[Federal Register: November 29, 2005 (Volume 70, Number 228)]
[Proposed Rules]
[Page 71733-71748]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29no05-22]
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Part IV
Department of Agriculture
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Agricultural Marketing Service
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7 CFR Parts 916 and 917
Nectarines and Peaches Grown in California; Recommended Decision and
Opportunity To File Written Exceptions To Proposed Amendments To
Marketing Agreement Nos. 124 and 85 and Order Nos. 916 and 917;
Proposed Rule
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 916 and 917
[Docket No. AO-90-A7; FV05-916-1]
Nectarines and Peaches Grown in California; Recommended Decision
and Opportunity To File Written Exceptions To Proposed Amendments To
Marketing Agreement Nos. 124 and 85 and Order Nos. 916 and 917
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule and opportunity to file exceptions.
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SUMMARY: This recommended decision invites written exceptions on
proposed amendments to Marketing Agreement Nos. 124 and 85 and Order
Nos. 916 and 917 (orders), which regulate the handling of nectarines
and peaches grown in California. The Nectarine Administrative Committee
(NAC), the Peach Commodity Committee (PCC), and the Control Committee
(part of M.O. No. 917) (Committees), which are responsible for local
administration of orders 916 and 917, jointly proposed the amendments.
The proposed amendments to order 917 only apply to peaches. The
amendments included in this recommended decision would: Update
definitions for ``handle'', ``grower'', and the commodities covered in
both orders; add a definition for ``pure grower''; increase committee
membership of the NAC from eight to thirteen members and modify
sections of the order to conform to the increased membership; eliminate
the Shippers Advisory Committee (order 916); allow the Control
Committee under order 917 to be suspended if the provisions of one
commodity are suspended and transfer applicable duties and
responsibilities to the remaining Commodity Committee; and authorize
interest and late payment charges on assessments paid late; and other
related amendments. All of the proposals are intended to streamline and
improve the administration, operation, and functioning of the orders.
DATES: Written exceptions must be filed by December 19, 2005.
ADDRESSES: Written exceptions should be filed with the Hearing Clerk,
U.S. Department of Agriculture, Room 1081-S, Washington, DC 20250-9200,
Facsimile number (202) 720-9776 or http://www.regulations.gov. All
comments should reference the docket number and the date and page
number of this issue of the Federal Register. Comments will be made
available for public inspection in the Office of the Hearing Clerk
during regular business hours, or can be viewed at: http://www.ams.usda.gov/fv/moab.html
.
FOR FURTHER INFORMATION CONTACT: Melissa Schmaedick, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, P.O.
Box 1035, Moab, Utah; telephone: (435) 259-7988, Fax: (435) 259-4945;
or Kathleen M. Finn, 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.
Small businesses may request information on this proceeding 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.
SUPPLEMENTARY INFORMATION: Prior documents in this proceeding: Notice
of Hearing issued on January 25, 2005 and published in the January 28,
2005 issue of the Federal Register (70 FR 4041).
This action is governed by the provisions of sections 556 and 557
of title 5 of the United States Code and, therefore, is excluded from
the requirements of Executive Order 12866.
Preliminary Statement
Notice is hereby given of the filing with the Hearing Clerk of this
recommended decision with respect to the proposed amendment of
Marketing Agreements Nos. 124 and 85 and Order Nos. 916 and 917, which
regulate the handling of nectarines and peaches grown in California,
and the opportunity to file written exceptions thereto. Copies of this
decision can be obtained from Melissa Schmaedick, whose address is
listed above.
This recommended decision is issued pursuant to the provisions of
the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C.
601 et seq.), hereinafter referred to as the ``Act,'' and the
applicable rules of practice and procedure governing the formulation of
marketing agreements and orders (7 CFR part 900).
The proposed amendments are based on the record of a public hearing
held on February 15 and 16, 2005, in Fresno, California. Notice of this
hearing was published in the Federal Register on January 28, 2005 (70
FR 4041). The notice of hearing contained proposed order changes
jointly proposed by the Nectarine Administrative Committee, the Peach
Commodity Committee, and the Control Committee (part of order 917),
which are responsible for local administration of orders 916 and 917.
The proposed amendments to order 917 only apply to peaches. The pear
provisions of the order have been suspended since 1994. Because the
Pear Commodity Committee and the pear provisions are suspended, the
Pear Commodity Committee did not participate in any amendment
discussions.
The proposed recommendations are the result of a task force
appointed by the Committees to conduct a review of the orders. The task
force met several times in 2003 and drafted proposed amendments to the
orders and presented the recommendations at industry meetings. The
recommendations were then forwarded to the Commodity Committees and the
Control Committee, each of which unanimously approved the proposed
amendments. The Nectarine Administrative Committee, the Peach Commodity
Committee, and the Control Committee believe that the proposed changes
would improve the administration, operation, and functioning of the
programs in effect for nectarines and peaches grown in California. The
Committees' request for a hearing was submitted to USDA on January 5,
2004.
The Committees' proposed amendments are summarized below. This
recommended decision makes modifications to some of the proposals and
does not recommend one proposal.
The Committees' proposed amendments to marketing orders 916 and 917
would:
1. Allow hybrid fruit that exhibits the characteristics of
nectarines or peaches and is subject to cultural practices common to
such fruit be subject to marketing order regulations.
2. Specify that the act of packing be considered a handling
function.
3. Change the marketing season for nectarines from May 1 through
November 30 to April 1 through November 30.
4. Allow the duties and responsibilities of the Control Committee
under the peach order to be transferred to one Commodity Committee if
the provisions for the other commodity are suspended.
5. Increase membership on the nectarine committee from eight to
thirteen members and revise the procedures that constitute quorum and
voting requirements to conform to the increased Committee size. The
proposal would also add to both orders that the Committees may vote by
facsimile and set forth voting requirements for video conferencing.
[[Page 71735]]
6. Eliminate the Shippers' Advisory Committee under the nectarine
order.
7. Modify the definitions of grower to clarify that officers of
grower corporations are eligible to serve as grower members the
Committee.
8. Add a definition of ``pure grower'' for purposes of eligibility
for membership on the Committees. This proposal would also allow
alternative methods to conduct nominations, change the date for holding
nominations, authorize positions for pure growers and add tenure
requirements for Committee members.
9. Authorize nominees to state their willingness to serve on the
Committees prior to the selection.
10. Change the district boundaries under the nectarine order and
redefine the peach districts.
11. Change the names and the composition of the districts of the
Peach Commodity Committee.
12. Allow for interest and/or late payments for assessments not
paid timely and authorize the Peach Committee to borrow money.
13. Provide authority to recommend different regulations for
specific market destinations (not recommended herein).
14. Clarify that subcommittees may be established by the Peach
Commodity Committee.
Twenty-two witnesses testified at the hearing. These witnesses
represented fresh nectarine and peach growers and handlers. All
witnesses with the exception of one supported the Committees'
recommended changes. The one opposing witness spoke against proposal 13
which would allow the Committees to recommend different regulation for
different market destinations of peaches and nectarines.
Witnesses speaking in favor of the proposed changes addressed the
need to improve the administration, operation, and functioning of the
programs in effect for nectarines and peaches grown in California. The
California nectarine and peach industries are regulated under federal
marketing orders 916 and 917, respectively. Both programs were
established over 70 years ago and were most recently amended in the
1970's.
Marketing orders 916 and 917 are administered by marketing order
administrative committees, each of which have contracted with the
California Tree Fruit Agreement (CTFA) for management of marketing,
promotion and certain administrative functions. CTFA also manages the
California State Marketing Order for plums.
Witnesses at the hearing stated that the amendments being
considered were designed to streamline the operation of the orders
based on accepted business procedures in the 21st century. Witnesses
also stated that many of the proposed amendments would provide the
programs with the necessary flexibility for the future. Most
importantly, the proposed amendments, if implemented, would result in
improved consistency between and more efficient administration of the
orders.
At the conclusion of the hearing, the Administrative Law Judge
stated that the final date for interested persons to file proposed
findings and conclusions or written arguments and briefs based on the
evidence received at the hearing would be April 12, 2005. The deadline
was subsequently extended to May 12, 2005. One hundred and forty six
briefs and comments were filed. The majority of comments filed were in
opposition to Proposal 13, which would add authority to orders 916 and
917 for the Committees to recommend different regulations for different
market destinations for California peaches and nectarines. The
Committees also filed a joint brief requesting that Proposal 13 be
withdrawn. Accordingly, Proposal 13 has been removed from consideration
and will not be discussed further in this decision.
