[Federal Register: December 28, 2006 (Volume 71, Number 249)]
[Rules and Regulations]
[Page 78042-78044]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28de06-3]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 916 and 917
[Docket No. AMS-FV-06-0190; FV07-916/917-2 IFR]
Nectarines and Peaches Grown in California; Temporary Suspension
of Provisions Regarding Continuance Referenda Under the Nectarine and
Peach Marketing Orders
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This rule temporarily suspends order provisions that require
continuance referenda to be conducted for the nectarine and peach
marketing orders during winter 2006-07. The suspensions will enable the
Department of Agriculture (USDA) to postpone conducting the continuance
referenda until the industry has had sufficient time to evaluate the
effects of recent amendments to the marketing orders. Temporary
suspension of the continuance referenda should also minimize confusion
during the upcoming committee nomination period, which overlaps with
the scheduled referenda period.
DATES: Effective December 29, 2006; comments must be received by
January 29, 2007.
ADDRESSES: Interested persons are invited to submit written comments
concerning this action. Comments must be sent to the Docket Clerk,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC
20250-0237; Fax: (202) 720-8938, 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 in 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 Order
Administration Branch, F&V, AMS, USDA, 1400 Independence Avenue, SW.,
STOP 0237, Washington, DC 20250-0237; Telephone: (202) 205-2830, 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.''
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 suspends the requirement that continuance
referenda be conducted during 2006-07. 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 date of the
entry of the ruling.
This action temporarily suspends the provisions in Sec. Sec.
916.64(e) and 917.61(e) of the orders, which specify when continuance
referenda should be conducted to determine whether growers favor
continuance of the orders. Temporary suspension of the provisions for
continuance referenda will provide growers with more time to evaluate
the effects of recent amendments to the orders before voting on
continuance of the marketing programs. Suspension of the referenda
requirements will also diminish the confusion likely to occur if the
referenda are held during upcoming committee nominations. These actions
were unanimously recommended by the Nectarine Administrative Committee
(NAC) and the Peach Commodity Committee (PCC) (committees) at their
August 31, 2006, meetings.
Nectarines
Section 916.64(e) of the nectarine marking order currently provides
that USDA shall conduct a continuance referendum between December 1 and
February 15 of every fourth fiscal period since winter 1974-75 to
ascertain whether continuance of the order is favored by nectarine
growers. A continuance referendum is, therefore, scheduled to be
conducted between December 1, 2006, and February 15, 2007.
Authorization to suspend the continuance referendum requirement is
provided in Sec. 916.64(b).
The NAC recommended that the provision requiring the winter 2006-07
continuance referendum be temporarily suspended to allow the industry
time to fully realize the impact of recent amendments to the marketing
order. Amendments to the order were approved by nectarine growers in a
referendum held in March 2006. The majority of the amendments will not
be implemented until January 1, 2007. The continuance referendum cycle
will resume as provided in Sec. 916.64(e) in the period between
December 1, 2010, and February 15, 2011. A referendum can be held in
the interim if deemed appropriate by USDA.
Among the recent amendments to the order are revisions to the NAC's
nomination procedures, which require a transition to mail balloting.
Ballots for the 2007-09 term of office must be mailed to growers in
January 2007. The NAC believes that receiving both the nomination
ballots and the continuance referenda ballots during this transitional
period would confuse growers, who would then be less likely to return
any of the ballots. The committees expect
[[Page 78043]]
that temporary suspension of the continuance referendum will minimize
confusion and maximize grower participation in both the committee
nominations and the continuance referendum. After this initial
transitional period, biennial committee nominations should take place
earlier in the year and are not expected to overlap with scheduled
continuance referendum periods.
Peaches
Section 917.61(e) of the peach marketing order currently provides
that USDA shall conduct a continuance referendum between December 1 and
February 15 of every fourth fiscal period since winter 1974-75 to
ascertain whether continuance of the order is favored by peach growers.
A continuance referendum is, therefore, scheduled to be conducted
between December 1, 2006 and February 15, 2007. Authorization to
suspend the continuance referendum requirement is provided in Sec.
917.61(b).
The PCC recommended that the provision requiring the winter 2006-07
continuance referendum be temporarily suspended to allow the industry
time to fully realize the impact of recent amendments to the marketing
order. Amendments to the order were approved by peach growers in a
referendum held in March 2006. The majority of the amendments will not
be implemented until January 1, 2007. The continuance referendum cycle
will resume as provided in Sec. 917.61(e) in the period between
December 1, 2010, and February 15, 2011. A referendum can be held in
the interim if deemed appropriate by USDA.
Section 917.61(e) also requires that USDA conduct continuance
referenda regarding the provisions of Part 917 pertaining to pears.
Although the provisions pertaining to pears are currently suspended,
the pear referenda are conducted concurrently with the peach and
nectarine continuance referenda. In order to stay synchronized with the
peach and nectarine referenda, the pear referendum will not be held
during the period between December 1, 2006, and February 15, 2007. The
pear continuance referendum cycle will resume as provided in Sec.
917.61(e) in the period between December 1, 2010, and February 15,
2011. A referendum can be held in the interim if deemed appropriate by
USDA.
Among the recent amendments to the order are revisions to the PCC's
nomination procedures, which require a transition to mail balloting.
