[Federal Register Volume 76, Number 153 (Tuesday, August 9, 2011)]
[Proposed Rules]
[Pages 48742-48745]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20116]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

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.

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Federal Register / Vol. 76, No. 153 / Tuesday, August 9, 2011 / 
Proposed Rules

[[Page 48742]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 920

[Doc. No. AMS-FV-11-0041; FV11-920-1 PR]


Kiwifruit Grown in California; Change in Reporting Requirements 
and New Information Collection

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed Rule.

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SUMMARY: This rule invites comments on proposed changes to 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 would require handlers to file two end-of-season 
reports with the Committee. One report would contain price and handler 
shipment information and the other report would contain grower shipment 
information. The Committee would use this information to determine 
appropriate grower representation on the Committee, to conduct grower 
nominations, to verify shipments for assessment collections, and to 
prepare the annual report and the annual marketing policy, as required 
under the order. This proposal also announces the Agricultural 
Marketing Service's (AMS) intention to request approval from Office of 
Management and Budget (OMB) of a new information collection.

DATES: Comments on the proposed rulemaking must be received by October 
11, 2011. Pursuant to the Paperwork Reduction Act (44 U.S.C. chapter 
35), comments on the information collection burden that would result 
from this proposal must be received by October 11, 2011.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. 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. All comments should reference the docket number 
and the date and page number of this issue of the Federal Register and 
will be made 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 submitted in response to this rule 
will be included in the record and will be made available to the 
public. Please be advised that the identity of the individuals or 
entities submitting the comments will be made public on the Internet at 
the address provided above.

FOR FURTHER INFORMATION CONTACT: Kathie M. Notoro, 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: <a href="/cdn-cgi/l/email-protection#521933263a3b377c1c3d263d203d12333f217c272136337c353d24"><span class="__cf_email__" data-cfemail="561d37223e3f337818392239243916373b25782325323778313920">[email protected]</span></a> or 
<a href="/cdn-cgi/l/email-protection#79320c0b0d57321014141c153918140a570c0a1d18571e160f"><span class="__cf_email__" data-cfemail="95dee0e7e1bbdefcf8f8f0f9d5f4f8e6bbe0e6f1f4bbf2fae3">[email protected]</span></a>.
    Small businesses may request information on complying with this 
regulation by contacting Laurel May, 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#afe3cedaddcac381e2ced6efcec2dc81dadccbce81c8c0d9"><span class="__cf_email__" data-cfemail="3c705d494e595012715d457c5d514f12494f585d125b534a">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This proposal 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 proposal 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 proposal invites comments on changes to the reporting 
requirements authorized under the order. This rule would add two new 
reporting requirements and two new forms to those currently specified 
in the order's administrative rules and regulations. These changes 
would allow the Committee to collect annual, end-of-season price, 
shipment, and grower information (grower entity/farm name, mailing 
address, location of farm by county, shipments by pack style, and 
acreage) from all kiwifruit handlers. Under this proposed regulation, 
both reports would be due from each handler within 30 days after such 
handler has completed current season shipments. The Committee would use 
this information to determine appropriate grower representation on the 
Committee, to conduct grower nominations, to verify shipments for 
assessment collections, and to prepare the annual report and the annual 
marketing policy, as required under the order. This proposal was 
unanimously recommended by the Committee at a meeting on March 17, 
2011.
    Section 920.12 of the order defines the Districts within the 
production area, and Section 920.20 provides, in part, that ``* * * 
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.''
    Section 920.22 of the order defines the nomination procedures, 
allowing for nominations to be conducted via mail, and provides that 
growers are eligible to

[[Page 48743]]

