[Federal Register Volume 59, Number 38 (Friday, February 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4234]


[[Page Unknown]]

[Federal Register: February 25, 1994]


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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service

7 CFR Part 982

[Docket No. FV93-982-2IFR]

 

Filberts/Hazelnuts Grown in Oregon and Washington; Establishment 
of Interim Final and Final Free and Restricted Percentages for the 
1993-94 Marketing Year

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule establishes interim final and final free and 
restricted percentages for domestic inshell filberts/hazelnuts for the 
1993-94 marketing year under the Federal marketing order for filberts/
hazelnuts grown in Oregon and Washington. The percentages allocate the 
amounts of domestically produced filberts/hazelnuts which may be 
marketed in domestic, export and other outlets. The percentages are 
intended to stabilize the supply of domestic inshell filberts/hazelnuts 
in order to meet the limited domestic demand for such filberts/
hazelnuts and provide reasonable returns to producers. This rule was 
recommended by the Filbert/Hazelnut Marketing Board (Board), which is 
the agency responsible for local administration of the order.

DATES: Effective on February 25, 1994. Comments which are received by 
March 28, 1994 will be considered prior to any finalization of the 
interim final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule to: Docket Clerk, Fruit and Vegetable Division, 
AMS, USDA, P.O. Box 96456, room 2525-S, Washington, DC 20090-6456. 
Three copies of all written material shall be submitted, and they will 
be made available for public inspection at the office of the Docket 
Clerk during regular business hours. All comments should reference the 
docket number, date and page number of this issue of the Federal 
Register.

FOR FURTHER INFORMATION CONTACT: Teresa Hutchinson, Marketing 
Specialist, Northwest Marketing Field Office, Fruit and Vegetable 
Division, AMS, USDA, 1220 SW Third Ave., room 369, Portland, OR 97204; 
telephone (503) 326-2724 or Kathleen M. Finn, Marketing Specialist, 
Marketing Order Administration Branch, Fruit and Vegetable Division, 
AMS, USDA, room 2524-S, P.O. Box 96456, Washington, DC 20090-6456; 
telephone: (202) 720-1509.

