[Federal Register Volume 62, Number 220 (Friday, November 14, 1997)]
[Rules and Regulations]
[Pages 60999-61002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29927]


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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; Order 
Amending the Marketing Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends the marketing agreement and order 
(order) for winter pears grown in Oregon, Washington, and California. 
The amendments 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 allows the use of telecopiers or other electronic means in 
Committee voting procedures. The amendments will improve the 
administration, operation and functioning of the order.

EFFECTIVE DATE: November 17, 1997.

FOR FURTHER INFORMATION CONTACT: Kathleen M. Finn, Marketing 
Specialist, Marketing Order Administration Branch, Fruit and Vegetable 
Division, AMS, USDA, room 2523-S, Washington, D.C. 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). 
Secretary's Decision and Referendum Order issued July 22, 1997, and 
published in the Federal Register on July 28, 1997 (62 FR 40310).

Preliminary Statement

    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.
    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule is not intended to have retroactive 
effect. This rule 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 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.

[[Page 61000]]

    The final rule was formulated on the record of a public hearing 
held in Sacramento, California, on July 9, 1996, and in Portland, 
Oregon, on July 10, 1996, to consider the proposed amendment of 
Marketing Order and Agreement No. 927, regulating the handling of 
winter pears grown in Oregon, Washington, and California, hereinafter 
referred to as the ``order.'' Notice of the Hearing was published in 
the June 26, 1996, issue of the Federal Register (61 FR 33047).
    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 proposals pertained to: (1) revising the definition 
of ``production area'' to mean only the States of Oregon and 
Washington; (2) revising ``district'' by removing California, leaving 
only those districts designated in the States of Oregon and Washington; 
(3) revising ``establishment and membership'' of the Committee to be 
consistent with the reduction in size of the regulated production area; 
(4) revising ``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 amending 
``(b) mail voting'', to allow for the use of telecopiers and other 
electronic means; and (5) revising the definition of ``pears'' to 
exclude pears produced in California.
    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.
    A Secretary's Decision and Referendum Order was issued on July 22, 
1997, directing that a referendum be conducted during the period August 
8 through August 29, 1997, among producers of winter pears in Oregon, 
Washington, and California to determine whether they favored the 
proposed amendments to the order. All of the proposed amendments were 
favored by more than the requisite two-thirds of the producers voting 
in the referendum by number and volume.
    The amended marketing agreement was subsequently mailed to all 
winter pear handlers throughout the production area for their approval. 
The marketing agreement was signed by handlers of more than 50 percent 
of the volume of winter pears handled by all handlers during the 
representative period of July 1, 1996, through June 30, 1997.
    Also, this final rule includes an additional modification to the 
regulatory text concerning the definition of ``pears'' to clarify that 
the definition applies to winter pears that are grown in the production 
area.

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 final 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. 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.
    There are approximately 1800 winter pear producers in Oregon, 
Washington, and California and approximately 100 handlers of winter 
pears who are subject to regulation under the marketing order. 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 will 
not be unduly burdened by any additional regulatory requirements, 
including those pertaining to reporting and 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 removal of the State of California will 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 believed they were funding promotion programs 
that are in direct competition with their own product. Record evidence 
showed that there will not be any additional burden imposed on handlers 
with the implementation of these amendments. In fact, handlers in the 
State of California will be relieved of any regulatory burden. Those in 
Oregon and Washington will 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 will not be effected by removing California 
from the marketing order. A witness testified that there are 
alternatives that will replace the current information that is being 
collected from the State of California, if it is needed. Accordingly, 
this action will 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

[[Page 61001]]

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 final rule.
    The amendment allowing Committee members to vote by telecopiers or 
other electronic means provides members with the option to use these 
methods if available when voting on an action is to be done quickly. 
This allows 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 amendments are changes that need to be made to the 
marketing order to reflect the removal of the State of California.
    All of these amendments are designed to enhance the administration 
and functioning of the marketing agreement and order to the benefit of 
the industry.

Order Further Amending the Order Regulating the Handling of Winter 
Pears Grown in Oregon, Washington, and California

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 
applicable rules of practice and procedure effective thereunder (7 CFR 
part 900), public hearings were held upon the amendments to Marketing 
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 hearings and the 
record thereof, it is found that: 
    (1) The 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 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 were held;
    (3) The 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; and
    (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.
    (b) Additional findings. It is necessary and in the public interest 
to make these order amendments effective one day after publication.
    This final order changes the production area by removing the State 
of California from order provisions. Upon the effective date of this 
order, effected parties will need to be informed of these provisions. 
In addition, the committee needs to make budgetary and other 
administrative decisions implementing the new provisions. The 1997-98 
fiscal period began on July 1, 1997, and these provisions need to be in 
place as soon as possible as handlers are already shipping winter 
pears. A later effective date would unnecessarily delay the 
implementation of the order amendments and the improvement in operation 
of the marketing order program.
    In view of the foregoing, it is hereby found and determined that 
good cause exists for making these order amendments effective one day 
after publication, and that it would be contrary to the public interest 
to delay the effective date of these order amendments for 30 days after 
publication in the Federal Register (Sec. 553(d), Administrative 
Procedure Act; 5 U.S.C. 551-559).
    (c) 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 said order, as amended, and as hereby further amended) 
who, during the period July 1, 1996, through June 30, 1997, handled 50 
percent or more of the volume of such winter pears covered by said 
order, as amended, and as hereby further amended, have 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, 1996, through June 30, 1997 (which 
has been deemed to be a representative period), have been engaged 
within the production area in the production of such winter pears for 
fresh market.
    (3) The signed marketing agreement and the issuance of this 
amendatory order are the only practical means pursuant to the declared 
policy of the Act of advancing the interests of producers of winter 
pears in the production area.

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 further amended as follows:
    The provisions of the proposed marketing order amendments further 
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 (62 FR 32548), and in the Secretary's Decision issued on 
July 22, 1997, and published in the Federal Register on July 28, 1997 
(62 FR 40310), and as modified in this final rule, shall be and are the 
terms and provisions of this order further 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.

    For the reasons set forth in the preamble, 7 CFR Part 927 is 
amended as follows:

[[Page 61002]]

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 
grown in the production area and 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.

    Dated: November 7, 1997.
Thomas A. O'Brien,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 97-29927 Filed 11-13-97; 8:45 am]
BILLING CODE 3410-02-P