[Federal Register Volume 60, Number 54 (Tuesday, March 21, 1995)]
[Proposed Rules]
[Pages 14914-14918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6909]
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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. 60, No. 54 / Tuesday, March 21, 1995 /
Proposed Rules
[[Page 14914]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 927
[Docket Nos. AO-99-A-6; FV-92-065]
Winter Pears Grown in Oregon, Washington, and California;
Recommended Decision and Opportunity to File Written Exceptions to
Proposed Further Amendment of Marketing Agreement and Order No. 927
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule and opportunity to file exceptions.
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SUMMARY: This recommended decision invites written exceptions on
proposed amendments to the marketing agreement and order for winter
pears grown in the States of Oregon, Washington, and California. The
proposed amendments would redefine ``ship or handle'' to include
shipments of winter pears within the production area, update the
definition of ``export market'' to recognize that there are now 50
states in the United States, authorize the Winter Pear Control
Committee (WPCC) to accept voluntary contributions and how such funds
may be used, and revise the authority for exempting certain shipments
from regulation. These proposed amendments are designed to improve the
administration, operation and functioning of the winter pear marketing
order program.
DATES: Written exceptions must be filed by April 20, 1995.
ADDRESSES: Written exceptions should be filed with the Hearing Clerk,
U.S. Department of Agriculture, room 1079-S, Washington, DC 20250-9200,
Facsimile number (202) 720-9776. Four copies of all written exceptions
should be submitted and they should reference the docket numbers and
the date and page number of this issue of the Federal Register.
Exceptions will be made available for public inspection in the Office
of the Hearing Clerk during regular business hours.
FOR FURTHER INFORMATION CONTACT: Kenneth Johnson or Britthany Beadle,
Marketing Specialists, Marketing Order Administration Branch, Fruit and
Vegetable Division, AMS, USDA, Room 2523-S, Washington, D.C. 20250-
0200; telephone: (202) 720-5127; or Teresa Hutchinson, Northwest
Marketing Field Office, Marketing Order Administration Branch, Fruit
and Vegetable Division, AMS, USDA, 1220 S.W. Third Avenue, Room 369,
Portland, Oregon, 97204; telephone: (503) 326-2725.
SUPPLEMENTARY INFORMATION: Prior documents in this proceeding: Notice
of Hearing issued on November 16, 1992, and published in the November
20, 1992, issue of the Federal Register (57 FR 54728).
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.
The amendments proposed herein have been reviewed under Executive
Order 12778, 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 requesting 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 date of the entry of the ruling.
Preliminary Statement
Notice is hereby given of the filing with the Hearing Clerk of this
recommended decision with respect to the proposed further amendment of
Marketing Agreement and Order No. 927, regulating the handling of
winter pears grown in Oregon, Washington, and California, and the
opportunity to file written exceptions thereto. Copies of this decision
can be obtained from Kenneth G. Johnson, Britthany Beadle or Teresa
Hutchinson whose addresses are listed above.
This action is issued 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 the formulation of marketing
agreements and orders (7 CFR Part 900).
The proposed amendment of Marketing Agreement and Order No. 927 is
based on the record of a public hearing held in Portland, Oregon, on
December 2, 1992. Notice of this hearing was published in the Federal
Register on November 20, 1992. The notice of hearing contained several
proposals submitted by the WPCC, which locally administers the order.
The proposed amendments would: (1) Redefine ``ship or handle'' to
include shipments of winter pears within the production area; (2)
update the definition of ``export market'' to recognize that there are
now 50 states in the United States; (3) authorize the WPCC to accept
voluntary contributions and how such funds may be used; and (4) revise
the authority for exempting certain shipments from regulation.
The notice of hearing also included proposals by the Fruit and
Vegetable Division, Agricultural Marketing Service (AMS), U.S.
Department of Agriculture (Department), 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. The Department also proposed revising the language in
several sections of the order.
Interested persons had until January 15, 1993, to file proposed
findings and conclusions, and written arguments or briefs based on the
evidence received at the hearing. No such documents were received.
