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contains regulatory documents having general

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Rules and Regulations Federal Register

62959 

Vol. 78, No. 205 

Wednesday, October 23, 2013 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 920 

[Docket No. AMS–FV–13–0071; FV13–920– 

2 IR] 

Kiwifruit Grown in California; 

Decreased Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Interim rule with request for 

comments. 

SUMMARY: This rule decreases the 

assessment rate established for the 

Kiwifruit Administrative Committee 

(Committee) for the 2013–14 and 

subsequent fiscal periods from $0.035 to 

$0.025 per 9-kilo volume-fill container 

or equivalent of kiwifruit. The 

Committee locally administers the 

marketing order, which regulates the 

handling of kiwifruit grown in 

California. Assessments upon kiwifruit 

handlers are used by the Committee to 

fund reasonable and necessary expenses 

of the program. The fiscal period began 

on August 1 and ends July 31. The 

assessment rate will remain in effect 

indefinitely unless modified, 

suspended, or terminated. 

DATES: Effective October 24, 2013. 

Comments received by November 22, 

2013, 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 and Agreement Division, Fruit 

and Vegetable Program, 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 document 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 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 

comments will be made public on the 

internet at the address provided above. 

FOR FURTHER INFORMATION CONTACT: 

Kathie Notoro, Marketing Specialist, or 

Martin Engeler, Regional Director, 

California Marketing Field Office, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Program, 

AMS, USDA; Telephone: (559) 487– 

5901, Fax: (559) 487–5906, or Email: 

Kathie.Notoro@ams.usda.gov, or 

Martin.Engeler@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 

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 Orders 

12866 and 13563. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. Under the marketing order now 

in effect, California kiwifruit 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 kiwifruit 

beginning on August 1, 2013, 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 2013–14 and subsequent fiscal 

periods from $0.035 to $0.025 per 9-kilo 

volume-fill container or equivalent of 

kiwifruit. 

The California kiwifruit marketing 

order provides authority for the 

Committee, with the approval of USDA, 

to formulate an annual budget of 

expenses and collect assessments from 

handlers to administer the program. The 

Committee members are producers of 

California kiwifruit. They are familiar 

with the Committee’s needs and with 

the costs of goods and services in their 

local area. Therefore, they are in a 

position to formulate an appropriate 

budget and assessment rate. The 

assessment rate is formulated and 

discussed in a public meeting. Thus, all 

directly affected persons have an 

opportunity to participate and provide 

input. 

For the 2008–09 and subsequent fiscal 

periods, the Committee recommended, 

and USDA approved, an assessment rate 

that would continue in effect from fiscal 

period to fiscal period unless modified, 

suspended, or terminated by USDA 

upon recommendation and information 

submitted by the Committee or other 

information available to USDA. 

The Committee met on July 11, 2013, 

and unanimously recommended 2013– 

14 expenditures of $113,550 and an 

assessment rate of $0.025 per 9-kilo 

volume-fill container or equivalent of 

kiwifruit. In comparison, last year’s 

budgeted expenditures were $108,075. 

The assessment rate of $0.025 per 9-kilo 

volume-fill container or equivalent is 

$0.010 per 9-kilo volume-fill container 

or equivalent less than the rate currently 


tkelley on DSK3SPTVN1PROD with RULES
62960 Federal Register / Vol. 78, No. 205 / Wednesday, October 23, 2013 / Rules and Regulations 

in effect. This action will provide 

sufficient revenue to meet the 

Committee’s expenses while 

maintaining a financial reserve within 

the maximum amount permitted under 

the order, which is approximately one 

fiscal period’s expense. 

The major expenditures 

recommended by the Committee for the 

2013–14 year include $76,125 for 

management expenses, $7,500 for a 

financial audit, $5,000 for handler 

audits, and $10,000 for a contingency 

fund. Budgeted expenses for these items 

in 2012–13 were $72,500 for 

management expenses, $7,000 for a 

financial audit, $5,000 for handler 

audits, and $10,000 for a contingency 

fund. 

The assessment rate recommended by 

the Committee was derived by 

considering the amount of revenue 

needed to meet anticipated expenses, 

estimated shipments of California 

kiwifruit, excess funds carried into the 

2013–14 crop year, and estimated 

interest income. Kiwifruit shipments for 

the year are estimated at 2,600,000 9- 

kilo volume-fill containers. When 

applied to the new assessment rate, this 

should provide $65,000 in income. 

