conducted by two organizations. 

Therefore, the Committee supports 

adding marketing research and 

development authority to the order. 

Providing authority for the Committee 

to conduct marketing research and 


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development programs would assist the 

industry with the marketing, 

distribution, and consumption of 

kiwifruit. The Committee could 

undertake marketing research and 

development activities such as 

conducting market and consumer 

surveys, which could identify consumer 

and market preferences. Further, adding 

this authority to the marketing order 

would enable the Committee to apply 

for Market Access Program (MAP) 

funding from the USDA and engage in 

jointly funded export marketing 

research and development activities. 

Participation in jointly funded programs 

including MAP was identified as a 

priority by the Committee in its strategic 

planning in the early 2000s. These types 

of activities would be designed to 

increase the demand and sales of 

California kiwifruit, with the intent of 

increasing returns to producers. 

There is a potential cost to handlers 

of increased assessments to fund 

projects. However, the KAC would 

weigh the costs against the potential 

benefits. The USDA would review and 

approve activities prior to their 

undertaking. The KAC would evaluate 

activities after they are completed to 

ensure that the goals and objectives are 

met. In addition, the Federal 

Agricultural Improvement and Reform 

Act of 1996 (1996 Farm Bill) (Pub. L. 

104–127) requires Federal marketing 

order promotion activities to be 

evaluated by an independent party on a 

regular basis to ensure they are effective. 

Any such programs conducted under 

the order would be evaluated to help 

ensure that the benefits exceed the 

costs. 

For the reasons stated above, it is 

proposed that section 920.48 be added 

to authorize marketing research and 

development programs to promote, 

assist, or improve the marketing, 

distribution and consumption of 

kiwifruit. 

Proposal Number 3—Voluntary 

Contributions 

This proposal would add section 

920.45 to authorize the Committee to 

receive and expend voluntary 

contributions for market development 

projects, market research, and 

production and postharvest research. 

The proposal also contains a provision 

that any voluntary contributions would 

be free from any encumbrances by the 

donor and the Committee would retain 

complete control of their use. Currently, 

the Committee only has authority to 

collect and spend assessment dollars. In 

the event that proposal number one 

and/or proposal number two are 

adopted, for example, the ability to 

accept voluntary contributions would 

provide the Committee with additional 

funding sources for production and 

postharvest research, and marketing 

research and development activities. 

This proposal compliments and 

supports proposals number one and 

two. If adopted, this proposal could 

help provide financial support for 

marketing research and development 

activities. Producers and handlers could 

benefit from these activities as 

discussed under proposals number one 

and two. Also, funding from an 

additional source could help to mitigate 

potential assessment rate increases to 

fund research and development 

projects. 

The Committee would clearly 

communicate that voluntary 

contributions accepted would be free 

from any encumbrances by the donor 

and the Committee would retain control 

over the use of the funds. 

For the reasons stated above, it is 

proposed that section 920.45 be added 

to authorize the Committee to receive 

and expend voluntary contributions for 

market development projects, market 

research, and production and 

postharvest research. 

Proposal Number 4—Committee 

Quorum (Voting) 

This proposal would modify section 

920.32 so that approval by eight 

members of the Committee is required 

for market research and development as 

well as production and postharvest 

research activities. The proposed change 

to require an eight-vote majority for 

marketing research and development 

issues is consistent with industry 

practices and voting requirements for 

Committee actions on other issues. The 

Committee is comprised of twelve 

members and alternates. This proposal 

would help to ensure industry support 

exists before undertaking these 

activities. 

Section 920.32 of the order provides 

that actions of the Committee require a 

majority vote, except that eight 

concurring votes are required by the 

Committee with respect to actions 

concerning expenses, assessments, or 

recommendations for regulations. The 

addition of approval by eight members 

for marketing research and development 

activities would be consistent with 

current Committee procedures regarding 

issues of major importance to the 

industry. Requiring eight concurring 

votes would ensure that major actions of 

the Committee would have a super 

majority, indicating that a broad level of 

industry support exists prior to 

undertaking marketing research and 

development activities. 

For the reasons stated above, it is 

proposed that section 920.32 be 

modified so that approval by eight 

members of the Committee is required 

for market research and development as 

well as production and postharvest 

research activities. 

Proposal Number 5—Alternate Member 

Procedures 

This proposal would modify section 

920.27 to update and clarify procedures 

for substitute alternates from within the 

same district to represent absent 

members at Committee meetings in 

districts with more than two members. 