participate in nominations in the district they produce kiwifruit.
    Section 920.34 of the order requires that the Committee 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 920.41 of the order provides authority to assess each 
person who first handles kiwifruit a pro rata share of the expenses 
which are reasonable and likely to be incurred by the Committee during 
a fiscal period.
    Section 920.50 of the order requires the Committee to prepare an 
annual marketing policy 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.
    Section 920.61 (Compliance) of the order provides that all handlers 
must conform to the provisions and regulations set forth in the order, 
and the Committee is to verify handler compliance with order 
provisions.
    The Committee's current reporting requirements are specified in 
Sec.  920.160 of the order's administrative rules and regulations. This 
section currently requires that handlers submit: (1) A report of 
shipment and inventory data which provides monthly data regarding the 
reporting period, name and identification of the shipper, and the 
number of containers by type and weight by shipment destination 
category of all kiwifruit; (2) a Kiwifruit Inventory Shipping System 
(KISS) form, which consists of three sections: KISS/Add Inventory, 
KISS/Deduct Inventory, and KISS/Shipment and which provides beginning 
inventory by size and container type, quantity of the fruit lost in 
repack or repacked into other container types, total domestic and 
export shipments by size and container type; and any other adjustments 
which increase or decrease handler inventory; (3) a Return Receipt of 
Kiwifruit to Grower Form which reports fruit returned by a handler to a 
grower(s); and (4) a KISS Price/Shipment report which contains handler 
information, reporting period, total fresh market shipments, and gross 
f.o.b. sales of non-organic kiwifruit by pack style and size.
    Since 1984, the California Kiwifruit Commission (Commission) has 
collected end-of-season price, shipment, and grower information (grower 
entity/farm name, mailing address, location of farm by county, 
shipments by pack style, and acreage), on organic and non-organic 
kiwifruit via two Commission forms. The Commission has, through an 
agreement, shared this information with the Committee. The Committee 
previously used the majority of this information to determine 
appropriate grower representation on the Committee, to conduct grower 
nominations, to verify shipments for assessment collections, and to 
prepare the annual report and the annual marketing policy under the 
order.
    The Commission will cease to exist as of September 30, 2011. Thus, 
the Committee would no longer have access to this previously shared 
information. As the current reporting requirements, under the order, 
make no provisions for collecting end-of-season information previously 
provided by the Commission, and as the Committee would need this 
information from all handlers, to include organic handlers, the 
Committee unanimously recommended adding these new reporting 
requirements and two new forms, the End-of-Season F.O.B. Sales Report 
and the Final Packout Report, to Sec.  920.160 of the order's 
administrative rules and regulations.
    Under the proposed change, Sec.  920.160 would be revised by adding 
two new reporting requirements and two new forms, due by each handler 
(organic and non-organic) within 30 days after such handler has 
completed current season shipments. Kiwifruit shipments generally begin 
in September and continue through July. The information collected on 
the End-of-Season F.O.B. Sales Report would include data on gross 
f.o.b. sales value and number of containers for fresh market shipments 
by fruit size and pack style for the season. The information collected 
on the Final Packout Report would include containers shipped by pack 
style for fresh market shipments, for each grower entity during the 
season. The report would also include the grower entity and farm name, 
mailing address, the county where the farm is located, and total 
acreage. Both reports would also show the company name, contact person, 
and phone number of the handler. The information obtained from both of 
the two new reports would provide data to determine appropriate 
representation on the Committee, to conduct grower nominations, to 
verify shipments for assessment collections, and to prepare the annual 
report and annual marketing policy.
    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 would only change the reporting requirements under the domestic 
handling regulations. No changes to the import regulations would be 
made.

Initial 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 initial 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 27 handlers of 
kiwifruit subject to regulation under the marketing order and 
approximately 176 kiwifruit growers in the production area.
    The California Agricultural Statistical Service (CASS) reported 
total California kiwifruit production for the 2009-10 season at 26,000 
tons with an average price of $1,470 per ton. Based on the average 
price, shipment, and grower information provided by the CASS 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 proposed rule would revise Sec.  920.160 by adding two new 
reporting requirements and two new forms, due

[[Page 48744]]

