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.

Proposed Rules Federal Register

26806 

Vol. 74, No. 106 

Thursday, June 4, 2009 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 920 

[Doc. No. AMS–FV–08–0017; FV08–920–2 

PR] 

Kiwifruit Grown in California; Change 

in Reporting Requirements and New 

Information Collection 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

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 who ship 

100,000 or more trays per season to file 

weekly shipment and price information 

with the Committee. Shipments of 

organic kiwifruit would be exempt from 

this requirement. The Committee would 

use this information to prepare its 

marketing policy statements and annual 

reports and to provide timely 

information to the industry to assist 

them in making marketing decisions 

throughout the season. 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 August 

3, 2009. 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 August 3, 

2009. 

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: 

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 

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. This proposal 

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. 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 a new reporting requirement 

and form to those currently specified in 

the order’s administrative rules and 

regulations. This change would allow 

the Committee to collect weekly 

shipment and price information from 

kiwifruit handlers who ship 100,000 or 

more trays per season. Under this 

proposed regulation, handlers would 

not be required to provide weekly 

shipment and price information on 

shipments of organic kiwifruit. The 

information collected would be used by 

the Committee to prepare its marketing 

policy statement as required under the 

order. The information would also be 

used to generate timely reports for the 

industry as a whole to use in making 

marketing decisions throughout the 

season. This proposal was 

recommended by the Committee at its 

meetings on September 6, 2007; January 

30, 2008; and April 22, 2008. 

Section 920.34 of the order requires 

the Committee to 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 920.50 of the 

order requires the Committee to prepare 

an annual marketing policy report for 

submission to the Secretary. The 

marketing policy describes expected 

kiwifruit production, quality, and 

marketing conditions. Along with other 

Federal Register / Vol. 74, No. 106 / Thursday, June 4, 2009 / Proposed Rules 26807 

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. The provisions of 

§ 920.60(c) require that handlers 

maintain copies of all kiwifruit receipts 

and disposals for at least two 

succeeding fiscal years to verify their 

shipping reports. 

The Committee’s current reporting 

requirements are specified in § 920.160 

of the order’s administrative rules and 

regulations. This section includes 

requirements that handlers submit 

shipment reports and the Kiwifruit 

Inventory Shipping System (KISS) form, 

which consists of three reports: KISS/ 

Add Inventory, KISS/Deduct Inventory, 

and KISS/Shipment. 

Handlers who ship fewer than 10,000 

trays per season are only required to file 

the shipment report twice per year and 

are not required to file the KISS form. 

Handlers who ship 10,000 trays or more 

per season are required to file the 

shipment report monthly and all three 

sections of the KISS form monthly or 

semi-monthly during certain months. 

The Committee provides forms to assist 

handlers with supplying the required 

information. 

Kiwifruit shipments generally begin 

in September and continue through 

July. The Committee requires handlers 

who ship 10,000 trays or more to file 

their initial shipment reports by the fifth 

day of the month following the month 

in which their first shipments are made. 

This report is used to track shipments 

by type, weight, and destination. 

The Committee has established 

November 5 as the deadline for filing 

the initial KISS reports. Subsequent 

reports are to be filed on the fifth day 

of each month throughout the season, 

with biweekly reports required for the 

months of December, January, and 

February. The KISS/Shipment report is 

used to report shipments by fruit size 

and pack type. The KISS/Add Inventory 

and KISS/Deduct Inventory reports are 

used to report changes in inventory. 

This proposed rule would revise 

§ 920.160 by adding a new reporting 

requirement and form. Under the new 

regulation, handlers who ship 100,000 

tray equivalents or more per season to 

would be required to submit weekly 

shipment and price data on the new 

KISS Price/Shipment report form. The 

information collected on the KISS Price/ 

Shipment report would include data on 

gross f.o.b. sales and the total number of 

containers shipped by pack, fruit size, 

grade, and market destination. Handlers 

submitting the KISS Price/Shipment 

report would no longer be required to 

submit the existing shipment report or 

KISS/Shipment report as that 

information would be collected on the 

new KISS Price/Shipment report. 