Material Issues
The material issues presented on the record of hearing are as
follows:
1a. Whether to amend the order to allow hybrid fruit that exhibits
the characteristics of nectarines and is subject to cultural practices
common to nectarines to be subject to marketing order regulations;
1b. Whether to amend the order to allow hybrid fruit that exhibits
the characteristics of peaches and is subject to cultural practices
common to peaches to be subject to marketing order regulations;
2a. Whether to amend the order by specifying that the act of
packing nectarines be considered a handling function;
2b. Whether to amend the order by specifying that the act of
packing peaches be considered a handling function;
3. Whether to amend the nectarine order by changing the marketing
season from May 1 through November 30 to April 1 through November 30;
4. Whether to amend the provisions relating to the Control
Committee under marketing order No. 917 by allowing the duties and
responsibilities of the Control Committee to be transferred to one
Commodity Committee if the provisions of the other Commodity Committee
are suspended;
5a. Whether to amend the nectarine order by increasing membership
from 8 members to 13 members and revising the procedures that
constitute quorum and voting requirements to conform to the increased
Committee size. The proposal would also add that the Committee may vote
by facsimile and would specify that voting requirements for video
conferencing would be the same as those for assembled meetings;
5b. Whether to amend the peach order by adding that the Peach
Commodity Committee may vote by facsimile or video teleconference;
6. Whether to amend the nectarine order by eliminating the
Shippers' Advisory Committee;
7a. Whether to amend the nectarine order by modifying the
definition of grower to clarify that officers of corporations would be
eligible to serve in grower positions on the Committee;
7b. Whether to amend the order by modifying the definition of
grower to clarify that, for peaches, officers of corporations would be
eligible to serve in grower positions on the Committees;
8a. Whether to amend the order by adding a definition of ``pure
producer'' and ``pure grower'' for purposes of eligibility for
membership on the Committee;
8b. Whether to amend the order by adding a definition for peaches
of ``pure producer'' and ``pure grower'' for purposes of eligibility
for membership on the Committee;
8c. Whether to amend the nectarine order by allowing alternative
methods to conduct nominations, changing the date by which the
nomination procedure should be held from February 15 to January 31,
requiring at least 50 percent of the positions be held by pure growers
and adding tenure requirements for Committee members;
8d. Whether to amend the peach provisions of the order by allowing
alternative methods to conduct nominations, changing the date by which
the nomination procedure should be held from February 15 to January 31,
requiring at least 50 percent of the positions be held by pure growers,
and adding tenure requirements for Committee members;
9a. Whether to amend the order by authorizing the nominees to state
their willingness to serve on the Committee prior to the selection;
9b. Whether to amend the order by authorizing the peach nominees to
state their willingness to serve on the Committees prior to the
selection;
10a. Whether to amend the order by changing the district boundaries
under the nectarine order;
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10b. Whether to amend the order by redefining the peach growing
Fresno and Tulare districts under the order;
11. Whether to amend the order by changing the names and the
composition of the districts of the Peach Commodity Committee;
12a. Whether to amend the order to allow for interest and/or late
payments for assessments not paid timely;
12b. Whether to amend the order to allow for interest and/or late
payments for peach assessments not paid timely and to authorize the
Committee to borrow money for administration of peach provisions of the
order;
13a. Whether to amend the order to provide authority to recommend
specific regulations for specific market destinations of the product;
13b. Whether to amend the order to provide authority to recommend
specific regulations for specific market destinations of peaches; and,
14. Whether to amend the order to clarify that subcommittees may be
established by the Peach Commodity Committee.
Findings and Conclusions
The following findings and conclusions on the material issues are
based on evidence presented at the hearing and the record thereof.
Material Issue Number 1a and 1b--Hybrid Fruit
Sections 916.5 and 917.4 of the orders should be amended to allow
hybrid fruit that exhibits the characteristics of nectarines (916.5) or
peaches (917.4) and is subject to cultural practices common to
nectarines or peaches be subject to marketing order regulations.
Currently, nectarines are defined in marketing order number 916 as
all varieties of Prunus Amygdalus Nectarina, commonly called
nectarines, grown in the production area. Peaches are defined in
marketing order number 917 as the edible portion of all varieties of
peach trees.
These proposed amendments would provide a procedure for the
Committees to recommend to USDA specific hybrids to be included under
the definitions and become subject to order provisions.
The proposed definitions provide that the hybrids must exhibit the
characteristics of a nectarine or peach and be subject to cultural
practices common to nectarines and peaches to be considered for
inclusion under the orders.
According to the hearing record, the cultivation of hybrids has
been a practice in the nectarine and peach industry. Hybrid crosses
between peaches and nectarines already exist. This technology provides
for the development of fruit and fruit trees with more favorable
characteristics, such as disease resistance. As breeding technology
becomes more sophisticated, it is anticipated that nectarines and
peaches will be crossbred with other tree fruit, such as apricots or
plums.
The proposal would require that in order to be subject to order
requirements, all hybrids would need to be recommended to USDA by the
Committees for inclusion under the orders. If these amendments are
adopted, the Committees would identify hybrids currently in production
that have characteristics of nectarines or peaches. The characteristics
of the fruit would help determine whether the hybrids should be
regulated. The Committees would also consider the cultural practices
used on that specific hybrid, as cultural practices differ among
various fruit trees. USDA would then proceed with rulemaking, as
appropriate, as to what hybrids would be included under the orders.
It is recommended that the definitions of the products regulated
under the orders be amended to include hybrids. The procedure for the
Committees to recommend to USDA the inclusion of hybrids would allow
for industry deliberations on what hybrids should be included. The
proposed amendments would provide flexibility in including hybrids as
they are developed and provides sufficient safeguards to ensure
compliance with order provisions. For the reasons above, it is
recommended that sections 916.5 and 917.4 be amended to provide that
all hybrids exhibiting the characteristics of nectarines or peaches be
classified as a nectarine or peach under the respective marketing order
program, if recommended by the Committees and approved by USDA. There
was no opposition testimony on this issue.
Material Issue Number 2a and 2b--Addition of ``Packing'' as a Handling
Function
Section 916.11 of the nectarine marketing order and Sec. 917.6 of
the peach marketing order should be amended to specify that the act of
packing nectarines and peaches is a handling function.
Currently, ``pack'' is not specified as a handling function in
Sec. Sec. 916.11 and 917.6, the definitions of ``Handle''. The current
definitions include selling, consigning, delivering, or transporting
fruit between the production area and any point outside, or within the
production area. Selling the fruit on the tree, transporting the fruit
within the production area from the orchard to the packing facility
within the area for preparation for market or the delivery of the fruit
to the packing facility are activities that are not considered
handling.
In its proposal, the Committees recommended modifications of
Sec. Sec. 916.10 and 917.7, the definitions of ``Handler.'' Currently,
these definitions state that ``Handler'' means any person, except a
common or contract carrier transporting fruit owned by another person,
that handles fruit. USDA is not recommending that these sections of the
orders be amended. However, USDA recommends adding the term ``pack'' to
the functions that constitute handling as specified in the definitions
of ``Handle''. As the evidence established, packing is a function that
handlers perform. The addition of the term pack to the definition of
handler would clarify which functions are covered. Therefore, by adding
``pack'' as a handling function under the definitions of ``Handle'',
the general intent of the Committees' proposal would be met.
Witnesses testified that in the industry, the packer is the party
that generally assumes all of the responsibilities of a handler, except
the selling of the fruit. In most cases, the packer is responsible for
inspecting the product and is responsible for paying assessments and
abiding by the regulatory provisions of the orders. While there may be
more than one handler involved in the preparation for marketing and
marketing the product, the first handler is the party that is
responsible for abiding by the provisions of the orders. This proposal
would clarify that packing is considered a handling function, and thus,
most packers would be considered the first handler and the entity
regulated by the orders.
USDA recommends that the proposed amendments be modified. The
proposed amendment as presented by the Committees includes the
statement that ``Handle'' and ``pack'' are synonymous. Because there
could be situations where a handler performs functions other than
packing, these terms are not always synonymous. However, ``pack'' is an
important function of handlers.
Thus, USDA recommends adding the word ``pack'' as a handling
function among the other handling functions of selling, consigning,
delivering or transporting under the nectarine order. Specifically, the
modification would add the word ``pack'' before ``sell'' and the word
``packed'' before ``sold'' in Sec. 916.11. For peaches, the proposed
change cannot impact the pear provisions. Therefore, USDA recommends
that a proviso be added to
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Sec. 917.6 to state that packing is a handling function of peaches.
There was no opposition testimony on this issue. For the above
reasons, it is recommended that the proposed amendments of Sec. Sec.
916.11 and 917.6 be modified to specify that ``pack'' is a handling
function under the nectarine and peach orders. The proposed amendments
to Sec. Sec. 916.10 and 917.7, as presented by the Committees, are not
being recommended in this decision.
Material Issue Number 3--Change in the Nectarine Marketing Season
Section 916.15 of the nectarine marketing order should be amended
by changing the marketing season from May 1 through November 30 to
April 1 through November 30. Record evidence indicates that this
amendment would more accurately reflect the nectarine industry's
current marketing season and conform to the current handling
regulations.
Witnesses testified that due to new methods used in plant breeding,
the industry now has nectarine varieties that mature earlier than the
previous generations of nectarines. There are varieties that are
harvested earlier than in the past and thus, marketed in early April of
each year, rather than May. The current handling regulations in effect
for nectarines begins April 1.
Because the current marketing season begins in May, fruit harvested
in the month of April is attributed to the prior year's marketing
season but is regulated by the present year's regulations. The proposed
amendment would conform the term of the marketing season to the
regulatory period.
The record supports changing the marketing season for nectarines
from May 1 through November 30 to April 1 through November 30. There
was no opposition testimony on this issue. For the above reasons, it is
recommended that Sec. 916.15 be amended to include an earlier
beginning date of April 1 for the order's marketing period.
Material Issue Number 4--Marketing Order 917 Control Committee
Section 917.18, Nomination of Commodity Committee members of the
Control Committee of the California peach marketing order should be
amended. The proposed amendment would allow the duties and
responsibilities of the Control Committee to be transferred to one
Commodity Committee if the provisions of the other Commodity Committee
are suspended.
Section 917.18 of the marketing order currently provides for the
establishment of a Control Committee to oversee and coordinate the
joint activities of the Peach and Pear Commodity Committees under
Marketing Order 917. The order does not contain, however, provisions
for the Control Committee if only one Commodity Committee is
operational. Since 1994, when the California pear industry suspended
their order provisions, California peaches have been the only active
commodity under marketing order 917. This proposed amendment would
address the administrative needs of the current situation.
Record evidence indicates that since the pear program has been
suspended, the duties of the Control Committee have lessened. In the
Pear Commodity Committee's absence, the Peach Commodity Committee has
continued to operate in conjunction with the Control Committee.
However, in recent years the Control Committee has held meetings
infrequently and only to carry out duties that the Peach Commodity
Committee cannot perform.
Witnesses testified that the proposed amendment would allow the
duties of the Control Committee to be transferred to a Commodity
Committee when only one Commodity Committee was operational under
marketing order 917. The proposed amendment would not terminate the
Control Committee. The Control Committee would become active if the
California pear industry were to vote to re-activate the pear
provisions of marketing order 917. Thus, the proposed amendment, if
adopted, would allow marketing order 917 to operate efficiently, yet
would also allow for flexibility if the commodities active under the
order were to change.
