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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

5573 

Vol. 81, No. 22 

Wednesday, February 3, 2016 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 920 

[Doc. No. AMS–FV–15–0056; FV15–920–1 

FR] 

Kiwifruit Grown in California; 

Increased Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule implements a 

recommendation from the Kiwifruit 

Administrative Committee (Committee) 

for an increase of the assessment rate 

established for the 2015–16 and 

subsequent fiscal periods from $0.025 to 

$0.040 per 9-kilo volume-fill container 

or equivalent of kiwifruit handled under 

the marketing order (order). The 

Committee locally administers the 

order, and is comprised of growers of 

kiwifruit operating within the area of 

production. 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 February 4, 2016. 

FOR FURTHER INFORMATION CONTACT: 

Kathie Notoro, Marketing Specialist, or 

Martin Engeler, Regional Director, 

California Marketing Field Office, 

Marketing Order and Agreement 

Division, Specialty Crops 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, 

Specialty Crops 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, 13563, and 13175. 

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 would 

be applicable to all assessable kiwifruit 

beginning on August 1, 2015, 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 increases the assessment 

rate for the 2015–16 and subsequent 

fiscal periods from $0.025 to $0.040 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 with the costs of 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 2013–14 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 17 and 

September 16, 2015, and unanimously 

recommended 2015–16 fiscal year 

expenditures of $132,725 and an 

assessment rate of $0.040 per 9-kilo 

volume-fill container or equivalent of 

kiwifruit handled to fund Committee 

expenses. In comparison, last year’s 

budgeted expenditures were $120,925. 

The assessment rate of $0.040 is $0.015 

more than the rate currently in effect. 

The Committee’s recommended 2015– 

16 expenditures are $11,800 higher than 

last year’s budgeted expenditures. The 

primary reason for the increase is to 

provide funding for research. When 

applied to the Committee’s crop 

estimate for the 2015–16 fiscal year of 

2,297,000 9-kilo volume-fill containers 

or equivalent, the current assessment 

rate of $0.025 would not generate 

sufficient assessment income to 

anticipated expenses. The assessment 

rate of $0.040 per 9-kilo volume-fill 

container or its equivalent should 

generate assessment income of $91,880. 

Anticipated assessment income 

combined with financial reserve and 

interest income, should provide 

sufficient funds for the Committee to 

meet its budgeted expenses while 

maintaining its financial reserve within 

the limit authorized under the order. 

(§ 920.42) 

The major expenditures 

recommended by the Committee for the 

2015–16 fiscal period include $80,000 

for management expenses; $14,000 for 


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5574 Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Rules and Regulations 

two financial audits, $14,330 for 

research; $7,500 for International 

Kiwifruit Organization (IKO) travel; 

$2,500 for a membership fee to Buy 

California; and $2,500 for a membership 

fee to the IKO. Major budgeted expenses 

for the 2014–15 fiscal period were 

$80,000 for management expenses; 

$7,500 for a financial audit, $5,000 for 

handler audits; $2,500 for a membership 

fee to Buy California; $2,500 for IKO 

membership; and $12,500 for IKO 

travel. 

The assessment rate recommended by 

the Committee was derived by 

considering the amount of revenue 

needed to meet anticipated expenses 

divided by expected shipments of 

California kiwifruit. As previously 

mentioned, kiwifruit shipments for the 

2015–16 fiscal period are estimated at 

2,297,000 9-kilo volume-fill containers, 

which should provide $91,880 in 

assessment income. Anticipated 

assessment income derived from 

handler assessments, along with interest 

income and $40,756 from the 

Committee’s authorized financial 

reserve, should provide sufficient funds 

for the Committee to meet its budgeted 

expenses. It is anticipated that $29,119 

would remain in the financial reserve at 

the end of July 2016, which would be 

within the maximum amount permitted 

by the order of approximately one fiscal 

year’s expenses (§ 920.42). 

