Kiwifruit Grown in California; Decreased Assessment Rate, 75537-75540 [E8-29573]
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75537
Rules and Regulations
Federal Register
Vol. 73, No. 240
Friday, December 12, 2008
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection
Service
7 CFR Part 301
[Docket No. APHIS–2008–0080]
RIN 0579–AC81
Citrus Canker; Movement of Fruit From
a Quarantined Area; Bag Markings
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AGENCY: Animal and Plant Health
Inspection Service, USDA.
ACTION: Affirmation of interim rule as
final rule.
SUMMARY: We are adopting as a final
rule, without change, an interim rule
that amended the regulations governing
the interstate movement of fruit from an
area quarantined for citrus canker to
extend the temporary exception that
allows fruit to be packed for interstate
movement in bags that are clearly
marked with only a limited distribution
statement, if those bags are then packed
in a box that is marked with both the
limited distribution statement and the
statement ‘‘Limited Permit: USDA–
APHIS–PPQ.’’ The interim rule
extended the ending date for this
temporary exemption from August 1,
2008, to August 1, 2010. The interim
rule was necessary to provide for the
continued use of existing inventories of
bags in which regulated fruit are packed
while maintaining safeguards against
the movement of regulated fruit to
commercial citrus-producing States.
DATES: Effective on December 12, 2008,
we are adopting as a final rule the
interim rule published at 73 FR 44615–
44617 on July 31, 2008.
FOR FURTHER INFORMATION CONTACT: Mr.
Stephen Poe, Senior Staff Officer,
Emergency and Domestic Programs,
PPQ, APHIS, 4700 River Road Unit 137,
Riverdale, MD 20737–1231; 301–734–
8899.
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SUPPLEMENTARY INFORMATION:
Background
Citrus canker is a plant disease caused
by the bacterium Xanthomonas citri
subsp. citri that affects plants and plant
parts, including fresh fruit, of citrus and
citrus relatives (Family Rutaceae). Citrus
canker can cause defoliation and other
serious damage to the leaves and twigs
of susceptible plants. It can also cause
lesions on the fruit of infected plants,
which render the fruit unmarketable,
and cause infected fruit to drop from the
trees before reaching maturity. The
aggressive A (Asiatic) strain of citrus
canker can infect susceptible plants
rapidly and lead to extensive economic
losses in commercial citrus-producing
areas. Citrus canker is only known to be
present in the United States in the State
of Florida.
The regulations to prevent the
interstate spread of citrus canker are
contained in §§ 301.75–1 through
301.75–14 of ‘‘Subpart—Citrus Canker’’
(7 CFR 301.75–1 through 301.75–17,
referred to below as the regulations).
The regulations restrict the interstate
movement of regulated articles from and
through areas quarantined because of
citrus canker and provide, among other
things, conditions under which
regulated fruit may be moved into,
through, and from quarantined areas for
packing.
In an interim rule 1 effective and
published in the Federal Register on
July 31, 2008 (73 FR 44615–44617,
Docket No. APHIS–2008–0080), we
amended the regulations to extend the
temporary exception that allows fruit to
be packed for interstate movement in
bags that are clearly marked with only
a limited distribution statement, if those
bags are then packed in a box that is
marked with both the limited
distribution statement and the statement
‘‘Limited Permit: USDA–APHIS–PPQ.’’
The interim rule extended the ending
date for this temporary exemption from
August 1, 2008, to August 1, 2010. The
interim rule was necessary to provide
for the continued use of existing
inventories of bags in which regulated
fruit are packed while maintaining
safeguards against the movement of
1 To view the interim rule and the comment we
received, go to https://www.regulations.gov/
fdmspublic/component/
main?main=DocketDetail&d=APHIS-2008-0080.
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regulated fruit to commercial citrusproducing States.
Comments on the interim rule were
required to be received on or before
September 29, 2008. We received one
comment by that date, from a State
agricultural agency. The commenter
supported the interim rule. Therefore,
for the reasons given in the interim rule,
we are adopting the interim rule as a
final rule without change.
This action also affirms the
information contained in the interim
rule concerning Executive Order 12866
and the Regulatory Flexibility Act,
Executive Orders 12372 and 12988, and
the Paperwork Reduction Act.
Further, for this action, the Office of
Management and Budget has waived its
review under Executive Order 12866.
List of Subjects in 7 CFR Part 301
Agricultural commodities, Plant
diseases and pests, Quarantine,
Reporting and recordkeeping
requirements, Transportation.
