[Federal Register Volume 66, Number 147 (Tuesday, July 31, 2001)]
[Rules and Regulations]
[Pages 39406-39409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19096]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 916 and 917

[Docket No. FV01-916-3 IFR]


Nectarines and Peaches Grown in California; Revision of Reporting 
Requirements for Fresh Nectarines and Peaches

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule revises the reporting requirements under the 
marketing orders for California nectarines and peaches by modifying the 
requirement that all handlers submit a monthly destination report. This 
rule relaxes the requirement by establishing an exemption for handlers 
who ship fewer than 50,000 containers or container equivalents of tree 
fruit, including nectarines, peaches, and plums. The marketing orders 
regulate the handling of nectarines and peaches grown in California and 
are administered locally by the Nectarine Administrative (NAC) and 
Peach Commodity Committees (PCC) (committees). The handling of plums 
grown in California is regulated by a California State marketing order.

DATES: August 1, 2001; comments received by October 1, 2001 will be 
considered prior to issuance of any final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; Fax: 
(202) 720-8938, or E-mail: [email protected]. All comments 
should reference the docket number and the date and page number of this 
issue of the Federal Register and will be made available for public 
inspection at the Office of the Docket Clerk during regular business 
hours, or can be viewed at: http://www.ams.usda.gov/fv/moab.html.

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 (559) 487-5901, Fax: 
(559) 487-5906; or George Kelhart, Technical Advisor, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. 
Box 96456, room 2525-S, Washington, DC 20090-6456; telephone: (202) 
720-2491; Fax: (202) 720-8938.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 96456, room 
2525-S, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: 
(202) 720-8938, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement Nos. 124 and 85, and Marketing Order Nos. 916 and 917 (7 CFR 
parts 916 and 917) regulating the handling of nectarines and peaches 
grown in California, respectively, 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 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
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. A handler is afforded the opportunity for a hearing on the 
petition. After the hearing, the Secretary would rule in the petition. 
The Act provides that the

[[Page 39407]]