SUPPLEMENTARY INFORMATION: This interim final rule is issued under 
Marketing Agreement and Order No. 982 (7 CFR part 982), both as 
amended, regulating the handling of filberts/hazelnuts grown in Oregon 
and Washington. This order is effective under the Agricultural 
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), 
hereinafter referred to as the Act.
    The Department of Agriculture (Department) is issuing this rule in 
conformance with Executive Order 12866.
    This interim final rule has been reviewed under Executive Order 
12778, Civil Justice Reform. It is intended that this action apply to 
all merchantable filberts/hazelnuts handled during the 1993-94 
marketing year. The marketing year covers the period July 1, 1993 
through June 30, 1994. This rule will not preempt any state or local 
laws, regulations, or policies, unless they present an irreconcilable 
conflict with this action.
    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 in equity to review the 
Secretary's ruling on the petition, provided a bill in equity is filed 
not later than 20 days after the date of the entry of the ruling.
    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA), the Administrator of 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.
    There are approximately 1,000 producers of filberts/hazelnuts in 
the production area and approximately 25 handlers subject to regulation 
under the marketing order. Small agricultural producers have been 
defined by the Small Business Administration (13 CFR 121.601) as those 
having annual receipts of less than $500,000, and small agricultural 
service firms are defined as those whose annual receipts are less than 
$3,500,000. The majority of handlers and producers of filberts/
hazelnuts may be classified as small entities.
    The Board's recommendation and this interim final rule are based on 
requirements specified in the order. This rule will establish the 
amount of inshell filberts/hazelnuts that can be marketed in domestic 
markets. The domestic outlets for this commodity are characterized by 
limited demand, and the establishment of interim final and final free 
and restricted percentages will benefit the industry by promoting 
stronger marketing conditions and stabilizing prices and supplies, thus 
improving grower returns.
    The Board is required to meet prior to September 20 of each 
marketing year to compute an inshell trade demand and preliminary free 
and restricted percentages, if the use of volume regulation is 
recommended during the season. The order prescribes formulas for 
computing the inshell trade demand, as well as preliminary, interim 
final, and final percentages. The inshell trade demand establishes the 
amount of inshell filberts/hazelnuts the market can utilize throughout 
the season, and the percentages release the volume of filberts/
hazelnuts necessary to meet the inshell trade demand. The preliminary 
percentages provide for the release of 80 percent of the inshell trade 
demand. The interim final percentages release 100 percent of the 
inshell trade demand. The inshell trade demand equals the average of 
the preceding three ``normal'' years' trade acquisitions of inshell 
filberts/hazelnuts, rounded to the nearest whole number. The Board may 
increase such estimate by no more than 25 percent, if market conditions 
warrant an increase. The final free and restricted percentages release 
an additional 15 percent of the average of the preceding three years' 
trade acquisitions of inshell filberts/hazelnuts for desirable 
carryout.
    The preliminary free and restricted percentages make available 
portions of the filbert/hazelnut crop which may be marketed in domestic 
inshell markets (free) and exported, shelled, or otherwise disposed of 
(restricted) early in the 1993-94 season. The preliminary free 
percentage is expressed as a percentage of the total supply subject to 
regulation and is based on preliminary crop estimates. The majority of 
domestic inshell filberts/hazelnuts are marketed in October, November, 
and December. By November, the marketing season is well under way.
    At its August 26, 1993, meeting, the Board announced preliminary 
free and restricted percentages of 7 percent and 93 percent, 
respectively, to release 80 percent of the inshell trade demand. The 
purpose of releasing only 80 percent of the inshell trade demand under 
the preliminary percentage is to guard against underestimates of crop 
size. The preliminary restricted percentage is 100 percent minus the 
free percentage.
    On or before November 15, the Board must meet again to recommend 
interim final percentages and final percentages. The Board uses current 
crop estimates to calculate the interim final and final percentages. 
The interim final percentages are calculated in the same way as the 
preliminary percentages and release 100 percent of the inshell trade 
demand previously computed by the Board for the marketing year. Final 
free and restricted percentages release an additional 15 percent of the 
average of the preceding three years' trade acquisitions to ensure an 
adequate carryover into the following season. The final free and 
restricted percentages must be effective at least 30 days prior to the 
end of the marketing year (July 1 through June 30), or earlier, if 
recommended by the Board and approved by the Secretary. In addition, 
revisions in the marketing policy can be made until February 15 of each 
marketing year.
    In accordance with order provisions, the Board met on November 10, 
1993, reviewed and approved an amended marketing policy and recommended 
the establishment of interim final and final free and restricted 
percentages. Interim final percentages were recommended at 12 percent 
free and 88 percent restricted, and final free and restricted 
percentages were recommended at 13 percent and 87 percent. The interim 
final percentages make an additional 807 tons of product available for 
the domestic inshell market. The interim final marketing percentages 
are based on the industry's final production estimates and release 
3,903 tons to the domestic inshell market from the 1993 crop. The final 
marketing percentages release an additional 605 tons from the 1993 crop 
for domestic use. Thus, a total of 4,508 tons of product will be 
available from the 1993 crop for domestic use when the final 
percentages are established. The Oregon Agricultural Statistics Service 
provided an early estimate of 39,000 tons total production for the 
Oregon and Washington area. However, a handler survey conducted by the 
Board provided a more current estimate of 37,700 tons total production 
for the area. Therefore, the Board voted to unanimously accept the more 
current estimate of 37,700 tons.
    Although the crop is large, the Board determined that the inshell 
domestic market conditions will allow more product without depressing 
the market and recommended immediate release of the additional 15 
percent (the final percentages). The Board believes that the immediate 
release of the final percentages will benefit the industry with 
increased returns to growers and more product available for consumers.
    The marketing policy of the marketing order states that the final 
percentages must be effective at least 30 days prior to the end of the 
marketing year, or earlier. The Board has recommended immediate release 
of the final percentages, in accordance with the authority of the 
marketing policy. The marketing policy also requires that procedurally, 
the Board recommend interim final and final percentages. Therefore, the 
interim final percentages have been established even though they will 
not be utilized this marketing season.
    The marketing percentages are based on the Board's production 
estimates and the following supply and demand information for the 1993-
94 marketing year:

------------------------------------------------------------------------
                                                                   Tons 
------------------------------------------------------------------------
                         Inshell Supply                                 
                                                                        
