This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

6305

Vol. 65, No. 27

Wednesday, February 9, 2000

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 916 and 917

[Docket No. FV99–916–3 FR]

Nectarines and Peaches Grown in

California; Revision of Reporting

Requirements

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: This rule revises the rules and

regulations of the marketing orders

(orders) for fresh nectarines and peaches

grown in California pertaining to

reporting requirements. 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 will require handlers

to file such destination reports.

Additional and timely information will

thus be available to the committees and

industry, facilitating improved decision

making and program administration

with regard to marketing research and

development, and promotional

activities.

EFFECTIVE DATE: This final rule becomes

effective March 10, 2000.

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, room

2525–S, PO Box 96456, Washington, DC

20090–6456; telephone: (202) 720–2491,

Fax: (202) 720–5698.

Small businesses may request

information on complying with this

regulation 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.

SUPPLEMENTARY INFORMATION: This 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, 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 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 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 final rule revises the orders’

rules and regulations pertaining to

reporting requirements under the

orders. This rule establishes 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 rule was unanimously

recommended by the committees at

their meetings on December 2, 1998.

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.

Handlers have not been required to

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 will be a valuable

marketing tool. The members believed

that such information will 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

6306 Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Rules and Regulations

reports also were discussed. The

members of this subcommittee also

believed that such reports will provide

invaluable information to assist the

NAC and PCC in targeting their

promotional activities in the mostpromising 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 will provide

invaluable information and greatly

benefit the industries.

With destination information from

handlers, the committees will 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 will also be able to 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

will have the ability to direct their

marketing research and promotion

funds to open those markets for future

shipments. In addition, such

information will 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 any lack of success. The

industries have long recognized the

importance of this information in

making their promotion activities more

effective and in helping to 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 will be required from

all handlers by the fifteenth of the

month following the month in which

the shipments were made. Handlers will

be required to report the number of

packages of peaches and nectarines

shipped to each destination, and

indicate whether the fruit were whitefleshed or yellow-fleshed, and whether

the fruit were ‘‘CA Utility’’ quality.

Destination information for domestic

market shipments will include the city

and state, and zip code, if known.

Destination information for

international market shipments will

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

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 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 121.201) 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.

Based upon committees’ staff data, it

is 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. Less

than 20 handlers ship more than

555,000 boxes of nectarines and/or

peaches. Small handlers would,

therefore, represent approximately 94

percent of the handlers within the

industry. In addition, 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. More

than 1,400 producers produce less than

84,000 boxes of nectarines or 89,000

boxes of peaches. 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 final rule revises §§ 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 will 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.

Two comments were received as a

result of a proposed rule published in

the Federal Register on June 7, 1999 (64

FR 30252). The commenters raised

issues concerning both the initial

regulatory impact analysis and the

information collection requirements, as

proposed. These comments are

discussed more fully later in this

document.

Requiring handlers to file this report

on a monthly basis will impose an

additional reporting burden on both

small and large handlers. The report is

estimated to take three-quarters of an

hour to complete. It is further estimated

that handlers will file an average of four

destination reports per year, creating an

estimated total annual burden of three

hours per handler. The total industry

annual burden is, therefore, estimated at

approximately 900 hours per year for

nectarine and peach shipments each.

Although this action creates an

additional burden on handlers of fresh

nectarines and peaches, the benefits of

Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Rules and Regulations 6307

collecting additional and timely

information regarding destinations are

anticipated to outweigh the estimated

increased reporting burden. The

committees will have detailed

information about markets to which

fruit is sent; and, therefore, will be able

to make better-informed decisions about

marketing research and promotion fund

expenditures and activities undertaken.

Such reports and forms will be filed by

all handlers, regardless of size; and thus,

the increased burden will be equitably

distributed to all handlers. Finally, as

with all Federal marketing order

programs, reports and forms are

periodically reviewed to reduce

information requirements and

duplication by industry and publicsector 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 have been approved by the Office

of Management and Budget (OMB) and

have been assigned OMB No. 0581–0072

for documents required under the

nectarine marketing order, and OMB

No. 0581–0080 for documents required

under the peach marketing order. The

estimated burden has been revised

based upon a comment received. The

revised estimated total annual burden

for nectarine and peach handlers is

reduced from 1,200 hours to 900 hours.

As previously stated, this comment is

discussed more fully later in the

document. In addition, the Department

has not identified any relevant Federal

rules that duplicate, overlap, or conflict

with this final rule.

An alternative to this 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 committee members

felt that greater emphasis should be

placed on using the funds to their

greatest advantage.

All committee 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. Further,

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 will be

valuable 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

will not be kept confidential by

committee staff. The Act states, in part,

in § 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,

§§ 916.60(d) and 917.50(d) of the orders

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. Further,

under the Act, persons found guilty of

revealing 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

on all issues. 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

subcommittee meetings were also public

meetings at which large and small

entities were invited to express their

views and participate in all

deliberations. Finally, interested

persons were invited to submit

information on the regulatory and

informational impacts of this action on

small businesses.

A proposed rule concerning this

action was published in the Federal

Register on June 7, 1999 (64 FR 30252).

The proposal also announced AMS’s

intent to request a revision to the

currently approved information

collection requirements issued under

the orders. Copies of the proposal were

also mailed to handlers on June 9, 1999,

by the California Tree Fruit Agreement

staff, who conduct day-to-day business

operations for the committees. Finally,

the proposed rule was made available

through the Internet by the Office of the

Federal Register. A 60-day comment

period, ending August 6, 1999, was

provided to allow interested persons to

respond to the proposal.

