[Federal Register Volume 62, Number 220 (Friday, November 14, 1997)]
[Rules and Regulations]
[Pages 60999-61002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29927]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 927
[Docket Nos. AO-99-A7; FV96-927-1]
Winter Pears Grown in Oregon, Washington, and California; Order
Amending the Marketing Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule amends the marketing agreement and order
(order) for winter pears grown in Oregon, Washington, and California.
The amendments remove the State of California from the order and make
related changes to provisions concerning the production area,
districts, and establishment and membership of the Committee. Another
amendment allows the use of telecopiers or other electronic means in
Committee voting procedures. The amendments will improve the
administration, operation and functioning of the order.
EFFECTIVE DATE: November 17, 1997.
FOR FURTHER INFORMATION CONTACT: Kathleen M. Finn, Marketing
Specialist, Marketing Order Administration Branch, Fruit and Vegetable
Division, AMS, USDA, room 2523-S, Washington, D.C. 20250-0200;
telephone: (202) 720-2491, or FAX (202) 720-5698; or Teresa Hutchinson,
Marketing Specialist, Northwest Marketing Field Office, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, 1220
S.W. Third Avenue, room 369, Portland, OR 97204-2807; telephone (509)
326-2724 or FAX (509) 326-7440. Small businesses may request
information on compliance with this regulation by contacting: Jay
Guerber, Marketing Order Administration Branch, Fruit and Vegetable
Division, AMS, USDA, P.O. Box 96456, room 2523-S, Washington, DC 20090-
6456; telephone (202) 720-2491; Fax (202) 720-5698.
SUPPLEMENTARY INFORMATION: Prior documents in this proceeding: Notice
of Hearing issued on June 24, 1996, and published in the June 26, 1996,
issue of the Federal Register (61 FR 33047). Recommended Decision and
Opportunity to File Written Exceptions issued on June 9, 1997, and
published in the Federal Register on June 16, 1997 (62 FR 32548).
Secretary's Decision and Referendum Order issued July 22, 1997, and
published in the Federal Register on July 28, 1997 (62 FR 40310).
Preliminary Statement
This administrative action is governed by the provisions of
sections 556 and 557 of Title 5 of the United States Code and,
therefore, is excluded from the requirements of 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 date of the entry of the ruling.
[[Page 61000]]
The final rule was formulated on the record of a public hearing
held in Sacramento, California, on July 9, 1996, and in Portland,
Oregon, on July 10, 1996, to consider the proposed amendment of
Marketing Order and Agreement No. 927, regulating the handling of
winter pears grown in Oregon, Washington, and California, hereinafter
referred to as the ``order.'' Notice of the Hearing was published in
the June 26, 1996, issue of the Federal Register (61 FR 33047).
The hearing was held pursuant to the provisions of the Agricultural
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601 et seq.),
hereinafter referred to as the ``Act,'' and the applicable rules of
practice and procedure governing proceedings to formulate marketing
agreements and marketing orders (7 CFR Part 900). The Notice of Hearing
contained proposals submitted by the Winter Pear Control Committee
(Committee), which locally administers the order.
The Committee's proposals pertained to: (1) revising the definition
of ``production area'' to mean only the States of Oregon and
Washington; (2) revising ``district'' by removing California, leaving
only those districts designated in the States of Oregon and Washington;
(3) revising ``establishment and membership'' of the Committee to be
consistent with the reduction in size of the regulated production area;
(4) revising ``procedure of Control Committee'', ``(a) quorum and
voting'', so that the number of members needed for a quorum is
consistent with the revised Committee representation, and amending
``(b) mail voting'', to allow for the use of telecopiers and other
electronic means; and (5) revising the definition of ``pears'' to
exclude pears produced in California.
Upon the basis of evidence introduced at the hearing and the record
thereof, the Administrator of the Agricultural Marketing Service (AMS)
on June 9, 1997, filed with the Hearing Clerk, U.S. Department of
Agriculture, a Recommended Decision and Opportunity to File Written
Exceptions thereto by June 26, 1997. No exceptions were received.
A Secretary's Decision and Referendum Order was issued on July 22,
1997, directing that a referendum be conducted during the period August
8 through August 29, 1997, among producers of winter pears in Oregon,
Washington, and California to determine whether they favored the
proposed amendments to the order. All of the proposed amendments were
favored by more than the requisite two-thirds of the producers voting
in the referendum by number and volume.
The amended marketing agreement was subsequently mailed to all
winter pear handlers throughout the production area for their approval.
The marketing agreement was signed by handlers of more than 50 percent
of the volume of winter pears handled by all handlers during the
representative period of July 1, 1996, through June 30, 1997.
Also, this final rule includes an additional modification to the
regulatory text concerning the definition of ``pears'' to clarify that
the definition applies to winter pears that are grown in the production
area.
