[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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Rules and Regulations
Federal Register
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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