However, handlers submitting the KISS 

Price/Shipment report would still be 

responsible for filing the KISS/Add 

Inventory and KISS/Deduct Inventory 

reports. 

The Committee recommended the 

100,000 tray threshold because handlers 

shipping 100,000 trays or more account 

for approximately 90% of the 

production area’s total shipments in a 

season. Committee members believe that 

information on such shipments would 

provide a sufficiently broad picture of 

ongoing marketing conditions. 

Information about the volume of 

kiwifruit in the current channels of 

commerce would be compiled by the 

Committee and reported to the industry. 

The Committee believes that such 

information provided throughout the 

season would benefit the industry as a 

whole when making marketing 

decisions. 

While information from handlers with 

total shipments of fewer than 100,000 

trays each season might not be 

significant on a weekly basis, such 

information would continue to be 

collected from those handlers on the 

other existing shipment and KISS 

reports and would be used to generate 

the Committee’s marketing policy 

statements and annual reports. 

The current reporting requirements 

make no provisions for collecting 

information on kiwifruit prices. The 

Committee believes that the industry as 

a whole would benefit from receiving 

gross f.o.b. sales information that would 

be collected by the Committee each 

week and used to generate timely 

industry reports. In the past, the 

Committee has used information from 

other sources to prepare their 

mandatory reports and provide updates 

to the industry, but Committee members 

feel that information from such sources 

no longer meets their needs. For 

example, one voluntary industry 

organization collects and reports weekly 

price information from participating 

handlers. Some industry members have 

found this information helpful in 

making marketing decisions in the past. 

However, Committee members report 

that the number of participating 

handlers has declined and that the 

information collected from the 

remaining participants may not provide 

as complete a picture of ongoing 

marketing conditions as the Committee 

would like. The Committee believes that 

compiling sales information from all 

large-volume kiwifruit handlers in the 

production area would be more 

reflective of—and would be of greater 

benefit to—the industry as a whole. 

There can be significant differences in 

the price of kiwifruit throughout the 

season, including great fluctuations in 

prices from week to week. The 

Committee believes that having accurate 

and timely sales information would 

help to reduce these price fluctuations 

and promote orderly marketing, 

resulting in increased grower returns. 

Under the proposed change, handlers 

would not be required to report 

shipments of organically-produced 

(organic) kiwifruit on the new KISS 

Price/Shipment report. There are only a 

small number of handlers who handle 

organic kiwifruit, representing a small 

percentage of total shipments. Organic 

kiwifruit has its own unique marketing 

conditions with a pricing structure that 

differs from that of conventionallyproduced (conventional) kiwifruit. 

Therefore, the Committee recommended 

that shipments of organic kiwifruit 

should be exempt from the new 

reporting requirements. However, 

organic kiwifruit shipments would 

continue to be reported as required on 

the appropriate existing Committee 

forms. 

Kiwifruit handlers who ship between 

10,000 and 100,000 trays or tray 

equivalents would continue to report by 

submitting monthly shipping reports 

and the existing KISS forms, including 

the KISS/Shipment reports. The 

reporting requirements for handlers 

shipping fewer than 10,000 tray 

equivalents would also remain the 

same. Also, the reporting exemption for 

minimum quantities of kiwifruit 

handled under certain conditions 

specified in § 920.110(b) would remain 

unchanged. 

For the new KISS Price/Shipment 

report, the shipping week would be 

defined as Sunday through Saturday. 

Reports for each shipping week would 

be due no later than 5 p.m. (the close 

of business) on Tuesday of the following 

week to insure timely processing of 

current shipment and price information. 

Handlers would begin reporting 

following the first week of the season in 

which they have shipments. In weeks 

when no shipments are made, each 

handler would still be required to file a 

report indicating that no shipments 

were made during the reporting period. 

This would continue until the handler 

files a final report for the season. The 

new reporting form proposed by the 

Committee would have a space for 

handlers to indicate when they are filing 

26808 Federal Register / Vol. 74, No. 106 / Thursday, June 4, 2009 / Proposed Rules 

their final reports of the season. The 

price data and shipping information 

received from all affected handlers 

would be compiled by the Committee 

and presented to the industry 

throughout the season in the form of 

general reports. At the end of each year, 

the information collected would be 

summarized and used to prepare the 

Committee’s annual reports and 

marketing policy statements. 

