[Federal Register Volume 69, Number 104 (Friday, May 28, 2004)]
[Proposed Rules]
[Pages 30597-30601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12137]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 69, No. 104 / Friday, May 28, 2004 / Proposed 
Rules  

[[Page 30597]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 916 and 917

[Docket No. FV04-916/917-03 PR]


Nectarines and Peaches Grown in California; Revision of Reporting 
Requirements for Fresh Nectarines and Peaches; and Request for Approval 
of a New Information Collection

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This document invites comments on proposed revisions to the 
reporting requirements in the rules and regulations of the marketing 
orders (orders) for fresh nectarines and peaches grown in California. 
It also announces the Agricultural Marketing Service's (AMS's) 
intention to request approval by the Office of Management and Budget 
(OMB) of a new information collection issued under the orders. The 
orders regulate the handling of nectarines and peaches grown in 
California and are administered locally by the Nectarine Administrative 
and Peach Commodity Committees (committees). Under the orders, 
authority is provided for the committees to require handlers to file 
reports on their shipments of fresh nectarines and peaches. This 
proposed rule would revise the current shipment report to require 
handlers to include new information on the growers whose fruit the 
handler handles annually. The new information would enhance committee 
communications and facilitate the development of a simplified ballot 
for referendums.

DATES: Comments must be received by July 27, 2004. Pursuant to the 
Paperwork Reduction Act, any comments on the new information collection 
must be received by July 27, 2004.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments must be sent to the Docket Clerk, 
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] or www.regulations.gov. 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 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, 1400 
Independence Avenue, SW., Stop 0237, Washington, DC 20250-0237; 
telephone: (202) 720-2491; fax: (202) 720-8938.
    Small businesses may request information on compliance with this 
regulation, or obtain a guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders by contacting Jay 
Guerber, Marketing Order Administration Branch, Fruit and Vegetable 
Programs, AMS, USDA, 1400 Independence Avenue, SW., Stop 0237, 
Washington, DC 20250-0237; telephone: (202) 720-2491; fax: (202) 205-
8938; or e-mail: [email protected].

SUPPLEMENTARY INFORMATION: This proposal is issued under Marketing 
Agreements 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.''
    USDA is issuing this proposed rule in conformance with Executive 
Order 12866.
    This proposal 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 proposal invites comments on revisions to the orders' rules 
and regulations pertaining to reporting requirements under the orders. 
This rule would revise the current handler shipment report for fresh 
nectarines and peaches by requiring handlers to report the names, 
addresses, telephone numbers, and any available facsimile numbers and 
e-mail addresses for the growers who produced the nectarines and/or 
peaches the handlers shipped during the season. Handlers would also be 
required to report the nectarine and/or peach volumes of each of their 
growers annually. This proposal was unanimously recommended by the 
committees at their meetings on February 25, 2004.
    In Sec. Sec.  916.60 and 917.50 of the orders, authority is 
provided for the committees to require handlers to file reports with 
the committees. The information authorized includes, but is not limited 
to: (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,

[[Page 30598]]

