[Federal Register: June 10, 2002 (Volume 67, Number 111)]
[Proposed Rules]
[Page 39634-39637]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10jn02-13]
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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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[[Page 39634]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 927
[Docket No. FV00-927-3]
Winter Pears Grown in Oregon and Washington; Secretary's Decision
and Referendum Order on Proposed 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 marketing agreement
and order for winter pears grown in Oregon and Washington (order), and
provides growers with the opportunity to vote in a referendum to
determine if they favor the changes. The amendments are based on those
proposed by the Winter Pear Control Committee (Committee), which is
responsible for local administration of the order. The amendments
include: authorizing the Committee to recommend maturity regulations;
authorizing the Committee to recommend container or marking
requirements; and changing provisions related to alternate Committee
members serving for absent members at Committee meetings. The proposed
amendments are intended to improve the operation and functioning of the
winter pear marketing order program.
DATES: The referendum will be conducted from July 17 to August 2, 2002.
The representative period for the purpose of the referendum is July 1,
2001, through June 30, 2002.
FOR FURTHER INFORMATION CONTACT: Anne M. Dec, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400
Independence Avenue, Stop 0237, room 2522-S, Washington, DC 20250-0237;
telephone: (202) 720-2491, or Fax: (202) 720-8938. 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, D.C. 20250-0237; telephone (202) 720-2491; Fax (202) 720-
8938, or E-mail: Jay.Guerber@usda.gov.
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).
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 amendments were formulated based 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, hereinafter referred to
collectively as the ``order.'' 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 several proposals submitted by the
Committee, and one proposed by the Agricultural Marketing Service
(AMS).
The Committee's proposed amendments 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, if any of the proposed
changes are adopted, so that all of the order's provisions conform with
the effectuated amendments.
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.
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 handlers are those having annual receipts of less than $5,000,000
and small agricultural producers are defined as those with annual
receipts of less than $750,000. Based on testimony presented at the
hearing, a majority of the winter pear producers are considered small
under the SBA definition. 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, this
action will apply primarily to small entities.
This decision proposes making the following amendments to the
winter pear marketing order: (1) To amend Sec. 927.51(a)(1) of the
order to specifically authorize the establishment of maturity
regulations; (2) To amend Sec. 927.51 of the order to authorize the
establishment of container requirements which would
[[Page 39635]]
encompass capacity, weight, dimensions, and packing of the container,
or containers, which may be used in packaging or handling of pears; and
(3) To amend Sec. 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.
These actions are designed to enhance the quality of winter pears
at consumer outlets through the regulation of maturity regulations, to
create more orderly marketing conditions for winter pears through the
implementation of container uniformity, to improve grower returns
through these combined actions, and to ensure grower and handler
representation at all Committee meetings.
Members of the Winter Pear Control Committee attending the hearing
testified that the proposal to grant authority to establish maturity
regulations has been widely discussed within the grower community, an
estimated 80 to 85 percent of which qualify as small producers.
Moreover, among the witnesses testifying, it was often stated that
implementing maturity requirements would equally benefit small and
large producers by standardizing industry requirements and enhancing
overall product quality in the market.
Small handlers from both Oregon and Washington were present and
participated in the hearing, and indicated their support for this
proposal. When asked if such regulations would increase handler costs,
one small handler responded that while some additional inspection costs
would be incurred, those costs are expected to be offset with the
increase in consumption. Ultimately, witnesses testifying at the
hearing indicated that net returns to both handlers and producers would
increase.
Testimony also indicated that the proposal to grant authority to
fix the size, capacity, weight, dimensions, markings, or pack of the
container, or containers, used in the packaging or handling of winter
pears has been widely discussed within the winter pear industry. The
proposed changes also include definitions of ``pack'' and ``container''
that are added based upon testimony at the hearing. Among the witnesses
testifying, it was widely stated that implementing this authority would
equally benefit both small and large handlers and growers. By
standardizing container and packing requirements, handling costs would
decrease through reduced inventories and more efficient packing
procedures. Uniformity in the market would also facilitate standardized
transactions by ensuring more equitable cost per unit comparisons and
producer returns on product.
Small handlers testifying at the hearing indicated their support
for this proposal. When asked if such regulations would increase
handler costs, one small handler explained that the costs of new
containers are likely to be offset by gains in packing efficiency and a
more transparent cost per unit comparisons in handler to retailer
transactions. Small producers testifying to this issue realized that
increased costs in packing material would more than likely be passed
from the handler to the grower, but the net gain from container
standardization will ultimately benefit the industry as a whole,
including the small producer. It was stated that by removing confusion
related to container size in the marketplace, growers should get a
fairer return on their product.
