[Federal Register: April 18, 2003 (Volume 68, Number 75)]
[Rules and Regulations]
[Page 19139-19142]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18ap03-2]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 927
[Docket No. FV00-927-3]
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.
[[Page 19140]]
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 (503) 326-2724 or Fax (503)
326-7440; or Melissa Schmaedick, Agricultural Marketing Specialist,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, Post Office Box 1035, Moab, Utah 84532; telephone: (435) 259-7988,
or Fax: (435) 259-4945.
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
(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); 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 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. This action is designed to ensure grower and handler
representation at all Committee meetings.
[[Page 19141]]
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
[[Page 19142]]
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.
0
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
0
1. The authority citation for 7 CFR part 927 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
0
2. 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.
* * * * *
Dated: April 14, 2003.
A. J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-9629 Filed 4-17-03; 8:45 am]
BILLING CODE 3410-02-P