PART 301—DOMESTIC QUARANTINE
NOTICES
Accordingly, we are adopting as a
final rule, without change, the interim
rule that amended 7 CFR part 301 and
that was published at 73 FR 44615–
44617 on July 31, 2008.
■
Done in Washington, DC, this 8th day of
December 2008.
Kevin Shea,
Acting Administrator, Animal and Plant
Health Inspection Service.
[FR Doc. E8–29458 Filed 12–11–08; 8:45 am]
BILLING CODE 3410–34–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 920
[Docket No. AMS–FV–08–0095; FV09–920–
1 IFR]
Kiwifruit Grown in California;
Decreased Assessment Rate
AGENCY: Agricultural Marketing Service,
USDA.
ACTION: Interim final rule with request
for comments.
SUMMARY: This rule decreases the
assessment rate established for the
Kiwifruit Administrative Committee
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Federal Register / Vol. 73, No. 240 / Friday, December 12, 2008 / Rules and Regulations
(Committee) for the 2008–09 and
subsequent fiscal periods from $0.045 to
$0.035 per 9-kilo volume-fill container
or equivalent of kiwifruit. The
Committee locally administers the
marketing order which regulates the
handling of kiwifruit grown in
California. Assessments upon kiwifruit
handlers are used by the Committee to
fund reasonable and necessary expenses
of the program. The fiscal period begins
on August 1 and ends July 31. The
assessment rate will remain in effect
indefinitely unless modified,
suspended, or terminated.
DATES: Effective December 15, 2008;
comments received by February 10,
2009 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: https://
www.regulations.gov. Comments should
reference the docket number and the
date and page number of this issue of
the Federal Register and will be
available for public inspection in the
Office of the Docket Clerk during regular
business hours, or can be viewed at:
https://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@usda.gov, or
Kurt.Kimmel@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@usda.gov.
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. Under the marketing order now
in effect, California kiwifruit handlers
are subject to assessments. Funds to
administer the order are derived from
such assessments. It is intended that the
assessment rate as issued herein will be
applicable to all assessable kiwifruit
beginning on August 1, 2008, and
continue until amended, suspended, or
terminated. This rule 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. Such
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 decreases the assessment
rate established for the Committee for
the 2008–09 and subsequent fiscal
periods from $0.045 to $0.035 per 9-kilo
volume-fill container or equivalent of
kiwifruit.
The California kiwifruit marketing
order provides authority for the
Committee, with the approval of USDA,
to formulate an annual budget of
expenses and collect assessments from
handlers to administer the program. The
members of the Committee are
producers of California kiwifruit. They
are familiar with the Committee’s needs
and the costs for goods and services in
their local area and are thus in a
position to formulate an appropriate
budget and assessment rate. The
assessment rate is formulated and
discussed in a public meeting. Thus, all
directly affected persons have an
opportunity to participate and provide
input.
For the 2005–06 and subsequent fiscal
periods, the Committee recommended,
and USDA approved, an assessment rate
that would continue in effect from fiscal
period to fiscal period unless modified,
suspended, or terminated by USDA
upon recommendation and information
submitted by the Committee or other
information available to USDA.
The Committee met on October 14,
2008, and unanimously recommended
2008–09 expenditures of $76,492 and an
assessment rate of $0.035 per 9-kilo
volume-fill container or equivalent of
kiwifruit. In comparison, last year’s
budgeted expenditures were $99,302.
The assessment rate of $0.035 per 9-kilo
volume-fill container or equivalent is
$0.010 per 9-kilo volume-fill container
or equivalent less than the rate currently
in effect. The decreased assessment rate
is primarily due to a decrease in
management expenditures for the 2008–
09 fiscal year.
The following table compares major
budget expenditures recommended by
the Committee for the 2007–08 and
2008–09 fiscal periods:
mstockstill on PROD1PC62 with RULES
Budget expense categories
2007–08
Staff Salaries/Management .............................................................................................................................................
Financial Management Services .....................................................................................................................................
Audit Expense ..................................................................................................................................................................
Vehicle Maintenance/Insurance .......................................................................................................................................
Travel ...............................................................................................................................................................................
Office Expenses ...............................................................................................................................................................
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E:\FR\FM\12DER1.SGM
12DER1
$65,150
12,000
5,000
3,180
3,300
2,830
2008–09
$56,700
1,000
3,500
....................
