[Federal Register: June 4, 2009 (Volume 74, Number 106)]
[Proposed Rules]
[Page 26806-26810]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04jn09-20]
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Proposed Rules
Federal Register
________________________________________________________________________
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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[[Page 26806]]
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.
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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
[[Page 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 Sec. 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
Sec. 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 Sec. 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 conventionally-
produced (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 Sec. 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
[[Page 26808]]
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 Sec. 920.160(b). A final
rule published in the Federal Register on December 10, 1996 [61 FR
64959], made changes to Sec. 920.160(b) and inadvertently removed part
of the section. Specifically, the last sentence of Sec. 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 Sec. 920.160, which
specifies the reporting requirements. In addition to the new shipping
and price information collection, this rule would restore a portion of
Sec. 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 Sec. 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
[[Page 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=TemplateN&page=MarketingOrdersSmallBus
inessGuide. 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 Sec.
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 previously-mentioned 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.
Sec. 920.160 [Amended]
2. Sec. 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:
Sec. 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
[[Page 26810]]
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]