[Federal Register Volume 76, Number 208 (Thursday, October 27, 2011)]
[Rules and Regulations]
[Pages 66602-66606]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-27286]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 916 and 917
[Doc. No. AMS-FV-11-0018; FV11-916/917-4 FR]
Nectarines and Fresh Peaches Grown in California; Termination of
Marketing Order 916 and the Peach Provisions of Marketing Order 917
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule, termination of order.
-----------------------------------------------------------------------
SUMMARY: This final rule terminates the Federal marketing orders
regulating the handling of nectarines and fresh peaches grown in
California (orders) and the rules and regulations issued thereunder.
The Department of Agriculture (USDA) has determined that these
marketing orders are no longer an effective marketing tool for the
handling of nectarines and fresh peaches grown in California and that
termination best serves the current needs of the industry while also
eliminating the costs associated with the operation of the marketing
orders.
DATES: Effective Date: October 28, 2011.
FOR FURTHER INFORMATION CONTACT: Jerry L. Simmons, Marketing
Specialist, or Kurt J. Kimmel, Regional Manager, California Marketing
Field Office, Marketing Order and Agreements Division, Fruit and
Vegetable Programs, AMS, USDA; Telephone: (559) 487-5901; Fax: (559)
487-5906; or Email: Jerry.Simmons@ams.usda.gov or
Kurt.Kimmel@ams.usda.gov.
Small businesses may request information on complying with this
regulation by contacting Laurel May, Marketing Order and Agreements
Division, 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 Email: Laurel.May@ams.usda.gov.
SUPPLEMENTARY INFORMATION: This action is governed by Section
608c(16)(A) of the Agricultural Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act'' and
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.''
USDA is issuing this rule in conformance with Executive Order
12866.
This final rule to terminate the orders has been reviewed under
Executive Order 12988, Civil Justice Reform. This rule is not intended
to have retroactive effect.
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 terminates Marketing Order 916--the nectarine order--and
the peach provisions of Marketing Order 917--the fresh pear and peach
order--as well as the pertinent rules and regulations issued
thereunder. USDA believes that termination of these programs is
appropriate because the programs are no longer favored by industry
growers.
The orders authorize regulation of the handling of nectarines and
fresh pears and peaches grown in California. Sections 916.64 and 917.61
of the orders require USDA to conduct continuance referenda among
growers of these fruits every four years to ascertain continuing
support for the orders and their programs. These sections further
require USDA to terminate the orders if it finds that the provisions of
the orders no longer tend to effectuate the declared policy of the Act.
Section 608c(16)(A) of the Act requires USDA to terminate or suspend
the operation of any order whenever the order or any provision thereof
obstructs or does not tend to effectuate the declared policy of the
Act. Finally, USDA is required to notify Congress of the intended
terminations not later than 60 days before the date the orders would be
terminated.
Continuance referenda were conducted among growers of California
nectarines and fresh pears and peaches in January and February 2011.
Less than two-thirds of participating growers, by number and production
volume, voted in favor of continuing the nectarine and peach orders. By
contrast, more than 94 percent of pear growers voted to continue the
pear order provisions.
[[Page 66603]]
Grower support for the programs was similar in the last referenda,
which were conducted in 2003. USDA conducted public listening sessions
following the referenda and found that the nectarine and peach orders
might continue to benefit the industries if modifications were made to
the programs. Subsequently, several revisions were made to the orders
and the handling regulations over the last several years. Continuance
referendum requirements were suspended for 2007 because the orders had
just been amended, and the industries wanted to operate the amended
orders for a period of time before voting again on continuance.
Nevertheless, the results of the most recent referenda, as well as
feedback from the industries over the last few years, suggest that the
nectarine and peach programs no longer meet industry needs and that the
benefits of such programs no longer outweigh costs to handlers and
growers. USDA believes that the referendum results and industry
feedback support termination of the programs.
As stated earlier, pear growers in the most recent referendum, as
well as in previous referenda, supported continuance of the pear order
provisions, which have been suspended since 1994 (59 FR 10055; March 3,
1994). USDA does not intend to terminate the pear order provisions at
this time. The remainder of this document pertains to the termination
of the nectarine and peach order provisions only.
