[Federal Register Volume 64, Number 108 (Monday, June 7, 1999)]
[Proposed Rules]
[Pages 30252-30256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14313]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 916 and 917
[Docket No. FV99-916-3 PR]
Nectarines and Peaches Grown in California; Revision of Reporting
Requirements for Fresh Nectarines and Peaches; Request for Revision to
Currently Approved Information Collections
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This rule invites comments on proposed revisions to the rules
and regulations of the marketing orders (orders) for fresh nectarines
and peaches grown in California pertaining to reporting requirements.
This rule also announces the Agricultural Marketing Service's (AMS)
intention to request a revision to the currently approved information
collection requirements 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 the
destinations of their shipments of fresh nectarines and peaches. This
rule would require handlers to file such destination reports.
Additional and timely information would thus be available to the
committees and industry, facilitating improved decisionmaking and
program administration with regard to marketing research and
development, and promotional activities.
DATES: Comments must be received by August 6, 1999.
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) 720-5698; or E-mail:
moab.docketclerk@usda.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.
FOR FURTHER INFORMATION CONTACT: Terry Vawter, Marketing Specialist, or
Kurt J. Kimmel, Regional Manager, 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, room 2525-S, P.O. Box 96456, Washington,
DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 720-5698. 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, P.O. Box 96456, room 2525-S, Washington, DC 20090-6456;
telephone: (202) 720-2491; Fax: (202) 205-5698; or E-mail:
Jay.Guerber@usda.gov. You may view the marketing agreement and order
small business compliance guide at the following web site: http://
www.ams.usda.gov/fv/moab.html.
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.''
The Department of Agriculture (Department) 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 the Secretary 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 the Secretary 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 the Secretary'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 establish procedures in the orders' rules and
regulations for handlers to file reports on the destinations of their
shipments of fresh nectarines and peaches. Under the orders the term
``handler'' is synonymous with the term ``shipper.'' This proposal was
unanimously recommended by the committees at their meetings on December
2, 1998.
In Secs. 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. Handlers have not
been required to
[[Page 30253]]
report the destinations of their shipments of fresh nectarines and
peaches.
The Nectarine Administrative Committee's (NAC) and the Peach
Commodity Committee's (PCC) discussions on destination reports were
prompted by recommendations of two subcommittees which met prior to the
December 2, 1998, committee meetings. At a Domestic Promotion
Subcommittee meeting, the merits of destination reports were discussed,
among other issues. The subcommittee unanimously recommended adding a
requirement to the orders' rules and regulations for destination
reports. The subcommittee believed that having information about
markets to which nectarines and peaches are shipped would be a valuable
marketing tool. The members believed that such information would allow
the subcommittee to target markets more effectively for promotion, and
permit a more effective analysis of the effectiveness of industry
funded media and promotional campaigns. At an International Programs
Subcommittee meeting, the merits of destination reports also were
discussed. The members of this subcommittee also believed that such
reports would provide invaluable information to assist the NAC and PCC
in targeting their promotional activities in the most-promising markets
for these two fruits.
The NAC and PCC discussed the subcommittees' recommendations and
the merits of destination reporting. Both the NAC and PCC agreed that
the establishment of such a report requiring each handler to list the
destination of his/her shipments of nectarines and peaches in both
domestic and international markets would provide invaluable information
and greatly benefit the industries.
With destination information from handlers, the committees would be
able to make better-informed decisions about marketing research and
development projects conducted, and gauge the success of such
activities knowing the volume of fruit shipped to various markets. With
this information, the committees also could direct their marketing
research and development activities and funds to the most-promising
markets, and tailor the activities to meet the needs of the particular
markets, focus on the more successful promotional activities, and
target markets based on consumption.
Current market analysis tools, such as consumer and retail surveys,
provide useful information based on a small group of respondents, but
specific shipment and destination information will enable the
committees to direct their activities to the most successful markets,
and perform a more thorough analysis of the benefits of their
promotional activities.
Without exact destination information, the committees do not know
precisely the quantities of nectarines and peaches shipped to various
markets, and, therefore, may be spending funds on promotional
activities not appropriate for the particular market. Experience has
shown that certain types of promotion are appropriate for developing
markets and other activities are more appropriate when trying to expand
markets. With the ability to determine the markets to which nectarines
and peaches are not shipped, the committees would have the ability to
direct their marketing research and promotion funds to open those
markets for future shipments. In addition, such information would
permit the committees to constructively evaluate the effectiveness of
their marketing promotion and research programs by helping them get a
better handle on promotions that have been working and those that have
not, and determine the reason(s) for the lack of success. The
industries have long recognized the importance of this information in
making their promotion activities more effective and in helping sell
more nectarines and peaches. They have tried voluntary reporting, but
this has not worked.