There was no opposition testimony on this issue and the record
supports this change. For the above reasons, it is recommended that
Sec. 917.18 be amended to allow the duties and responsibilities of the
Control Committee to be transferred to one Commodity Committee if the
provisions of the other Commodity Committee are suspended.
Material Issue 5a and 5b--Increase in Membership of the Administrative
Committee for Nectarines and Addition of Authority To Vote Via
Facsimile for Both the Nectarine and Peach Commodity Committees
Section 916.20 of the nectarine order should be amended to increase
the membership on the Nectarine Administrative Committee from 8 members
to 13 members. Order provisions relating to quorum and voting
requirements should also be amended to conform to the increased
Committee size. Section 916.32 of the nectarine order and Sec. 917.29
(d) of the peach order should also be amended to add the authority for
the Committees to vote by facsimile, as well as to specify that voting
requirements for video conferencing would be the same as those for
assembled meetings.
Record evidence supports the increase in the Nectarine
Administrative Committee size. Currently, with only a membership of 8,
the Nectarine Administrative Committee frequently does not have enough
members present at meetings to constitute a quorum or meet the
requirements for a super-majority vote. As a result, decision-making is
often delayed until the next Committee meeting. Such delays make the
functioning of the NAC less efficient, especially when emergency
decisions need to be made.
Witnesses testified that the proposal to increase membership would
address the quorum shortage by providing for a larger pool of committee
members to attend meetings. It would also result in greater industry
participation in marketing order activities by allowing more persons to
be appointed to the Committee.
Record evidence indicates that if the proposed amendment were
implemented, a quorum of 9 out of 13 Committee members would be needed
in order to maintain roughly the same ratio that is currently in place.
The current Committee requires 6 out of 8 members to constitute a
quorum.
This proposed amendment would also provide authority for voting by
facsimile and holding meetings via video teleconference for both the
Nectarine and Peach Commodity Committees. Use of this technology would
result in timesavings while still allowing the Committees to conduct
their business. For example, this technology would be helpful in
providing flexibility during harvest season when Committee members find
it more challenging to take time away from the field.
According to the record, voting requirements for meetings held via
videoconference would be the same as those currently in place for
conventional committee meetings. Because video conferencing involves
technology that allows each member to see the other members in
attendance at the meeting, any voting would be verified through
visually accounting for the votes made. Votes made by conference call
would need to be followed by the submission of signed votes submitted
to the Committee offices by mail or fax. Votes made by fax would need
to be unanimous.
Record evidence also supports including authority to make use of
any
[[Page 71738]]
new technology that might be developed in the future as part of this
proposed amendment. For this reason, USDA recommends adding the phrase,
``or any other means of communication recommended by the Committee and
approved by the Secretary,'' to the proposed amendatory language. The
addition of this language would increase the flexibility of this
authority and is commonly found in other federal marketing orders.
There was no opposition testimony given against this proposed
amendment. For the reasons stated above, it is recommended that Sec.
916.20 be amended to increase the membership on the Nectarine
Administrative Committee from 8 members to 13 members. Section 916.32
of the nectarine order and section 917.29 (d) of the peach order should
also be amended to add the authority for the Committees to vote by
facsimile and to establish voting requirements.
USDA also recommends adding language that would allow the
Committees to adopt the usage of any new technology that would be
helpful in facilitating committee meetings in the future.
Material Issue Number 6--Elimination of the Shippers' Advisory
Committee
Section 916.37, Shipper's Advisory Committee, should be removed
from the California nectarine marketing order language.
The Shipper's Advisory Committee (SAC) was originally established
to advise the Nectarine Administrative Committee on marketing
conditions and to suggest the level of regulation believed to be
necessary to affect an orderly marketing of the crop.
Upon implementation, the SAC was intended to have five handler
members and five alternate handler members. The role of the SAC was
exclusively an advisory one, as the SAC did not have any voting rights
under the marketing order. With regard to their role under the
marketing order, the industry believed that handlers/shippers would be
in a better position to furnish the Committee with information
regarding market conditions and preferences than growers.
However, record evidence indicates that the SAC has not been active
for over 30 years. According to the record, removal of order language
in Sec. 916.37 would remove obsolete language from the order
provisions.
There was no opposition testimony given against this proposed
amendment. For the reasons stated above, the record supports removing
Sec. 916.37 as it currently serves no useful purpose.
Material Issue Number 7a and 7b--Eligibility of Corporate Officers for
Committee Membership
Section 916.9, Grower, of the California nectarine order and Sec.
917.5, Grower, of the California peach order, should be amended to
clarify that officers of corporations would be eligible to serve in
grower positions.
The term ``grower'' under both marketing orders is currently
defined as a grower of nectarines or peaches for the fresh market who
has a proprietary interest therein. The nomination procedures in Sec.
916.20 and 917.24 specify that employees of growers are eligible to
serve as committee members or alternates on the nectarine and peach
marketing order administrative committees. However, the nomination
procedures and the current definition of grower do not specify that
officers of grower corporations are eligible to serve in grower
positions. The proposed amendment would clarify that corporate
officers, as well as employees of growers, are eligible to serve on the
Committee in grower positions.
Witnesses testified that the proposed amendment would specify that
that corporate officers would be eligible to serve on the Committees,
to participate in nomination procedures as growers, and to cast
referenda votes on behalf of their corporations. However, any corporate
officer who is also a grower independent of the corporation would be
allowed to serve and vote in only one capacity.
Record evidence supports amending the definitions of grower to
include officers of corporations for purposes of eligibility for
membership in the Nectarine and Peach Committees. These amendments
would clarify the definitions of grower when the entity is a
corporation.
In order to provide clarity, USDA recommends modifying the proposed
definitions to state that both employees of growers and corporate
officers of growers are eligible to serve on the Committees in grower
positions. The modified definitions would read as follows:
``Grower is synonymous with producer and means any person who
produces fruit (or nectarines) for market in fresh form, and who has a
proprietary interest therein. Employees of growers and officers of
corporations actively engaged in growing peaches are eligible to serve
in grower positions on the Committee.''
There was no opposition testimony given against this proposed
amendment. For the reasons stated above, it is recommended that Sec.
916.9, Grower, of the California nectarine order and Sec. 917.5,
Grower, of the California peach order, should be amended as modified by
USDA.
Material Issue Number 8a and 8b--Addition of Definitions for ``Pure
Producer'' and ``Pure Grower''
A new Sec. 916.16, Pure grower or pure producer, should be added
to the California nectarine order. Additionally, a new Sec. 917.8,
Pure grower or pure producer, should be added to the California peach
order.
The nectarine and peach marketing orders do not currently
distinguish pure growers from all other growers. The proposed
definitions of ``pure grower'' would be used in conjunction with the
proposed amendments discussed in Material Issue 8(c) and 8(d) that
would require a minimum number of pure grower seats on each
administrative Committee.
The proposed amendments would identify pure growers as any grower:
(1) Who produces his or her own product (and is not an employee or
officer of a packing business); or (2) who produces and handles his or
her own product, provided that a pure grower can pack the production of
other growers as long as the production packed does not exceed 25
percent of the total production packed for that marketing year by that
pure grower's packing facility. Regarding the second situation, at
least 75 percent of that grower's total amount packed must involve his
or her own fruit. This threshold would make allowances for pure growers
who pack their own fruit and also pack small quantities of fruit for
other growers.
According to the record, witnesses believe that a distinction is
needed because pure growers are considered by the industry to be more
financially at risk than other growers. The record indicates that a
pure grower's total business and financial activities are primarily
reliant on their own production.
Witnesses stated that, in the industry, there are growers who
handle their own product. Some of these growers also pack other
growers' products. The record indicated that growers who also pack a
significant amount of fruit from other growers should not be considered
pure growers because their risks as a grower are offset by their
packing operations. However, some of these grower/packers pack small
quantities of fruit for a few other growers. Accordingly, 25 percent
(represented as the grower/packer's total pack-out) is considered a
reasonable threshold to determine whether a grower/packer
[[Page 71739]]
should be considered a pure grower for eligibility purposes on the
Committees.
Record evidence also indicates that any grower who also operates as
a handler could be eligible to qualify as either a grower member or a
handler member on the Committees. However, that person must select and
may only participate in one nomination process: either as a grower or
as a handler, but not both.
In order to provide clarity, USDA recommends modifying the proposed
definition. The modified definition would read as follows:
``Pure grower means any grower: (1) Who produces his or her own
product (and is not an employee or officer of a packing business); (2)
who produces and handles his or her own product; Provided that; a pure
grower can pack the production of other growers as long as the
production packed does not exceed 25 percent of the total production
packed for that marketing year by that pure grower's packing facility.
A pure producer is synonymous with pure grower.''
USDA recommends that authority be added to this provision allowing
the Committees to recommend to USDA, rules and regulations for the
implementation and operation of these sections.
According to the record, the proposed definitions of ``pure
grower'' would be used in conjunction with the proposed amendments
discussed in Material Issue 8(c) and 8(d) that would require a minimum
number of pure growers seats on each administrative committee. Evidence
suggests that representation of pure growers on the administrative
committees is important to Committee decision-making as they offer a
different industry perspective than growers whose financial interests
are not limited to growing only.
Record evidence supports the conclusion that the representation of
pure grower interests on the orders' administrative committees should
be added. No opposition to this proposal was presented at the hearing.
Therefore, it is recommended that Sec. 916.16 and Sec. 917.8, Pure
grower and pure producer, be added, as modified by USDA, to the
marketing orders.
Material Issue Number 8c and 8d--Modification of Nomination Procedures
and Addition of Tenure Requirements
Marketing order 916 regulating California nectarines should be
amended to allow alternative methods for conducting nominations to be
used, to change the date by which the nomination procedure should be
held from February 15 to January 31, to require that at least 50
percent of the positions be held by pure growers, and to add tenure
requirements for Committee members.
