[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

[[Page 40310]]


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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 <SUP>1</SUP>
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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