This rule would also make a 

correction to § 920.160(b). A final rule 

published in the Federal Register on 

December 10, 1996 [61 FR 64959], made 

changes to § 920.160(b) and 

inadvertently removed part of the 

section. Specifically, the last sentence of 

§ 920.160(b), which specifies the 

frequency with which the KISS reports 

shall be filed as well as what 

information shall be included, was 

removed. This rule would restore the 

language that was inadvertently 

removed. 

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 30 handlers of kiwifruit 

subject to regulation under the 

marketing order and approximately 220 

kiwifruit growers in the production 

area. According to information provided 

by the Committee, approximately three 

handlers handle only organic kiwifruit, 

and four handle both conventional and 

organic kiwifruit. 

The California Agricultural Statistical 

Service (CASS) reported total California 

kiwifruit production for the 2006–07 

season at 26,100 tons with an average 

price of $911 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. 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 proposal would change the 

reporting requirements currently 

prescribed under the order. This rule 

would add a new reporting requirement 

and form to the reporting requirements, 

which would allow the Committee to 

collect weekly shipment and price 

information from kiwifruit handlers 

who ship 100,000 or more trays per 

season. Handlers would not be required 

to report information on shipments of 

organic kiwifruit on this new form, but 

would continue to report shipments of 

organic kiwifruit on existing Committee 

forms. This change would help the 

Committee develop its annual reports 

and marketing policy statements as 

required under the order and would 

enable the Committee to provide timely 

information to the industry as a whole 

to assist with marketing decisions. This 

rule would revise § 920.160, which 

specifies the reporting requirements. In 

addition to the new shipping and price 

information collection, this rule would 

restore a portion of § 920.160(b) that was 

inadvertently removed from the 

regulation during a previous rulemaking 

action. Authority for the collection of 

shipment and other information is 

provided in § 920.60 of the order. 

Requiring shipment and price reports 

on a weekly basis would impose an 

additional reporting burden on handlers 

who handle 100,000 or more tray 

equivalents of kiwifruit. However, this 

data is already being recorded and 

maintained by most handlers as a 

routine part of their business. 

Consequently, any additional costs 

associated with this change are expected 

to be minimal. Also, the benefits of 

having timely information regarding 

shipments and price are expected to 

outweigh any costs associated with the 

increase in reporting burden. While this 

change would impose an additional 

reporting burden on those handlers 

required to submit the KISS Price/ 

Shipment report, those handlers would 

no longer be required to submit the 

shipment report or the KISS/Shipment 

report, which would offset somewhat 

the increase in burden. Further, the 

benefits of this rule are expected to be 

equally available to all industry 

members, regardless of their size. 

The Committee discussed alternatives 

to this action, including making no 

changes to the reporting requirements. 

However, the Committee believes that 

collecting weekly shipment and price 

data would provide valuable 

information to the industry. The 

Committee also considered using 

weekly sales information collected by 

other entities. However, the Committee 

believes including the proposed 

information collection under the order’s 

rules and regulations would make the 

reports they generate more accurate, and 

more reflective of the marketing 

conditions throughout the industry. 

Therefore, both alternatives were 

rejected. 

This proposal would establish a new 

reporting requirement. This action 

would also require a new Committee 

form, the KISS Price/Shipment report. 

Therefore, this proposed rule would 

impose an additional reporting burden 

on handlers who handle 100,000 tray 

equivalents or more of kiwifruit, 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 September 6, 

2007; January 30, 2008; and April 22, 

2008; meetings were public meetings 

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 

Federal Register / Vol. 74, No. 106 / Thursday, June 4, 2009 / Proposed Rules 26809 

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/ 

AMSv1/ams.fetchTemplateData.

do?template=Template

N&page=MarketingOrders

SmallBusinessGuide. Any questions 

about the compliance guide should be 

sent to Jay Guerber 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 April 22, 2008, the Committee 

unanimously recommended a new KISS 

Price/Shipment report for handlers who 

handle 100,000 tray equivalents or more 

of kiwifruit to report to the Committee 

weekly shipment and price information. 