3,500
4,500
Federal Register / Vol. 73, No. 240 / Friday, December 12, 2008 / Rules and Regulations
The assessment rate recommended by
the Committee was derived by using the
following formula: Anticipated 2008–09
expenses ($76,492), minus the
difference between the 2008 beginning
reserve ($62,647) and the desired 2009
ending reserve ($54,311), divided by the
total estimated 2008–09 shipments
(1,944,444 9-kilo volume-fill
containers). This formula results in the
assessment rate of $0.035 per 9-kilo
volume-fill container or equivalent. As
mentioned earlier, kiwifruit shipments
for the year are estimated at 1,944,444
9-kilo volume-fill containers which
should provide $68,056 in assessment
income. An additional $100 in penalty
and interest income is also anticipated,
bringing the total projected 2008–09
revenue to $68,156. Income generated
through this rate, plus interest income
and reserve funds, will provide
sufficient funds to meet the anticipated
expenses of $76,492 and should result
in a July 2009 ending reserve of $54,311
which is within the maximum reserve of
approximately one fiscal year’s
expenses permitted by the order
(§ 920.42).
The assessment rate established in
this rule will continue in effect
indefinitely unless modified,
suspended, or terminated by USDA
upon recommendation and information
submitted by the Committee or other
available information.
Although this assessment rate is
effective for an indefinite period, the
Committee will continue to meet prior
to or during each fiscal period to
recommend a budget of expenses and
consider recommendations for
modification of the assessment rate. The
dates and times of Committee meetings
are available from the Committee or
USDA. Committee meetings are open to
the public and interested persons may
express their views at these meetings.
USDA will evaluate Committee
recommendations and other available
information to determine whether
modification of the assessment rate is
needed. Further rulemaking will be
undertaken as necessary. The
Committee’s 2008–09 budget and those
for subsequent fiscal periods will be
reviewed and, as appropriate, approved
by USDA.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in
the Regulatory Flexibility Act (RFA), the
Agricultural Marketing Service (AMS)
has considered the economic impact of
this rule 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 the rules issued thereunder, are
unique in that they are brought about
through group action of essentially
small entities acting on their own
behalf.
There are approximately 31 handlers
of California kiwifruit subject to
regulation under the marketing order
and approximately 220 growers in the
production area. 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. None of the 31 handlers
subject to regulation have annual
kiwifruit sales of $7,000,000. Dividing
average crop value for 2007–08 reported
by the National Agricultural Statistics
Service (NASS) of $22,517,000 by the
number of producers (220) yields an
average annual producer revenue
estimate of about $102,350, which is
well below the SBA threshold of
$750,000. Based on the foregoing, it may
be concluded that all kiwifruit handlers
and the majority of producers may be
classified as small entities.
This rule decreases the assessment
rate established for the Committee and
collected from handlers for the 2008–09
and subsequent fiscal periods from
$0.045 to $0.035 per 9-kilo volume-fill
container or equivalent of kiwifruit. The
Committee unanimously recommended
2008–09 expenditures of $76,492 and an
assessment rate of $0.035 per 9-kilo
volume-fill container or equivalent of
kiwifruit. The assessment rate of $0.035
is $0.010 lower than the 2007–08 rate.
The quantity of assessable kiwifruit for
the 2008–09 fiscal period is estimated at
1,944,444 9-kilo volume-fill containers
or equivalent of kiwifruit. Thus, the rate
should provide $68,056 in assessment
income. Income derived from handler
assessments, along with penalty and
interest income and funds from the
Committee’s authorized reserve, will be
adequate to cover budgeted expenses.
The following table compares major
budget expenditures recommended by
the Committee for the 2007–08 and
2008–09 fiscal years:
Budget expense categories
2007–08
mstockstill on PROD1PC62 with RULES
Staff Salaries/Management .............................................................................................................................................
Financial Management Services .....................................................................................................................................
Audit Expense ..................................................................................................................................................................
Vehicle Maintenance/Insurance .......................................................................................................................................
Travel ...............................................................................................................................................................................
Office Expenses ...............................................................................................................................................................
The Committee reviewed and
unanimously recommended 2008–09
expenditures of $76,492 which included
a reduction in management expenses.
