38696 Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 

date to 5 years from the date of this final 

rule. As conveyed in the discussion at 

the NOSB meeting, the exemption for 

tetracycline has remained divisive and 

the NOSB did not want to extend the 

listing for another 5 years. Peracetic acid 

and copper fungicides were specifically 

mentioned as alternative substances for 

fire blight control, although these were 

noted as only partially or marginally 

effective. This is consistent with a 

comment to the proposed rule which 

acknowledged that Bordeaux mix 

(copper sulfate and lime) and other 

copper formulations sprayed at greentip stage provide some protection, but 

can cause fruit scarring and are 

phytotoxic to some cultivars. It was 

noted anecdotally at the NOSB meeting 

that there are apple and pear varieties 

with limited resistance to fire blight and 

that some producers are growing pears 

without the use of tetracycline for the 

organic market in the European Union, 

where the use of antibiotics for organic 

crop production is not permitted. 

Based on all public comment and 

documentation received, the NOP 

believes that issues regarding the 

availability and viability of alternatives 

to tetracycline for fire blight control 

remain outstanding. At the same time, 

we note the NOSB’s recommendation to 

only allow the continued use of 

tetracycline for fire blight control until 

October 21, 2012. Though some 

commenters have requested the removal 

of the expiration date from use of 

tetracycline, the NOP recommends that 

such interested parties petition the 

NOSB, using the petition process 

outlined in 72 FR 2167 (January 18, 

2007), to have the expiration date 

removed from the authorized use of the 

substance. 

Classification of Tetracycline as a 

Bactericide 

One comment asserted that 

oxytetracycline calcium complex was 

naturally produced in the soil by 

bacterial fermentation and therefore it is 

not an antibiotic, but a bactericide. This 

comment argued for the approval of the 

use of ‘‘natural’’ oxytetracycline to be 

extended indefinitely for organic 

production so that the organic apple and 

pear industry would not be lost to fire 

blight. The comment did not provide 

evidence to affirm that the entire 

production of oxytetracycline to its 

commercial form would qualify as 

nonsynthetic (natural) in accordance 

with the NOP regulations. Tetracycline, 

in technical literature and common use, 

is universally identified as an antibiotic. 

While tetracycline is derived from 

bacteria and has bactericidal properties, 

we believe that ‘‘antibiotic’’ is the proper 

and accurate classification. 

On-Site Rather Than On-Farm 

Generation of Sulfurous Acid 

One of the comments expressed 

support for the addition of sulfurous 

acid, but requested that the annotation 

to refer to on-site generation instead of 

on-farm, because ‘‘farm’’ is not defined 

in the NOP regulation or in the Organic 

Food Production Act (OFPA), and use of 

that word could cause confusion in the 

organic industry. We recognize that 

there was considerable discussion over 

the precise wording to use in the 

annotation to capture the intent that it 

be produced at the location where the 

sulfurous acid would be used to prevent 

the use of sulfurous acid in forms that 

would be synthetically stabilized or 

preserved for shipping. Both terms, 

‘‘farm’’ and ‘‘site’’, appear in the NOP 

regulations. However, we believe these 

are distinct, as farm refers specifically to 

land area in crop production, while 

‘‘site’’ can refer to production or 

handling areas. We believe that ‘‘farm’’ is 

readily understood by the organic 

industry and is the more appropriate, 

specific term in this annotation. 

F. Effective Date 

This final rule reflects 

recommendations submitted to the 

Secretary by the NOSB. The revisions 

being made in the listing of one 

exempted substance and the substance 

being added to the National List were 

based on petitions from the industry 

and evaluated by the NOSB using 

criteria in the Act and the regulations. 

Because these revisions and the 

exemption have been subject to 

extensive discussion and comments and 

are considered vital to the most efficient 

organic crop production, NOP believes 

that producers should be able to use 

them in their operations as soon as 

possible. In crop production, the 

effective period for use of any practice 

or crop input may be limited by the 

progress of the growing season, and the 

utility of an exempted substance for 

organic production in any one year is 

dependent upon that substance being 

available when it is needed for use, as 

its use may be quite ineffective at any 

other time in the growing season. 