The assessment rate established in 

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 will be 

in effect 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 would evaluate Committee 

recommendations and other available 

information to determine whether 

modification of the assessment rate is 

needed. Further rulemaking would be 

undertaken as necessary. The 

Committee’s 2015–16 budget and those 

for subsequent fiscal periods would 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 

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 as 

those having annual receipts of less than 

$750,000, and small agricultural service 

firms are defined as those whose annual 

receipts are less than $7,000,000 (13 

CFR 121.201). 

The National Agricultural Statistical 

Service (NASS) reported total California 

kiwifruit production for the 2014 season 

at 27,400 tons, with an average price of 

$1,190 per ton. Based on the average 

price and shipment information 

provided by NASS 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 growers may also be classified 

as small entities. 

This rule increases the assessment 

rate collected from handlers for the 

2015–16 and subsequent fiscal periods 

from $0.025 to $0.040 per 9-kilo 

volume-fill container or equivalent of 

kiwifruit. The Committee unanimously 

recommended 2015–16 expenditures of 

$132,725 and an assessment rate of 

$0.040 per 9-kilo volume-fill container. 

The assessment rate of $0.040 is $0.015 

higher than the 2014–15 rate. The 

quantity of assessable kiwifruit for the 

2015–16 fiscal period is estimated at 

2,297,000 9-kilo volume-fill containers. 

Thus, the $0.040 rate should provide 

$91,880 in assessment income. 

Anticipated assessment income derived 

from handler assessments, along with 

financial reserve funds and interest 

income, should provide sufficient 

revenue for the Committee to meet its 

budgeted expenses, while maintaining 

its financial reserve within the 

maximum amount permitted by the 

order of approximately one fiscal year’s 

expenses (§ 920.42). 

The major expenditures 

recommended by the Committee for the 

2015–16 fiscal period include: $80,000 

for management expenses; $14,000 for 

two financial audits; $14,330 for 

research; $7,500 for IKO travel; $2,500 

for a membership fee to Buy California; 

and $2,500 for IKO membership. Major 

budgeted expenses for the 2014–15 

fiscal period were: $80,000 for 

management expenses; $7,500 for a 

financial audit; $5,000 for handler 

audits; $2,500 for a membership fee to 

Buy California; $2,500 for IKO 

membership; and $12,500 for IKO 

travel. 

Prior to arriving at this budget and 

assessment rate, the Committee 

considered alternative expenditure 

levels, to include maintaining the 

current assessment rate, but ultimately 

determined that the current assessment 

rate would generate insufficient revenue 

to meet its expenses. 

According to data from NASS, the 

seasonal average producer price was 

$11.09 per 9-kilo volume-fill container 

in 2013 and $11.78 per 9-kilo volumefill container in 2014. A review of 

historical information and preliminary 

information pertaining to the upcoming 

fiscal period indicates that the grower 

price for 2015–16 could range between 

$11.09 and $11.78 per 9-kilo volume-fill 

container of assessable kiwifruit. 

Therefore, estimated assessment 

revenue for the 2015–16 fiscal year as a 

percentage of total producer revenue 

could be between 0.34 percent and 0.36 

percent. 

This action increases the assessment 

obligation imposed on handlers. While 

assessments impose some additional 

costs on handlers, the costs are minimal 

and uniform on all handlers. However, 

these costs would be offset by the 

benefits derived by the operation of the 

marketing order. In addition, the 

Committee’s meetings were widely 

publicized throughout the California 

kiwifruit industry and all interested 

persons were invited to attend the 

meetings and participate in Committee 

deliberations on all issues. The July 17 

and September 16, 2015, meetings were 

public meetings. All entities, both large 

and small, were able to express views 

on this issue. 

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 are 


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Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Rules and Regulations 5575 

necessary as a result of this action. 

Should any changes become necessary, 

they would be submitted to OMB for 

approval. 

This rule 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. As noted in the initial 

regulatory flexibility analysis, USDA 

has not identified any relevant Federal 

rules that duplicate, overlap, or conflict 

with this final 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. 

A proposed rule concerning this 

action was published in the Federal 

Register on November 5, 2015 (80 FR 

68473). Copies of the proposed rule 

were also mailed or sent via facsimile to 

all California kiwifruit handlers. 

