[Federal Register Volume 60, Number 19 (Monday, January 30, 1995)]
[Rules and Regulations]
[Pages 5561-5564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2214]



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DEPARTMENT OF AGRICULTURE
7 CFR Part 982

[Docket No. FV94-982-3IFR]


Filberts/Hazelnuts Grown in Oregon and Washington; Establishment 
of Interim and Final Free and Retricted Percentages for the 1994-95 
Marketing Year

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule establishes interim and final free and 
restricted percentages for domestic inshell filberts/hazelnuts for the 
1994-95 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 
[[Page 5562]] recommended by the Filbert/Hazelnut Marketing Board 
(Board), which is the agency responsible for local administration of 
the order.

DATES: Effective July 1, 1994 through June 30, 1995. Comments which are 
received by March 1, 1995 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, Room 2525-S, P.O. Box 96456, 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 L. Hutchinson, Marketing 
Specialist, Northwest Marketing Field Office, Fruit and Vegetable 
Division, Agricultural Marketing Service, USDA, 1220 SW Third Ave., 
Room 369, Portland, OR 97204; telephone (503) 326-2725 or Mark A. 
Slupek, Marketing Specialist, Marketing Order Administration Branch, 
Fruit and Vegetable Division, AMS, USDA, Room 2536-S, P.O. Box 96456, 
Washington, DC 20090-6456; telephone: (202) 205-2830.

SUPPLEMENTARY INFORMATION: This 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 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 1994-95 marketing 
year. 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 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 requirements set forth in the Regulatory Flexibility 
Act (RFA), the Administrator of the Agricultural Marketing Service 
(AMS) has considered the economic impact of this rule 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 
$5,000,000. 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 establishes the amount 
of inshell filberts/hazelnuts that may be marketed in domestic markets. 
The domestic outlets for this commodity are characterized by limited 
demand, and the establishment of interim 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 handlers may ship to the 
domestic market 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 figure by no more 
than 25 percent, if market conditions warrant such 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 1994-95 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 25, 1994, meeting, the Board computed and announced 
preliminary free and restricted percentages of 16 percent and 84 
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 was to guard against 
underestimates of crop size. The preliminary free percentage released 
3,020 tons of filberts/hazelnuts from the 1994 crop for domestic 
inshell use. 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 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 [[Page 5563]] the marketing 
year. Final free and restricted percentages release an additional 15 
percent of the average of the preceding three years' trade acquisitions 
to provide 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. However, the inshell trade demand can only 
be revised upward.
    In accordance with order provisions, the Board met on November 8, 
1994, 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 19 percent 
free and 81 percent restricted, and final free and restricted 
percentages were recommended at 23 percent and 77 percent, 
respectively. The interim final percentages make an additional 208 tons 
of inshell filberts/hazelnuts available for the domestic inshell 
market. The interim final marketing percentages are based on the 
industry's final production estimates and release 3,775 tons to the 
domestic inshell market from the 1994 supply subject to regulation. The 
final marketing percentages release an additional 626 tons from the 
1994 crop for domestic use. Thus, a total of 4,401 tons of inshell 
filberts/hazelnuts will be available from the 1994 supply subject to 
regulation for domestic use when the final percentages are established. 
The Oregon Agricultural Statistics Service (OASS) provided an early 
estimate of 19,000 tons total filbert/hazelnut production for the 
Oregon and Washington area. The Board unanimously voted to accept the 
OASS estimate of 19,000 tons.
    The Board determined that the inshell domestic market conditions 
would allow more supply without depressing the market and recommended 
immediate release of the additional 15 percent (the final percentages). 
The Board believed that the immediate release of filberts/hazelnuts by 
the final percentages would benefit the industry with increased returns 
to growers and more inshell filberts/hazelnuts available for consumers.
    The marketing order also requires that, procedurally, the Board 
recommend interim final and final percentages. Therefore, the interim 
final percentages were recommended 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 1994-
95 marketing year:

                                                                        
                                                                 Tons   
                       Inshell Supply                                   
                                                                        
(1) Total production (OASS estimate).......................       19,000
(2) Less substandard, farm use (disappearance).............        1,083
(3) Merchantable production (the Board's adjusted crop                  
 estimate).................................................       17,917
(4) Plus undeclared carryin as of July 1, 1994, subject to              
 regulation................................................        1,527
(5) Supply subject to regulation (Item 3 plus Item 4)......       19,444
                                                                        
                    Inshell Trade Demand                                
                                                                        
(6) Average trade acquisitions of inshell filberts/                     
 hazelnuts for three prior years...........................        4,170
(7) Increase to encourage increased sales (5 percent of                 
 Item 6)...................................................          208
(8) Less declared carryin as of July 1, 1994, not subject               
 to regulation.............................................          603
(9) Adjusted Inshell Trade Demand..........................        3,775
(10) 15 percent of the average trade acquisitions of                    
 inshell filberts/hazelnuts for three prior years (Item 6).          626
(11) Adjusted Inshell Trade Demand plus 15 percent for                  
 carryout (Item 9 plus Item 10)............................        4,401


------------------------------------------------------------------------
                  Percentages                       Free      Restricted
------------------------------------------------------------------------
(12) Interim final percentages (Item 9 divided                          
 by Item 5) x 100.............................           19           81
(13) Final percentages (Item 11 divided by                              
 Item 5) x 100................................           23           77
------------------------------------------------------------------------

    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 the domestic inshell market have available 
a quantity equal to 110 percent of prior years' shipments 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. At its 
August 25, 1994, meeting, the Board recommended that an increase of 5 
percent (208 tons) for market expansion be included in the inshell 
trade demand. The established final percentages, which release 100 
percent of the inshell trade demand, will make available 4,401 tons 
from the 1994 crop plus 603 tons of declared carryin which is 120 
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 1994-95 marketing year began July 1, 
1994, 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 rule, [[Page 5564]] which was recommended at 
an open Board meeting, and need no additional time to comply with this 
rule; 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 982.243 is added to read as follows:

    Note: This section will not be published in the annual Code of 
Federal Regulations.


Sec. 982.243  Free and restricted percentages--1994-95 marketing year.

    (a) The interim final free and restricted percentages for 
merchantable filberts/hazelnuts for the 1994-95 marketing year shall be 
19 and 81 percent, respectively.
    (b) The final free and restricted percentages for merchantable 
filberts/hazelnuts for the 1994-95 marketing year shall be 23 and 77 
percent, respectively.

    Dated: January 24, 1995.
Sharon Bomer Lauritsen,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 95-2214 Filed 1-27-95; 8:45 am]
BILLING CODE 3410-02-P