The shipping season for nectarines begins April 1 and ends on
October 31 of each year, and the shipping season for peaches begins on
April 1 and ends on November 23 of each year. The destination report
would be required from all handlers by the fifteenth of the month
following the month in which the shipments were made. Handlers would be
required to report the number of packages of peaches and nectarines,
both yellow and white-fleshed, by variety, grade, and size shipped to
each destination. Destination information for domestic market shipments
would include the city, state, and zip code. Destination information
for international market shipments would include the country to which
shipped.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (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 300 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. Small agricultural service firms, which includes handlers,
have been defined by the Small Business Administration (13 CFR 121.601)
as those whose annual receipts are less than $5,000,000. Small
agricultural producers are defined as those having annual receipts of
less than $500,000.
The committees' staff have estimated that there are less than 20
handlers in the industry who could be defined as other than small
entities. If the average handler price received were $9.00 per box or
box equivalent of nectarines or peaches, a handler would have to ship
at least 555,000 boxes to have annual receipts of $5,000,000. Small
handlers would, therefore, represent approximately 94 percent of the
handlers within the industry. In addition, the staff estimates that
there are approximately 400 producers who could be defined as other
than small entities. If the average producer price received were $6.00
per box or box equivalent for nectarines and $5.65 per box or box
equivalent for peaches, producers would have to produce approximately
84,000 boxes or box equivalents of nectarines and approximately 89,000
boxes or box equivalents of peaches to have annual receipts of
$500,000. Therefore, small producer entities would represent
approximately 78 percent of the producers within the industry. For
these reasons, a majority of the handlers and producers may be
classified as small entities.
This proposal would revise Secs. 916.160 and 917.178 of the orders'
administrative rules and regulations to require handlers to file
destination reports on a monthly basis during the shipping season by
adding a new paragraph (c) to each section. The information obtained
from such reports would improve decision making and program
administration with regard to marketing research and development
activities undertaken to expand shipments of fresh nectarines and
peaches domestically and in foreign markets.
Requiring handlers to file this report on a monthly basis would
impose an
[[Page 30254]]
additional reporting burden on both small and large handlers. The
report is estimated to take one hour to complete. It is further
estimated that handlers would file an average of four destination
reports per year, creating an estimated total annual burden of 4 hours
per handler. The estimated total industry annual burden is, therefore,
estimated at approximately 1,200 hours per year for nectarine and peach
shipments each.
Although this action would create an additional burden on handlers
of fresh nectarines and peaches, the benefits of collecting additional
and timely information regarding destinations are anticipated to
outweigh the estimated increased reporting burden. The committees would
have detailed information about markets to which fruit is sent; and,
therefore, would be able to make better-informed decisions about
marketing research and promotion fund expenditures and activities
undertaken. Such reports and forms would be filed by all handlers,
regardless of size; and thus, the increased burden would be equitably
distributed to all handlers. Finally, as with all Federal marketing
orders programs, reports and forms are periodically reviewed to reduce
information requirements and duplication by industry and public-sector
agencies.
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 the Office of Management and Budget
(OMB) for approval. This rule would not become effective until this
additional information collection is approved by the OMB. In addition,
the Department has not identified any relevant Federal rules that
duplicate, overlap, or conflict with this proposed rule.
An alternative to this proposed action would be to continue
operations without required destination reporting. Most committee
members agreed that the value of having destination information
outweighed the burden on handlers of filing such reports in terms of
targeting marketing and promotion funds and activities. In recent
years, the committees have decided to keep their marketing and
promotion expenses relatively constant. Because of this, the members
felt that greater emphasis should be placed on using the funds to their
greatest advantage.
All members agreed that continuing to spend promotion funds,
without the information to be provided by destination reports, was not
in the best interest of the industries. It was agreed, that as the
percentage of promotion funds either decreases or remains constant in
relationship to total committee funds, and as shipments of nectarines
and peaches increase over time, detailed information on the
destinations of nectarine and peach shipments would be invaluable in
targeting promising markets. The committee members also noted that
voluntary destination reports have been requested in the past, but very
few handlers provided the information. The committees, therefore, voted
unanimously at all the meetings to require destination reports from
nectarine and peach handlers.
During the deliberations, some committee members indicated their
concern that destination information would not be kept confidential by
committee staff. The Act states, in part, in section 608d(2), that
``all information furnished to or acquired by the Secretary of
Agriculture pursuant to this section, as well as information for
marketing order programs that is categorized as trade secrets and
commercial or financial information * * * shall be kept confidential by
all officers and employees of the Department of Agriculture.'' In
addition, Secs. 916.60(d) and 917.50(d) also require committee
employees to maintain confidentiality of all reports and records
submitted by handlers. Therefore, each handler is generally protected
against disclosure of any confidential information the handler
furnishes to the committees. Persons found guilty of the unauthorized
disclosure of confidential information could be subject to a fine,
imprisonment, or both, or could be removed from office.
