71734 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Parts 916 and 917 

[Docket No. AO–90–A7; FV05–916–1] 

Nectarines and Peaches Grown in 

California; Recommended Decision 

and Opportunity To File Written 

Exceptions To Proposed Amendments 

To Marketing Agreement Nos. 124 and 

85 and Order Nos. 916 and 917 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule and opportunity 

to file exceptions. 

SUMMARY: This recommended decision 

invites written exceptions on proposed 

amendments to Marketing Agreement 

Nos. 124 and 85 and Order Nos. 916 and 

917 (orders), which regulate the 

handling of nectarines and peaches 

grown in California. The Nectarine 

Administrative Committee (NAC), the 

Peach Commodity Committee (PCC), 

and the Control Committee (part of M.O. 

No. 917) (Committees), which are 

responsible for local administration of 

orders 916 and 917, jointly proposed the 

amendments. The proposed 

amendments to order 917 only apply to 

peaches. The amendments included in 

this recommended decision would: 

Update definitions for ‘‘handle’’, 

‘‘grower’’, and the commodities covered 

in both orders; add a definition for 

‘‘pure grower’’; increase committee 

membership of the NAC from eight to 

thirteen members and modify sections 

of the order to conform to the increased 

membership; eliminate the Shippers 

Advisory Committee (order 916); allow 

the Control Committee under order 917 

to be suspended if the provisions of one 

commodity are suspended and transfer 

applicable duties and responsibilities to 

the remaining Commodity Committee; 

and authorize interest and late payment 

charges on assessments paid late; and 

other related amendments. All of the 

proposals are intended to streamline 

and improve the administration, 

operation, and functioning of the orders. 

DATES: Written exceptions must be filed 

by December 19, 2005. 

ADDRESSES: Written exceptions should 

be filed with the Hearing Clerk, U.S. 

Department of Agriculture, Room 1081– 

S, Washington, DC 20250–9200, 

Facsimile number (202) 720–9776 or 

http://www.regulations.gov. All 

comments should reference the docket 

number and the date and page number 

of this issue of the Federal Register. 

Comments will be made available for 

public inspection in the Office of the 

Hearing Clerk during regular business 

hours, or can be viewed at: http:// 

www.ams.usda.gov/fv/moab.html. 

FOR FURTHER INFORMATION CONTACT: 

Melissa Schmaedick, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, P.O. 

Box 1035, Moab, Utah; telephone: (435) 

259–7988, Fax: (435) 259–4945; or 

Kathleen M. Finn, 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. 

Small businesses may request 

information on this proceeding 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. 

SUPPLEMENTARY INFORMATION: Prior 

documents in this proceeding: Notice of 

Hearing issued on January 25, 2005 and 

published in the January 28, 2005 issue 

of the Federal Register (70 FR 4041). 

This action is governed by the 

provisions of sections 556 and 557 of 

title 5 of the United States Code and, 

therefore, is excluded from the 

requirements of Executive Order 12866. 

Preliminary Statement 

Notice is hereby given of the filing 

with the Hearing Clerk of this 

recommended decision with respect to 

the proposed amendment of Marketing 

Agreements Nos. 124 and 85 and Order 

Nos. 916 and 917, which regulate the 

handling of nectarines and peaches 

grown in California, and the 

opportunity to file written exceptions 

thereto. Copies of this decision can be 

obtained from Melissa Schmaedick, 

whose address is listed above. 

This recommended decision is issued 

pursuant to the provisions of the 

Agricultural Marketing Agreement Act 

of 1937, as amended (7 U.S.C. 601 et 

seq.), hereinafter referred to as the 

‘‘Act,’’ and the applicable rules of 

practice and procedure governing the 

formulation of marketing agreements 

and orders (7 CFR part 900). 

The proposed amendments are based 

on the record of a public hearing held 

on February 15 and 16, 2005, in Fresno, 

California. Notice of this hearing was 

published in the Federal Register on 

January 28, 2005 (70 FR 4041). The 

notice of hearing contained proposed 

order changes jointly proposed by the 

Nectarine Administrative Committee, 

the Peach Commodity Committee, and 

the Control Committee (part of order 

917), which are responsible for local 

administration of orders 916 and 917. 

The proposed amendments to order 917 

only apply to peaches. The pear 

provisions of the order have been 

suspended since 1994. Because the Pear 

Commodity Committee and the pear 

provisions are suspended, the Pear 

Commodity Committee did not 

participate in any amendment 

discussions. 

The proposed recommendations are 

the result of a task force appointed by 

the Committees to conduct a review of 

the orders. The task force met several 

times in 2003 and drafted proposed 

amendments to the orders and 

presented the recommendations at 

industry meetings. The 

recommendations were then forwarded 

to the Commodity Committees and the 

Control Committee, each of which 

unanimously approved the proposed 

amendments. The Nectarine 

Administrative Committee, the Peach 

Commodity Committee, and the Control 

Committee believe that the proposed 

changes would improve the 

administration, operation, and 

functioning of the programs in effect for 

nectarines and peaches grown in 

California. The Committees’ request for 

a hearing was submitted to USDA on 

January 5, 2004. 

The Committees’ proposed 

amendments are summarized below. 

This recommended decision makes 

modifications to some of the proposals 

and does not recommend one proposal. 

The Committees’ proposed 

amendments to marketing orders 916 

and 917 would: 

1. Allow hybrid fruit that exhibits the 

characteristics of nectarines or peaches 

and is subject to cultural practices 

common to such fruit be subject to 

marketing order regulations. 

2. Specify that the act of packing be 

considered a handling function. 

3. Change the marketing season for 

nectarines from May 1 through 

November 30 to April 1 through 

November 30. 

4. Allow the duties and 

responsibilities of the Control 

Committee under the peach order to be 

transferred to one Commodity 

Committee if the provisions for the 

other commodity are suspended. 

5. Increase membership on the 

nectarine committee from eight to 

thirteen members and revise the 

procedures that constitute quorum and 

voting requirements to conform to the 

increased Committee size. The proposal 

would also add to both orders that the 

Committees may vote by facsimile and 

set forth voting requirements for video 

conferencing. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 71735 

6. Eliminate the Shippers’ Advisory 

Committee under the nectarine order. 

7. Modify the definitions of grower to 

clarify that officers of grower 

corporations are eligible to serve as 

grower members the Committee. 

8. Add a definition of ‘‘pure grower’’

for purposes of eligibility for 

membership on the Committees. This 

proposal would also allow alternative 

methods to conduct nominations, 

change the date for holding 

nominations, authorize positions for 

pure growers and add tenure 

requirements for Committee members. 

9. Authorize nominees to state their 

willingness to serve on the Committees 

prior to the selection. 

10. Change the district boundaries 

under the nectarine order and redefine 

the peach districts. 

11. Change the names and the 

composition of the districts of the Peach 

Commodity Committee. 

12. Allow for interest and/or late 

payments for assessments not paid 

timely and authorize the Peach 

Committee to borrow money. 

13. Provide authority to recommend 

different regulations for specific market 

destinations (not recommended herein). 

14. Clarify that subcommittees may be 

established by the Peach Commodity 

Committee. 

Twenty-two witnesses testified at the 

hearing. These witnesses represented 

fresh nectarine and peach growers and 

handlers. All witnesses with the 

exception of one supported the 

Committees’ recommended changes. 

The one opposing witness spoke against 

proposal 13 which would allow the 

Committees to recommend different 

regulation for different market 

destinations of peaches and nectarines. 

Witnesses speaking in favor of the 

proposed changes addressed the need to 

improve the administration, operation, 

and functioning of the programs in 

effect for nectarines and peaches grown 

in California. The California nectarine 

and peach industries are regulated 

under federal marketing orders 916 and 

917, respectively. Both programs were 

established over 70 years ago and were 

most recently amended in the 1970’s. 

Marketing orders 916 and 917 are 

administered by marketing order 

administrative committees, each of 

which have contracted with the 

California Tree Fruit Agreement (CTFA) 

for management of marketing, 

promotion and certain administrative 

functions. CTFA also manages the 

California State Marketing Order for 

plums. 

Witnesses at the hearing stated that 

the amendments being considered were 

designed to streamline the operation of 

the orders based on accepted business 

procedures in the 21st century. 

Witnesses also stated that many of the 

proposed amendments would provide 

the programs with the necessary 

flexibility for the future. Most 

importantly, the proposed amendments, 

if implemented, would result in 

improved consistency between and 

more efficient administration of the 

orders. 

At the conclusion of the hearing, the 

Administrative Law Judge stated that 

the final date for interested persons to 

file proposed findings and conclusions 

or written arguments and briefs based 

on the evidence received at the hearing 

would be April 12, 2005. The deadline 

was subsequently extended to May 12, 

2005. One hundred and forty six briefs 

and comments were filed. The majority 

of comments filed were in opposition to 

Proposal 13, which would add authority 

to orders 916 and 917 for the 

Committees to recommend different 

regulations for different market 

destinations for California peaches and 

nectarines. The Committees also filed a 

joint brief requesting that Proposal 13 be 

withdrawn. Accordingly, Proposal 13 

has been removed from consideration 

and will not be discussed further in this 

decision. 

Material Issues 

The material issues presented on the 

record of hearing are as follows: 

1a. Whether to amend the order to 

allow hybrid fruit that exhibits the 

characteristics of nectarines and is 

subject to cultural practices common to 

nectarines to be subject to marketing 

order regulations; 

1b. Whether to amend the order to 

allow hybrid fruit that exhibits the 

characteristics of peaches and is subject 

to cultural practices common to peaches 

to be subject to marketing order 

regulations; 

2a. Whether to amend the order by 

specifying that the act of packing 

nectarines be considered a handling 

function; 

2b. Whether to amend the order by 

specifying that the act of packing 

peaches be considered a handling 

function; 

3. Whether to amend the nectarine 

order by changing the marketing season 

from May 1 through November 30 to 

April 1 through November 30; 

4. Whether to amend the provisions 

relating to the Control Committee under 

marketing order No. 917 by allowing the 

duties and responsibilities of the 

Control Committee to be transferred to 

one Commodity Committee if the 

provisions of the other Commodity 

Committee are suspended; 

5a. Whether to amend the nectarine 

order by increasing membership from 8 

members to 13 members and revising 

the procedures that constitute quorum 

and voting requirements to conform to 

the increased Committee size. The 

proposal would also add that the 

Committee may vote by facsimile and 

would specify that voting requirements 

for video conferencing would be the 

same as those for assembled meetings; 

5b. Whether to amend the peach order 

by adding that the Peach Commodity 

Committee may vote by facsimile or 

video teleconference; 

6. Whether to amend the nectarine 

order by eliminating the Shippers’

Advisory Committee; 

7a. Whether to amend the nectarine 

order by modifying the definition of 

grower to clarify that officers of 

corporations would be eligible to serve 

in grower positions on the Committee; 

7b. Whether to amend the order by 

modifying the definition of grower to 

clarify that, for peaches, officers of 

corporations would be eligible to serve 

in grower positions on the Committees; 