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.
    This rule modifies the reporting requirements under the orders' 
rules and regulations by establishing an exemption from filing 
mandatory monthly destination reports for handlers who handle less than 
50,000 containers or container equivalents for nectarines, peaches, and 
plums. While nectarines and peaches are regulated under the Federal 
marketing orders, plums are regulated under a California state 
marketing order. Most handlers, however, handle and report on a 
combination of these fruit.
    Under this modification, handlers who shipped less than 50,000 
containers or container equivalents of any combination of nectarines, 
peaches, and plums in the 2000 season will be exempted from filing 
monthly destination reports in subsequent seasons, provided their 
shipments continue to total less than 50,000 containers or container 
equivalents of these fruit in the previous season.
    Handlers who begin operation during or after the 2001 season will 
also be exempt from filing monthly destination reports during their 
first year of operation. These handlers will continue to be exempt from 
such reporting requirements as long as their shipments of these tree 
fruit total less than 50,000 containers or container equivalents, in 
the previous season.
    Handlers who are not exempt, but in some subsequent year ship less 
than 50,000 containers or container equivalents, will be exempt the 
following season and will be exempt in subsequent seasons, provided 
their shipments continue to total less than 50,000.
    Under the orders, reporting requirements are established in 
Secs. 916.60 and 917.50 for fresh shipments of California nectarines 
and peaches, respectively. Such reports are to be filed with the 
committees. The information authorized includes: (1) The name of the 
shipper and the shipping point; (2) the car or truck license number (or 
name of the trucker), and identification of the carrier; (3) the date 
and time of departure; (4) the number and type of containers in the 
shipment; (5) the quantities shipped, showing separately the variety, 
grade, and size of the fruit; (6) the destination; and (7) the 
identification of the inspection certificate or waiver pursuant to 
which the fruit was handled. Other information may be requested by the 
committees, with the approval of the Secretary, to enable the 
committees to carry out their duties.
    Sections 916.160 and 917.178 of the orders' rules and regulations 
specify the reporting procedures for handlers of nectarines and 
peaches, which include the requirements related to destination reports.
    Information from destination reports is utilized by the NAC and PCC 
to determine the quantities of nectarines and peaches shipped to 
various markets. Such information permits the committees to target 
marketing research and promotion efforts more effectively, giving the 
committees the flexibility to direct their limited marketing funds to 
open new markets or expand existing markets.
    The more accurate the information obtained from handlers, the more 
precisely the committees can address their marketing research and 
promotion efforts. However, this information collection comes at a cost 
to the committees and to handlers, especially smaller handlers who 
generally lack the staff to prepare such reports.
    The NAC and PCC, which are responsible for local administration of 
the orders, met on May 3, 2001, and unanimously recommended that these 
reporting requirements be revised, beginning with the 2001 season, 
which began April 1. However, because the season has already begun, the 
relaxation in report requirements will be implemented as of the 
effective date of this rule.
    At three subcommittee meetings prior to the May 3, 2001, committee 
meetings, discussions on the merits of the exemption were held. The 
Management Services Committee met on January 18, 2001, and discussed a 
request from a small handler to review the destination report 
requirements. It was reported that destination information from small 
handlers is not always accurate since the reporting handlers do not 
necessarily know the final destination of their fruit sold at terminal 
markets. It was also noted that the burden of filing destination 
reports is often a complaint of small handlers.
    The Management Services Committee then directed the committee staff 
to review the destination report requirements and procedures, and make 
recommendations based upon their review at the following Management 
Services Committee meeting.
    The Management Services Committee met again on March 6, 2001, and 
discussed the destination report information provided by the committee 
staff. The members also discussed changes to the destination report 
requirements, as well as the effect of the revision on handlers in the 
industry and on information gathering conducted by the committees.
    A review of destination report records by the staff revealed that 
approximately 160 handlers shipped less than 50,000 containers of all 
three-tree fruit during the 2000 season. As a percentage of total 
shipments, these handlers represent approximately 3 percent of all 
shipments of nectarines, peaches, and plums. The committees' staff 
spends a portion of their time administering the collection of this 
relatively small amount of additional information. The committees 
believe that exempting information from handlers who represent 
approximately 3 percent of all tree fruit shipments would not have a 
significant effect on overall destination information, and may actually 
improve the accuracy of destination information. These handlers are 
small entities, and such a relaxation will reduce the reporting burden 
on them. In addition, the committees' administrative costs associated 
with destination reports may be reduced.
    Finally, the Management Services Committee met on April 18, 2001, 
to review destination report summaries from the 2000 season. Based on 
all the information considered, the members voted unanimously to 
recommend to the NAC and PCC that handlers who ship less than 50,000 
containers or container equivalents of tree fruit (including 
nectarines, peaches, and plums) should be exempted from filing monthly 
destination reports.

Initial Regulatory Flexibility Analysis

    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 initial 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 300 California nectarine and peach handlers 
subject to regulation under the orders covering nectarines and peaches 
grown in California, and about 1,800 producers

[[Page 39408]]

