Kiwifruit Grown in California; Reduction of Reporting Requirements

SUMMARY: This interim final rule reduces the reporting requirements for

California kiwifruit handlers who ship less than 10,000 trays or tray

equivalents per fiscal year. The changes in reporting requirements were

unanimously recommended by the Kiwifruit Administrative Committee

(Committee), the agency responsible for the local administration of the

Federal marketing order for kiwifruit grown in California. This interim

final rule decreases the reporting burden on such handlers while

maintaining the information collection necessary for the efficient

operation of the program.

DATES: Effective October 4, 1996; comments received by November 4, 1996

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 in triplicate to the Docket

Clerk, Fruit and Vegetable Division, AMS, USDA, room 2525-S, P.O. Box

96456, Washington, DC 20090-6456, Fax # (202) 720-5698. 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. Small businesses may request information on compliance with this

regulation by contacting: Jay Guerber, Marketing Order Administration

Branch, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room

2523-S, Washington, DC 20090-6456; telephone (202) 720-2491, Fax #

(202) 720-5698.

FOR FURTHER INFORMATION CONTACT: Kurt J. Kimmel, California Marketing

Field Office, Marketing Order Administration Branch, F&V, AMS, USDA,

2202 Monterey Street, suite 102B, Fresno, California 93721; telephone:

(209) 487-5901, Fax # (209) 487-5906; or Charles L. Rush, Marketing

Specialist, Marketing Order Administration Branch, F&V, AMS, USDA, room

2522-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202)

720-5127, Fax # (202) 720-5698.

SUPPLEMENTARY INFORMATION: This 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.'' This 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 rule in

conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil

Justice Reform. This rule is not intended to have retroactive effect.

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 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

principal place of business, has jurisdiction to review the Secretary's

ruling on the petition, provided an action 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 Agricultural Marketing Service (AMS) has considered the

economic impact of this action 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 kiwifruit who are subject to

regulation under the marketing order and approximately 500 producers of

kiwifruit in the regulated area. Small agricultural service firms have

been defined by the Small Business Administration (13 CFR 121.601) as

those having annual receipts of less than $5,000,000, and small

agricultural producers are defined as those whose annual receipts are

less than $500,000. The majority of kiwifruit handlers and producers

may be classified as small entities. Interested persons are invited to

submit information on the regulatory and informational impacts of this

action on small businesses.

This rule reduces the number of reports required to be filed by

small kiwifruit handlers (those who handle less than 10,000 tray

equivalents per year). The decrease in the number of reports required

to be filed does not inhibit the effective operation of the order. It

is estimated that less than 100,000 tray equivalents would be shipped

by those eligible for the reduced reporting requirement, or

approximately one percent of California kiwifruit production. A

majority of these small volume handlers, eligible for the reduced

reporting requirement, sell fruit for two to five growers. Generally,

kiwifruit shipments are small and may consist of less than 50 trays at

a time. Shipment information from these small volume handlers will be

added into the total shipments at the end of each fiscal year. The lack

of shipment information that will be provided by these handlers on a

monthly basis is insignificant. The Committee is still able to levy

[[Page 51576]]

assessments on those handlers eligible for the reduced reporting

requirement based on the information in the shipment reports that is

still required twice per season.

This rule directly benefits small kiwifruit handlers. It is

anticipated that approximately 20 of the 65 handlers are eligible for

the reduced reporting burden authorized by this rule. The range of

volume of kiwifruit handled by kiwifruit handlers is extremely broad

with some handlers handling as few as 50 tray equivalents and others

over 1 million tray equivalents. The majority of handlers fall in the

middle and on average ship between 100,000 and 800,000 tray

equivalents.

Based on available information, the AMS has determined that this

action will not have a significant economic impact on a substantial

number of small entities.

Under the terms of the order, fresh market shipments of California

kiwifruit are required to be inspected and are subject to grade, size,

maturity, and pack and container requirements. In addition, the order

authorizes the Committee to collect information from kiwifruit handlers

in order to efficiently operate the program.

The Committee met on June 12, 1996, and unanimously recommended

reducing the reporting burden for handlers who ship less than 10,000

tray equivalents per season. Such handlers, if they qualified with the

committee, will no longer be required to complete biweekly inventory

reports and will only be required to fill out a monthly shipment report

twice per year.

