[Federal Register Volume 62, Number 115 (Monday, June 16, 1997)]
[Proposed Rules]
[Pages 32548-32552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15663]
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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;
Recommended Decision and Opportunity To File Written Exceptions To
Proposed Further Amendment of Marketing Agreement and Order No. 927
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule and opportunity to file exceptions.
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SUMMARY: This recommended decision invites written exceptions on
proposed amendments to the marketing agreement and order for winter
pears grown in Oregon, Washington, and California. The proposed
amendments would 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 Winter Pear Control
Committee (Committee). Another amendment would allow the use of
telecopiers or other electronic means in Committee voting procedures.
The proposed amendments are intended to improve the administration,
operation and functioning of the order.
DATES: Written exceptions must be filed by June 26, 1997.
ADDRESSES: Written exceptions should be filed with the Hearing Clerk,
U.S. Department of Agriculture, room 1079-S, Washington, DC 20250-9200,
Facsimile number (202) 720-9776. Four copies of all written exceptions
should be submitted and they should reference the docket numbers and
the date and page number of this issue of the Federal Register.
Exceptions will be made available for public inspection in the Office
of the Hearing Clerk during regular business hours.
FOR FURTHER INFORMATION CONTACT: Kathleen M. Finn, Marketing
Specialist, Marketing Order Administration Branch, Fruit and Vegetable
Division, AMS, USDA, room 2523-S, Washington, DC 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).
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
Notice is hereby given of the filing with the Hearing Clerk of this
recommended decision with respect to the proposed further amendment of
Marketing Agreement and Order No. 927, regulating the handling of
winter pears grown in Oregon, Washington, and California, and the
opportunity to file written exceptions thereto. Copies of this decision
can be obtained from Kathleen M. Finn or Teresa Hutchinson whose
addresses are listed above.
This action is issued 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 proposed amendment of Marketing Agreement and Order No. 927 is
based on the record of a public hearing held in Sacramento, California,
on July 9, 1996, and in Portland, Oregon, on July 10, 1996. Notice of
this hearing was published in the Federal Register on June 26, 1996.
The notice of hearing contained proposals submitted by the Winter Pear
Control Committee (Committee), which locally administers the order.
The Committee's proposed amendments would: (1) Revise the
definition of ``production area'' to mean only the States of Oregon and
Washington; (2) revise ``district'' by removing California, leaving
only those districts designated in the States of Oregon and Washington;
(3) revise ``establishment and membership'' of the Committee to be
consistent with the reduction in size of the regulated production area;
(4) revise ``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 amend ``(b)
mail
[[Page 32549]]
voting'', to allow for the use of telecopiers and other electronic
means; and (5) revise the definition of ``pears'' to exclude pears
produced in California.
The Notice of Hearing also included a proposal by the Fruit and
Vegetable Division, Agricultural Marketing Service (AMS), U.S.
Department of Agriculture, to make such changes as are necessary to the
order, if any or all of the above amendments are adopted, so that all
of its provisions conform with the proposed amendment.
At the conclusion of the hearing, the Administrative Law Judge
fixed August 16, 1996, as the final date for interested persons to file
proposed findings and conclusions or written arguments and briefs based
on the evidence received at the hearing. No briefs were received.
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 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. 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
would 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 Act requires the application of uniform rules on regulated
handlers. Marketing orders and amendments thereto are unique in that
they are normally brought about through group action of essentially
small entities for their own benefit. Thus, both the RFA and the Act
are compatible with respect to small entities.
The proposed amendment to remove the State of California would
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 believe they are funding promotion programs that
are in direct competition with their own product. Record evidence
showed that there would not be any additional burden imposed on
handlers if such an amendment was implemented. In fact, handlers in the
State of California would be relieved of any regulatory burden. Those
in Oregon and Washington could continue to benefit from operation of
the program. There are currently 1700 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 would not be effected if California was
removed from the marketing order. A witness testified that there are
alternatives that would replace the current information that is being
collected from the State of California, if it is needed. Accordingly,
this action would 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 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 proposed rule.
The proposal to allow Committee members to vote by telecopiers or
other electronic means would provide members with the option to use
these methods if available when voting on an action is to be done
quickly. This would allow 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 proposals are changes that would need to be made to
the marketing order to reflect the removal of the State of California.
All of these changes are designed to enhance the administration and
functioning of the marketing agreement and order to the benefit of the
industry.
The amendments proposed herein have been reviewed under Executive
Order 12988, Civil Justice Reform. They are not intended to have
retroactive effect. If adopted, the proposed amendments would not
preempt any State or local laws, regulations, or policies, unless they
present an irreconcilable conflict with the amendments.
