Nectarines and Peaches Grown in California; Revision of Regulations on Production Districts, Committee Representation, and Nomination Procedures, 13671-13674 [E7-5311]
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13671
Rules and Regulations
Federal Register
Vol. 72, No. 56
Friday, March 23, 2007
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
List of Subjects in 7 CFR Part 249
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
Aging, Community supported
agriculture programs, Elderly, Farmers,
Farmers’ markets, Food assistance
programs, Food donations, Grant
programs, Nutrition education, Public
assistance programs, Seniors, Social
programs.
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
Accordingly, 7 CFR part 249 is
amended to read as follows:
I
7 CFR Part 249
PART 249—SENIOR FARMERS’
MARKET NUTRITION PROGRAM
[FNS–2006–0046]
RIN 0584–AD35
Senior Farmers’ Market Nutrition
Program Regulations; Announcement
of Approval and Compliance Date,
With Technical Amendment
Food and Nutrition Service,
USDA.
ACTION: Final rule; announcement of
approval and compliance date, with
technical amendment.
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AGENCY:
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1. The authority citation for 7 CFR
part 249 continues to read as follows:
I
Authority: 7 U.S.C. 3007.
2. Section 249.27 is added to read as
follows:
I
§ 249.27
SUMMARY: The provisions of the final
rule entitled Senior Farmers? Market
Nutrition Program Regulations
published on December 12, 2006,
contained information collection
requirements that required approval by
the Office of Management and Budget
(OMB). This document announces the
approval date of the provisions
contained in the final rule and amends
the final rule to include the OMB
Control Number assigned to the
information collection burden.
DATES: Effective date: The technical
amendment to § 249.27 will become
effective on March 23, 2007.
Approval date: The information
collection requirements of §§ 249.1
through 249.26 of the rule published in
the Federal Register on December 12,
2006 (71 FR 74618), were approved by
OMB on January 5, 2007.
Compliance date: Compliance with
the provisions of the SFMNP Final Rule,
including the information collection
requirements, is required as of January
11, 2007.
FOR FURTHER INFORMATION CONTACT:
Debra Whitford or Donna Hines,
Supplemental Food Programs Division,
Food and Nutrition Service, USDA,
VerDate Aug<31>2005
3101 Park Center Drive, Room 528,
Alexandria, Virginia 22302, (703) 305–
2746, OR
Debbie.Whitford@fns.usda.gov, or
Donna.Hines@fns.usda.gov.
OMB Control Number.
The information collection
requirements for part 249 have been
reviewed and approved by the Office of
Management and Budget (OMB). The
OMB approval number is 0584–0541.
Dated: March 16, 2007.
George Braley,
Acting Administrator, Food and Nutrition
Service.
[FR Doc. E7–5330 Filed 3–22–07; 8:45 am]
BILLING CODE 3410–30–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 916 and 917
[Docket No. AMS–FV–06–0189; FV07–916/
917–1 FIR]
Nectarines and Peaches Grown in
California; Revision of Regulations on
Production Districts, Committee
Representation, and Nomination
Procedures
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
SUMMARY: The Department of
Agriculture (USDA) is adopting, as a
final rule, without change, an interim
final rule revising the administrative
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rules and regulations that define
production districts, allocate committee
membership, and specify nomination
procedures for the Nectarine
Administrative Committee (NAC) and
the Peach Commodity Committee (PCC)
(committees). The committees are
responsible for local administration of
the Federal marketing orders (orders) for
fresh nectarines and peaches grown in
California, respectively. This rule also
continues in effect the revision to the
committees’ mailing address. These
revisions are necessary to bring the
orders’ administrative rules and
regulations into conformance with the
recently amended order provisions.
DATES: Effective Date: April 23, 2007.
FOR FURTHER INFORMATION CONTACT:
Laurel May, Marketing Specialist,
Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington,
DC 20250–0237; Telephone: (202) 720–
2491, Fax: (202) 720–8938, or E-mail:
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, both as amended (7 CFR
parts 916 and 917), regulating the
handling of nectarines and peaches
grown in California, respectively,
hereinafter referred to as the ‘‘orders.’’
The orders are effective under the
Agricultural Marketing Agreement Act
of 1937, as amended (7 U.S.C. 601–674),
hereinafter referred to as the ‘‘Act.’’
