[Federal Register Volume 62, Number 144 (Monday, July 28, 1997)]
[Proposed Rules]
[Pages 40310-40312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19800]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 62, No. 144 / Monday, July 28, 1997 /
Proposed Rules
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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;
Secretary's Decision and Referendum Order on Proposed Further Amendment
of Marketing Agreement and Order No. 927
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule and referendum order.
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SUMMARY: This decision proposes amendments to the subject marketing
agreement and order (order) and provides winter pear producers with the
opportunity to vote in a referendum to determine if they favor the
proposed amendments. The proposed amendments were submitted by the
Winter Pear Control Committee (Committee). 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 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: The referendum shall be conducted from August 8, through August
29, 1997. The representative period for the purpose of the referendum
herein ordered is July 1, 1996, through June 30, 1997.
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). 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).
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
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. 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 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 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. Also included in the Notice of Hearing was the
Fruit and Vegetable Division, Agricultural Marketing Service (AMS),
U.S. Department of Agriculture, proposal 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.
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.
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
[[Page 40311]]
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 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 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.
Findings and Conclusions and Rulings
The material issues, findings and conclusions, rulings, and general
findings and determinations included in the Recommended Decision set
forth in the June 16, 1995, issue of the Federal Register (62 FR 32548)
are hereby approved and adopted.
Marketing Agreement and Order
Annexed hereto and made a part hereof is the document entitled
``Order Amending the Order Regulating the Handling of Winter Pears
Grown in Oregon, Washington, and California.'' This document has been
decided upon as the detailed and appropriate means of effectuating the
foregoing findings and conclusions.
It is hereby ordered, That this entire decision be published in the
Federal Register.
Referendum Order
It is hereby directed that a referendum be conducted in accordance
with the procedure for the conduct of referenda (7 CFR part 900.400 et
seq.) to determine whether the issuance of the annexed order amending
the order regulating the handling of winter pears grown in Oregon,
Washington, and California, is approved or favored by producers, as
defined under the terms of the order, who during the representative
period were engaged in the production of winter pears grown in Oregon,
Washington, and California.
The representative period for the conduct of such referendum is
hereby determined to be July 1, 1996, through June 30, 1997.
The agents of the Secretary to conduct such referendum are hereby
designated to be Gary Olson, Regional Manager, and 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.
[[Page 40312]]
List of Subjects in 7 CFR Part 927
Marketing Agreements, Pears, Reporting and recordkeeping
requirements.
Dated: July 22, 1997
Lon Hatamiya,
Administrator, Agricultural Marketing Service.
Order Amending the Order Regulating the Handling of Winter Pears Grown
in Oregon, Washington, and California 1
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\1\ This order shall not become effective unless and until the
requirements of Sec. 900.14 of the rules of practice and procedure
governing proceedings to formulate marketing agreements and
marketing orders have been met.
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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, Washington, and California.
Upon the basis of the evidence introduced at such hearing and the
record thereof, it is found that:
(1) The order, as amended, as hereby proposed to be 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, as hereby proposed to be 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 order, as amended, as hereby proposed to be 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 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.
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 proposed to be amended as
follows:
The provisions of the proposed marketing agreement and the order
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, shall be and are the terms and provisions of this order
amending the order and are set forth in full herein.
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
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.
[FR Doc. 97-19800 Filed 7-25-97; 8:45 am]
BILLING CODE 3410-02-P
