Kiwifruit Grown in California; Proposed Changes in District Boundaries

SUMMARY: This proposed rule would redefine the eight district

boundaries under the Federal marketing order for kiwifruit grown in

California to make the districts more equitable in terms of kiwifruit

production. Kiwifruit growers in each of these districts elect members

to represent their districts on the Kiwifruit Administrative Committee

(committee), which locally administers the order. Production shifts

have occurred within the California production area that have made the

districts inequitable in terms of kiwifruit production.

DATES: Comments must be received by January 9, 1995.

ADDRESSES: Interested persons are invited to submit written comments

concerning this rule. Comments must be submitted in triplicate to the

Docket Clerk, Fruit and Vegetable Division, AMS, USDA, P. O. Box 96456,

Room 2523-S, Washington, DC 20090-6456, or by facsimile at (202) 720-

5698. Comments should reference this 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.

FOR FURTHER INFORMATION CONTACT: Rose Aguayo, California Marketing

Field Office, Marketing Order Administration Branch, Fruit and

Vegetable Division, AMS, USDA, 2202 Monterey Street, Suite 102B,

Fresno, California 93721; telephone (209) 487-5901; or Mark A. Hessel,

Marketing Order Administration Branch, Fruit and Vegetable Division,

AMS, USDA, P.O. Box 96456, Room 2526-S, Washington, DC 20090-6456,

telephone (202) 720-5127.

SUPPLEMENTARY INFORMATION: This proposed rule is issued under Marketing

Order No. 920 [7 CFR Part 920], as amended, 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 (Department) is issuing this proposed

rule in conformance with Executive Order 12866.

This proposed rule has been reviewed under Executive Order 12778,

Civil Justice Reform. This action is not intended to have retroactive

effect. This proposed rule would 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 the Secretary 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 the Secretary 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

principle place of business, has jurisdiction in equity to review the

Secretary's ruling on the petition, provided a bill in equity is filed

not later than 20 days after date of the entry of the ruling.

Pursuant to requirements set forth in the Regulatory Flexibility

Act (RFA), the Administrator of the Agricultural Marketing Service

(AMS) has considered the economic impact of this proposed rule on small

entities.

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. Thus, both statutes have small

entity orientation and compatibility.

There are approximately 65 handlers of California kiwifruit subject

to regulation under the order and approximately 600 kiwifruit producers

in the production area. Small agricultural service firms are defined by

the Small Business Administration [13 CFR 121.601] as those whose

annual receipts are less than $5,000,000, and small agricultural

producers have been defined as those having annual receipts of less

than $500,000. A majority of handlers and producers of California

kiwifruit may be classified as small entities.

The committee met on September 27, 1994, and recommended by a vote

of 8 to 1 to change the producer district boundaries.

The 12-member committee consists of one public member (and

alternate), one member (and alternate) from each of the eight

California districts, and three additional committee members and their

alternates to be selected from the three districts with the three

highest volumes of fresh shipments in the prior fiscal period. No more

than a total of two members and their alternates shall represent any

one district. With the exception of the public member and alternate,

all members and their respective alternates are growers or employees of

growers. The public member and alternate are nominated by the grower

members and are selected with the approval of the Secretary.

Under Sec. 920.31 of the marketing order, the committee may, with

the approval of the Secretary, redefine the districts into which the

production area is divided. Any such changes shall reflect, insofar as

practicable, shifts in kiwifruit production within the districts and

the production area.

Pursuant to Sec. 920.12, the production area, which includes all

counties in California, is divided into eight districts. District 1

includes Siskiyou, Modoc, Shasta, Lassen, Tehama, Plumas, and Butte

counties with the exception of that area set aside as ``District 2.''

District 2 includes the 95948 postal zip code area known as Gridley

(and surrounding area), incorporating the area located within the

following boundaries: The area west of the Feather River; north of the

Butte/Sutter County line; east of Pennigton and Riley Roads; and south

of Farris Road, Ord Ranch Road and Gridley Avenue. District 3 includes

Yuba, Sutter, Sierra, Nevada, and Placer Counties. District 4 includes

Del Norte, Humboldt, Trinity, Mendocino, Lake, Sonoma, Marin, Napa,

Solano, Yolo, Colusa, and Glenn Counties. District 5 includes San

Joaquin, Calaveras, Tuolumne, Merced, Stanislaus, Contra Costa, El

Dorado, Amador, Sacramento, Alpine, San Francisco, Alameda, San Mateo,

Santa Clara, Santa Cruz, San Benito, and Monterey Counties. District 6

includes Mono, Mariposa, Madera, Fresno, and Kings Counties. District 7

includes Tulare and Inyo Counties. District 8 includes San Luis Obispo,

Santa Barbara, San Bernardino, Kern, Ventura, Los Angeles, Orange,

Riverside, San Diego, and Imperial Counties.

Over the past ten years, production shifts have occurred within the

California production area that have made the districts unequitable in

terms of kiwifruit production. At the time the current districts were

established, the production per district was fairly equal, but a

greater percentage of the California kiwifruit crop was produced in

Southern California (District 8) and Central California (District 5).

However, kiwifruit production has shifted so that a larger percentage

of the crop is concentrated in the Gridley area in Northern California

(District 2) and Tulare County in Central California (District 7).

The percentage of production for each of the eight current

districts is shown in the table below based on the 1993/94 crop year.

