[Federal Register Volume 76, Number 247 (Friday, December 23, 2011)]
[Rules and Regulations]
[Pages 80209-80211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32928]



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 Rules and Regulations
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  Federal Register / Vol. 76, No. 247 / Friday, December 23, 2011 / 
Rules and Regulations  

[[Page 80209]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 920

[Doc. No. AMS-FV-11-0041; FV11-920-1 FR]


Kiwifruit Grown in California; Change in Reporting Requirements 
and New Information Collection

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule changes 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 requires 
handlers to file two new end-of-season reports with the Committee. One 
report contains price and handler shipment information and the other 
report contains grower shipment information. The Committee uses this 
information to determine appropriate grower representation on the 
Committee, to conduct grower nominations, to verify shipments for 
assessment collections, and to prepare the annual report and the annual 
marketing policy, as required under the order.

DATES: Effective Date: December 24, 2011.

FOR FURTHER INFORMATION CONTACT: Kathie M. Notoro, Marketing 
Specialist, or Kurt J. Kimmel, Regional Manager, California Marketing 
Field Office, Marketing Order and Agreement Division, Fruit and 
Vegetable Programs, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 
487-5906, or Email: [email protected] or 
[email protected].
    Small businesses may request information on complying with this 
regulation by contacting Laurel May, Marketing Order and Agreement 
Division, 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 Email: [email protected].

SUPPLEMENTARY INFORMATION: This final 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 final 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 final rule adds two new reporting requirements and two new 
forms to those currently specified in the order's administrative rules 
and regulations. These changes allow the Committee to collect annual, 
end-of-season price, shipment, and grower information (grower entity/
farm name, mailing address, location of farm by county, shipments by 
pack style, and acreage) from all kiwifruit handlers. Under this 
regulation, both reports are due from each handler within 30 days after 
such handler has completed current season shipments. The Committee will 
use this information to determine appropriate grower representation on 
the Committee, to conduct grower nominations, to verify shipments for 
assessment collections, and to prepare the annual report and the annual 
marketing policy, as required under the order. This rule was 
unanimously recommended by the Committee at a meeting on March 17, 
2011.
    Section 920.12 of the order defines the Districts within the 
production area, and Section 920.20 provides, in part, that ``* * * 
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.''
    Section 920.22 of the order defines the nomination procedures, 
allowing for nominations to be conducted via mail, and provides that 
growers are eligible to participate in nominations in the district they 
produce kiwifruit.
    Section 920.34 of the order requires that the Committee 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 920.41 of the order provides authority to assess each 
person who first handles kiwifruit a pro rata share of the expenses 
which are reasonable and likely to be incurred by the Committee during 
a fiscal period.
    Section 920.50 of the order requires the Committee to prepare an 
annual marketing policy for submission to the Secretary. The marketing 
policy describes expected kiwifruit production, quality, and marketing 
conditions. Along with other 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.
    Section 920.61 (Compliance) of the order provides that all handlers 
must conform to the provisions and regulations set forth in the order, 
and the Committee is to verify handler compliance with order 
provisions.

[[Page 80210]]

    The Committee's current reporting requirements are specified in 
Sec.  920.160 of the order's administrative rules and regulations. This 
section currently requires that handlers submit: (1) A report of 
shipment and inventory data which provides monthly data regarding the 
reporting period, name and identification of the shipper, and the 
number of containers by type and weight by shipment destination 
category of all kiwifruit; (2) a Kiwifruit Inventory Shipping System 
(KISS) form, which consists of three sections: KISS/Add Inventory, 
KISS/Deduct Inventory, and KISS/Shipment and which provides beginning 
inventory by size and container type, quantity of the fruit lost in 
repack or repacked into other container types, total domestic and 
export shipments by size and container type; and any other adjustments 
which increase or decrease handler inventory; (3) a Return Receipt of 
Kiwifruit to Grower Form which reports fruit returned by a handler to a 
grower(s); and (4) a KISS Price/Shipment report which contains handler 
information, reporting period, total fresh market shipments, and gross 
f.o.b. sales of non-organic kiwifruit by pack style and size.
    Since 1984, the California Kiwifruit Commission (Commission) has 
collected end-of-season price, shipment, and grower information (grower 
entity/farm name, mailing address, location of farm by county, 
shipments by pack style, and acreage), on organic and non-organic 
kiwifruit via two Commission forms. The Commission has, through an 
agreement, shared this information with the Committee. The Committee 
previously used the majority of this information to determine 
appropriate grower representation on the Committee, to conduct grower 
nominations, to verify shipments for assessment collections, and to 
prepare the annual report and the annual marketing policy under the 
order.
    The Commission ceased to exist as of September 30, 2011. Thus, the 
Committee no longer has access to this previously shared information. 
As the current reporting requirements under the order make no 
provisions for collecting end-of-season information previously provided 
by the Commission, and as the Committee would need this information 
from all handlers, including organic handlers, the Committee 
unanimously recommended adding these new reporting requirements and two 
new forms, the End-of-Season F.O.B. Sales Report and the Final Packout 
Report, to Sec.  920.160 of the order's administrative rules and 
regulations.
    Under this final rule, Sec.  920.160 is revised by adding two new 
reporting requirements and two new forms, due by each handler (organic 
and non-organic) within 30 days after such handler has completed 
current season shipments. Kiwifruit shipments generally begin in 
September and continue through July. The information collected on the 
End-of-Season F.O.B. Sales Report includes data on gross f.o.b. sales 
value and number of containers for fresh market shipments by fruit size 
and pack style for the season. The information collected on the Final 
Packout Report includes containers shipped by pack style for fresh 
market shipments, for each grower entity during the season. The report 
also includes the grower entity and farm name, mailing address, the 
county where the farm is located, and total acreage. Both reports also 
show the company name, contact person, and phone number of the handler. 
The information obtained from both of the two new reports provides data 
to determine appropriate representation on the Committee, to conduct 
grower nominations, to verify shipments for assessment collections, and 
to prepare the annual report and annual marketing policy.
    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 only changes the reporting requirements under the domestic 
handling regulations. No changes to the import regulations will be 
made.