[[Page 14915]]
Small Business Considerations
In accordance with the provisions of the Regulatory Flexibility Act
(RFA), the Administrator of the AMS has determined that this action
would not have a significant economic impact on a substantial number of
small entities. 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.
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. 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 recordkeeping, that might result from this
proceeding.
During the 1991-92 crop year, 88 handlers were regulated under
Marketing Order No. 927. In addition, there were about 1,650 producers
of winter pears in the production area. 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.
All of the changes in the amendments are designed to enhance the
administration and functioning of the marketing agreement and order
which would benefit the industry. If implemented, these amendments
might impose some costs on affected handlers and producers. However,
the added burden on small entities, if present at all, would not be
significant because the benefits of the proposed amendments are
expected to outweigh the costs.
In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C.
35), any change in the reporting and recordkeeping provisions that may
result from the proposed amendments would be submitted to the Office of
Management and Budget (OMB). The provisions would not be effective
until receiving OMB approval.
Material Issues
The material issues of record addressed in this decision are as
follows: (1) Whether to redefine ``ship or handle'' to include
shipments of winter pears within the production area; (2) whether the
definition of ``export market'' should be updated to recognize that
there are now 50 states in the United States; (3) whether the WPCC
should be authorized to accept voluntary contributions and how such
funds may be used; and (4) whether to revise authority for exempting
certain shipments from regulation.
Findings and Conclusions
The findings and conclusions on the material issues, all of which
are based on evidence adduced at the hearing and the record thereof,
are:
(1) Section 927.8, Ship or Handle, of the winter pear marketing
order should be amended to cover shipments of winter pears within the
production area, as well as interstate shipments.
Record evidence indicates that the intent of the proposal is to
provide that shipments of winter pears within the production area be
regulated the same as shipments marketed outside the production area.
Currently, the order authorizes grade, size, and quality regulations
and inspection and reporting requirements for fresh winter pears.
While, no grade, quality or size requirements have been issued under
the order since the 1979 marketing season, handlers who ship winter
pears outside the production area are required to comply with reporting
and recordkeeping requirements and pay assessments on those shipments.
Handlers who ship winter pears within the production area are not
required to comply with such requirements. The WPCC has considered
reestablishing grade and size requirements for winter pear shipments in
order to ensure the acceptability of such shipments. The WPCC
recommended that winter pear shipments within the production area be
regulated in the same manner as interstate shipments in order to
improve the effectiveness of the marketing order. Regulation of winter
pears within the marketing area will help to enhance the orderly
marketing of winter pears. The record evidence supports this change in
the definition of the term ``ship or handle'' to make shipments of
winter pears within the production area subject to all order
requirements.
In 1985, marketing order No. 927 was amended to provide for
research and promotion activities, including paid advertising. Until
then, the Oregon, Washington, California Pear Bureau (Bureau)
represented the northwest winter pear industry in its market
development and promotion and advertising programs throughout world
markets. The Bureau's purpose was to conduct those activities necessary
to assure the continued success of the industry.
According to record evidence, the assessments to conduct these
activities and membership in the Bureau were voluntary. These voluntary
assessments were paid by handlers on winter pears marketed both within
and outside of the production area.
The WPCC has the responsibility for collecting mandatory
assessments on interstate winter pear shipments. The WPCC provides
funds for its research and promotion activities and is responsible for
oversight of such projects. Currently, the Bureau manages the WPCC's
research and promotion activities. There is a contractual agreement
between the WPCC and the Bureau for these purposes. The record
indicates that this arrangement has proven beneficial, and the WPCC
continues to utilize the Bureau which has over 60 years of experience
in trade relations to conduct its marketing, promotion and advertising
activities.
Other WPCC activities include collection of various statistical
information, and post- and pre-harvest research programs to improve
cultural practices. The statistical information collected is used by
the WPCC to target potential markets to increase sales of winter pears.
