[Federal Register Volume 69, Number 171 (Friday, September 3, 2004)]
[Rules and Regulations]
[Pages 53791-53794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20107]



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  Federal Register / Vol. 69, No. 171 / Friday, September 3, 2004 / 
Rules and Regulations  

[[Page 53791]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 916 and 917

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


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: This rule revises the reporting requirements in the rules and 
regulations of the marketing orders (orders) for fresh nectarines and 
peaches grown in California. 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 rule revises the current shipment 
report to require handlers to include new information on the growers 
whose fruit the handler handles annually. The new information enhances 
committee communications and facilitates the development of a 
simplified ballot for referenda.

DATES: Effective Date: This final rule becomes effective September 4, 
2004.

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 final rule 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. 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 (USDA) 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 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 revises the orders' rules and regulations pertaining to 
reporting requirements by revising the current handler shipment report 
for fresh nectarines and peaches. Handlers will be required 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 will also be required to report the nectarine and/or peach 
volumes of each of their growers annually. This change 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, 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. 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

[[Page 53792]]

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 final rule, paragraph (b) in Sec. Sec.  916.160 and 917.178 
is 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 allows them to 
communicate more effectively and efficiently with growers. Material 
distributed by the committees includes 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, etc.
    The grower information provides the committees with more complete 
information on the growers that constitute their respective industries. 
More importantly, the committees will have information on each grower's 
volume of fruit, which will help the committees make more accurate crop 
estimates and compute seasonal packout totals.
    According to the committees, such information also permits 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 
considers 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 may now simplify the ballot by removing the requirement for 
grower volume information; the committee staff, based upon information 
from the revised shipment report, can now provide that information to 
USDA to facilitate vote tabulations in the next referendum. However, in 
the event that a handler fails to file a shipment report, his or her 
growers will be required to provide the volume of nectarines and/or 
peaches that were packed during the representative period, as part of 
the tabulation process.
    Producer ballots on order amendments, as well, will be similarly 
changed by USDA to foster more producer participation.

Final 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 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 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 
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 final rule revises 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 will be required to list each grower's name, 
address, telephone number, facsimile number (if applicable), and e-mail 
address (if applicable). Additionally, the handlers will 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

[[Page 53793]]

simplified continuance referendum and amendatory ballots.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
chapter 35), AMS is seeking OMB approval of a new information 
collection. The new information collection would not become effective 
until OMB approves of the additional information collection. Upon OMB 
approval of the new information collection, the reports would be merged 
into 0581-0189.
    An alternative to this action is to continue operations without 
requiring grower information. However, having such grower information 
enhances 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 will 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 website. Finally, interested persons were 
invited to submit information on the regulatory and informational 
impacts of this action on small businesses.
    As noted in the initial regulatory flexibility analysis, USDA has 
not identified any relevant Federal rules that duplicate, overlap, or 
conflict with this final 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.
    A proposed rule concerning this action was published in the Federal 
Register on May 28, 2004 (69 FR 30597). Copies of the rule were 
provided to the industry through a link on the committees' website, as 
well as through the Internet by USDA and the Office of the Federal 
Register. A 60-day comment period ending on July 27, 2004 was provided 
to allow interested persons to respond to the proposal. No comments 
were received. Accordingly, no changes will be made to the rule as 
proposed.
    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.
    After consideration of all relevant matters presented, including 
the information and recommendations submitted by the committees and 
other available information, it is hereby found that this rule, as 
hereinafter set forth, will tend to effectuate the declared policy of 
the Act.
    It is further found that good cause exists for not postponing the 
effective date of this rule until 30 days after publication in the 
Federal Register (5 U.S.C. 553) because handlers are already receiving 
nectarines and peaches from growers and will need to begin collecting 
complete grower information as soon as possible for submission to the 
committees by November 15. Further, handlers are aware of this rule, 
which was recommended at public meetings, and interested persons were 
provided 60 days in the proposed rule to submit comments.

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.

0
For the reasons set forth in the preamble, 7 CFR parts 916 and 917 are 
amended as follows:
0
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

0
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

0
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 
applicable), and e-mail address (if applicable), and the total number 
of

[[Page 53794]]

packages shipped by container or container equivalents for each grower.
* * * * *

    Dated: August 30, 2004.
Kenneth C. Clayton,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 04-20107 Filed 9-2-04; 8:45 am]
BILLING CODE 3410-02-P