This action concerns this report, in 

addition to the accompanying regulation 

previously discussed, which would 

require the reports to be submitted to 

the Committee by handlers. Pursuant to 

§ 920.60(c), handlers would maintain 

records for at least two succeeding fiscal 

years to verify the data reported to the 

Committee on this report. 

This form would allow the Committee 

to collect weekly shipment and price 

information from handlers who handle 

100,000 tray equivalents or more of 

kiwifruit each season. The Committee 

would use this information in preparing 

the marketing policy statement and 

annual report each year. Also, weekly 

industry reports generated from this 

data would provide handlers with more 

timely information on which to base 

their marketing decisions. 

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 

prepare its annual report and marketing 

policy statement as required under the 

order. The Committee’s staff would also 

use the data collected to provide general 

market information to the industry 

throughout the season. 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: 

KISS Price/Shipment Report 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to be no more than one 

hour per response. 

Respondents: Persons who handle 

California kiwifruit. 

Estimated Number of Respondents: 

15. 

Estimated Number of Responses per 

Respondent: 28. 

Estimated Total Annual Burden on 

Respondents: 420 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 previouslymentioned 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. 

§ 920.160 [Amended] 

2. § 920.160 is amended by revising 

the first sentence of paragraph (a), 

revising paragraph (b), and adding 

paragraphs (d) and (e) to read as follows: 

§ 920.160 Reports. 

(a) When requested by the Kiwifruit 

Administrative Committee, each shipper 

who ships kiwifruit, except as provided 

in paragraph (e) of this section, shall 

furnish a report of shipment and 

inventory data to the committee no later 

than the fifth day of the month 

following such shipment, or such other 

later time established by the committee: 

Provided, That each shipper who ships 

less than 10,000 trays, or the equivalent 

thereof, per fiscal year and has qualified 

with the committee shall furnish such 

report of shipment and inventory data to 

the committee twice per fiscal year. 

* * * 

(b) Kiwifruit Inventory Shipping 

System (KISS) form. Each handler, 

except such handlers that ship less than 

10,000 trays, or the equivalent thereof, 

per season and have qualified with the 

committee, shall file with the committee 

the initial Kiwifruit Inventory Shipment 

System (KISS) form, which consists of 

three sections ‘‘KISS/Add Inventory,’’ 

‘‘KISS/Deduct Inventory,’’ and ‘‘KISS/ 

Shipment,’’ on or before November 5th, 

or such other later time as the 

committee may establish. Subsequent 

KISS forms, including all three sections, 

shall be filed with the committee by the 

fifth day and again by the twentieth day 

of each calendar month, or such other 

26810 Federal Register / Vol. 74, No. 106 / Thursday, June 4, 2009 / Proposed Rules 

later time as the committee may 

establish, and will contain the following 

information: 

(1) The beginning inventory of the 

handler by size and container type; 

(2) The quantity of fruit the handler 

lost in repack and repacked into other 

container types; 

(3) The total domestic and export 

shipments of the handler by size and 

container type; and 

(4) Any other adjustments which 

increase or decrease posted handler 

inventory. 

(c) * * * 

(d) KISS Price/Shipment report. Each 

handler who ships 100,000 or more 

trays, or the equivalent thereof, per 

season, shall file the KISS Price/ 

Shipment report with the committee. 

Handlers are not required to report 

organic kiwifruit shipments on this 

report. The handler shall file the report 

weekly following the first week he or 

she makes shipments and shall continue 

filing reports until he or she submits a 

final report for the season. Each such 

report shall be filed with the committee 

no later than 5 p.m. (the close of 

business) on the Tuesday immediately 

following the shipping week. For the 

purpose of this subsection, the shipping 

week is defined as Sunday through 

Saturday. The report shall show: 

(1) The company name, contact 

person, and phone number of the 

handler; 

(2) Weekly period covered by the 

report; 

(3) Total fresh market shipments and 

gross f.o.b. sales of kiwifruit by pack 

style and size; and 

(4) Total fresh market shipments and 

gross f.o.b. sales to export markets by 

pack style and size. 