Further, this proposal would clarify 

existing language in the order by 

providing the authority for substitute 

alternates within the same district to 

represent absent members. This is a 

necessary change designed to update 

existing language. 

Prior to 2010, the production area 

covered by the order was comprised of 

eight districts, represented by one or 

two members, and an alternate member 

for each district, for a total of twentytwo grower positions. In 2010, the order 

was amended and the number of 

districts decreased to three. Each district 

is now represented on the Committee by 

two, four, or five members and alternate 

members, for a total of twenty-two 

grower positions. However, section 

920.27 only addresses alternate 

members’ service on the Committee in 

districts with one and two grower 

positions. This proposal addresses 

alternate members’ service on the 

Committee in districts with more than 

two members, as well as alternates if 

both a member and his or her respective 

alternate are unable to attend a 

Committee meeting. In such situations, 

the Committee would be authorized to 

designate any other alternate present, 

from the same district, to serve in place 

of the absent member. 

Updating the order to clarify 

procedures for substitute alternates’ 

service on the Committee would help to 

ensure that quorum requirements are 

met. It would also contribute to more 

efficient conduct of Committee 

business. 

For the reasons stated above, it is 

proposed that section 920.27 be 

modified to update and clarify 

procedures for substitute alternates from 

within the same district to represent 

absent members at Committee meetings 

in districts with more than two 

members. 

Final Regulatory Flexibility Analysis 

Pursuant to the requirements set forth 

in the Regulatory Flexibility Act (RFA) 

(5 U.S.C. 601–612), the Agricultural 


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46826 Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 

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 

businesses 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. 

Based on committee data, there are 

approximately 175 producers and 27 

handlers of kiwifruit in the California 

production area. The Small Business 

Administration (SBA) defines small 

agricultural producers as those having 

annual receipts of less than $750,000, 

and small agricultural service firms are 

defined as those having annual receipts 

of less than $7,000,000. (13 CFR 

121.201). 

The California Agricultural Statistical 

Service (CASS) reported total California 

kiwifruit production for the 2011–12 

season at 37,700 tons, with an average 

price of $775 per ton. Based on the 

average price, shipment, and grower 

information provided by the CASS and 

the Committee, 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. 

The amendments proposed by the 

Committee would provide authority to 

recommend and conduct production 

and postharvest research; add authority 

to recommend and conduct marketing 

research and development projects; add 

authority to receive and expend 

voluntary contributions; amend 

procedures to specify that 

recommendations for production 

research and market development be 

approved by eight members of the 

Committee; and update provisions 

regarding alternate members’ service on 

the Committee. 

These proposed amendments were 

unanimously recommended at public 

meetings of the Committee held on July 

12 and December 13, 2011. 

If proposal number one regarding 

adding research authority to the order is 

approved in referendum, there would be 

no immediate cost to growers or 

handlers. This proposal would only 

provide authority to recommend 

production and postharvest research 

activities. In the event the Committee 

decided to undertake these activities in 

the future, there would be a cost 

associated with funding any projects 

recommended. However, research 

activities were previously funded by the 

industry through the CKC, which no 

longer exists. Therefore, there would be 

no net overall increase in costs to the 

industry if the Committee chose to take 

over projects previously funded through 

the CKC. 

Section 920.41(b) of the order 

establishes a maximum limit on the 

assessment rate that may be 

implemented. The limit was established 

at $.035 per tray equivalent (6.8 pounds) 

when the order was promulgated in 

1984, and may be adjusted for inflation. 

The assessment rate currently in effect 

is $.035 per 19.8-pound (9 kilo) 

container, or approximately $.012 per 

tray equivalent (§ 920.213). The current 

rate is well below the maximum 

authorized under the order and any 

potential increase in the assessment rate 

to cover the costs of research activities 

is anticipated to be well within the 

maximum assessment rate authorized 

under the order. Therefore, the 

Committee did not recommend an 

increase in the assessment rate 

limitation. In addition, if proposal 

number three, regarding authority for 

the Committee to accept voluntary 

contributions is approved, it could 

provide additional sources of revenue 

and reduce the amount of assessment 

monies otherwise needed to fund 

research activities. 