Assessment income, combined with 

interest income and reserve funds, will 

be sufficient to meet the anticipated 

expenses of $113,550. This also should 

result in a July 2014 ending reserve of 

$101,391, which is within the maximum 

reserve of approximately one fiscal 

year’s expenses permitted by the order 

(§ 920.42). 

The assessment rate established by 

this rule will continue in effect 

indefinitely unless modified, 

suspended, or terminated by USDA 

upon recommendation and information 

submitted by the Committee or other 

available information. 

Although this assessment rate is 

effective for an indefinite period, the 

Committee will continue to meet prior 

to or during each fiscal period to 

recommend a budget of expenses and 

consider recommendations to modify 

the assessment rate. The dates and times 

of Committee meetings are available 

from the Committee or USDA. 

Committee meetings are open to the 

public and interested persons may 

express their views at these meetings. 

USDA will evaluate Committee 

recommendations and other available 

information to determine whether to 

modify the assessment rate, and further 

rulemaking will be undertaken as 

necessary. The Committee’s 2013–14 

budget and those for subsequent fiscal 

periods will be reviewed and, as 

appropriate, approved by USDA. 

Initial Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) (5 

U.S.C. 601–612), the Agricultural 

Marketing Service (AMS) has 

considered the economic impact of this 

rule 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 

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 the rules issued thereunder, are 

unique in that they are brought about 

through group action of essentially 

small entities acting on their own 

behalf. 

There are approximately 178 kiwifruit 

growers in the production area and 

approximately 28 handlers subject to 

regulation under the marketing order. 

Small agricultural producers are defined 

by the Small Business Administration 

(13 CFR 121.201) as those having annual 

receipts less than $750,000, and small 

agricultural service firms are defined as 

those whose annual receipts are less 

than $7,000,000. 

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 and shipment 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. Based on kiwifruit 

production and price information, as 

well as the total number of California 

kiwifruit growers, average annual 

grower revenue is less than $750,000. 

Thus, the majority of California 

kiwifruit producers may also be 

classified as small entities. 

This rule decreases the assessment 

rate established for the Committee and 

collected from handlers for the 2013–14 

and subsequent fiscal periods from 

$0.035 to $0.025 per 9-kilo volume-fill 

container or equivalent of kiwifruit. The 

Committee unanimously recommended 

2013–14 expenditures of $113,550 and 

an assessment rate of $0.025 per 9-kilo 

volume-fill container. The proposed 

assessment rate of $0.025 is $0.010 

lower than the 2012–13 rate. The 

quantity of assessable kiwifruit for the 

2013–14 fiscal year is estimated at 

2,600,000 9-kilo volume-fill containers. 

Thus, the $0.025 rate should provide 

$65,000 in assessment income and 

combined with reserve funds and 

interest income, should be adequate to 

meet this year’s expenses. 

The major expenditures 

recommended by the Committee for the 

2013–14 year include $76,125 for 

management expenses, $7,500 for a 

financial audit, $5,000 for handler 

audits, and $10,000 for a contingency 

fund. Budgeted expenses for these items 

in 2012–13 were $72,500 for 

management expenses, $7,000 for a 

financial audit, $5,000 for handler 

audits, and $10,000 for a contingency 

fund. 

The Committee unanimously 

recommended the lower assessment 

rate. Income generated from this 

assessment rate, plus reserve funds and 

interest income, will be sufficient to 

meet the Committee’s anticipated 

expenses of $113,550 and should result 

in a July 2014 ending reserve of 

$101,391, which is within the maximum 

reserve amount of approximately one 

fiscal year’s expenses permitted by the 

order (§ 920.42). 

Prior to arriving at this budget and 

assessment rate, the Committee 

considered alternative expenditure 

levels, but ultimately decided that the 

recommended levels were reasonable 

and necessary to properly administer 

the order. 

A review of historical information and 

preliminary information pertaining to 

the upcoming season indicates that the 

grower price for 2013–14 could range 

between $750 and $850 per ton, or 

between $7.42 to $8.42 per 9-kilo 

volume-fill container of assessable 

kiwifruit. Utilizing these estimates and 

the assessment rate of $0.025, estimated 

assessment revenue as a percentage of 

total producer revenue could range 

between 0.30 and 0.34 percent for the 

season. 

