[Federal Register: December 27, 2005 (Volume 70, Number 247)]
[Rules and Regulations]
[Page 76377-76378]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27de05-1]
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Rules and Regulations
Federal Register
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[[Page 76377]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 931
[Docket No. FV05-931-1 FR]
Fresh Bartlett Pears Grown in Oregon and Washington; Termination
of Marketing Order No. 931
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule; termination order.
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SUMMARY: This rule terminates the marketing order for fresh Bartlett
pears grown in Oregon and Washington, Marketing Order No. 931 (order),
and the rules and regulations issued thereunder. On May 21, 2005,
Marketing Order No. 927 was amended to include regulatory authority
over Bartlett pears grown in Oregon and Washington, historically
regulated by the order. That action anticipated the termination of
Order No. 931. Thus, there is no need to continue the operation of the
order.
DATES: Effective Date: January 26, 2006.
ADDRESSES: Melissa Schmaedick, Marketing Order Administration Branch,
Fruit and Vegetable Programs, AMS, USDA, telephone (435) 259-7988, or
Fax (435) 259-4945; or Susan M. Hiller, Northwest Marketing Field
Office, Fruit and Vegetable Programs, AMS, USDA, telephone (503) 326-
2724, or Fax (503) 326-7440.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence
Avenue, SW. STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or e-mail: Jay.Guerber@usda.gov.
SUPPLEMENTARY INFORMATION: This action is governed by the provisions of
section 608c(16)(A) of the Agricultural Marketing Agreement Act of
1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the
``Act'' and Sec. 931.64 of the order.
The Department of Agriculture (USDA) is issuing this rule in
conformance with Executive Order 12866.
The termination of the order has been reviewed under Executive
Order 12988, Civil Justice Reform. This rule is not intended to have
retroactive effect. This action will not preempt any State or local
laws, regulations, or policies, unless they present an irreconcilable
conflict with this rule.
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 a 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
the date of the entry of the ruling.
This rule terminates the order covering fresh Bartlett pears and
the rules and regulations established thereunder. The order has been in
effect since 1966. It authorizes the establishment of grade, size,
quality, container and pack regulations for fresh Bartlett pears grown
in Oregon and Washington, as well as marketing research and development
projects. The program has been funded by assessments imposed on
handlers of fresh Bartlett pears grown in Oregon and Washington.
Section 931.64 of the order specifies that the Secretary may at any
time terminate or suspend the operation of the order whenever he finds
that such provisions do not tend to effectuate the declared policy of
the Act. On May 21, 2005, Marketing Order No. 927 was amended to
include regulatory authority over Bartlett pears grown in Oregon and
Washington. That action anticipated the termination of Order No. 931.
Bartlett pears have historically been regulated by the order.
On September 8, 2005, the Northwest Fresh Bartlett Pear Marketing
Committee (NWFBPMC), the administrative Committee for the order, voted
unanimously in favor of terminating the program and transferring its
assets to the committee administering the newly amended Marketing Order
No. 927.
Pursuant to section 8c(16)(A) of the Act and Sec. 931.64 of the
order, USDA has determined that the order and all of its provisions
should be terminated. Section 8c(16)(A) of the Act requires USDA to
notify Congress at least 60 days before terminating a Federal marketing
order program. Congress was so notified on October 11, 2005.
Pursuant to Sec. 931.65 of the order, the members of the NWFBPMC
shall serve as trustees to conclude and liquidate the affairs of the
committee. The most recent fiscal period for the NWFBPMC began July 1,
2004, and ended June 30, 2005. An annual financial audit was conducted
and accounts were determined to be in conformity with generally
accepted accounting principles for that period, with an operating
reserve (net assets) of $43,753. The Committee has recommended
transferring all NWFBPMC assets and records to the Fresh Pear
Committee, newly established under Marketing Order No. 927.
Final Regulatory Flexibility Analysis
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.
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. Marketing orders issued
pursuant to the Act, and rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
Small agricultural producers have been defined by the Small
Business Administration (SBA) (13 CFR 121.201) as those having annual
receipts of less
[[Page 76378]]
than $750,000. Small agricultural service firms, which include handlers
regulated under the order, are defined as those with annual receipts of
less than $6,000,000.