The nectarine order has been in effect since 1958, and the peach
order since 1939. Operating under the management umbrella of the
California Tree Fruit Agreement (CTFA), the orders have provided the
California fresh tree fruit industries with authority for grade, size,
quality, maturity, pack, and container regulations, as well as the
authority for mandatory inspection. The orders also authorize
production research and marketing research and development projects, as
well as the necessary reporting, recordkeeping, and assessment
functions required for operation.
Based on the referendum results and other pertinent factors, USDA
suspended the orders' handling regulations on April 19, 2011 (76 FR
21615). The suspended handling regulations consist of minimum quality
and inspection requirements for nectarines and peaches marked with the
``California Well Matured'' label, which is available for use only by
handlers complying with prescribed quality and maturity requirements
under the orders. As well, all reporting and assessment requirements
were suspended.
Originally established to maintain the orderly marketing of
California tree fruit, the quality regulations under the order evolved
over the years to reflect industry trends. The ``California Well
Matured'' label was developed to define standards for premium quality
fruit harvested and packed at its peak to satisfy customer demands.
Working with the Federal and Federal-State Inspection Programs, the
Nectarine Administrative Committee and Peach Commodity Committee
(committees), which administer the day-to-day operations of the
programs, recommended variety-specific size and maturity standards that
were incorporated into the regulations. These standards helped ensure
that the industry marketed and shipped the highest quality fruit, which
in turn supported increased returns to growers and handlers. A
``utility grade'' was defined to allow for the movement of a certain
percentage of lesser quality fruit to markets where it could be sold
without undermining the industry's overall marketing goals.
Funded through assessments paid by handlers, the committees
sponsored production research programs to address grower needs such as
pesticide use and development of new fruit varieties. As well, post-
harvest handling concerns, such as container and pack configuration,
were addressed through committee-funded research. Assessment funds were
also used to fund market research and development projects, promoting
California tree fruit in both domestic and international markets.
In recent years, changes in the industry led the committees to
reduce the number of programs they supported through the orders.
Because many customers now establish their own quality standards, the
committees felt it was no longer essential to mandate inspection and
certification of packed fruit to marketing order standards. During the
last few years, only those handlers wishing to use the ``California
Well Matured'' label were required to obtain inspection and
certification. With the consolidation of many smaller farms, larger
companies have undertaken their own research and promotion programs,
thus minimizing the desirability of committee-funded generic programs.
The industries proposed several amendments to the orders, which
were effectuated in 2006 and 2007 (71 FR 41345; July 21, 2006). The
amendments modernized the orders to streamline administration of the
programs. The district boundaries within the regulated production areas
were redefined, and the committee structures and nomination procedures
were modified to provide greater opportunities for participation in
committee activities by industry members.
Despite USDA efforts to help refine the programs over the past
several years, growers have continued to express their belief that the
programs no longer meet their needs. These referendum results
demonstrate a lack of grower support needed to carry out the objectives
of the Act. Thus, it has been determined that the provisions of the
orders no longer tend to effectuate the declared policy of the Act and
should be terminated.
Specifically, part 916, regulating the handling of nectarines grown
in California is removed from the Code of Federal Regulations. In part
917, which regulates the handling of both pears and peaches, Sec. Sec.
916.8, 917.22, 917.150, 917.258, 917.259, 917.442, and 917.459, which
relate solely to peaches, are removed. Sec. Sec. 917.4, 917.5, 917.6,
917.15, 917.20, 917.24, 917.25, 917.26, 917.28, 917.29, 917.34, 917.35,
917.37, 917.100, 917.119, and 917.143 are revised to remove references
to peaches and to conform to removal of other sections. In some
sections of part 917, language relating to the regulation of pears is
currently suspended. Such suspensions are lifted to facilitate revision
of these sections. Finally, the remaining provisions and administrative
rules and regulations under part 917 are suspended indefinitely.
Final Regulatory Flexibility Analysis
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing
Service (AMS) has considered the economic impact of this rule 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 the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf.