8a. Whether to amend the order by 

adding a definition of ‘‘pure producer’’

and ‘‘pure grower’’ for purposes of 

eligibility for membership on the 

Committee; 

8b. Whether to amend the order by 

adding a definition for peaches of ‘‘pure 

producer’’ and ‘‘pure grower’’ for 

purposes of eligibility for membership 

on the Committee; 

8c. Whether to amend the nectarine 

order by allowing alternative methods to 

conduct nominations, changing the date 

by which the nomination procedure 

should be held from February 15 to 

January 31, requiring at least 50 percent 

of the positions be held by pure growers 

and adding tenure requirements for 

Committee members; 

8d. Whether to amend the peach 

provisions of the order by allowing 

alternative methods to conduct 

nominations, changing the date by 

which the nomination procedure should 

be held from February 15 to January 31, 

requiring at least 50 percent of the 

positions be held by pure growers, and 

adding tenure requirements for 

Committee members; 

9a. Whether to amend the order by 

authorizing the nominees to state their 

willingness to serve on the Committee 

prior to the selection; 

9b. Whether to amend the order by 

authorizing the peach nominees to state 

their willingness to serve on the 

Committees prior to the selection; 

10a. Whether to amend the order by 

changing the district boundaries under 

the nectarine order; 

71736 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 

10b. Whether to amend the order by 

redefining the peach growing Fresno 

and Tulare districts under the order; 

11. Whether to amend the order by 

changing the names and the 

composition of the districts of the Peach 

Commodity Committee; 

12a. Whether to amend the order to 

allow for interest and/or late payments 

for assessments not paid timely; 

12b. Whether to amend the order to 

allow for interest and/or late payments 

for peach assessments not paid timely 

and to authorize the Committee to 

borrow money for administration of 

peach provisions of the order; 

13a. Whether to amend the order to 

provide authority to recommend 

specific regulations for specific market 

destinations of the product; 

13b. Whether to amend the order to 

provide authority to recommend 

specific regulations for specific market 

destinations of peaches; and, 

14. Whether to amend the order to 

clarify that subcommittees may be 

established by the Peach Commodity 

Committee. 

Findings and Conclusions 

The following findings and 

conclusions on the material issues are 

based on evidence presented at the 

hearing and the record thereof. 

Material Issue Number 1a and 1b— 

Hybrid Fruit 

Sections 916.5 and 917.4 of the orders 

should be amended to allow hybrid fruit 

that exhibits the characteristics of 

nectarines (916.5) or peaches (917.4) 

and is subject to cultural practices 

common to nectarines or peaches be 

subject to marketing order regulations. 

Currently, nectarines are defined in 

marketing order number 916 as all 

varieties of Prunus Amygdalus 

Nectarina, commonly called nectarines, 

grown in the production area. Peaches 

are defined in marketing order number 

917 as the edible portion of all varieties 

of peach trees. 

These proposed amendments would 

provide a procedure for the Committees 

to recommend to USDA specific hybrids 

to be included under the definitions and 

become subject to order provisions. 

The proposed definitions provide that 

the hybrids must exhibit the 

characteristics of a nectarine or peach 

and be subject to cultural practices 

common to nectarines and peaches to be 

considered for inclusion under the 

orders. 

According to the hearing record, the 

cultivation of hybrids has been a 

practice in the nectarine and peach 

industry. Hybrid crosses between 

peaches and nectarines already exist. 

This technology provides for the 

development of fruit and fruit trees with 

more favorable characteristics, such as 

disease resistance. As breeding 

technology becomes more sophisticated, 

it is anticipated that nectarines and 

peaches will be crossbred with other 

tree fruit, such as apricots or plums. 

The proposal would require that in 

order to be subject to order 

requirements, all hybrids would need to 

be recommended to USDA by the 

Committees for inclusion under the 

orders. If these amendments are 

adopted, the Committees would identify 

hybrids currently in production that 

have characteristics of nectarines or 

peaches. The characteristics of the fruit 

would help determine whether the 

hybrids should be regulated. The 

Committees would also consider the 

cultural practices used on that specific 

hybrid, as cultural practices differ 

among various fruit trees. USDA would 

then proceed with rulemaking, as 

appropriate, as to what hybrids would 

be included under the orders. 

It is recommended that the definitions 

of the products regulated under the 

orders be amended to include hybrids. 

The procedure for the Committees to 

recommend to USDA the inclusion of 

hybrids would allow for industry 

deliberations on what hybrids should be 

included. The proposed amendments 

would provide flexibility in including 

hybrids as they are developed and 

provides sufficient safeguards to ensure 

compliance with order provisions. For 

the reasons above, it is recommended 

that sections 916.5 and 917.4 be 

amended to provide that all hybrids 

exhibiting the characteristics of 

nectarines or peaches be classified as a 

nectarine or peach under the respective 

marketing order program, if 

recommended by the Committees and 

approved by USDA. There was no 

opposition testimony on this issue. 

Material Issue Number 2a and 2b— 

Addition of ‘‘Packing’’ as a Handling 

Function 

Section 916.11 of the nectarine 

marketing order and § 917.6 of the 

peach marketing order should be 

amended to specify that the act of 

packing nectarines and peaches is a 

handling function. 

Currently, ‘‘pack’’ is not specified as 

a handling function in §§ 916.11 and 

917.6, the definitions of ‘‘Handle’’. The 

current definitions include selling, 

consigning, delivering, or transporting 

fruit between the production area and 

any point outside, or within the 

production area. Selling the fruit on the 

tree, transporting the fruit within the 

production area from the orchard to the 

packing facility within the area for 

preparation for market or the delivery of 

the fruit to the packing facility are 

activities that are not considered 

handling. 

In its proposal, the Committees 

recommended modifications of 

§§ 916.10 and 917.7, the definitions of 

‘‘Handler.’’ Currently, these definitions 

state that ‘‘Handler’’ means any person, 

except a common or contract carrier 

transporting fruit owned by another 

person, that handles fruit. USDA is not 

recommending that these sections of the 

orders be amended. However, USDA 

recommends adding the term ‘‘pack’’ to 

the functions that constitute handling as 

specified in the definitions of ‘‘Handle’’. 

As the evidence established, packing is 

a function that handlers perform. The 

addition of the term pack to the 

definition of handler would clarify 

which functions are covered. Therefore, 

by adding ‘‘pack’’ as a handling function 

under the definitions of ‘‘Handle’’, the 

general intent of the Committees’

proposal would be met. 

Witnesses testified that in the 

industry, the packer is the party that 

generally assumes all of the 

responsibilities of a handler, except the 

selling of the fruit. In most cases, the 

packer is responsible for inspecting the 

product and is responsible for paying 

assessments and abiding by the 

regulatory provisions of the orders. 

While there may be more than one 

handler involved in the preparation for 

marketing and marketing the product, 

the first handler is the party that is 

responsible for abiding by the 

provisions of the orders. This proposal 

would clarify that packing is considered 

a handling function, and thus, most 

packers would be considered the first 

handler and the entity regulated by the 

orders. 

USDA recommends that the proposed 

amendments be modified. The proposed 

amendment as presented by the 

Committees includes the statement that 

‘‘Handle’’ and ‘‘pack’’ are synonymous. 

Because there could be situations where 

a handler performs functions other than 

packing, these terms are not always 

synonymous. However, ‘‘pack’’ is an 

important function of handlers. 

Thus, USDA recommends adding the 

word ‘‘pack’’ as a handling function 

among the other handling functions of 

selling, consigning, delivering or 

transporting under the nectarine order. 

Specifically, the modification would 

add the word ‘‘pack’’ before ‘‘sell’’ and 

the word ‘‘packed’’ before ‘‘sold’’ in 

§ 916.11. For peaches, the proposed 

change cannot impact the pear 

provisions. Therefore, USDA 

recommends that a proviso be added to 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 71737 

§ 917.6 to state that packing is a 

handling function of peaches. 

There was no opposition testimony on 

this issue. For the above reasons, it is 

recommended that the proposed 

amendments of §§ 916.11 and 917.6 be 

modified to specify that ‘‘pack’’ is a 

handling function under the nectarine 

and peach orders. The proposed 

amendments to §§ 916.10 and 917.7, as 

presented by the Committees, are not 

being recommended in this decision. 

Material Issue Number 3—Change in the 

Nectarine Marketing Season 

Section 916.15 of the nectarine 

marketing order should be amended by 

changing the marketing season from 

May 1 through November 30 to April 1 

through November 30. Record evidence 

indicates that this amendment would 

more accurately reflect the nectarine 

industry’s current marketing season and 

conform to the current handling 

regulations. 

Witnesses testified that due to new 

methods used in plant breeding, the 

industry now has nectarine varieties 

that mature earlier than the previous 

generations of nectarines. There are 

varieties that are harvested earlier than 

in the past and thus, marketed in early 

April of each year, rather than May. The 

current handling regulations in effect for 

nectarines begins April 1. 

Because the current marketing season 

begins in May, fruit harvested in the 

month of April is attributed to the prior 

year’s marketing season but is regulated 

by the present year’s regulations. The 

proposed amendment would conform 

the term of the marketing season to the 

regulatory period. 

The record supports changing the 

marketing season for nectarines from 

May 1 through November 30 to April 1 

through November 30. There was no 

opposition testimony on this issue. For 

the above reasons, it is recommended 

that § 916.15 be amended to include an 

earlier beginning date of April 1 for the 

order’s marketing period. 

Material Issue Number 4—Marketing 

Order 917 Control Committee 

Section 917.18, Nomination of 

Commodity Committee members of the 

Control Committee of the California 

peach marketing order should be 

amended. The proposed amendment 

would allow the duties and 

responsibilities of the Control 

Committee to be transferred to one 

Commodity Committee if the provisions 

of the other Commodity Committee are 

suspended. 

Section 917.18 of the marketing order 

currently provides for the establishment 

of a Control Committee to oversee and 

coordinate the joint activities of the 

Peach and Pear Commodity Committees 

under Marketing Order 917. The order 

does not contain, however, provisions 

for the Control Committee if only one 

Commodity Committee is operational. 

Since 1994, when the California pear 

industry suspended their order 

provisions, California peaches have 

been the only active commodity under 

marketing order 917. This proposed 

amendment would address the 

administrative needs of the current 

situation. 

Record evidence indicates that since 

the pear program has been suspended, 

the duties of the Control Committee 

have lessened. In the Pear Commodity 

Committee’s absence, the Peach 

Commodity Committee has continued to 

operate in conjunction with the Control 

Committee. However, in recent years the 

Control Committee has held meetings 

infrequently and only to carry out duties 

that the Peach Commodity Committee 

cannot perform. 

Witnesses testified that the proposed 

amendment would allow the duties of 

the Control Committee to be transferred 

to a Commodity Committee when only 

one Commodity Committee was 

operational under marketing order 917. 

The proposed amendment would not 

terminate the Control Committee. The 

Control Committee would become 

active if the California pear industry 

were to vote to re-activate the pear 

provisions of marketing order 917. 