by handlers within 30 days after such handler has completed current 
season shipments. The information collected on the End-of-Season F.O.B. 
Sales Report would include data on gross f.o.b. sales value and number 
of containers for fresh market shipments by fruit size and pack style 
for the season. The information collected on the Final Packout Report 
would include containers shipped by pack style for fresh market 
shipments, for each grower entity during the season. The report would 
also include the grower entity and farm name, mailing address, the 
county where the farm is located, and total acreage. Both reports would 
also show the company name, contact person, and phone number of the 
handler. The information obtained from both of the two new reports 
would provide data to determine appropriate grower representation on 
the Committee, to conduct grower nominations, to verify shipments for 
assessment collections, and to prepare the annual report and annual 
marketing policy. This rule would revise Sec.  920.160, which specifies 
the reporting requirements.
    Requiring the price, shipment, and grower information at the end of 
the season would impose a minor increase in the reporting burden on all 
kiwifruit handlers. As this data was previously provided to the 
Commission and shared with the Committee, these two annual end-of-
season reports would not significantly increase the handlers' record 
keeping burden because the primary source of data is already being 
recorded and maintained by handlers as a routine part of their daily 
business. The majority of handlers use computers to record their data, 
and this information can readily be accessed and summarized for these 
reports. Consequently, any additional costs associated with these 
changes are expected to be minimal. Also, the benefits of having 
consolidated end-of-season price, shipping, and grower data are 
expected to outweigh any costs associated with the increase in 
reporting burden. Further, the benefits of this rule are expected to be 
equally available to all industry members, regardless of their size. It 
is anticipated that the transmission of these reports from handlers to 
the Committee would be done by either e-mail or facsimile (Fax) 
machines.
    The Committee discussed alternatives to this action, including 
making no changes to the reporting requirements, but determined that in 
order to carry out the objectives of the marketing order, the 
information collected contained within these two new reports would be 
necessary. Therefore, this alternative was rejected.
    This proposal would establish two new reporting requirements and 
would also require two new Committee forms: the End-of-Season F.O.B. 
Sales Report and the Final Packout Report. Therefore, this proposed 
rule would impose a minor increase in the reporting burden equally on 
all handlers, which is discussed in the Paperwork Reduction Act section 
of this document.
    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 March 17, 2011, meeting was a 
public meeting and all entities, both large and small, were able to 
express views on this issue. Finally, interested persons are invited to 
submit information on the regulatory and informational impacts of this 
action on small businesses.
    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/MarketingOrdersSmallBusinessGuide. Any questions 
about the compliance guide should be sent to Laurel May at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    A 60-day comment period is provided for interested persons to 
comment on this proposal. All written comments timely received will be 
considered before a final determination is made on this matter.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
chapter 35), this notice announces that AMS is requesting approval from 
the Office of Management and Budget (OMB) for a new information 
collection request, under OMB No. 0581-NEW. Upon approval of this new 
collection by OMB, it will be merged with the forms currently approved 
for use under OMB No. 0581-0189, Generic OMB Fruit Crops.
    Title: Kiwifruit Grown in California; Marketing Order No. 920.
    OMB Number: 0581-New.
    Type of Request: New collection.
    Abstract: The information collection requirements in this request 
are essential to carry out the intent of the Act, to provide the 
respondents the type of service they request, and to administer the 
California kiwifruit marketing order program, which has been operating 
since 1984.
    On March 17, 2011, the Committee unanimously recommended an End-of-
Season F.O.B. Sales Report and a Final Packout Report for all handlers 
to report end-of-season prices, shipment, and grower information. 
Information for these reports was previously collected by the 
Commission. This action concerns these reports, which would require the 
reports to be submitted to the Committee by handlers. Pursuant to Sec.  
920.60(c), handlers would maintain records for at least two succeeding 
fiscal years to verify the data reported to the Committee on these 
reports.
    These forms would facilitate the collection of price, shipment, and 
grower information from all kiwifruit handlers and are titled End-of-
Season F.O.B. Sales Report and Final Packout Report. The forms covered 
under this collection require the minimum information necessary to 
carry out the requirements of the order. The information collected 
would only be used by authorized representatives of the USDA, including 
AMS, Fruit and Vegetable Programs regional and headquarters staff, and 
authorized employees of the Committee. Authorized Committee employees 
would be the primary users of the information, and AMS would be the 
secondary user. The Committee's staff would compile the information 
collected from handlers and use it to determine grower representation 
on the Committee, to conduct grower nominations, to verify shipments 
for assessment collections, and to prepare its annual report and annual 
marketing policy, as required under the order. All proprietary handler 
information would be kept confidential in accordance with the Act and 
order.
    The proposed request for a new information collection under the 
order is as follows:

End-of-Season F.O.B. Sales Report

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to be no more than an average of 0.75 hours 
per response.

[[Page 48745]]

    Respondents: Persons who handle California kiwifruit.
    Estimated Number of Respondents: 27.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 20.25 hours.

Final Packout Report

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to be an average of 0.75 hours per response.
    Respondents: Persons who handle California kiwifruit.
    Estimated Number of Respondents: 27.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 20.25 hours.
    Comments: Comments are invited on: (1) Whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information will 
have practical utility; (2) the accuracy of the agency's estimate of 
the burden of the proposed collection of information, including the 
validity of the methodology and assumptions used; (3) ways to enhance 
the quality, utility, and clarity of the information to be collected; 
and (4) ways to minimize the burden of the collection of information on 
those who are to respond, including the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology.
    Comments should reference OMB No. 0581-New and the Marketing Order 
for Kiwifruit Grown in California, and should be sent to the USDA in 
care of the Docket Clerk at the previously-mentioned address or at 
http://www.regulations.gov.
    All responses to this notice will be summarized and included in the 
request for OMB approval. All comments received will become a matter of 
public record and will be available for public inspection during 
regular business hours at the address of the Docket Clerk or at http://www.regulations.gov.
    Upon publication of the final rule, this collection will be merged 
with the forms currently approved for use under OMB No. 0581-0189 
``Generic OMB Fruit Crops.''

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 
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.


Sec.  920.160  [Amended]

    2. Sec.  920.160 is amended by adding paragraphs (f) and (g) to 
read as follows:


Sec.  920.160  Reports.

* * * * *
    (f) Each handler shall file annually with the Committee an End-of-
Season F.O.B. Sales Report, due within 30 days after such handler has 
completed current season shipments, reporting gross f.o.b. sales value 
and number of containers by pack style and size for fresh market 
shipments for the season. The report shall also show the company name, 
contact person, and phone number of the handler.
    (g) Each handler shall file annually with the Committee a Final 
Packout Report, due within 30 days after such handler has completed 
current season shipments, reporting total containers shipped, by pack 
style for fresh market shipments, for each grower entity during the 
season. The report shall also include the grower entity and farm name, 
mailing address, the county in which the farm is located, and total 
acreage for each reported grower entity. Also, the report shall show 
the company name, contact person, and phone number of the handler.

    Dated: August 3, 2011.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2011-20116 Filed 8-8-11; 8:45 am]
BILLING CODE 3410-02-P


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