Similarly, the peach provisions under marketing order 917
regulating California peaches should be amended. The proposed
amendments would allow alternative methods to conduct nominations for
the Peach Commodity Committee, would change the date by which the
nomination procedure should be held from February 15 to January 31,
would require that at least 50 percent of the positions be held by pure
growers, and would add tenure requirements for Peach Commodity
Committee members.
Currently, nominations for the nectarine and peach administrative
committees are made at grower industry meetings. According to the
hearing record, nomination procedures would be modified to provide for
mailings of ballots and would change the beginning date of the
nomination period from February 15 to January 31. The change in the
beginning date would be necessary in order to provide extra time for
the mailing of ballots. Mailing of ballots would provide every grower
more opportunity to vote in the nomination of members by making it
easier for growers to participate.
Witnesses testified that for the past 20 years, many growers do not
attend industry nomination meetings. This proposal would modify the
nomination process by allowing mail balloting in the nomination
process. It is intended that this will result in greater industry
participation in the nomination process.
Record evidence also indicated an overriding concern within the
industry for representation of pure grower interests in the decision-
making functions of the administrative committees. Witnesses contrasted
pure-grower interests with larger corporate grower interests and
indicated that meetings are more accessible to corporate growers
represented by employees. In contrast, a pure grower would likely
attend industry meetings him or herself.
Nomination ballots would be mailed to all growers based on the
district where their primary production base is located. While growers
would be allowed to exchange their ballot for those of another district
if they had production in said district (regardless of the volume that
they produced in each district), they would be limited to filing just
one ballot in the selection process. This would afford all growers the
opportunity to vote for the nomination of Committee members regardless
of whether they could attend industry meetings. Since the mailing of
ballots would extend the balloting process, this amendment would also
move the deadline for nominations from February 15 to January 31.
If implemented, the proposed amendment would also require that 50
percent of the grower membership seats of each Committee be allocated
to pure grower seats. This requirement would ensure that pure nectarine
and peach growers are participating in marketing order program
deliberations. This proposal would be implemented in conjunction with
the proposed amendments discussed above in Material Issue 8a and 8b,
the addition of a definition for ``pure grower.''
Record evidence also supports the implementation of tenure
requirements on the nectarine and peach administrative committees. The
proposed tenure requirements would limit the amount of time a Committee
member could serve to 2 consecutive 3-year terms. This provision would
allow for broader industry participation in the Committees and would
allow new industry leaders to be developed. The involvement of new
members would allow for the introduction of new ideas and innovation in
the direction of the nectarine and peach programs.
If implemented, any past time served on the Committee prior to this
amendment being implemented would not count toward the tenure
requirements. USDA recommends modifying the proposal to specify that
tenure does not apply to time served prior to the effective date of
this amendment. If a member were appointed to fill a vacancy or
unexpired term, that time in service would not count toward the six-
year limit. Also, once a member has completed his or her third term, it
would be possible for that person to be nominated into an alternate's
position. After one term as an alternate, that person would be eligible
to be appointed as a member again.
Record evidence supports the conclusion that the above-proposed
amendments would assist the Nectarine and Peach Committees in
generating broader industry participation in Committee nominations,
would provide for representation of pure grower interests on the
Committees, would promote rotation in the service of Committee members,
and would encourage participation of new members on the Committee.
Record evidence also indicates that changing the deadline for
nominations from February 15 to January 31 is necessary since the
mailing of ballots would extend the balloting process.
No opposition to the above proposals was received at the hearing.
For the
[[Page 71740]]
reasons outlined in this material issue, Sec. Sec. 916.20 and 916.22
should be amended. Similarly, the peach provisions in Sec. 917.24
should be amended, as modified by USDA.
Material Issue Number 9a and 9b--Modification of the Acceptance
Procedure for Persons Nominated To Serve on the Nectarine and Peach
Committees
Section 916.25, Acceptance, of the California nectarine order
should be amended to authorize nominees to the Nectarine Administrative
Committee to state their willingness to serve on the Committee prior to
selection by USDA.
Similarly, Sec. 917.25 of the California peach order should be
amended to authorize nominees to the Peach Commodity Committee to state
their willingness to serve prior to selection.
This proposed amendment would modify the current acceptance
procedure for persons nominated to serve on the Nectarine and Peach
Committees. Currently, the acceptance procedure for persons nominated
and selected to serve on the Committees involves a two-step process.
First, persons nominated for consideration and possible appointment to
the Committee by USDA are required to complete a form indicating their
eligibility to sit as a member of the Committee. Once appointed by
USDA, nominees must then sign an additional form indicating their
acceptance of the appointment. If this amendment were implemented, the
two steps could be combined into one, thus resulting in less paperwork,
a shorter acceptance procedure and improved efficiency in the
acceptance process.
Record evidence supports this proposed change. No opposition to
this proposed amendment was presented at the hearing. For the reasons
outlined above, Sec. 916.25, Acceptance, of the California nectarine
order should be amended. Section 917.25, Selection of members of
various commodity committees, of the California peach order should also
be amended.
Material Issue Number 10a and 10b--Modification of Marketing Order 916
District Boundaries and Modification of Marketing Order 917 Fresno and
Tulare Representation Area Boundaries
Section 916.12 of the California nectarine order and Sec. 917.14
of the California peach marketing order should be amended. Section
916.12 should be amended to change the district boundaries for
Districts 1 and 2 under the nectarine order (referred to as the Fresno
and Tulare districts). Section 917.14 should be amended to redefine the
Fresno and Tulare Peach Commodity Committee representation areas under
the peach provisions of order 917.
Witnesses stated that nectarine and peach production has shifted
over time such that current day production patterns are more in line
with each other than they were previously. For this reason, district
boundaries for nectarines and the Peach Commodity Committee
representation areas should be redefined to better reflect current
production trends.
According to the hearing record, two key elements would comprise
this change. First, the Tulare District (District 2 under the nectarine
order) would have as its northern boundary the Tulare County line
instead of Avenue 384, which is formally defined as the fourth standard
parallel south of the Mount Diablo Baseline of the general land office.
This area is currently part of the Fresno District (District 1 under
the nectarine order).
Secondly, Kings County would shift from the Fresno District to the
Tulare District. This change in the allocation of counties among
districts would better reflect current day production within the
nectarine and peach production areas, as the Tulare and Kings Counties
have been increasing in their peach production in recent years.
According to the record, 2003 nectarine production totaled
21,613,927 containers. Under the current definitions for Districts 1
and 2 (Fresno and Tulare Districts, respectively) the former is
credited with a production of 20,716,073 containers (96 percent) and
the later is credited with 497,772 containers (2 percent). If the
proposed amendment were implemented, 2003 production for the Fresno
District would equal 14,602,037 containers (68 percent) and Tulare
District production for that year would equal 6,611,808 containers (31
percent).
In 2003, total California peach production equaled 22,534,252
containers. Of that amount, 20,754,501 containers (90 percent) were
produced in the current Fresno District and 604,438 containers (3
percent) were produced in the current Tulare District. If the proposed
boundary changes were implemented, production attributed to Fresno
District would equal 14,602,037 containers (65 percent) and production
attributed to Tulare District would equal 6,611,808 containers (30
percent).
The proposed modification in district boundaries would alter the
production base used to define the Nectarine and Peach Commodity
Committee representation and would result in better representation of
grower interests in the Tulare District for each industry. This would
result in a more equitable representation of both production and grower
interests on the nectarine and Peach Commodity Committees.
Record evidence supports the modification of district boundary
lines for Districts 1 and 2 under the nectarine order and the Fresno
and Tulare Districts under the peach program. For the reasons stated
above, it is recommended that Sec. 916.12 of the California nectarine
order and Sec. 917.14 of the California peach marketing order be
amended.
Material Issue Number 11--Modification of Marketing Order 917 Peach
Commodity Committee Representation Areas
Section 917.22, Nomination of the Peach Commodity Committee
members, should be amended to reflect conforming changes in
representation that would result if the amendments discussed in
Material Issue 10b were implemented. Furthermore, the Peach Commodity
Committee representation areas should be renamed so that they are
consistent with the district nomenclature of the nectarine order.
The current peach representation area names and the corresponding
Committee representation for each peach producing district, or groups
of districts, under order 917 are as follows:
(a) South Coast District and Southern California District: one
nominee.
(b) Tehachapi District and Kern District: one nominee.
(c) Tulare District: one nominee.
(d) Fresno District: eight nominees.
(e) Stanislaus District and Stockton District: one nominee.
(f) All of the production area not included in the above: one
nominee.
If the proposed amendment were implemented, the new distribution
would place three member seats in the newly defined Tulare District and
would reduce the member seats in the newly defined Fresno District to
seven. The representation area defined as, ``(f) All of the production
area not included in the above'' in the current language of Sec.
917.22 (above) would be removed. Membership seats for the remaining
districts would remain as they are currently allocated, with one seat
for each of the following: The combined Tehachapi and Kern Districts,
the combined South Coast and Southern California Districts, and the
combined Stanislaus and Stockton Districts plus all remaining
production. Total membership for the Peach Commodity Committee would
remain at 13.
In addition to the redistricting and reallocation, record evidence
supports
[[Page 71741]]
renaming the peach representation areas with the comparable district
nomenclature that is currently used in the nectarine order. While the
names for the peach representation areas remain tied to their
geographic descriptions, common references to those areas rely on
numeric names. Thus, the proposed name change, combined with the
proposed reallocation in district representation and redefinition of
district boundaries discussed in Material Issue 10b, would result in
the following:
(a) District 1 composed of the Fresno District: seven nominees.
(b) District 2 composed of the Tulare District: three nominees.
(c) District 3 composed of the Tehachapi District and Kern
District: one nominee.
