Fresh Peaches Grown in Georgia; Termination of Marketing Order No. 918

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 918

[Docket No. FV-97-918-1 FR]

Fresh Peaches Grown in Georgia; Termination of Marketing Order

No. 918

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule; Termination of Order.

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SUMMARY: This rule terminates the Federal marketing order regulating

the handling of fresh peaches grown in Georgia (order) and the rules

and regulations issued thereunder. The Georgia peach industry has not

operated under the order since its provisions were suspended March 1,

1993. The order does not reflect current industry structure and

operating procedures and there is no industry support for reactivating

the order. Therefore, there is no need to continue this order.

EFFECTIVE DATE: September 17, 1997.

FOR FURTHER INFORMATION CONTACT: William G. Pimental, Southeast

Marketing Field Office, AMS, USDA, P.O. Box 2276, Winter Haven, Florida

33883-2276; telephone: (941) 299-4770, Fax: (941) 299-5169; or Kathleen

Finn, Marketing Order Administration Branch, F&V, AMS, USDA, room 2530-

S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202) 720-

2491, 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.

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Box 96456, room 2523-S, Washington, DC 20090-6456; telephone (202) 720-

2491, Fax: (202) 720-5698.

SUPPLEMENTARY INFORMATION: This final rule is governed by provisions of

Sec. 608(16)(A) of the Agricultural Marketing Agreement Act of 1937, as

amended (7 U.S.C. 601-674), hereinafter referred to as the Act and

Sec. 918.81 of the order.

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

conformance with Executive Order 12866.

This final rule has been reviewed under Executive Order 12988,

Civil Justice Reform. This rule is not intended to have retroactive

effect. This final rule will not preempt any State or local laws,

regulations, or polices, 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. A 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 date of the entry of the ruling.

This final rule terminates the order regulating the handling of

peaches grown in Georgia. Sections 918.81 and 918.82 of the order

contain the authority and procedures for termination.

The order was initially established in 1942 to help the industry

solve specific marketing problems and maintain orderly marketing

conditions. It was the responsibility of the Peach Industry Committee

(committee), the agency established for local administration of the

marketing order, to periodically investigate and assemble data on the

growing, harvesting, shipping, and marketing conditions of Georgia

peaches. The committee tried to achieve orderly marketing and improve

acceptance of Georgia peaches through the establishment of minimum

size, maturity and quality requirements.

The Georgia peach industry has not operated under the marketing

order for over four years. The order and all of its accompanying rules

and regulations were suspended March 1, 1993, for two years (58 FR

8209). At the request of the industry, the Department extended the

suspension for two more years (60 FR 17633). Regulations have not been

applied under the order since 1992, and no committee has been appointed

since then. The only regulations the industry is using are for

research, promotion, and advertising. This is handled locally by the

Georgia Commodity Commission through a State program.

In 1942, when the marketing order was issued, there were over 300

growers of Georgia peaches. Currently, there are approximately 20 peach

growers.

The Department contacted many current industry members with respect

to the need for reinstating the marketing order. Virtually all the

individuals corresponding with the Department stated they were not

interested in reestablishing the order. There was a peach industry

meeting held on February 6, 1997, in Byron, Georgia where the marketing

order was a topic of discussion. There was no support from the

attendees for reactivating or amending the order.

There have been changes in industry structure and operating

procedures since the order was last amended. Making the marketing order

reflect these changes could require further amendments. The steps

necessary to amend and reactivate the existing order would be similar

to what would be required to establish a new order. The need for a new

or amended marketing order would have to be justified and supported by

a large majority of Georgia peach growers. This would require a public

hearing and a grower referendum. There is no determinable industry

support for a marketing order. Thus, there is little justification to

continue the current order.

Pursuant to 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 regulatory flexibility analysis.

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

business subject to such actions in order that small businesses will

not be unduly or disproportionately burdened. Marketing orders issued

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

they are brought about through group action of essentially small

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

entity orientation and compatibility.

There are approximately 8 handlers of Georgia peaches who would be

subject to regulation under the marketing order and approximately 20

peach growers in the regulated area. Small agricultural service firms

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

as those having annual receipts of less than $5,000,000, and small

agricultural producers are defined as those having annual receipts of

less than $500,000. The majority of the Georgia peach growers and

handlers may be classified as small entities.

This final rule terminates the order regulating the handling of

peaches grown in Georgia. The order and its accompanying rules and

regulations have been suspended since March 1, 1993. No regulations

have been implemented since the 1990-91 season, and there is no

indication that such regulations will again be needed.

The industry has been operating without a marketing order since its

suspension. Reestablishing the order would mean additional cost to the

industry stemming from assessments to maintain the order and any

associated costs generated by regulation. By not reinstating the

marketing order, the industry benefits from avoiding these costs.

Because the industry has been operating without an order for four

years, the termination of the order would have no noticeable effect on

either small or large operations.

The Department attempted to solicit as much industry input on this

decision as possible. The Department sent a letter to current industry

members it was able to identify seeking comments on the need for

reinstating the marketing order. There was a peach industry meeting

held on February 6, 1997, in Byron, Georgia where the marketing order

was a topic of discussion. In addition, the proposed rule provided the

opportunity for all interested persons to comment on the termination of

the marketing order.

A proposed rule was published in the June 4, 1997, issue of the

Federal Register giving interested persons until July 7, 1997, to file

written comments. No comments were received.

The Department believes that conducting a termination referendum

would merely reaffirm the Georgia peach industry's continued lack of

interest in reactivating the marketing order and that conducting such a

referendum would be wasteful of Departmental and public resources.

Therefore, pursuant to Sec. 608c(16)(A) of the Act and Sec. 918.81

of the order, the Secretary has determined that Marketing Order No.

918, covering peaches grown in Georgia, and the rules and regulations

issued thereunder, no longer tend to

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effectuate the declared policy of the Act, and are hereby terminated.

Trustees have been appointed to continue in the capacity of

concluding and liquidating the affairs of the former committee. The

trustees will be responsible for completing the order's unfinished

business, including ensuring termination of all outstanding agreements

and contracts, and the payment of all obligations. The trustees will be

responsible for safeguarding program assets, holding committee records,

and arranging for a financial audit to be conducted. All such actions

by the trustees are subject to the approval of the Secretary. Those

designated as trustees are Robert L. Dickey III, William H. Davidson,

and Al Pearson. The trustees shall continue in their capacity until

discharged by the Secretary.

The remainder of the reserves, after immediate expenses are paid,

will be held by the trustees to be used to cover unforeseen,

outstanding expenses obligated by the trustees.

Section 608c(16)(A) of the Act requires the Secretary to notify

Congress 60 days in advance of the termination of a Federal marketing

order. Congress has been so notified.

List of Subjects in 7 CFR Part 918

Marketing agreements, Peaches, Reporting and recordkeeping

requirements.

PART 918--[REMOVED]

For the reasons set forth in the preamble, and under authority of 7

U.S.C. 601-674, 7 CFR part 918 is removed.

Dated: August 12, 1997.

Lon Hatamiya,

Administrator.

[FR Doc. 97-21732 Filed 8-15-97; 8:45 am]

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