Prior to arriving at this budget, the
Committee considered alternative
expenditure levels, but ultimately
decided that the recommended levels
were reasonable to properly administer
the order. The assessment rate
recommended by the Committee was
derived by using the following formula:
Anticipated 2008–09 expenses
($76,492), minus the difference between
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16:37 Dec 11, 2008
Jkt 217001
the 2008 beginning reserve ($62,647)
and the desired 2009 ending reserve
($54,311), divided by the total estimated
2008–09 shipments (1,944,444 9-kilo
volume-fill containers). This formula
results in the assessment rate of $0.035
per 9-kilo volume-fill container or
equivalent. As mentioned earlier,
kiwifruit shipments for the year are
estimated at 1,944,444 9-kilo volume-fill
containers which should provide
$68,056 in assessment income. An
additional $100 in penalty and interest
income is also anticipated, bringing the
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75539
$65,150
12,000
5,000
3,180
3,300
2,830
2008–09
$56,700
1,000
3,500
....................
3,500
4,500
total projected 2008–09 revenue to
$68,156. Income generated through this
rate, plus interest income and reserve
funds, will provide sufficient funds to
meet the anticipated expenses of
$76,492 and should result in a July 2009
ending reserve of $54,311 which is
within the maximum reserve of
approximately one fiscal year’s
expenses permitted by the order
(§ 920.42).
According to NASS, the season
average grower price for years 2006 and
2007 were $911 and $950 per ton,
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12DER1
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75540
Federal Register / Vol. 73, No. 240 / Friday, December 12, 2008 / Rules and Regulations
respectively. These prices provide a
range within which the 2008–09 season
average grower price could fall.
Dividing these average grower prices by
2,000 pounds per ton provides a price
per pound range of $0.46 to $0.48.
Multiplying these per-pound prices by
19.8 pounds (the weight of a 9-kilo
volume-fill container) yields a 2008–09
price range estimate of $9.11 to $9.50
per 9-kilo volume-fill container of
assessable kiwifruit.
To calculate the percentage of grower
revenue represented by the assessment
rate, the assessment rate of $0.035 per
9-kilo volume-fill container is divided
by the low and high estimates of the
price range. The estimated assessment
revenue for the 2008–09 fiscal year as a
percentage of total grower revenue
would thus likely range between 0.368
and 0.384 percent.
This action decreases the assessment
obligation imposed on handlers.
Assessments are applied uniformly on
all handlers, and some of the costs may
be passed on to producers. However,
decreasing the assessment rate reduces
the burden on handlers and may reduce
the burden on producers. In addition,
the Committee’s meeting was widely
publicized throughout the California
kiwifruit industry and all interested
persons were invited to attend the
meeting and participate in Committee
deliberations on all issues. Like all
Committee meetings, the October 14,
2008, meeting was a public meeting 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
and informational impacts of this action
on small businesses.
This action imposes no additional
reporting or recordkeeping requirements
on either small or large California
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.
USDA has not identified any relevant
Federal rules that duplicate, overlap, or
conflict with this rule.
A small business guide on complying
with fruit, vegetable, and specialty crop
marketing agreements and orders may
be viewed at: https://www.ams.usda.gov/
AMSv1.0/ams.fetchTemplateData.do?
template=TemplateN&page=Marketing
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OrdersSmallBusinessGuide. Any
questions about the compliance guide
should be sent to Jay Guerber at the
previously mentioned address in the
FOR FURTHER INFORMATION CONTACT
section.
After consideration of all relevant
material presented, including the
Committee’s recommendation and other
available information, it is found that
this interim final 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 not postponing the effective
date of this rule until 30 days after
publication in the Federal Register
because: (1) This rule should be in place
as soon as possible because the 2008–09
fiscal year began on August 1, 2008,
handlers began shipping kiwifruit in
mid-September, and the order requires
that the rate of assessment for each
fiscal period apply to all assessable
kiwifruit handled during the period; (2)
the Committee unanimously
recommended this change at a public
meeting and all interested parties had
an opportunity to provide input; (3) this
rule relaxes requirements currently in
effect and kiwifruit producers and
handlers are aware of this rule and need
no additional time to comply with the
relaxed requirements; and (4) this rule
provides a 60-day comment period and
any comments received will be
considered prior to finalization of this
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
1. The authority citation for 7 CFR
part 920 continues to read as follows:
■
Authority: 7 U.S.C. 601–674.
2. Section 920.213 is revised to read
as follows:
■
§ 920.213
Assessment rate.
On and after August 1, 2008, an
assessment rate of $0.035 per 9-kilo
volume-fill container or equivalent of
kiwifruit is established for kiwifruit
grown in California.