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.
    The nectarine order also requires that handlers supply the 
committee with other information, pursuant to paragraph (b) of Sec.  
916.60, which states, in part: ``Upon request of the committee, made 
with the approval of the Secretary, each handler shall furnish to the 
committee, in such manner and at such times as it may prescribe, such 
other information as may be necessary to enable the committee to 
perform its duties under this part.''
    The requirement under the peach order is similar in paragraph (b) 
of Sec.  917.50, which states, in part, ``Upon request of any 
committee, made with the approval of the Secretary, each handler shall 
furnish to the Manager of the Control Committee, in such manner and at 
such times as it may prescribe, such other information as may be 
necessary to enable the committee to perform its duties under this 
part.''
    Under paragraph (b) of Sec. Sec.  916.160 and 917.178 of the 
orders' rules and regulations, the requirement for a shipment report is 
specified, and information required on the report and a due date for 
submission of the report are established, as well. With this proposed 
change, paragraph (b) in Sec. Sec.  916.160 and 917.178 would be 
amended to add the requirement that handlers begin reporting each of 
their grower's annual nectarine and/or peach volumes by including the 
grower's name, address, telephone number, facsimile number (if 
applicable), e-mail address (if applicable), and total volumes in 25-
pound containers or container equivalent units.
    At their February 25, 2004, meetings, the Nectarine Administrative 
Committee and the Peach Commodity Committee discussed the merits of 
revising the current shipment reports. The committees considered 
including information about varieties and styles of pack for each 
handler's growers. After some discussion about the proposed new 
information, it was determined that varietal and pack style information 
was unnecessary as long as each grower's total volume was required. The 
committees, then, unanimously recommended amending the existing 
shipment reports to include the name, address, telephone number, 
facsimile number (if applicable), e-mail address (if applicable), and 
volume of nectarines and/or peaches each handler handled annually on 
behalf of each of their growers.
    The committees believe that having such information would allow 
them to communicate more effectively and efficiently with growers. 
Material distributed would include information such as: Production and 
post-harvest research; proposed and existing regulatory requirements 
under the marketing orders, and requirements of local, county, State, 
or other Federal agencies; surveys about research needs; crop 
estimates; seasonal packout information; annual reports; meeting 
notices; and meeting minutes.
    The grower information would provide the committees with more 
complete information on the growers that constitute their respective 
industries. More importantly, the committees would have information on 
each grower's volume of fruit, which would help the committees make 
more accurate crop estimates and compute seasonal packout totals.
    According to the committees, such information would permit USDA to 
simplify continuance referendum ballots that are used to determine 
whether growers support the continuation of the marketing orders. These 
referenda are required under the orders every four years. USDA would 
consider termination of the marketing orders if less than two-thirds of 
those voting and less than two-thirds of the volume represented in the 
referendum favor continuance.
    Currently, the ballot requires growers to list the total volume of 
nectarines and/or peaches that he or she produced during a 
representative period (usually the crop year preceding the referendum) 
by container type. This information is necessary to ensure that each 
grower's vote is properly weighted by the volume of fruit he or she 
produced. However, growers have complained that the ballot is confusing 
and difficult to complete partly because of the requirement for each 
grower to provide volume information. The committees believe that 
elimination of this requirement from the ballot will not only simplify 
the ballot, but also encourage more growers to vote.
    USDA would no longer require grower volume information on the 
ballot; the committee staff, based upon information from the revised 
shipment report, would provide that information to USDA. However, in 
the event that a handler fails to file a shipment report, as part of 
the ballot process, his or her growers would be required to provide the 
volume of nectarines and/or peaches that were packed during the 
representative period.
    Producer ballots on order amendments would be changed similarly by 
USDA to foster more producer participation.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), 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 250 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. The Small Business Administration (13 CFR 121.201) defines 
small agricultural service firms, which include handlers, as those 
whose annual receipts are less than $5,000,000. Small agricultural 
producers are defined as those having annual receipts of less than 
$750,000.
    The committees' staff has estimated that there are less than 20 
handlers in the industry who could be defined as other than small 
entities. In the 2003 season, the average handler price received was 
$7.00 per container or container equivalent of nectarines or peaches. A 
handler would have to ship at least 714,286 containers 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 
2003 season, the committees' staff estimates that small handlers 
represent approximately 94 percent of all the packers within the 
industry.
    The committees' staff also has estimated that less than 20 percent 
of the producers in the industry could be defined as other than small 
entities. In the 2003 season, the average producer price received was 
$4.00 per container or container equivalent for nectarines and peaches. 
A producer would have to produce at least 187,500 containers of 
nectarines and peaches to have annual receipts of $750,000. Given data 
maintained by the committees' staff and the average producer price 
received during the 2003 season, the committees' staff estimates that 
small producers represent more than 80 percent of the producers within 
the industry.
    With an average producer price of $4.00 per container or container

[[Page 30599]]

