[Federal Register: December 28, 2006 (Volume 71, Number 249)]
[Rules and Regulations]
[Page 78038-78042]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28de06-2]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 916 and 917
[Docket No. AMS-FV-06-0189; FV07-916/917-1 IFR]
Nectarines and Peaches Grown in California; Revision of
Regulations on Production Districts, Committee Representation, and
Nomination Procedures
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This rule revises the administrative rules and regulations
that define production districts, allocate committee membership, and
specify nomination procedures for the Nectarine Administrative
Committee (NAC) and the Peach Commodity Committee (PCC) (committees).
The committees are responsible for local administration of the Federal
marketing
[[Page 78039]]
orders (orders) for fresh nectarines and peaches grown in California,
respectively. This rule also revises the committees' mailing address.
These revisions are necessary to bring the orders' administrative rules
and regulations into conformance with the recently amended order
provisions.
DATES: Effective January 1, 2007; comments received by February 26,
2007 will be considered prior to issuance of any final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent to the Docket Clerk, Fruit
and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP
0237, Washington, DC 20250-0237; Fax: (202) 720-8938, or E-mail:
moab.docketclerk@usda.gov, or Internet: http://www.regulations.gov. All
comments should reference the docket number and the date and page
number of this issue of the Federal Register and will be made
available for public inspection at the Office of the Docket Clerk
during regular business hours, or can be viewed at: http://www.ams.usda.gov/fv/moab.html
.
FOR FURTHER INFORMATION CONTACT: Laurel May, Marketing Specialist,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC
20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or E-mail:
Laurel.May@usda.gov; or Kurt Kimmel, Regional Manager, California
Marketing Field Office, Marketing Order Administration Branch, Fruit
and Vegetable Programs, AMS, USDA, 2202 Monterey Street, Suite 102B,
Fresno, California, 93721; Telephone (559) 487-5901, Fax: (559) 487-
5906, or E-mail: Kurt.Kimmel@usda.gov.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202)
720-2491, Fax: (202) 720-8938, or E-mail: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order
Nos. 916 and 917 (7 CFR parts 916 and 917) regulating the handling of
nectarines and peaches grown in California, respectively, hereinafter
referred to as the ``orders.'' The orders are effective under the
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-
674), hereinafter referred to as the ``Act.''
The Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with USDA a petition
stating that the order, any provision of the order, or any obligation
imposed in connection with the order is not in accordance with law and
request a modification of the order or to be exempted therefrom. A
handler is afforded the opportunity for a hearing on the petition.
After the hearing, USDA would rule on the petition. The Act provides
that the district court of the United States in any district in which
the handler is an inhabitant, or has his or her principal place of
business, has jurisdiction to review USDA's ruling on the petition,
provided an action is filed not later than 20 days after the date of
the entry of the ruling.
This rule removes or revises obsolete language in the orders'
administrative rules and regulations pertaining to the alignment of
production districts; the allocation of committee membership; and the
nomination processes for NAC, Shipper's Advisory Committee, PCC, and
Control Committee members. This rule also changes the PCC's business
address by removing reference to the Control Committee in order to
reflect current committee operations. These changes are needed to bring
the orders' administrative rules and regulations into conformity with
amendments to the orders' provisions recently approved by nectarine and
peach growers. These changes were unanimously recommended by the
committees at their meetings on August 31, 2006.
Production Districts and Committee Membership Allocation
Nectarine Administrative Committee
Section 916.12 of the nectarine order establishes the nectarine
production districts into which the state of California has been
divided. Section 916.20 establishes the size of the NAC and the
allocation of NAC membership to the districts defined in Sec. 916.12.
In addition, Sec. 916.31 provides authority for the NAC to recommend
changes to district boundaries and to reapportion committee
representation to reflect shifts in production within the state as
necessary. The changes to district boundaries and membership
reapportionment recommended by the NAC are reflected in Sec. Sec.
916.105 and 916.107 of the order's administrative rules and
regulations.