There are approximately 97 California nectarine and peach handlers
subject to regulation under the orders covering nectarines and peaches
grown in California, and about 447 growers of these fruits in
California. Small agricultural service firms, which include handlers,
are defined by the Small Business Administration (SBA)
[[Page 66604]]
(13 CFR 121.201) as those having annual receipts of less than
$7,000,000, and 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.
For the 2010 marketing season, the committees' staff estimated that
the average handler price received was $10.50 per container or
container equivalent of nectarines or peaches. A handler would have to
ship at least 666,667 containers to have annual receipts of $7,000,000.
Given data on shipments maintained by the committees' staff and the
average handler price received during the 2010 season, the committees'
staff estimates that approximately 46 percent of handlers in the
industry would be considered small entities.
For the 2010 marketing season, the committees' staff estimated the
average grower price received was $5.50 per container or container
equivalent for nectarines and peaches. A grower would have to produce
at least 136,364 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 2010 season, the
committees' staff estimates that more than 80 percent of the growers
within the industry would be considered small entities.
This rule terminates the Federal marketing orders for nectarines
and peaches grown in California, and the rules and regulations issued
thereunder. USDA believes that the orders no longer meet the needs of
growers and handlers. The results of recent grower referenda and
experience with the industries support order terminations.
Sections 916.64 and 917.61 of the orders provide that USDA shall
terminate or suspend any or all provisions of the orders when a finding
is made that the orders do not tend to effectuate the declared policy
of the Act. Furthermore, Sec. 608c(16)(A) of the Act provides that
USDA shall terminate or suspend the operation of any order whenever the
order or provision thereof obstructs or does not tend to effectuate the
declared policy of the Act. An additional provision requires that
Congress be notified not later than 60 days before the date the orders
would be terminated.
Although marketing order requirements are applied to handlers, the
costs of such requirements are often passed on to growers. Termination
of the orders, and the resulting regulatory relaxation, would therefore
be expected to reduce costs for both handlers and growers.
As an alternative to this rule, AMS considered not terminating the
nectarine and peach order provisions. In that case, the industries
could have recommended further refinements to the orders and the
handling regulations in order to meet current marketing needs. However,
such changes made to the programs over the last several years have
failed to improve the programs enough to warrant continuing grower
support. Therefore, this alternative was rejected, and AMS recommended
that the programs be terminated.
In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C.
Chapter 35), the information collection requirements being terminated
were approved previously by the Office of Management and Budget (OMB)
and assigned OMB No. 0581-0189, Generic Fruit Crops. Termination of the
reporting requirements under the orders would reduce the reporting and
recordkeeping burden on California nectarine and peach handlers by
339.45 hours, and should further reduce industry expenses. Since
handlers would no longer be required to file forms with the Committee,
this final rule does not impose any additional reporting or
recordkeeping requirements on either small or large entities.
On February 25, 2011, AMS published a notice and request for
comments regarding the request for OMB approval of a new information
collection for nectarine and peach handlers (76 FR 10555). Five new
forms were proposed for the collection of industry information that
would have facilitated administration of the orders. Such information
collection would have increased the annual reporting burden for
industry handlers by 2,878.70 hours. The request for OMB approval of
the new information collection has been withdrawn.
As with all Federal marketing order programs, reports and forms are
periodically reviewed to reduce information requirements and
duplication by industry and public sector agencies.
In addition, USDA has not identified any relevant Federal rules
that duplicate, overlap or conflict with this rule.
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.
The grower referendum was well publicized in the production area,
and referendum ballots were mailed to all known growers of nectarines
and peaches in California. As well, all interested persons have been
invited to attend the committees' meetings over the years and
participate in discussions regarding the programs developed under the
orders.
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/MarketingOrdersSmallBusinessGuide. Any questions
about the compliance guide should be sent to Laurel May at the
previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
A proposed rule inviting comments regarding the termination of
nectarines and peaches was published in the Federal Register on June 2,
2011 (75 FR 31888). The rule was made available by the Committees to
handlers and producers. In addition the rule was made available through
the Internet by the USDA and the office of the Federal Register. The
rule provided a 15 day comment period which ended on June 17, 2011. No
comments were received.
