[Federal Register Volume 71, Number 249 (Thursday, December 28, 2006)]
[Rules and Regulations]
[Pages 78038-78042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-22234]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 916 and 917

[Docket No. AMS-FV-06-0189; FV07-916/917-1 IFR]


Nectarines and Peaches Grown in California; Revision of 
Regulations on Production Districts, Committee Representation, and 
Nomination Procedures

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule revises the administrative rules and regulations 
that define production districts, allocate committee membership, and 
specify nomination procedures for the Nectarine Administrative 
Committee (NAC) and the Peach Commodity Committee (PCC) (committees). 
The committees are responsible for local administration of the Federal 
marketing

[[Page 78039]]

orders (orders) for fresh nectarines and peaches grown in California, 
respectively. This rule also revises the committees' mailing address. 
These revisions are necessary to bring the orders' administrative rules 
and regulations into conformance with the recently amended order 
provisions.

DATES: Effective January 1, 2007; comments received by February 26, 
2007 will be considered prior to issuance of any final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, Fruit 
and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 
0237, Washington, DC 20250-0237; Fax: (202) 720-8938, or E-mail: 
[email protected], 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 at the Office of the Docket Clerk 
during regular business hours, or can be viewed at: http://www.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Laurel May, Marketing Specialist, 
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: 
[email protected]; or Kurt Kimmel, Regional Manager, California 
Marketing Field Office, Marketing Order Administration Branch, Fruit 
and Vegetable Programs, AMS, USDA, 2202 Monterey Street, Suite 102B, 
Fresno, California, 93721; Telephone (559) 487-5901, Fax: (559) 487-
5906, or E-mail: [email protected].
    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: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order 
Nos. 916 and 917 (7 CFR parts 916 and 917) regulating the handling of 
nectarines and peaches grown in California, respectively, hereinafter 
referred to as the ``orders.'' The orders are 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. 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 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 rule removes or revises obsolete language in the orders' 
administrative rules and regulations pertaining to the alignment of 
production districts; the allocation of committee membership; and the 
nomination processes for NAC, Shipper's Advisory Committee, PCC, and 
Control Committee members. This rule also changes the PCC's business 
address by removing reference to the Control Committee in order to 
reflect current committee operations. These changes are needed to bring 
the orders' administrative rules and regulations into conformity with 
amendments to the orders' provisions recently approved by nectarine and 
peach growers. These changes were unanimously recommended by the 
committees at their meetings on August 31, 2006.

Production Districts and Committee Membership Allocation

Nectarine Administrative Committee

    Section 916.12 of the nectarine order establishes the nectarine 
production districts into which the state of California has been 
divided. Section 916.20 establishes the size of the NAC and the 
allocation of NAC membership to the districts defined in Sec.  916.12. 
In addition, Sec.  916.31 provides authority for the NAC to recommend 
changes to district boundaries and to reapportion committee 
representation to reflect shifts in production within the state as 
necessary. The changes to district boundaries and membership 
reapportionment recommended by the NAC are reflected in Sec. Sec.  
916.105 and 916.107 of the order's administrative rules and 
regulations.
    A final rule amending Sec. Sec.  916.12 and 916.20 of the nectarine 
order was published in the Federal Register on July 21, 2006 (71 FR 
41345). The amendments, which will become effective on January 1, 2007, 
redefine the nectarine production districts, increase the size of the 
NAC from eight to thirteen members, and reallocate committee membership 
among the new districts. On January 1, 2007, Sec. Sec.  916.105 and 
916.107 do not reflect the district boundaries and committee membership 
allocation as defined in the amended order. Therefore, the NAC 
recommended removing the obsolete sections when the amendments become 
effective. This rule removes those sections. Any subsequent changes to 
the production districts and reallocation of committee membership among 
new districts will be accomplished by notice and comment rulemaking as 
appropriate.

Peach Commodity Committee

    Section 917.14 of the peach marketing order establishes the peach 
production districts into which the State of California has been 
divided. Section 917.20 establishes the size of the PCC and Sec.  
917.22 prescribes the allocation of PCC membership to the districts 
defined in Sec.  917.14. Authority is provided in Sec.  917.35 for the 
PCC to recommend changes to district boundaries and to reapportion 
committee representation to reflect shifts in production within the 
state as necessary. The changes to district boundaries and membership 
reapportionment recommended by the PCC are reflected in Sec.  917.120 
of the order's administrative rules and regulations.
    A final rule amending Sec. Sec.  917.14 and 917.22 of the peach 
order was published in the Federal Register on July 21, 2006 (71 FR 
41345). The amendments, which will become effective on January 1, 2007, 
redefine the peach production districts and reallocate committee 
membership among the new districts. After January 1, 2007, Sec.  
917.120 does not reflect the district boundaries and committee 
membership allocation as defined in the amended order provisions. 
Therefore, the PCC recommended removing the obsolete section when the 
amendments become effective. This rule removes that section. Any 
subsequent changes to the

[[Page 78040]]

production districts and reallocation of committee membership among new 
districts will be accomplished by notice and comment rulemaking as 
appropriate.