Small Business Considerations
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 1800 winter pear producers in Oregon,
Washington, and California and approximately 100 handlers of winter
pears who are subject to regulation under the marketing order. Small
agricultural producers have been defined by the Small Business
Administration (SBA) (13 CFR 121.601) as those having annual receipts
of less than $500,000. Small agricultural service firms, which include
handlers regulated under the order, are defined as those with annual
receipts of less than $5,000,000.
Interested persons were invited to present evidence at the hearing
on the probable regulatory and informational impact of the proposed
amendments on small businesses. The record indicates that handlers will
not be unduly burdened by any additional regulatory requirements,
including those pertaining to reporting and recordkeeping, that might
result from this proceeding.
During the 1995-96 crop year, approximately 100 handlers were
regulated under Marketing Order No. 927. In addition, there were about
1,800 producers of winter pears in the production area. Production for
the 1995-96 season showed that 15,316,776 standard boxes were produced
in Oregon and Washington, while California produced 434,380 standard
boxes.
The removal of the State of California will allow the Northwest
winter pear industry to operate more efficiently. There are
approximately 60 growers and 19 handlers of winter pears in California
who have asked to be removed from the marketing order since the
harvesting and marketing seasons for California pears are different
than those for pears grown in Oregon and Washington. Production for the
1995-96 season showed that 15,316,776 standard boxes were produced in
Oregon and Washington, while California produced 434,380 standard
boxes. Revenue generated from assessments collected in 1995-96 would be
$175,923 from California compared to $6,203,295 from Oregon and
Washington.
Record evidence indicated that during the 1994-95 crop year winter
pears were assessed at $.43 per standard box. According to preliminary
figures in the record, returns to handlers per standard box for that
year were $8.31. The assessment rate is about 5 percent of the
preliminary returns.
California growers believed they were funding promotion programs
that are in direct competition with their own product. Record evidence
showed that there will not be any additional burden imposed on handlers
with the implementation of these amendments. In fact, handlers in the
State of California will be relieved of any regulatory burden. Those in
Oregon and Washington will continue to benefit from operation of the
program. There are currently 1,700 winter pear growers and 93 winter
pear handlers in Oregon and Washington producing over 15 million
standard boxes of pears annually. In California, there are
approximately 60 winter pear growers and 19 handlers of winter pears
producing over 400,000 standard boxes of pears annually.
Record evidence also showed that the collection of information
under the marketing order will not be effected by removing California
from the marketing order. A witness testified that there are
alternatives that will replace the current information that is being
collected from the State of California, if it is needed. Accordingly,
this action will not impose any additional reporting or recordkeeping
requirements on either small or large pear handlers. As with all
Federal marketing order programs, reports and forms are periodically
reviewed to reduce information
[[Page 61001]]
requirements and duplication by industry and public sector agencies.
The Department has not identified any relevant Federal rules that
duplicate, overlap or conflict with this final rule.
The amendment allowing Committee members to vote by telecopiers or
other electronic means provides members with the option to use these
methods if available when voting on an action is to be done quickly.
This allows Committee members to vote without assembling at a meeting
place and, therefore, reduce administrative costs and act quickly on a
recommendation that needs the Committee's attention. ``Other electronic
means'' includes the use of modems, video and teleconferencing. The
term is flexible to allow for the use of new technologies by the
Committee for voting.
The additional amendments are changes that need to be made to the
marketing order to reflect the removal of the State of California.
All of these amendments are designed to enhance the administration
and functioning of the marketing agreement and order to the benefit of
the industry.
Order Further Amending the Order Regulating the Handling of Winter
Pears Grown in Oregon, Washington, and California
Findings and Determinations
The findings and determinations hereinafter set forth are
supplementary and in addition to the findings and determinations
previously made in connection with the issuance of the order; and all
of said previous findings and determinations are hereby ratified and
affirmed, except insofar as such findings and determinations may be in
conflict with the findings and determinations set forth herein.
(a) Findings and Determinations Upon the Basis of the Hearing
Record. Pursuant to the provisions of the Agricultural Marketing
Agreement Act of 1937, as amended (7 U.S.C. 601 et seq.), and
applicable rules of practice and procedure effective thereunder (7 CFR
part 900), public hearings were held upon the amendments to Marketing
Order No. 927 (7 CFR part 927), regulating the handling of winter pears
grown in Oregon, Washington, and California.