Based on the foregoing, and pursuant to Sec. 608c(16)(A) of the
Act and Sec. Sec. 916.64 and 917.61 of the orders, USDA is terminating
the orders, as they do not tend to effectuate the declared policy of
the Act. USDA hereby appoints a Trustee Oversight Committee to conclude
and liquidate the affairs of the Committee, and to continue in that
capacity until discharged by USDA. The appointed Committee members are
Russ Tavlan (Vice Chairman), Mike Reimer, Mark Bybee, and Rick Jackson
(Chairman) of the Peach Commodity Committee and Casey Jones, Rick
Jackson, Jeff Bolt (Vice Chairman) and Rod Milton (Chairman) of the
Nectarine Administrative Committee, as trustees they will oversee this
liquidation.
Section 8c(16)(A) of the Act requires USDA to notify Congress at
least 60 days before terminating a Federal marketing order program.
USDA notified Congress on July 5, 2011 of its intention to terminate
this marketing order.
It is further found that good cause exists for not postponing the
effective date of this rule until 30 days after publication in the
Federal Register (5 U.S.C. 553) because (1) This action relieves
restrictions on handlers by terminating the requirements of the
nectarine and peach orders, (2) A proposed rule inviting comments
regarding the termination of nectarines and Peaches was published in
the Federal Register on June 2, 2011 (75 FR 31888) and no comments were
received, (3) all handling regulations have been suspended under the
order for nectarine
[[Page 66605]]
and peaches since April 19, 2011, and (4) no useful purpose would be
served by delaying the effective date.
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 forth in the preamble, 7 CFR part 916 is
removed and 7 CFR part 917 is 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
0
2. 7 CFR part 916 is removed.
PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA
0
3. In part 917, Sec. Sec. 917.1 through 917.3, Sec. 917.7, Sec.
917.9, Sec. Sec. 917.11 through 917.14, Sec. Sec. 917.16 through
917.19, Sec. 917.27, Sec. Sec. 917.30 through 917.33, Sec. 917.36,
Sec. Sec. 917.38 through 917.43, Sec. 917.45, Sec. 917.50,
Sec. Sec. 917.60 through 917.69, Sec. Sec. 917.101, Sec. 917.103,
Sec. 917.110, Sec. 917.115, and Sec. 917.122 are suspended
indefinitely.
Sec. 917.4 [Amended]
0
4. In Sec. 917.4, lift the suspension of July 21, 2006 (71 FR 41351);
remove paragraphs (a) and (b); redesignate paragraph (c) as paragraph
(a); add and reserve paragraph (b); and suspend the section
indefinitely.
Sec. 917.5 [Amended]
0
5. In Sec. 917.5, remove the second sentence and suspend the section
indefinitely.
Sec. 917.6 [Amended]
0
6. In Sec. 917.6, remove the words ``That for peaches, packing or
causing the fruit to be packed also constitutes handling; Provided
further,'' and suspend the section indefinitely.
Sec. 917.8 [Removed]
0
7. Remove Sec. 917.8.
Sec. 917.15 [Amended]
0
8. In Sec. 917.15, lift the suspension of March 3, 1994 (59 FR 10055),
remove the words ``Sec. Sec. 917.21 through 917.22'' and add in their
place the words ``Sec. 917.21,'' and suspend the section indefinitely.
Sec. 917.20 [Amended]
0
9. In Sec. 917.20, lift the suspension of March 3, 1994 (59 FR 10055),
and revise the section to read as follows, and suspend the section
indefinitely:
Sec. 917.20 Designation of members of commodity committees.
There is hereby established a Pear Commodity Committee consisting
of 13 members. Each commodity committee may be increased by one public
member nominated by the respective commodity committee and selected by
the Secretary. The members of each said committee shall be selected
biennially for a term ending on the last day of February of odd
numbered years, and such members shall serve until their respective
successors are selected and have qualified. The members of each
commodity committee shall be selected in accordance with the provisions
of Sec. 917.25.