(d) District 5 composed of the South Coast District and Southern
California District: one nominee.
(e) District 4 composed of the Stanislaus District, Stockton
District and all of the production area not included in paragraphs (a)
through (d): One nominee.
The proposed renaming of the above representation areas as
published in Notice of Hearing and as presented by witnesses had
proposed Districts 4 and 5 reversed. However, with District 4
originally listed as (d) and defined as ``Stanislaus District, Stockton
District and all of the production area not included in paragraphs (a)
through (d),'' followed by paragraph District 5, or paragraph (e), the
definition of District 4 would have been incorrect. USDA recommends
reversing the order of paragraphs (d) and (e) published in the Notice
so that the language reads as outlined above.
Record evidence supports this amendment. No opposition to these
amendments was presented at the hearing. For the reasons outlined
above, it is recommended that Sec. 917.22, Nomination of the Peach
Commodity Committee members, be amended. Also, USDA recommends
modifying the proposed amendatory language for Sec. 917.22 by
reversing the order of paragraphs (d) and (e) as published in the
Notice.
Material Issue Number 12a and 12b--Addition of Interest and Penalties
for Late Payments and Authority To Borrow Funds
Section 916.41 of the nectarine order and Sec. 917.37 of the peach
order should be amended to allow for interest and/or late payments for
assessments not paid on time. Section 917.37 should be further amended
to authorize the Committee to borrow money for administration of peach
provisions of the order.
Currently there are no provisions providing for penalties or
interest charges on late assessment payments under either the nectarine
or peach order.
Record evidence indicates that the proposed amendment would
strengthen the assessment collection functions of the orders and, in
the case of peaches, allow access to additional funds. Implementation
of interest and late payments would serve as an incentive for handlers
to pay their assessments in a timely manner. And, adding the authority
to borrow funds to marketing order 917 would allow the Control and
Peach Committees access to additional funds to administer the order
when the carry forward of assessment monies is inadequate.
There was no opposition testimony given against this proposed
amendment. For the reasons stated above, it is recommended that Sec.
916.41 and Sec. 917.37 be amended.
Material Issue Number 13a and 13b--Authority To Recommend Regulations
by Market Destination
This proposed amendment would have provided authority under the
nectarine and peach programs to recommend specific regulations for
specific market destinations. Over 100 comments in opposition to this
proposed amendment were filed during the briefing period following the
public hearing on proposed amendments to marketing orders 916 and 917.
Comments stated concerns that the proposed authority would negatively
impact the distribution of fruit to certain markets and would unfairly
disadvantage certain handlers who ship utility-grade product overseas.
The Nectarine and Peach Commodity Committees, in their brief, requested
that this proposal be withdrawn. Accordingly, proposal 13 is not being
considered in this recommended decision.
Material Issue Number 14--Establishment of Subcommittees Under the
Peach Commodity Committee
Section 917.35 of the order should be amended to clarify that the
Peach Commodity Committee may establish subcommittees.
Witnesses at the hearing explained that the order does not
currently specify that the Peach Commodity Committee can establish
subcommittees. However, the language in Sec. 917.35 does state that
``other committees'' can be established. This proposal would specify
that ``other committees'' established by Peach Committee could be
referred to as ``subcommittees.'' The proposed amendment is intended as
a clarifying change needed to update the order. Record evidence
indicates that the subcommittee structure is already in place for the
peach industry, and that the proposed amendment would result in a
simple name change for all sub-groups currently existing under the
Control and Peach Commodity Committees.
No opposition to this amendment was presented at the hearing. For
the reasons outlined above, it is recommended that Sec. 917.35 be
amended.
Conforming Changes
The Agricultural Marketing Service proposed to make such changes as
may be necessary to the order to conform with any amendment that may
result from the hearing. Necessary conforming changes have been
identified and discussed in this Recommended Decision under the
pertinent material issues.
Small Business Considerations
Pursuant to the 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 so that small businesses will not be
unduly or disproportionately burdened. Marketing orders and amendments
thereto are unique in that they are normally brought about through
group action of essentially small entities for their own benefit. Thus,
both the RFA and the Act are compatible with respect to small entities.
Small agricultural growers are defined by the Small Business
Administration (SBA)(13 CFR 121.201) as those having annual receipts of
less than $750,000. Small agricultural service firms, which include
handlers regulated under the order, were defined at the time of the
hearing as those with annual receipts of less than $5,000,000. The
definition of small agricultural service firm has subsequently changed
to one with annual receipts of $6,000,000.
Interested persons were invited to present evidence at the hearing
on the probable regulatory and informational impact on growers and
handlers of the proposed amendments, and in particular the impact on
small businesses. The record evidence shows that most of the proposed
amendments are designed to enhance industry
[[Page 71742]]
efficiencies and streamline administrative operations of the marketing
order Committees. The amendments are not expected to have any direct
cost impacts on growers or handlers, whether small or large. Improved
operating efficiencies of the marketing order programs and their
administrative committees are expected to positively benefit the
nectarine and peach industries.
According to the record, there are approximately 207 California
nectarine and peach handlers (combined) and approximately 1,500 growers
(combined nectarines and peaches) in the production area, the State of
California. A majority of these handlers and growers may be classified
as small entities.
Based on calculations made by the Peach and Nectarine Committees'
staff, witnesses indicated that about 26 handlers (13 percent) would
qualify as large business entities under the SBA definition of a large
agricultural service firm ($5,000,000). For the 2004 season, it was
estimated that the average handler price received was eight dollars per
container or container equivalent of nectarines or peaches. Thus, a
handler would have to ship at least 625,000 containers to have annual
receipts of 5 million dollars. Given data on shipments presented at the
hearing and the estimated eight-dollar average handler price received
during the 2004 season, small handlers represented approximately 87
percent of all the handlers within the industry. Under the 6 million
dollar definition, more than 87 percent of handlers would qualify as
small handler entities.
Record evidence also indicated that less than 20 percent of the
combined number of California nectarine and peach growers could be
defined as other than small entities. The Committees estimated that the
average 2004 grower price received for nectarines and peaches was 5
dollars per container or a container equivalent. A grower would have to
produce at least 150,000 containers of nectarines and peaches to have
annual receipts of 750,000 dollars. Given data maintained by the
Committees' staff and the five dollar estimated average grower price
received during the 2004 season, the staff estimates that more than 80
percent of growers can be classified as small growers.
Evidence presented at the hearing indicates an average 2004 grower
price of five dollars per container or container equivalent for both
nectarines and peaches, and a combined pack-out of approximately
40,422,900 containers. Thus, the value of the 2004 pack-out is
estimated to be $202,114,500. Dividing this total estimated grower
revenue by the estimated number of combined nectarine and peach growers
(1,500) yields an estimate of 2004 average revenue per grower of about
$134,743. Because many growers produce both commodities, industry
nectarine and peach production statistics were presented at the hearing
as combined totals.
National Agricultural Statistical Service (NASS) data presented at
the hearing provides the following production profile for California
nectarines and peaches, respectively (all numbers are two-year averages
for the 2003 crop year and preliminary data for 2004): Bearing acres,
36,500 of nectarines and 37,000 of peaches; yield per acre of utilized
production, 7.19 tons and 10.84 tons; annual utilized production,
262,500 tons and 401,000 tons. Utilized production of both nectarines
and peaches was less than total production in 2004; utilized production
data was therefore used in the computation. Two-year (2003 and 2004)
average grower prices per ton for nectarines and peaches were $391 and
$309.50 respectively. However, $309.50 is the peach price per ton for
both fresh and processed uses. Approximately one third of California
freestone peaches are sold for processing at a price lower than growers
receive for fresh market sales. Therefore, a better estimate of the
price per ton for fresh peach sales is to use the U.S. estimated grower
price for fresh peaches of 27 cents per pound ($540 per ton) for 2003,
the most recent year for which a U.S. fresh peach price was available
from the Economic Research Service of the USDA.
This NASS and ERS data is used to compute an additional estimate of
average annual sales revenue per producer. By assuming that growers of
nectarines are also growers of peaches, the 2004 average acreage for
these crops (dividing the sum of nectarine and peach bearing acres by
two) is equal to 36,750 acres. Dividing this number by the number of
combined peach and nectarine growers reported by CTFA (1,500) yields an
estimate of 24.5 acres as the average size of a sample nectarine or
peach farm in 2004. If the sample farm's acreage was split evenly
between nectarines and peaches (12.5 acres of each fruit) and
production yields equal to the statewide average (reported above), that
farm would have produced and sold 89.88 tons of nectarines and 134.42
tons of peaches. The value of production for that sample farm would
have been $35,143 for nectarines and $72,587 for peaches, or $107,730
total. This figure is lower than the $134,743 estimate using industry
data. However, both computations confirm that the average nectarine or
peach grower qualifies as a small grower under the SBA definition.
The proposed amendments would: update definitions and districts in
both orders; increase Committee membership of the Nectarine
Administrative Committee from eight to thirteen members and modify
sections of the order to conform to the increased membership; eliminate
the Shippers Advisory Committee (M.O. No. 916); allow the Control
Committee under M.O. No. 917 to be suspended if the provisions of one
commodity are suspended and transfer applicable duties and
responsibilities to the remaining Commodity Committee; and authorize
interest and late payment charges on assessments that are paid late.
All of the proposals are intended to streamline and improve the
administration, operation, and functioning of the programs. Many of the
proposed amendments would up-date the language of these two orders,
thus better representing, and conforming with, current practices in
these industries. The proposed amendments are not expected to result in
any significant cost increases for growers or handlers. More efficient
administration of program activities may result in cost savings for the
Peach and Nectarine Committees.
Proposal 1 would amend the order to allow hybrid fruit that
exhibits the characteristics of nectarines or peaches and is subject to
cultural practices common to nectarines and peaches be subject to
marketing order regulations. This proposed amendment provides a
procedure for the Committees to recommend to USDA the specific hybrids
to be included under the definitions and subject to order provisions.
