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contains regulatory documents having general

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are keyed to and codified in the Code of

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REGISTER issue of each week.

Rules and Regulations Federal Register

12051 

Vol. 74, No. 54 

Monday, March 23, 2009 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 920 

[Docket No. AMS–FV–08–0095; FV09–920– 

1 FIR] 

Kiwifruit Grown in California; 

Decreased Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

final rule which decreased the 

assessment rate established for the 

Kiwifruit Administrative Committee 

(Committee) for the 2008–09 and 

subsequent fiscal periods from $0.045 to 

$0.035 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 begins 

on August 1 and ends July 31. The 

assessment rate will remain in effect 

indefinitely unless modified, 

suspended, or terminated. 

DATES: Effective Date: April 22, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Debbie Wray, Marketing Specialist, or 

Kurt J. Kimmel, Regional Manager, 

California Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, telephone: (559) 487– 

5901, Fax: (559) 487–5906, or E-mail: 

Debbie.Wray@ams.usda.gov, or 

Kurt.Kimmel@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Jay Guerber, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue SW., STOP 0237, Washington, 

DC 20250–0237; telephone: (202) 720– 

2491, Fax: (202) 720–8938, or E-mail: 

Jay.Guerber@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This 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.’’ 

USDA is issuing this rule in 

conformance with Executive Order 

12866. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. Under the marketing order now 

in effect, California 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, 2008, and 

continue until amended, suspended, or 

terminated. This rule will not preempt 

any State or local laws, regulations, or 

policies, unless they present an 

irreconcilable conflict with this rule. 

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 continues in effect the 

action that decreased the assessment 

rate established for the Committee for 

the 2008–09 and subsequent fiscal 

periods from $0.045 to $0.035 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 

members of the Committee are 

producers of California kiwifruit. They 

are familiar with the Committee’s needs 

and the costs for goods and services in 

their local area and are thus 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 2005–06 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 October 14, 

2008, and unanimously recommended 

2008–09 expenditures of $76,492 and an 

assessment rate of $0.035 per 9-kilo 

volume-fill container or equivalent of 

kiwifruit. In comparison, last year’s 

budgeted expenditures were $99,302. 

The assessment rate of $0.035 per 9-kilo 

volume-fill container or equivalent is 

$0.010 per 9-kilo volume-fill container 

or equivalent less than the rate 

previously in effect. The decreased 

assessment rate is primarily due to a 

decrease in management expenditures 

for the 2008–09 fiscal year. 

The following table compares major 

budget expenditures recommended by 

the Committee for the 2007–08 and 

2008–09 fiscal periods: 


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12052 Federal Register / Vol. 74, No. 54 / Monday, March 23, 2009 / Rules and Regulations 

Budget expense categories 2007–08 2008–09 

Staff Salaries/Management ..................................................................................................................................... $65,150 $56,700 

Financial Management Services ............................................................................................................................. 12,000 1,000 

Audit Expense .......................................................................................................................................................... 5,000 3,500 

Vehicle Maintenance/Insurance ............................................................................................................................... 3,180 ........................

Travel ....................................................................................................................................................................... 3,300 3,500 

Office Expenses ....................................................................................................................................................... 2,830 4,500 

The assessment rate recommended by 

the Committee was derived by using the 

following formula: Anticipated 2008–09 

expenses ($76,492), minus the 

difference between the 2008 beginning 

reserve ($62,647) and the desired 2009 

ending reserve ($54,311), divided by the 

total estimated 2008–09 shipments 

(1,944,444 9-kilo volume-fill 

containers). This formula results in the 

assessment rate of $0.035 per 9-kilo 

volume-fill container or equivalent. As 

mentioned earlier, kiwifruit shipments 

for the year are estimated at 1,944,444 

9-kilo volume-fill containers which 

should provide $68,056 in assessment 

income. An additional $100 in penalty 

and interest income is also anticipated, 

bringing the total projected 2008–09 

revenue to $68,156. Income generated 

through this rate, plus interest income 

and reserve funds, will provide 

sufficient funds to meet the anticipated 

expenses of $76,492 and should result 

in a July 2009 ending reserve of $54,311 

which is within the maximum reserve of 

approximately one fiscal year’s 

expenses permitted by the order 

(§ 920.42). 