A final rule amending Sec. Sec. 916.12 and 916.20 of the nectarine
order was published in the Federal Register on July 21, 2006 (71 FR
41345). The amendments, which will become effective on January 1, 2007,
redefine the nectarine production districts, increase the size of the
NAC from eight to thirteen members, and reallocate committee membership
among the new districts. On January 1, 2007, Sec. Sec. 916.105 and
916.107 do not reflect the district boundaries and committee membership
allocation as defined in the amended order. Therefore, the NAC
recommended removing the obsolete sections when the amendments become
effective. This rule removes those sections. Any subsequent changes to
the production districts and reallocation of committee membership among
new districts will be accomplished by notice and comment rulemaking as
appropriate.
Peach Commodity Committee
Section 917.14 of the peach marketing order establishes the peach
production districts into which the State of California has been
divided. Section 917.20 establishes the size of the PCC and Sec.
917.22 prescribes the allocation of PCC membership to the districts
defined in Sec. 917.14. Authority is provided in Sec. 917.35 for the
PCC to recommend changes to district boundaries and to reapportion
committee representation to reflect shifts in production within the
state as necessary. The changes to district boundaries and membership
reapportionment recommended by the PCC are reflected in Sec. 917.120
of the order's administrative rules and regulations.
A final rule amending Sec. Sec. 917.14 and 917.22 of the peach
order was published in the Federal Register on July 21, 2006 (71 FR
41345). The amendments, which will become effective on January 1, 2007,
redefine the peach production districts and reallocate committee
membership among the new districts. After January 1, 2007, Sec.
917.120 does not reflect the district boundaries and committee
membership allocation as defined in the amended order provisions.
Therefore, the PCC recommended removing the obsolete section when the
amendments become effective. This rule removes that section. Any
subsequent changes to the
[[Page 78040]]
production districts and reallocation of committee membership among new
districts will be accomplished by notice and comment rulemaking as
appropriate.
Committee Nomination Processes
Nectarine Administrative Committee
Section 916.22 of the nectarine marketing order specifies
nomination procedures for members and alternate members of the NAC.
Authority is provided in Sec. 916.30 for the NAC to recommend and
adopt rules and regulations regarding the nominations procedures.
Furthermore, Sec. 916.37 establishes the nectarine Shippers' Advisory
Committee and authorizes the NAC to prescribe nominations procedures
for that committee. Section 916.102 was added to the order's
administrative rules and regulations to provide specific details
regarding the nomination meeting procedures for the NAC and the
Shippers' Advisory Committee.
A final rule amending Sec. 916.22 was published in the Federal
Register on July 21, 2006. The amendment will allow the NAC to conduct
nominations through mail balloting. The final rule also removes Sec.
916.37 regarding the Shippers' Advisory Committee, which has not been
active for over 30 years and is no longer a necessary component of the
nectarine marketing program. These changes will become effective on
January 1, 2007.
After January 1, 2007, Sec. 916.102 will no longer be consistent
with the amended NAC nomination process, and references to the
Shippers' Advisory Committee will be obsolete. Therefore, the NAC
recommended that the section be removed from the nectarine order's
administrative rules and regulations. This rule removes Sec. 916.102.
Peach Commodity Committee
Section 917.24 of the peach marketing order specifies the
nomination procedures for members and alternate members of the PCC.
Authority is provided in Sec. 917.35 for the PCC to recommend and
adopt rules and regulations regarding the nomination procedures.
Section 917.119 was added to the order's administrative rules and
regulations to provide specific details regarding the nomination
meeting procedures for the PCC and the Pear Commodity Committee. Order
provisions pertaining to the Pear Commodity Committee have been
suspended since 1994, and the Pear Commodity Committee is not currently
active.
A final rule published in the Federal Register on July 21, 2006,
amends Sec. 917.24 to allow the PCC to conduct nominations through
mail balloting. The amendment will become effective on January 1, 2007.
After that date, Sec. 917.119, which contains language pertaining to
the nomination processes for both the Peach and Pear Commodity
Committees, will be inconsistent with the amendments that will allow
the PCC to conduct nominations through mail balloting. Therefore, the
PCC recommended revising the section to specify which language therein
pertains to each commodity committee's nomination procedures. This rule
revises Sec. 917.119 to include a new paragraph that specifies which
procedures apply to both the Peach and Pear Commodity Committees, and
which apply only to Pears.