Section 920.60 of the order authorizes the Committee, subject to

the approval of the Secretary, to request information from handlers

necessary to perform its duties under the order. Section 920.160(a) of

the order's rules and regulations requires a report of shipments to be

filed with the Committee by the fifth day of the month following such

shipment, or such other later time established by the Committee. This

report is used to compile statistical information on shipments and to

calculate assessments owed under the marketing order. Pursuant to

Sec. 920.160(b) each handler must file a Kiwifruit Inventory Shipment

System (KISS) report on the fifth and twentieth day of each month. The

information collected in the KISS report is used to track inventories

of California kiwifruit and provide inventory statistics, in aggregate,

to the industry. Both of these reports are also required under the

authority of the California Kiwifruit Commission (State Commission),

which administers a State program.

Prior to the 1995-96 season, the State Commission determined that

the reporting burden of the KISS report and the shipment report was

disproportionately impacting small volume handlers. As a result, the

State Commission created an alternate reporting system, known as

``Reporting EZ.'' It allows handlers who ship less than 10,000 tray

equivalents per season to file the shipment report twice per season

instead of monthly and exempts handlers from filing the KISS report.

Similarly, this rule reduces the frequency that the shipment report

is filed and eliminates the filing of a KISS report for those handlers

that ship less than 10,000 trays or tray equivalents per fiscal year so

that the ``Reporting EZ'' program is authorized under both the State

program and the Federal order. Handlers shipping under 10,000 trays or

tray equivalents per season will only have to fill out the shipment

report twice per year. The first report is due January 5 or such other

later time established by the Committee and includes information on

fresh shipments from the beginning of the fiscal year (August 1 through

December 31). The second shipment report is due the fifth day of the

month following each handler's last shipment for the season and

includes shipments from January 1 until the end of shipping season.

In order for a handler to qualify for the ``Reporting EZ'' program,

the Committee must make a determination prior to October 31 (near the

beginning of the shipping season). The information that the Committee

will use to determine whether a handler is qualified is available from

the State Commission. The State Commission already requires handlers to

submit information in order to determine whether a handler intends to

ship under 10,000 tray equivalents per year. Thus, the Committee will

not need to place any additional reporting burden on kiwifruit handlers

in order to determine handler eligibility for the ``Reporting EZ''

program. The State Commission and the Committee have a written

memorandum of understanding that provides for the sharing of

information while keeping proprietary information confidential. Once

the handler has qualified, the Committee will then notify handlers that

they are eligible for the ``Reporting EZ'' program.

The information collection requirements contained in the referenced

sections have been previously approved by the Office of Management and

Budget (OMB) under the provisions of the Paperwork Reduction Act (Pub.

L. 104-13) and have been assigned OMB number 0581-0149.

This rule reduces the reporting burden on approximately 20 handlers

of kiwifruit who have been spending approximately 240 hours completing

the shipment reports and the KISS reports.

This rule invites comments on a reduction in the reporting

requirements currently prescribed under the California kiwifruit

marketing order. Any comments received will be considered prior to

finalization of this rule.

After consideration of all relevant material presented, the

information and recommendation submitted by the Committee, and other

information, it is found that this interim final rule 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 relaxes the reporting requirements under the

marketing order and should be implemented prior to the shipping season

which begins October 1; (2) the Committee unanimously recommended these

changes at a public meeting and interested parties had an opportunity

to provide input; and (3) this rule provides a 30-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. In Sec. 920.160 paragraphs (a) and (b) introductory text are

revised to read as follows:

Sec. 920.160 Reports.

(a) When requested by the Kiwifruit Administrative Committee, each

shipper who ships kiwifruit, 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

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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. The first report shall be

due no later than January 5 and the final report no later than the

fifth day of the following month after such shipment is completed for

the season, or such other later times established by the committee.

Such report shall show:

(1) The reporting period;

(2) the name and other identification of the shipper;

(3) the number of containers by type and weight by shipment

destination category;

(4) inventory at the end of the reporting period by container, and

with respect to flats, the size of the kiwifruit;

(5) the amount of kiwifruit lost in repack; and

(6) the amount of fruit set aside for processing.

(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 December 5th, or such other later time as the committee may

establish.

* * * * *

Dated: September 27, 1996.

Sharon Bomer Lauritsen,

Acting Director, Fruit and Vegetable Division.

[FR Doc. 96-25280 Filed 10-2-96; 8:45 am]

BILLING CODE 3410-02-P