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.

Proposed Rules Federal Register

40310

Vol. 62, No. 144

Monday, July 28, 1997

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.

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
Federal Register / Vol. 62, No. 144 / Monday, July 28, 1997 / Proposed Rules 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.
40312 Federal Register / Vol. 62, No. 144 / Monday, July 28, 1997 / Proposed Rules

1This order shall not become effective unless and

until the requirements of § 900.14 of the rules of

practice and procedure governing proceedings to

formulate marketing agreements and marketing

orders have been met.

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

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:

§ 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:

§ 927.10 Production area.

Production area means and includes

the States of Oregon and Washington.

§ 927.11 [Amended]

5. In § 927.11, paragraph (e) is

removed.

§ 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’’.

§ 927.33 [Amended]

7. In § 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

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 989

[Docket No. FV–97–989–2 PR]

Raisins Produced From Grapes Grown

in California; Suspension of Provisions

Concerning Certain Offers of Reserve

Raisins to Handlers for Free Use

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Proposed rule.

SUMMARY: This proposal invites

comments on the suspension of

language in provisions of the raisin

marketing order concerning certain

offers of reserve raisins to handlers for

free use. The marketing order regulates

the handling of raisins produced from

grapes grown in California, and is

administered locally by the Raisin

Administrative Committee (Committee).

This rule would indefinitely suspend

certain language to provide the

Committee more flexibility in meeting

its marketing needs. This proposal was

unanimously recommended by the

Committee.

DATES: Comments must be received by

August 27, 1997.

ADDRESSES: Interested persons are

invited to submit written comments

concerning this proposal. Comments

must be sent in triplicate to the Docket

Clerk, Fruit and Vegetable Division,

AMS, USDA, room 2525–S, P.O. Box

96456, Washington, DC 20090–6456,

Fax # (202) 720–5698. All comments

should reference the docket number and

the date and page number of this issue