In the case of districts having only two Committee members, a
temporary alternate will be selected by the absent Committee member
from the collective pool of alternates from all districts and will
represent the same group (grower or handler). The amendment proposed in
this decision represents a modification to the Committee's proposal in
order to better effectuate its terms. This method of selecting a
temporary alternate would 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 would not
be affected by these amendments 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 proposed rule. All of these amendments
are designed to enhance the administration and functioning of the
marketing order to the benefit of the industry.
Committee meetings held to discuss these proposals, as well as the
hearing, 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 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 will 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 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.
Findings and Conclusions
The findings and conclusions, rulings, and general findings and
determinations included in the Recommended Decision set forth in the
April 3, 2002, issue of the Federal Register 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 and Washington.'' This document has been decided upon
as the detailed and appropriate means of
[[Page 39636]]
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 annexed order amending the order
regulating the handling of winter pears grown in Oregon and Washington
is approved or favored by growers, as defined under the terms of the
order, who during the representative period were engaged in the
production of winter pears in the production area.
The representative period for the conduct of such referendum is
hereby determined to be July 1, 2001, through June 30, 2002.
The agent of the Secretary to conduct such referendum is hereby
designated to be Gary Olson, Northwest Marketing Field Office,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1220 S.W. Third Avenue, room 369, Portland, Oregon 97204;
telephone (503) 326-2724.
List of Subjects in 7 CFR Part 927
Marketing agreements, Pears, Reporting and recordkeeping
requirements.
Dated: June 4, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
Order Amending the Order Regulating the Handling of Winter Pears Grown
in Oregon and Washington\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 which
were previously made in connection with the issuance of the marketing
agreement and order; and all 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 agreement and order, as amended, and 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 marketing agreement and order, as amended, and as hereby
proposed to be further amended, regulate the handling of winter 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 agreement and order upon which
hearings have been held;
(3) 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 subdivisions of the production area would
not effectively carry out the declared policy of the Act;
(4) The marketing agreement and order, as amended, and as hereby
proposed to be further amended, prescribe, 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 cherries grown in the
production area; and
(5) All handling of winter pears grown in the production area as
defined in the marketing agreement and order, 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 order
amending the order contained in the Recommended Decision issued by the
Administrator on March 27, 2002, and published in the Federal Register
on April 3, 2002, will 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 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 Sec. 927.5 to read as follows:
Sec. 927.5 Size
Size means the number of pears which can be packed in a standard
pear box when packed in accordance with the packing requirements of the
U.S. Standards for Pears (part 51 of this title), or as such
regulations hereafter may be modified or as Asize'' may be more
specifically defined in a regulation issued under this part.
3. Add a new Sec. 927.14 to read as follows:
Sec. 927.14 Pack.
Pack means the specific arrangement, size, weight, count, or grade
of a quantity of pears in a particular type and size of container, or
any combination thereof.
4. Add a new Sec. 927.15 to read as follows:
Sec. 927.15 Container.
Container means a box, bag, crate, lug, basket, carton, package, or
any other type of receptacle used in the packaging or handling of
pears.
5. Revise Sec. 927.28 to read as follows:
Sec. 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.
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6. Amend Sec. 927.51 by revising paragraph (a) to read as follows:
Sec. 927.51 Issuance of regulations and modification, suspension, or
termination thereof.
(a) Whenever the Secretary finds, from the recommendations and
information submitted by the Control Committee, or from other available
information, that regulation, in the manner specified in the section,
of the shipment of pears would tend to effectuate the declared policy
of the act, he or she shall so limit the shipment of pears during a
specified period or periods. Such regulation:
(1) May limit the total quantity of any grade, size, quality,
maturity, or combination thereof, of any variety of pears grown in any
district and may prescribe different requirements applicable to
shipments in different export markets; or
(2) May prescribe minimum standards of quality for any variety of
pears and limit the shipment thereof to those meeting such minimum
standards; or
(3) Fix the size, capacity, weight, dimensions, markings, or pack
of the container, or containers, which may be used in packaging or
handling of pears.
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[FR Doc. 02-14404 Filed 6-7-02; 8:45 am]
BILLING CODE 3410-02-P