Sec. 917.22 [Removed]
0
10. Remove Sec. 917.22.
Sec. 917.24 [Amended]
0
11. In Sec. 917.24, lift the suspensions of March 3, 1994 (59 FR
10055), and February 21, 2007 (72 FR 7821); revise the section to read
as follows; and suspend the section indefinitely:
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 February 15 for pears of each odd numbered year a meeting or
meetings of the growers of the fruits in each representation area set
forth in Sec. 917.21. These meetings shall be supervised by the
Control Committee, which shall prescribe such procedures 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. 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 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 during the previous fiscal period, or he must
represent an organization which produced at least 51 percent of the
pears shipped by it during such period.
Sec. 917.25 [Amended]
0
12. In Sec. 917.25, lift the suspension of July 1, 2006 (71 FR 41352),
remove and reserve paragraph (b), and suspend the section indefinitely.
Sec. 917.26 [Amended]
0
13. In Sec. 917.26, lift the suspension of March 3, 1994 (59 FR
10055), remove the words ``Sec. Sec. 917.21 and 917.22'' and add in
their place the word ``Sec. 917.21,'' and suspend the section
indefinitely.
Sec. 917.28 [Amended]
0
14. In Sec. 917.28, lift the suspension of March 3, 1994 (59 FR
10055), remove the words ``Sec. Sec. 917.16, 917.21, and 917.22'' and
add in their place the words ``Sec. Sec. 917.16 and 917.21,'' and
suspend the section indefinitely.
Sec. 917.29 [Amended]
0
15. In Sec. 917.29, lift the suspension of March 3, 1994 (59 FR
10055), remove the words ``and of the Peach Commodity Committee'' and
``each'' from paragraph (b), remove the final sentence of paragraph
(d), and suspend the section indefinitely.
Sec. 917.34 [Amended]
0
16. In Sec. 917.34, lift the suspension of March 3, 1994 (59 FR
10055), remove the words ``Sec. Sec. 917.21 and 917.22'' in paragraph
(k) and add in their place the word ``Sec. 917.21'', and suspend the
section indefinitely.
Sec. 917.35 [Amended]
0
17. In Sec. 917.35, lift the suspension of March 3, 1994 (59 FR
10055), remove the words ``Peach and'' and ``each'' wherever they
appear in paragraph (a), remove the final sentence of paragraph (d),
and suspend the section indefinitely.
Sec. 917.37 [Amended]
0
18. In Sec. 917.37, remove the final three sentences of paragraph (b)
and suspend the section indefinitely.
Sec. 917.100 [Amended]
0
19. In Sec. 917.100, lift the suspension of March 3, 1994 (59 FR
10055), remove the words ``and peaches'', and suspend the section
indefinitely.
Sec. 917.119 [Amended]
0
20. In Sec. 917.119, remove paragraph (a), redesignate paragraphs (b)
through (e) as paragraphs (a) through (d), and suspend the section
indefinitely.
[[Page 66606]]
Sec. 917.143 [Amended]
0
21. In Sec. 917.143, lift the suspension of April 18, 2011 (76 FR
21618); remove the words ``and peaches'' from the introductory text of
paragraph (b) and from paragraphs (b)(1), (b)(2), and (b)(4); remove
the words ``and 200 pounds of peaches'' from paragraph (b)(3); and
suspend the section indefinitely.
Sec. 917.150 [Removed]
0
22. Remove Sec. 917.150.
Subpart--Assessment Rates (Sec. Sec. 917.258 through 917.259)
[Removed]
0
23. Remove Subpart--Assessment Rates, consisting of Sec. Sec. 917.258
through 917.259.
Subpart--Container and Pack Regulation (Sec. Sec. 917.442)
[Removed]
0
24. Remove Subpart--Container and Pack Regulation, consisting of Sec.
917.442.
Sec. 917.459 [Removed]
0
25. Remove Sec. Sec. 917.459.
Dated: October 14, 2011.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2011-27286 Filed 10-26-11; 8:45 am]
BILLING CODE 3410-02-P