Nectarines and Peaches Grown in California; Revision of Reporting Requirements for Fresh Nectarines and Peaches; Request for Revision to Currently Approved Information Collections

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:

[email protected]. 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.G[email protected]. 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