[Federal Register: May 28, 2004 (Volume 69, Number 104)]
[Proposed Rules]
[Page 30597-30601]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28my04-17]
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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.
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[[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.
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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: moab. docket
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, 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: Jay.Guerber@usda.gov.
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