Thus, the proposed amendment, if 

adopted, would allow marketing order 

917 to operate efficiently, yet would 

also allow for flexibility if the 

commodities active under the order 

were to change. 

There was no opposition testimony on 

this issue and the record supports this 

change. For the above reasons, it is 

recommended that § 917.18 be amended 

to allow the duties and responsibilities 

of the Control Committee to be 

transferred to one Commodity 

Committee if the provisions of the other 

Commodity Committee are suspended. 

Material Issue 5a and 5b—Increase in 

Membership of the Administrative 

Committee for Nectarines and Addition 

of Authority To Vote Via Facsimile for 

Both the Nectarine and Peach 

Commodity Committees 

Section 916.20 of the nectarine order 

should be amended to increase the 

membership on the Nectarine 

Administrative Committee from 8 

members to 13 members. Order 

provisions relating to quorum and 

voting requirements should also be 

amended to conform to the increased 

Committee size. Section 916.32 of the 

nectarine order and § 917.29 (d) of the 

peach order should also be amended to 

add the authority for the Committees to 

vote by facsimile, as well as to specify 

that voting requirements for video 

conferencing would be the same as 

those for assembled meetings. 

Record evidence supports the increase 

in the Nectarine Administrative 

Committee size. Currently, with only a 

membership of 8, the Nectarine 

Administrative Committee frequently 

does not have enough members present 

at meetings to constitute a quorum or 

meet the requirements for a supermajority vote. As a result, decisionmaking is often delayed until the next 

Committee meeting. Such delays make 

the functioning of the NAC less 

efficient, especially when emergency 

decisions need to be made. 

Witnesses testified that the proposal 

to increase membership would address 

the quorum shortage by providing for a 

larger pool of committee members to 

attend meetings. It would also result in 

greater industry participation in 

marketing order activities by allowing 

more persons to be appointed to the 

Committee. 

Record evidence indicates that if the 

proposed amendment were 

implemented, a quorum of 9 out of 13 

Committee members would be needed 

in order to maintain roughly the same 

ratio that is currently in place. The 

current Committee requires 6 out of 8 

members to constitute a quorum. 

This proposed amendment would also 

provide authority for voting by facsimile 

and holding meetings via video 

teleconference for both the Nectarine 

and Peach Commodity Committees. Use 

of this technology would result in 

timesavings while still allowing the 

Committees to conduct their business. 

For example, this technology would be 

helpful in providing flexibility during 

harvest season when Committee 

members find it more challenging to 

take time away from the field. 

According to the record, voting 

requirements for meetings held via 

videoconference would be the same as 

those currently in place for 

conventional committee meetings. 

Because video conferencing involves 

technology that allows each member to 

see the other members in attendance at 

the meeting, any voting would be 

verified through visually accounting for 

the votes made. Votes made by 

conference call would need to be 

followed by the submission of signed 

votes submitted to the Committee 

offices by mail or fax. Votes made by fax 

would need to be unanimous. 

Record evidence also supports 

including authority to make use of any 

71738 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 

new technology that might be developed 

in the future as part of this proposed 

amendment. For this reason, USDA 

recommends adding the phrase, ‘‘or any 

other means of communication 

recommended by the Committee and 

approved by the Secretary,’’ to the 

proposed amendatory language. The 

addition of this language would increase 

the flexibility of this authority and is 

commonly found in other federal 

marketing orders. 

There was no opposition testimony 

given against this proposed amendment. 

For the reasons stated above, it is 

recommended that § 916.20 be amended 

to increase the membership on the 

Nectarine Administrative Committee 

from 8 members to 13 members. Section 

916.32 of the nectarine order and 

section 917.29 (d) of the peach order 

should also be amended to add the 

authority for the Committees to vote by 

facsimile and to establish voting 

requirements. 

USDA also recommends adding 

language that would allow the 

Committees to adopt the usage of any 

new technology that would be helpful 

in facilitating committee meetings in the 

future. 

Material Issue Number 6—Elimination 

of the Shippers’ Advisory Committee 

Section 916.37, Shipper’s Advisory 

Committee, should be removed from the 

California nectarine marketing order 

language. 

The Shipper’s Advisory Committee 

(SAC) was originally established to 

advise the Nectarine Administrative 

Committee on marketing conditions and 

to suggest the level of regulation 

believed to be necessary to affect an 

orderly marketing of the crop. 

Upon implementation, the SAC was 

intended to have five handler members 

and five alternate handler members. The 

role of the SAC was exclusively an 

advisory one, as the SAC did not have 

any voting rights under the marketing 

order. With regard to their role under 

the marketing order, the industry 

believed that handlers/shippers would 

be in a better position to furnish the 

Committee with information regarding 

market conditions and preferences than 

growers. 

However, record evidence indicates 

that the SAC has not been active for 

over 30 years. According to the record, 

removal of order language in § 916.37 

would remove obsolete language from 

the order provisions. 

There was no opposition testimony 

given against this proposed amendment. 

For the reasons stated above, the record 

supports removing § 916.37 as it 

currently serves no useful purpose. 

Material Issue Number 7a and 7b—

Eligibility of Corporate Officers for 

Committee Membership 

Section 916.9, Grower, of the 

California nectarine order and § 917.5, 

Grower, of the California peach order, 

should be amended to clarify that 

officers of corporations would be 

eligible to serve in grower positions. 

The term ‘‘grower’’ under both 

marketing orders is currently defined as 

a grower of nectarines or peaches for the 

fresh market who has a proprietary 

interest therein. The nomination 

procedures in § 916.20 and 917.24 

specify that employees of growers are 

eligible to serve as committee members 

or alternates on the nectarine and peach 

marketing order administrative 

committees. However, the nomination 

procedures and the current definition of 

grower do not specify that officers of 

grower corporations are eligible to serve 

in grower positions. The proposed 

amendment would clarify that corporate 

officers, as well as employees of 

growers, are eligible to serve on the 

Committee in grower positions. 

Witnesses testified that the proposed 

amendment would specify that that 

corporate officers would be eligible to 

serve on the Committees, to participate 

in nomination procedures as growers, 

and to cast referenda votes on behalf of 

their corporations. However, any 

corporate officer who is also a grower 

independent of the corporation would 

be allowed to serve and vote in only one 

capacity. 

Record evidence supports amending 

the definitions of grower to include 

officers of corporations for purposes of 

eligibility for membership in the 

Nectarine and Peach Committees. These 

amendments would clarify the 

definitions of grower when the entity is 

a corporation. 

In order to provide clarity, USDA 

recommends modifying the proposed 

definitions to state that both employees 

of growers and corporate officers of 

growers are eligible to serve on the 

Committees in grower positions. The 

modified definitions would read as 

follows: 

‘‘Grower is synonymous with 

producer and means any person who 

produces fruit (or nectarines) for market 

in fresh form, and who has a proprietary 

interest therein. Employees of growers 

and officers of corporations actively 

engaged in growing peaches are eligible 

to serve in grower positions on the 

Committee.’’

There was no opposition testimony 

given against this proposed amendment. 

For the reasons stated above, it is 

recommended that § 916.9, Grower, of 

the California nectarine order and 

§ 917.5, Grower, of the California peach 

order, should be amended as modified 

by USDA. 

Material Issue Number 8a and 8b—

Addition of Definitions for ‘‘Pure 

Producer’’ and ‘‘Pure Grower’’

A new § 916.16, Pure grower or pure 

producer, should be added to the 

California nectarine order. Additionally, 

a new § 917.8, Pure grower or pure 

producer, should be added to the 

California peach order. 

The nectarine and peach marketing 

orders do not currently distinguish pure 

growers from all other growers. The 

proposed definitions of ‘‘pure grower’’

would be used in conjunction with the 

proposed amendments discussed in 

Material Issue 8(c) and 8(d) that would 

require a minimum number of pure 

grower seats on each administrative 

Committee. 

The proposed amendments would 

identify pure growers as any grower: (1) 

Who produces his or her own product 

(and is not an employee or officer of a 

packing business); or (2) who produces 

and handles his or her own product, 

provided that a pure grower can pack 

the production of other growers as long 

as the production packed does not 

exceed 25 percent of the total 

production packed for that marketing 

year by that pure grower’s packing 

facility. Regarding the second situation, 

at least 75 percent of that grower’s total 

amount packed must involve his or her 

own fruit. This threshold would make 

allowances for pure growers who pack 

their own fruit and also pack small 

quantities of fruit for other growers. 

According to the record, witnesses 

believe that a distinction is needed 

because pure growers are considered by 

the industry to be more financially at 

risk than other growers. The record 

indicates that a pure grower’s total 

business and financial activities are 

primarily reliant on their own 

production. 

Witnesses stated that, in the industry, 

there are growers who handle their own 

product. Some of these growers also 

pack other growers’ products. The 

record indicated that growers who also 

pack a significant amount of fruit from 

other growers should not be considered 

pure growers because their risks as a 

grower are offset by their packing 

operations. However, some of these 

grower/packers pack small quantities of 

fruit for a few other growers. 

Accordingly, 25 percent (represented as 

the grower/packer’s total pack-out) is 

considered a reasonable threshold to 

determine whether a grower/packer 

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should be considered a pure grower for 

eligibility purposes on the Committees. 

Record evidence also indicates that 

any grower who also operates as a 

handler could be eligible to qualify as 

either a grower member or a handler 

member on the Committees. However, 

that person must select and may only 

participate in one nomination process: 

either as a grower or as a handler, but 

not both. 

In order to provide clarity, USDA 

recommends modifying the proposed 

definition. The modified definition 

would read as follows: 

‘‘Pure grower means any grower: (1) 

Who produces his or her own product 

(and is not an employee or officer of a 

packing business); (2) who produces 

and handles his or her own product; 

Provided that; a pure grower can pack 

the production of other growers as long 

as the production packed does not 

exceed 25 percent of the total 

production packed for that marketing 

year by that pure grower’s packing 

facility. A pure producer is synonymous 

with pure grower.’’

USDA recommends that authority be 

added to this provision allowing the 

Committees to recommend to USDA, 

rules and regulations for the 

implementation and operation of these 

sections. 

According to the record, the proposed 

definitions of ‘‘pure grower’’ would be 

used in conjunction with the proposed 

amendments discussed in Material Issue 

8(c) and 8(d) that would require a 

minimum number of pure growers seats 

on each administrative committee. 

Evidence suggests that representation of 

pure growers on the administrative 

committees is important to Committee 

decision-making as they offer a different 

industry perspective than growers 

whose financial interests are not limited 

to growing only. 

Record evidence supports the 

conclusion that the representation of 

pure grower interests on the orders’

administrative committees should be 

added. No opposition to this proposal 

was presented at the hearing. Therefore, 

it is recommended that § 916.16 and 

§ 917.8, Pure grower and pure producer, 

be added, as modified by USDA, to the 

marketing orders. 