Committee Business Address
The Control Committee, doing business as the California Tree Fruit
Agreement (CTFA), functions as the joint administrative body for the
commodity committees under Part 917. The Control Committee, or CTFA, is
the designated recipient of all the handlers' reports and other
business communications. Section 917.110 provides the business address
for the Control Committee.
The final rule published in the Federal Register on July 21, 2006,
mentioned above, included amendments to Sec. 917.18 that allow the
duties of the Control Committee to shift to the remaining commodity
committee when order provisions pertaining to one commodity committee
are terminated or suspended. The provisions pertaining to the Pear
Commodity Committee have been suspended since 1994. Therefore, when the
amendments become effective on January 1, 2007, the duties of the
Control Committee will shift to the PCC, which will continue to conduct
business as the CTFA. In order to conform to the amended order
provisions, the PCC recommended revising the address listed in Sec.
917.110 by eliminating the name of the Control Committee from the
CTFA's business address. This rule makes that conforming change.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this action on small entities. Accordingly, AMS has
prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 150 California nectarine and peach handlers
subject to regulation under the orders and about 800 growers of these
fruits in the regulated area. Small agricultural service firms, which
include handlers, are defined by the Small Business Administration (13
CFR 121.201) as those having annual receipts of less than $6,500,000.
Small agricultural growers are defined as those having annual receipts
of less than $750,000. A majority of these handlers and growers may be
classified as small entities.
The committees' staff has estimated that there are fewer than 26
handlers in the industry who could be defined as other than small
entities. For the 2005 season, the committees' staff estimated that the
average handler price received was $10.00 per container or container
equivalent of nectarines or peaches. A handler would have to ship at
least 600,000 containers to have annual receipts of $6,000,000. Given
data on shipments maintained by the committees' staff and the average
handler price received during the 2005 season, the committees' staff
estimates that small handlers represent approximately 86 percent of all
the handlers within the industry.
The committees' staff has also estimated that fewer than 10 percent
of the growers in the industry could be defined as other than small
entities. For the 2005 season, the committees' staff estimated the
average grower price received was $5.25 per container or container
equivalent for nectarines and peaches. A grower would have to produce
at least 142,858 containers of nectarines and peaches to have annual
receipts of $750,000. Given data maintained by the committees' staff
and the average grower price received during the 2005 season, the
committees' staff estimates that small growers represent more than 90
percent of the growers within the industry.
With an average grower price of $5.25 per container or container
equivalent, and a combined packout of nectarines and peaches of
approximately 38,776,500 containers, the value of the 2005 packout is
estimated to be $203,576,600. Dividing this total estimated grower
revenue figure by the estimated number of growers (800)
[[Page 78041]]
yields an estimated average revenue per grower of about $254,471 from
the sales of peaches and nectarines.
Amendments to the orders were recently approved by a nectarine and
peach growers. The amendments were implemented in a final rule that was
published in the Federal Register on July 21, 2006, and most will
become effective on January 1, 2007.
This rule removes or revises certain sections of the orders'
administrative rules and regulations to conform to the amended order
provisions.
Sections 916.105 and 916.107 of the nectarine order, and 917.120 of
the peach order, which specify production district boundaries and
committee membership allocations, are no longer applicable because the
orders' provisions have been updated to include revised production
districts and committee member apportionment. These obsolete sections
are being removed. Any subsequent changes to the production districts
and reallocation of committee membership among new districts will be
accomplished by notice and comment rulemaking as appropriate.
Section 916.102 of the nectarine marketing order, which specifies
nomination meeting procedures for the NAC and the Shippers' Advisory
Committee, is being removed because the nectarine order has been
amended to allow mail balloting for NAC membership, and because the
Shippers' Advisory Committee has been eliminated. Section 917.119 of
the peach marketing order, which specifies nomination meeting
procedures for the PCC and Pear Commodity Committee, is being revised
because the order provisions pertaining to the PCC have been amended to
allow mail balloting. A new paragraph is being added to that section to
clarify which procedures pertain to both the Peach and Pear Commodity
Committees, and which pertain only to the Pear Commodity Committee.