Committee Nomination Processes

Nectarine Administrative Committee

    Section 916.22 of the nectarine marketing order specifies 
nomination procedures for members and alternate members of the NAC. 
Authority is provided in Sec.  916.30 for the NAC to recommend and 
adopt rules and regulations regarding the nominations procedures. 
Furthermore, Sec.  916.37 establishes the nectarine Shippers' Advisory 
Committee and authorizes the NAC to prescribe nominations procedures 
for that committee. Section 916.102 was added to the order's 
administrative rules and regulations to provide specific details 
regarding the nomination meeting procedures for the NAC and the 
Shippers' Advisory Committee.
    A final rule amending Sec.  916.22 was published in the  Federal 
Register on July 21, 2006. The amendment will allow the NAC to conduct 
nominations through mail balloting. The final rule also removes Sec.  
916.37 regarding the Shippers' Advisory Committee, which has not been 
active for over 30 years and is no longer a necessary component of the 
nectarine marketing program. These changes will become effective on 
January 1, 2007.
    After January 1, 2007, Sec.  916.102 will no longer be consistent 
with the amended NAC nomination process, and references to the 
Shippers' Advisory Committee will be obsolete. Therefore, the NAC 
recommended that the section be removed from the nectarine order's 
administrative rules and regulations. This rule removes Sec.  916.102.

Peach Commodity Committee

    Section 917.24 of the peach marketing order specifies the 
nomination procedures for members and alternate members of the PCC. 
Authority is provided in Sec.  917.35 for the PCC to recommend and 
adopt rules and regulations regarding the nomination procedures. 
Section 917.119 was added to the order's administrative rules and 
regulations to provide specific details regarding the nomination 
meeting procedures for the PCC and the Pear Commodity Committee. Order 
provisions pertaining to the Pear Commodity Committee have been 
suspended since 1994, and the Pear Commodity Committee is not currently 
active.
    A final rule published in the Federal Register on July 21, 2006, 
amends Sec.  917.24 to allow the PCC to conduct nominations through 
mail balloting. The amendment will become effective on January 1, 2007. 
After that date, Sec.  917.119, which contains language pertaining to 
the nomination processes for both the Peach and Pear Commodity 
Committees, will be inconsistent with the amendments that will allow 
the PCC to conduct nominations through mail balloting. Therefore, the 
PCC recommended revising the section to specify which language therein 
pertains to each commodity committee's nomination procedures. This rule 
revises Sec.  917.119 to include a new paragraph that specifies which 
procedures apply to both the Peach and Pear Commodity Committees, and 
which apply only to Pears.

Committee Business Address

    The Control Committee, doing business as the California Tree Fruit 
Agreement (CTFA), functions as the joint administrative body for the 
commodity committees under Part 917. The Control Committee, or CTFA, is 
the designated recipient of all the handlers' reports and other 
business communications. Section 917.110 provides the business address 
for the Control Committee.
    The final rule published in the Federal Register on July 21, 2006, 
mentioned above, included amendments to Sec.  917.18 that allow the 
duties of the Control Committee to shift to the remaining commodity 
committee when order provisions pertaining to one commodity committee 
are terminated or suspended. The provisions pertaining to the Pear 
Commodity Committee have been suspended since 1994. Therefore, when the 
amendments become effective on January 1, 2007, the duties of the 
Control Committee will shift to the PCC, which will continue to conduct 
business as the CTFA. In order to conform to the amended order 
provisions, the PCC recommended revising the address listed in Sec.  
917.110 by eliminating the name of the Control Committee from the 
CTFA's business address. This rule makes that conforming change.

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 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. Thus, both statutes have small 
entity orientation and compatibility.
    There are approximately 150 California nectarine and peach handlers 
subject to regulation under the orders and about 800 growers of these 
fruits in the regulated area. Small agricultural service firms, which 
include handlers, are defined by the Small Business Administration (13 
CFR 121.201) as those having annual receipts of less than $6,500,000. 
Small agricultural growers are defined as those having annual receipts 
of less than $750,000. A majority of these handlers and growers may be 
classified as small entities.
    The committees' staff has estimated that there are fewer than 26 
handlers in the industry who could be defined as other than small 
entities. For the 2005 season, the committees' staff estimated that the 
average handler price received was $10.00 per container or container 
equivalent of nectarines or peaches. A handler would have to ship at 
least 600,000 containers to have annual receipts of $6,000,000. Given 
data on shipments maintained by the committees' staff and the average 
handler price received during the 2005 season, the committees' staff 
estimates that small handlers represent approximately 86 percent of all 
the handlers within the industry.
    The committees' staff has also estimated that fewer than 10 percent 
of the growers in the industry could be defined as other than small 
entities. For the 2005 season, the committees' staff estimated the 
average grower price received was $5.25 per container or container 
equivalent for nectarines and peaches. A grower would have to produce 
at least 142,858 containers of nectarines and peaches to have annual 
receipts of $750,000. Given data maintained by the committees' staff 
and the average grower price received during the 2005 season, the 
committees' staff estimates that small growers represent more than 90 
percent of the growers within the industry.
    With an average grower price of $5.25 per container or container 
equivalent, and a combined packout of nectarines and peaches of 
approximately 38,776,500 containers, the value of the 2005 packout is 
estimated to be $203,576,600. Dividing this total estimated grower 
revenue figure by the estimated number of growers (800)