Upon the basis of the evidence introduced at such hearings and the
record thereof, it is found that:
(1) The order, as amended, and as hereby further amended, and all
of the terms and conditions thereof, will tend to effectuate the
declared policy of the Act;
(2) The order, as amended, and as hereby further amended, regulates
the handling of winter pears grown in the production area in the same
manner as, and is applicable only to persons in the respective classes
of commercial and industrial activity specified in the marketing order
upon which hearings were held;
(3) The order, as amended, and as hereby further amended, is
limited in application to the smallest regional production area which
is practicable, consistent with carrying out the declared policy of the
Act, and the issuance of several orders applicable to subdivisions of
the production area would not effectively carry out the declared policy
of the Act; and
(4) The order, as amended, as hereby proposed to be further
amended, prescribes, insofar as practicable, such different terms
applicable to different parts of the production area as are necessary
to give due recognition to the differences in the production and
marketing of winter pears grown in the production area; and
(5) All handling of winter pears grown in the production area is in
the current of interstate or foreign commerce or directly burdens,
obstructs, or affects such commerce.
(b) Additional findings. It is necessary and in the public interest
to make these order amendments effective one day after publication.
This final order changes the production area by removing the State
of California from order provisions. Upon the effective date of this
order, effected parties will need to be informed of these provisions.
In addition, the committee needs to make budgetary and other
administrative decisions implementing the new provisions. The 1997-98
fiscal period began on July 1, 1997, and these provisions need to be in
place as soon as possible as handlers are already shipping winter
pears. A later effective date would unnecessarily delay the
implementation of the order amendments and the improvement in operation
of the marketing order program.
In view of the foregoing, it is hereby found and determined that
good cause exists for making these order amendments effective one day
after publication, and that it would be contrary to the public interest
to delay the effective date of these order amendments for 30 days after
publication in the Federal Register (Sec. 553(d), Administrative
Procedure Act; 5 U.S.C. 551-559).
(c) Determinations. It is hereby determined that:
(1) Handlers (excluding cooperative associations of producers who
are not engaged in processing, distributing, or shipping winter pears
covered by the said order, as amended, and as hereby further amended)
who, during the period July 1, 1996, through June 30, 1997, handled 50
percent or more of the volume of such winter pears covered by said
order, as amended, and as hereby further amended, have signed an
amended marketing agreement;
(2) The issuance of this amendatory order, further amending the
aforesaid order, is favored or approved by at least two-thirds of the
producers who participated in a referendum on the question of approval
and who, during the period July 1, 1996, through June 30, 1997 (which
has been deemed to be a representative period), have been engaged
within the production area in the production of such winter pears for
fresh market.
(3) The signed marketing agreement and the issuance of this
amendatory order are the only practical means pursuant to the declared
policy of the Act of advancing the interests of producers of winter
pears in the production area.
Order Relative to Handling
It is therefore ordered, That on and after the effective date
hereof, all handling of winter pears grown in Oregon and Washington,
shall be in conformity to, and in compliance with, the terms and
conditions of the said order as hereby further amended as follows:
The provisions of the proposed marketing order amendments further
amending the order contained in the Recommended Decision issued by the
Administrator on June 9, 1997, and published in the Federal Register on
June 16, 1997 (62 FR 32548), and in the Secretary's Decision issued on
July 22, 1997, and published in the Federal Register on July 28, 1997
(62 FR 40310), and as modified in this final rule, shall be and are the
terms and provisions of this order further amending the order, and are
set forth in full herein.
List of Subjects in 7 CFR Part 927
Marketing agreements, Pears, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR Part 927 is
amended as follows:
[[Page 61002]]
PART 927--WINTER PEARS GROWN IN OREGON, WASHINGTON, AND CALIFORNIA
1. The authority citation for 7 CFR part 927 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. The part heading is revised to read as follows:
PART 927--WINTER PEARS GROWN IN OREGON AND WASHINGTON
3. Section 927.4 is revised to read as follows:
Sec. 927.4 Pears.
Pears means and includes any and all of the Beurre D'Anjou, Beurre
Bosc, Winter Nelis, Doyenne du Comice, Forelle, and Seckel varieties of
pears, and any other winter pear varieties or subvarieties that are
grown in the production area and are recognized by the Control
Committee and approved by the Secretary.
4. Section 927.10 is revised to read as follows:
Sec. 927.10 Production area.
Production area means and includes the States of Oregon and
Washington.
Sec. 927.11 [Amended]
5. In Sec. 927.11, paragraph (e) is removed.
Sec. 927.20 [Amended]
6. Section 927.20 is amended by removing the number ``14'' in the
first sentence and adding in its place the number ``12'', and removing
the word ``seven'' each time it appears in the third sentence and
adding in its place the word ``six''.
Sec. 927.33 [Amended]
7. In Sec. 927.33, paragraph (a) is amended by removing the word
``ten'' in the first sentence and adding in its place the word
``nine''; and adding the words ``telecopier or other electronic
means,'' and a comma after the word ``mail'' in paragraph (b) first
sentence.
Dated: November 7, 1997.
Thomas A. O'Brien,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 97-29927 Filed 11-13-97; 8:45 am]
BILLING CODE 3410-02-P