USDA is issuing this rule in
conformance with Executive Order
12866.
This rule has been reviewed under
Executive Order 12988, Civil Justice
Reform. This rule is not intended to
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have retroactive effect. This rule will
not preempt any State or local laws,
regulations, or policies, unless they
present an irreconcilable conflict with
this rule.
The Act provides that administrative
proceedings must be exhausted before
parties may file suit in court. Under
section 608c(15)(A) of the Act, any
handler subject to an order may file
with USDA a petition stating that the
order, any provision of the order, or any
obligation imposed in connection with
the order is not in accordance with law
and request a modification of the order
or to be exempted therefrom. A handler
is afforded the opportunity for a hearing
on the petition. After the hearing, USDA
would rule on the petition. The Act
provides that the district court of the
United States in any district in which
the handler is an inhabitant, or has his
or her principal place of business, has
jurisdiction to review USDA’s ruling on
the petition, provided an action is filed
not later than 20 days after the date of
the entry of the ruling.
This rule continues in effect the
action that removed or revised obsolete
language in the orders’ administrative
rules and regulations pertaining to the
alignment of production districts; the
allocation of committee membership;
and the nomination processes for NAC,
Shipper’s Advisory Committee, PCC,
and Control Committee members. This
rule also continues in effect to change
the PCC’s business address by removing
reference to the Control Committee in
order to reflect current committee
operations. These changes are needed to
bring the orders’ administrative rules
and regulations into conformity with
amendments to the orders’ provisions
recently approved by nectarine and
peach growers. These changes were
unanimously recommended by the
committees at their meetings on August
31, 2006.
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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 § 916.12. In
addition, § 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
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18:36 Mar 22, 2007
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NAC were reflected in §§ 916.105 and
916.107 of the order’s administrative
rules and regulations.
A final rule amending §§ 916.12 and
916.20 of the nectarine order was
published in the Federal Register on
July 21, 2006 (71 FR 41345). The
amendments, which became effective on
January 1, 2007, redefined the nectarine
production districts, increased the size
of the NAC from eight to thirteen
members, and reallocated committee
membership among the new districts.
After January 1, 2007, §§ 916.105 and
916.107 no longer reflected the district
boundaries and committee membership
allocation as defined in the amended
order. Therefore, the NAC
recommended removing the obsolete
sections when the amendments became
effective. This rule continues in effect
the action that removed those sections.
Any subsequent changes to the
production districts and reallocation of
committee membership among new
districts will be accomplished by notice
and comment rulemaking as
appropriate.
Peach Commodity Committee
Section 917.14 of the peach marketing
order establishes the peach production
districts into which the State of
California has been divided. Section
917.20 establishes the size of the PCC
and § 917.22 prescribes the allocation of
PCC membership to the districts defined
in § 917.14. Authority is provided in
§ 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 § 917.120 of the
order’s administrative rules and
regulations.
A final rule amending §§ 917.14 and
917.22 of the peach order was published
in the Federal Register on July 21, 2006
(71 FR 41345). The amendments, which
became effective on January 1, 2007,
redefined the peach production districts
and reallocated committee membership
among the new districts. After January
1, 2007, § 917.120 no longer reflected
the district boundaries and committee
membership allocation as defined in the
amended order provisions. Therefore,
the PCC recommended removing the
obsolete section when the amendments
became effective. This rule continues in
effect the action that removed that
section. Any subsequent changes to the
production districts and reallocation of
committee membership among new
districts will be accomplished by notice
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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 § 916.30 for the NAC to
recommend and adopt rules and
regulations regarding the nominations
procedures. Furthermore, § 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 § 916.22 was
published in the Federal Register on
July 21, 2006. The amendment allows
the NAC to conduct nominations
through mail balloting. The final rule
also removed § 916.37 regarding the
Shippers’ Advisory Committee, which
has not been active for over 30 years and
is no longer a necessary component of
the nectarine marketing program. These
changes became effective on January 1,
2007.
After January 1, 2007, § 916.102 was
no longer consistent with the amended
NAC nomination process, and
references to the Shippers’ Advisory
Committee were obsolete. Therefore, the
NAC recommended that the section be
removed from the nectarine order’s
administrative rules and regulations.
