Nectarines and Fresh Peaches Grown in California; Expenses and Assessment Rates for the 1994-95 Fiscal Year

SUMMARY: This interim final rule authorizes expenses and establishes

assessment rates for the Nectarine Administrative Committee and the

Peach Commodity Committee (Committees) under M.O. Nos. 916 and 917 for

the 1994-95 fiscal year. Authorization of these budgets enable the

Committees to incur expenses that are reasonable and necessary to

administer their programs. Funds to administer these programs are

derived from assessments on handlers.

DATES: Effective beginning March 1, 1994, through February 28, 1995.

Comments received by August 1, 1994.

ADDRESSES: Interested persons are invited to submit written comments

concerning this interim final rule. Comments must be sent in triplicate

to the Docket Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box

96456, Room 2523-S, Washington, DC 20090-6456, or by Facsimile (202)

720-5698. Comments should reference the docket number and the date and

page number of this issue of the Federal Register and will be available

for public inspection in the Office of the Docket Clerk during regular

business hours.

FOR FURTHER INFORMATION CONTACT: Britthany Beadle, Marketing Order

Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.

Box 96456, Room 2523-S, Washington, DC 20090-6456, telephone: (202)

720-5127; or Terry Vawter, Marketing Specialist, California Marketing

Field Office, Fruit and Vegetable Division, AMS, USDA, 2202 Monterey

Street, Suite 102 B, Fresno, California 93721, telephone: (209) 487-

5901.

SUPPLEMENTARY INFORMATION: This interim final rule is issued under

Marketing Agreement and Order No. 916 (7 CFR part 916) regulating the

handling of nectarines grown in California and Marketing Agreement and

Order No. 917 (7 CFR part 917) regulating the handling of fresh peaches

grown in California. The agreements and orders are effective under the

Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-

674), hereinafter referred to as the Act.

The Department of Agriculture (Department) is issuing this rule in

conformance with Executive Order 12866.

This interim final rule has been reviewed under Executive Order

12778, Civil Justice Reform. Under the marketing order provisions now

in effect, nectarines and peaches grown in California are subject to

assessments. It is intended that the assessment rates specified herein

will be applicable to all assessable nectarines and peaches handled

during the 1994-95 fiscal year, which began March 1, 1994, through

February 28, 1995. This interim final rule will not preempt any state

or local laws, regulations, or policies, unless they present an

irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted

before parties may file suit in court. Under section 608c(15)(A) of the

Act, any handler subject to an order may file with the Secretary 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 requesting a modification of the order or to be exempted

therefrom. Such handler is afforded the opportunity for a hearing on

the petition. After the hearing the Secretary 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 in equity to review

the Secretary's ruling on the petition, provided a bill in equity is

filed not later than 20 days after date of the entry of the ruling.

Pursuant to the requirements set forth in the Regulatory

Flexibility Act (RFA), the Administrator of the Agricultural Marketing

Service (AMS) has considered the economic impact of this rule on small

entities.

The purpose of the RFA is to fit regulatory actions to the scale of

business subject to such actions in order that small businesses will

not be unduly or disproportionately burdened. Marketing orders issued

pursuant to the Act, and rules issued thereunder, are unique in that

they are brought about through group action of essentially small

entities acting on their own behalf. Thus, both statutes have small

entity orientation and compatibility.

There are approximately 300 handlers of nectarines and peaches

regulated under the marketing orders each season and approximately

1,800 producers of these fruits in California. Small agricultural

producers have been defined by the Small Business Administration (13

CFR 121.601) as those having annual receipts of less than $500,000, and

small agricultural service firms are defined as those whose annual

receipts are less than $5,000,000. The majority of these handlers and

producers may be classified as small entities.

The nectarine and peach marketing orders, administered by the

Department, require that the assessment rates for a particular fiscal

year apply to all assessable nectarines and peaches handled from the

beginning of such year. Annual budgets of expenses are prepared by the

Committees, the agencies responsible for local administration of their

respective marketing order, and submitted to the Department for

approval. The members of the Committees are nectarine and peach

handlers and producers. They are familiar with the Committees' needs

and with the costs for goods, services, and personnel in their local

area, and are thus in a position to formulate appropriate budgets. The

Committees' budgets are formulated and discussed in public meetings.

Thus, all directly affected persons have an opportunity to participate

and provide input.

The assessment rates recommended by the Committees are derived by

dividing the anticipated expenses by expected shipments of nectarines

and peaches. Because these rates are applied to actual shipments, they

must be established at rates which will provide sufficient income to

pay the Committees' expected expenses.