Material Issue Number 8c and 8d—

Modification of Nomination Procedures 

and Addition of Tenure Requirements 

Marketing order 916 regulating 

California nectarines should be 

amended to allow alternative methods 

for conducting nominations to be used, 

to change the date by which the 

nomination procedure should be held 

from February 15 to January 31, to 

require that at least 50 percent of the 

positions be held by pure growers, and 

to add tenure requirements for 

Committee members. 

Similarly, the peach provisions under 

marketing order 917 regulating 

California peaches should be amended. 

The proposed amendments would allow 

alternative methods to conduct 

nominations for the Peach Commodity 

Committee, would change the date by 

which the nomination procedure should 

be held from February 15 to January 31, 

would require that at least 50 percent of 

the positions be held by pure growers, 

and would add tenure requirements for 

Peach Commodity Committee members. 

Currently, nominations for the 

nectarine and peach administrative 

committees are made at grower industry 

meetings. According to the hearing 

record, nomination procedures would 

be modified to provide for mailings of 

ballots and would change the beginning 

date of the nomination period from 

February 15 to January 31. The change 

in the beginning date would be 

necessary in order to provide extra time 

for the mailing of ballots. Mailing of 

ballots would provide every grower 

more opportunity to vote in the 

nomination of members by making it 

easier for growers to participate. 

Witnesses testified that for the past 20 

years, many growers do not attend 

industry nomination meetings. This 

proposal would modify the nomination 

process by allowing mail balloting in 

the nomination process. It is intended 

that this will result in greater industry 

participation in the nomination process. 

Record evidence also indicated an 

overriding concern within the industry 

for representation of pure grower 

interests in the decision-making 

functions of the administrative 

committees. Witnesses contrasted puregrower interests with larger corporate 

grower interests and indicated that 

meetings are more accessible to 

corporate growers represented by 

employees. In contrast, a pure grower 

would likely attend industry meetings 

him or herself. 

Nomination ballots would be mailed 

to all growers based on the district 

where their primary production base is 

located. While growers would be 

allowed to exchange their ballot for 

those of another district if they had 

production in said district (regardless of 

the volume that they produced in each 

district), they would be limited to filing 

just one ballot in the selection process. 

This would afford all growers the 

opportunity to vote for the nomination 

of Committee members regardless of 

whether they could attend industry 

meetings. Since the mailing of ballots 

would extend the balloting process, this 

amendment would also move the 

deadline for nominations from February 

15 to January 31. 

If implemented, the proposed 

amendment would also require that 50 

percent of the grower membership seats 

of each Committee be allocated to pure 

grower seats. This requirement would 

ensure that pure nectarine and peach 

growers are participating in marketing 

order program deliberations. This 

proposal would be implemented in 

conjunction with the proposed 

amendments discussed above in 

Material Issue 8a and 8b, the addition of 

a definition for ‘‘pure grower.’’

Record evidence also supports the 

implementation of tenure requirements 

on the nectarine and peach 

administrative committees. The 

proposed tenure requirements would 

limit the amount of time a Committee 

member could serve to 2 consecutive 3- 

year terms. This provision would allow 

for broader industry participation in the 

Committees and would allow new 

industry leaders to be developed. The 

involvement of new members would 

allow for the introduction of new ideas 

and innovation in the direction of the 

nectarine and peach programs. 

If implemented, any past time served 

on the Committee prior to this 

amendment being implemented would 

not count toward the tenure 

requirements. USDA recommends 

modifying the proposal to specify that 

tenure does not apply to time served 

prior to the effective date of this 

amendment. If a member were 

appointed to fill a vacancy or unexpired 

term, that time in service would not 

count toward the six-year limit. Also, 

once a member has completed his or her 

third term, it would be possible for that 

person to be nominated into an 

alternate’s position. After one term as an 

alternate, that person would be eligible 

to be appointed as a member again. 

Record evidence supports the 

conclusion that the above-proposed 

amendments would assist the Nectarine 

and Peach Committees in generating 

broader industry participation in 

Committee nominations, would provide 

for representation of pure grower 

interests on the Committees, would 

promote rotation in the service of 

Committee members, and would 

encourage participation of new 

members on the Committee. Record 

evidence also indicates that changing 

the deadline for nominations from 

February 15 to January 31 is necessary 

since the mailing of ballots would 

extend the balloting process. 

No opposition to the above proposals 

was received at the hearing. For the 

71740 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 

reasons outlined in this material issue, 

§§ 916.20 and 916.22 should be 

amended. Similarly, the peach 

provisions in § 917.24 should be 

amended, as modified by USDA. 

Material Issue Number 9a and 9b—

Modification of the Acceptance 

Procedure for Persons Nominated To 

Serve on the Nectarine and Peach 

Committees 

Section 916.25, Acceptance, of the 

California nectarine order should be 

amended to authorize nominees to the 

Nectarine Administrative Committee to 

state their willingness to serve on the 

Committee prior to selection by USDA. 

Similarly, § 917.25 of the California 

peach order should be amended to 

authorize nominees to the Peach 

Commodity Committee to state their 

willingness to serve prior to selection. 

This proposed amendment would 

modify the current acceptance 

procedure for persons nominated to 

serve on the Nectarine and Peach 

Committees. Currently, the acceptance 

procedure for persons nominated and 

selected to serve on the Committees 

involves a two-step process. First, 

persons nominated for consideration 

and possible appointment to the 

Committee by USDA are required to 

complete a form indicating their 

eligibility to sit as a member of the 

Committee. Once appointed by USDA, 

nominees must then sign an additional 

form indicating their acceptance of the 

appointment. If this amendment were 

implemented, the two steps could be 

combined into one, thus resulting in 

less paperwork, a shorter acceptance 

procedure and improved efficiency in 

the acceptance process. 

Record evidence supports this 

proposed change. No opposition to this 

proposed amendment was presented at 

the hearing. For the reasons outlined 

above, § 916.25, Acceptance, of the 

California nectarine order should be 

amended. Section 917.25, Selection of 

members of various commodity 

committees, of the California peach 

order should also be amended. 

Material Issue Number 10a and 10b—

Modification of Marketing Order 916 

District Boundaries and Modification of 

Marketing Order 917 Fresno and Tulare 

Representation Area Boundaries 

Section 916.12 of the California 

nectarine order and § 917.14 of the 

California peach marketing order should 

be amended. Section 916.12 should be 

amended to change the district 

boundaries for Districts 1 and 2 under 

the nectarine order (referred to as the 

Fresno and Tulare districts). Section 

917.14 should be amended to redefine 

the Fresno and Tulare Peach 

Commodity Committee representation 

areas under the peach provisions of 

order 917. 

Witnesses stated that nectarine and 

peach production has shifted over time 

such that current day production 

patterns are more in line with each 

other than they were previously. For 

this reason, district boundaries for 

nectarines and the Peach Commodity 

Committee representation areas should 

be redefined to better reflect current 

production trends. 

According to the hearing record, two 

key elements would comprise this 

change. First, the Tulare District 

(District 2 under the nectarine order) 

would have as its northern boundary the 

Tulare County line instead of Avenue 

384, which is formally defined as the 

fourth standard parallel south of the 

Mount Diablo Baseline of the general 

land office. This area is currently part of 

the Fresno District (District 1 under the 

nectarine order). 

Secondly, Kings County would shift 

from the Fresno District to the Tulare 

District. This change in the allocation of 

counties among districts would better 

reflect current day production within 

the nectarine and peach production 

areas, as the Tulare and Kings Counties 

have been increasing in their peach 

production in recent years. 

According to the record, 2003 

nectarine production totaled 21,613,927 

containers. Under the current 

definitions for Districts 1 and 2 (Fresno 

and Tulare Districts, respectively) the 

former is credited with a production of 

20,716,073 containers (96 percent) and 

the later is credited with 497,772 

containers (2 percent). If the proposed 

amendment were implemented, 2003 

production for the Fresno District would 

equal 14,602,037 containers (68 percent) 

and Tulare District production for that 

year would equal 6,611,808 containers 

(31 percent). 

In 2003, total California peach 

production equaled 22,534,252 

containers. Of that amount, 20,754,501 

containers (90 percent) were produced 

in the current Fresno District and 

604,438 containers (3 percent) were 

produced in the current Tulare District. 

If the proposed boundary changes were 

implemented, production attributed to 

Fresno District would equal 14,602,037 

containers (65 percent) and production 

attributed to Tulare District would equal 

6,611,808 containers (30 percent). 

The proposed modification in district 

boundaries would alter the production 

base used to define the Nectarine and 

Peach Commodity Committee 

representation and would result in 

better representation of grower interests 

in the Tulare District for each industry. 

This would result in a more equitable 

representation of both production and 

grower interests on the nectarine and 

Peach Commodity Committees. 

Record evidence supports the 

modification of district boundary lines 

for Districts 1 and 2 under the nectarine 

order and the Fresno and Tulare 

Districts under the peach program. For 

the reasons stated above, it is 

recommended that § 916.12 of the 

California nectarine order and § 917.14 

of the California peach marketing order 

be amended. 

Material Issue Number 11—

Modification of Marketing Order 917 

Peach Commodity Committee 

Representation Areas 

Section 917.22, Nomination of the 

Peach Commodity Committee members, 

should be amended to reflect 

conforming changes in representation 

that would result if the amendments 

discussed in Material Issue 10b were 

implemented. Furthermore, the Peach 

Commodity Committee representation 

areas should be renamed so that they are 

consistent with the district 

nomenclature of the nectarine order. 

The current peach representation area 

names and the corresponding 

Committee representation for each 

peach producing district, or groups of 

districts, under order 917 are as follows: 

(a) South Coast District and Southern 

California District: one nominee. 

(b) Tehachapi District and Kern 

District: one nominee. 

(c) Tulare District: one nominee. 

(d) Fresno District: eight nominees. 

(e) Stanislaus District and Stockton 

District: one nominee. 

(f) All of the production area not 

included in the above: one nominee. 

If the proposed amendment were 

implemented, the new distribution 

would place three member seats in the 

newly defined Tulare District and 

would reduce the member seats in the 

newly defined Fresno District to seven. 

The representation area defined as, ‘‘(f) 

All of the production area not included 

in the above’’ in the current language of 

§ 917.22 (above) would be removed. 

Membership seats for the remaining 

districts would remain as they are 

currently allocated, with one seat for 

each of the following: The combined 

Tehachapi and Kern Districts, the 

combined South Coast and Southern 

California Districts, and the combined 

Stanislaus and Stockton Districts plus 

all remaining production. Total 

membership for the Peach Commodity 

Committee would remain at 13. 

In addition to the redistricting and 

reallocation, record evidence supports 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 71741 

renaming the peach representation areas 

with the comparable district 

nomenclature that is currently used in 

the nectarine order. While the names for 

the peach representation areas remain 

tied to their geographic descriptions, 

common references to those areas rely 

on numeric names. Thus, the proposed 

name change, combined with the 

proposed reallocation in district 

representation and redefinition of 

district boundaries discussed in 

Material Issue 10b, would result in the 

following: 

(a) District 1 composed of the Fresno 

District: seven nominees. 