This rule continues the action that
removed § 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 § 917.35 for the PCC to
recommend and adopt rules and
regulations regarding the nomination
procedures. Section 917.119 was added
to the order’s administrative rules and
regulations to provide specific details
regarding the nomination meeting
procedures for the PCC and the Pear
Commodity Committee. Order
provisions pertaining to the Pear
Commodity Committee have been
suspended since 1994, and the Pear
Commodity Committee is not currently
active.
A final rule published in the Federal
Register on July 21, 2006, amended
§ 917.24 to allow the PCC to conduct
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nominations through mail balloting. The
amendment became effective on January
1, 2007. After that date, § 917.119,
which contains language pertaining to
the nomination processes for both the
Peach and Pear Commodity Committees,
is inconsistent with the amendments
that allow the PCC to conduct
nominations through mail balloting.
Therefore, the PCC recommended
revising the section to specify which
language therein pertains to each
commodity committee’s nomination
procedures. This rule continues in effect
the action that revises § 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.
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Committee Business Address
The Control Committee, doing
business as the California Tree Fruit
Agreement (CTFA), has historically
functioned as the joint administrative
body for the commodity committees
under Part 917. The Control Committee,
or CTFA, has been the designated
recipient of all the handlers’ reports and
other business communications. Section
917.110 provided the business address
for the Control Committee.
The final rule published in the
Federal Register on July 21, 2006,
mentioned above, included
amendments to § 917.18 that allow the
duties of the Control Committee to shift
to the remaining commodity committee
when order provisions pertaining to one
commodity committee are terminated or
suspended. The provisions pertaining to
the Pear Commodity Committee have
been suspended since 1994. Therefore,
when the amendments became effective
on January 1, 2007, the duties of the
Control Committee shifted to the PCC,
which will continue to conduct
business as the CTFA. In order to
conform to the amended order
provisions, the PCC recommended
revising the address listed in § 917.110
by eliminating the name of the Control
Committee from the CTFA’s business
address. This rule continues in effect to
make that conforming change.
Final Regulatory Flexibility Analysis
Pursuant to requirements set forth in
the Regulatory Flexibility Act (RFA), the
Agricultural Marketing Service (AMS)
has considered the economic impact of
this action on small entities.
Accordingly, AMS has prepared this
final regulatory flexibility analysis.
The purpose of the RFA is to fit
regulatory actions to the scale of
business subject to such actions in order
that small businesses will not be unduly
or disproportionately burdened.
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Marketing orders issued pursuant to the
Act, and rules issued thereunder, are
unique in that they are brought about
through group action of essentially
small entities acting on their own
behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 150
California nectarine and peach handlers
subject to regulation under the orders
and about 800 growers of these fruits in
the regulated area. Small agricultural
service firms, which include handlers,
are defined by the Small Business
Administration (13 CFR 121.201) as
those having annual receipts of less than
$6,500,000. Small agricultural growers
are defined as those having annual
receipts of less than $750,000. A
majority of these handlers and growers
may be classified as small entities.
The committees’ staff has estimated
that there are fewer than 26 handlers in
the industry who could be defined as
other than small entities. For the 2005
season, the committees’ staff estimated
that the average handler price received
was $10.00 per container or container
equivalent of nectarines or peaches. A
handler would have to ship at least
650,000 containers to have annual
receipts of $6,500,000. Given data on
shipments maintained by the
committees’ staff and the average
handler price received during the 2005
season, the committees’ staff estimates
that small handlers represent
approximately 86 percent of all the
handlers within the industry.
The committees’ staff has also
estimated that fewer than 10 percent of
the growers in the industry could be
defined as other than small entities. For
the 2005 season, the committees’ staff
estimated the average grower price
received was $5.25 per container or
container equivalent for nectarines and
peaches. A grower would have to
produce at least 142,858 containers of
nectarines and peaches to have annual
receipts of $750,000. Given data
maintained by the committees’ staff and
the average grower price received
during the 2005 season, the committees’
staff estimates that small growers
represent more than 90 percent of the
growers within the industry.
With an average grower price of $5.25
per container or container equivalent,
and a combined packout of nectarines
and peaches of approximately
38,776,500 containers, the value of the
2005 packout is estimated to be
$203,576,600. Dividing this total
estimated grower revenue figure by the
estimated number of growers (800)
yields an average revenue per grower of
about $254,471 from the sales of
peaches and nectarines.