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Dated: December 8, 2008.
James E. Link,
Administrator, Agricultural Marketing
Service.
[FR Doc. E8–29573 Filed 12–10–08; 4:15 pm]
BILLING CODE 3410–02–P
DEPARTMENT OF HOMELAND
SECURITY
8 CFR Parts 103, 212, 214, 245 and 299
[CIS No. 2134–01; DHS Docket No. USCIS–
2006–0067]
RIN 1615–AA60
Adjustment of Status to Lawful
Permanent Resident for Aliens in T or
U Nonimmigrant Status
AGENCY: U.S. Citizenship and
Immigration Services, DHS.
ACTION: Interim final rule with request
for comments.
SUMMARY: The Department of Homeland
Security is amending its regulations to
permit aliens in lawful T or U
nonimmigrant status to apply for
adjustment of status to lawful
permanent resident. T nonimmigrant
status is available to aliens who are
victims of a severe form of trafficking in
persons and who are assisting law
enforcement in the investigation or
prosecution of the acts of trafficking. U
nonimmigrant status is available to
aliens who are victims of certain crimes
and are being helpful to the
investigation or prosecution of those
crimes. This rule provides that family
members of a principal T or U
nonimmigrant granted or seeking
adjustment of status may also apply for
adjustment of status to lawful
permanent resident. This rule also
provides for adjustment of status or
approval of an immigrant petition for
certain family members of U applicants
who were never admitted to the United
States in U nonimmigrant status.
DATES: Effective date: This interim rule
is effective January 12, 2009.
Comment date: Written comments
must be submitted on or before February
10, 2009 in order to be assured of
consideration.
ADDRESSES: You may submit comments,
identified by DHS Docket No. USCIS–
2006–0067, by any of the following
methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Chief, Regulatory
Management Division, U.S. Citizenship
and Immigration Services, Department
E:\FR\FM\12DER1.SGM
12DER1
]]>Agencies
[Federal Register Volume 73, Number 240 (Friday, December 12, 2008)]
[Rules and Regulations]
[Pages 75537-75540]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29573]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 920
[Docket No. AMS-FV-08-0095; FV09-920-1 IFR]
Kiwifruit Grown in California; Decreased Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This rule decreases the assessment rate established for the
Kiwifruit Administrative Committee
[[Page 75538]]
(Committee) for the 2008-09 and subsequent fiscal periods from $0.045
to $0.035 per 9-kilo volume-fill container or equivalent of kiwifruit.
The Committee locally administers the marketing order which regulates
the handling of kiwifruit grown in California. Assessments upon
kiwifruit handlers are used by the Committee to fund reasonable and
necessary expenses of the program. The fiscal period begins on August 1
and ends July 31. The assessment rate will remain in effect
indefinitely unless modified, suspended, or terminated.
DATES: Effective December 15, 2008; comments received by February 10,
2009 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: https://
www.regulations.gov. Comments should reference the docket number and
the date and page number of this issue of the Federal Register and will
be available for public inspection in the Office of the Docket Clerk
during regular business hours, or can be viewed at: https://
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@usda.gov, or Kurt.Kimmel@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@usda.gov.
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. Under the marketing order now in effect, California
kiwifruit handlers are subject to assessments. Funds to administer the
order are derived from such assessments. It is intended that the
assessment rate as issued herein will be applicable to all assessable
kiwifruit beginning on August 1, 2008, and continue until amended,
suspended, or terminated. This rule 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. Such
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 decreases the assessment rate established for the
Committee for the 2008-09 and subsequent fiscal periods from $0.045 to
$0.035 per 9-kilo volume-fill container or equivalent of kiwifruit.
The California kiwifruit marketing order provides authority for the
Committee, with the approval of USDA, to formulate an annual budget of
expenses and collect assessments from handlers to administer the
program. The members of the Committee are producers of California
kiwifruit. They are familiar with the Committee's needs and the costs
for goods and services in their local area and are thus in a position
to formulate an appropriate budget and assessment rate. The assessment
rate is formulated and discussed in a public meeting. Thus, all
directly affected persons have an opportunity to participate and
provide input.
For the 2005-06 and subsequent fiscal periods, the Committee
recommended, and USDA approved, an assessment rate that would continue
in effect from fiscal period to fiscal period unless modified,
suspended, or terminated by USDA upon recommendation and information
submitted by the Committee or other information available to USDA.