Although there would be a cost 

associated with any research activities 

undertaken by the industry, the benefits 

of such activities would be expected to 

outweigh the costs. Past benefits of 

production research to the California 

kiwifruit industry include improved 

techniques for establishing vineyards, 

pruning, thinning, irrigating, 

pollination, fertilizer application, 

disease and pest management, and 

harvesting. Benefits of postharvest 

research include improved methods of 

fruit storage, packaging, and 

transportation. These research results 

have been disseminated to growers and 

handlers in the past and have been 

instrumental in maintaining a viable 

kiwifruit industry in California. The 

Committee believes a continuation of 

these types of activities is important to 

the long term success of the industry. 

Prior to undertaking any research 

activities, the Committee would 

evaluate potential projects and weigh 

their costs against the potential benefits 

to the industry. Any projects 

recommended by the Committee would 

be reviewed and approved by USDA 

before being implemented. The 

Committee and USDA would provide 

oversight to help ensure that the goals 

and objectives were being met. The 

results would be disseminated to 

industry members and would also be 

available to the public. 

If proposal number two regarding 

adding authority to the order for 

marketing research and development 

projects is approved, there would be no 

immediate costs to the industry, as with 

proposal number one. This proposal 

would similarly only provide authority 

to recommend production and 

postharvest research activities. In the 

event the Committee decided to 

undertake these activities in the future, 

there would be a cost associated with 

funding any marketing research and 

development projects recommended. 

Like the production and postharvest 

research activities discussed above, 

marketing research and development 

projects could also receive 

supplemental funding through receipt of 

voluntary contributions if proposal 

number three is approved. This could 

help to mitigate any possible assessment 

rate increases to pay for the costs of 

these activities. To the extent that the 

assessment rate may need to be 

increased, any increase would be 

limited so it remains within the 

maximum level authorized under 

section 920.41 of the order. 

Any increased costs associated with 

marketing research and development 

activities are expected to be outweighed 

by the benefits. Marketing research 

could be conducted regarding consumer 

tastes and preferences. This type of 

information is valuable in developing 

marketing strategies. Collection of 

market data can also be useful to 

determine the success of prior programs 

and to develop future programs. Market 

development programs could be used to 

conduct programs designed to increase 

awareness and demand for California 

kiwifruit. These demand building 

activities would be expected to increase 

sales with the intent of ultimately 

increasing returns to producers. 

Prior to undertaking any marketing 

research and/or market development 

activities, the Committee would 

evaluate potential projects and their 

costs against the potential benefits to the 

industry. Any projects recommended by 

the Committee would be reviewed and 

approved by USDA before 

implementation. The Committee would 

provide oversight to ensure that the 

goals and objectives were being met. In 

addition, as required by the Federal 

Agricultural Improvement and Reform 


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Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 46827 

Act of 1996, any marketing research and 

development programs engaged in 

under a Federal marketing order require 

periodic evaluation by an independent 

third party to ensure that they are 

effective. Thus, any such programs 

conducted under the kiwifruit order 

would be evaluated to help ensure that 

the benefits exceed the costs. 

Proposal number three would provide 

authority for the Committee to receive 

voluntary contributions to help fund 

marketing research and development 

activities. If approved and utilized, this 

could provide an additional source of 

revenue to help supplement the funding 

of research and development programs. 

These types of programs are intended to 

benefit the entire industry. This 

proposal would not increase or decrease 

any reporting, recordkeeping, or 

compliance costs. Acceptance of 

voluntary financial contributions by the 

Committee would not result in 

increased costs. Rather, it might reduce 

the amount of assessment revenue 

needed to fund a given program or 

programs. 

Proposal numbers four and five relate 

to voting procedures and alternate 

member service on the Committee. Both 

are procedural in nature and would 

have no economic impact on producers 

or handlers if they are approved because 

they would not establish any regulatory 

requirements on handlers, nor do they 

contain any assessment or funding 

implications. There would be no change 

in financial costs, reporting, or 

recordkeeping requirements if either of 

these proposals is approved. 

Alternatives to these proposals, 

including making no changes at this 

time, were considered. However, the 

Committee believes that it would be 

beneficial to have the ability to conduct 

production research and market 

development activities, collect 

voluntary contributions, and clarify 

procedural language for Committee 

meetings. 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

Chapter 35), the order’s information 

collection requirements have been 

previously approved by the Office of 

Management and Budget (OMB) and 

assigned OMB No. 0581–0189, Generic 

OMB Fruit Crops. No changes in those 

requirements as a result of this 

proceeding are anticipated. Should any 

changes become necessary, they would 

be submitted to OMB for approval. 

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. 

In addition, 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. 