Research results to improve cultural and handling practices are
distributed throughout the winter pear industry. Handlers pay
assessments only on shipments of winter pears to destinations outside
the production area, since the order currently provides no authority
for assessments on shipments of winter pears within the production
area. Currently, handlers of winter pears shipped within the production
area may benefit from the WPCC's activities without absorbing any of
the costs to conduct these programs. Handlers making shipments of
winter pears within the production area are currently exempted from
paying assessments.
According to record testimony, it is appropriate that assessments
be paid on winter pear shipments within the production area to support
production and marketing research and promotion projects. Approximately
15 percent (347,647 cartons out of 2,267,582 cartons for 1991) of the
winter pears marketed within the production area are sold in the State
in which they are grown.
Record evidence indicates that many of the pears initially shipped
to intrastate destinations ultimately enter interstate commerce.
According to record testimony, an estimated 70 to 80
[[Page 14916]] percent of the pears sold at retail in Las Vegas,
Nevada, and Arizona are moved there from distributors in southern
California either by wholesalers or the retailer's own distribution
system. Similar estimates are made for pears sold at retail in the
Reno/Lake Tahoe area of central Nevada, with service from the Bay Area
and/or Sacramento. Hawaii is also serviced by wholesalers in the
California seaports. The WPCC believes and the evidence supports that
many of these shipments originate from sources in the production area.
Promotions paid for with mandatory assessments on interstate shipments
are conducted in all of these production areas.
At the hearing, witnesses for the WPCC offered a modification of
the proposal as it appeared in the hearing notice. These witnesses
testified that the term ``handle'' should not include the
transportation of winter pear shipments within the production area from
the orchard where grown to a packing facility located within the
production area for preparation for market. The intent of this proposal
is that winter pears transported within the production area for
purposes of preparation for market would not be subject to assessment
or any other order requirements since they would not yet have been
handled. All other winter pears placed in interstate commerce or
marketed within the production area would be subject to regulation,
unless otherwise exempt under other provisions of the order.
Record testimony also supported adding the definition of
``consign'' to the definition of ``ship or handle''. The record
indicates that ``consign'' is defined as an agreement between a buyer
and seller for the transport of product to be marketed with no previous
determination of the return of the product. It is the responsibility of
the buyer to market the product and return to the seller the proceeds.
This should be included as ``handling'' because the ``agent'' or
``handler'' who receives the commodity is engaged in the buying,
selling and distributing of the commodity for market. The record also
indicates that the words ``handle for shipment'' should be deleted from
the definition of the term ``ship or handle'' because they are
redundant and not necessary.
Section 927.10, Production area, should be changed from ``area'' to
``production area''. This is a conforming amendment to clarify those
areas that comprise the production area under the marketing order.
Section 927.41, Assessments, should be amended to remove any
reference to a specific State. Record testimony indicates that this is
a conforming amendment to provide the necessary language to comply with
the intent of the proposal to regulate winter pear shipments within and
outside the production area. This section should also be amended to
remove the words ``upon billing''. Record testimony indicates that
current procedures to collect assessments do not entail billing. The
WPCC does not bill handlers for assessments due. Rather, handlers pay
their assessments every two weeks when they submit handler statements
of winter pear shipments to the WPCC.
Section 927.52, Prerequisites to Control Committee recommendations,
should be amended to provide conforming language updating the marketing
order. Presently, the marketing order specifies a basis of one vote for
each 25,000 boxes (except 2,500 boxes for Forelle and Seckel varieties)
of the average quantity of such variety produced in the particular
district and shipped therefrom during the immediately preceding three
fiscal periods to destinations outside the State in which produced. As
such, only interstate shipments of winter pears are used as a criteria
to determine voting procedures. Record evidence supports the inclusion
of shipments within the production area in the tonnage vote during WPCC
meetings. This action is necessary to provide representation based on
all winter pears handled, consistent with order provisions. The
proposed amendment to the order has been modified for clarity.
(2) Section 927.12, Export Market, should be amended to update that
provision of the marketing order. The marketing order currently
provides that ``export market'' means any destination which is not
within the 48 states, or the District of Columbia, of the United
States. Record testimony indicates that this section of the marketing
order should be updated to reflect that the United States is made up of
50 states.