The Nectarine Administrative Committee met on May 4, 1994, and

unanimously recommended total expenses of $3,844,635 for the 1994-95

fiscal year. In comparison, the 1993-94 fiscal year expenses amount was

$3,804,962, representing a $39,673 increase in expenses from the 1993-

94 fiscal year.

The Committee also unanimously recommended an assessment rate of

$0.1825 per 25-pound container or equivalent for the 1994-95 fiscal

year, which is the same assessment rate that was approved for the 1993-

94 fiscal year. The assessment rate, when applied to anticipated

shipments of 18,144,000 25-pound containers or equivalent of nectarines

would yield $3,311,280 in assessment income. Adequate funds exist in

the Committee's reserve to cover additional expenses.

Major expense categories for the 1994-95 nectarine budget include

$447,118 for salaries and benefits, $1,402,000 for domestic market

development, and $1,000,000 for inspection. Funds in the reserve at the

end of the 1994-95 fiscal year, estimated at $363,483, will be within

the maximum permitted by the order of one fiscal year's expenses.

The Peach Commodity Committee also met May 4, 1994, and unanimously

recommended total expenses of $3,967,335, for the 1994-95 fiscal year.

In comparison, this is $113,790 more than the $3,853,545 expense amount

that was recommended for the 1993-94 fiscal year.

The Committee also unanimously recommended an assessment rate of

$0.19 per 25-pound container or equivalent for the 1994-95 fiscal year,

which is the same assessment rate that was approved for the previous

fiscal year. The assessment rate, when applied to anticipated shipments

of 17,571,000 25-pound containers or equivalent of peaches, would yield

$3,338,490 in assessment income. Adequate funds exist in the

Committee's reserve fund to cover additional expenses.

Major expense categories for the 1994-95 fiscal period are $447,118

in salaries and benefits, $1,402,000 for domestic market development,

and $950,000 for inspection. Funds in the reserve at the end of the

1994-95 fiscal year, estimated at $578,639, will be within the maximum

permitted by the order of one fiscal year's expenses.

While this action will impose some additional costs on handlers,

the costs are in the form of uniform assessments on all handlers. Some

of the additional costs may be passed on to producers. However, these

costs should be significantly offset by the benefits derived from the

operation of the marketing orders. Therefore, the Administrator of the

AMS has determined that this action will not have a significant

economic impact on a substantial number of small entities.

After consideration of all relevant matter presented, including the

information and recommendations submitted by the Committees and other

available information, it is hereby found that this rule as hereinafter

set forth will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good

cause that it is impracticable, unnecessary, and contrary to the public

interest to give preliminary notice prior to putting this rule into

effect and that good cause exists for not postponing the effective date

of this action until 30 days after publication in the Federal Register

because: (1) The Committees need to have sufficient funds to pay their

expenses which are incurred on a continuous basis; (2) the fiscal year

for the Committees began March 1, 1994, and the marketing orders

require that the rates of assessment for the fiscal year apply to all

assessable nectarines and peaches handled during the fiscal year; (3)

handlers are aware of this action which was recommended by the

Committees at public meetings and which are similar to budgets issued

in past years; and (4) this interim final rule provides a 30-day

comment period, and all comments timely received will be considered

prior to finalization of this action.

List of Subjects

7 CFR Part 916

Marketing agreements, Nectarines, Reporting and recordkeeping

requirements.

7 CFR Part 917

Marketing agreements, Pears, Peaches, Reporting and recordkeeping

requirements.

For the reason set forth in the preamble, 7 CFR parts 916 and 917

are amended as follows:

1. The authority citation for 7 CFR parts 916 and 917 continues to

read as follows:

Authority: 7 U.S.C. 601-674.

Note: These sections will not appear in the annual Code of

Federal Regulations.

PART 916--NECTARINES GROWN IN CALIFORNIA

2. A new Sec. 916.232 is added to read as follows:

Sec. 916.232 Expenses and assessment rate.

Expenses of $3,844,635 by the Nectarine Administrative Committee

are authorized and an assessment rate of $0.1825 per 25-pound container

or equivalent on assessable nectarines is established for the fiscal

year ending February 28, 1995. Unexpended funds may be carried over as

a reserve.

PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA

3. A new Sec. 917.256 is added to read as follows:

Sec. 917.256 Expenses and assessment rate.

Expenses of $3,967,355 by the Peach Commodity Committee are

authorized and an assessment rate of $0.19 per 25-pound container or

equivalent on assessable peaches is established for the fiscal year

ending February 28, 1995. Unexpended funds may be carried over as a

reserve.

Dated: June 27, 1994

Robert C. Keeney,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-16062 Filed 6-30-94; 8:45 am]

BILLING CODE 3410-02-P