The Committee’s meetings, at which 

these proposals were discussed, were 

widely publicized throughout the 

California kiwifruit industry. All 

interested persons were invited to 

attend the meeting and encouraged to 

participate in Committee deliberations 

on all issues. Like all Committee 

meetings, the meeting was public, and 

all entities, both large and small, were 

encouraged to express their views on 

these proposals. 

A proposed rule concerning this 

action was published in the Federal 

Register on February 8, 2013 (78 FR 

9331). Copies of the rule were mailed or 

sent via facsimile to all Committee 

members and kiwifruit handlers. 

Finally, the rule was made available 

through the internet by USDA and the 

Office of the Federal Register. A 60-day 

comment period ending April 9, 2013, 

was provided to allow interested 

persons to respond to the proposal. 

Three comments were received. Two 

comments were supportive of the 

proposed amendments. 

The third commenter supported the 

amendments to §§ 920.32 and 920.45 

concerning Committee quorum (voting) 

and accepting voluntary contributions, 

respectively. However, the commenter 

was opposed to the proposed 

amendment to § 920.27 regarding 

alternate member procedures that would 

allow substitute alternates, from within 

the same district, to represent absent 

members at Committee meetings in 

districts with two or more members 

because he was concerned that it gave 

the Committee the opportunity to 

choose an alternate who shared their 

views. The proposed change would 

improve the likelihood that quorum 

requirements are met. This should 

ensure a timely and orderly flow of 

business so that important matters 

would not have to be postponed. The 

substitute alternate would only be 

called upon if the member and their 

designated alternate were both absent. 

Because the substitute would be from 

the same district as the absent member 

and alternate, it is more likely that the 

substitute would represent the views of 

other growers in that district. 

In 2010, the order was amended and 

the number of districts decreased to 

three. Each district is now represented 

on the Committee by two, four, or five 

members and alternate members, for a 

total of twenty-two grower positions. 

However, section 920.27 only addresses 

alternate members’ service on the 

Committee in districts with one and two 

grower positions. This proposal 

addresses alternate members’ service on 

the Committee in districts with more 

than two members, as well as substitute 

alternates if both a member and his or 

her respective alternate are unable to 

attend a Committee meeting. In such 

situations, the Committee would be 

authorized to designate any other 

alternate present, in the same district, to 

serve in place of the absent member. 

Accordingly, no change to the proposed 

amendment is being adopted. 

The commenter was also opposed to 

the proposed amendment to § 920.48 

regarding marketing research and 

development because he believes each 

marketer should conduct their own 

market promotion. The Act authorizes 

the establishment of marketing research 

and development projects including 

paid advertising for certain 

commodities; however, paid advertising 

is not authorized for kiwifruit. (7 U.S.C. 

608(c)(6)(I)) The Committee developed 

this amendment taking into account that 

the CKC is no longer conducting such 

activities. One purpose of such generic 

programs is to benefit all members of 

the kiwifruit industry, including those 

that could not fund their own programs. 

As such, adding authority in the order 

for market research and development 

projects would benefit the entire 

kiwifruit industry. Therefore, no change 

to the proposed amendment is being 

adopted. 

The commenter only supported the 

amendment to add authority to § 920.47 

to conduct production and postharvest 

research if the quorum requirement of 

eight votes passes in § 920.32. The 

commenter wanted to either eliminate 

or link the two proposed amendments. 

Such a change would not allow the 

voters to consider each proposal on its 

own merits. Currently, the order 

requires an eight vote plurality for any 

changes for expenses, assessments, or 

recommended regulations in § 920.32. 

The Committee unanimously supported 

requiring eight votes for approval of 

marketing research and development as 

well as production and postharvest 

research activities. Requiring at least 

eight votes would insure that a broad 

base of support existed for any major 

actions that would affect the budget. 

Further, the Committee believes this 

requirement will ensure that industry 

support exists before undertaking these 

activities. The commenter was 


emcdonald on DSK67QTVN1PROD with PROPOSALS
46828 Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / 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. 

supportive of adding the quorum voting 

requirement for production and 

postharvest research and the commenter 

was in favor of production and 

postharvest research. 

The purpose of not bundling the 

proposed amendments is to give the 

industry the opportunity to consider 

each proposal on its own merits. If the 

proposed addition of new § 920.47 and/ 

or § 920.48 is approved by voters, the 

language in § 920.32 will be amended 

accordingly, if that amendment also 

receives the required approval. 