This action decreases the assessment 

obligation imposed on handlers. 

Assessments are applied uniformly on 

all handlers, and some of the costs may 

be passed on to producers. However, 

decreasing the assessment rate reduces 

the burden on handlers and may reduce 

the burden on producers. In addition, 

the Committee’s meeting was widely 

publicized throughout the California 

kiwifruit industry and all interested 

persons were invited to attend the 

meeting and participate in Committee 

deliberations on all issues. Like all 

Committee meetings, the July 11, 2013, 

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 

comments on this interim rule, 

including the regulatory and 

informational impacts of this action on 

small businesses. 


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Federal Register / Vol. 78, No. 205 / Wednesday, October 23, 2013 / Rules and Regulations 62961 

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. No 

changes in those requirements as a 

result of this action are necessary. 

Should any changes become necessary, 

they would be submitted to OMB for 

approval. 

This action imposes no additional 

reporting or recordkeeping requirements 

on either small or large California 

kiwifruit handlers. 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. 

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. 

USDA has not identified any relevant 

Federal rules that duplicate, overlap, or 

conflict with this rule. 

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 Jeffrey Smutny 

at the previously mentioned address in 

the FOR FURTHER INFORMATION CONTACT

section. 

After consideration of all relevant 

material presented, including the 

Committee’s information and 

recommendation, 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. 

Pursuant to 5 U.S.C. 553, it is also 

found and determined upon good cause 

that it is impracticable, unnecessary, 

and contrary to the public interest to 

give preliminary notice prior to putting 

this rule into effect and that good cause 

exists for not postponing the effective 

date of this rule until 30 days after 

publication in the Federal Register 

because: (1) The 2013–14 fiscal year 

began on August 1, 2013, handlers 

began shipping kiwifruit in midSeptember, and the order requires that 

the rate of assessment for each fiscal 

period apply to all assessable kiwifruit 

handled during the period; (2) this 

action decreases the assessment rate for 

assessable kiwifruit beginning with the 

2013–14 fiscal year; (3) handlers are 

aware of this action, which was 

unanimously recommended by the 

Committee at a public meeting and is 

similar to other assessment rate actions 

issued in past years; and (4) this interim 

rule provides a 30-day comment period, 

and all comments timely received will 

be considered prior to finalization of 

this 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. 

■ 2. Section 920.213 is revised to read 

as follows: 

§ 920.213 Assessment rate. 

On and after August 1, 2013, an 

assessment rate of $0.025 per 9-kilo 

volume-fill container or equivalent of 

kiwifruit is established for kiwifruit 

grown in California. 

Dated: October 17, 2013. 

Rex A. Barnes, 

Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2013–24892 Filed 10–22–13; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 922 

[Doc. No. AMS–FV–13–0041; FV13–922–2 

FR] 

Apricots Grown in Designated 

Counties in Washington; Increased 

Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule increases the 

assessment rate established for the 

Washington Apricot Marketing 

Committee (Committee) for the 2013– 

2014 and subsequent fiscal periods from 

$0.50 to $1.50 per ton of Washington 

apricots handled. The Committee 

locally administers the marketing order, 

which regulates the handling of apricots 

grown in designated counties in 

Washington. Assessments upon apricot 

handlers are used by the Committee to 

fund reasonable and necessary expenses 

of the program. The fiscal period began 

on April 1 and ends March 31. The 

assessment rate will remain in effect 

indefinitely unless modified, 

suspended, or terminated. 

DATES: Effective Date: October 24, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Manuel Michel, Marketing Specialist, or 

Gary D. Olson, Regional Director, 

Northwest Marketing Field Office, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Program, 

AMS, USDA; Telephone: (503) 326– 

2724, Fax: (503) 326–7440, or Email: 

Manuel.Michel@ams.usda.gov or 

GaryD.Olson@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 Agreement 

No. 132 and Order No. 922, as amended 

(7 CFR Part 922), regulating the 

handling of apricots grown in 

designated counties in Washington, 

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 Orders 

12866 and 13563. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. Under the order now in effect, 

apricot handlers in designated counties 

in Washington are subject to 

assessments. Funds necessary 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 apricots 

beginning April 1, 2013, 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 


tkelley on DSK3SPTVN1PROD with RULES