The cultivation of hybrid fruit has been a practice of the
nectarine and peach industries. The improvement in breeding technology
provides for the development of fruit and fruit trees with more
favorable characteristics, such as disease resistance. As breeding
technology becomes more sophisticated, it is anticipated that
nectarines and peaches will be crossbred with other tree fruit, such as
apricots and plums.
The proposal would require that in order to be subject to order
requirements, all hybrids would need to be recommended to USDA by the
Committees for inclusion under the order. If this amendment is adopted,
the Committees would identify hybrids currently in production that have
[[Page 71743]]
characteristics of nectarines or peaches. The characteristics of the
fruit would help determine whether the hybrid should be regulated. The
Committees would also consider the cultural practices used on that
specific hybrid, as cultural practices differ among various fruit
trees. USDA would then proceed with rulemaking, as appropriate, as to
what hybrids would be included under the order.
The proposed amendment would provide flexibility in including
hybrids as they are developed and provides sufficient safeguards to
ensure compliance of order provisions. Incorporating specific reference
to hybrid fruit into the definitions of ``nectarine'' and ``peach'' is
not expected to result in any significant increase in costs to growers
or handlers. There may be slight increases in the administration costs
of the nectarine and peach orders in terms of program oversight, but it
is expected that any increases would be offset by the benefits of
including hybrids under the orders provisions.
Proposal 2 would specify that the act of ``packing'' nectarines and
peaches would be a handling function under the orders. Most packers
already assume all of the responsibilities of a handler, except the
selling of the fruit and thus, this proposal is not expected to result
in any significant increases in costs and would likely result in
efficiencies that would benefit the administration of marketing orders
916 and 917.
Proposal 3, which seeks to extend the marketing season for
nectarines, would more accurately reflect the nectarine industry's
current marketing season and conform to current handling regulations.
The proposed amendment would change the current marketing season from
May 1 through November 30 to April 1 through November 30. According to
record evidence, aligning the marketing year with current production
would not result in any increases in costs.
Proposal 4 would allow for the temporary suspension of the Control
Committee, the oversight committee for peaches and pears under
marketing order 917, when one of the commodity programs is suspended.
Since the pear program has been suspended, the duties of the Control
Committee have been lessened, as there is only one Commodity Committee
that is active under the marketing order program. In the Pear Commodity
Committee's absence, the Peach Commodity Committee has continued to
operate in conjunction with the Control Committee. The proposed
amendment would also allow the Control Committee to become active again
if both commodity groups were to become active under the order. This
amendment is not expected to result in any increases in costs to
growers or handlers.
Proposal 5 would increase the membership on the NAC from eight to
thirteen members and revise quorum requirements. Proposal 5 would also
provide for voting by facsimile and holding meetings via video
teleconference for both the Nectarine and Peach Commodity Committees.
Record evidence indicated that these amendments were necessary in order
to update the business practices of the Nectarine and Peach Committees
to include current day technology. The increase in Committee members
from 8 to 13 would allow for greater industry participation and would
provide for a larger pool of committee members to attend meetings and
meet quorum requirements. This amendment is not expected to result in
any significant increases in costs to growers or handlers.
Regarding the increase in committee membership, this proposal would
benefit growers by allowing more growers to be appointed to the
Committee, thereby increasing industry participation in the marketing
order program functions.
Regarding the use of facsimile and video teleconference, this
provision would allow both the Nectarine and Peach Committees to take
advantage of technology that is available currently, but was not known
when the orders were promulgated. Amendments proposed under this
material issue are not expected to result in any significant increases
in costs to growers or handlers.
Proposal 6 would eliminate the Shipper's Advisory Committee under
the nectarine marketing order and bring the language of the order into
conformance with current day operations of the program. Record evidence
indicates that the Shipper's Advisory Committee has not been active for
over 30 years and, while it once served a function under the marketing
order program, it is no longer necessary. This amendment is not
expected to result in any increases in costs to growers or handlers.
Proposal 7 would modify the definition of grower to specify that
both employees of growers and corporate officers of growers are
eligible to serve on the Nectarine and Peach Committees in grower
positions. This proposed amendment would be a clarifying change and
would bring the language of the order into conformance with current-day
operations of the program. This amendment is not expected to result in
any increases in costs to growers or handlers.
Proposal 8 would add a definition for pure grower to both the
nectarine and peach orders. If implemented, pure growers would be
defined as growers that grow their own product (and are not employees
or officers of a packing business) or, that grow and pack only their
own product. If they do pack for other growers, the total production
packed from other growers cannot exceed 25 percent of the total
production packed for that marketing season for that pure grower's
packing facility. Pure growers, who only pack a limited amount of fruit
for other growers, are still essentially dependent on their own
production, which is the essential component of being a pure grower.
Proposal 8 would also modify the current nomination procedures for
the Committees, as well as modify the deadline for conducting the
nominations, add a 50-percent pure grower membership requirement for
the Committees and establish tenure requirements for members. According
to the hearing record, nomination procedures would be modified to
provide for mailings of ballots and would change the beginning date of
the nomination period from February 15 to January 31. The change in the
beginning date would be necessary in order to provide extra time for
the mailing of ballots.
While some increases in administration costs could arise as a
result of the mailing of ballots, record evidence indicates that the
benefit of increased industry participation would merit that expense.
Proposal 9 would modify the current acceptance procedure for
persons nominated to serve on the Nectarine and Peach Committees.
Currently, the acceptance procedure for persons nominated and selected
to serve on the Committees involves a two-step process. If this
amendment were implemented, the two steps could be combined into one,
thus resulting in less paperwork, a shorter acceptance procedure and
improved efficiency in the acceptance process. This amendment is not
expected to result in any increases in costs to growers or handlers.
Proposal 10 would modify the Fresno and Tulare districts under the
peach marketing order by moving Kings County from the Fresno district
to the Tulare district and by including all of Tulare County in the
Tulare district, and would also modify district boundaries under the
nectarine order. This change would also serve as the basis for
[[Page 71744]]
modifying committee representation for the Tulare district under the
peach order, as discussed under Proposal 11. These amendments are not
expected to result in any significant increases in costs to growers or
handlers.
Proposal 11 would modify the names of the peach producing districts
under that marketing order and change district representation on the
Peach Committee to reflect the modified districts discussed under
Proposal 10. This proposal would provide for more accurate
representation of current-day peach production. This amendment is not
expected to result in any significant increases in costs to growers or
handlers.
Proposal 12 would provide for interest and penalty provisions for
late payment of assessments to be added to both the nectarine and peach
orders and would authorize the borrowing of funds for administration of
the peach order. These amendments would strengthen the assessment
collection functions of the orders and, in the case of peaches, allow
access to additional funds. The implementation of interest and late
payments would serve as an incentive for handlers to pay their
assessments in a timely manner. The authority to borrow funds under
marketing order 917 would allow the Control and Peach Committees access
to additional funds to administer the order when the carry forward of
assessment monies is inadequate. While these amendments are expected to
result in some costs under the marketing orders, the more timely
assessment payments and the authority to borrow funds (for peaches) are
expected to benefit the industries.
Lastly, Proposal 14 would clarify that ``other committees''
established by the Peach Committee would be referred to as
``subcommittees.'' This amendment is not expected to result in any
increases in costs to growers or handlers.
The proposals put forth at the hearing would streamline program
organization, but are not expected to result in a significant change in
industry production, handling or distribution activities. In discussing
the impacts of the proposed amendments on growers and handlers, record
evidence indicates that the changes are expected to be positive because
the administration of the programs would be more efficient, and
therefore more effective, in executing Committee duties and
responsibilities. There would be no significant cost impact on either
small or large growers or handlers.
Interested persons were invited to present evidence at the hearing
on the probable regulatory and informational impact of the proposed
amendments to the order on small entities. The record evidence is that
most of the amendments are designed to increase efficiency in the
functioning of the orders.
USDA has not identified any relevant Federal rules that duplicate,
overlap or conflict with this proposed rule. These amendments are
designed to enhance the administration and functioning of marketing
orders 916 and 917 to the benefit the California nectarine and peach
industries.
Committee meetings regarding these proposals as well as the hearing
dates were widely publicized throughout the California nectarine and
peach industries. All interested persons were invited to attend the
meetings and the hearing and participate in deliberations on all
issues. All Committee meetings (the NAC, the PCC, the Control Committee
and the CTFA) and the hearing were public forums and all entities, both
large and small, were able to express 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 20-day comment period is provided to allow interested persons to
respond to this proposal. Twenty days is deemed appropriate so that
this rulemaking may be completed and nominations can be conducted prior
to the next crop year, which begins in March. All written exceptions
timely received will be considered and a grower referendum will be
conducted before these proposals are implemented.
Paperwork Reduction Act
Current information collection requirements for Parts 916 and 917
have been previously approved by the Office of Management and Budget
(OMB) under OMB number 0581-0189, ``Generic Fruit Crops.'' The proposed
changes would have an insignificant impact on total burden hours
currently approved under this information collection.
Specifically, the proposed amendment to increase the Nectarine
Administrative Committee (committee) from 8 to 13 members would require
an additional 5 members and 5 alternates to complete existing
confidential background and acceptance statements every 2 years.
Increasing committee members from 16 (8 members and 8 alternates) to 26
(13 members and 13 alternates) would result in an increase of .43
burden hours, or 26 minutes. In addition, because the Shipper's
Advisory Committee is being recommended to be abolished, form FV-75,
``Confidential California Tree Fruit Agreement Questionnaire'', which
is currently approved under OMB No. 0581-0189 for 1.99 burden hours,
would no longer be needed. Removing this form would result in an
overall decrease of 1.56 burden hours.
Also, the proposal would authorize nominees under the nectarine
order to state their willingness to serve on the committee prior to
their selection, which would result in the combining of Confidential
Background statement and the acceptance statement, which are already
approved by OMB. There would be no change in the burden hours by
combining these forms.