Two comments were received during

the comment period in response to the

proposal. One commenter, a handler,

made two points concerning the

proposed rule. First, the commenter was

of the view that the proposed

information to be collected was not

necessary to ensure the high quality of

nectarines and peaches and adequate

returns to producers. This commenter

went on to state that the marketing

orders have never been concerned with

the returns to the producer, only moving

the crop at whatever price necessary to

move it, in addition to collecting the

mandatory assessment. The Department

disagrees with the commenter’s views.

The marketing orders were issued

consistent with the provisions of the

Act. The regulations issued in this

rulemaking are authorized under the

orders and their purpose is to provide

additional and timely information to the

committees and the industries, thereby

facilitating improved decision making

and program administration with regard

to marketing research and development,

and promotional activities. Accordingly,

the Department believes that the

information required by the regulations

is needed to accomplish their stated

objectives.

With regard to the commenter’s

second point, the commenter stated that

the number of producers that are small

entities should be based on an average

of boxes shipped over 3–5 years. The

regulatory flexibility analysis discusses

and sets forth the identification and

estimates of small entities under criteria

established by the Small Business

Administration. The information is

based on the most current and accurate

information available, and, as such, the

Department believes is best suited to

accomplish the objectives of the

Regulatory Flexibility Act and this

program. The commenter went on to

state that there should be a minimum of

perhaps 50,000 shipped boxes before a

destination report should be required of

producers who are also handlers. While

minimum exemptions are and have

been used as an alternative in a variety

of regulatory schemes, they may not be

appropriate in all programs. For

example, with regard to this program, a

second commenter noted that given the

structure of the industries, it was

important that all handlers report their

destinations and that the report be

compiled collectively to measure trends

and to analyze marketing effectiveness.

Accordingly, given the purpose and

nature of these regulations, the

6308 Federal Register / Vol. 65, No. 27 / Wednesday, February 9, 2000 / Rules and Regulations

Department does not believe that a

minimum exemption is appropriate.

Further, based upon information in

another comment received concerning

the proposed rule, the committees have

revised the detail in the forms to be

used to further minimize the burden.

The second commenter, the manager

of the California Tree Fruit Agreement,

the body which manages the PCC and

NAC, supported the proposed rule,

stating that destination reports will help

in providing information for the

committees to make long-term decisions

designed to improve the marketing of

nectarines and peaches grown in

California. This commenter noted, as

well, the importance of requiring all

handlers to file destination reports. This

commenter also discussed requirements

for similar information in other

programs, the confidentiality of the

information submitted, and the need to

finalize this action as soon as possible.

The comment went on to state that the

NAC and the PCC have revised the

destination reports since the proposed

rule was issued to make it more simple

for handlers to complete. For example,

requested information concerning grade

and size has been removed, and zip

code information would be required

only if known by the handler. Reporting

‘‘CA Utility’’ quality fruit also would be

required. It was suggested that the

computer technology that is being used

in the industries may also assist

handlers in completing the destination

report in less time that it would take to

complete the report by hand.

The Department has revised its

estimate of the time it would take to

complete the destination report from

one hour to three-quarters of an hour.

The revised estimated total annual

burden to nectarine and peach handlers

is reduced from 1,200 hours to 900

hours.

Accordingly, appropriate changes

have been made to the rule as proposed,

based on this second comment. Finally,

this rule will be effective for the

beginning of the 2000 shipping season.

A small business guide on complying

with fruit, vegetable, and specialty crop

marketing agreements and orders may

be viewed at the following website:

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 recommendation

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.

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

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 (c) is added

to read as follows:

§ 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

shipped to each destination, and

whether the nectarines were yellowfleshed or white-fleshed, and whether

the nectarines were ‘‘CA Utility’’

quality. The destination is defined as

nectarine shipments to any domestic or

international market. Destination

information for domestic market

shipments shall include city and state,

and zip code, if known. 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 § 917.178, paragraph (c) is added

to read as follows:

§ 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 shipped to each destination,

and whether the peaches shipped were

yellow-fleshed or white-fleshed, and

whether the peaches were ‘‘CA Utility’’

quality. The destination is defined as

peach shipments to any domestic or

international market. Destination

information for domestic market

shipments shall include the city and

state, and zip code, if known.

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: February 3, 2000.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable

Programs.

[FR Doc. 00–2978 Filed 2–8–00; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 985

[Docket No. FV–00–985–1 FR]

Marketing Order Regulating the

Handling of Spearmint Oil Produced in

the Far West; Salable Quantities and

Allotment Percentages for the 2000–

2001 Marketing Year

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: This rule establishes the

quantity of spearmint oil produced in

the Far West, by class, that handlers

may purchase from, or handle for,

producers during the 2000–2001

marketing year, which begins on June 1,

2000. This rule establishes salable

quantities and allotment percentages for

Class 1 (Scotch) spearmint oil of

1,211,207 pounds and 65 percent,

respectively, and for Class 3 (Native)

spearmint oil of 1,033,648 pounds and

50 percent, respectively. The Spearmint

Oil Administrative Committee

(Committee), the agency responsible for

local administration of the marketing

order for spearmint oil produced in the

Far West, recommended this rule for the

purpose of avoiding extreme

fluctuations in supplies and prices, and

thus help to maintain stability in the

spearmint oil market.

EFFECTIVE DATE: June 1, 2000.

FOR FURTHER INFORMATION CONTACT:

Robert J. Curry, Northwest Marketing

Field Office, Marketing Order

Administration Branch, Fruit and

Vegetable Programs, AMS, USDA, 1220

SW Third Avenue, room 369, Portland,

Oregon 97204; telephone: (503) 326–

2724; Fax: (503) 326–7440; or George

Kelhart, Technical Advisor, Marketing