Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 60999

to have retroactive effect. This final rule

will not preempt any State or local laws,

regulations, or policies, unless they

present an irreconcilable conflict with

this rule. There are no administrative

procedures which must be exhausted

prior to any judicial challenge to the

provisions of this rule.

Effects on Small Businesses

Pursuant to requirements set forth in

the Regulatory Flexibility Act (RFA) (5

U.S.C. 601 et seq.), USDA has

considered the economic impact of this

final rule on small entities. The purpose

of the RFA is to fit regulatory actions to

the scale of businesses subject to such

actions in order that small businesses

will not be unduly or disproportionately

burdened. Small agricultural service

firms have been defined by the Small

Business Administration (13 CFR

121.601) as those whose annual receipts

are less than $5,000,000. The PACA

requires all businesses that operate

subject to its provisions maintain a

license issued by USDA. There are

approximately 15,700 PACA licensees,

many of which may be classified as

small entities.

The revised regulations establish that

the electronic transmissions used in

perishable agricultural commodity

transactions are, in fact, ‘‘ordinary and

usual billing or invoice statements.’’

The use of electronic transactions is

voluntary, and the revised regulations

specifically provide companies an

electronic alternative to paper

documentation to give notice of intent

to preserve trust rights.

Accordingly, based on the

information in the above discussion,

AMS has determined that the provisions

of this rule would not have a significant

economic impact on a substantial

number of small entities.

Paperwork Reduction Act

In compliance with Office of

Management and Budget (OMB)

regulations (5 CFR part 1320) which

implement the Paperwork Reduction

Act of 1995 (Pub. L. 104–13), the

information collection and

recordkeeping requirements covered by

this rule were approved by OMB on

October 31, 1996, and expires on

October 31, 1999.

List of Subjects in 7 CFR Part 46

Agricultural commodities, Brokers,

Penalties, Reporting and record keeping

requirements.

For the reasons set forth in the

preamble, 7 CFR part 46 is amended as

follows:

PART 46—[AMENDED]

1. The authority citation for part 46

continues to read as follows:

Authority: Sec. 15, 46 Stat. 537; 7 U.S.C.

499o

2. In § 46.46, a new paragraph (a)(5)

is added to read as follows:

§ 46.46 Statutory trust.

* * * * *

(a) * * *

(5) ‘‘Ordinary and usual billing or

invoice statements’’ as used in section

5(c)(4) of the Act, and ‘‘invoice or other

billing statement’’ as used in

§ 46.46(f)(3), mean communications

customarily used between parties to a

transaction in perishable agricultural

commodities in whatever form,

documentary or electronic, for billing or

invoicing purposes.

Dated: November 7, 1997.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable

Programs.

[FR Doc. 97–29926 Filed 11–13–97; 8:45 am]

BILLING CODE 3410–02–P

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.

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.
61000 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations

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 twothirds 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
Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 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:
61002 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations

1Since the proposed rule was published, we have

amended our regulations for importing animals and

animal products to refer to regions, rather than

countries. See the paragraph headed

‘‘Miscellaneous,’’ elsewhere in this Supplementary

Information section.

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 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:

§ 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.

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

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

9 CFR Part 94

[Docket No. 96–066–2]

Importation of Sliced and PrePackaged Dry-Cured Pork Products

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Final rule.

SUMMARY: We are amending our

regulations to allow dry-cured pork

products that have been sliced and

packaged prior to shipment to the

United States to be imported into the

United States under specified

conditions. This action will relieve

some restrictions on the importation of

pork into the United States without

presenting a significant risk of

introducing any serious communicable

diseases of animals.

EFFECTIVE DATE: December 15, 1997.

FOR FURTHER INFORMATION CONTACT: Dr.

Julia Sturm, Supervisory Staff Officer,

Products Program, National Center for

Import and Export, VS, APHIS, Suite

3B66, 4700 River Road Unit 40,

Riverdale, MD 20737–1231, (301) 734–

3277; or E-mail: jsturm@.aphis.usda.gov.

SUPPLEMENTARY INFORMATION:

Background

The regulations in 9 CFR part 94

(referred to below as the regulations)

govern the importation into the United

States of specified animals and animal

products to prevent the introduction of

various animal diseases, including

rinderpest, foot-and-mouth disease,

bovine spongiform encephalopathy, hog

cholera, African swine fever, and swine

vesicular disease, into the United States.

These are dangerous and destructive

communicable diseases of ruminants

and swine.

Under the regulations, certain animal

products—whole hams, pork shoulders,

and pork loins—from regions where

foot-and-mouth disease, rinderpest,

African swine fever, hog cholera, or

swine vesicular disease exists may be

imported into the United States only

under certain conditions. To be eligible

for importation, these products must

have been dry-cured and otherwise

handled in accordance with procedures

specified in § 94.17 of the regulations.

However, the regulations have not

allowed these same products to be

eligible for importation if they have

been sliced and packaged prior to

shipment. We have prohibited the

importation of sliced and packaged drycured hams, pork shoulders, and pork

loins because of the difficulty in

verifying the origin of the meat and how

it has been processed. Without this

information, we cannot easily determine

whether the meat has been treated and

otherwise handled in a manner that

ensures it is free of disease agents.

On April 14, 1997, we published in

the Federal Register (62 FR 18055–

18059, Docket No. 96–066–1) a proposal

to allow presliced and prepackaged drycured pork to be imported into the

United States under certain conditions

from countries 1 where foot-and-mouth

disease, rinderpest, swine vesicular

disease, African swine fever, and hog

cholera exist. The proposed conditions

were designed to ensure that the origin

of the pork and the method of

processing could be verified.

We solicited comments concerning

our proposal for 60 days ending June 13,

1997. We received 13 comments by that

date. They were from importers, foreign

governments and meat processors, and

one veterinarian. The comments were

primarily positive. Several comments

suggested changes in the proposed

regulations. These suggestions are

discussed individually below.

Separation of Facilities

In our proposed rule, we required that

the slicing/packaging facility itself

would have to be in a separate building,

physically detached from any area

where pork or pork products are

handled for other purposes. This

requirement was designed to prevent

any possible contamination of the meat.

Several commenters objected to this

requirement as unnecessarily restrictive.

Commenters made various suggestions

as to how we could minimize

contamination without requiring a

separate building for the slicing/

packaging facility. Among the

suggestions were: require workers

moving from the pork processing facility

to the slicing/packaging facility to

change into either freshly laundered or

disposable clothing, including caps,

masks, gloves and footwear; require a

‘‘changing/scrub’’ room for employees;

and require ‘‘walls, doors, passageways,

etc.’’

After carefully considering these

comments, we have determined that our

proposed requirement that the slicing/

packaging facility be in a separate

building is overly restrictive. Having the