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

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REGISTER issue of each week.

Rules and Regulations Federal Register

37495 

Vol. 74, No. 144 

Wednesday, July 29, 2009 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Parts 916 and 917 

[Doc. No. AMS–FV–08–0108; FV09–916/917– 

1 FIR] 

Nectarines and Peaches Grown in 

California; Changes in Handling 

Requirements for Fresh Nectarines 

and Peaches 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Affirmation of interim final rule 

as final rule. 

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

final rule that changed the handling 

requirements applicable to well matured 

fruit covered under the nectarine and 

peach marketing orders (orders). The 

interim final rule updated the lists of 

commercially significant varieties 

subject to size regulations under the 

orders. The interim final rule was 

necessary to revise the regulations for 

the current marketing season, which 

began in April. 

DATES: Effective Date: Effective July 30, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Robinson, Marketing Specialist, 

or Kurt J. Kimmel, Regional Manager, 

California Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (559) 487– 

5901, Fax: (559) 487–5906; or E-mail: 

Jen.Robinson@ams.usda.gov or 

Kurt.Kimmel@ams.usda.gov. 

Small businesses may obtain 

information on complying with this and 

other marketing order regulations by 

viewing a guide at the following Web 

site: http://www.ams.usda.gov/

AMSv1.0/ams.fetchTemplateData.do?

template=TemplateN&page=Marketing

OrdersSmallBusinessGuide; or 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@ams.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.’’ 

The Department of Agriculture 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

The shipping of ‘‘well-matured’’ 

nectarines and peaches grown in 

California is regulated by 7 CFR parts 

916 and 917, respectively. Among other 

things, certain varieties of fruit are 

subject to variety-specific size 

restrictions. The lists of commerciallysignificant varieties so regulated are 

updated regularly as the volume of new 

varieties increases and as older varieties 

become obsolete. The sizes of varieties 

not subject to variety-specific 

regulations are regulated under generic 

regulations contained in the orders. 

In an interim final rule published in 

the Federal Register on February 20, 

2009, and effective on February 21, 2009 

(74 FR 7778, Doc. No AMS–FV–08– 

0108, FV09–916/917–1 IFR), §§ 916.356 

and 917.459 were amended by adding 

ten nectarine varieties and seven peach 

varieties to the lists of commerciallysignificant varieties that are subject to 

variety-specific size regulations under 

the orders. Additionally, four nectarine 

varieties and five peach varieties were 

removed from the variety-specific size 

regulations. Finally, a reference to the 

regulation of other than ‘‘well-matured’’ 

peaches was removed from 

§ 917.459(a)(6)(iii) to conform with 

previous changes to the order. 

Final Regulatory Flexibility Analysis 

Pursuant to 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 

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. 

Industry Information 

There are approximately 120 

California nectarine and peach handlers 

subject to regulation under the orders, 

and approximately 550 producers of 

these fruits in the production area. 

Small agricultural service firms, which 

include handlers, are defined by the 

Small Business Administration (SBA) 

(13 CFR 121.201) as those whose annual 

receipts are less than $7,000,000. Small 

agricultural producers are defined as 

those having annual receipts of less than 

$750,000. A majority of these handlers 

and producers may be classified as 

small entities. 

For the 2008 season, the committees’ 

staff estimated that the average handler 

price received was $9.00 per container 

or container equivalent of nectarines or 

peaches. A handler would have to ship 

at least 777,778 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 2008 

season, the committees’ staff estimates 

that approximately 78 percent of all the 

handlers within the industry would be 

considered small handlers. 

For the 2008 season, the committees 

estimated the average producer price 

received was $4.25 per container or 

container equivalent for nectarines and 

peaches. A producer would have to 

produce at least 176,471 containers of 

nectarines and peaches to have annual 

receipts of $750,000. Given data 

maintained by the committees’ staff and 

the average producer price received 

during the 2008 season, the committees’ 

staff estimates that more than 88 percent 

of the producers within the industry 

would be considered small producers. 

With an average producer price of 

$4.25 per container or container 

equivalent, and a combined packout of 


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nectarines and peaches of 45,543,561 

containers, the value of the 2008 

packout is estimated to be $193,560,134. 

Dividing this total estimated grower 

revenue figure by the estimated number 

of producers (550) yields an estimated 

average revenue per producer of about 

$351,928 from the sales of peaches and 

nectarines. 

Under authority provided in §§ 916.52 

and 917.41 of the orders, grade, size, 

maturity, pack, and container marking 

requirements are established for fresh 

shipments of California nectarines and 

peaches, respectively. Such 

requirements are in effect on a 

continuing basis. 