(e) Handlers who file the KISS Price/ 

Shipment report specified in paragraph 

(d) of this section are exempt from filing 

the shipping report specified in 

paragraph (a) of this section and the 

KISS/Shipment report specified in 

paragraph (b) of this section. 

Dated: May 29, 2009. 

Robert C. Keeney, 

Acting Associate Administrator. 

[FR Doc. E9–12995 Filed 6–3–09; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1205 

[Docket No. AMS–CN–09–0027; CN–08–003] 

Cotton Research and Promotion 

Program: Referendum Procedures 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: This proposed rule would 

establish procedures which the 

Department of Agriculture (USDA) will 

use in conducting a referenda 

considering amendments to the Cotton 

Research and Promotion Order (7 CFR 

part 1205) (Order) implementing section 

14202 of the Food, Conservation, and 

Energy Act of 2008 (Pub. L. 110–246), 

herinafter the ‘‘2008 Farm Bill.’’ USDA 

is considering amendments to the 

Order, in a separate action, and 

referendum procedures would need to 

be in place prior for the industry to vote 

and consider these amendments. 

Referenda among cotton producers and 

cotton importers are required by the 

Cotton Research and Promotion Act (7 

U.S.C. 2101–2118) (Act) to implement, 

amend, continue, or when appropriate 

to suspend, or to terminate the Order or 

any of its provisions. The provisions of 

this rule would be used for these 

referenda. 

DATES: Comments must be received on 

or before June 15, 2009. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this proposed rule to Shethir 

M. Riva, Chief, Research and Promotion 

Staff, Cotton and Tobacco Programs, 

AMS, USDA, Stop 0224, 1400 

Independence Ave., SW., Room 2637–S, 

Washington, DC 20250–0224. 

Comments should be submitted in 

triplicate. Comments may also be 

submitted electronically through http:// 

www.regulations.gov. All comments 

received will be made available for 

public inspection at Cotton and Tobacco 

Programs, AMS, USDA, Stop 0224, 1400 

Independence Ave., SW., Room 2637–S, 

Washington, DC 20250–0224 during 

regular business hours. A copy of this 

notice may be found at: http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Shethir M. Riva, Chief, Research and 

Promotion Staff, Cotton and Tobacco 

Programs, AMS, USDA, Stop 0224, 1400 

Independence Ave., SW., Room 2637–S, 

Washington, DC 20250–0224, telephone 

(202) 720–6603, facsimile (202) 690– 

1718, or e-mail at 

Shethir.Riva@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has waived the review process 

required by Executive Order 12866 for 

this action. 

Executive Order 12988 

This proposed rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. It is not intended to 

have retroactive effect. This proposed 

rule would 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 12 of the Act, any 

person subject to an order may file with 

the Secretary of Agriculture (Secretary) 

a petition stating that the order, any 

provision of the plan, or any obligation 

imposed in connection with the order is 

not in accordance with law and 

requesting a modification of the order or 

to be exempted therefrom. Such person 

is afforded the opportunity for a hearing 

on the petition. After the hearing, the 

Secretary would rule on the petition. 

The Act provides that the District Court 

of the United States in any district in 

which the person is an inhabitant, or 

has his principal place of business, has 

jurisdiction to review the Secretary’s 

ruling, provided a complaint is filed 

within 20 days from the date of the 

entry of ruling. 

Regulatory Flexibility Act and 

Paperwork Reduction Act 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) [5 

U.S.C. 601–612], the Agricultural 

Marketing Service has considered the 

economic effect of this action on small 

entities and has determined that its 

implementation will not have a 

significant economic impact on a 

substantial number of small entities. 

There are currently approximately 

18,000 producers, and approximately 

16,000 importers that are subject to the 

order. In 13 CFR part 121, the Small 

Business Administration (SBA) defines 

small agricultural producers as those 

having annual receipts of no more than 

$750,000 and small agricultural service 

firms (handlers) as those having annual 

receipts of no more than $7.0 million. 

The majority of these producers and 

importers are small businesses under 

the criteria established by the SBA. 

This proposed rule would establish 

the procedures under which cotton 

producers and importers vote on