Finally, Sec. 917.110 of the peach marketing order is being
revised by removing the Control Committee's name from the address to
which industry reports and business correspondence should be addressed
to conform with recent amendments to the order.
These changes are necessary to bring the orders' rules and
regulations into conformance with the amended order provisions.
This rule will not impose any additional reporting or recordkeeping
requirements on either small or large handlers. As with all Federal
marketing order programs, reports and forms are periodically reviewed
to reduce information requirements and duplication by industry and
public sector agencies.
The AMS is committed to complying with the E-Government Act, to
promote the use of the Internet and other information technologies to
provide increased opportunities for citizen access to Government
information and services and for other purposes.
In addition, USDA has not identified any relevant Federal rules
that duplicate, overlap, or conflict with this rule.
Further, the committees' meetings were widely publicized throughout
the nectarine and peach industries and all interested persons were
invited to attend the meetings and participate in committee
deliberations. Like all committee meetings, the August 31, 2006,
meetings were public meetings and all entities, both large and small,
were able to express their views on these issues. Finally, interested
persons are invited to submit information on the regulatory and
informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at the
following website: http://www.ams.usda.gov/fv/moab.html. Any questions
about the compliance guide should be sent to Jay Guerber at the
previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
This rule invites comments on changes to the administrative rules
and regulations currently prescribed under the marketing orders for
California fresh nectarines and peaches. Any comments received will be
considered prior to finalization of this rule.
After consideration of all relevant matters presented, the
information and recommendations submitted by the committees, and other
information, it is found that this interim final rule, as hereinafter
set forth, will tend to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined, upon
good cause, that it is impracticable, unnecessary, and contrary to the
public interest to give preliminary notice prior to putting this rule
into effect, and that good cause exists for not postponing the
effective date of this rule until 30 days after publication in the
Federal Register because: (1) This rule should be implemented as soon
as possible, since amendments to the orders will be effective on
January 1, 2007, and conforming changes to the administrative rules and
regulations should be in place at the same time; (2) the committees met
and unanimously recommended these changes at public meetings, and
interested persons had the opportunity to provide input at those
meetings; and (3) the rule provides a 60-day comment period, and any
written comments timely received will be considered prior to any
finalization of this interim final rule.
List of Subjects
7 CFR Part 916
Marketing agreements, Nectarines, Reporting and recordkeeping
requirements.
7 CFR Part 917
Marketing agreements, Peaches, Pears, Reporting and recordkeeping
requirements.
0
For the reasons set forth in the preamble, 7 CFR parts 916 and 917 are
amended as follows:
0
1. The authority citation for 7 CFR parts 916 and 917 continues to read
as follows:
Authority: 7 U.S.C. 601-674.
PART 916--NECTARINES GROWN IN CALIFORNIA
Sec. 916.102 [Removed]
0
2. Remove Sec. 916.102.
Sec. 916.105 [Removed]
0
3. Remove Sec. 916.105.
Sec. 916.107 [Removed]
0
4. Remove Sec. 916.107.
PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA
Sec. 917.110 [Amended]
0
5. Amend Sec. 917.110 by removing the words ``Control Committee,''
from the address at the end of the paragraph.
0
6. In Sec. 917.119, redesignate paragraphs (a) through (d) as (b)
through (e) and add a new paragraph (a) to read as follows:
Sec. 917.119 Procedure for nominating members for various Commodity
Committees; meetings.
(a) The nomination procedures that appear in paragraphs (b) and (c)
of this section apply to both the Peach and Pear Commodity Committees,
and the voting procedures that appear in paragraphs (d) and (e) of this
section apply only to the Pear Commodity Committee.
* * * * *
Sec. 916.120 [Removed]
0
7. Remove Sec. 917.120.
[[Page 78042]]
Dated: December 21, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E6-22234 Filed 12-27-06; 8:45 am]
BILLING CODE 3410-02-P