of these fruits in California. Small agricultural service firms, which 
includes handlers, are defined by the Small Business Administration [13 
CFR 121.201] as those whose annual receipts are less than $5,000,000. 
Small agricultural producers are defined by the Small Business 
Administration as those having annual receipts of less than $500,000. A 
majority of these handlers and producers may be classified as small 
entities, excluding receipts from other sources.
    The committees' staff has estimated that there are less than 20 
handlers of nectarines and peaches in the industry who could be defined 
as other than small entities. In the 2000 season, the average handler 
price received was $9.00 per container or container equivalent of 
nectarines or peaches. A handler would have to ship at least 555,556 
containers of nectarines and peaches to have annual receipts of 
$5,000,000. Given data on shipments maintained by the committees' staff 
and the average handler price received during the previous season, the 
committees' staff estimates that small handlers of nectarines and 
peaches represent approximately 94 percent of the handlers within the 
industry.
    The committees' staff has also estimated that approximately 22 
percent of the nectarine and peach producers in the industry could be 
defined as other than small entities. In the 2000 season, the average 
producer price received was $5.50 per container or container equivalent 
for nectarines, and $5.25 per container or container equivalent for 
peaches. A producer would have to produce at least 90,910 containers of 
nectarines and 95,239 containers of peaches to have annual receipts of 
$500,000. Given data maintained by the committees' staff and the 
average producer price received during the 2000 season, the committees' 
staff estimates that small producers represent approximately 78 percent 
of the nectarine and peach producers within the industry.
    This rule will revise Secs. 916.160 and 917.178 of the orders' 
administrative rules and regulations to relax the requirement that all 
handlers file monthly destination reports. Under this rule, handlers 
who shipped less than 50,000 containers or container equivalents of 
tree fruit during the 2000 season will be exempted from filing monthly 
destination reports in subsequent seasons, as long as their shipments 
total less than 50,000 containers or container equivalents of tree 
fruit in the previous season.
    Handlers who begin operations during or after the 2001 season will 
also be exempt from filing monthly destination reports during their 
first season of operation. Such handlers will continue to be exempt in 
subsequent seasons as long as their shipments total less than 50,000 
containers or container equivalents of tree fruit in the previous 
season.
    The NAC and PCC met on May 3, 2001, and unanimously recommended 
these changes to the reporting requirements for the 2001 season, which 
began April 1. This action was recommended to the committees by a 
subcommittee charged with review and discussion of the changes.
    The Management Services Committee met on January 18, 2001, to 
discuss a request from a small handler concerning destination report 
requirements. At that time, the members reviewed the request and 
directed the staff to research the destination report requirements and 
procedures. At the March 6, 2001, meeting, the Management Services 
Committee reviewed a staff recommendation to relax the destination 
reporting requirements for small handlers. The members also considered 
two alternatives to this action at that meeting.
    First, the committee considered not establishing any exemption for 
small handlers. This alternative was rejected because the members felt 
that small handlers should be provided an exemption from the 
destination reporting requirements. Second, they considered 
establishing a filing exemption for handlers who shipped less than 
10,000 containers of tree fruit during the 2000 season. The committee 
estimated that this exemption would affect approximately 100 handlers 
only and one percent of total shipments. The Management Services 
Committee rejected that alternative because they believed that more 
handlers should be exempted from the requirement for filing destination 
reports. After some discussion, it was determined and recommended by 
the Management Services Committee that handlers who ship less than 
50,000 containers or container equivalents of tree fruit should be 
exempted from filing monthly destination reports.
    At a subsequent Management Services Committee meeting on April 18, 
2001, the members reviewed destination report summaries from the 2000 
season and voted unanimously to recommend to the NAC and PCC that 
handlers who ship less than 50,000 containers or container equivalents 
of tree fruit be exempted from filing monthly destination reports.
    The committees make recommendations regarding all the revisions in 
reporting requirements after considering all available information, 
including comments of persons at committee and subcommittee meetings, 
and comments received in writing or verbally by committee staff. Such 
subcommittees include the Management Services Committee.
    At the meetings, the impact of and alternatives to these 
recommendations are deliberated. These subcommittees, like the 
committees themselves, frequently consist of individual producers (and 
handlers, where authorized) with many years' experience in the 
industry, who are familiar with industry practices. Like all committee 
meetings, subcommittee meetings are open to the public and comments are 
widely solicited.
    This relaxation is expected to have an impact on small handlers by 
reducing the time and related costs of filing monthly destination 
reports. The committees estimate that approximately 160 peach and 
nectarine handlers would be exempt from filing destination reports. 
Each handler files an average of four reports each season. The time 
each handler spends preparing the monthly report has been estimated at 
45 minutes. Therefore, in terms of reporting burden time, each 
qualified respondent handler will save an average of three hours each 
season as a result of this exemption. In total, this exemption could 
save the qualified industry respondents approximately 480 hours 
annually each for peach handlers and nectarine handlers.
    This rule is also expected to have an impact on the committees by 
decreasing hours of staff time currently utilized to collect, 
reconcile, and assimilate destination report data received from small 
handlers.
    This rule does not impose any additional reporting and 
recordkeeping requirements on either small or large handlers. In fact, 
as noted previously, this rule will reduce reporting and recordkeeping 
requirements on qualified handlers, as well as on the committees 
themselves. In accordance with the Paperwork Reduction Act of 1995 (44 
U.S.C. Chapter 35), the information collection requirements that are 
contained in this rule have been previously approved by the Office of 
Management and Budget (OMB) and have been assigned OMB No. 0581-0189. 
As with all Federal marketing order programs, reports and forms are 
periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies, such as effectuated 
by this rule.