(b) District 2 composed of the Tulare 

District: three nominees. 

(c) District 3 composed of the 

Tehachapi District and Kern District: 

one nominee. 

(d) District 5 composed of the South 

Coast District and Southern California 

District: one nominee. 

(e) District 4 composed of the 

Stanislaus District, Stockton District and 

all of the production area not included 

in paragraphs (a) through (d): One 

nominee. 

The proposed renaming of the above 

representation areas as published in 

Notice of Hearing and as presented by 

witnesses had proposed Districts 4 and 

5 reversed. However, with District 4 

originally listed as (d) and defined as 

‘‘Stanislaus District, Stockton District 

and all of the production area not 

included in paragraphs (a) through (d),’’

followed by paragraph District 5, or 

paragraph (e), the definition of District 

4 would have been incorrect. USDA 

recommends reversing the order of 

paragraphs (d) and (e) published in the 

Notice so that the language reads as 

outlined above. 

Record evidence supports this 

amendment. No opposition to these 

amendments was presented at the 

hearing. For the reasons outlined above, 

it is recommended that § 917.22, 

Nomination of the Peach Commodity 

Committee members, be amended. Also, 

USDA recommends modifying the 

proposed amendatory language for 

§ 917.22 by reversing the order of 

paragraphs (d) and (e) as published in 

the Notice. 

Material Issue Number 12a and 12b—

Addition of Interest and Penalties for 

Late Payments and Authority To Borrow 

Funds 

Section 916.41 of the nectarine order 

and § 917.37 of the peach order should 

be amended to allow for interest and/or 

late payments for assessments not paid 

on time. Section 917.37 should be 

further amended to authorize the 

Committee to borrow money for 

administration of peach provisions of 

the order. 

Currently there are no provisions 

providing for penalties or interest 

charges on late assessment payments 

under either the nectarine or peach 

order. 

Record evidence indicates that the 

proposed amendment would strengthen 

the assessment collection functions of 

the orders and, in the case of peaches, 

allow access to additional funds. 

Implementation of interest and late 

payments would serve as an incentive 

for handlers to pay their assessments in 

a timely manner. And, adding the 

authority to borrow funds to marketing 

order 917 would allow the Control and 

Peach Committees access to additional 

funds to administer the order when the 

carry forward of assessment monies is 

inadequate. 

There was no opposition testimony 

given against this proposed amendment. 

For the reasons stated above, it is 

recommended that § 916.41 and 

§ 917.37 be amended. 

Material Issue Number 13a and 13b—

Authority To Recommend Regulations 

by Market Destination 

This proposed amendment would 

have provided authority under the 

nectarine and peach programs to 

recommend specific regulations for 

specific market destinations. Over 100 

comments in opposition to this 

proposed amendment were filed during 

the briefing period following the public 

hearing on proposed amendments to 

marketing orders 916 and 917. 

Comments stated concerns that the 

proposed authority would negatively 

impact the distribution of fruit to certain 

markets and would unfairly 

disadvantage certain handlers who ship 

utility-grade product overseas. The 

Nectarine and Peach Commodity 

Committees, in their brief, requested 

that this proposal be withdrawn. 

Accordingly, proposal 13 is not being 

considered in this recommended 

decision. 

Material Issue Number 14—

Establishment of Subcommittees Under 

the Peach Commodity Committee 

Section 917.35 of the order should be 

amended to clarify that the Peach 

Commodity Committee may establish 

subcommittees. 

Witnesses at the hearing explained 

that the order does not currently specify 

that the Peach Commodity Committee 

can establish subcommittees. However, 

the language in § 917.35 does state that 

‘‘other committees’’ can be established. 

This proposal would specify that ‘‘other 

committees’’ established by Peach 

Committee could be referred to as 

‘‘subcommittees.’’ The proposed 

amendment is intended as a clarifying 

change needed to update the order. 

Record evidence indicates that the 

subcommittee structure is already in 

place for the peach industry, and that 

the proposed amendment would result 

in a simple name change for all subgroups currently existing under the 

Control and Peach Commodity 

Committees. 

No opposition to this amendment was 

presented at the hearing. For the reasons 

outlined above, it is recommended that 

§ 917.35 be amended. 

Conforming Changes 

The Agricultural Marketing Service 

proposed to make such changes as may 

be necessary to the order to conform 

with any amendment that may result 

from the hearing. Necessary conforming 

changes have been identified and 

discussed in this Recommended 

Decision under the pertinent material 

issues. 

Small Business Considerations 

Pursuant to the 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 

initial regulatory flexibility analysis. 

The purpose of the RFA is to fit 

regulatory actions to the scale of 

business subject to such actions so that 

small businesses will not be unduly or 

disproportionately burdened. Marketing 

orders and amendments thereto are 

unique in that they are normally 

brought about through group action of 

essentially small entities for their own 

benefit. Thus, both the RFA and the Act 

are compatible with respect to small 

entities. 

Small agricultural growers are defined 

by the Small Business Administration 

(SBA)(13 CFR 121.201) as those having 

annual receipts of less than $750,000. 

Small agricultural service firms, which 

include handlers regulated under the 

order, were defined at the time of the 

hearing as those with annual receipts of 

less than $5,000,000. The definition of 

small agricultural service firm has 

subsequently changed to one with 

annual receipts of $6,000,000. 

Interested persons were invited to 

present evidence at the hearing on the 

probable regulatory and informational 

impact on growers and handlers of the 

proposed amendments, and in 

particular the impact on small 

businesses. The record evidence shows 

that most of the proposed amendments 

are designed to enhance industry 

71742 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 

efficiencies and streamline 

administrative operations of the 

marketing order Committees. The 

amendments are not expected to have 

any direct cost impacts on growers or 

handlers, whether small or large. 

Improved operating efficiencies of the 

marketing order programs and their 

administrative committees are expected 

to positively benefit the nectarine and 

peach industries. 

According to the record, there are 

approximately 207 California nectarine 

and peach handlers (combined) and 

approximately 1,500 growers (combined 

nectarines and peaches) in the 

production area, the State of California. 

A majority of these handlers and 

growers may be classified as small 

entities. 

Based on calculations made by the 

Peach and Nectarine Committees’ staff, 

witnesses indicated that about 26 

handlers (13 percent) would qualify as 

large business entities under the SBA 

definition of a large agricultural service 

firm ($5,000,000). For the 2004 season, 

it was estimated that the average 

handler price received was eight dollars 

per container or container equivalent of 

nectarines or peaches. Thus, a handler 

would have to ship at least 625,000 

containers to have annual receipts of 5 

million dollars. Given data on 

shipments presented at the hearing and 

the estimated eight-dollar average 

handler price received during the 2004 

season, small handlers represented 

approximately 87 percent of all the 

handlers within the industry. Under the 

6 million dollar definition, more than 87 

percent of handlers would qualify as 

small handler entities. 

Record evidence also indicated that 

less than 20 percent of the combined 

number of California nectarine and 

peach growers could be defined as other 

than small entities. The Committees 

estimated that the average 2004 grower 

price received for nectarines and 

peaches was 5 dollars per container or 

a container equivalent. A grower would 

have to produce at least 150,000 

containers of nectarines and peaches to 

have annual receipts of 750,000 dollars. 

Given data maintained by the 

Committees’ staff and the five dollar 

estimated average grower price received 

during the 2004 season, the staff 

estimates that more than 80 percent of 

growers can be classified as small 

growers. 

Evidence presented at the hearing 

indicates an average 2004 grower price 

of five dollars per container or container 

equivalent for both nectarines and 

peaches, and a combined pack-out of 

approximately 40,422,900 containers. 

Thus, the value of the 2004 pack-out is 

estimated to be $202,114,500. Dividing 

this total estimated grower revenue by 

the estimated number of combined 

nectarine and peach growers (1,500) 

yields an estimate of 2004 average 

revenue per grower of about $134,743. 

Because many growers produce both 

commodities, industry nectarine and 

peach production statistics were 

presented at the hearing as combined 

totals. 

National Agricultural Statistical 

Service (NASS) data presented at the 

hearing provides the following 

production profile for California 

nectarines and peaches, respectively (all 

numbers are two-year averages for the 

2003 crop year and preliminary data for 

2004): Bearing acres, 36,500 of 

nectarines and 37,000 of peaches; yield 

per acre of utilized production, 7.19 

tons and 10.84 tons; annual utilized 

production, 262,500 tons and 401,000 

tons. Utilized production of both 

nectarines and peaches was less than 

total production in 2004; utilized 

production data was therefore used in 

the computation. Two-year (2003 and 

2004) average grower prices per ton for 

nectarines and peaches were $391 and 

$309.50 respectively. However, $309.50 

is the peach price per ton for both fresh 

and processed uses. Approximately one 

third of California freestone peaches are 

sold for processing at a price lower than 

growers receive for fresh market sales. 

Therefore, a better estimate of the price 

per ton for fresh peach sales is to use the 

U.S. estimated grower price for fresh 

peaches of 27 cents per pound ($540 per 

ton) for 2003, the most recent year for 

which a U.S. fresh peach price was 

available from the Economic Research 

Service of the USDA. 

This NASS and ERS data is used to 

compute an additional estimate of 

average annual sales revenue per 

producer. By assuming that growers of 

nectarines are also growers of peaches, 

the 2004 average acreage for these crops 

(dividing the sum of nectarine and 

peach bearing acres by two) is equal to 

36,750 acres. Dividing this number by 

the number of combined peach and 

nectarine growers reported by CTFA 

(1,500) yields an estimate of 24.5 acres 

as the average size of a sample nectarine 

or peach farm in 2004. If the sample 

farm’s acreage was split evenly between 

nectarines and peaches (12.5 acres of 

each fruit) and production yields equal 

to the statewide average (reported 

above), that farm would have produced 

and sold 89.88 tons of nectarines and 

134.42 tons of peaches. The value of 

production for that sample farm would 

have been $35,143 for nectarines and 

$72,587 for peaches, or $107,730 total. 

This figure is lower than the $134,743 

estimate using industry data. However, 

both computations confirm that the 

average nectarine or peach grower 

qualifies as a small grower under the 

SBA definition. 

The proposed amendments would: 

update definitions and districts in both 

orders; increase Committee membership 

of the Nectarine Administrative 

Committee from eight to thirteen 

members and modify sections of the 

order to conform to the increased 

membership; eliminate the Shippers 

Advisory Committee (M.O. No. 916); 

allow the Control Committee under 

M.O. No. 917 to be suspended if the 

provisions of one commodity are 

suspended and transfer applicable 

duties and responsibilities to the 

remaining Commodity Committee; and 

authorize interest and late payment 

charges on assessments that are paid 

late. 

All of the proposals are intended to 

streamline and improve the 

administration, operation, and 

functioning of the programs. Many of 

the proposed amendments would update the language of these two orders, 

thus better representing, and 

conforming with, current practices in 

these industries. The proposed 

amendments are not expected to result 

in any significant cost increases for 

growers or handlers. More efficient 

administration of program activities 

may result in cost savings for the Peach 

and Nectarine Committees. 