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13673
Amendments to the orders were
recently approved by nectarine and
peach growers. The amendments were
implemented in a final rule that was
published in the Federal Register on
July 21, 2006, and most became effective
on January 1, 2007.
This rule continues in effect the
action that removed or revised certain
sections of the orders’ administrative
rules and regulations to conform to the
amended order provisions.
Sections 916.105 and 916.107 of the
nectarine order, and 917.120 of the
peach order, which specify production
district boundaries and committee
membership allocations, are no longer
applicable because the orders’
provisions have been updated to
include revised production districts and
committee member apportionment.
These obsolete sections have been
removed. Any subsequent changes to
the production districts and reallocation
of committee membership among new
districts will be accomplished by notice
and comment rulemaking as
appropriate.
Section 916.102 of the nectarine
marketing order, which specifies
nomination meeting procedures for the
NAC and the Shippers’ Advisory
Committee, has been removed because
the nectarine order has been amended to
allow mail balloting for NAC
membership, and because the Shippers’
Advisory Committee has been
eliminated. Section 917.119 of the
peach marketing order, which specifies
nomination meeting procedures for the
PCC and Pear Commodity Committee,
has been revised because the order
provisions pertaining to the PCC have
been amended to allow mail balloting.
A new paragraph was added to that
section to clarify which procedures
pertain to both the Peach and Pear
Commodity Committees, and which
pertain only to the Pear Commodity
Committee.
Finally, § 917.110 of the peach
marketing order was revised by
removing the Control Committee’s name
from the address to which industry
reports and business correspondence
should be addressed to conform with
recent amendments to the order.
These changes are necessary to bring
the orders’ rules and regulations into
conformance with the amended order
provisions.
This rule will not impose any
additional reporting or recordkeeping
requirements on either small or large
handlers. As with all Federal marketing
order programs, reports and forms are
periodically reviewed to reduce
information requirements and
duplication by industry and public
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sector agencies. In addition, as noted in
the initial regulatory flexibility analysis,
USDA has not identified any relevant
Federal rules that duplicate, overlap, or
conflict with this rule.
Further, the committees’ meetings
were widely publicized throughout the
nectarine and peach industries and all
interested persons were invited to
attend the meetings and participate in
committee deliberations. Like all
committee meetings, the August 31,
2006, meetings were public meetings
and all entities, both large and small,
were able to express their views on
these issues.
An interim final rule concerning this
action was published in the Federal
Register on December 28, 2006. The rule
was posted on CTFA’s website. In
addition, the rule was made available
through the Internet by USDA and the
Office of the Federal Register. That rule
provided for a 60-day comment period,
which ended on February 26, 2007. One
comment supporting the actions was
received. The commenter stated that the
actions accurately reflected the
industries’ desire to bring the orders’
rules and regulations into conformance
with the amended order provisions.
The AMS is committed to complying
with the E-Government Act, to promote
the use of the Internet and other
information technologies to provide
increased opportunities for citizen
access to Government information and
services, and for other purposes.
A small business guide on complying
with fruit, vegetable, and specialty crop
marketing agreements and orders may
be viewed at the following Web site:
https://www.ams.usda.gov/fv/moab.html.
Any questions about the compliance
guide should be sent to Jay Guerber at
the previously mentioned address in the
FOR FURTHER INFORMATION CONTACT
section.
After consideration of all relevant
matters presented, the information and
recommendations submitted by the
committees, and other information, it is
found that finalizing the interim final
rule, without change, as published in
the Federal Register (71 FR 78038,
December 28, 2006), will tend to
effectuate the declared policy of the Act.
List of Subjects
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7 CFR Part 916
Marketing agreements, Nectarines,
Reporting and recordkeeping
requirements.
7 CFR Part 917
Marketing agreements, Peaches, Pears,
Reporting and recordkeeping
requirements.
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PART 916—NECTARINES GROWN IN
CALIFORNIA
PART 917—FRESH PEARS AND
PEACHES GROWN IN CALIFORNIA
Accordingly, the interim final rule
amending 7 CFR parts 916 and 917,
which was published at 71 FR 78038 on
December 28, 2006, is adopted as a final
rule without change.
I
Dated: March 19, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing
Service.