The Committee met on October 14, 2008, and unanimously recommended
2008-09 expenditures of $76,492 and an assessment rate of $0.035 per 9-
kilo volume-fill container or equivalent of kiwifruit. In comparison,
last year's budgeted expenditures were $99,302. The assessment rate of
$0.035 per 9-kilo volume-fill container or equivalent is $0.010 per 9-
kilo volume-fill container or equivalent less than the rate currently
in effect. The decreased assessment rate is primarily due to a decrease
in management expenditures for the 2008-09 fiscal year.
The following table compares major budget expenditures recommended
by the Committee for the 2007-08 and 2008-09 fiscal periods:
------------------------------------------------------------------------
Budget expense categories 2007-08 2008-09
------------------------------------------------------------------------
Staff Salaries/Management..................... $65,150 $56,700
Financial Management Services................. 12,000 1,000
Audit Expense................................. 5,000 3,500
Vehicle Maintenance/Insurance................. 3,180 ...........
Travel........................................ 3,300 3,500
Office Expenses............................... 2,830 4,500
------------------------------------------------------------------------
[[Page 75539]]
The assessment rate recommended by the Committee was derived by
using the following formula: Anticipated 2008-09 expenses ($76,492),
minus the difference between the 2008 beginning reserve ($62,647) and
the desired 2009 ending reserve ($54,311), divided by the total
estimated 2008-09 shipments (1,944,444 9-kilo volume-fill containers).
This formula results in the assessment rate of $0.035 per 9-kilo
volume-fill container or equivalent. As mentioned earlier, kiwifruit
shipments for the year are estimated at 1,944,444 9-kilo volume-fill
containers which should provide $68,056 in assessment income. An
additional $100 in penalty and interest income is also anticipated,
bringing the total projected 2008-09 revenue to $68,156. Income
generated through this rate, plus interest income and reserve funds,
will provide sufficient funds to meet the anticipated expenses of
$76,492 and should result in a July 2009 ending reserve of $54,311
which is within the maximum reserve of approximately one fiscal year's
expenses permitted by the order (Sec. 920.42).
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by USDA
upon recommendation and information submitted by the Committee or other
available information.
Although this assessment rate is effective for an indefinite
period, the Committee will continue to meet prior to or during each
fiscal period to recommend a budget of expenses and consider
recommendations for modification of the assessment rate. The dates and
times of Committee meetings are available from the Committee or USDA.
Committee meetings are open to the public and interested persons may
express their views at these meetings. USDA will evaluate Committee
recommendations and other available information to determine whether
modification of the assessment rate is needed. Further rulemaking will
be undertaken as necessary. The Committee's 2008-09 budget and those
for subsequent fiscal periods will be reviewed and, as appropriate,
approved by USDA.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this rule 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 the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf.
There are approximately 31 handlers of California kiwifruit subject
to regulation under the marketing order and approximately 220 growers
in the production area. 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. None of the 31 handlers subject to regulation have annual
kiwifruit sales of $7,000,000. Dividing average crop value for 2007-08
reported by the National Agricultural Statistics Service (NASS) of
$22,517,000 by the number of producers (220) yields an average annual
producer revenue estimate of about $102,350, which is well below the
SBA threshold of $750,000. Based on the foregoing, it may be concluded
that all kiwifruit handlers and the majority of producers may be
classified as small entities.
This rule decreases the assessment rate established for the
Committee and collected from handlers for the 2008-09 and subsequent
fiscal periods from $0.045 to $0.035 per 9-kilo volume-fill container
or equivalent of kiwifruit. The Committee unanimously recommended 2008-
09 expenditures of $76,492 and an assessment rate of $0.035 per 9-kilo
volume-fill container or equivalent of kiwifruit. The assessment rate
of $0.035 is $0.010 lower than the 2007-08 rate. The quantity of
assessable kiwifruit for the 2008-09 fiscal period is estimated at
1,944,444 9-kilo volume-fill containers or equivalent of kiwifruit.
Thus, the rate should provide $68,056 in assessment income. Income
derived from handler assessments, along with penalty and interest
income and funds from the Committee's authorized reserve, will be
adequate to cover budgeted expenses.
