03-9629. Winter Pears Grown in Oregon and Washington; Order Amending Marketing Order No. 927

AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

This final rule amends the marketing order for winter pears grown in Oregon and Washington (order). Three amendments were proposed by the Winter Pear Control Committee (Committee), which is responsible for local administration of the order. Of these three, only one proposal was favored by winter pear growers in a mail referendum, held July 17 through August 2, 2002. The single amendment to the order will change provisions related to alternate Committee members serving for absent members at Committee meetings. This amendment will improve the operation and functioning of the winter pear marketing order program by ensuring industry representation at Committee meetings. The two amendments that failed to receive grower support in the referendum include authorizing the Committee to recommend maturity regulations, and authorizing the Committee to recommend container or marking requirements. These amendments will not be implemented.

EFFECTIVE DATE:

May 19, 2003.

FOR FURTHER INFORMATION CONTACT:

Gary D. Olson, Regional Manager, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, Northwest Marketing Field Office, 1220 SW. Third Avenue, room 369, Portland, Oregon 97204; telephone [phone] or Fax [phone]; or Melissa Schmaedick, Agricultural Marketing Specialist, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, Post Office Box 1035, Moab, Utah 84532; telephone: [phone], or Fax: [phone].

Small businesses may request information on compliance with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, Stop 0237, room 2525-S, Washington, DC 20250-0237; telephone [phone]; Fax [phone], or E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Prior documents in this proceeding: Notice of Hearing issued on November 2, 2000, and published in the November 8, 2000, issue of the Federal Register (65 FR 66935); Recommended Decision and Opportunity to File Written Exceptions issued on March 27, 2002, and published in the April 3, 2002, issue of the Federal Register (67 FR 15747); Secretary's Decision and Referendum Order issued June 4, 2002, and published in the Federal Register on June 10, 2002 (67 FR 39634).

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.

Preliminary Statement

This final rule was formulated on the record of a public hearing held in Portland, Oregon, on November 29, 2000. Notice of this hearing was published in the Federal Register on November 8, 2000. The hearing was held to consider the proposed amendment of Marketing Agreement and Order No. 927, regulating the handling of winter pears grown in Oregon and Washington. 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 the formulation of marketing agreements and orders (7 CFR part 900). The Notice of Hearing contained three amendment proposals submitted by the Committee, and one proposed by the Agricultural Marketing Service (AMS).

The Committee's proposals included: authorizing the Committee to recommend maturity regulations; authorizing the Committee to recommend container and marking requirements; and changing provisions related to alternate Committee members serving for absent members at Committee meetings.

The Fruit and Vegetable Programs of AMS proposed to allow such changes as may be necessary to the order, so that all of the order's provisions conform with the effectuated amendment. No conforming changes have been deemed necessary.

Upon the basis of evidence introduced at the hearing and the record thereof, the Administrator of AMS on March 27, 2002, filed with the Hearing Clerk, U.S. Department of Agriculture, a Recommended Decision and Opportunity to File Written Exceptions thereto by May 3, 2002. No exceptions were filed.

A Secretary's Decision and Referendum Order was issued on June 4, 2002, directing that a referendum be conducted during the period July 17 through August 2, 2002, among growers of winter pears to determine whether they favored the proposed amendments to the order. Ballots representing 522 winter pear producers, or about 34 percent of the producers eligible to vote, were cast. The voters voting in the referendum favored only one of the three amendments proposed by the Committee. This amendment, which will authorize additional alternates to serve when a Committee member and that member's alternates are unable to attend a Committee meeting, received favorable votes representing 87.36 percent of the number of growers and 81.65 percent of the volume of production represented in the referendum. The additional alternate will be required to be from the same group of growers or handlers as the member or alternates they serve in place of.

The other two amendments, which would have authorized container and marking requirements and minimum maturity regulation, failed to obtain the requisite number of votes, in number or in volume, needed to pass. The proposal to authorize container and marking requirements received 65.33 percent of the number of voters, and 51.39 percent of the volume of production, in favor of the amendment. The proposal to authorize maturity regulation received 53.07 percent of the number of voters, and 45.90 percent of the volume, in favor of the amendment. To become effective, the amendments had to be approved by at least two-thirds of those producers voting or by voters representing at least two-thirds of the volume of winter pears represented by voters voting in the referendum.

The amended marketing agreement was subsequently mailed to all winter pear handlers in the production area for their approval. The marketing agreement was not approved by handlers representing at least 50 percent of the volume of winter pears handled by all handlers during the representative period of July 1, 2001, through June 30, 2002.

Small Business Considerations

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions so that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act and amendments thereto are unique in that they are normally brought about through group action of essentially small entities acting on their own behalf. Thus, both the RFA and the Act are compatible with respect to small entities.

