[Federal Register Volume 73, Number 224 (Wednesday, November 19, 2008)]
[Proposed Rules]
[Pages 69588-69590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27392]


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 Proposed Rules
                                                 Federal Register
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 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.
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  Federal Register / Vol. 73, No. 224 / Wednesday, November 19, 2008 / 
Proposed Rules  

[[Page 69588]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 920

[Docket No. AO-FV-08-0174; AMS-FV-08-0085; FV08-920-3]


Kiwifruit Grown in California; Hearing on Proposed Amendment of 
Marketing Order No. 920

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Notice of hearing on proposed rulemaking.

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SUMMARY: Notice is hereby given of a public hearing to receive evidence 
on proposed amendments to Marketing Order No. 920 (order), which 
regulates the handling of kiwifruit grown in California. The amendments 
are proposed by the Kiwifruit Administrative Committee (committee), 
which is responsible for local administration of the order. The 
proposed amendments would redefine the districts into which the 
production area is divided, and provide for reallocation of committee 
membership; revise the committee selection and nomination processes; 
add authority for the committee to recommend and conduct research and 
market development programs; and revise committee meeting and voting 
procedures. In addition, the Agricultural Marketing Service (AMS) 
proposes to make any such changes as may be necessary to the order to 
conform to any amendment that may result from the hearing. The 
proposals are intended to provide additional flexibility in 
administration of the order and provide the industry with additional 
tools to aid in the marketing of kiwifruit.

DATES: The hearing date is: December 9, 2008, beginning at 9 a.m.; and 
continuing on December 10, 2008, beginning at 9 a.m., if necessary, in 
Modesto, California.

ADDRESSES: The hearing location is: Stanislaus County Farm Bureau, 1201 
L Street, Modesto, California 95353.

FOR FURTHER INFORMATION CONTACT: Laurel L. May or Kathleen M. Finn, 
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: 
[email protected] or [email protected].
    Small businesses may request information on this proceeding 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: [email protected].

SUPPLEMENTARY INFORMATION: This administrative action is instituted 
pursuant to the Agricultural Marketing Agreement Act of 1937, as 
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.'' 
This action is governed by the provisions of sections 556 and 557 of 
title 5 of the United States Code and, therefore, is excluded from the 
requirements of Executive Order 12866.
    The Regulatory Flexibility Act (5 U.S.C. 601-612) seeks to ensure 
that within the statutory authority of a program, the regulatory and 
informational requirements are tailored to the size and nature of small 
businesses. Interested persons are invited to present evidence at the 
hearing on the possible regulatory and informational impacts of the 
proposals on small businesses.
    The amendments proposed herein have been reviewed under Executive 
Order 12988, Civil Justice Reform. They are not intended to have 
retroactive effect. If adopted, the proposed amendments would not 
preempt any State or local laws, regulations, or policies, unless they 
present an irreconcilable conflict with the proposals.
    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. 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 the 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.
    The hearing is called pursuant to the provisions of the Act and the 
applicable rules and supplemental rules of practice and procedure 
governing the formulation and amendment of marketing agreements and 
orders (7 CFR part 900).
    The proposed amendments were recommended by the committee and 
submitted to USDA on August 15, 2008. After reviewing the proposals and 
other information submitted by the committee, USDA made a determination 
to schedule this matter for hearing.
    The proposed amendments to the order recommended by the committee 
are summarized as follows:
    1. Amend the order by redefining the districts into which the 
production area is divided and providing for reallocation of committee 
membership. The California production area is currently divided into 
eight districts, and the order specifies that one grower member and one 
alternate shall represent each district, while additional member and 
alternate seats are allocated to the three districts with the highest 
production. This proposal would revise Sec.  920.12 by consolidating 
the existing districts into three new districts. This proposal would 
also require corresponding changes to Sec.  920.20, and a method for 
calculating membership allocation would be added to the section. 
Corresponding changes would also be made to Sec.  920.21, and the 
process for transition to biannual committee selections would be added 
to the section.
    2. Amend the order by revising the committee membership nomination 
process and the procedure for filling vacancies on the committee. 
Currently, nomination meetings must be held prior to July 15 of each 
year. Vacancies that occur mid-term must be filled following the same 
procedure as for committee nominations and selections. This proposal 
would revise Sec.  920.22 to