equivalent, and a combined packout of nectarines and peaches of 
44,202,600 containers, the value of the 2003 packout level is estimated 
to be $176,810,400. Dividing this total estimated grower revenue figure 
by the estimated number of producers (1,800) yields an estimated 
average revenue per producer of approximately $98,228 from the sales of 
nectarines and peaches.
    This proposal would revise Sec. Sec.  916.160 and 917.178 of the 
orders' administrative rules and regulations to require handlers to 
provide information annually about growers who grew the fruit they 
handled. The handlers would be required to list each grower's name, 
address, telephone number, facsimile number (if applicable), and e-mail 
address (if applicable). Additionally, the handlers would be required 
to list the volume of nectarines and/or peaches handled (in containers 
or container equivalents) for each of their growers.
    Information obtained from such reports is expected to improve 
communications within the industry and facilitate the development of a 
simplified continuance referendum ballot. Other ballots used under the 
marketing orders also would be simplified.
    Requiring handlers to file the revised report on an annual basis 
would impose an additional reporting burden. When evaluating the new 
response time to include the additional information on the currently 
approved form, each committee found that the previous one-hour response 
time had been overestimated. Each committee believes the average time 
needed to prepare its current form is actually one-half hour. It is 
estimated that the proposed additional new information collection would 
add another one-half hour to complete. Thus, the response time to 
complete each revised form would be one hour, which is already approved 
by OMB under OMB No. 0581-0189. Upon OMB approval of the new 
information collection package, both revised forms would be merged into 
0581-0189.
    An alternative to this proposed action would be to continue 
operations without requiring grower information. However, having such 
grower information would enhance communication in the industry and may 
promote industry cohesion. Committee members agreed that the value of 
having grower information outweighed the burden on handlers of filing 
such reports by allowing the committees to more effectively target 
information and communications to growers. In addition, when e-mail 
addresses are provided, much of the information that the committees now 
mail to the industry could be sent electronically, thereby reducing 
committee administrative costs.
    During the deliberations, some committee members indicated their 
concern that confidentiality of the required information would not be 
maintained. However, such information is available only to committee 
staff members, who are required by Sec. Sec.  916.60(d) and 917.50(d) 
to maintain confidentiality of all reports and records submitted by 
handlers.
    Further, a confidentiality statement would be provided on each 
form. Other concerns about confidentiality were addressed by not 
requiring handlers to report the volume handled by variety and style of 
pack. By limiting the quantity reported by the handler to the total 
volume handled for each of the handler's growers, members felt that 
confidentiality was better assured.
    The committee meetings on February 25 were widely publicized 
throughout the tree fruit industry and all interested persons were 
invited to express their views and participate in committee 
deliberations. Like all committee meetings, the February 25, 2004, 
meetings were public meetings, and all entities, large and small, were 
able to express their views on this issue. Meeting notices were 
provided to committee members and other interested persons both by mail 
and through the committee Web site. Finally, interested persons are 
invited to submit information on the regulatory and informational 
impacts of this action on small businesses.
    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 are being submitted to OMB for approval. More specific 
information on this collection is discussed below.
    In addition, USDA has not identified any relevant Federal rules 
that duplicate, overlap, or conflict with this proposed rule. As with 
all Federal marketing order programs, reports and forms are 
periodically reviewed to reduce information collection requirements and 
duplication by industry and public sector agencies.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
chapter 35), this notice announces AMS' intention to request OMB 
approval of a new information collection as proposed in this rule. The 
new information collection would not become effective until OMB 
approves of the additional information collection.
    The new information collection would revise both the peach and 
nectarine shipment--grower data reports currently approved under OMB 
No. 0581-0189.
    Title: Nectarines and Peaches Grown in California, Marketing Orders 
916 and 917.
    OMB Number: 0581-New.
    Expiration Date of Approval: 3 years from OMB date of approval.
    Type of Request: New Collection.
    The orders and their rules and regulations require handlers to 
submit certain information to the committees, the agencies responsible 
for local administration of the orders. Much of this information is 
compiled in the aggregate and provided to the industry to assist in 
marketing decisions. The information collection requirements in this 
request are essential to carry out the intent of the Act, to provide 
the respondents the type of service they request, and to administer the 
marketing orders for California nectarines and peaches.
    The committees have developed forms as a convenience to persons who 
are required to file information with the committees that is needed to 
carry out the purposes of the Act and the orders. These forms require 
the minimum information necessary to effectively carry out the 
requirements of the orders, and their use is necessary to fulfill the 
intent of the Act as expressed in the orders, and the rules and 
regulations issued under the orders.
    On February 25, 2004, the committees voted unanimously to change 
each of its current shipment reports to include specific information 
about the growers who grew the nectarines or peaches they handled. 
Currently, nectarine handlers and peach handlers report their total 
nectarine or peach shipments by variety, style of pack, and size by 
November 15 of each year. The revised nectarine and peach reports would 
require handlers to include information about each grower who grew the 
nectarines or peaches the handler handled. Such information would 
include the name, address, telephone number, any facsimile number or e-
mail addresses for each grower, as well as the total volume of 
nectarines or peaches grown by the producer and handled by the handler.
    Only authorized employees of the committees and authorized 
representatives of USDA, including AMS, Fruit and Vegetable Program 
regional and headquarters staff, as primary and secondary users, 
respectively, would use the information collected.
    This proposed collection consists of a new requirement for handlers 
to provide