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 32550]]
Material Issues
The material issues of record addressed in this decision are as
follows:
(1) Whether to revise the definition of ``production area'' to mean
only the States of Oregon and Washington;
(2) Whether to revise ``district'' by removing California, leaving
only those districts designated in the States of Oregon and Washington;
(3) Whether to revise ``establishment and membership'' of the
Committee to be consistent with the reduction in size of the regulated
production area;
(4) Whether to revise ``procedure of Control Committee,'' ``(a)
quorum and voting'', so that the number of members needed for a quorum
is consistent with Committee representation, and amend ``(b) mail
voting'', to allow for the use of telecopiers and other electronic
means; and
(5) Whether to revise the definition of ``pears'' to exclude pears
produced in California.
Findings and Conclusions
The findings and conclusions on the material issues, all of which
are based on evidence presented at the hearing and the record thereof,
are:
Material Issue Number 1
The definition of production area under Sec. 927.10 should be
amended by removing the State of California from the production area.
The new production area would include only the States of Oregon and
Washington.
Currently, Sec. 927.10 defines the production area to include the
States of Oregon, Washington and California. The winter pear marketing
order has been in effect since the early 1930's. Record evidence showed
that the primary operations of the marketing order have changed since
the inception of the order from establishing minimum quality
requirements within the industry to primarily providing an extensive
promotion and research program.
Record evidence indicated that there is also a Pear Bureau (Bureau)
that works in conjunction with the marketing order. The Bureau has been
in existence for 60 years. Its purpose is to represent the winter pear
industry in Oregon, Washington and California, and the Bartlett
industry in Oregon and Washington, in market development and promotion
and advertising throughout the international marketplace. The Bureau,
through contractual agreement, is responsible for conducting market
development and paid advertising activities authorized by the
Committee.
Currently, Sec. 927.4 of the order defines the varietal types of
pears that are covered under the order to be the Beurre, D'Anjou,
Beurre Bosc, Winter Nelis, and Doyenne du Comice varieties of pears
grown in Oregon, Washington, and California. Also, the Forelle and
Seckel varieties that are grown in Washington and Oregon are covered by
the order. The major variety grown in California that is covered under
the marketing order is the Beurre Bosc pear. The marketing order does
not cover Bartlett pears, however there are programs conducted for
Northwest Bartlett pears by the Bureau.
Record evidence showed that California Bartlett pears are included
under a California pear promotion program and therefore, are not part
of the Bureau's programs. In the past, the California Bartlett industry
has been encouraged to be represented by the Bureau but they have not
wished to be part of the Bureau. Record evidence indicated that Oregon,
Washington and California winter pear handlers work in conjunction with
each other to market most varieties of winter pears, but are segregated
where Bartlett pears are concerned. A witness testified that California
winter pear and Bartlett pear growers question why they should pay
assessments promoting winter pears as well as Northwest Bartlett pears.
Record evidence also indicated that the harvest and marketing
seasons are different for California pears and Northwest pears (i.e.,
those grown in Oregon and Washington). Winter pears grown in California
are typically harvested and marketed from late July through October
although the season sometimes extends into November. Northwest pears
are harvested and marketed beginning late in September and continuing
through the following June.
Record evidence showed that the timing of the promotional
activities for winter pears are not as effective for California
handlers of winter pears. For example, the majority of Bosc promotional
activities conducted under the order are scheduled to commence in
September or October each season. Bosc pears produced in the Greater
Sacramento District of California are typically harvested and shipped
by August. Therefore, California handlers are not able to take
advantage of such promotional activities.
Record evidence also indicated that the pesticide research programs
conducted under the marketing order may not benefit the California
grower or handler. The Committee has assessed additional money to
retain the registration of post-harvest fungicides, Ethoxyquin and
Sodium O-Phenyl phenate (SOPP). These two materials may not be used by
California shippers because of State regulatory differences. However,
the California handler is still required to pay such assessment.
Record evidence showed that there are currently 1,700 winter pear
growers in Oregon and Washington and 60 growers of winter pears in
California. There are also 93 handlers of winter pears in Oregon and
Washington and 19 handlers of winter pears in California. 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 and $6,203,295 from Oregon and
Washington, for a total of $6,379,218. Record evidence showed that the
loss of revenue would be approximately 2.76 percent of the total
current assessment income if California was excluded from the
production area. A proponent testified that this loss of revenue to the
total program would be relatively insignificant. Such a loss would not
effect the current level of promotional and research activities and
would not adversely effect the Northwest pear industry.
Record evidence showed that the production area of Oregon and
Washington is the smallest practicable area which should be regulated
under the marketing order for winter pears.
Material Issue Number 2
Section 927.11 should be amended by deleting paragraph (e) which
specifies the district of the State of California. Section 927.11
states the districts to be covered under the marketing order. The
districts are specified under the order for purposes of representation
on the Committee. If California is removed from the production area as
proposed by the proponents, such a change would have to be made to this
section to reflect the amendment.