The following table compares major budget expenditures recommended
by the Committee for the 2007-08 and 2008-09 fiscal years:
------------------------------------------------------------------------
Budget expense categories 2007-08 2008-09
------------------------------------------------------------------------
Staff Salaries/Management..................... $65,150 $56,700
Financial Management Services................. 12,000 1,000
Audit Expense................................. 5,000 3,500
Vehicle Maintenance/Insurance................. 3,180 ...........
Travel........................................ 3,300 3,500
Office Expenses............................... 2,830 4,500
------------------------------------------------------------------------
The Committee reviewed and unanimously recommended 2008-09
expenditures of $76,492 which included a reduction in management
expenses. Prior to arriving at this budget, the Committee considered
alternative expenditure levels, but ultimately decided that the
recommended levels were reasonable to properly administer the order.
The assessment rate recommended by the Committee was derived by using
the following formula: Anticipated 2008-09 expenses ($76,492), minus
the difference between the 2008 beginning reserve ($62,647) and the
desired 2009 ending reserve ($54,311), divided by the total estimated
2008-09 shipments (1,944,444 9-kilo volume-fill containers). This
formula results in the assessment rate of $0.035 per 9-kilo volume-fill
container or equivalent. As mentioned earlier, kiwifruit shipments for
the year are estimated at 1,944,444 9-kilo volume-fill containers which
should provide $68,056 in assessment income. An additional $100 in
penalty and interest income is also anticipated, bringing the total
projected 2008-09 revenue to $68,156. Income generated through this
rate, plus interest income and reserve funds, will provide sufficient
funds to meet the anticipated expenses of $76,492 and should result in
a July 2009 ending reserve of $54,311 which is within the maximum
reserve of approximately one fiscal year's expenses permitted by the
order (Sec. 920.42).
According to NASS, the season average grower price for years 2006
and 2007 were $911 and $950 per ton,
[[Page 75540]]
respectively. These prices provide a range within which the 2008-09
season average grower price could fall. Dividing these average grower
prices by 2,000 pounds per ton provides a price per pound range of
$0.46 to $0.48. Multiplying these per-pound prices by 19.8 pounds (the
weight of a 9-kilo volume-fill container) yields a 2008-09 price range
estimate of $9.11 to $9.50 per 9-kilo volume-fill container of
assessable kiwifruit.
To calculate the percentage of grower revenue represented by the
assessment rate, the assessment rate of $0.035 per 9-kilo volume-fill
container is divided by the low and high estimates of the price range.
The estimated assessment revenue for the 2008-09 fiscal year as a
percentage of total grower revenue would thus likely range between
0.368 and 0.384 percent.
This action decreases the assessment obligation imposed on
handlers. Assessments are applied uniformly on all handlers, and some
of the costs may be passed on to producers. However, decreasing the
assessment rate reduces the burden on handlers and may reduce the
burden on producers. In addition, the Committee's meeting was widely
publicized throughout the California kiwifruit industry and all
interested persons were invited to attend the meeting and participate
in Committee deliberations on all issues. Like all Committee meetings,
the October 14, 2008, meeting was a public meeting 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 and informational impacts of this action on small
businesses.
This action imposes no additional reporting or recordkeeping
requirements on either small or large California 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.
USDA has not identified any relevant Federal rules that duplicate,
overlap, or conflict with this rule.
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/AMSv1.0/
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.
After consideration of all relevant material presented, including
the Committee's recommendation and other available information, it is
found that this interim final 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 not postponing the effective date
of this rule until 30 days after publication in the Federal Register
because: (1) This rule should be in place as soon as possible because
the 2008-09 fiscal year began on August 1, 2008, handlers began
shipping kiwifruit in mid-September, and the order requires that the
rate of assessment for each fiscal period apply to all assessable
kiwifruit handled during the period; (2) the Committee unanimously
recommended this change at a public meeting and all interested parties
had an opportunity to provide input; (3) this rule relaxes requirements
currently in effect and kiwifruit producers and handlers are aware of
this rule and need no additional time to comply with the relaxed
requirements; and (4) this rule provides a 60-day comment period and
any comments received will be considered prior to 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.
0
2. Section 920.213 is revised to read as follows:
Sec. 920.213 Assessment rate.
On and after August 1, 2008, an assessment rate of $0.035 per 9-
kilo volume-fill container or equivalent of kiwifruit is established
for kiwifruit grown in California.
Dated: December 8, 2008.
James E. Link,
Administrator, Agricultural Marketing Service.
[FR Doc. E8-29573 Filed 12-10-08; 4:15 pm]
BILLING CODE 3410-02-P