Proposal 1 would amend the order to 

allow hybrid fruit that exhibits the 

characteristics of nectarines or peaches 

and is subject to cultural practices 

common to nectarines and peaches be 

subject to marketing order regulations. 

This proposed amendment provides a 

procedure for the Committees to 

recommend to USDA the specific 

hybrids to be included under the 

definitions and subject to order 

provisions. 

The cultivation of hybrid fruit has 

been a practice of the nectarine and 

peach industries. The improvement in 

breeding technology provides for the 

development of fruit and fruit trees with 

more favorable characteristics, such as 

disease resistance. As breeding 

technology becomes more sophisticated, 

it is anticipated that nectarines and 

peaches will be crossbred with other 

tree fruit, such as apricots and plums. 

The proposal would require that in 

order to be subject to order 

requirements, all hybrids would need to 

be recommended to USDA by the 

Committees for inclusion under the 

order. If this amendment is adopted, the 

Committees would identify hybrids 

currently in production that have 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 71743 

characteristics of nectarines or peaches. 

The characteristics of the fruit would 

help determine whether the hybrid 

should be regulated. The Committees 

would also consider the cultural 

practices used on that specific hybrid, 

as cultural practices differ among 

various fruit trees. USDA would then 

proceed with rulemaking, as 

appropriate, as to what hybrids would 

be included under the order. 

The proposed amendment would 

provide flexibility in including hybrids 

as they are developed and provides 

sufficient safeguards to ensure 

compliance of order provisions. 

Incorporating specific reference to 

hybrid fruit into the definitions of 

‘‘nectarine’’ and ‘‘peach’’ is not 

expected to result in any significant 

increase in costs to growers or handlers. 

There may be slight increases in the 

administration costs of the nectarine 

and peach orders in terms of program 

oversight, but it is expected that any 

increases would be offset by the benefits 

of including hybrids under the orders 

provisions. 

Proposal 2 would specify that the act 

of ‘‘packing’’ nectarines and peaches 

would be a handling function under the 

orders. Most packers already assume all 

of the responsibilities of a handler, 

except the selling of the fruit and thus, 

this proposal is not expected to result in 

any significant increases in costs and 

would likely result in efficiencies that 

would benefit the administration of 

marketing orders 916 and 917. 

Proposal 3, which seeks to extend the 

marketing season for nectarines, would 

more accurately reflect the nectarine 

industry’s current marketing season and 

conform to current handling regulations. 

The proposed amendment would 

change the current marketing season 

from May 1 through November 30 to 

April 1 through November 30. 

According to record evidence, aligning 

the marketing year with current 

production would not result in any 

increases in costs. 

Proposal 4 would allow for the 

temporary suspension of the Control 

Committee, the oversight committee for 

peaches and pears under marketing 

order 917, when one of the commodity 

programs is suspended. Since the pear 

program has been suspended, the duties 

of the Control Committee have been 

lessened, as there is only one 

Commodity Committee that is active 

under the marketing order program. In 

the Pear Commodity Committee’s 

absence, the Peach Commodity 

Committee has continued to operate in 

conjunction with the Control 

Committee. The proposed amendment 

would also allow the Control Committee 

to become active again if both 

commodity groups were to become 

active under the order. This amendment 

is not expected to result in any increases 

in costs to growers or handlers. 

Proposal 5 would increase the 

membership on the NAC from eight to 

thirteen members and revise quorum 

requirements. Proposal 5 would also 

provide for voting by facsimile and 

holding meetings via video 

teleconference for both the Nectarine 

and Peach Commodity Committees. 

Record evidence indicated that these 

amendments were necessary in order to 

update the business practices of the 

Nectarine and Peach Committees to 

include current day technology. The 

increase in Committee members from 8 

to 13 would allow for greater industry 

participation and would provide for a 

larger pool of committee members to 

attend meetings and meet quorum 

requirements. This amendment is not 

expected to result in any significant 

increases in costs to growers or 

handlers. 

Regarding the increase in committee 

membership, this proposal would 

benefit growers by allowing more 

growers to be appointed to the 

Committee, thereby increasing industry 

participation in the marketing order 

program functions. 

Regarding the use of facsimile and 

video teleconference, this provision 

would allow both the Nectarine and 

Peach Committees to take advantage of 

technology that is available currently, 

but was not known when the orders 

were promulgated. Amendments 

proposed under this material issue are 

not expected to result in any significant 

increases in costs to growers or 

handlers. 

Proposal 6 would eliminate the 

Shipper’s Advisory Committee under 

the nectarine marketing order and bring 

the language of the order into 

conformance with current day 

operations of the program. Record 

evidence indicates that the Shipper’s 

Advisory Committee has not been active 

for over 30 years and, while it once 

served a function under the marketing 

order program, it is no longer necessary. 

This amendment is not expected to 

result in any increases in costs to 

growers or handlers. 

Proposal 7 would modify the 

definition of grower to specify that both 

employees of growers and corporate 

officers of growers are eligible to serve 

on the Nectarine and Peach Committees 

in grower positions. This proposed 

amendment would be a clarifying 

change and would bring the language of 

the order into conformance with 

current-day operations of the program. 

This amendment is not expected to 

result in any increases in costs to 

growers or handlers. 

Proposal 8 would add a definition for 

pure grower to both the nectarine and 

peach orders. If implemented, pure 

growers would be defined as growers 

that grow their own product (and are 

not employees or officers of a packing 

business) or, that grow and pack only 

their own product. If they do pack for 

other growers, the total production 

packed from other growers cannot 

exceed 25 percent of the total 

production packed for that marketing 

season for that pure grower’s packing 

facility. Pure growers, who only pack a 

limited amount of fruit for other 

growers, are still essentially dependent 

on their own production, which is the 

essential component of being a pure 

grower. 

Proposal 8 would also modify the 

current nomination procedures for the 

Committees, as well as modify the 

deadline for conducting the 

nominations, add a 50-percent pure 

grower membership requirement for the 

Committees and establish tenure 

requirements for members. According to 

the hearing record, nomination 

procedures would be modified to 

provide for mailings of ballots and 

would change the beginning date of the 

nomination period from February 15 to 

January 31. The change in the beginning 

date would be necessary in order to 

provide extra time for the mailing of 

ballots. 

While some increases in 

administration costs could arise as a 

result of the mailing of ballots, record 

evidence indicates that the benefit of 

increased industry participation would 

merit that expense. 

Proposal 9 would modify the current 

acceptance procedure for persons 

nominated to serve on the Nectarine and 

Peach Committees. Currently, the 

acceptance procedure for persons 

nominated and selected to serve on the 

Committees involves a two-step process. 

If this amendment were implemented, 

the two steps could be combined into 

one, thus resulting in less paperwork, a 

shorter acceptance procedure and 

improved efficiency in the acceptance 

process. This amendment is not 

expected to result in any increases in 

costs to growers or handlers. 

Proposal 10 would modify the Fresno 

and Tulare districts under the peach 

marketing order by moving Kings 

County from the Fresno district to the 

Tulare district and by including all of 

Tulare County in the Tulare district, and 

would also modify district boundaries 

under the nectarine order. This change 

would also serve as the basis for 

71744 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 

modifying committee representation for 

the Tulare district under the peach 

order, as discussed under Proposal 11. 

These amendments are not expected to 

result in any significant increases in 

costs to growers or handlers. 

Proposal 11 would modify the names 

of the peach producing districts under 

that marketing order and change district 

representation on the Peach Committee 

to reflect the modified districts 

discussed under Proposal 10. This 

proposal would provide for more 

accurate representation of current-day 

peach production. This amendment is 

not expected to result in any significant 

increases in costs to growers or 

handlers. 

Proposal 12 would provide for 

interest and penalty provisions for late 

payment of assessments to be added to 

both the nectarine and peach orders and 

would authorize the borrowing of funds 

for administration of the peach order. 

These amendments would strengthen 

the assessment collection functions of 

the orders and, in the case of peaches, 

allow access to additional funds. The 

implementation of interest and late 

payments would serve as an incentive 

for handlers to pay their assessments in 

a timely manner. The authority to 

borrow funds under marketing order 

917 would allow the Control and Peach 

Committees access to additional funds 

to administer the order when the carry 

forward of assessment monies is 

inadequate. While these amendments 

are expected to result in some costs 

under the marketing orders, the more 

timely assessment payments and the 

authority to borrow funds (for peaches) 

are expected to benefit the industries. 

Lastly, Proposal 14 would clarify that 

‘‘other committees’’ established by the 

Peach Committee would be referred to 

as ‘‘subcommittees.’’ This amendment is 

not expected to result in any increases 

in costs to growers or handlers. 

The proposals put forth at the hearing 

would streamline program organization, 

but are not expected to result in a 

significant change in industry 

production, handling or distribution 

activities. In discussing the impacts of 

the proposed amendments on growers 

and handlers, record evidence indicates 

that the changes are expected to be 

positive because the administration of 

the programs would be more efficient, 

and therefore more effective, in 

executing Committee duties and 

responsibilities. There would be no 

significant cost impact on either small 

or large growers or handlers. 

Interested persons were invited to 

present evidence at the hearing on the 

probable regulatory and informational 

impact of the proposed amendments to 

the order on small entities. The record 

evidence is that most of the 

amendments are designed to increase 

efficiency in the functioning of the 

orders. 

USDA has not identified any relevant 

Federal rules that duplicate, overlap or 

conflict with this proposed rule. These 

amendments are designed to enhance 

the administration and functioning of 

marketing orders 916 and 917 to the 

benefit the California nectarine and 

peach industries. 

Committee meetings regarding these 

proposals as well as the hearing dates 

were widely publicized throughout the 

California nectarine and peach 

industries. All interested persons were 

invited to attend the meetings and the 

hearing and participate in deliberations 

on all issues. All Committee meetings 

(the NAC, the PCC, the Control 

Committee and the CTFA) and the 

hearing were public forums and all 

entities, both large and small, were able 

to express views on these issues. 

Finally, interested persons are invited to 

submit information on the regulatory 

and informational impacts of this action 

on small businesses. 

A 20-day comment period is provided 

to allow interested persons to respond 

to this proposal. Twenty days is deemed 

appropriate so that this rulemaking may 

be completed and nominations can be 

conducted prior to the next crop year, 

which begins in March. All written 

exceptions timely received will be 

considered and a grower referendum 

will be conducted before these 

proposals are implemented. 

Paperwork Reduction Act 

Current information collection 

requirements for Parts 916 and 917 have 

been previously approved by the Office 

of Management and Budget (OMB) 

under OMB number 0581–0189, 

‘‘Generic Fruit Crops.’’ The proposed 

changes would have an insignificant 

impact on total burden hours currently 

approved under this information 

collection. 