[FR Doc. E7–5311 Filed 3–22–07; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 930
[Docket No. AMS–FV–06–0187; FV07–930–
1 FR]
Tart Cherries Grown in the States of
Michigan, et al.; Final Free and
Restricted Percentages for the 2006–
2007 Crop Year for Tart Cherries
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
SUMMARY: This rule establishes final free
and restricted percentages for the 2006–
2007 crop year. The percentages are 55
percent free and 45 percent restricted
and will establish the proportion of
cherries from the 2006 crop which may
be handled in commercial outlets. The
percentages are intended to stabilize
supplies and prices, and strengthen
market conditions. The percentages
were recommended by the Cherry
Industry Administrative Board (Board),
the body that locally administers the
marketing order. The marketing order
regulates the handling of tart cherries
grown in the States of Michigan, New
York, Pennsylvania, Oregon, Utah,
Washington, and Wisconsin.
DATES: Effective Date: March 26, 2007.
This final rule applies to all 2006–2007
crop year restricted cherries until they
are properly disposed of in accordance
with marketing order requirements.
FOR FURTHER INFORMATION CONTACT:
Patricia A. Petrella or Kenneth G.
Johnson, Marketing Order
Administration Branch, Fruit and
Vegetable Programs, AMS, USDA, Unit
155, 4700 River Road, Riverdale, MD
20737; Telephone: (301) 734–5243, or
Fax: (301) 734–5275, or E-mail at
Patricia.Petrella@usda.gov or
Kenneth.Johnson@usda.gov.
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Small businesses may request
information on complying with this
regulation, or obtain a guide on
complying with fruit, vegetable, and
specialty crop marketing agreements
and orders 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.
This final
rule is issued under Marketing
Agreement and Order No. 930 (7 CFR
part 930), regulating the handling of tart
cherries produced in the States of
Michigan, New York, Pennsylvania,
Oregon, Utah, Washington, and
Wisconsin, hereinafter referred to as the
‘‘order.’’ The order is 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
(Department) is issuing this rule in
conformance with Executive Order
12866.
This final rule has been reviewed
under Executive Order 12988, Civil
Justice Reform. Under the marketing
order provisions now in effect, final free
and restricted percentages may be
established for tart cherries handled by
handlers during the crop year. This rule
establishes final free and restricted
percentages for tart cherries for the
2006–2007 crop year, beginning July 1,
2006, through June 30, 2007. 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 the Secretary 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 exempt therefrom. Such
handler is afforded the opportunity for
a hearing on the petition. After the
hearing, the Secretary 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 in
equity to review the Secretary’s ruling
on the petition, provided an action is
filed not later than 20 days after the date
of the entry of the ruling.
SUPPLEMENTARY INFORMATION:
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]]>Agencies
[Federal Register Volume 72, Number 56 (Friday, March 23, 2007)]
[Rules and Regulations]
[Pages 13671-13674]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-5311]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 916 and 917
[Docket No. AMS-FV-06-0189; FV07-916/917-1 FIR]
Nectarines and Peaches Grown in California; Revision of
Regulations on Production Districts, Committee Representation, and
Nomination Procedures
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Agriculture (USDA) is adopting, as a final
rule, without change, an interim final rule revising the administrative
rules and regulations that define production districts, allocate
committee membership, and specify nomination procedures for the
Nectarine Administrative Committee (NAC) and the Peach Commodity
Committee (PCC) (committees). The committees are responsible for local
administration of the Federal marketing orders (orders) for fresh
nectarines and peaches grown in California, respectively. This rule
also continues in effect the revision to the committees' mailing
address. These revisions are necessary to bring the orders'
administrative rules and regulations into conformance with the recently
amended order provisions.
DATES: Effective Date: April 23, 2007.
FOR FURTHER INFORMATION CONTACT: Laurel May, Marketing Specialist,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC
20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or E-mail:
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, both as amended (7 CFR parts 916 and 917), regulating
the handling of nectarines and peaches grown in California,
respectively, hereinafter referred to as the ``orders.'' The orders are
effective under the Agricultural Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.''