The committee meetings 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 December 2, 1998, meetings were public meetings, and all
entities, large and small, were able to express their views on this
issue. The subcommittees meetings were also public meetings at which
large and small entities were invited to express their views and
participate in deliberations. Finally, interested persons are invited
to submit information on the regulatory and informational impacts of
this action on small businesses.
Paperwork Reduction Act (Nectarines)
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), this notice announces the Agricultural Marketing Service's
(AMS) intention to request a revision to a currently approved
information collection for Nectarines Grown in California, Marketing
Order No. 916.
Title: Nectarines Grown in California, Marketing Order 916.
OMB Number: 0581-0072.
Expiration Date of Approval: May 31, 2000.
Type of Request: Revision of a currently approved information
collection.
Abstract: Marketing order programs provide an opportunity for
producers of fresh fruits, vegetables, and specialty crops, in a
specified production area, to work together to solve marketing problems
that cannot be solved individually. Order regulations help ensure
adequate supplies of high quality product and adequate returns to
producers. Under the Agricultural Marketing Agreement Act of 1937
(AMAA), as amended (7 U.S.C. 601-674), industries enter into marketing
order programs. The Secretary of Agriculture is authorized to oversee
the order operations and issue regulations recommended by a committee
of representatives from each commodity industry.
The California nectarine marketing order program, which has been
operating since 1958, authorizes the issuance of grade, size, maturity
regulations, inspection requirements, and marketing and production
research, including paid advertising. Regulatory provisions apply to
nectarines shipped within and out of the area of production to any
market, except those specifically exempted by the marketing order.
The order and its rules and regulations authorize the Nectarine
Administrative Committee (committee), the agency responsible for local
administration of the order, to require handlers and producers to
submit certain information. 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 AMAA, to provide the
respondents the type of service they request, and to administer the
California nectarine marketing order program.
The Committee has developed forms as a convenience to persons who
are required to file information with the Committee that is needed to
carry out the purposes of the Act and the order. These forms require
the minimum information necessary to effectively carry out the
requirements of the order, and their use is necessary to fulfill the
intent of the AMAA as expressed in the order, and the rules and
regulations issued under the order.
[[Page 30255]]
The information collected is used only by authorized
representatives of the USDA, including AMS, Fruit and Vegetable Program
regional and headquarters staff, and authorized employees of the
committee. Authorized committee employees and the industry are the
primary users of the information and AMS is the secondary user.
This proposed collection consists of a new requirement for handlers
to provide information about the destination(s) of nectarine shipments.
With shipment destination information from handlers, the committee
would be able to make better-informed decisions about the marketing
research and development projects conducted. The committee could direct
its marketing research and development funds to the most-promising
markets. The committee might determine that it is spending funds for
promotional activities in markets with limited expansion opportunities.
The committee might also find that it is spending too much money in a
market where promotion is no longer needed, or only needed to a limited
extent. Having information about markets to which nectarines are
shipped would be a valuable marketing tool. Not only would such
information permit the committee to target markets more effectively for
promotion, it would also permit effective measurement of media use and
promotional campaigns.
Section 501(c) of the Federal Agriculture Improvement and Reform
Act of 1996 requires each advertising program under the oversight of
the Department to fund an independent analysis of the effectiveness of
the program at least every five years, unless otherwise provided by
law. Information on shipment destinations would be useful in performing
these analyses for California nectarines.
The proposed revision to the currently approved information
requirements issued under the order is as follows:
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 1.0 hour per response.
Respondents: Handlers of fresh nectarines produced in California.
Estimated Number of Respondents: 300.
Estimated Number of Responses per Respondent: 4.
Estimated Total Annual Burden on Respondents: 1,200 hours.
Comments are invited on: (1) Whether the proposed collection of
information is necessary for the functioning of the California
nectarine marketing order program and USDA's oversight of that program;
(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. 0581-0072 and the California
Nectarine Marketing Order No. 916, and be sent to the USDA in care of
the docket clerk at the address referenced above. All comments received
will be available for public inspection during regular business hours
at the same address.
All responses to this notice will be summarized and included in the
request for OMB approval. All comments will become a matter of public
record.
Paperwork Reduction Act (Peaches)
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), this notice announces the Agricultural Marketing Service's
(AMS) intention to request a revision to a currently approved
information collection for Peaches Grown in California, Marketing Order
No. 917.
Title: Peaches Grown in California, Marketing Order 917.
OMB Number: 0581-0080.
Expiration Date of Approval: July 31, 2000.
Type of Request: Revision of a currently approved information
collection.