The assessment rate 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 for 

modification of 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 

modification of the assessment rate is 

needed. Further rulemaking will be 

undertaken as necessary. The 

Committee’s 2008–09 budget and those 

for subsequent fiscal periods will be 

reviewed and, as appropriate, approved 

by USDA. 

Final 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 final regulatory 

flexibility analysis. 

The purpose of the RFA is to fit 

regulatory actions to the scale of 

business subject to such actions in order 

that small businesses will not be unduly 

or disproportionately burdened. 

Marketing orders issued pursuant to the 

Act, and 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 31 handlers 

of California kiwifruit subject to 

regulation under the marketing order 

and approximately 220 growers in the 

production area. 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. None of the 31 handlers 

subject to regulation have annual 

kiwifruit sales of $7,000,000. Dividing 

average crop value for 2007–08 reported 

by the National Agricultural Statistics 

Service (NASS) of $22,517,000 by the 

number of producers (220) yields an 

average annual producer revenue 

estimate of about $102,350, which is 

well below the SBA threshold of 

$750,000. Based on the foregoing, it may 

be concluded that all kiwifruit handlers 

and the majority of producers may be 

classified as small entities. 

This rule continues in effect the 

action that decreased the assessment 

rate established for the Committee and 

collected from handlers for the 2008–09 

and subsequent fiscal periods from 

$0.045 to $0.035 per 9-kilo volume-fill 

container or equivalent of kiwifruit. The 

Committee unanimously recommended 

2008–09 expenditures of $76,492 and an 

assessment rate of $0.035 per 9-kilo 

volume-fill container or equivalent of 

kiwifruit. The assessment rate of $0.035 

is $0.010 lower than the 2007–08 rate. 

The quantity of assessable kiwifruit for 

the 2008–09 fiscal period is estimated at 

1,944,444 9-kilo volume-fill containers 

or equivalent of kiwifruit. Thus, the rate 

should provide $68,056 in assessment 

income. Income derived from handler 

assessments, along with penalty and 

interest income and funds from the 

Committee’s authorized reserve, will be 

adequate to cover budgeted expenses. 

The following table compares major 

budget expenditures recommended by 

the Committee for the 2007–08 and 

2008–09 fiscal years: 

Budget expense categories 2007–08 2008–09 

Staff Salaries/Management ..................................................................................................................................... $65,150 $56,700 

Financial Management Services ............................................................................................................................. 12,000 1,000 

Audit Expense .......................................................................................................................................................... 5,000 3,500 

Vehicle Maintenance/Insurance ............................................................................................................................... 3,180 ........................

Travel ....................................................................................................................................................................... 3,300 3,500 

Office Expenses ....................................................................................................................................................... 2,830 4,500 

The Committee reviewed and 

unanimously recommended 2008–09 

expenditures of $76,492 which included 

a reduction in management expenses. 

Prior to arriving at this budget, the 

Committee considered alternative 

expenditure levels, but ultimately 

decided that the recommended levels 

were reasonable to properly administer 

the order. The assessment rate 

recommended by the Committee was 

derived by using the following formula: 


dwashington3 on PROD1PC60 with RULES
Federal Register / Vol. 74, No. 54 / Monday, March 23, 2009 / Rules and Regulations 12053 

Anticipated 2008–09 expenses 

($76,492), minus the difference between 

the 2008 beginning reserve ($62,647) 

and the desired 2009 ending reserve 

($54,311), divided by the total estimated 

2008–09 shipments (1,944,444 9-kilo 

volume-fill containers). This formula 

results in the assessment rate of $0.035 

per 9-kilo volume-fill container or 

equivalent. As mentioned earlier, 

kiwifruit shipments for the year are 

estimated at 1,944,444 9-kilo volume-fill 

containers which should provide 

$68,056 in assessment income. An 

additional $100 in penalty and interest 

income is also anticipated, bringing the 

total projected 2008–09 revenue to 

$68,156. Income generated through this 

rate, plus interest income and reserve 

funds, will provide sufficient funds to 

meet the anticipated expenses of 

$76,492 and should result in a July 2009 

ending reserve of $54,311 which is 

within the maximum reserve of 

approximately one fiscal year’s 

expenses permitted by the order 

(§ 920.42). 