[[Page 78041]]

yields an estimated average revenue per grower of about $254,471 from 
the sales of peaches and nectarines.
    Amendments to the orders were recently approved by a nectarine and 
peach growers. The amendments were implemented in a final rule that was 
published in the Federal Register on July 21, 2006, and most will 
become effective on January 1, 2007.
    This rule removes or revises certain sections of the orders' 
administrative rules and regulations to conform to the amended order 
provisions.
    Sections 916.105 and 916.107 of the nectarine order, and 917.120 of 
the peach order, which specify production district boundaries and 
committee membership allocations, are no longer applicable because the 
orders' provisions have been updated to include revised production 
districts and committee member apportionment. These obsolete sections 
are being removed. Any subsequent changes to the production districts 
and reallocation of committee membership among new districts will be 
accomplished by notice and comment rulemaking as appropriate.
    Section 916.102 of the nectarine marketing order, which specifies 
nomination meeting procedures for the NAC and the Shippers' Advisory 
Committee, is being removed because the nectarine order has been 
amended to allow mail balloting for NAC membership, and because the 
Shippers' Advisory Committee has been eliminated. Section 917.119 of 
the peach marketing order, which specifies nomination meeting 
procedures for the PCC and Pear Commodity Committee, is being revised 
because the order provisions pertaining to the PCC have been amended to 
allow mail balloting. A new paragraph is being added to that section to 
clarify which procedures pertain to both the Peach and Pear Commodity 
Committees, and which pertain only to the Pear Commodity Committee.
    Finally, Sec.  917.110 of the peach marketing order is being 
revised by removing the Control Committee's name from the address to 
which industry reports and business correspondence should be addressed 
to conform with recent amendments to the order.
    These changes are necessary to bring the orders' rules and 
regulations into conformance with the amended order provisions.
    This rule will not impose any additional reporting or recordkeeping 
requirements on either small or large 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.
    The 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.
    In addition, USDA has not identified any relevant Federal rules 
that duplicate, overlap, or conflict with this rule.
    Further, the committees' meetings were widely publicized throughout 
the nectarine and peach industries and all interested persons were 
invited to attend the meetings and participate in committee 
deliberations. Like all committee meetings, the August 31, 2006, 
meetings were public meetings and all entities, both large and small, 
were able to express their views on these issues. Finally, interested 
persons are invited to submit information on the regulatory 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 the 
following website: http://www.ams.usda.gov/fv/moab.html. Any questions 
about the compliance guide should be sent to Jay Guerber at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    This rule invites comments on changes to the administrative rules 
and regulations currently prescribed under the marketing orders for 
California fresh nectarines and peaches. Any comments received will be 
considered prior to finalization of this rule.
    After consideration of all relevant matters presented, the 
information and recommendations submitted by the committees, and other 
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 implemented as soon 
as possible, since amendments to the orders will be effective on 
January 1, 2007, and conforming changes to the administrative rules and 
regulations should be in place at the same time; (2) the committees met 
and unanimously recommended these changes at public meetings, and 
interested persons had the opportunity to provide input at those 
meetings; and (3) the rule provides a 60-day comment period, and any 
written comments timely received will be considered prior to any 
finalization of this interim final rule.

List of Subjects

7 CFR Part 916

    Marketing agreements, Nectarines, Reporting and recordkeeping 
requirements.

7 CFR Part 917

    Marketing agreements, Peaches, Pears, Reporting and recordkeeping 
requirements.

0
For the reasons set forth in the preamble, 7 CFR parts 916 and 917 are 
amended as follows:
0
1. The authority citation for 7 CFR parts 916 and 917 continues to read 
as follows:

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

PART 916--NECTARINES GROWN IN CALIFORNIA


Sec.  916.102  [Removed]

0
2. Remove Sec.  916.102.


Sec.  916.105  [Removed]

0
3. Remove Sec.  916.105.


Sec.  916.107  [Removed]

0
4. Remove Sec.  916.107.

PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA


Sec.  917.110  [Amended]

0
5. Amend Sec.  917.110 by removing the words ``Control Committee,'' 
from the address at the end of the paragraph.

0
6. In Sec.  917.119, redesignate paragraphs (a) through (d) as (b) 
through (e) and add a new paragraph (a) to read as follows:


Sec.  917.119  Procedure for nominating members for various Commodity 
Committees; meetings.

    (a) The nomination procedures that appear in paragraphs (b) and (c) 
of this section apply to both the Peach and Pear Commodity Committees, 
and the voting procedures that appear in paragraphs (d) and (e) of this 
section apply only to the Pear Commodity Committee.
* * * * *


Sec.  916.120  [Removed]

0
7. Remove Sec.  917.120.


[[Page 78042]]


    Dated: December 21, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E6-22234 Filed 12-27-06; 8:45 am]
BILLING CODE 3410-02-P