USDA is issuing this rule in conformance with Executive Order
12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to
[[Page 13672]]
have retroactive effect. This rule will not preempt any State or local
laws, regulations, or policies, unless they present an irreconcilable
conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with USDA a petition
stating that the order, any provision of the order, or any obligation
imposed in connection with the order is not in accordance with law and
request a modification of the order or to be exempted therefrom. A
handler is afforded the opportunity for a hearing on the petition.
After the hearing, USDA would rule on the petition. The Act provides
that the district court of the United States in any district in which
the handler is an inhabitant, or has his or her principal place of
business, has jurisdiction to review USDA's ruling on the petition,
provided an action is filed not later than 20 days after the date of
the entry of the ruling.
This rule continues in effect the action that removed or revised
obsolete language in the orders' administrative rules and regulations
pertaining to the alignment of production districts; the allocation of
committee membership; and the nomination processes for NAC, Shipper's
Advisory Committee, PCC, and Control Committee members. This rule also
continues in effect to change the PCC's business address by removing
reference to the Control Committee in order to reflect current
committee operations. These changes are needed to bring the orders'
administrative rules and regulations into conformity with amendments to
the orders' provisions recently approved by nectarine and peach
growers. These changes were unanimously recommended by the committees
at their meetings on August 31, 2006.
Production Districts and Committee Membership Allocation
Nectarine Administrative Committee
Section 916.12 of the nectarine order establishes the nectarine
production districts into which the state of California has been
divided. Section 916.20 establishes the size of the NAC and the
allocation of NAC membership to the districts defined in Sec. 916.12.
In addition, Sec. 916.31 provides authority for the NAC to recommend
changes to district boundaries and to reapportion committee
representation to reflect shifts in production within the state as
necessary. The changes to district boundaries and membership
reapportionment recommended by the NAC were reflected in Sec. Sec.
916.105 and 916.107 of the order's administrative rules and
regulations.
A final rule amending Sec. Sec. 916.12 and 916.20 of the nectarine
order was published in the Federal Register on July 21, 2006 (71 FR
41345). The amendments, which became effective on January 1, 2007,
redefined the nectarine production districts, increased the size of the
NAC from eight to thirteen members, and reallocated committee
membership among the new districts. After January 1, 2007, Sec. Sec.
916.105 and 916.107 no longer reflected the district boundaries and
committee membership allocation as defined in the amended order.
Therefore, the NAC recommended removing the obsolete sections when the
amendments became effective. This rule continues in effect the action
that removed those sections. Any subsequent changes to the production
districts and reallocation of committee membership among new districts
will be accomplished by notice and comment rulemaking as appropriate.
Peach Commodity Committee
Section 917.14 of the peach marketing order establishes the peach
production districts into which the State of California has been
divided. Section 917.20 establishes the size of the PCC and Sec.
917.22 prescribes the allocation of PCC membership to the districts
defined in Sec. 917.14. Authority is provided in Sec. 917.35 for the
PCC to recommend changes to district boundaries and to reapportion
committee representation to reflect shifts in production within the
state as necessary. The changes to district boundaries and membership
reapportionment recommended by the PCC are reflected in Sec. 917.120
of the order's administrative rules and regulations.
A final rule amending Sec. Sec. 917.14 and 917.22 of the peach
order was published in the Federal Register on July 21, 2006 (71 FR
41345). The amendments, which became effective on January 1, 2007,
redefined the peach production districts and reallocated committee
membership among the new districts. After January 1, 2007, Sec.
917.120 no longer reflected the district boundaries and committee
membership allocation as defined in the amended order provisions.
Therefore, the PCC recommended removing the obsolete section when the
amendments became effective. This rule continues in effect the action
that removed that section. Any subsequent changes to the production
districts and reallocation of committee membership among new districts
will be accomplished by notice and comment rulemaking as appropriate.
Committee Nomination Processes
Nectarine Administrative Committee
Section 916.22 of the nectarine marketing order specifies
nomination procedures for members and alternate members of the NAC.
Authority is provided in Sec. 916.30 for the NAC to recommend and
adopt rules and regulations regarding the nominations procedures.
Furthermore, Sec. 916.37 establishes the nectarine Shippers' Advisory
Committee and authorizes the NAC to prescribe nominations procedures
for that committee. Section 916.102 was added to the order's
administrative rules and regulations to provide specific details
regarding the nomination meeting procedures for the NAC and the
Shippers' Advisory Committee.
