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.

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.

Rules and Regulations Federal Register

25945 

Vol. 72, No. 88 

Tuesday, May 8, 2007 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Parts 916 and 917 

[Docket No. AMS–FV–07–0012; FV07–916/ 

917–3 FR] 

Late Payment and Interest Charges on 

Past Due Assessments Under the 

Nectarine and Peach Marketing Orders 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule revises requirements 

concerning the collection of assessments 

owed under the nectarine and peach 

marketing orders. The marketing orders 

regulate the handling of nectarines and 

peaches grown in California and are 

administered locally by the Nectarine 

Administrative Committee and the 

Peach Commodity Committee 

(committees). This rule implements 

authorities contained in the marketing 

orders to allow the committees to apply 

late payment and interest charges on 

past due assessments owed the 

committees by handlers. 

DATES: Effective Date: May 9, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Garcia, 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: 

Jennifer.Garcia3@usda.gov or 

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 final 

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. 

This final rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This rule is not intended 

to have retroactive effect. This final 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. Such 

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 final rule establishes regulations 

that will allow the committees to apply 

late payment and interest charges on 

past due assessments owed the 

committees by handlers. This rule was 

unanimously recommended by the 

committees at meetings on November 

30, 2006. 

Sections 916.41 and 917.37 of the 

orders provide authority for the 

committees to assess handlers of 

California nectarines and peaches, 

respectively, to fund authorized 

activities such as research and 

promotion programs. Paragraph (b) of 

these sections was amended on July 21, 

2006 (71 FR 41345), to authorize the 

committees, with the approval of the 

Secretary, to apply late payment 

charges, interest charges, or both on past 

due assessments. 

At meetings on November 30, 2006, 

the committees recommended 

establishing rules and regulations to 

implement these authorities regarding 

late payment and interest charges. 

Although the majority of handlers remit 

their assessments in a timely manner, 

there are some handlers who do not. 

Implementing late payment and interest 

charges provides an incentive for 

handlers to pay assessments in a timely 

manner and removes any financial 

advantage for those who do not pay on 

time. 

Specifically, the committees 

recommended that a late payment 

charge be applied to any assessment that 

has not been received in the 

committees’ office, or the envelope 

containing the payment legibly 

postmarked by the U.S. Postal Service, 

within 60 days of the invoice date 

shown on the handler’s assessment 

statement. The committees 

recommended a late payment charge of 

10 percent of the unpaid balance. In 

addition, interest would be applied to 

the unpaid balance and late payment 

charge for the number of days the 

payment is delinquent beyond 60 days. 

The committees recommended that 

interest be applied at the current 

commercial prime rate charged by the 

committees’ bank plus 2 percent 

beginning on the day the assessment 

becomes delinquent. However, USDA 

determined that a set interest rate of 1.5 

percent per month is typical of 

comparable marketing order programs, 

and the recommendation was revised. 

Accordingly, new §§ 916.141 and 

917.137 specifying implementation of 

the 10 percent late charge and 1.5 

percent per month interest rate will be 

added to the rules and regulations of the 

nectarine and peach orders, 

respectively. 

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. 


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25946 Federal Register / Vol. 72, No. 88 / Tuesday, May 8, 2007 / Rules and Regulations 

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 175 

California nectarine and peach handlers 

subject to regulation under the orders 

covering nectarines and peaches grown 

in California, and about 676 producers 

of these fruits in California. 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 $6,500,000. Small 

agricultural producers are defined by 

the SBA as those having annual receipts 

of less than $750,000. A majority of 

these handlers and producers 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 2006 

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 

722,223 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 2006 

season, the committees’ staff estimates 

that small handlers represent 

approximately 85 percent of all the 

handlers within the industry. 

The committees’ staff has also 

estimated that fewer than 68 producers 

in the industry could be defined as 

other than small entities. For the 2006 

season, the committees’ staff estimated 

the average producer price received was 

$4.50 per container or container 

equivalent for nectarines and peaches. A 

producer would have to produce at least 

166,667 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 2006 

season, the committees’ staff estimates 

that small producers represent more 

than 90 percent of the producers within 

the industry. 

With an average producer price of 

$4.50 per container or container 

equivalent, and a combined packout of 

nectarines and peaches of 36,388,996 

containers, the value of the 2006 

packout is estimated to be $163,750,482. 

Dividing this total estimated grower 

revenue figure by the estimated number 

of producers (676) yields an estimate of 

average revenue per producer of about 

$242,234 from the sales of peaches and 

nectarines. 

