[Federal Register Volume 72, Number 56 (Friday, March 23, 2007)]
[Rules and Regulations]
[Pages 13671-13674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5311]


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

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 916 and 917

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


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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

SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim final rule revising 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 orders (orders) for fresh 
nectarines and peaches grown in California, respectively. This rule 
also continues in effect the revision to 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 Date: April 23, 2007.

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, both as amended (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.''
    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

[[Page 13672]]

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 continues in effect the action that removed or revised 
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 
continues in effect to change 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 were 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 became effective on January 1, 2007, 
redefined the nectarine production districts, increased the size of the 
NAC from eight to thirteen members, and reallocated committee 
membership among the new districts. After January 1, 2007, Sec. Sec.  
916.105 and 916.107 no longer reflected the district boundaries and 
committee membership allocation as defined in the amended order. 
Therefore, the NAC recommended removing the obsolete sections when the 
amendments became effective. This rule continues in effect the action 
that removed 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 became effective on January 1, 2007, 
redefined the peach production districts and reallocated committee 
membership among the new districts. After January 1, 2007, Sec.  
917.120 no longer reflected 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 became effective. This rule continues in effect the action 
that removed that section. 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.

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 allows the NAC to conduct 
nominations through mail balloting. The final rule also removed 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 became effective on January 
1, 2007.
    After January 1, 2007, Sec.  916.102 was no longer consistent with 
the amended NAC nomination process, and references to the Shippers' 
Advisory Committee were obsolete. Therefore, the NAC recommended that 
the section be removed from the nectarine order's administrative rules 
and regulations. This rule continues the action that removed 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, 
amended Sec.  917.24 to allow the PCC to conduct

[[Page 13673]]

nominations through mail balloting. The amendment became 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, is inconsistent with the amendments that 
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 continues in effect the action that 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), has historically functioned as the joint 
administrative body for the commodity committees under Part 917. The 
Control Committee, or CTFA, has been the designated recipient of all 
the handlers' reports and other business communications. Section 
917.110 provided 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 became effective on January 1, 2007, the duties of the 
Control Committee shifted 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 continues in effect to make that 
conforming change.

Final 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 final 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 650,000 containers to have annual receipts of $6,500,000. 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) yields an 
average revenue per grower of about $254,471 from the sales of peaches 
and nectarines.
    Amendments to the orders were recently approved by 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 became 
effective on January 1, 2007.
    This rule continues in effect the action that removed or revised 
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 
have been 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, has been 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, has been revised 
because the order provisions pertaining to the PCC have been amended to 
allow mail balloting. A new paragraph was 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 was 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

[[Page 13674]]

sector agencies. In addition, as noted in the initial regulatory 
flexibility analysis, 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.
    An interim final rule concerning this action was published in the 
Federal Register on December 28, 2006. The rule was posted on CTFA's 
website. In addition, the rule was made available through the Internet 
by USDA and the Office of the Federal Register. That rule provided for 
a 60-day comment period, which ended on February 26, 2007. One comment 
supporting the actions was received. The commenter stated that the 
actions accurately reflected the industries' desire to bring the 
orders' rules and regulations into conformance with the amended order 
provisions.
    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.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at the 
following Web site: 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.
    After consideration of all relevant matters presented, the 
information and recommendations submitted by the committees, and other 
information, it is found that finalizing the interim final rule, 
without change, as published in the Federal Register (71 FR 78038, 
December 28, 2006), will tend to effectuate the declared policy of the 
Act.

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.

PART 916--NECTARINES GROWN IN CALIFORNIA

PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA

0
Accordingly, the interim final rule amending 7 CFR parts 916 and 917, 
which was published at 71 FR 78038 on December 28, 2006, is adopted as 
a final rule without change.

    Dated: March 19, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E7-5311 Filed 3-22-07; 8:45 am]
BILLING CODE 3410-02-P