Finally, the proposal was made 

available through the internet by USDA 

and the Office of the Federal Register. A 

15-day comment period ending 

November 20, 2015, was provided for 

interested persons to respond to the 

proposal. One comment in support of 

the rule was received, with the 

commenter requesting more information 

on the type of research the committee 

was conducting. The research the 

Committee recommended involves two 

field trials during the first year of a 

research proposal to study the beneficial 

effects of Nimitz nematicide on the 

Root-knot nematode. This type of 

production research is authorized under 

§ 920.47 of the marketing order and will 

benefit growers. Accordingly, no 

changes will be made to the rule as 

proposed, based on the comment 

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/ 

rules-regulations/moa/small-businesses. 

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 

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. 

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

and determined 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 

2015–16 fiscal year began on August 1, 

2015. Handlers began shipping kiwifruit 

in September and the marketing order 

requires that the rate of assessment 

apply to all assessable kiwifruit handled 

during the fiscal period; (2) the 

Committee needs to have sufficient 

funds to pay its expenses, which are 

incurred on a continuous basis; and (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. Also, a 15-day 

comment period was provided for in the 

proposed rule, and one supportive 

comment was received. 

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, 2015, an 

assessment rate of $0.040 per 9-kilo 

volume-fill container or equivalent of 

kiwifruit is established for kiwifruit 

grown in California. 

Dated: January 29, 2016. 

Erin Morris, 

Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2016–02067 Filed 2–2–16; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

National Institute of Food and 

Agriculture 

7 CFR Part 3434 

RIN 0524–AA39 

Hispanic-Serving Agricultural Colleges 

and Universities (HSACU) 

AGENCY: National Institute of Food and 

Agriculture (NIFA), USDA. 

ACTION: Final rule. 

SUMMARY: This rule updates the list of 

institutions that are granted HSACU 

certification by the Secretary and are 

eligible for HSACU programs for the 

period starting October 1, 2015, and 

ending September 30, 2016. 

DATES: This rule is effective February 3, 

2016 and applicable October 1, 2015. 

FOR FURTHER INFORMATION CONTACT: Lisa 

DePaolo; Policy Analyst; National 

Institute of Food and Agriculture; U.S. 

Department of Agriculture; STOP 2272; 

1400 Independence Avenue SW.; 

Washington, DC 20250–2272; Voice: 

202–401–5061; Fax: 202–401–7752; 

Email: ldepaolo@nifa.usda.gov. 

SUPPLEMENTARY INFORMATION: 

HSACU Institutions for Fiscal Year 

2016 

This rule makes changes to the 

existing list of institutions in Appendix 

B of 7 CFR part 3434. The list of 

institutions is amended to reflect the 

institutions that are granted HSACU 

certification by the Secretary and are 

eligible for HSACU programs for the 

period starting October 1, 2015, and 

ending September 30, 2016. 

Certification Process 

As stated in 7 CFR 3434.4, an 

institution must meet the following 

criteria to receive HSACU certification: 

(1) Be a Hispanic-Serving Institution 

(HSI), (2) offer agriculture-related 

degrees, (3) not appear on the Excluded 

Parties List System (EPLS), (4) be 

accredited, and (5) award at least 15% 

of agriculture-related degrees to 

Hispanic students over the two most 

recent academic years. 

NIFA obtained the latest report from 

the U.S. Department of Education’s 

National Center for Education Statistics 

that lists all HSIs and the degrees 

conferred by these institutions 

(completion data) during the 2013–14 

academic year. NIFA used this report to 

identify HSIs that conferred a degree in 

an instructional program that appears in 

Appendix A of 7 CFR part 3434 and to 

confirm that over the 2012–13 and 

2013–14 academic years at least 15% of 

the degrees in agriculture-related fields 

were awarded to Hispanic students. 

NIFA further confirmed that these 

institutions were nationally accredited 

and were not listed in the System for 

Award Management (https://

www.sam.gov) with exclusions. 

The updated list of HSACUs is based 

on (1) completions data from 2012–13 

and 2013–14, and (2) enrollment data 

from Fall 2014. NIFA identified 101 

institutions that met the eligibility 

criteria to receive HSACU certification 


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