This rule adds new §§ 916.141 and 

917.137 to the orders’ rules and 

regulations, whereby late payment and 

interest charges on delinquent 

assessment payments will be 

implemented under the orders. 

Specifically, handlers not remitting 

their assessment payments within 60 

days of the invoice date will be subject 

to a 10 percent late payment penalty 

and interest charges accruing at a rate of 

1.5 percent per month. The late 

payment and interest charges should 

serve as an incentive for handlers to 

remit assessment payments when due to 

avoid paying an increased amount to the 

committees. This action is expected to 

facilitate program operations. Authority 

for this action is provided in paragraph 

(b) of §§ 916.41 and 917.37 of the orders. 

This action will apply late payment 

and interest charges to assessments not 

paid within 60 days of the invoice date. 

Only handlers who are late in paying 

their assessments owed the committees 

will be impacted. For example, a 

delinquent invoice with late payment 

and interest charges applied will be 

calculated in the following manner: If a 

handler failed to pay an invoice for 

$5,000 within 60 days of the July 1, 

2007, invoice date, a 10 percent late 

payment charge ($500) would be 

applied to the unpaid balance. In 

addition, interest charges at a rate of 1.5 

percent per month would be added to 

the assessments owed and the accrued 

late payment charge. The 1.5 percent 

per month rate computes to an annual 

rate of 18 percent. This must be divided 

by 365 days to obtain the daily rate. 

This same July 1, 2007, invoice would 

be 62 days delinquent as of September 

1, 2007, bringing the interest charges to 

$168.16 ($5,500 × .18 ÷ 365 × 62). Thus, 

the total assessment due, including late 

payment and interest charges, would be 

$5,668.16 as of September 1, 2007. 

The committees discussed 

alternatives to this change, including 

not implementing late payment and 

interest charges at all. While only a 

small number of handlers fail to make 

assessments payments when due, the 

committees believe that a lack of action 

only compounds the problem. The 

committees considered applying late 

payment and interest charges at a lower 

rate but believe that a higher rate would 

be more likely to encourage compliance 

with the orders’ assessment 

requirements. The joint executive 

committee discussed the issue and 

recommended the 10 percent late 

payment and prime plus 2 percent 

interest charges that the committee 

members unanimously approved and 

recommended to USDA. 

However, as previously mentioned, 

USDA has determined that a set interest 

rate of 1.5 percent per month is typical 

of comparable marketing order 

programs, and the recommendation was 

revised. 

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. 

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. 

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 subcommittee and 

committees’ meetings were widely 

publicized throughout the California 

nectarine and peach industries and all 

interested persons were invited to 

attend the meetings and participate in 

the committees’ deliberations on all 

issues. Like all committee meetings, the 

November 30, 2006, meetings were 

public meetings and all entities of all 

sizes were invited to express views on 

this issue. 

A proposed rule concerning this 

action was published in the Federal 

Register on March 29, 2007 (72 FR 

14710). The committees posted the rule 

on their Web site. In addition, the rule 

was made available through the Internet 

by USDA and the Office of the Federal 

Register. A 15-day comment period 

ending April 13, 2007, was provided to 

allow interested persons to respond to 

the proposal. 

One comment was received during 

the comment period in response to the 

proposal. The commenter, representing 

the NAC and PCC, supported 

implementing authorities to allow the 

committees to apply late payment and 

interest charges on past due 

assessments. 

Accordingly, no changes will be made 

to the rule as proposed, based on the 

comments received. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 


cprice-sewell on PROD1PC66 with RULES
Federal Register / Vol. 72, No. 88 / Tuesday, May 8, 2007 / Rules and Regulations 25947 

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. 

After consideration of all relevant 

matter presented, including the 

information and recommendation 

submitted by the committees and other 

available information, it is hereby found 

that this rule, as hereinafter set forth, 

will tend to effectuate the declared 

policy of the Act. 

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 the season began on 

April 1. Further, handlers are aware of 

this rule, which was recommended at 

public meetings. Also a 15-day 

comment period was provided for in the 

proposed 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. 

■ For the reasons set forth in the 

preamble, 7 CFR parts 916 and 917 are 

amended as follows: 

■ 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 

■ 2. Add § 916.235 to read as follows: 

§ 916.235 Delinquent assessments. 

