04-3956. Nectarines and Peaches/Pears Grown in California; Section 610 Review

AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Confirmation of regulations.

SUMMARY:

This action summarizes the results under the criteria contained in section 610 of the Regulatory Flexibility Act (RFA), of an Agricultural Marketing Service (AMS) review of Marketing Orders 916 and 917 regulating the handling of nectarines and peaches/pears grown in California. The provisions and regulations for pears have been suspended since 1994. Based upon its review, AMS has determined that the nectarine and peach marketing orders should be continued, and that the pear order provisions should be continued, as suspended.

ADDRESSES:

Interested persons may obtain a copy of the review. Requests for copies should be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; fax: [phone]; or e-mail: [e-mail].

FOR FURTHER INFORMATION CONTACT:

Terry Vawter, Marketing Specialist, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey Street, Suite 102B, Fresno, California 93721; telephone: [phone]; fax: [phone]; e-mail: Terry [e-mail]; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; telephone: [phone]; fax: [phone]; e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Marketing Orders 916 and 917, as amended (7 CFR parts 916 & 917), regulate the handling of nectarines and peaches grown in California. The marketing 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 nectarine marketing order authorizes the Nectarine Administrative Committee (NAC), consisting of eight growers or employees of growers and their respective alternates from four districts in California.

The peach marketing order authorizes the Peach Commodity Committee (PCC) consisting of 13 growers or employees of growers, representing five districts within the production area.

Currently, there are approximately 1,800 nectarine and peach growers and approximately 300 handlers. The majority of the growers and handlers may be classified as small entities. The regulations implemented under the orders are applied uniformly to all size entities, and are designed to benefit all entities, regardless of size.

Marketing Order No. 916, originally established in 1948, and Marketing Order No. 917, established in 1939, authorize grade, size, maturity, quality, and container marking and pack requirements; mandatory inspection and reporting; cultural research; marketing research; marketing development; and promotion projects.

AMS published in the Federal Register (63 FR 8014; February 18, 1999), its plan to review certain regulations, including Marketing Orders 916 and 917, under criteria contained in section 610 of the Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612). Updated plans were published in the Federal Register on January 4, 2002 (67 FR 525), and again on August 14, 2003 (68 FR 48574). AMS published a notice of review and request for written comments on the California nectarine, peach, and pear marketing orders in the April 21, 2003, issue of the Federal Register (68 FR 19491). No comments were received from that publication, but, as discussed below, numerous comments on the programs were received as a result of a public meeting (listening sessions) held by USDA in May 2003.

The 610 review was undertaken to determine whether the California nectarine and peach marketing orders should be continued without change, amended, or rescinded to minimize the impacts on small entities. Regarding pears, the review was conducted to determine whether the program should be reactivated with change, amended, or rescinded. In conducting this review, AMS considered the following factors: (1) The continued need for the marketing orders; (2) the nature of complaints or comments received from the public concerning the marketing orders; (3) the complexity of the marketing orders; (4) the extent to which the marketing orders overlap, duplicate, or conflict with other Federal rules, and, to the extent feasible, with State and local governmental rules; and (5) the length of time since the marketing orders have been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the marketing orders.

The nectarine and peach marketing orders require that a continuance referendum be held every four years to determine whether growers favor continuation. Continuance referenda were held on both orders in January 2003. Results from the referenda revealed that slightly less than two-thirds of those voting favored continuation of the nectarine and peach orders. The vote of pear growers to continue the order met the two-thirds criteria. As a result, USDA published an announcement of a public meeting to review the nectarine and peach orders (listening sessions) in the April 21, 2003, issue of the Federal Register (68 FR 19466). The listening sessions were held in the production area on May 20 and 21, 2003, and written comments were solicited until June 20, 2003. Thirty-seven individuals spoke at the listening sessions and seven others filed comments on the marketing orders.

The majority of commenters believed that the programs are effective and important tools for the nectarine and peach industries. Commenters identified the orders' promotional programs, research activities, quality regulations, and data collection provisions as benefits to growers and handlers. Many commenters believe that recent changes in the programs will improve support for the marketing orders.

The marketing orders for nectarines and peaches have been used effectively in the areas of quality control and marketing research and development. The establishment of a quality control program that includes minimum grades and standards and mandatory inspections, the establishment of container and pack requirements, and the compilation and dissemination of statistical information to the industry has helped improve the quality of product moving from the farm to market and has helped growers and handlers more effectively market their crops.

These order requirements have helped ensure that only satisfactory quality product reaches the consumer. This has helped increase and maintain market demand for nectarines and peaches from this marketing order area over the years. In regard to complaints or comments received from the public regarding the marketing orders, USDA received 44 comments from industry members as a result of the listening sessions relative to the nectarine and peach marketing orders. Only four of the commenters favored termination of the marketing orders. The majority of the comments were supportive of the programs as they currently exist. However, there were some concerns voiced by commenters. Some of the commenters found the referendum ballot complicated or confusing, some objected to or supported continued shipments of “CA Utility” quality fruit, some felt that reporting and compliance requirements should be eliminated and assessments reduced, and some felt that the size regulations needed to be reviewed. The committees and USDA will review the issues raised by the commenters.

Marketing order issues and programs are discussed at public meetings, and all interested persons are allowed to express their views. All comments are considered in the decision making process by the committees and USDA before program changes are implemented.

In considering the orders' complexity, AMS has determined that the marketing orders are not unduly complex. During the review, the orders were also checked for duplication and overlap with other regulations. AMS did not identify any relevant Federal rules, or State and local regulations that duplicate, overlap, or conflict with the marketing orders for nectarines and peaches grown in California.

As stated previously, the orders were established in 1939 and 1958. During this time, AMS and the California nectarine and peach industries have continuously monitored marketing operations. Changes in regulations have been implemented to reflect current industry operating practices, and to solve marketing problems as they occur. The goal of these evaluations is to assure that the marketing orders and the regulations implemented under them fit the needs of the industries and are consistent with the Act. The committees meet whenever needed, but at least annually, to discuss the marketing orders and the various regulations issued thereunder, and to determine if, or what, changes may be necessary to reflect current industry practices. As a result, regulatory changes have been made numerous times over the years to address industry operation changes and to improve program administration.

In 1994, the provisions of part 917 relating to pears were suspended indefinitely (59 FR 10054). The suspension was implemented because the California Bartlett pear industry began using a California State pear program. We believe that if a pear program were in effect under part 917, similar conclusions could be made regarding the 610 review as have been made for nectarines and peaches.

Based upon its review, AMS has determined that the nectarine and peach marketing orders should be continued, and that the pear order provisions should be continued, as suspended.

The marketing orders were established to help the California nectarine and peach industries work with USDA to solve marketing problems. The marketing order regulations on grade, size, maturity, quality, container marking and pack requirements, mandatory inspection, and reporting; and cultural research, marketing research, marketing development, and promotion continue to be beneficial to producers, handlers, and consumers. AMS will continue to work with the California nectarine and peach industries in maintaining effective marketing order programs.

Dated: February 18, 2004.

A.J. Yates,

Administrator, Agricultural Marketing Service.