Nectarines and Fresh Peaches Grown in California; Assessment Rate

DEPARTMENT OF AGRICULTURE

7 CFR Parts 916 and 917

[Docket No. FV96-916-1 IFR]

Nectarines and Fresh Peaches Grown in California; Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule establishes an assessment rate for the

Nectarine Administrative Committee and the Peach Commodity Committee

(Committees) under Marketing Order Nos. 916 and 917 for the 1996-97 and

subsequent fiscal periods. The Committees are responsible for local

administration of the marketing orders which regulate the handling of

nectarines and fresh peaches grown in California. Authorization to

assess nectarine and fresh peach handlers enable the Committees to

incur expenses that are reasonable and necessary to administer the

programs.

DATES: Effective on March 1, 1996. Comments received by August 21,

1996, will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments

concerning this 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, FAX (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: Mary Kate Nelson, Marketing Assistant,

California Marketing Field Office, Fruit and Vegetable Division, AMS,

USDA, 2202 Monterey Street, suite 102B, Fresno, California 93721, (209)

487-5901, FAX (209) 487-5906, or Kenneth G. Johnson, Marketing

Specialist, 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, FAX (202) 720-5698. Small businesses

may request information on compliance with this regulation by

contacting: Jay Guerber, Marketing Order Administration Branch, Fruit

and Vegetable Division, AMS, USDA, P.O. Box 96456, Room 2523-S,

Washington, DC 20090-6456; telephone: (202) 720-2491, Fax # (202) 720-

5698.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement No. 916 and Order No. 916, both as amended (7 CFR part 916),

regulating the handling of nectarines grown in California, and

Marketing Agreement No. 917 and Order No. 917, both as amended (7 CFR

part 917), regulating the handling of fresh peaches grown in

California, hereinafter referred to as the ``orders.'' The marketing

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 rule has been reviewed under Executive Order 12778, Civil

Justice Reform. Under the marketing orders now in effect, California

nectarine and fresh peach handlers are subject to assessments. Funds to

administer the orders are derived from such assessments. It is intended

that the assessment rates as issued herein will be applicable to all

assessable nectarines and peaches beginning March 1, 1996, and

continuing until amended, suspended, or terminated. This 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 request a modification of the order or to be exempted

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

the petition. After the hearing 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 to review the

Secretary's ruling on the petition, provided an action is filed not

later than 20 days after the date of the entry of the ruling.

Pursuant to requirements set forth in the Regulatory Flexibility

Act (RFA), 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 the 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 1,800 producers of nectarines and peaches

in the production area and approximately 300 handlers subject to

regulation under the marketing order. Small agricultural producers have

been defined by the Small Business Administration (13 CFR 121.601) as

those having annual receipts 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 nectarine and fresh peach producers and

handlers may be classified as small entities.

The nectarine and peach marketing orders provide authority for the

Committees, with the approval of the Department, to formulate annual

budgets of expenses and collect assessments from handlers to administer

the programs. The members of the Committees are producers and handlers

of California nectarines and fresh peaches. They are familiar with the

Committees' needs and with the costs for goods and services in their

local area and are thus in a position to formulate appropriate budgets

and assessment rates. The assessment rates are formulated and discussed

in public meetings. Thus, all directly affected persons have an

opportunity to participate and provide input.

The Nectarine Administrative Committee met on May 2, 1996, and

unanimously recommended 1996-97 expenditures of $3,682,728 and an

assessment rate of $0.1850 per 25-pound container or equivalent of

nectarines. In comparison, last year's budgeted expenditures were

$3,683,031. The assessment rate of $0.1850 is the same as last year's

established rate. Major expenditures recommended by the Committee for

the 1996-97 year include $1,326,376 for domestic market development,

$972,300 for inspection, $342,250 in salaries and benefits, and

$120,870 for research.

The Peach Commodity Committee met on May 1, 1996, and unanimously

recommended 1996-97 expenditures of $3,722,757 and an assessment rate

of

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$0.1900 per 25-pound container or equivalent of fresh peaches. In

comparison, last year's budgeted expenditures were $3,736,531. The

assessment rate of $0.1900 is the same as last year's established rate.

Major expenditures recommended by the Committee for the 1996-97 year

include $1,326,376 for domestic market development, $991,500 for

inspection, $342,250 in salaries and benefits, and $120,870 for

research.

The assessment rates recommended by the Committees were derived by

dividing anticipated expenses by expected shipments of California

nectarines and fresh peaches. Nectarine shipments for the year are

estimated at 17,266,000 25-pound containers or equivalent which should

provide $3,194,210 in assessment income, and fresh peach shipments for

the year are estimated at 17,250,000 25-pound containers or equivalent

which should provide $3,277,500 in assessment income. Income derived

from handler assessments, the Plum Commodity Committee, and the Pear

Field Service, along with interest income and funds from the

Committees' authorized reserves, will be adequate to cover budgeted

expenses. Funds in the reserves will be kept within the maximum

permitted by the orders.

While this rule 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 will be offset by the benefits derived by the operation of the

marketing order. Therefore, the AMS has determined that this rule will

not have a significant economic impact on a substantial number of small

entities.

The assessment rates established in this rule will continue in

effect indefinitely unless modified, suspended, or terminated by the

Secretary upon recommendation and information submitted by the

Committees or other available information.

Although these assessment rates are effective for an indefinite

period, the Committees will continue to meet prior to or during each

fiscal period to recommend budgets of expenses and consider

recommendations for modification of their assessment rates. The dates

and times of Committee meetings are available from the Committees or

the Department. Committee meetings are open to the public and

interested persons may express their views at these meetings. The

Department will evaluate the Committees' recommendations and other

available information to determine whether modification of the

assessment rates are needed. Further rulemaking will be undertaken as

necessary. The Committees' 1996-97 budgets and those for subsequent

fiscal periods will be reviewed and, as appropriate, approved by the

Department.

After consideration of all relevant material presented, including

the information and recommendation submitted by the Committees and

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

hereinafter set forth, will tend to effectuate the declared policy of

the Act.

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 rule 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

1996-97 fiscal period began on March 1, 1996, and the marketing orders

require that the rates of assessment for each fiscal period apply to

all assessable nectarines and peaches handled during such fiscal

period; (3) handlers are aware of this action which was unanimously

recommended by the Committees at public meetings and are similar to

other assessment rate actions 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 rule.

List of Subjects

7 CFR Part 916

Marketing agreements, Nectarines, Reporting and recordkeeping

requirements.

7 CFR Part 917

Marketing agreements, Peaches, Pears, Reporting and recordkeeping

requirements.

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

are amended as follows:

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. A new subpart--Assessment Rates and a new Sec. 916.234 are added

to read as follows:

Note: This section will appear in the Code of Federal

Regulations.

Subpart--Assessment Rates

Sec. 916.234 Assessment rate.

On and after March 1, 1996, an assessment rate of $0.1850 per 25-

pound container or equivalent of nectarines is established for

California nectarines.

PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA

1. The authority citation for 7 CFR part 917 continues to read as

follows:

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

2. A new subpart--Assessment Rates and a new Sec. 917.258 are added

to read as follows:

Note: This section will appear in the Code of Federal

Regulations.

Subpart--Assessment Rates

Sec. 917.258 Assessment rate.

On and after March 1, 1996, an assessment rate of $0.1900 per 25-

pound container or equivalent of fresh peaches is established for

California fresh peaches.

Dated: July 15, 1996.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 96-18466 Filed 7-19-96; 8:45 am]

BILLING CODE 3410-02-P