The California Peach Commodity Committee proposed to amend the
provisions relating to the Control Committee under marketing order 917
to allow the duties and responsibilities of the Control Committee to be
transferred to one commodity committee if the provisions of the other
commodity committee are suspended. If this change was implemented, and
the Peach Commodity Committee was to assume the duties and
responsibilities of the Control Committee, some forms used by the
Control Committee would require a modification in the name of the
committee using those forms. However, the functioning of the forms and
the current burden would remain the same.
In addition, any changes to forms, or increased burden generated in
nominating and selecting pure growers on the Committees would be
submitted to OMB for approval prior to implementation.
AMS is committed to compliance with the Government Paperwork
Elimination Act (GPEA), which requires Government agencies in general
to provide the public the option of submitting information or
transacting business electronically to the maximum extent possible.
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. Witnesses stated
that existing forms could be adequately modified to serve the needs of
the nectarine and peach commodity committees.
Civil Justice Reform
The amendments to Marketing Agreement Nos. 124 and 85 and Order
Nos. 916 and 917 proposed herein have been reviewed under Executive
Order 12988, Civil Justice Reform. They are not intended to have
retroactive effect. If adopted, the proposed amendments would not
preempt any State or local
[[Page 71745]]
laws, regulations, or policies, unless they present an irreconcilable
conflict with this proposal.
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.
Rulings on Briefs of Interested Persons
Briefs, proposed findings and conclusions, and the evidence in the
record were considered in making the findings and conclusions set forth
in this recommended decision. To the extent that the suggested findings
and conclusions filed by interested persons are inconsistent with the
findings and conclusions of this recommended decision, the requests to
make such findings or to reach such conclusions are denied.
General Findings
The findings hereinafter set forth are supplementary to the
findings and determinations which were previously made in connection
with the issuance of the marketing agreement and order; and all said
previous findings and determinations are hereby ratified and affirmed,
except insofar as such findings and determinations may be in conflict
with the findings and determinations set forth herein.
(1) The marketing agreements and orders, as amended, and as hereby
proposed to be further amended, and all of the terms and conditions
thereof, would tend to effectuate the declared policy of the Act;
(2) The marketing agreements and orders, as amended, and as hereby
proposed to be further amended, regulate the handling of nectarines and
peaches grown in the production area (the State of California) in the
same manner as, and are applicable only to, persons in the respective
classes of commercial and industrial activity specified in the
marketing agreements and orders upon which a hearing has been held;
(3) The marketing agreements and orders, as amended, and as hereby
proposed to be further amended, are limited in their application to the
smallest regional production areas which is practicable, consistent
with carrying out the declared policy of the Act, and the issuance of
several orders applicable to subdivisions of the production areas would
not effectively carry out the declared policy of the Act;
(4) The marketing agreements and orders, as amended, and as hereby
proposed to be further amended, prescribe, insofar as practicable, such
different terms applicable to different parts of the production areas
as are necessary to give due recognition to the differences in the
production and marketing of nectarines and peaches grown in the
production area; and
(5) All handling of nectarines and peaches grown in the production
areas as defined in the marketing agreements and orders, is in the
current of interstate or foreign commerce or directly burdens,
obstructs, or affects such commerce.
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.
For the reasons set out in the preamble, 7 CFR parts 916 and 917
are proposed to be amended as follows:
PART 916--NECTARINES GROWN IN CALIFORNIA
1. The authority citation for 7 CFR part 916 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Revise Sec. 916.5 to read as follows:
Sec. 916.5 Nectarines.
Nectarines means: (1) All varieties of nectarines grown in the
production area; and
(2) Hybrids grown in the production area that exhibit the
characteristics of a nectarine and are subject to cultural practices
common to nectarines, as recommended by the committee and approved by
the Secretary.
3. Revise Sec. 916.9 to read as follows:
Sec. 916.9 Grower.
Grower is synonymous with producer and means any person who
produces nectarines for market in fresh form, and who has a proprietary
interest therein. Employees of growers and officers of corporations
actively engaged in growing nectarines are eligible to serve in grower
positions on the committee.
4. Revise Sec. 916.11 to read as follows:
Sec. 916.11 Handle.
Handle and ship are synonymous and mean to pack, sell, consign,
deliver, or transport nectarines, or to cause nectarines to be packed,
sold, consigned, delivered, or transported, between the production area
and any point outside thereof, or within the production area: Provided,
That the term handle shall not include the sale of nectarines on the
tree, the transportation within the production area of nectarines from
the orchard where grown to a packing facility located within such area
for preparation for market, or the delivery of such nectarines to such
packing facility for such preparation.
5. Revise paragraphs (a) and (b) of Sec. 916.12 to read as
follows:
Sec. 916.12 District.
* * * * *
(a) District 1 shall include the counties of Madera and Fresno.
(b) District 2 shall include the counties of Kings and Tulare.
* * * * *
6. Revise Sec. 916.15 to read as follows:
Sec. 916.15 Marketing season.
Marketing season means the period beginning on April 1 and ending
on November 30 of any year.
7. Add a new Sec. 916.16 to read as follows:
Sec. 916.16 Pure Grower or Pure Producer.
(a) Pure grower means any grower: (1) Who produces his or her own
product (and is not an employee or officer of a packing business); or
(2) Who produces and handles his or her own product; Provided,
That; A pure grower can pack the production of other growers as long as
the production packed does not exceed 25 percent of the total
production packed for that marketing year for that pure grower's
packing facility. Pure grower is synonymous with pure producer.
(b) The committee may establish, with the approval of the
Secretary, rules and regulations for the implementation and operation
of this section.
8. Revise Sec. 916.20 to read as follows:
Sec. 916.20 Establishment and membership.
There is hereby established a Nectarine Administrative Committee
consisting of thirteen members, each of whom shall have an alternate
who shall
[[Page 71746]]
have the same qualifications as the member for whom he/she is an
alternate. The members and their alternates shall be growers or
authorized employees of growers. Six of the members and their
respective alternates shall be growers of nectarines in District 1.
Four members and their respective alternates shall be growers of
nectarines in District 2; two of the members and their respective
alternates shall be growers of nectarines in District 3; and one member
and his/her alternate shall be growers of nectarines in District 4;
Provided, That at least 50% of the nominees from each representation
area shall be pure growers. Furthermore, no person shall serve more
than three consecutive two-year terms of office or a total of six
consecutive years; Provided further, That an appointment to fill less
than a two-year term of office, or serving one term as an alternate,
shall not be included in determining the three consecutive terms of
office; Provided further, That time served prior to the effective date
of this section shall not be counted toward consecutive term limits.
9. Revise paragraph (b) of Sec. 916.22 to read as follows:
Sec. 916.22 Nomination.
* * * * *
(b) Successor members. (1) The committee shall appoint a nominating
committee, which will hold or cause to be held, not later than January
31 of each odd numbered year, a nomination procedure or a meeting or
meetings of growers in each district for the purpose of designating
nominees for successor members and alternate members of the committee.
Meetings may be supervised by the nominating committee that shall
prescribe such procedure as shall be reasonable and fair to all persons
concerned. After the nomination procedure or meetings have concluded,
the nominating committee by February 15 will verify consent to place
the nominee's name on the ballot and will cause a ballot listing all of
the nominees for a given district to be mailed to all growers within
the district. Members and their alternates will be chosen based on a
descending ranking of votes received. Once ballots have been tabulated,
the Nectarine Administrative Committee will announce to the growers the
nominees that have been selected and recommended to the Secretary.
(2) Nominations may only be by growers, or by duly authorized
employees. At meetings, only growers who are present at such nomination
meetings may participate in the nomination of nominees for members and
their alternates. All known growers will then receive a ballot for the
nominees in the district in which they produce and are entitled to vote
accordingly. A grower who produces in multiple districts is allowed to
vote only in one district, and may exchange his/her ballot for that of
the nominees in another district provided the grower is producing in
the district for which he/she wants to participate. Employees of such
grower shall be eligible for membership as principal or alternate to
fill only one position on the committee.
(3) A particular grower, including authorized employees of such
grower, shall be eligible for membership as principal or alternate to
fill only one position on the committee.
10. Revise Sec. 916.25 to read as follows:
Sec. 916.25 Acceptance.
Each person to be selected by the Secretary as a member or as an
alternate member of the committee shall, prior to such selection,
qualify by advising the Secretary that he/she agrees to serve in the
position for which nominated for selection.
11. Revise Sec. 916.32 to read as follows:
Sec. 916.32 Procedure.
(a) Nine members of the committee, or alternates acting for
members, shall constitute a quorum and any action of the committee
shall require the concurring vote of the majority of those present:
Provided, That actions of the committee with respect to expenses and
assessments, or recommendations for regulations pursuant to Sec. Sec.
916.50 to 916.55, shall require at least nine concurring votes.
(b) The committee may vote by telephone, telegraph, or other means
of communication, such as facsimile, and any votes so cast shall be
confirmed promptly in writing: Provided, That if an assembled meeting
is held, all votes shall be cast in person. A videoconference shall be
considered an assembled meeting and all votes shall be considered as
cast in person.
12. Remove Sec. 916.37.
13. Add three new sentences at the end of paragraph (b) of Sec.
916.41 to read as follows:
Sec. 916.41 Assessments.
* * * * *
(b) * * * Furthermore, any assessment not paid by a handler within
a period of time prescribed by the committee may be subject to an
interest or late payment charge, or both. The period of time, rate of
interest and late payment charge shall be as recommended by the
committee and approved by the Secretary. Subsequent to such approval,
all assessments not paid within the prescribed period of time shall be
subject to an interest or late payment charge or both.
PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA
14. The authority citation for part 917 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
15. Revise Sec. 917.4 to read as follows:
Sec. 917.4 Fruit.