The percentage of production for the proposed districts based on the

1993/94 crop year is shown as a basis for comparison. The table

outlines the inequity that currently exists among the districts and how

the proposed districts would rectify these inequities.

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

Current Proposed

District district(percent) district(percent)

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

1................................. 11.02 13.54

2................................. 13.24 13.24

3................................. 15.57 15.00

4................................. 1.79 12.20

5................................. 4.52 12.03

6................................. 12.19 8.59

7................................. 34.25 14.65

8................................. 7.41 10.75

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

Under the proposed new boundaries, county lines would be kept

intact as boundaries except in Tulare and Butte Counties. This proposed

rule would remove Glenn, Lake, Colusa, Sonoma, Yolo, Solano, Del Norte,

Humboldt, Trinity, Mendocino, Napa, and Marin Counties from District 4

and add them to District 1. Sacramento, El Dorado and Amador Counties

would be removed from District 5 and added to District 1. Nevada and

Placer Counties would be removed from District 2 and added to District

1. Sierra County would be removed from District 3 and added to District

1. In Butte County, the town of Gridley would remain as a whole

district--District 2. Calaveras, Tuolumne, Contra Costa, Alpine, San

Francisco, and Alameda Counties would be removed from District 5 and

added to District 4. Mono and Mariposa Counties would be removed from

District 6 and added to District 4. Kings County would be removed from

District 6 and added to District 5. Inyo County would be removed from

District 7 and added to District 6. Tulare County would be divided into

four districts. District 5 would include Tulare County north of Highway

198 to the Kings County boundary. District 6 would include Tulare

County south of Highway 198 to Avenue 56, excluding the west side of

Highway 65 between Highway 137 and Avenue 56. District 7 would include

Tulare County west of Highway 65 between Highway 137 and Avenue 56, and

District 8 would include Tulare County south of Avenue 56.

Committee members serve 2-year terms of office beginning August 1,

with about one-half of the membership selected each year. Of the

current members, seven members are serving terms of office that expire

on July 31, 1995, and five members are serving terms of office that

expire on July 31, 1996. The committee recommended that all of the

present committee members continue to serve through July 31, 1995, and

that this redistricting be effective for nominations for all members to

serve for terms beginning August 1, 1995. One-half of the committee

members selected for terms of office beginning August 1, 1995, will

serve one-year terms and the other half will serve two-year terms, with

the determination of the terms for each member to be decided by lot.

The one voter in opposition to the recommendation wanted to

allocate the additional three committee members and their alternates to

the three districts with the highest number of growers rather to the

three districts with the highest production. However, the marketing

order requires that the three additional members and alternates be

allocated to the highest producing districts.

Based on the above, the Administrator of the AMS has determined

that this action would not have a significant economic impact on a

substantial number of small entities.

A 30-day comment period is provided to allow interested persons to

respond to this proposal. All written comments timely received will be

considered before a final determination is made on this matter.

List of Subjects in 7 CFR Part 920

Kiwifruit, Marketing agreements.

For the reasons set forth in the preamble, it is proposed that 7

CFR Part 920 be amended as follows:

PART 920--KIWIFRUIT GROWN IN CALIFORNIA

1. The authority citation for 7 CFR Part 920 continues to read as

follows:

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

2. A new Sec. 920.131 is added to read as follows:

Sec. 920.131 Redistricting of kiwifruit districts.

Pursuant to Sec. 920.31 (l) the districts are redefined as follows:

(a) District 1 shall include the counties of Del Norte, Siskiyou,

Modoc, Humboldt, Trinity, Shasta, Lassen, Mendocino, Tehama, Plumas,

Glenn, Lake, Colusa, Sonoma, Yolo, Solano, Napa, Marin, Sacramento,

Sierra, Nevada, Placer, El Dorado, Amador, and Butte (with the

exception of that area set aside as ``District 2'').

(b) District 2 shall include the 95948 postal zip code area known

as Gridley in Butte County, and the area surrounding Gridley,

incorporating the area located within the following boundaries: The

area west of the Feather River; north of the Butte/Sutter County line;

east of Pennington and Riley Roads; and south of Farris Road, Ord Ranch

Road and Gridley Avenue.

(c) District 3 shall include the counties of Sutter and Yuba.

(d) District 4 shall include the counties of San Francisco, San

Mateo, Santa Cruz, Contra Costa, Alameda, Santa Clara, Monterey, San

Benito, San Joaquin, Calaveras, Alpine, Mono, Tuolumne, Stanislaus,

Merced, Mariposa, Madera, and Fresno.

(e) District 5 shall include Kings county and that portion of

Tulare County north of Highway 198.

(f) District 6 shall include Inyo County and that portion of Tulare

County south of Highway 198 to Avenue 56, excluding the west side of

Highway 65 between Highway 137 and Avenue 56.

(g) District 7 shall include that portion of Tulare County of

Tulare west of Highway 65 and between Highway 137 and Avenue 56.

(h) District 8 shall include of Kern, San Luis Obispo, Santa

Barbara, Ventura, San Bernardino, San Diego, Los Angeles, Orange,

Riverside, San Diego, Imperial Counties and that portion of Tulare

County south of Avenue 56.

Dated: December 5, 1994.

Eric M. Forman,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-30372 Filed 12-8-94; 8:45 am]

BILLING CODE 3410-02-P