Abstract: Marketing order programs provide an opportunity for
producers of fresh fruits, vegetables and specialty crops, in a
specified production area, to work together to solve marketing problems
that cannot be solved individually. Order regulations help ensure
adequate supplies of high quality product and adequate returns to
producers. Under the Agricultural Marketing Agreement Act of 1937
(AMAA), as amended (7 U.S.C. 601-674), industries enter into marketing
order programs. The Secretary of Agriculture is authorized to oversee
the order operations and issue regulations recommended by a committee
of representatives from each commodity industry.
The California peach marketing order program, which has been
operating since 1939, authorizes the issuance of grade, size, maturity
regulations, inspection requirements, and marketing and production
research, including paid advertising. Regulatory provisions apply to
peaches shipped within and out of the area of production to any market,
except those specifically exempted by the marketing order.
The order and its rules and regulations authorize the Peach
Commodity Committee (committee), the agency responsible for local
administration of the order, to require handlers and producers to
submit certain information. 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 AMAA, to provide the
respondents the type of service they request, and to administer the
California peach marketing order program.
The Committee has developed forms as a convenience to persons who
are required to file information with the Committee that is needed to
carry out the purposes of the Act and the order. These forms require
the minimum information necessary to effectively carry out the
requirements of the order, and their use is necessary to fulfill the
intent of the AMAA as expressed in the order, and the rules and
regulations issued under the order.
The information collected is used only by authorized
representatives of the USDA, including AMS, Fruit and Vegetable Program
regional and headquarters staff, and authorized employees of the
committee. Authorized committee employees and the industry are the
primary users of the information and AMS is the secondary user.
This proposed collection consists of a new requirement for handlers
to provide information about the destination(s) of peach shipments.
With shipment destination information from handlers, the committee
would have the ability to make better-informed decisions about the
marketing research and development projects conducted. The committee
would be able to direct its marketing research and development funds to
the most-promising markets. The committee might also determine that it
is spending funds in markets with limited expansion potential, or that
it is spending too much money in a market where promotion is no longer
needed, or only needed to a limited extent. Having information about
markets to which peaches are shipped would be a valuable marketing
tool. Not only would such information permit the subcommittee to target
markets more effectively for promotion, it would also permit effective
measurement of media use and promotional campaigns.
Section 501(c) of the Federal Agriculture Improvement and Reform
Act of 1996 requires that each advertising program under the oversight
of the Department fund an independent analysis of the effectiveness of
the
[[Page 30256]]
program at least every five years, unless otherwise provided by law.
Information on shipment destinations would be useful in performing
these analyses for California peaches.
The proposed revision to the currently approved information
requirements issued under the order is as follows:
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 1.0 hour per response.
Respondents: Handlers of fresh peaches produced in California.
Estimated Number of Respondents: 300.
Estimated Number of Responses per Respondent: 4
Estimated Total Annual Burden on Respondents: 1,200 hours.
Comments are invited on: (1) Whether the proposed collection of
information is necessary for the functioning of the California peach
marketing order program and USDA's oversight of that program; (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. 0581-0080 and the California
Peach Marketing Order No. 916, and be sent to the USDA in care of the
docket clerk at the address referenced above. All comments received
will be available for public inspection during regular business hours
at the same address.
All responses to this notice will be summarized and included in the
request for OMB approval. All comments will become a matter of public
record.
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 (c) is added to read as follows:
Sec. 916.160 Reporting procedure.
* * * * *
(c) Destination report. Each shipper who ships nectarines shall
furnish to the manager of the Nectarine Administrative Committee a
report of the number of packages of nectarines, both yellow-fleshed and
white-fleshed, by variety, grade, and size shipped to each destination.
The destination is defined as nectarine shipments to any domestic or
international market. Destination information for domestic market
shipments shall include city, state, and zip code. Destination
information for international market shipments shall include the
country to which shipped. This report shall be submitted by the
fifteenth of each month following the month in which nectarine
shipments were made.
PART 917--PEACHES GROWN IN CALIFORNIA
3. In Sec. 917.178, paragraph (c) is added to read as follows:
Sec. 917.178 Peaches.
* * * * *
(c) Destination report. Each shipper who ships peaches shall
furnish to the manager of the Control Committee a report of the number
of packages of peaches, both yellow-fleshed and white-fleshed, by
variety, grade, and size shipped to each destination. The destination
is defined as peach shipments to any domestic or international market.
Destination information for domestic market shipments shall include the
city, state, and zip code. Destination information for international
market shipments shall include the country to which shipped. This
report shall be submitted by the fifteenth of each month following the
month in which peach shipments were made.
Dated: June 1, 1999.
Bernadine M. Baker,
Acting Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-14313 Filed 6-4-99; 8:45 am]
BILLING CODE 3410-02-U