Material Issue Number 3
Section 927.20 should be amended by decreasing the number of
Committee members from 14 members to 12 members. Also, the number of
grower and handler members on the Committee would be decreased from
seven members to six members for each category. Currently, the district
of California is represented by one grower member and one handler
member on the Committee. Since the proposed amendment would remove the
State of California from coverage under the marketing order, record
evidence also
[[Page 32551]]
supports decreasing the Committee membership by the two California
members. A corresponding change would be made in the number of grower
and handler members. The number would be decreased from seven to six
members for each category. If California is removed from the production
area as proposed by the proponents, such a change would have to be made
to this section to reflect the amendment.
Material Issue Number 4
Section 927.33 should be amended by revising paragraph (a) to
reflect the number of Committee members that need to be present for a
quorum. Also, paragraph (b) should be revised by allowing for the use
of telecopiers when Committee members need to vote on an action.
Currently, Sec. 927.33(a) states that 10 members need to be present
to constitute a quorum. Record evidence supports decreasing the quorum
size to reflect the change in the Committee membership due to the
removal of California. The amendment would decrease the quorum size to
nine members. If California is removed from the production area as
proposed by the proponents, such a change should be made to this
section to reflect the amendment.
Section 927.33(b) states that the Committee may provide for members
to vote by mail, telephone, or telegraph, upon due notice to all
members. Record evidence supported adding the use of telecopiers as a
method of voting by Committee members. This would allow the Committee
to vote without being assembled at a meeting place and, therefore,
reduce administrative costs and act quickly on a recommendation that
needs the Committee's attention. ``Other electronic means'' is
envisioned to include the use of modems, video and teleconferencing.
The term is flexible to allow for the use of new technologies by the
Committee for voting.
Material Issue Number 5
Section 927.4 should be amended by deleting the reference to the
State of California. Currently, Sec. 927.4 lists the varieties of pears
that are covered under the marketing order. Record evidence showed that
Forelle and Seckel pear varieties are exclusively grown in Oregon and
Washington and are referenced as such under Sec. 927.4. Other pear
varieties are listed and are specified as being grown in the States of
Oregon, Washington and California. If California is removed from the
production area as proposed by the proponents, such a change would have
to be made to this section to reflect the amendment.
The Notice of Hearing also included a proposal by the Fruit and
Vegetable Division, Agricultural Marketing Service (AMS) to make such
changes as are necessary to the order, if any or all of the above
amendments are adopted, so that all of its provisions conform with the
proposed amendment. One proposed amendment has been made deleting
California from the title of the marketing order.
General Findings
(1) The findings hereinafter set forth are supplementary to the
previous findings and determinations which were made in connection with
the issuance of the marketing agreement and order and each previously
issued amendment thereto. Except insofar as such findings and
determinations may be in conflict with the findings and determinations
set forth herein, all of the said prior findings and determinations are
hereby ratified and affirmed;
(2) The marketing agreement and order, as amended, and as hereby
proposed to be further amended, and all of the terms and conditions
thereof, would tend to effectuate the declared policy of the Act;
(3) The marketing agreement and order, as amended, and as hereby
proposed to be further amended, regulate the handling of pears grown in
the production area in the same manner as, and are applicable only to,
persons in the respective classes of commercial and industrial activity
specified in the marketing order and agreement and order upon which a
hearing has been held;
(4) The marketing agreement and order, as amended, and as hereby
proposed to be further amended, are limited in their 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 subdivision of the production area would
not effectively carry out the declared policy of the Act; and
(5) All handling of winter pears grown in Oregon and Washington as
defined in the marketing agreement and order, as amended, and as hereby
proposed to be further amended, is in the current of interstate or
foreign commerce or directly burdens, obstructs, or affects such
commerce.
Ten days has been determined to be an appropriate comment period
for this rule because: (1) The fiscal period of the marketing order
begins on July 1, 1997, and shipments of winter pears for the 1997-98
season begin in July. It would be difficult for the committee to
administer this amendment part-way into the season, especially after
shipments have begun. In addition, making this amendment effective as
close to the beginning of the annual pear shipments would be more
equitable to all handlers; (2) these issues were presented at a public
hearing before an administrative law judge and no opposing testimony
was presented; and (3) any comments received will be considered and a
producer referendum will be conducted prior to finalization of this
rule.
List of Subjects in 7 CFR Part 927
Marketing agreements, Pears, Reporting and recordkeeping
requirements.
Recommended Further Amendment of the Marketing Agreement and Order
For the reasons set forth in the preamble, 7 CFR part 927 is
proposed to be amended as follows:
1. The authority citation for 7 CFR part 927 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
PART 927--[AMENDED]
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
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''.
[[Page 32552]]
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: June 9, 1997.
Lon Hatamiya,
Administrator, Agricultural Marketing Service.
[FR Doc. 97-15663 Filed 6-13-97; 8:45 am]
BILLING CODE 3410-02-P