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 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 27 handlers of 
kiwifruit subject to regulation under the marketing order and 
approximately 176 kiwifruit growers in the production area.
    The California Agricultural Statistical Service (CASS) reported 
total California kiwifruit production for the 2010-11 season at 32,700 
tons with an average price of $768 per ton. Based on the average price, 
shipment, and grower 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 final rule changes the reporting requirements currently 
prescribed under the order. This rule revises Sec.  920.160 by adding 
two new reporting requirements and two new forms, due by handlers 
within 30 days after such handler has completed current season 
shipments. The information collected on the End-of-Season F.O.B. Sales 
Report includes data on gross f.o.b. sales value and number of 
containers for fresh market shipments by fruit size and pack style for 
the season. The information collected on the Final Packout Report 
includes containers shipped by pack style for fresh market shipments, 
for each grower entity during the season. The report also includes the 
grower entity and farm name, mailing address, the county where the farm 
is located, and total acreage. Both reports also show the company name, 
contact person, and phone number of the handler. The information 
obtained from both of the two new reports provides data to determine 
appropriate grower representation on the Committee, to conduct grower 
nominations, to verify shipments for assessment collections, and to 
prepare the annual report and annual marketing policy. This final rule 
revises Sec.  920.160, which specifies the reporting requirements.
    Requiring the price, shipment, and grower information at the end of 
the season imposes a minor increase in the reporting burden on all 
kiwifruit handlers. As this data was previously provided to the 
Commission and shared with the Committee, these two annual end-of-
season reports do not significantly increase the handlers'

[[Page 80211]]

record keeping burden because the primary source of data was already 
being recorded and maintained by handlers as a routine part of their 
daily business. The majority of handlers use computers to record their 
data, and this information can readily be accessed and summarized for 
these reports. Consequently, any additional costs associated with these 
changes are expected to be minimal. Also, the benefits of having 
consolidated end-of-season price, shipping, and grower data are 
expected to outweigh any costs associated with the increase in 
reporting burden. Further, the benefits of this rule are expected to be 
equally available to all industry members, regardless of their size. It 
is anticipated that the transmission of these reports from handlers to 
the Committee will be done by either email or facsimile (FAX) machines.
    The Committee discussed alternatives to this action, including 
making no changes to the reporting requirements, but determined that in 
order to carry out the objectives of the marketing order, the 
information collected contained within these two new reports is 
necessary. Therefore, this alternative was rejected.
    This final rule imposes additional reporting burdens on handlers of 
kiwifruit in California. This action requires two new Committee forms: 
The End-of-Season F.O.B. Sales Report and the Final Packout Report. 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.

Paperwork Reduction Act

    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, Generic OMB Fruit Crops. As a result of 
this action, two new Committee forms would be created. They have been 
submitted to OMB for review.
    As noted in the initial regulatory flexibility analysis, 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 March 17, 2011, meeting was a 
public meeting and all entities, both large and small, were able to 
express views on this issue.
    A proposed rule concerning this action was published in the Federal 
Register on August 9, 2011 (76 FR 48742). Copies of the rule were 
mailed or sent via facsimile to all Committee members and kiwifruit 
handlers. Finally, the rule was made available through the Internet by 
USDA and the Office of the Federal Register. A 60-day comment period 
ending October 11, 2011, was provided to allow interested persons to 
respond to the proposal. No comments were received.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 
www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about 
the compliance guide should be sent to Laurel May at the previously 
mentioned address in the FOR FURTHER INFORMATION CONTACT section.
    After consideration of all relevant matter 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.
    It is further found that good cause exists for not postponing the 
effective date of this rule until 30 days after publication in the 
Federal Register (5 U.S.C. 553) because the Committee requires time to 
prepare and mail handler report packets, which should include the End-
of-Season F.O.B. Sales Report and the Final Packout Report, prior to 
the beginning of shipments for the 2011-12 crop year. In addition, 
handlers are aware of this rule, which was recommended at a Committee 
meeting on March 17, 2011. Also, a 60-day comment period was provided 
in the proposed rule.

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

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

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


0
2. Section 920.160 is amended by adding paragraphs (f) and (g) to read 
as follows:


Sec.  920.160  Reports.

* * * * *
    (f) Each handler shall file annually with the Committee an End-of-
Season F.O.B. Sales Report, due within 30 days after such handler has 
completed current season shipments, reporting gross f.o.b. sales value 
and number of containers by pack style and size for fresh market 
shipments for the season. The report shall also show the company name, 
contact person, and phone number of the handler.
    (g) Each handler shall file annually with the Committee a Final 
Packout Report, due within 30 days after such handler has completed 
current season shipments, reporting total containers shipped, by pack 
style for fresh market shipments, for each grower entity during the 
season. The report shall also include the grower entity and farm name, 
mailing address, the county in which the farm is located, and total 
acreage for each reported grower entity. Also, the report shall show 
the company name, contact person, and phone number of the handler.

    Dated: December 14, 2011.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2011-32928 Filed 12-22-11; 8:45 am]
BILLING CODE 3410-02-P