(1) Total production (Filbert/Hazelnut Marketing Board handler          
 survey estimate)..............................................   37,700
(2) Less substandard, farm use (disappearance).................    2,700
(3) Merchantable production (the Board's adjusted crop                  
 estimate).....................................................   35,000
(4) Plus undeclared carryin as of July 1, 1993, subject to              
 regulation....................................................      338
(5) Supply subject to regulation (Item 3 plus Item 4)..........         
                                                                  35,338
                      Inshell Trade Demand                              
                                                                        
(6) Average trade acquisitions of inshell filberts for three            
 prior years...................................................    4,033
(7) Increase to encourage increased sales (20 percent).........      807
(8) Less declared carryin as of July 1, 1993, not subject to            
 regulation....................................................      937
(9) Adjusted Inshell Trade Demand..............................    3,903
(10) 15 percent of the average trade acquisitions of inshell            
 filberts for three prior years (Item 6).......................      605
(11) Adjusted Inshell Trade Demand plus 15 percent (Item 9 plus         
 Item 10)......................................................    4,508
------------------------------------------------------------------------


                                                                        
                    Percentages                       Free    Restricted
(12) Interim final percentages (Item 9 divided by                       
 Item 5)  x  100...................................      11           89
(13) Final percentages (Item 11 divided by Item 5)                      
 x  100............................................      13           87

    In addition to complying with the provisions of the marketing 
order, the Board also considers the Department's 1982 ``Guidelines for 
Fruit, Vegetable, and Specialty Crop Marketing Orders'' (Guidelines) 
when making its computations in the marketing policy. This volume 
control regulation provides a method to collectively limit the supply 
of inshell filberts/hazelnuts available for sale in domestic markets. 
The Guidelines provide that this primary market have available a 
quantity equal to 110 percent of recent years' sales in those outlets 
before secondary market allocations are approved. This provides for 
plentiful supplies for consumers and for market expansion while 
retaining the mechanism for dealing with oversupply situations. An 
additional increase of 20 percent (807 tons) has been included in the 
calculations used in determining the inshell trade demand. The 
established final percentages, will make available 4,508 tons from the 
1993 crop plus 937 tons of declared carryin which is 135 percent of 
prior years' sales, thus exceeding the goal of the Guidelines.
    Based on the above, the Administrator of the AMS has determined 
that this interim final rule will not have a significant economic 
impact on a substantial number of small entities. Written comments, 
timely received in response to this action, will be considered before 
finalization of this rule.
    After consideration of all available information, it is found that 
the establishment of interim final and final free and restricted 
percentages, as hereinafter set forth, will tend to effectuate the 
declared policy of the Act.
    Pursuant to 5 U.S.C. 553, it is also found and determined, upon 
good cause, that it is impracticable, unnecessary, and contrary to the 
public interest to give preliminary notice prior to putting this rule 
into effect, and that good cause exists for not postponing the 
effective date of this action until 30 days after publication in the 
Federal Register because: (1) The 1993-94 marketing year began July 1, 
1993, and the percentages established herein apply to all merchantable 
filberts/hazelnuts handled from the beginning of the crop year; (2) 
handlers are aware of this action, which was recommended at an open 
Board meeting, and need no additional time to comply with these 
percentages which release more filberts/hazelnuts than the preliminary 
percentages; and (3) interested persons are provided a 30-day comment 
period in which to respond. All comments timely received will be 
considered prior to finalization of this action.

List of Subjects in 7 CFR Part 982

    Filberts, Hazelnuts, Marketing agreements, Nuts, Reporting and 
recordkeeping requirements.

    For the reasons set forth in the preamble, 7 CFR part 982 is 
amended as follows:

PART 982--FILBERTS/HAZELNUTS GROWN IN OREGON AND WASHINGTON

    1. The authority citation for 7 CFR part 982 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.

    2. Section 982.242 is added to read as follows:

(Note: The following section will not be published in the Code of 
Federal Regulations.)


Section 982.242  Free and restricted percentages--1993-94 marketing 
year.

    (a) The interim final free and restricted percentages for 
merchantable filberts/hazelnuts for the 1993-94 marketing year shall be 
11 and 89 percent, respectively.
    (b) The final free and restricted percentages for merchantable 
filberts/hazelnuts for the 1993-94 marketing year shall be 13 and 87 
percent, respectively.

    Dated: February 18, 1994.
Robert C. Keeney,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 94-4234 Filed 2-24-94; 8:45 am]
BILLING CODE 3410-02-P