04-12137. 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: [phone]; or e-mail: [e-mail] 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.

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: [phone]; fax: [phone]; 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: [phone]; fax: [phone].

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: [phone]; fax: [phone]; or e-mail: [e-mail].

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 §§ 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 § 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 § 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 §§ 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 §§ 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 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 §§ 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 §§ 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 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 § 916.160, paragraph (b) is revised to read as follows:

§ 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 § 917.178, paragraph (b) is revised to read as follows:

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

* * * * *

Dated: May 25, 2004.

A.J. Yates,

Administrator, Agricultural Marketing Service.