Specifically, the proposed 

amendment to increase the Nectarine 

Administrative Committee (committee) 

from 8 to 13 members would require an 

additional 5 members and 5 alternates 

to complete existing confidential 

background and acceptance statements 

every 2 years. Increasing committee 

members from 16 (8 members and 8 

alternates) to 26 (13 members and 13 

alternates) would result in an increase 

of .43 burden hours, or 26 minutes. In 

addition, because the Shipper’s 

Advisory Committee is being 

recommended to be abolished, form FV–

75, ‘‘Confidential California Tree Fruit 

Agreement Questionnaire’’, which is 

currently approved under OMB No. 

0581–0189 for 1.99 burden hours, 

would no longer be needed. Removing 

this form would result in an overall 

decrease of 1.56 burden hours. 

Also, the proposal would authorize 

nominees under the nectarine order to 

state their willingness to serve on the 

committee prior to their selection, 

which would result in the combining of 

Confidential Background statement and 

the acceptance statement, which are 

already approved by OMB. There would 

be no change in the burden hours by 

combining these forms. 

The California Peach Commodity 

Committee proposed to amend the 

provisions relating to the Control 

Committee under marketing order 917 

to allow the duties and responsibilities 

of the Control Committee to be 

transferred to one commodity 

committee if the provisions of the other 

commodity committee are suspended. If 

this change was implemented, and the 

Peach Commodity Committee was to 

assume the duties and responsibilities 

of the Control Committee, some forms 

used by the Control Committee would 

require a modification in the name of 

the committee using those forms. 

However, the functioning of the forms 

and the current burden would remain 

the same. 

In addition, any changes to forms, or 

increased burden generated in 

nominating and selecting pure growers 

on the Committees would be submitted 

to OMB for approval prior to 

implementation. 

AMS is committed to compliance 

with the Government Paperwork 

Elimination Act (GPEA), which requires 

Government agencies in general to 

provide the public the option of 

submitting information or transacting 

business electronically to the maximum 

extent possible. 

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. Witnesses stated that 

existing forms could be adequately 

modified to serve the needs of the 

nectarine and peach commodity 

committees. 

Civil Justice Reform 

The amendments to Marketing 

Agreement Nos. 124 and 85 and Order 

Nos. 916 and 917 proposed herein have 

been reviewed under Executive Order 

12988, Civil Justice Reform. They are 

not intended to have retroactive effect. 

If adopted, the proposed amendments 

would not preempt any State or local 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 71745 

laws, regulations, or policies, unless 

they present an irreconcilable conflict 

with this proposal. 

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. 

Rulings on Briefs of Interested Persons 

Briefs, proposed findings and 

conclusions, and the evidence in the 

record were considered in making the 

findings and conclusions set forth in 

this recommended decision. To the 

extent that the suggested findings and 

conclusions filed by interested persons 

are inconsistent with the findings and 

conclusions of this recommended 

decision, the requests to make such 

findings or to reach such conclusions 

are denied. 

General Findings 

The findings hereinafter set forth are 

supplementary to the findings and 

determinations which were previously 

made in connection with the issuance of 

the marketing agreement and order; and 

all said previous findings and 

determinations are hereby ratified and 

affirmed, except insofar as such findings 

and determinations may be in conflict 

with the findings and determinations set 

forth herein. 

(1) The marketing agreements and 

orders, as amended, and as hereby 

proposed to be further amended, and all 

of the terms and conditions thereof, 

would tend to effectuate the declared 

policy of the Act; 

(2) The marketing agreements and 

orders, as amended, and as hereby 

proposed to be further amended, 

regulate the handling of nectarines and 

peaches grown in the production area 

(the State of California) in the same 

manner as, and are applicable only to, 

persons in the respective classes of 

commercial and industrial activity 

specified in the marketing agreements 

and orders upon which a hearing has 

been held; 

(3) The marketing agreements and 

orders, as amended, and as hereby 

proposed to be further amended, are 

limited in their application to the 

smallest regional production areas 

which is practicable, consistent with 

carrying out the declared policy of the 

Act, and the issuance of several orders 

applicable to subdivisions of the 

production areas would not effectively 

carry out the declared policy of the Act; 

(4) The marketing agreements and 

orders, as amended, and as hereby 

proposed to be further amended, 

prescribe, insofar as practicable, such 

different terms applicable to different 

parts of the production areas as are 

necessary to give due recognition to the 

differences in the production and 

marketing of nectarines and peaches 

grown in the production area; and 

(5) All handling of nectarines and 

peaches grown in the production areas 

as defined in the marketing agreements 

and orders, is in the current of interstate 

or foreign commerce or directly 

burdens, obstructs, or affects such 

commerce. 

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 out in the 

preamble, 7 CFR parts 916 and 917 are 

proposed to be amended as follows: 

PART 916—NECTARINES GROWN IN 

CALIFORNIA 

1. The authority citation for 7 CFR 

part 916 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

2. Revise § 916.5 to read as follows: 

§ 916.5 Nectarines. 

Nectarines means: (1) All varieties of 

nectarines grown in the production area; 

and 

(2) Hybrids grown in the production 

area that exhibit the characteristics of a 

nectarine and are subject to cultural 

practices common to nectarines, as 

recommended by the committee and 

approved by the Secretary. 

3. Revise § 916.9 to read as follows: 

§ 916.9 Grower. 

Grower is synonymous with producer 

and means any person who produces 

nectarines for market in fresh form, and 

who has a proprietary interest therein. 

Employees of growers and officers of 

corporations actively engaged in 

growing nectarines are eligible to serve 

in grower positions on the committee. 

4. Revise § 916.11 to read as follows: 

§ 916.11 Handle. 

Handle and ship are synonymous and 

mean to pack, sell, consign, deliver, or 

transport nectarines, or to cause 

nectarines to be packed, sold, 

consigned, delivered, or transported, 

between the production area and any 

point outside thereof, or within the 

production area: Provided, That the 

term handle shall not include the sale 

of nectarines on the tree, the 

transportation within the production 

area of nectarines from the orchard 

where grown to a packing facility 

located within such area for preparation 

for market, or the delivery of such 

nectarines to such packing facility for 

such preparation. 

5. Revise paragraphs (a) and (b) of 

§ 916.12 to read as follows: 

§ 916.12 District. 

* * * * * 

(a) District 1 shall include the 

counties of Madera and Fresno. 

(b) District 2 shall include the 

counties of Kings and Tulare. 

* * * * * 

6. Revise § 916.15 to read as follows: 

§ 916.15 Marketing season. 

Marketing season means the period 

beginning on April 1 and ending on 

November 30 of any year. 

7. Add a new § 916.16 to read as 

follows: 

§ 916.16 Pure Grower or Pure Producer. 

(a) Pure grower means any grower: (1) 

Who produces his or her own product 

(and is not an employee or officer of a 

packing business); or 

(2) Who produces and handles his or 

her own product; Provided, That; A 

pure grower can pack the production of 

other growers as long as the production 

packed does not exceed 25 percent of 

the total production packed for that 

marketing year for that pure grower’s 

packing facility. Pure grower is 

synonymous with pure producer. 

(b) The committee may establish, with 

the approval of the Secretary, rules and 

regulations for the implementation and 

operation of this section. 

8. Revise § 916.20 to read as follows: 

§ 916.20 Establishment and membership. 

There is hereby established a 

Nectarine Administrative Committee 

consisting of thirteen members, each of 

whom shall have an alternate who shall 

71746 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 

have the same qualifications as the 

member for whom he/she is an 

alternate. The members and their 

alternates shall be growers or authorized 

employees of growers. Six of the 

members and their respective alternates 

shall be growers of nectarines in District 

1. Four members and their respective 

alternates shall be growers of nectarines 

in District 2; two of the members and 

their respective alternates shall be 

growers of nectarines in District 3; and 

one member and his/her alternate shall 

be growers of nectarines in District 4; 

Provided, That at least 50% of the 

nominees from each representation area 

shall be pure growers. Furthermore, no 

person shall serve more than three 

consecutive two-year terms of office or 

a total of six consecutive years; Provided 

further, That an appointment to fill less 

than a two-year term of office, or serving 

one term as an alternate, shall not be 

included in determining the three 

consecutive terms of office; Provided 

further, That time served prior to the 

effective date of this section shall not be 

counted toward consecutive term limits. 

9. Revise paragraph (b) of § 916.22 to 

read as follows: 

§ 916.22 Nomination. 

* * * * * 

(b) Successor members. (1) The 

committee shall appoint a nominating 

committee, which will hold or cause to 

be held, not later than January 31 of 

each odd numbered year, a nomination 

procedure or a meeting or meetings of 

growers in each district for the purpose 

of designating nominees for successor 

members and alternate members of the 

committee. Meetings may be supervised 

by the nominating committee that shall 

prescribe such procedure as shall be 

reasonable and fair to all persons 

concerned. After the nomination 

procedure or meetings have concluded, 

the nominating committee by February 

15 will verify consent to place the 

nominee’s name on the ballot and will 

cause a ballot listing all of the nominees 

for a given district to be mailed to all 

growers within the district. Members 

and their alternates will be chosen 

based on a descending ranking of votes 

received. Once ballots have been 

tabulated, the Nectarine Administrative 

Committee will announce to the growers 

the nominees that have been selected 

and recommended to the Secretary. 

(2) Nominations may only be by 

growers, or by duly authorized 

employees. At meetings, only growers 

who are present at such nomination 

meetings may participate in the 

nomination of nominees for members 

and their alternates. All known growers 

will then receive a ballot for the 

nominees in the district in which they 

produce and are entitled to vote 

accordingly. A grower who produces in 

multiple districts is allowed to vote only 

in one district, and may exchange his/ 

her ballot for that of the nominees in 

another district provided the grower is 

producing in the district for which he/ 

she wants to participate. Employees of 

such grower shall be eligible for 

membership as principal or alternate to 

fill only one position on the committee. 

(3) A particular grower, including 

authorized employees of such grower, 

shall be eligible for membership as 

principal or alternate to fill only one 

position on the committee. 

10. Revise § 916.25 to read as follows: 

§ 916.25 Acceptance. 

Each person to be selected by the 

Secretary as a member or as an alternate 

member of the committee shall, prior to 

such selection, qualify by advising the 

Secretary that he/she agrees to serve in 

the position for which nominated for 

selection. 

11. Revise § 916.32 to read as follows: 

§ 916.32 Procedure. 

(a) Nine members of the committee, or 

alternates acting for members, shall 

constitute a quorum and any action of 

the committee shall require the 

concurring vote of the majority of those 

present: Provided, That actions of the 

committee with respect to expenses and 

assessments, or recommendations for 

regulations pursuant to §§ 916.50 to 

916.55, shall require at least nine 

concurring votes. 

(b) The committee may vote by 

telephone, telegraph, or other means of 

communication, such as facsimile, and 

any votes so cast shall be confirmed 

promptly in writing: Provided, That if 

an assembled meeting is held, all votes 

shall be cast in person. A 

videoconference shall be considered an 

assembled meeting and all votes shall be 

considered as cast in person. 

12. Remove § 916.37. 

13. Add three new sentences at the 

end of paragraph (b) of § 916.41 to read 

as follows: 

§ 916.41 Assessments. 