[[Page 39409]]

    The Department has not identified any relevant Federal rules that 
duplicate, overlap, or conflict with this rule.
    In addition, the committees' meetings are widely publicized 
throughout the nectarine and peach industries and all interested 
parties are encouraged to attend and participate in committee 
deliberations on all issues. The committees routinely schedule meetings 
bi-annually during the last week of November or first week of December, 
and the last week of April or first week of May. Like all committee 
meetings, the May 3, 2001, meetings were public meetings, and all 
entities, large and small, were encouraged to express views on these 
issues.
    In addition, the committees have a number of appointed 
subcommittees to review certain issues and make recommendations to the 
NAC and PCC. For this action, three subcommittee meetings were held 
prior to the May 3, 2001, meeting at which these regulations were 
reviewed and discussed.
    Finally, interested persons are invited to submit information on 
the regulatory and informational impacts of this action on small 
businesses.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at the 
following website: http://www.ams.usda.gov/fv/moab.html. Any questions 
about the compliance guide should be sent to Jay Guerber at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    This rule invites comments on revisions of the handling 
requirements regarding destination reporting currently prescribed under 
the marketing orders for California fresh nectarines and peaches. Any 
comments received will be considered prior to finalization of this 
rule.
    After consideration of all relevant matters presented, the 
information and recommendations submitted by the committees, and other 
information, it is found that this interim final 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 shipping season for California 
nectarines and peaches is currently underway and handlers should be 
allowed to utilize this exemption as soon as possible; (2) this rule 
relaxes reporting requirements for some handlers of nectarines and 
peaches; (3) the committees unanimously recommended these changes at 
public meetings and interested persons had an opportunity to provide 
input; and (4) the rule provides a 60-day comment period, and any 
written comments timely received will be considered prior to any 
finalization of this interim final 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:
    1. The authority citation for 7 CFR parts 916 and 917 continues to 
read as follows:

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

PART 916--NECTARINES GROWN IN CALIFORNIA

    2. Paragraph (c) of Sec. 916.160 is revised to read as follows:


Sec. 916.160  Reporting procedure.

* * * * *
    (c) Destination report. Each shipper who ships nectarines shall 
furnish to the manager of the Nectarine Administrative Committee a 
report of the number of packages of nectarines shipped to each 
destination, and whether the nectarines were yellow-fleshed or white-
fleshed, and whether the nectarines were ``CA Utility'' quality: 
Provided, That handlers who shipped fewer than 50,000 containers or 
container equivalents of any combination of nectarines, peaches, and 
plums during the previous season are exempted from these reporting 
requirements: Provided further, That handlers who begin operation 
during or after the 2001 season shall be exempted from these reporting 
requirements during their first season of operation. The destination is 
defined as nectarine shipments to any domestic or international market. 
Destination information for domestic market shipments shall include 
city and state, and zip code, if known. Destination information for 
international market shipments shall include the country to which 
shipped. This report shall be submitted by the fifteenth of each month 
following the month in which nectarine shipments were made.
* * * * *

    3. Paragraph (c) of Sec. 917.178 is revised to read as follows:


Sec. 917.178  Peaches.

* * * * *
    (c) Destination report. Each shipper who ships peaches shall 
furnish to the manager of the Control Committee a report of the number 
of packages of peaches shipped to each destination, and whether the 
peaches shipped were yellow-fleshed or white-fleshed, and whether the 
peaches were ``CA Utility'' quality: Provided, That handlers who 
shipped fewer than 50,000 containers or container equivalents of any 
combination of peaches, nectarines, and plums during the previous 
season are exempted from these reporting requirements: Provided 
further, That handlers who begin operation during or after the 2001 
season shall be exempted from these reporting requirements during their 
first season of operation. The destination is defined as peach 
shipments to any domestic or international market. Destination 
information for domestic market shipments shall include the city and 
state, and zip code, if known. Destination information for 
international market shipments shall include the country to which 
shipped. This report shall be submitted by the fifteenth day of each 
month following the month in which peach shipments were made.
* * * * *

    Dated: July 26, 2001.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 01-19096 Filed 7-27-01; 9:11 am]
BILLING CODE 3410-02-P