[[Page 69589]]

specify that nomination meetings must be held prior to June 1, to allow 
more time to complete the committee selection process before the August 
1 term commencement. This proposal would also amend Sec.  920.26 by 
specifying that mid-term committee vacancies could be filled by the 
Secretary based upon recommendations from the committee rather than 
following the nomination and selection process as currently required.
    3. Amend the order to add a new Sec.  920.47, ``Production 
Research, Marketing Research and Development,'' that would authorize 
the committee to engage in research and marketing projects with the 
approval of USDA. This proposal would also add a new Sec.  920.45, 
``Contributions,'' which would authorize the committee to accept 
voluntary contributions to help pay for the expenses of such projects. 
This proposal would also result in corresponding changes to Sec.  
920.32(a) to specify that committee actions with respect to research 
and marketing activities would require eight concurring votes.
    4. This proposal would amend the order by revising some of the 
committee's administrative procedures. Section 920.27 would be revised 
to allow substitute alternates to represent absent members and 
alternates at committee meetings. Section 920.32(b) would be revised to 
authorize the committee to meet by telephone or other means of 
communication and to specify the voting requirements for various 
meeting formats.
    In addition to the proposed amendments to the order, AMS proposes 
to make any such changes to the order as may be necessary to conform to 
any amendment that may result from the hearing.
    The public hearing is held for the purpose of: (i) Receiving 
evidence about the economic and marketing conditions that relate to the 
proposed amendments of the order; (ii) determining whether there is a 
need for the proposed amendments to the order; and (iii) determining 
whether the proposed amendments or appropriate modifications thereof 
will tend to effectuate the declared policy of the Act.
    Testimony is invited at the hearing on all the proposals and 
recommendations contained in this notice, as well as any appropriate 
modifications or alternatives.
    All persons wishing to submit written material as evidence at the 
hearing should be prepared to submit four copies of such material at 
the hearing. Four copies of prepared testimony for presentation at the 
hearing should also be made available. To the extent practicable, eight 
additional copies of evidentiary exhibits and testimony prepared as an 
exhibit should be made available to USDA representatives on the day of 
appearance at the hearing. Any requests for preparation of USDA data 
for this rulemaking hearing should be made at least 10 days prior to 
the beginning of the hearing.
    From the time the notice of hearing is issued and until the 
issuance of a final decision in this proceeding, USDA employees 
involved in the decisional process are prohibited from discussing the 
merits of the hearing issues on an ex parte basis with any person 
having an interest in the proceeding. The prohibition applies to 
employees in the following organizational units: Office of the 
Secretary of Agriculture; Office of the Administrator, AMS; Office of 
the General Counsel, except any designated employee of the General 
Counsel assigned to represent the committee in this proceeding; and the 
Fruit and Vegetable Programs, AMS.
    Procedural matters are not subject to the above prohibition and may 
be discussed at any time.

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.

    2. Testimony is invited on the following proposals or appropriate 
alternatives or modifications to such proposals.
    Proposals submitted by the Kiwifruit Administrative Committee:

Proposal Number 1

    3. Revise Sec.  920.12 to read as follows:


Sec.  920.12  District.

    District means the applicable one of the following described 
subdivisions of the production area or such other subdivision as may be 
prescribed pursuant to Sec.  920.31:
    (a) District 1 shall include Butte, Sutter, and Yuba Counties.
    (b) District 2 shall include Tulare County.
    (c) District 3 shall include all counties within the production 
area not included in Districts 1 and 2.
    4. Revise Sec.  920.20 to read as follows:


Sec.  920.20  Establishment and membership.

    There is hereby established a Kiwifruit Administrative Committee 
consisting of 12 members, each of whom shall have an alternate who 
shall have the same qualifications as the member for whom he or she is 
an alternate. The 12-member committee shall be made up of the 
following: One public member (and alternate), and eleven members (and 
alternates). With the exception of the public member and alternate, all 
members and their respective alternates shall be growers or employees 
of growers. Except as provided for redistricting and membership 
allocation in Sec.  920.31(l), district representation on the Committee 
shall be based upon the previous five-year average production in the 
district and shall be established so as to provide an equitable 
relationship between membership and districts. The committee may, with 
the approval of the Secretary, provide such other allocation of 
membership as may be necessary to assure equitable representation.
    5. Revise Sec.  920.21 to read as follows:


Sec.  920.21  Term of office.

