[Federal Register Volume 67, Number 50 (Thursday, March 14, 2002)]
[Rules and Regulations]
[Pages 11393-11396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-6148]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 916 and 917

[Docket No. FV01-916-3 FIR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim final rule revising 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 continues in effect the relaxation of 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.

EFFECTIVE DATE: April 15, 2002.

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, 1400 
Independence Avenue, SW STOP 0237, Washington, DC 20090-0237; 
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, 1400 Independence 
Avenue, SW STOP 0237, Washington, DC 20090-0237; 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 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.''
    USDA 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 USDA 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, USDA 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 USDA'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 continues in effect the modification of 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 of 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,

[[Page 11394]]

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. Prior to publication of the interim final 
rule, such reports were to be filed with the committees by all 
handlers. The information required 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 had already begun, the 
relaxation in report requirements was implemented as of the effective 
date of the interim final 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.

Final 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 final 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 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 $750,000. A majority of 
these handlers and producers may be classified as small entities. Since 
the interim final rule was published, the small business producer 
standards were changed from $500,000 to $750,000.
    The committees' staff has estimated that there are less than 20 
handlers of nectarines and peaches in the industry

[[Page 11395]]

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 20 
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 136,364 containers 
of nectarines and 142,858 containers of peaches to have annual receipts 
of $750,000. 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 80 percent 
of the nectarine and peach producers within the industry.
    This rule continues in effect the revision of 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 that revision, 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, 
both in person and in writing, 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. 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.
    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

[[Page 11396]]

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.
    An interim final rule concerning this action was published in the 
Federal Register on July 31, 2001 (66 FR 39406). Copies of the rule 
were provided to all committee members and handlers. In addition, the 
rule was made available through the Internet by the Office of the 
Federal Register. That rule provided for a 60-day comment period which 
ended October 1, 2001. No comments were received.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 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.
    After consideration of all relevant matters presented, the 
information and recommendations submitted by the committees, and other 
information, it is found that finalizing the interim final rule, 
without changes, as published in the Federal Register (66 FR 39406, 
July 31, 2001), will tend to effectuate the declared policy of the Act.

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.

PART 916--NECTARINES GROWN IN CALIFORNIA

PART 917--PEACHES GROWN IN CALIFORNIA

    Accordingly, the interim final rule amending 7 CFR parts 916 and 
917 which was published at 66 FR 39406, July 31, 2001, is adopted as a 
final rule without change.

    Dated: March 11, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-6148 Filed 3-13-02; 8:45 am]
BILLING CODE 3410-02-P