According to the Small Business Administration (13 CFR 121.201), small agricultural producers are those having annual receipts of less than $750,000. Small agricultural service firms, which include handlers, are those having annual receipts of less than $5,000,000.

Of the 1,800 winter pear growers, 80 to 85 percent are estimated to have sales equal to or less than $750,000. There are 90 handlers operating in the production area. The majority of these handlers fit the SBA definition of a small handler. Thus, a majority of the winter pear producers and handlers are considered small under the SBA definition. This action will apply primarily to small entities.

Interested persons were invited to present evidence at the hearing on the probable regulatory and informational impact of the proposed amendments on small businesses.

This final rule amends § 927.28 of the order to authorize additional alternates to serve for a Committee member in the event that both that member and that member's alternates are unable to attend a Committee meeting. This action is designed to ensure grower and handler representation at all Committee meetings.

The amendment provides that, in the event that a Committee member and both his or her alternates cannot attend a meeting, the absent Committee member can designate a temporary alternate, provided that the temporary alternate represents the same group (grower or handler) as the absent member. Thus, in the event that all alternates for Committee members in the same group representing a given district are unavailable, selection of a temporary alternate would rely on the availability of other Committee members' alternates from the remaining districts.

This method of selecting a temporary alternate will ensure representation of all growers and handlers (both large and small) at Committee meetings while having little or no increase in Committee administrative costs. Moreover, testimony demonstrated that the authority to temporarily assign alternates would improve representation of the small producers and handlers.

The collection of information under the marketing order will not be affected by this amendment to the marketing order. Current information collection requirements for part 927 are approved by OMB under OMB number 0581-0089.

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this final rule. This amendment is designed to enhance the administration and functioning of the marketing order to the benefit of the industry.

Committee meetings to discuss the proposals were widely publicized throughout the Oregon and Washington winter pear production area. All interested persons were invited to attend the meetings and the hearing, and participate in Committee deliberations on all issues. All Committee meetings and the hearing were public forums, and all entities, both large and small, were able to express views on these issues.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at the following Web site: http://www.ams.usda.gov/​fv/​moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

Civil Justice Reform

The amendment contained in this rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. The amendment will not preempt any State or local laws, regulations, or policies, unless it presents an irreconcilable conflict with the amendment.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after date of the entry of the ruling.

Order Amending the Order Regulating the Handling of Winter Pears Grown in Washington and Oregon

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 the applicable rules of practice and procedure effective thereunder (7 CFR part 900), a public hearing was held upon the proposed amendments to the Marketing Agreement and Order No. 927 (7 CFR part 927), regulating the handling of winter pears grown in Oregon and Washington.

Upon the basis of the evidence introduced at such hearing and the record thereof, it is found that:

(1) The marketing 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 marketing 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 have been held;

(3) The marketing 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;

(4) The marketing order, as amended, and as hereby 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) 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 order as hereby amended) who, during the period July 1, 2001, through June 30, 2002, handled 50 percent or more of the volume of such winter pears covered by said order, as hereby amended, have not 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, 2001, through June 30, 2002 (which has been deemed to be a representative period), have been engaged within the production area in the production of such winter pears, such producers having also produced for market at least two-thirds of the volume of such commodity represented in the referendum; and

(3) In the absence of a signed marketing agreement, the issuance of this amendatory order is 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 of Winter Pears Grown in Oregon and Washington

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 amended as follows:

The provisions to change order language relating to alternate Committee members serving for absent members at Committee meetings contained in USDA's Decision issued by the Administrator on June 4, 2002, and published in the Federal Register on June 10, 2002, shall be and are the terms and provisions of this order 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 out in the preamble, 7 CFR part 927 is amended as follows:

PART 927—WINTER PEARS GROWN IN OREGON AND WASHINGTON

1. The authority citation for 7 CFR part 927 continues to read as follows:

Authority: 7 U.S.C. 601-674.

2. Revise § 927.28 to read as follows:

§ 927.28

Alternates for members of the Control Committee.

The first alternate for a member shall act in the place and stead of the member for whom he or she is an alternate during such member's absence. In the event of the death, removal, resignation, or disqualification of a member, his or her first alternate shall act as a member until a successor for the member is selected and has qualified. The second alternate for a member shall serve in the place and stead of the member for whom he or she is an alternate whenever both the member and his or her first alternate are unable to serve. In the event that both a member of the Control Committee and that member's alternates are unable to attend a Control Committee meeting, the member may designate any other alternate member from the same group (handler or grower) to serve in that member's place and stead.

* * * * *

Dated: April 14, 2003.

A. J. Yates,

Administrator, Agricultural Marketing Service.