[Federal Register Volume 75, Number 141 (Friday, July 23, 2010)]
[Rules and Regulations]
[Pages 43038-43039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18087]



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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 920

[Doc. No. AMS-FV-08-0085; FV08-920-3 IR]


Kiwifruit Grown in California; Changes to District Boundaries

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule removes the grower district boundaries contained in 
the administrative rules and regulations of the kiwifruit marketing 
orders (order). The order regulates the handling of kiwifruit grown in 
California and is administered locally by the Kiwifruit Administrative 
Committee (committee). This rule makes necessary changes to the order's 
administrative rules and regulations to make them consistent with the 
recently amended order.

DATES: Effective August 1, 2010; comments received by September 21, 
2010 will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. 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 document number 
and the date and page number of this issue of the Federal Register and 
will be made available for public inspection at 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: 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: 
[email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation 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: 
[email protected].

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 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 rule revises the administrative rules and regulations 
contained in the order. The change will bring the regulations into 
conformance with recent amendments to the order removing language that 
is inconsistent with the amended order. The amendments and this change 
to the order's administrative rules and regulations were recommended by 
the committee and were submitted to USDA on August 15, 2008.
    Section 920.12 of the order defines the boundaries of the grower 
districts into which the production area is divided. Section 920.31(l) 
authorizes the committee to redefine the district boundaries, with the 
approval of the Secretary, as appropriate to reflect shifts of 
kiwifruit production within the production area. Section 920.131 was 
added to the order's rules and regulations in 1995 (60 FR 7432; 
February 8, 1995) to specify updated district boundaries that reflected 
industry production trends at that time.
    California kiwifruit growers recently voted to amend the order by 
redefining the districts into which the production area is divided. 
Section Sec.  920.12, which previously provided for eight grower 
districts, will be amended effective August 1, 2010 (75 FR 37288; June 
29, 2010). The amendment to Sec.  920.12 provides that the California 
production area will be divided into three grower districts: District 
1, to include Butte, Sutter, and Yuba Counties; District 2, to include 
Tulare County; and District 3, to include all other California counties 
not included in Districts 1 and 2. At that time, Sec.  920.131, which 
specifies the boundaries for eight grower districts, will be 
inconsistent with the amended Sec.  920.12. For this reason, this rule 
removes Sec.  920.131 from the order's rules and regulations, effective 
August 1, 2010.

Initial 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 initial 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

[[Page 43039]]

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 will be divided into three grower 
districts, and committee membership will be 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 removes Sec.  920.131 from the order's administrative 
rules and regulations, effective August 1, 2010. The section specifies 
the boundaries for eight grower districts. As such, it will be 
inconsistent with the amended Sec.  920.12, which provides the 
boundaries for three grower districts.
    The changes in this interim rule are necessary to conform with 
amendments to the order, which will become effective on August 1, 2010. 
No alternatives to this action are 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 this 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 will 
become 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.
    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.
    Finally, interested persons are invited to submit comments on this 
interim rule, including the regulatory 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 the 
following Web site: http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to 
Antoinette Carter at the previously mentioned address in the FOR 
FURTHER INFORMATION CONTACT section.
    This rule invites comments on changes to the administrative rules 
and regulations currently prescribed under the marketing order for 
California kiwifruit. Any comments received will be considered prior to 
finalization of this rule.
    After consideration of all relevant material presented, including 
the committee's recommendations and other information, it is found that 
this interim rule, as hereinafter set forth, will tend to effectuate 
the declared policy of the Act.
    Pursuant to 5 U.S.C. 553, it is also found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect, and that good cause exists for effectuating this rule on August 
1, 2010, because: (1) August 1, 2010 is the beginning of the fiscal 
period and amendments to the order's district boundary provision will 
become effective on that date; (2) this action is necessary to make the 
order's administrative rules and regulations consistent with the 
amended order; and (3) this rule provides a 60-day comment period, and 
any written comments received will be considered prior to any 
finalization of this rule.

List of Subjects in 7 CFR Part 920

    Kiwifruit, Marketing agreements, Reporting and recordkeeping 
requirements.

0
For the reasons set forth in the preamble, 7 CFR part 920 is amended as 
follows:

PART 920--KIWIFRUIT GROWN IN CALIFORNIA

0
1. The authority citation for 7 CFR part 920 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.


Sec.  920.131  [Removed]

0
2. Section 920.131 is removed.

    Dated: July 20, 2010.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. 2010-18087 Filed 7-22-10; 8:45 am]
BILLING CODE 3410-02-P