```

[Federal Register: July 6, 2010 (Volume 75, Number 128)]
[Rules and Regulations]               
[Page 38696-38698]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06jy10-2]                         

-----------------------------------------------------------------------

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

[[Page 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.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBus
inessGuide; 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 commercially-significant 
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), Sec. Sec.  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 
variety-specific 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 Sec. Sec.  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.

[[Page 38698]]

    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]

0
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
```