    The term of office of each member and alternate member of the 
committee shall be for two years from the date of their selection and 
until their successors are selected. The terms of office shall begin on 
August 1 and end on the last day of July, or such other dates as the 
committee may recommend and the Secretary approve. Provided, That the 
terms of office of all members and alternates currently serving will 
end on the last day of the fiscal period in which this amended 
provision becomes effective, with nominations for new terms of office 
to be conducted as soon as practicable after the effective date of the 
amendment. Members may serve up to three consecutive 2-year terms not 
to exceed 6 consecutive years as members. Alternate members may serve 
up to three consecutive 2-year terms not to exceed 6 consecutive years 
as alternate members. Provided, That any term of office less than two 
years as a result of the amendment will not count toward tenure.

Proposal Number 2

    6. Revise the first sentence of Sec.  920.22(a) to read as follows:


Sec.  920.22  Nomination.

    (a) Except as provided in paragraph (b) of this section, the 
committee shall hold, or cause to be held, not later than June 1 of 
each year in which nominations are made, or such other date as may be 
specified by the Secretary, a meeting or meetings of growers in each 
district for the purpose

[[Page 69590]]

of designating nominees to serve as grower members and alternates on 
the committee.
* * * * *
    7. Revise Sec.  920.26 to read as follows:


Sec.  920.26  Vacancies.

    To fill any vacancy occasioned by the failure of any person 
selected as a member or as an alternate member of the committee to 
qualify, or in the event of the death, removal, resignation, or 
disqualification of any member or alternate member of the committee, a 
successor for the unexpired term of such member or alternate member of 
the committee shall be selected by the Secretary after consideration of 
recommendations which may be submitted by the Committee, unless such 
selection is deemed unnecessary by the Secretary. The selection shall 
be made on the basis of representation provided for in Sec.  920.20.

Proposal Number 3

    8. Revise paragraph (a) of Sec.  920.32 to read as follows:


Sec.  920.32  Procedure.

    (a) Eight members of the committee, or alternates acting for 
members, shall constitute a quorum and any action of the committee 
shall require the concurring vote of the majority of those present: 
Provided, That actions of the committee with respect to expenses and 
assessments, research and promotion activities, or recommendations for 
regulations pursuant to Sec. Sec.  920.50 through 920.55, of this part 
shall require at least eight concurring votes.
* * * * *
    9. Add a new Sec.  920.45 to read as follows:


Sec.  920.45  Contributions.

    The committee may accept voluntary contributions, but these shall 
only be used to pay expenses incurred pursuant to Sec.  920.47. 
Furthermore, such contributions shall be free from any encumbrances by 
the donor, and the committee shall retain complete control of their 
use.
    10. Add a new Sec.  920.47 to read as follows:


Sec.  920.47  Production research, marketing research and development.

    The committee, with the approval of the Secretary, may establish or 
provide for the establishment of production and post-harvest research, 
and marketing research and development projects designed to assist, 
improve, or promote the marketing, distribution, and consumption or 
efficient production of kiwifruit. The expense of such projects shall 
be paid from funds collected pursuant to Sec.  920.41 and Sec.  920.45.

Proposal Number 4

    11. Revise Sec.  920.27 to read as follows:


Sec.  920.27  Alternate members.

    An alternate member of the committee, during the absence of the 
member for whom that individual is an alternate, shall act in the place 
and stead of such member and perform such other duties as assigned. In 
the event both a member and his or her alternate are unable to attend a 
committee meeting, the committee may designate any other alternate 
member from the same district to serve in such member's place and stead 
if necessary to secure a quorum. In the event of the death, removal, 
resignation, or disqualification of a member, the alternate of such 
member shall act for him or her until a successor for such member is 
selected and has qualified.
    12. Revise Sec.  920.32(b) to read as follows:


Sec.  920.32  Procedure.

* * * * *
    (b) Committee meetings may be assembled or held by telephone, video 
conference, or other means of communication. The committee may vote by 
telephone, facsimile, or other means of communication. Votes by members 
or alternates present at assembled meetings shall be cast in person. 
Votes by members or alternates participating by telephone or other 
means of communication shall be by roll call; Provided, That a video 
conference shall be considered an assembled meeting, and votes by those 
participating through video conference shall be considered as cast in 
person.
    Proposal submitted by USDA:

Proposal Number 5

    Make such changes as may be necessary to the order or its 
administrative rules and regulations to conform with any amendment that 
may result from the hearing.

    Dated: November 13, 2008.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. E8-27392 Filed 11-18-08; 8:45 am]
BILLING CODE 3410-02-P