Fruit means the edible product of the following kinds of trees:
(a) All varieties of peaches grown in the production area;
(b) All hybrids grown in the production area exhibiting the
characteristics of a peach and subject to cultural practices common to
peaches as recommended by the committee and approved by the Secretary;
and
(c) All varieties of pears except Beurre Hardy, Beurre D'Anjou,
Bosc, Winter Nelis, Doyenne du Comice, Beurre Easter, and Beurre
Clairgeau.
16. Revise Sec. 917.5 to read as follows:
Sec. 917.5 Grower.
Grower is synonymous with producer and means any person who
produces fruit for market in fresh form, and who has a proprietary
interest therein. Employees of growers and officers of corporations
actively engaged in growing peaches are eligible to serve in grower
positions on the committee.
17. Revise Sec. 917.6 to read as follows:
Sec. 917.6 Handle.
Handle and ship are synonymous and mean to sell, consign, deliver
or transport fruit or to cause fruit to be sold, consigned, delivered
or transported between the production area and any point outside
thereof, or within the production area: Provided, That for peaches,
packing or causing the fruit to be packed also constitutes handling;
Provided further, That the term handle shall not include the sale of
fruit on the tree, the transportation within the production area of
fruit from the orchard where grown to a packing facility located within
such area for preparation for market, or the delivery of such fruit to
such packing facility for such preparation.
18. Add a new Sec. 917.8 to read as follows:
Sec. 917.8 Pure Grower or Pure Producer.
(a) For peaches, pure grower means any grower:
(1) Who produces his or her own product (and is not an employee or
officer of a packing business); or
(2) Who produces and handles his or her own product; Provided,
That: A
[[Page 71747]]
pure producer can pack the production of other growers as long as the
production packed does not exceed 25 percent of the total production
packed for that marketing year by that pure grower's packing facility.
Pure grower is synonymous with pure producer.
(b) The committee may establish, with the approval of the
Secretary, rules and regulations for the implementation and operation
of this section.
19. Revise paragraphs (n) and (o) of Sec. 917.14 to read as
follows:
Sec. 917.14 District.
* * * * *
(n) Fresno District includes and consists of Madera County, Fresno
County, and Mono County.
(o) Tulare District includes and consists of Tulare County and
Kings County.
* * * * *
20. Revise Sec. 917.18 to read as follows:
Sec. 917.18 Nomination of commodity committee members of the Control
Committee.
Nominations for the 13 members of the Control Committee to
represent the commodity committees shall be made in the following
manner:
(a) A nomination for one member shall be made by each commodity
committee selected pursuant to Sec. 917.25. Nominations for the
remaining members shall be made by the respective commodity committees
as provided in this section. The number of remaining members which each
respective commodity shall be entitled to nominate shall be based upon
the proportion that the previous three fiscal periods' shipments of the
respective fruit is of the total shipments of all fruit to which this
part is applicable during such periods. In the event provisions of this
part are terminated as to any fruit, the members of the commodity
committee of the remaining fruit shall have all of the powers, duties,
and functions given to the Control Committee under this part and
sections of this part pertaining to the designation of the Control
Committee shall be terminated. In the event provisions of this part are
suspended as to any fruit, the members of the commodity committee of
the remaining fruit shall have all the powers, duties, and functions
given to the Control Committee under this part and sections of this
part pertaining to the designation of the Control Committee shall be
suspended.
(b) A person nominated by any commodity committee for membership on
the Control Committee shall be an individual person who is a member or
alternate member of the commodity committee that nominates him/her.
Each member of each commodity committee shall have only one vote in the
selection of nominees for membership on the Control Committee.
21. Revise Sec. 917.22 to read as follows:
Sec. 917.22 Nomination of Peach Commodity Committee members.
Nominations for membership on the Peach Commodity Committee shall
be made by growers of peaches in the respective representation areas,
as follows:
(a) District 1 composed of the Fresno District: seven nominees.
(b) District 2 composed of the Tulare District: three nominees.
(c) District 3 composed of the Tehachapi District and Kern
District: one nominee.
(d) District 5 composed of the South Coast District and Southern
California District: one nominee.
(e) District 4 composed of the Stanislaus District, Stockton
District and all of the production area not included in paragraphs (a)
through (d) of this section: one nominee.
22. Revise Sec. 917.24 to read as follows:
Sec. 917.24 Procedure for nominating members of various commodity
committees.
(a) The Control Committee shall hold or cause to be held not later
than January 31 for peaches and not later than February 15 for pears of
each odd numbered year a nomination procedure or a meeting or meetings
of the growers of the fruits in each representation area set forth in
Sec. Sec. 917.21 and 917.22 for purposes of designating nominees for
successor members and alternate members of the commodity committees.
These meetings shall be supervised by the Control Committee, which
shall prescribe such procedure as shall be reasonable and fair to all
persons concerned.
(b) With respect to each commodity committee only growers of the
particular fruit who are present at such nomination meetings or
represented at such meetings by duly authorized employees may
participate in the nomination and election of nominees for commodity
committee members and alternates. For peaches, those who may receive
nomination forms if the nominations are conducted via a mail process
may also participate in the nomination and election of nominees for
Peach Commodity Committee members and alternates. All peach growers, or
authorized employees, will receive a ballot for the nominees in the
district in which they produce and are entitled to vote accordingly. A
peach grower who produces in multiple districts is allowed to vote only
in one district, and may exchange his/her ballot for that of nominees
in another district provided the grower is producing in the district
for which he/she wants to participate. For both commodity committees,
each such grower, including employees of such grower, shall be entitled
to cast but one vote for each position to be filled for the
representation area in which he/she produces such fruit.
(c) A particular grower, including employees of such growers, shall
be eligible for membership as principle or alternate to fill only one
position on a commodity committee. A grower nominated for membership on
the Pear Commodity Committee must have produced at least 51 percent of
the pears shipped by him/her during the previous fiscal period, or he/
she must represent an organization that produced at least 51 percent of
the pears shipped by it during such period. The members and alternates
of the Peach Commodity Committee shall be growers, or shall be
authorized employees of such growers and at least 50% of the nominees
from each representation area shall be pure growers.
(d) For peaches, no person shall serve more than three (3)
consecutive two-year terms of office or a total of six (6) consecutive
years; Provided, That an appointment to fill less than a two-year term
of office, or serving one (1) term as an alternate, shall not be
included in determining the (3) consecutive terms of office; Provided
further, That time served prior to the effective date of this section
shall not be counted toward consecutive term limits. The members shall
serve until their respective successors are selected and have
qualified.
23. Revise Sec. 917.25 to read as follows:
Sec. 917.25 Acceptance.
(a) The Secretary shall select the members of each commodity
committee, except for the Peach Commodity Committee, from nominations
made by growers, as provided in Sec. Sec. 917.21 through 917.24, or
from among other eligible persons. Any person selected as a member of
the Pear Commodity Committee shall qualify by filing with the Secretary
a written acceptance of the appointment.
(b) For the Peach Commodity Committee, each person to be selected
by the Secretary as a member or as an alternate member of the committee
shall, prior to such selection, qualify by advising the Secretary that
he/she agrees
[[Page 71748]]
to serve in the position for which nominated for selection.
24. Revise paragraph (d) of Sec. 917.29 to read as follows:
Sec. 917.29 Organization of committees.
* * * * *
(d) The Control Committee or any commodity committee may, upon due
notice to all of the members of the respective committee, vote by
letter, telegraph or telephone: Provided, That any member voting by
telephone shall promptly thereafter confirm in writing his/her vote so
cast. The Peach Commodity Committee may, upon due notice to all of the
members of the respective committee, vote by letter, telegraph,
telephone, facsimile, video teleconference, or any other means of
communication recommended by the committee and approved by the
Secretary; Provided, That any member voting by telephone shall promptly
thereafter confirm in writing his/her vote so cast.
25. Add a sentence at the end of paragraph (d) of Sec. 917.35 to
read as follows:
Sec. 917.35 Powers and duties of each commodity committee.
* * * * *
(d) * * * To establish subcommittees to aid the Peach Commodity
Committee in the performance of its duties under this part as may be
deemed advisable.
* * * * *
26. Revise Sec. 917.37 to read as follows:
Sec. 917.37 Assessments.
(a) As his/her pro rata share of the expenses which the Secretary
finds are reasonable and are likely to be incurred by the commodity
committees during a fiscal period, each handler shall pay to the
Control Committee, upon demand, assessments on all fruit handled by
him/her. The payment of assessments for the maintenance and functioning
of the committees may be required under this part throughout the period
it is in effect irrespective of whether particular provisions thereof
are suspended or become inoperative.
(b) The Secretary shall fix the respective rate of assessment,
which handlers shall pay with respect to each fruit during each fiscal
period in an amount designed to secure sufficient funds to cover the
respective expenses, which may be incurred during such period. At any
time during or after the fiscal period, the Secretary may increase the
rates of assessment in order to secure funds to cover any later
findings by the Secretary relative to such expenses, and such increase
shall apply to all fruit shipped during the fiscal period. Furthermore,
any assessment not paid by a peach handler within a period of time
prescribed by the Control Committee may be subject to an interest or
late payment charge, or both. The period of time, rate of interest and
late payment charge shall be as recommended by the committee and
approved by the Secretary. Subsequent to such approval, all assessments
for peaches not paid within the prescribed period of time shall be
subject to an interest or late payment charge or both.
(c) In order to provide funds to carry out the functions of the
commodity committee prior to commencement of shipments in any season,
shippers may make advance payments of assessments, which advance
payments shall be credited to such shippers and the assessments of such
shippers shall be adjusted so that such assessments are based upon the
quantity of fruit shipped by such shippers during such season. Any
shipper who ships fruit for the account of a grower may deduct, from
the account of sale covering such shipment or shipments, the amount of
assessments levied on said fruit shipped for the account of such
grower. The Control Committee may also borrow money for such purposes
for peaches.
Dated: November 18, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-23327 Filed 11-28-05; 8:45 am]
BILLING CODE 3410-02-P