Accordingly, AMS finds that good cause 

exists under 5 U.S.C. 553 (d)(3) for not 

postponing the effective date of this rule 

until 30 days after publication in the 

Federal Register. 

List of Subjects in 7 CFR Part 205 

Administrative practice and 

procedure, Agriculture, Animals, 

Archives and records, Imports, Labeling, 

Organically produced products, Plants, 

Reporting and recordkeeping 

requirements, Seals and insignia, Soil 

conservation. 

■ For the reasons set forth in the 

preamble, 7 CFR part 205 is amended as 

follows: 

PART 205–NATIONAL ORGANIC 

PROGRAM 

■ 1. The authority citation for 7 CFR 

part 205 continues to read as follows: 

Authority: 7 U.S.C. 6501–6522. 

■ 2. § 205.601 is amended by: 

■ A. Revising paragraph (i)(11). 

■ B. Adding new paragraph (j)(9). 

The addition and revision read as 

follows: 

§ 205.601 Synthetic substances allowed 

for use in organic crop production. 

* * * * * 

(i) * * * 

(11) Tetracycline, for fire blight 

control only and for use only until 

October 21, 2012. 

(j) * * * 

(9) Sulfurous acid (CAS # 7782–99–2) 

for on-farm generation of substance 

utilizing 99% purity elemental sulfur 

per paragraph (j)(2) of this section. 

* * * * * 

Dated: June 29, 2010. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2010–16335 Filed 7–2–10; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Parts 916 and 917 

[Doc. No. AMS–FV–09–0090; FV10–916/917– 

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 rule as 

final rule. 

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

rule that changed the handling 

requirements applicable to well matured 

fruit covered under the nectarine and 

peach marketing orders (orders). The 

interim rule updated the lists of 

commercially significant varieties 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 38697 

subject to size regulations under the 

orders. The interim rule was necessary 

to revise the regulations for the current 

marketing season, which began in April. 

DATES: Effective July 7, 2010. 

FOR FURTHER INFORMATION CONTACT: Jerry 

L. Simmons, 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: 

Jerry.Simmons@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.fetchTemplate

Data.do?template=TemplateN&page=

MarketingOrdersSmallBusinessGuide; 

or by contacting Antoinette Carter, 

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: 

Antoinette.Carter@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 rule published in the 

Federal Register on April 5, 2010, and 

effective on April 6, 2010, (75 FR 17027, 

Doc. No AMS–FV–09–0090, FV10–916/ 

917–1 IFR), §§ 916.356 and 917.459 

were amended by adding ten nectarine 

varieties and eight peach varieties to the 

lists of commercially-significant 

varieties that are subject to varietyspecific size regulations under the 

orders. Additionally, twelve nectarine 

varieties and eleven peach varieties 

were removed from the variety-specific 

size regulations. 

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 101 

California nectarine and peach handlers 

subject to regulation under the orders, 

and approximately 475 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 $7,000,000 and 

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 2009 season, the committees’ 

staff estimated that the average handler 

price received was $11.50 per container 

or container equivalent of nectarines or 

peaches. A handler would have to ship 

at least 608,696 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 2009 

season, the committees’ staff estimates 

that small handlers represent 

approximately 50 percent of all the 

handlers within the industry. 

For the 2009 season, the committees’ 

staff estimated the average producer 

price received was $6.50 per container 

or container equivalent for nectarines 

and peaches. A producer would have to 

produce at least 115,385 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 2009 season, the committees’ 

staff estimates that more than 80 percent 

of the producers within the industry 

would be considered small producers. 

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 2010 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 and 

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. 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
38698 Federal Register / Vol. 75, No. 128 / Tuesday, July 6, 2010 / Rules and Regulations 

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 or peach handlers. As with all 

Federal marketing order programs, 

reports and forms are periodically 

reviewed to reduce information 

requirements and duplication by 

industry and public sector agencies. In 

addition, as stated 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. The 

committees have appointed a number of 

joint subcommittees to review certain 

issues and make recommendations to 

the committees. The Compliance 

Subcommittee met on November 3, 

2009, and discussed this issue in detail. 