(a) The Nectarine Administrative 

Committee shall impose a late payment 

charge on any assessment that has not 

been received in the Nectarine 

Administrative Committee’s office, or 

legibly postmarked by the U.S. Postal 

Service, within 60 days of the invoice 

date shown on the handler’s assessment 

statement. The late payment charge 

shall be 10 percent of the unpaid 

balance. 

(b) In addition to that specified in 

paragraph (a) of this section, the 

Nectarine Administrative Committee 

shall impose an interest charge on any 

assessment payment that has not been 

received in the committee’s office, or 

legibly postmarked by the U.S. Postal 

Service, within 60 days of the invoice 

date. The interest charge shall be 1.5 

percent per month and shall be applied 

to the unpaid balance and late payment 

charge for the number of days all or any 

part of the assessment specified in the 

handler’s assessment statement is 

delinquent beyond the 60 day payment 

period. 

PART 917—PEACHES GROWN IN 

CALIFORNIA 

■ 3. Add § 917.259 to read as follows: 

§ 917.259 Delinquent assessments. 

(a) The Peach Commodity Committee 

shall impose a late payment charge on 

any assessment that has not been 

received in the Peach Commodity 

Committee’s office, or legibly 

postmarked by the U.S. Postal Service, 

within 60 days of the invoice date 

shown on the handler’s assessment 

statement. The late payment charge 

shall be 10 percent of the unpaid 

balance. 

(b) In addition to that specified in 

paragraph (a) of this section, the Peach 

Commodity Committee shall impose an 

interest charge on any assessment 

payment that has not been received in 

the Peach Commodity Committee’s 

office, or legibly postmarked by the U.S. 

Postal Service, within 60 days of the 

invoice date. The interest charge shall 

be 1.5 percent per month and shall be 

applied to the unpaid balance and late 

payment charge for the number of days 

all or any part of the assessment 

specified in the handler’s assessment 

statement is delinquent beyond the 60 

day payment period. 

Dated: May 1, 2007. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E7–8630 Filed 5–7–07; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Grain Inspection, Packers and 

Stockyards Administration 

9 CFR Part 205 

RIN 0580–AA93 

Clear Title; Technical Changes 

AGENCY: Grain Inspection, Packers and 

Stockyards Administration, USDA. 

ACTION: Affirmation of interim rule as 

final rule. 

SUMMARY: We are adopting as a final 

rule, with change, an interim rule that 

amended Clear Title regulations to 

allow States to use an approved unique 

identifier as an alternative to a social 

security number or taxpayer 

identification number in their systems 

providing clear title information. The 

change to the interim rule meets the 

express statutory requirement that an 

approved unique identifier be 

numerically organized on master lists. 

We are making additional changes to the 

clear title regulations as required by the 

amendments made by the 2002 Farm 

Bill. The primary effect of these changes 

will be to protect the identity of the 

producers of farm products. Secondary 

effects of the technical changes will be 

to improve the operation of the program 

and provide the States with more 

flexibility. 

DATES: Effective May 8, 2007, we are 

confirming as final with change, the 

interim rule published on September 27, 

2006 (71 FR 56338). That rule became 

effective on September 27, 2006. 

FOR FURTHER INFORMATION CONTACT: Gary 

McBryde, GIPSA, USDA, 1400 

Independence Avenue, Room 2430, 

Washington, DC 20250–3604; (202) 720–

5552. 

SUPPLEMENTARY INFORMATION: 

Background 

In an interim rule effective September 

27, 2006, and published in the Federal 

Register on September 27, 2006 (71 FR 

56338), we amended the regulations in 

‘‘Subpart—Clear Title-Protection for 

Purchases of Farm Products’’ (9 CFR 205 

205.1–205.210) for the privacy 

protection of certain sellers of farm 

products to allow States to use ‘‘other 

approved unique identifier’’ as an 

alternative to a social security number 

or taxpayer identification number in 

their systems providing clear title 

information. The amendment clarified 

that an ‘‘approved unique identifier’’

means ‘‘a number, combination of 

numbers and letters, or other identifier 

selected by the Secretary of State using 

a selection system or method approved 

by the Secretary of Agriculture.’’

We solicited comments concerning 

the interim rule. We received two 

comments as a result of publishing the 

interim final rule. The comments 

indicated that not only were Social 

Security Numbers unwarranted and 

unneeded, but also that unique 

identifiers were not needed. We 

consider the comments to be directed 

towards the current Act, not the 

regulations providing guidance on 

implementation of the amended Act. 

However, we are making one change 

to the interim rule to further clarify and 

better reflect the statutory text. The 

interim rule definition of ‘‘approved 


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