Industry and USDA statistics indicate that there are approximately
1,850 pear growers in Oregon and Washington. Of that total, 1,345
growers report fresh Bartlett pear production. There are 55 handlers
that handle fresh Bartlett pears produced in Oregon and Washington.
According to the Non-citrus Fruits and Nuts 2004 Summary issued in
July 2005 by the National Agricultural Statistics Service, the total
farm gate value of fresh Bartlett pears grown in Oregon and Washington
for 2004 was $41,371,000. Therefore, the 2004 average gross revenue for
a fresh Bartlett pear grower in Oregon and Washington was $30,759.
Based on records of the Committee and recent f.o.b. prices for pears,
over 76 percent of the handlers ship less than $6,000,000 worth of
pears on an annual basis. Thus, it can be concluded that the majority
of growers and handlers of Oregon and Washington fresh Bartlett pears
may be classified as small entities.
This final rule terminates the marketing order covering fresh
Bartlett pears grown in Oregon and Washington and the rules and
regulations established under the order.
On May 21, 2005, Marketing Order No. 927 was amended to include
regulatory authority over Bartlett pears grown in Oregon and
Washington, historically regulated by the order. Washington and Oregon
pear growers voting in a mail referendum held March 22 through April 8,
2005, favored the consolidation of the two marketing orders into one
program.
On September 8, 2005, at a NWFBPMC telephone meeting, committee
members motioned and voted to terminate the order. A record of the
members voting, and confirmation in writing of the votes by each member
as required by the NWFBPMC Bylaws regarding mail ballots, was submitted
to USDA on September 28, 2005. The record indicates that the NWFBPMC
voted unanimously in favor of terminating the order and transferring
the program's assets to the Fresh Pear Committee, newly established
under Marketing Order No. 927.
Given that the provisions of the order have been incorporated into
Marketing Order No. 927 and that the handling of fresh Bartlett pears
will continue to be regulated under Marketing Order No. 927, USDA has
determined that small growers or handlers will not be unduly or
disproportionately burdened by the termination of this order. The
termination reflects a shift in the regulatory oversight of fresh
Bartlett pears from Marketing Order No. 931 to Marketing Order No. 927.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), the information collection requirements being terminated
by this rule were previously approved by the Office of Management and
Budget (OMB) under OMB No. 0581-0189, ``Generic OMB Fruit Crops.'' The
total annual reporting burden for Fresh Bartlett Pears Grown in Oregon
and Washington is 904.62 burden hours. The information collection for
fresh Bartlett pears (Marketing Order No. 931) will be incorporated
with Marketing Order No. 927, Pears Grown in Oregon and Washington
(formerly Winter Pears Grown in Oregon and Washington), which is also
part of the Generic OMB Fruit Crops package.
USDA has not identified any relevant Federal rules that duplicate,
overlap or conflict with this final rule.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at: 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.
It is further found that it is impractical, unnecessary, and
contrary to the public interest to give preliminary notice, and that
good cause exists for not postponing the effective date of this rule
until 30 days after publication in the Federal Register (5 U.S.C. 553)
because: (1) This action relieves restrictions on handlers by
terminating the requirements of the marketing order; (2) handlers were
given notice of amendments made to Federal Marketing Order No. 927 on
May 21, 2005, which now regulates all pears grown in Oregon and
Washington; and (3) no useful purpose would be served by delaying the
effective date.
After consideration of all relevant matter presented it is hereby
found that the order, and the rules and regulations in effect under the
order, no longer tend to effectuate the declared policy of the Act and,
therefore, are terminated.
List of Subjects in 7 CFR Part 931
Marketing agreements, Pears, Reporting and recordkeeping
requirements.
PART 931--[REMOVED]
0
For the reasons set forth in the preamble, and under the authority of 7
U.S.C. 601-674, 7 CFR part 931 is removed.
Dated: December 21, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-24487 Filed 12-23-05; 8:45 am]
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