* * * * * 

(b) * * * Furthermore, any 

assessment not paid by a handler within 

a period of time prescribed by the 

committee may be subject to an interest 

or late payment charge, or both. The 

period of time, rate of interest and late 

payment charge shall be as 

recommended by the committee and 

approved by the Secretary. Subsequent 

to such approval, all assessments not 

paid within the prescribed period of 

time shall be subject to an interest or 

late payment charge or both. 

PART 917—FRESH PEARS AND 

PEACHES GROWN IN CALIFORNIA 

14. The authority citation for part 917 

continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

15. Revise § 917.4 to read as follows: 

§ 917.4 Fruit. 

Fruit means the edible product of the 

following kinds of trees: 

(a) All varieties of peaches grown in 

the production area; 

(b) All hybrids grown in the 

production area exhibiting the 

characteristics of a peach and subject to 

cultural practices common to peaches as 

recommended by the committee and 

approved by the Secretary; and 

(c) All varieties of pears except Beurre 

Hardy, Beurre D’Anjou, Bosc, Winter 

Nelis, Doyenne du Comice, Beurre 

Easter, and Beurre Clairgeau. 

16. Revise § 917.5 to read as follows: 

§ 917.5 Grower. 

Grower is synonymous with producer 

and means any person who produces 

fruit for market in fresh form, and who 

has a proprietary interest therein. 

Employees of growers and officers of 

corporations actively engaged in 

growing peaches are eligible to serve in 

grower positions on the committee. 

17. Revise § 917.6 to read as follows: 

§ 917.6 Handle. 

Handle and ship are synonymous and 

mean to sell, consign, deliver or 

transport fruit or to cause fruit to be 

sold, consigned, delivered or 

transported between the production area 

and any point outside thereof, or within 

the production area: Provided, That for 

peaches, packing or causing the fruit to 

be packed also constitutes handling; 

Provided further, That the term handle 

shall not include the sale of fruit on the 

tree, the transportation within the 

production area of fruit from the 

orchard where grown to a packing 

facility located within such area for 

preparation for market, or the delivery 

of such fruit to such packing facility for 

such preparation. 

18. Add a new § 917.8 to read as 

follows: 

§ 917.8 Pure Grower or Pure Producer. 

(a) For peaches, pure grower means 

any grower: 

(1) Who produces his or her own 

product (and is not an employee or 

officer of a packing business); or 

(2) Who produces and handles his or 

her own product; Provided, That: A 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 71747 

pure producer can pack the production 

of other growers as long as the 

production packed does not exceed 25 

percent of the total production packed 

for that marketing year by that pure 

grower’s packing facility. Pure grower is 

synonymous with pure producer. 

(b) The committee may establish, with 

the approval of the Secretary, rules and 

regulations for the implementation and 

operation of this section. 

19. Revise paragraphs (n) and (o) of 

§ 917.14 to read as follows: 

§ 917.14 District. 

* * * * * 

(n) Fresno District includes and 

consists of Madera County, Fresno 

County, and Mono County. 

(o) Tulare District includes and 

consists of Tulare County and Kings 

County. 

* * * * * 

20. Revise § 917.18 to read as follows: 

§ 917.18 Nomination of commodity 

committee members of the Control 

Committee. 

Nominations for the 13 members of 

the Control Committee to represent the 

commodity committees shall be made in 

the following manner: 

(a) A nomination for one member 

shall be made by each commodity 

committee selected pursuant to 

§ 917.25. Nominations for the remaining 

members shall be made by the 

respective commodity committees as 

provided in this section. The number of 

remaining members which each 

respective commodity shall be entitled 

to nominate shall be based upon the 

proportion that the previous three fiscal 

periods’ shipments of the respective 

fruit is of the total shipments of all fruit 

to which this part is applicable during 

such periods. In the event provisions of 

this part are terminated as to any fruit, 

the members of the commodity 

committee of the remaining fruit shall 

have all of the powers, duties, and 

functions given to the Control 

Committee under this part and sections 

of this part pertaining to the designation 

of the Control Committee shall be 

terminated. In the event provisions of 

this part are suspended as to any fruit, 

the members of the commodity 

committee of the remaining fruit shall 

have all the powers, duties, and 

functions given to the Control 

Committee under this part and sections 

of this part pertaining to the designation 

of the Control Committee shall be 

suspended. 

(b) A person nominated by any 

commodity committee for membership 

on the Control Committee shall be an 

individual person who is a member or 

alternate member of the commodity 

committee that nominates him/her. 

Each member of each commodity 

committee shall have only one vote in 

the selection of nominees for 

membership on the Control Committee. 

21. Revise § 917.22 to read as follows: 

§ 917.22 Nomination of Peach Commodity 

Committee members. 

Nominations for membership on the 

Peach Commodity Committee shall be 

made by growers of peaches in the 

respective representation areas, as 

follows: 

(a) District 1 composed of the Fresno 

District: seven nominees. 

(b) District 2 composed of the Tulare 

District: three nominees. 

(c) District 3 composed of the 

Tehachapi District and Kern District: 

one nominee. 

(d) District 5 composed of the South 

Coast District and Southern California 

District: one nominee. 

(e) District 4 composed of the 

Stanislaus District, Stockton District and 

all of the production area not included 

in paragraphs (a) through (d) of this 

section: one nominee. 

22. Revise § 917.24 to read as follows: 

§ 917.24 Procedure for nominating 

members of various commodity 

committees. 

(a) The Control Committee shall hold 

or cause to be held not later than 

January 31 for peaches and not later 

than February 15 for pears of each odd 

numbered year a nomination procedure 

or a meeting or meetings of the growers 

of the fruits in each representation area 

set forth in §§ 917.21 and 917.22 for 

purposes of designating nominees for 

successor members and alternate 

members of the commodity committees. 

These meetings shall be supervised by 

the Control Committee, which shall 

prescribe such procedure 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. For peaches, those who may 

receive nomination forms if the 

nominations are conducted via a mail 

process may also participate in the 

nomination and election of nominees 

for Peach Commodity Committee 

members and alternates. All peach 

growers, or authorized employees, will 

receive a ballot for the nominees in the 

district in which they produce and are 

entitled to vote accordingly. A peach 

grower who produces in multiple 

districts is allowed to vote only in one 

district, and may exchange his/her 

ballot for that of nominees in another 

district provided the grower is 

producing in the district for which he/ 

she wants to participate. For both 

commodity committees, 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/she 

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/her during the previous 

fiscal period, or he/she must represent 

an organization that produced at least 

51 percent of the pears shipped by it 

during such period. The members and 

alternates of the Peach Commodity 

Committee shall be growers, or shall be 

authorized employees of such growers 

and at least 50% of the nominees from 

each representation area shall be pure 

growers. 

(d) For peaches, no person shall serve 

more than three (3) consecutive twoyear terms of office or a total of six (6) 

consecutive years; Provided, That an 

appointment to fill less than a two-year 

term of office, or serving one (1) term as 

an alternate, shall not be included in 

determining the (3) consecutive terms of 

office; Provided further, That time 

served prior to the effective date of this 

section shall not be counted toward 

consecutive term limits. The members 

shall serve until their respective 

successors are selected and have 

qualified. 

23. Revise § 917.25 to read as follows: 

§ 917.25 Acceptance. 

(a) The Secretary shall select the 

members of each commodity committee, 

except for the Peach Commodity 

Committee, from nominations made by 

growers, as provided in §§ 917.21 

through 917.24, or from among other 

eligible persons. Any person selected as 

a member of the Pear Commodity 

Committee shall qualify by filing with 

the Secretary a written acceptance of the 

appointment. 

(b) For the Peach Commodity 

Committee, each person to be selected 

by the Secretary as a member or as an 

alternate member of the committee 

shall, prior to such selection, qualify by 

advising the Secretary that he/she agrees 

71748 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 

to serve in the position for which 

nominated for selection. 

24. Revise paragraph (d) of § 917.29 to 

read as follows: 

§ 917.29 Organization of committees. 

* * * * * 

(d) The Control Committee or any 

commodity committee may, upon due 

notice to all of the members of the 

respective committee, vote by letter, 

telegraph or telephone: Provided, That 

any member voting by telephone shall 

promptly thereafter confirm in writing 

his/her vote so cast. The Peach 

Commodity Committee may, upon due 

notice to all of the members of the 

respective committee, vote by letter, 

telegraph, telephone, facsimile, video 

teleconference, or any other means of 

communication recommended by the 

committee and approved by the 

Secretary; Provided, That any member 

voting by telephone shall promptly 

thereafter confirm in writing his/her 

vote so cast. 

25. Add a sentence at the end of 

paragraph (d) of § 917.35 to read as 

follows: 

§ 917.35 Powers and duties of each 

commodity committee. 

* * * * * 

(d) * * * To establish subcommittees 

to aid the Peach Commodity Committee 

in the performance of its duties under 

this part as may be deemed advisable. 

* * * * * 

26. Revise § 917.37 to read as follows: 

§ 917.37 Assessments. 

(a) As his/her pro rata share of the 

expenses which the Secretary finds are 

reasonable and are likely to be incurred 

by the commodity committees during a 

fiscal period, each handler shall pay to 

the Control Committee, upon demand, 

assessments on all fruit handled by him/ 

her. The payment of assessments for the 

maintenance and functioning of the 

committees may be required under this 

part throughout the period it is in effect 

irrespective of whether particular 

provisions thereof are suspended or 

become inoperative. 

(b) The Secretary shall fix the 

respective rate of assessment, which 

handlers shall pay with respect to each 

fruit during each fiscal period in an 

amount designed to secure sufficient 

funds to cover the respective expenses, 

which may be incurred during such 

period. At any time during or after the 

fiscal period, the Secretary may increase 

the rates of assessment in order to 

secure funds to cover any later findings 

by the Secretary relative to such 

expenses, and such increase shall apply 

to all fruit shipped during the fiscal 

period. Furthermore, any assessment 

not paid by a peach handler within a 

period of time prescribed by the Control 

Committee may be subject to an interest 

or late payment charge, or both. The 

period of time, rate of interest and late 

payment charge shall be as 

recommended by the committee and 

approved by the Secretary. Subsequent 

to such approval, all assessments for 

peaches not paid within the prescribed 

period of time shall be subject to an 

interest or late payment charge or both. 

(c) In order to provide funds to carry 

out the functions of the commodity 

committee prior to commencement of 

shipments in any season, shippers may 

make advance payments of assessments, 

which advance payments shall be 

credited to such shippers and the 

assessments of such shippers shall be 

adjusted so that such assessments are 

based upon the quantity of fruit shipped 

by such shippers during such season. 

Any shipper who ships fruit for the 

account of a grower may deduct, from 

the account of sale covering such 

shipment or shipments, the amount of 

assessments levied on said fruit shipped 

for the account of such grower. The 

Control Committee may also borrow 

money for such purposes for peaches. 

Dated: November 18, 2005. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 05–23327 Filed 11–28–05; 8:45 am] 

BILLING CODE 3410–02–P