A final rule amending Sec. 916.22 was published in the Federal
Register on July 21, 2006. The amendment allows the NAC to conduct
nominations through mail balloting. The final rule also removed Sec.
916.37 regarding the Shippers' Advisory Committee, which has not been
active for over 30 years and is no longer a necessary component of the
nectarine marketing program. These changes became effective on January
1, 2007.
After January 1, 2007, Sec. 916.102 was no longer consistent with
the amended NAC nomination process, and references to the Shippers'
Advisory Committee were obsolete. Therefore, the NAC recommended that
the section be removed from the nectarine order's administrative rules
and regulations. This rule continues the action that removed Sec.
916.102.
Peach Commodity Committee
Section 917.24 of the peach marketing order specifies the
nomination procedures for members and alternate members of the PCC.
Authority is provided in Sec. 917.35 for the PCC to recommend and
adopt rules and regulations regarding the nomination procedures.
Section 917.119 was added to the order's administrative rules and
regulations to provide specific details regarding the nomination
meeting procedures for the PCC and the Pear Commodity Committee. Order
provisions pertaining to the Pear Commodity Committee have been
suspended since 1994, and the Pear Commodity Committee is not currently
active.
A final rule published in the Federal Register on July 21, 2006,
amended Sec. 917.24 to allow the PCC to conduct
[[Page 13673]]
nominations through mail balloting. The amendment became effective on
January 1, 2007. After that date, Sec. 917.119, which contains
language pertaining to the nomination processes for both the Peach and
Pear Commodity Committees, is inconsistent with the amendments that
allow the PCC to conduct nominations through mail balloting. Therefore,
the PCC recommended revising the section to specify which language
therein pertains to each commodity committee's nomination procedures.
This rule continues in effect the action that revises Sec. 917.119 to
include a new paragraph that specifies which procedures apply to both
the Peach and Pear Commodity Committees, and which apply only to Pears.
Committee Business Address
The Control Committee, doing business as the California Tree Fruit
Agreement (CTFA), has historically functioned as the joint
administrative body for the commodity committees under Part 917. The
Control Committee, or CTFA, has been the designated recipient of all
the handlers' reports and other business communications. Section
917.110 provided the business address for the Control Committee.
The final rule published in the Federal Register on July 21, 2006,
mentioned above, included amendments to Sec. 917.18 that allow the
duties of the Control Committee to shift to the remaining commodity
committee when order provisions pertaining to one commodity committee
are terminated or suspended. The provisions pertaining to the Pear
Commodity Committee have been suspended since 1994. Therefore, when the
amendments became effective on January 1, 2007, the duties of the
Control Committee shifted to the PCC, which will continue to conduct
business as the CTFA. In order to conform to the amended order
provisions, the PCC recommended revising the address listed in Sec.
917.110 by eliminating the name of the Control Committee from the
CTFA's business address. This rule continues in effect to make that
conforming change.
Final Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this action on small entities. Accordingly, AMS has
prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 150 California nectarine and peach handlers
subject to regulation under the orders and about 800 growers of these
fruits in the regulated area. Small agricultural service firms, which
include handlers, are defined by the Small Business Administration (13
CFR 121.201) as those having annual receipts of less than $6,500,000.
Small agricultural growers are defined as those having annual receipts
of less than $750,000. A majority of these handlers and growers may be
classified as small entities.
The committees' staff has estimated that there are fewer than 26
handlers in the industry who could be defined as other than small
entities. For the 2005 season, the committees' staff estimated that the
average handler price received was $10.00 per container or container
equivalent of nectarines or peaches. A handler would have to ship at
least 650,000 containers to have annual receipts of $6,500,000. Given
data on shipments maintained by the committees' staff and the average
handler price received during the 2005 season, the committees' staff
estimates that small handlers represent approximately 86 percent of all
the handlers within the industry.
The committees' staff has also estimated that fewer than 10 percent
of the growers in the industry could be defined as other than small
entities. For the 2005 season, the committees' staff estimated the
average grower price received was $5.25 per container or container
equivalent for nectarines and peaches. A grower would have to produce
at least 142,858 containers of nectarines and peaches to have annual
receipts of $750,000. Given data maintained by the committees' staff
and the average grower price received during the 2005 season, the
committees' staff estimates that small growers represent more than 90
percent of the growers within the industry.
