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###### Department of Agriculture

###### Agricultural Marketing Service

          - 7 CFR Part 920
          - [Doc. No. AMS-FV-08-0085; FV08-920-3 FIR]

# AGENCY:

Agricultural Marketing Service, USDA.

# ACTION:

Affirmation of interim rule as final rule.

# SUMMARY:

The Department of Agriculture (USDA) is adopting, as a final rule, without change, an interim rule that removed the grower district boundaries contained in the administrative rules and regulations of the kiwifruit marketing order (order). The interim rule removed regulatory language referring to eight grower districts from the order's administrative rules and regulations to make them consistent with the recently amended order provisions, which now provide for three grower districts.

# DATES:

*Effective Date:*                         Effective November 4, 2010.                    

# FOR FURTHER INFORMATION CONTACT:

                        Laurel May or Kathleen M. Finn, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone: (202) 720-2491, Fax: (202) 720-8938; or E-mail:                               ( print page 67606)    *Laurel.May@ams.usda.gov*                         or                         *Kathy.Finn@ams.usda.gov*.                    

                        Small businesses may obtain information on complying with this and other marketing order regulations by viewing a guide at the following Web site:                         *http://www.ams.usda.gov/​MarketingOrdersSmallBusinessGuide;*                         or by contacting Antoinette Carter, 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:                         *Antoinette.Carter@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 Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.

The order was recently amended by redefining the grower districts into which the California kiwifruit production area is divided. Previously, there were eight grower districts defined in the order. Due to shifts in acreage and the consolidation of grower entities within the production area, the production area is now divided into three grower districts. Language in § 920.131 of the order's administrative rules and regulations provided the specific boundaries for eight grower districts, but that language is not consistent with the amended order.

                    In an interim rule published in the                     **Federal Register**                     on July 23, 2010, and effective on August 1, 2010, § 920.131 specifying the boundaries for eight grower districts was removed. The boundaries for the three grower districts under the amended order are provided in § 920.12.                

## 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 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 business subject to such actions so 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, which include handlers regulated under the order, have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $7,000,000. Small agricultural growers have been defined as those with annual receipts of less than $750,000.

There are approximately 30 handlers of kiwifruit subject to regulation under the order and approximately 220 growers of kiwifruit in the regulated area. Information provided by the committee indicates that the majority of California kiwifruit handlers and growers would be considered small entities according to the SBA's definition.

The order regulates the handling of kiwifruit grown in the State of California. At the time the order was promulgated, kiwifruit acreage was more widespread throughout California and there were many more growers involved in kiwifruit production. The order originally provided for eight grower districts within the production area, with one membership seat apportioned to each district, and an additional seat reallocated annually to each of the three districts with the highest production in the preceding year. The structure was designed to afford equitable representation for all districts on the committee.

Planted acreage has been gradually concentrated into two main regions in recent years. That, and the decline in the number of growers over time, prompted consolidation of the districts and reallocation of grower member seats through the formal rulemaking process. Under the amended order, the production area is divided into three grower districts, and committee membership is allocated proportionately among the districts based upon the previous five years' average production for each district. These changes are expected to better reflect the current composition of the industry.

This rule continues in effect the action that removed § 920.131 from the order's administrative rules and regulations, effective August 1, 2010. The section specified the boundaries for eight grower districts. As such, it would be inconsistent with the amended § 920.12, which provides the boundaries for three grower districts.

The changes in the interim rule were necessary to conform with amendments to the order, which became effective on August 1, 2010. No alternatives to this action were deemed appropriate.

Regarding the impact of this action on the affected entities, both large and small entities are expected to benefit from the change. The revision in the interim rule provides consistency between the amended marketing order and its administrative rules and regulations. The order amendment is expected to ensure that the interests of all large and small entities are represented appropriately during committee deliberations.

Committee meetings in which regulatory recommendations and other decisions are made are open to the public. All members are able to participate in committee deliberations, and each committee member has an equal vote. Others in attendance at meetings are also allowed to express their views.

At committee meetings held on January 30, 2008, April 22, 2008, and July 9, 2008, the committee voted unanimously to recommend amending the order by revising the grower districts into which the production area is divided. The committee's recommendations were submitted to AMS on August 15, 2008. Growers approved the amendment to redefine district boundaries in a referendum held in March 2010. The amendment became effective August 1, 2010.

This rule will not impose any additional reporting or recordkeeping requirements on large or small 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.

Comments on the interim rule were required to be received on or before September 21, 2010. No comments were received. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule, without change.

                    To view the interim rule, go to:                     *www.regulations.gov*                     and type the following docket number into the keyword search section: FV08-920-3 IR. Follow the link provided in the “Results” section of the page.                

This action also affirms information contained in the interim rule concerning Executive Orders 12866 and 12988, the Paperwork Reduction Act (44 U.S.C. Chapter 35), and the E-Gov Act (44 U.S.C. 101).

                    After consideration of all relevant material presented, it is found that                           ( print page 67607)                        finalizing the interim rule, without change, as published in the                     **Federal Register**                     (75 FR 43038; July 23, 2010), 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

Accordingly, the interim rule that amended 7 CFR part 920 and that was published at 75 FR 43038 on July 23, 2010, is adopted as a final rule without change.

Dated: October 25, 2010.

Robert C. Keeney,

Acting Associate Administrator, Agricultural Marketing Service.

[FR Doc. 2010-27788 Filed 11-2-10; 8:45 am]

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