[Federal Register Volume 74, Number 144 (Wednesday, July 29, 2009)]
[Rules and Regulations]
[Pages 37495-37496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18099]



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  Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / 
Rules and Regulations  

[[Page 37495]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 916 and 917

[Doc. No. AMS-FV-08-0108; FV09-916/917-1 FIR]


Nectarines and Peaches Grown in California; Changes in Handling 
Requirements for Fresh Nectarines and Peaches

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Affirmation of interim final rule as final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim final rule that changed the handling 
requirements applicable to well matured fruit covered under the 
nectarine and peach marketing orders (orders). The interim final rule 
updated the lists of commercially significant varieties subject to size 
regulations under the orders. The interim final rule was necessary to 
revise the regulations for the current marketing season, which began in 
April.

DATES: Effective Date: Effective July 30, 2009.

FOR FURTHER INFORMATION CONTACT: Jennifer Robinson, 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: [email protected] or 
[email protected].
    Small businesses may obtain information on complying with this and 
other marketing order regulations by viewing a guide at the following 
Web site: http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide; or 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.''
    The Department of Agriculture (USDA) is issuing this rule in 
conformance with Executive Order 12866.
    The shipping of ``well-matured'' nectarines and peaches grown in 
California is regulated by 7 CFR parts 916 and 917, respectively. Among 
other things, certain varieties of fruit are subject to variety-
specific size restrictions. The lists of commercially-significant 
varieties so regulated are updated regularly as the volume of new 
varieties increases and as older varieties become obsolete. The sizes 
of varieties not subject to variety-specific regulations are regulated 
under generic regulations contained in the orders.
    In an interim final rule published in the Federal Register on 
February 20, 2009, and effective on February 21, 2009 (74 FR 7778, Doc. 
No AMS-FV-08-0108, FV09-916/917-1 IFR), Sec. Sec.  916.356 and 917.459 
were amended by adding ten nectarine varieties and seven peach 
varieties to the lists of commercially-significant varieties that are 
subject to variety-specific size regulations under the orders. 
Additionally, four nectarine varieties and five peach varieties were 
removed from the variety-specific size regulations. Finally, a 
reference to the regulation of other than ``well-matured'' peaches was 
removed from Sec.  917.459(a)(6)(iii) to conform with previous changes 
to the order.

Final Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), 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.

Industry Information

    There are approximately 120 California nectarine and peach handlers 
subject to regulation under the orders, and approximately 550 producers 
of these fruits in the production area. Small agricultural service 
firms, which include handlers, are defined by the Small Business 
Administration (SBA) (13 CFR 121.201) as those whose annual receipts 
are less than $7,000,000. Small agricultural producers are defined as 
those having annual receipts of less than $750,000. A majority of these 
handlers and producers may be classified as small entities.
    For the 2008 season, the committees' staff estimated that the 
average handler price received was $9.00 per container or container 
equivalent of nectarines or peaches. A handler would have to ship at 
least 777,778 containers to have annual receipts of $7,000,000. Given 
data on shipments maintained by the committees' staff and the average 
handler price received during the 2008 season, the committees' staff 
estimates that approximately 78 percent of all the handlers within the 
industry would be considered small handlers.
    For the 2008 season, the committees estimated the average producer 
price received was $4.25 per container or container equivalent for 
nectarines and peaches. A producer would have to produce at least 
176,471 containers of nectarines and peaches to have annual receipts of 
$750,000. Given data maintained by the committees' staff and the 
average producer price received during the 2008 season, the committees' 
staff estimates that more than 88 percent of the producers within the 
industry would be considered small producers.
    With an average producer price of $4.25 per container or container 
equivalent, and a combined packout of

[[Page 37496]]

nectarines and peaches of 45,543,561 containers, the value of the 2008 
packout is estimated to be $193,560,134. Dividing this total estimated 
grower revenue figure by the estimated number of producers (550) yields 
an estimated average revenue per producer of about $351,928 from the 
sales of peaches and nectarines.
    Under authority provided in Sec. Sec.  916.52 and 917.41 of the 
orders, grade, size, maturity, pack, and container marking requirements 
are established for fresh shipments of California nectarines and 
peaches, respectively. Such requirements are in effect on a continuing 
basis.
    Sections 916.356 and 917.459 of the orders' rules and regulations 
establish minimum sizes for various varieties of nectarines and 
peaches. This rule continues in effect the action that adjusted the 
minimum fruit sizes authorized for certain varieties of each commodity 
for the 2009 season. Minimum size regulations are put in place to 
encourage producers to leave fruit on the trees for a longer period of 
time, increasing both maturity and fruit size. Increased fruit size 
increases the number of packed containers per acre and, coupled with 
heightened maturity levels, also provides greater consumer 
satisfaction, which in turn fosters repeat purchases that benefit 
producers and handlers alike.
    Annual adjustments to minimum sizes of nectarines and peaches, such 
as these, are recommended by the committees based upon historical data, 
producer and handler information regarding sizes attained by different 
varieties, and trends in consumer purchases.
    An alternative to such action would include not establishing 
minimum size regulations for these new varieties. Such an action, 
however, would be a significant departure from the committees' past 
practices and represent a significant change in the regulations as they 
currently exist. For these reasons, this alternative was not 
recommended.
    The committees make recommendations regarding the revisions in 
handling requirements after considering all available information, 
including comments received by committee staff. At the meetings, the 
impact of and alternatives to these recommendations are deliberated. 
The committees consist of individual producers and handlers with many 
years of experience in the industry who are familiar with industry 
practices and trends. All committee meetings are open to the public and 
comments are widely solicited. In addition, minutes of all meetings are 
distributed to committee members and others who have requested them, 
and are also available on the committees' Web site, thereby increasing 
the availability of this critical information within the industry.
    Regarding the impact of this action on the affected entities, both 
large and small entities are expected to benefit from the changes, and 
the costs of compliance are not expected to be significantly different 
between large and small entities.
    This rule will not impose any additional reporting or recordkeeping 
requirements on either small or large nectarine and peach 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.
    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 industry and all interested parties were 
invited to attend the meetings and participate in committee 
deliberations. Like all committee meetings, the November 25, 2008, 
meetings were public meetings and all entities, both large and small, 
were able to express their views on this issue. Also, the committees 
have a number of appointed subcommittees to review certain issues and 
make recommendations to the committees. The committees' Tree Fruit 
Quality Subcommittee met on October 29, 2008, and discussed this issue 
in detail. That meeting was also a public meeting and both large and 
small entities were able to participate and express their views.
    Comments on the interim final rule were required to be received on 
or before April 21, 2009. One comment, supporting the interim final 
rule, was received. Therefore, for the reasons given in the interim 
final rule, we are adopting the interim final rule as a final rule, 
without change.
    To view the interim final rule and the comment received, go to 
http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=AMS-FV-08-0108.
    This action also affirms information contained in the interim final 
rule concerning Executive Orders 12866 and 12988, the Paperwork 
Reduction Act (44 U.S.C. Chapter 35), and the E-Gov Act (44 U.S.C. 
101).
    After consideration of all relevant material presented, it is found 
that finalizing the interim final rule, without change, as published in 
the Federal Register (74 FR 7778, February 20, 2009) 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.

PARTS 916 AND 917--[AMENDED]

0
Accordingly, the interim final rule that amended 7 CFR parts 916 and 
917 and that was published at 74 FR 7778 on February 20, 2009, is 
adopted as final rule, without change.

    Dated: July 24, 2009.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. E9-18099 Filed 7-28-09; 8:45 am]
BILLING CODE 3410-02-P