Ballots for the 2007-09 term of office must be mailed to growers in
January 2007. The PCC believes that receiving both the nomination
ballots and the continuance referenda ballots during this transitional
period would confuse growers, who would then be less likely to return
any of the ballots. The committees expect that temporary suspension of
the continuance referendum will minimize confusion and maximize grower
participation in both the committee nominations and the continuance
referendum. After this initial transitional period, biennial committee
nominations should take place earlier in the year and are not expected
to overlap with scheduled continuance referendum periods.
Initial Regulatory Flexibility Act
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 the 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 handlers of nectarines and peaches who
are subject to regulation under the order and approximately 800 growers
of these fruits in the regulated area. Small agricultural service
firms, which include handlers, have been defined by the Small Business
Administration (13 CFR 121.201) as those having annual receipts of less
than $6,500,000, and small agricultural growers are defined as those
having annual receipts of less than $750,000. The 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 producers within the industry.
With an average grower price of $5.25 per container or container
equivalent, and a combined packout of nectarines and peaches of
approximately 38,776,500 containers, the value of the 2005 packout is
estimated to be $203,576,600. Dividing this total estimated grower
revenue figure by the estimated number of growers (800) yields an
estimated average revenue per grower of about $254,471 from the sales
of peaches and nectarines.
This rule temporarily suspends the provisions in Sec. Sec.
916.64(e) and 917.61(e), which specify the time period in which
continuance referenda should be conducted to determine if growers favor
continuance of the nectarine and peach marketing orders, respectively.
Pursuant to these provisions, the next continuance referenda are
scheduled for the period between December 1, 2006, and February 15,
2007. Authorization to suspend these provisions is provided in
Sec. Sec. 916.64(b) and 917.61(b) of the orders.
The committees recommended suspension of these provisions to allow
the industry time to evaluate the effects of recent amendments to the
marketing orders before voting on continuation of the programs. For
instance, several of the amendments were intended to increase industry
participation in program activities. Others were intended to modernize
the marketing orders' operations to better reflect current industry
business practices. Postponing the referenda will give the industry
time to operate under the amended orders and determine whether the
intended goals were met before the next continuance referenda. The
continuance referenda cycles as provided in Sec. Sec. 916.64(e) and
917.61(e) will resume in the period between December 1, 2010, and
February 15, 2011. Referenda can be held in the interim if deemed
appropriate by USDA.
[[Page 78044]]
This action is also expected to decrease the confusion likely to
occur if the continuance referenda scheduled for the period between
December 1, 2006, and February 15, 2007, are held as scheduled.
Implementation of the order amendments requires a transition to mail
balloting for NAC and PCC nominations in January 2007, which would
overlap with the scheduled continuance referenda. Growers could each
receive as many as four ballots during the overlapping nominations and
referenda periods if they produce both nectarines and peaches. The
committees are concerned that the flood of ballots could confuse
growers and discourage them from participating fully. Therefore, the
committees recommended that the continuance referenda be postponed.
After this initial transitional period the biennial committee
nominations should take place earlier in the year and are not expected
to overlap with scheduled continuance referenda periods.
One alternative to this action would be to conduct the referenda as
scheduled. However, the committees believe that growers need additional
time to evaluate the effectiveness of the amendments that were adopted
before voting on continuation of the marketing programs. Postponing the
continuance referenda until a later time is expected to provide a
better assessment of industry support for the orders. Further, if the
continuance referenda were not postponed the referenda period would
overlap with the committee nominations period. Voter confusion would
likely occur due to the receipt of multiple ballots during that time.
The committees were concerned that the confusion would lead to
decreased grower participation in both the referenda and the committee
nominations. Therefore, USDA has determined that the provisions
requiring that continuance referenda be conducted during the period
between December 1, 2006, and February 15, 2007, should be temporarily
suspended.
This rule will not impose any additional reporting or recordkeeping
requirements on either small or large nectarine or peach handlers. As
with all Federal marketing order programs, reports and forms are
periodically reviewed to reduce information requirements and
duplication by industry and public sector agencies.
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 industry 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 this issue.
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: 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 the temporary suspension of
provisions regarding the continuance referenda under the California
nectarine and peach marketing orders. Any comments received will be
considered prior to finalization of this rule.
After consideration of all relevant material presented, including
the committees' recommendations, and other information, it is found
that the order provisions suspended by this interim final rule, as
hereinafter set forth, do not tend to effectuate the declared policy of
the Act for the 2006-07 period.
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
the nectarine and peach marketing order continuance referenda periods
are scheduled to commence December 1, 2006; (2) the rule relaxes
referenda requirements for the nectarine and peach industries; (3) the
committees discussed this issue at public meetings and interested
parties had opportunities to provide input at those meetings; and (4)
the rule provides a 30-day comment period and any comments received
will be considered period to finalization of this 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. 916.64 [Amended]
0
2. In paragraph (e) of Sec. 916.64 Termination, the sentence ``The
Secretary shall conduct such referendum within the same period of every
fourth fiscal period thereafter.'' is temporarily suspended December 1,
2006, through February 15, 2007.
PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA
Sec. 917.61 [Amended]
0
3. In paragraph (e) of Sec. 917.61 Termination, the sentence ``The
Secretary shall conduct such a referendum within the same period of
every fourth fiscal period thereafter.'' is temporarily suspended
December 1, 2006, through February 15, 2007.
Dated: December 21, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E6-22236 Filed 12-27-06; 8:45 am]
BILLING CODE 3410-02-P