[[Page 30600]]

information about growers who grew the nectarines or peaches the 
handler handled. With grower information from handlers, the committee 
would be able to communicate with growers of record and provide them 
with information on: Production and post-harvest research; proposed and 
existing regulatory requirements under the marketing orders, and 
requirements of local, county, State, or other Federal agencies; 
surveys about research needs; crop estimates; seasonal pack-outs; 
meeting notices; and meeting minutes. This information also would 
enable USDA to simplify the referendum ballot used to determine grower 
support for the programs by removing the requirement that each grower 
list his or her total volume of nectarines or peaches by style of pack 
and weight.
    When evaluating the new per response time to include the additional 
information on the currently approved handler shipment report, each 
committee found that the previous one-hour response time had been 
overestimated. Each committee believes the average time needed to 
prepare its current form is actually one-half hour. It is estimated 
that the proposed additional new information collection would add 
another one-half hour to complete. Thus, the response time to complete 
each revised form would be one hour. Upon OMB approval of the new 
information collection, both revised forms would be merged into 0581-
0189. The burden for the nectarine shipment report would be:
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 1 hour per response. This 
represents an increase of one-half hour over the re-evaluated per 
response of one-half hour for the current information collected, and 
equals the same 1 hour burden as is currently approved.
    Respondents: Handlers of fresh nectarines produced in California.
    Estimated Number of Respondents: 250.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 250 hours.
    The burden for the peach shipment report would be:
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 1 hour per response. This 
represents an increase of one-half hour over the re-evaluated per 
response of one-half hour for the current information collected, and 
equals the same 1 hour burden as is currently approved.
    Respondents: Handlers of fresh peaches produced in California.
    Estimated Number of Respondents: 250.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 250 hours.
    Comments are invited on: (1) Whether the proposed collection of 
information is necessary for the functioning of the California 
nectarine and peach marketing order programs and USDA's oversight of 
those programs; (2) the accuracy of the collection burden estimate and 
the validity of methodology and assumptions used in estimating the 
burden on respondents; (3) ways to enhance the quality, utility, and 
clarity of the information requested; and (4) ways to minimize the 
burden, including use of automated or electronic technologies.
    Comments should reference OMB No. 0581-New and the California 
Nectarine Marketing Order No. 916 or the California Peach Marketing 
Order No. 917, and be sent to the USDA in care of the docket clerk at 
the address referenced above.
    All responses to this notice would be summarized and included in 
the request for OMB approval. All comments received will become a 
matter of public record and will be available for public inspection 
during regular business hours at the same address or at http://www.ams.usda.gov/fv/moab.html. Once the Web site page is opened, click 
on ``nectarines'' or ``peaches,'' and find the docket number of this 
proposed rule. Any comments received regarding this rule will be found 
in the ``Comments Received'' link. If no comments were received in 
response to a rule, there will be no ``Comments Received'' link.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at the 
following Web site: 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.
    A 60-day comment period is provided to allow interested persons to 
respond to this proposal.

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 proposed to be 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. In Sec.  916.160, paragraph (b) is revised to read as follows:


Sec.  916.160  Reporting procedure.

* * * * *
    (b) Recapitulation of shipments. Each shipper of nectarines shall 
furnish to the manager of the Nectarine Administrative Committee not 
later than November 15 of each year a recapitulation of shipments of 
each variety shipped during the just-completed season. The 
recapitulation shall show: The name of the shipper, the shipping point, 
the district of origin, the variety, and the number of packages, by 
size, for each container type. Each shipper also shall furnish to the 
manager not later than November 15, a recapitulation of shipments by 
that shipper's growers showing: Each grower's name, address, telephone 
number, facsimile number (if applicable), and e-mail address (if 
applicable), and the total number of packages shipped by container or 
container equivalents for each grower.
* * * * *

PART 917--PEACHES GROWN IN CALIFORNIA

    3. In Sec.  917.178, paragraph (b) is revised to read as follows:


Sec.  917.178  Peaches.

* * * * *
    (b) Recapitulation of shipments. Each shipper of peaches shall 
furnish to the manager of the Control Committee not later than November 
15 of each year a recapitulation of shipments of each variety shipped 
during the just-completed season. The recapitulation shall show: The 
name of the shipper, the shipping point, the district of origin, the 
variety, and the number of packages, by size, for each container type. 
Each shipper also shall furnish to the manager not later than November 
15, a recapitulation of shipments by that shipper's growers showing: 
Each grower's name, address, telephone number, facsimile number (if

[[Page 30601]]

applicable), and e-mail address (if applicable), and the total number 
of packages shipped by container or container equivalents for each 
grower.
* * * * *

    Dated: May 25, 2004.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 04-12137 Filed 5-27-04; 8:45 am]
BILLING CODE 3410-02-P