Nectarines and Fresh Peaches Grown in California; Assessment Rates

DEPARTMENT OF AGRICULTURE

7 CFR Parts 916 and 917

[Docket No. FV96-916-1 FIR]

Nectarines and Fresh Peaches Grown in California; Assessment

Rates

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (Department) is adopting as a

final rule, without change, the provisions of an interim final rule

establishing assessment rates 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 enables the Committees to incur expenses that are

reasonable and necessary to administer the programs.

EFFECTIVE DATE: March 1, 1996.

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, D.C. 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 is issuing this rule in conformance with Executive

Order 12866.

This rule has been reviewed under Executive Order 12988, 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

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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 orders. 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. Budgeted expenses for these items in 1995-96

were $1,534,593, $855,000, $340,025, and $99,117 respectively.

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

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

of $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. Budgeted expenses for these items in 1995-96 were $1,534,593,

$900,000, $340,025, and $99,117 respectively.

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.

An interim final rule regarding this action was published in the

July 22, 1996, issue of the Federal Register (61 FR 37812). That rule

provided for a 30-day comment period. Two comments were received, both

in support of the assessment rates as published.

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 orders.

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. 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 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 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 periods

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 is similar to other assessment rate actions issued

in past years; and (4) an interim final rule was published on this

action and provided for a 30-day comment period. Two comments were

received, both in support of the assessment rates as published.

[[Page 49653]]

List of Subjects

7 CFR Part 916

Nectarines, Marketing agreements, Reporting and recordkeeping

requirements.

7 CFR Part 917

Peaches, Pears, Marketing agreements, Reporting and recordkeeping

requirements.

PART 916--NECTARINES GROWN IN CALIFORNIA

PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA

Accordingly, the interim final rule amending 7 CFR parts 916 and

917 which was published at 61 FR 37812 on July 22, 1996, is adopted as

a final rule.

Dated: September 16, 1996.

Robert C. Keeney,

Director, Fruit and Vegetable Division.

[FR Doc. 96-24239 Filed 9-20-96; 8:45 am]

BILLING CODE 3410-02-P