Sections 916.356 and 917.459 of the 

orders’ rules and regulations establish 

minimum sizes for various varieties of 

nectarines and peaches. This rule 

continues in effect the action that 

adjusted the minimum fruit sizes 

authorized for certain varieties of each 

commodity for the 2009 season. 

Minimum size regulations are put in 

place to encourage producers to leave 

fruit on the trees for a longer period of 

time, increasing both maturity and fruit 

size. Increased fruit size increases the 

number of packed containers per acre 

and, coupled with heightened maturity 

levels, also provides greater consumer 

satisfaction, which in turn fosters repeat 

purchases that benefit producers and 

handlers alike. 

Annual adjustments to minimum 

sizes of nectarines and peaches, such as 

these, are recommended by the 

committees based upon historical data, 

producer and handler information 

regarding sizes attained by different 

varieties, and trends in consumer 

purchases. 

An alternative to such action would 

include not establishing minimum size 

regulations for these new varieties. Such 

an action, however, would be a 

significant departure from the 

committees’ past practices and represent 

a significant change in the regulations as 

they currently exist. For these reasons, 

this alternative was not recommended. 

The committees make 

recommendations regarding the 

revisions in handling requirements after 

considering all available information, 

including comments received by 

committee staff. At the meetings, the 

impact of and alternatives to these 

recommendations are deliberated. The 

committees consist of individual 

producers and handlers with many 

years of experience in the industry who 

are familiar with industry practices and 

trends. All committee meetings are open 

to the public and comments are widely 

solicited. In addition, minutes of all 

meetings are distributed to committee 

members and others who have 

requested them, and are also available 

on the committees’ Web site, thereby 

increasing the availability of this critical 

information within the industry. 

Regarding the impact of this action on 

the affected entities, both large and 

small entities are expected to benefit 

from the changes, and the costs of 

compliance are not expected to be 

significantly different between large and 

small entities. 

This rule will not impose any 

additional reporting or recordkeeping 

requirements on either small or large 

nectarine and 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. 

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 industry and all 

interested parties were invited to attend 

the meetings and participate in 

committee deliberations. Like all 

committee meetings, the November 25, 

2008, meetings were public meetings 

and all entities, both large and small, 

were able to express their views on this 

issue. Also, the committees have a 

number of appointed subcommittees to 

review certain issues and make 

recommendations to the committees. 

The committees’ Tree Fruit Quality 

Subcommittee met on October 29, 2008, 

and discussed this issue in detail. That 

meeting was also a public meeting and 

both large and small entities were able 

to participate and express their views. 

Comments on the interim final rule 

were required to be received on or 

before April 21, 2009. One comment, 

supporting the interim final rule, was 

received. Therefore, for the reasons 

given in the interim final rule, we are 

adopting the interim final rule as a final 

rule, without change. 

To view the interim final rule and the 

comment received, go to http:// 

www.regulations.gov/fdmspublic/ 

component/ 

main?main=DocketDetail&d=AMS-FV08-0108. 

This action also affirms information 

contained in the interim final rule 

concerning Executive Orders 12866 and 

12988, the Paperwork Reduction Act (44 

U.S.C. Chapter 35), and the E-Gov Act 

(44 U.S.C. 101). 

After consideration of all relevant 

material presented, it is found that 

finalizing the interim final rule, without 

change, as published in the Federal 

Register (74 FR 7778, February 20, 

2009) 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. 

PARTS 916 AND 917—[AMENDED] 

■ Accordingly, the interim final rule 

that amended 7 CFR parts 916 and 917 

and that was published at 74 FR 7778 

on February 20, 2009, is adopted as final 

rule, without change. 

Dated: July 24, 2009. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E9–18099 Filed 7–28–09; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 922 

[Doc. No. AMS–FV–09–0038; FV09–922–1 

IFR] 

Apricots Grown in Designated 

Counties in Washington; Decreased 

Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Interim final rule with request 

for comments. 

SUMMARY: This rule decreases the 

assessment rate established for the 

Washington Apricot Marketing 

Committee (Committee) for the 2009– 

2010 and subsequent fiscal periods from 

$2.00 to $1.00 per ton of apricots 

handled. The Committee locally 

administers the marketing order, which 

regulates the handling of apricots grown 

in designated counties in Washington. 

Assessments upon apricot handlers are 

used by the Committee to fund 

reasonable and necessary expenses of 

the program. The fiscal period begins 

April 1 and ends March 31. The 

assessment rate will remain in effect 

indefinitely unless modified, 

suspended, or terminated. 

DATES: Effective July 30, 2009. 

Comments received by September 28, 


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