Likewise, if § 920.32 does not pass, 

§ 920.47 and/or § 920.48 could still 

benefit the industry. Accordingly, no 

changes have been made to the 

proposed amendments. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

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

MarketingOrdersSmallBusinessGuide. 

Any questions about the compliance 

guide should be sent to Jeffrey Smutny 

at the previously mentioned address in 

the FOR FURTHER INFORMATION CONTACT

section. 

Findings and Conclusions 

The findings and conclusions and 

general findings and determinations 

included in the proposed rule set forth 

in the February 8, 2013, 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 rule 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 part 900.400–407) to determine 

whether the annexed order amending 

the order regulating the handling of 

kiwifruit grown in California is 

approved 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, 2012, 

through July 31, 2013. 

The agents of the Secretary to conduct 

such referendum are designated to be 

Rose Aguayo and Kathie Notoro, 

California Marketing Field Office, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Program, 

AMS, USDA; Telephone: (559) 487– 

5901, or Email: 

Rose.Aguayo@ams.usda.gov or 

Kathie.Notoro@ams.usda.gov, 

respectively. 

List of Subjects in 7 CFR Part 920 

Marketing agreements, Kiwifruit, 

Reporting and recordkeeping 

requirements. 

Dated: July 29, 2013. 

Rex A. Barnes, 

Associate 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 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. 

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 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; 

3. The marketing order, as amended, 

and as hereby proposed to be further 

amended, is limited in 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 

produced in the production area; and 

5. All handling of kiwifruit produced 

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. 

Order Relative to Handling 

It is therefore ordered, That on and 

after the effective date hereof, all 

handling of kiwifruit grown in 

California shall be in conformity to, and 

in compliance with, the terms and 

conditions of the said order as hereby 

proposed to be amended as follows: 

The provisions of the proposed 

marketing order amending the order 

contained in the proposed rule issued 

by the Administrator on February 4, 

2013, and published in the Federal 

Register (78 FR 9331) on February 8, 

2013, will be and are the terms and 

provisions of this order amending the 

order and are set forth in full herein. 

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 § 920.27 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. 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. 

■ 3. Revise § 920.32(a) 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, production and 

postharvest research, market research 

and development, or recommendations 

for regulations pursuant to §§ 920.50 


emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 46829 

through 920.55, of this part shall require 

at least eight concurring votes. 

* * * * * 

■ 4. Add § 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 and § 920.48. Furthermore, 

such contributions shall be free from 

any encumbrances by the donor, and the 

committee shall retain complete control 

of their use. 

■ 5. Add § 920.47 to read as follows: 

§ 920.47 Production and postharvest 

research. 

The committee, with the approval of 

the Secretary, may establish or provide 

for the establishment of projects 

involving research designed to assist or 

improve the efficient production and 

postharvest handling of kiwifruit. 

■ 6. Add § 920.48 to read as follows: 

§ 920.48 Market research and 

development. 

The committee, with the approval of 

the Secretary, may establish or provide 

for the establishment of marketing 

research and development projects 

designed to assist, improve, or promote 

the marketing, distribution, and 

consumption of kiwifruit. 

[FR Doc. 2013–18627 Filed 8–1–13; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF ENERGY 

10 CFR Part 810 

RIN 1994–AA02 

Assistance to Foreign Atomic Energy 

Activities 

AGENCY: National Nuclear Security 

Administration (NNSA), Department of 

Energy (DOE). 

ACTION: Supplemental notice of 

proposed rulemaking and public 

meetings. 

SUMMARY: On September 7, 2011, DOE 

issued a notice of proposed rulemaking 

(NOPR) to propose the first 

comprehensive updating of regulations 

concerning Assistance to Foreign 

Atomic Energy Activities since 1986. 

The NOPR reflected a need to make the 

regulations consistent with current 

global civil nuclear trade practices and 

nonproliferation norms, and to update 

the activities and technologies subject to 

the Secretary of Energy’s specific 

authorization and DOE reporting 

requirements. It also identified 

destinations with respect to which most 

assistance would be generally 

authorized and destinations that would 

require a specific authorization by the 

Secretary of Energy. After careful 

consideration of all comments received, 

DOE today is issuing this supplemental 

notice of proposed rulemaking (SNOPR) 

to respond to those comments, propose 

new or revised rule changes, and afford 

interested parties a second opportunity 

to comment. 