According to NASS, the season 

average grower price for years 2006 and 

2007 were $911 and $950 per ton, 

respectively. These prices provide a 

range within which the 2008–09 season 

average grower price could fall. 

Dividing these average grower prices by 

2,000 pounds per ton provides a price 

per pound range of $0.46 to $0.48. 

Multiplying these per-pound prices by 

19.8 pounds (the weight of a 9-kilo 

volume-fill container) yields a 2008–09 

price range estimate of $9.11 to $9.50 

per 9-kilo volume-fill container of 

assessable kiwifruit. 

To calculate the percentage of grower 

revenue represented by the assessment 

rate, the assessment rate of $0.035 per 

9-kilo volume-fill container is divided 

by the low and high estimates of the 

price range. The estimated assessment 

revenue for the 2008–09 fiscal year as a 

percentage of total grower revenue 

would thus likely range between 0.368 

and 0.384 percent. 

This action continues in effect the 

action that decreased 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 October 14, 

2008, meeting was a public meeting and 

all entities, both large and small, were 

able to express views on this issue. 

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. In addition, as noted in 

the initial regulatory flexibility analysis, 

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. 

An interim final rule concerning this 

action was published in the Federal 

Register on December 12, 2008 (73 FR 

75537). Copies of that rule were also 

mailed or sent via facsimile to all 

kiwifruit handlers. Finally, the interim 

final rule was made available through 

the Internet by USDA and the Office of 

the Federal Register. A 60-day comment 

period was provided for interested 

persons to respond to the interim final 

rule. The comment period ended on 

February 10, 2009, and no comments 

were received. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

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

AMSv1.0/ams.fetchTemplate

Data.do?template=Template

N&page=Marketing

OrdersSmallBusinessGuide. Any 

questions about the compliance guide 

should be sent to Jay Guerber at the 

previously mentioned address in the 

FOR FURTHER INFORMATION CONTACT

section. 

After consideration of all relevant 

material presented, including the 

information and recommendation 

submitted by the Committee and other 

available information, it is hereby found 

that this rule, as hereinafter set forth, 

will tend to effectuate the declared 

policy of the Act. 

List of Subjects in 7 CFR Part 920 

Kiwifruit, Marketing agreements, 

Reporting and recordkeeping 

requirements. 

PART 920—KIWIFRUIT GROWN IN 

CALIFORNIA 

■ Accordingly, the interim final rule 

amending 7 CFR part 920, which was 

published at 73 FR 75537 on December 

12, 2008, is adopted as a final rule 

without change. 

Dated: March 18, 2009. 

Craig Morris, 

Acting Associate Administrator. 

[FR Doc. E9–6249 Filed 3–20–09; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 930 

[Docket No. AMS–FV–08–0066; FV08–930– 

2 FIR] 

Tart Cherries Grown in the States of 

Michigan, et al.; Change to Fiscal 

Period 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

final rule changing the fiscal period 

prescribed under the tart cherry 

marketing order (order). The order 

regulates the handling of tart cherries 

grown in Michigan, New York, 

Pennsylvania, Oregon, Utah, 

Washington and Wisconsin and is 

administered locally by the Cherry 

Industry Administrative Board (Board). 

This rule continues in effect an action 

that changed the fiscal period from July 

1 through June 30 to October 1 through 

September 30. This will improve the 

administration and the fiscal operation 

of the Board. 

DATES: Effective date April 22, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Patricia A. Petrella or Kenneth G. 

Johnson, Marketing Order 

Administration Branch, F&V, AMS, 

USDA, Unit 155, 4700 River Road, 

Riverdale, Maryland 20737, telephone: 

(301) 734–5243; Fax: (301) 734–5275 or 

e-mail at Patricia.Petrella@usda.gov or 

Kenneth.Johnson@usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Jay Guerber, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., STOP 0237, Washington, 

DC 20250–0237; telephone: (202) 720– 

2491; Fax: (202) 720–8938, or e-mail: 

Jay.Guerber@usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Order No. 

930 (7 CFR part 930) (order) regulating 

the handling of tart cherries grown in 

the States of Michigan, New York, 


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