With an average grower price of $5.25 per container or container
equivalent, and a combined packout of nectarines and peaches of
approximately 38,776,500 containers, the value of the 2005 packout is
estimated to be $203,576,600. Dividing this total estimated grower
revenue figure by the estimated number of growers (800) yields an
average revenue per grower of about $254,471 from the sales of peaches
and nectarines.
Amendments to the orders were recently approved by nectarine and
peach growers. The amendments were implemented in a final rule that was
published in the Federal Register on July 21, 2006, and most became
effective on January 1, 2007.
This rule continues in effect the action that removed or revised
certain sections of the orders' administrative rules and regulations to
conform to the amended order provisions.
Sections 916.105 and 916.107 of the nectarine order, and 917.120 of
the peach order, which specify production district boundaries and
committee membership allocations, are no longer applicable because the
orders' provisions have been updated to include revised production
districts and committee member apportionment. These obsolete sections
have been removed. Any subsequent changes to the production districts
and reallocation of committee membership among new districts will be
accomplished by notice and comment rulemaking as appropriate.
Section 916.102 of the nectarine marketing order, which specifies
nomination meeting procedures for the NAC and the Shippers' Advisory
Committee, has been removed because the nectarine order has been
amended to allow mail balloting for NAC membership, and because the
Shippers' Advisory Committee has been eliminated. Section 917.119 of
the peach marketing order, which specifies nomination meeting
procedures for the PCC and Pear Commodity Committee, has been revised
because the order provisions pertaining to the PCC have been amended to
allow mail balloting. A new paragraph was added to that section to
clarify which procedures pertain to both the Peach and Pear Commodity
Committees, and which pertain only to the Pear Commodity Committee.
Finally, Sec. 917.110 of the peach marketing order was revised by
removing the Control Committee's name from the address to which
industry reports and business correspondence should be addressed to
conform with recent amendments to the order.
These changes are necessary to bring the orders' rules and
regulations into conformance with the amended order provisions.
This rule will not impose any additional reporting or recordkeeping
requirements on either small or large handlers. As with all Federal
marketing order programs, reports and forms are periodically reviewed
to reduce information requirements and duplication by industry and
public
[[Page 13674]]
sector agencies. In addition, as noted in the initial regulatory
flexibility analysis, USDA has not identified any relevant Federal
rules that duplicate, overlap, or conflict with this rule.
Further, the committees' meetings were widely publicized throughout
the nectarine and peach industries and all interested persons were
invited to attend the meetings and participate in committee
deliberations. Like all committee meetings, the August 31, 2006,
meetings were public meetings and all entities, both large and small,
were able to express their views on these issues.
An interim final rule concerning this action was published in the
Federal Register on December 28, 2006. The rule was posted on CTFA's
website. In addition, the rule was made available through the Internet
by USDA and the Office of the Federal Register. That rule provided for
a 60-day comment period, which ended on February 26, 2007. One comment
supporting the actions was received. The commenter stated that the
actions accurately reflected the industries' desire to bring the
orders' rules and regulations into conformance with the amended order
provisions.
The AMS is committed to complying with the E-Government Act, to
promote the use of the Internet and other information technologies to
provide increased opportunities for citizen access to Government
information and services, and for other purposes.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at the
following Web site: https://www.ams.usda.gov/fv/moab.html. Any questions
about the compliance guide should be sent to Jay Guerber at the
previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
After consideration of all relevant matters presented, the
information and recommendations submitted by the committees, and other
information, it is found that finalizing the interim final rule,
without change, as published in the Federal Register (71 FR 78038,
December 28, 2006), will tend to effectuate the declared policy of the
Act.
List of Subjects
7 CFR Part 916
Marketing agreements, Nectarines, Reporting and recordkeeping
requirements.
7 CFR Part 917
Marketing agreements, Peaches, Pears, Reporting and recordkeeping
requirements.
PART 916--NECTARINES GROWN IN CALIFORNIA
PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA
0
Accordingly, the interim final rule amending 7 CFR parts 916 and 917,
which was published at 71 FR 78038 on December 28, 2006, is adopted as
a final rule without change.
Dated: March 19, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E7-5311 Filed 3-22-07; 8:45 am]
BILLING CODE 3410-02-P