DATES: Written comments must be 

postmarked on or before October 31, 

2013 to ensure consideration. DOE will 

hold two public meetings. The first 

public meeting will be held in the Large 

Auditorium at the U.S. Department of 

Energy, Forrestal Building, on August 5, 

2013, from 1 to 4 p.m. DOE has also 

arranged a call-in line for this first 

meeting. Interested persons should 

inform DOE of their intent to participate 

by phone or attend in-person, as there 

are a limited number of lines for the call 

and there is limited room capacity in 

the auditorium. DOE asks that interested 

persons send their requests to 

participate in this meeting via email at 

Part810.SNOPR@nnsa.doe.gov, by 4:30 

p.m. on August 2, 2013. To ensure inperson participation, email the request 

by 10 a.m., August 2, 2013. DOE will 

confirm its receipt of requests and, at 

that time, provide further logistical 

information, including the call-in 

number for those participating by 

phone. DOE will hold a second public 

meeting in September. The 

announcement of the second public 

meeting will be provided in a future 

Federal Register notice. 

ADDRESSES: You may submit comments, 

identified by RIN 1994–AA02, by any of 

the following methods: 

1. Federal Rulemaking Portal: http:// 

www.regulations.gov/ 

#!docketDetail;D=DOE-HQ-2011-0035. 

Follow the instructions for submitting 

comments. 

2. Email: Part810.SNOPR@hq.doe.gov. 

Include RIN 1994–AA02 in the subject 

line of the message. 

3. Mail: Richard Goorevich, Senior 

Policy Advisor, Office of 

Nonproliferation and International 

Security, NA–24, National Nuclear 

Security Administration, Department of 

Energy, 1000 Independence Avenue 

SW., Washington, DC 20585. 

Due to potential delays in DOE’s 

receipt and processing of mail sent 

through the U.S. Postal Service, DOE 

encourages responders to submit 

comments electronically to ensure 

timely receipt. 

All submissions must include the RIN 

for this rulemaking, RIN 1994–AA02. 

For detailed instructions on submitting 

comments and additional information 

on the rulemaking process, see the 

‘‘Public Comment Procedures’’ heading 

of the SUPPLEMENTARY INFORMATION

section of this document. 

The first public meeting for this 

SNOPR will be held at the U.S. 

Department of Energy, Forrestal 

Building, Large Auditorium, 1000 

Independence Avenue SW., 

Washington, DC 20585. 

FOR FURTHER INFORMATION CONTACT: 

Richard Goorevich, Senior Policy 

Advisor, Office of Nonproliferation and 

International Security, NA–24, National 

Nuclear Security Administration, 

Department of Energy, 1000 

Independence Avenue SW., 

Washington, DC 20585, telephone 202– 

586–0589; Janet Barsy or Elliot Oxman, 

Office of the General Counsel, GC–53, 

Department of Energy, 1000 

Independence Avenue SW., 

Washington, DC 20585, telephone 202– 

586–3429 (Ms. Barsy) or 202–586–1755 

(Mr. Oxman); or Katie Strangis, National 

Nuclear Security Administration, Office 

of the General Counsel, 1000 

Independence Avenue SW., 

Washington, DC 20585, telephone 202– 

586–8623. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Description of Proposed Changes 

III. Public Comment Procedures 

IV. Discussion of Comments Received on the 

September 2011 NOPR 

A. Process Issues 

1. Compliance With APA Rulemaking 

Requirements 

2. Part 810 Process Improvements 

B. Classification of Foreign Destinations 

1. Generally Authorized Destinations 

Proposed To Require Specific 

Authorization 

2. Continued Specific Authorization 

Destinations 

3. Former Generally Authorized 

Destinations 

4. Emerging Civil Nuclear Trading Partner 

Countries 

C. Activities Requiring Part 810 

Authorization 

1. Special Nuclear Material Nexus 

Requirement 

2. Activities Supporting Commercial Power 

Reactors 

3. ‘‘Deemed Exports’’ and ‘‘Deemed ReExports’’ 

4. Technology Transfers To Individuals 

With Dual Citizenship or Permanent 

Residency 

5. Operational Safety Activities 

6. Offshore Activities: ‘‘Control-in-Fact’’ 

7. Back-end Activities 

8. Nuclear Regulatory Commission and 

Departments of Commerce and State 

Approved Activities 

9. Medical Isotope Production 

10. Activities Carried Out by International 

Atomic Energy Agency Personnel 


emcdonald on DSK67QTVN1PROD with PROPOSALS