Their recommendations were presented 

at the meetings of both committees on 

December 10, 2009. Like all committee 

meetings, the November 3, 2009 and 

December 10, 2009, meetings were 

public meetings and all entities, both 

large and small, were able to express 

their views on this issue. 

Comments on the interim rule were 

required to be received on or before June 

4, 2010. No comments were received. 

Therefore, for the reasons given in the 

interim rule, we are adopting the 

interim rule as a final rule, without 

change. 

To view the interim rule, go to: 

http://www.regulations.gov/search/

Regs/home.html#

documentDetail?R=0900006480acfc3e. 

This action also affirms information 

contained in the interim 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 rule, without 

change, as published in the Federal 

Register (75 FR 17027, April 5, 2010) 

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 rule that 

amended 7 CFR parts 916 and 917 and 

that was published at 75 FR 17027 on 

April 5, 2010, is adopted as a final rule, 

without change. 

Dated: June 29, 2010. 

Robert C. Keeney, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2010–16342 Filed 7–2–10; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 948 

[Doc. No. AMS–FV–08–0115; FV09–948–2 

FIR] 

Irish Potatoes Grown in Colorado; 

Relaxation of Handling Regulation for 

Area No. 3 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Affirmation of interim rule as 

final rule. 

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

rule that relaxed the size requirement 

prescribed under the Colorado potato 

marketing order. The interim rule 

provided for the handling of all varieties 

of potatoes with a minimum diameter of 

3⁄4 inch, if the potatoes otherwise meet 

U.S. No. 1 grade. This change is 

intended to provide potato handlers 

with greater marketing flexibility, 

producers with increased returns, and 

consumers with a greater supply of 

potatoes. 

DATES: Effective July 7, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Teresa Hutchinson or Gary Olson, 

Northwest Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, Telephone: (503) 326– 

2724, Fax: (503) 326–7440, or E-mail: 

Teresa.Hutchinson@ams.usda.gov or 

GaryD.Olson@ams.usda.gov. 

Small businesses may obtain 

information on complying with this and 

other marketing order and agreement 

regulations by viewing a guide at the 

following Web site: http:// 

www.ams.usda.gov/AMSv1.0/ 

ams.fetchTemplateData.

do?template=Template

N&page=Marketing

OrdersSmallBusinessGuide; or by 

contacting Antoinette Carter, 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: Antoinette.Carter

@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Agreement 

No. 97 and Order No. 948, both as 

amended (7 CFR part 948), regulating 

the handling of Irish potatoes grown in 

Colorado, 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 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

The handling of Irish potatoes grown 

in Colorado is regulated by 7 CFR part 

948. Prior to this change, the regulations 

for Colorado Area No. 3 potatoes 

provided that U.S. No. 2 grade potatoes, 

17⁄8 inches minimum diameter or 4 

ounces minimum weight, and Size B 

potatoes (11⁄2 to 21⁄4 inches in diameter), 

if U.S. No. 1 grade or better, may be 

handled. 

The Committee believes that in recent 

years consumer demand has been 

increasing for smaller potatoes which 

often command premium prices. The 

market for these smaller potatoes was 

primarily supplied by potato production 

areas outside Colorado Area No. 3. 

Having the ability to handle smaller 

potatoes enables Colorado Area No. 3 

potato handlers to market a larger 

portion of their crop while satisfying 

consumer demand for smaller potatoes. 

Therefore, this rule continues in effect 

the rule that relaxed the size 

requirement for all varieties of Colorado 

Area No. 3 potatoes by allowing the 

handling of potatoes with a minimum 

diameter of 3⁄4 inch, if the potatoes 

otherwise meet U.S. No. 1 Grade. 

In an interim rule published in the 

Federal Register on April 5, 2010, and 

effective on April 6, 2010, (75 FR 17034, 

Doc. No. AMS–FV–08–0115, FV09–948– 

2 IFR), § 948.387, paragraph (a) was 

revised. 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1