(3) Section 927.45, Contributions, should be added to the marketing
order to authorize the WPCC to receive voluntary contributions. Record
evidence indicates that marketing promotion and research projects for
winter pears should directly benefit growers of that commodity and
secondarily benefit other groups and businesses whose interests are
allied with the production and marketing of winter pears. These groups
frequently desire to make contributions or donations to help defray the
costs of such projects. Record testimony indicates that voluntary
contributions could include money, information or anything of value.
Such contributions should be received by the WPCC free from any
encumbrances by the donor and under the complete control of the WPCC.
The WPCC should not receive a voluntary contribution from any person if
that contribution could represent a conflict of interest. Handlers
under the order would be allowed to make voluntary contributions to the
WPCC.
Record testimony indicated that the provision to accept voluntary
contributions as currently provided in the notice of hearing is too
restrictive. According to the proposal included in the hearing notice,
the WPCC would be prohibited from accepting funds for any purposes
other than research and development. However, record testimony
indicates that contributions might be provided for activities other
than research and promotion projects including paid advertising. Record
testimony indicates that the WPCC should be authorized to receive
voluntary contributions for any purpose authorized under the order.
Witnesses testified at the hearing that a person making a voluntary
contribution to the WPCC should be able to specify its use for a
particular authorized activity. However, the WPCC should be free to
receive and use such contributions, subject to the provisions of the
order, without any encumbrances upon the donor. The acceptance of
voluntary contributions with encumbrances by the donor could, at a
minimum, give rise to the appearance of improprieties. Accordingly,
this recommendation is not included in the proposed amendment.
Section 927.47, Research and Development, should be changed to
include conforming language that provides for the acceptance and use of
voluntary contributions. The marketing order currently provides that
research and development projects shall be paid from funds collected
pursuant to Sec. 927.41. This proposed amendment would allow funds
collected from voluntary contributions pursuant to Sec. 927.45 to also
pay for such projects.
(4) Section 927.65, Exemption from regulation, should be amended to
include additional types of winter pear shipments that may be exempt
from regulation under the marketing order. Record testimony suggested
additional language should be added to the proposed order amendments to
provide exemptions to allow the WPCC, with the approval of the
Secretary, to establish regulations that exempt from any or all
requirements pursuant to this part quantities of pears or of types of
pear shipments that do not interfere with the objectives of the order.
These proposed [[Page 14917]] provisions would be in addition to the
proposed amendments in the notice of hearing. Record testimony
indicates that the overall intent of this amendatory action is to
enable the exemption of shipments that do not impact fresh commercial
shipments. Record testimony indicated further that Sec. 927.65,
``Exemptions from regulation'', would be reviewed by the WPCC annually,
and that the WPCC would have the flexibility of including and or
adjusting requirements, subject to the approval of the Secretary,
depending on the circumstances of any given year.
Rulings on Briefs of Interested Persons
The presiding officer at the hearing set January 15, 1993, as the
final date for filing briefs with respect to the evidence presented at
the hearing and the conclusions which should be drawn therefrom. No
briefs were received.
General Findings
(1) The findings hereinafter set forth are supplementary to the
previous findings and determinations which were made in connection with
the issuance of the marketing agreement and order and each previously
issued amendment thereto. Except insofar as such findings and
determinations may be in conflict with the findings and determinations
set forth herein, all of the said prior findings and determinations are
hereby ratified and affirmed;
(2) The marketing agreement and order, as amended, and 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;
(3) The marketing agreement and order, as amended, and as hereby
proposed to be further amended, regulate the handling of winter pears
grown in the production area in the same manner as, and are applicable
only to, persons in the respective classes of commercial and industrial
activity specified in the marketing agreement and order upon which a
hearing has been held;
(4) The marketing agreement and order, as amended, and as hereby
proposed to be further amended, are limited in their 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 subdivision of the production area would
not effectively carry out the declared policy of the Act; and
(5) All handling of winter pears grown in the production area as
defined in the marketing agreement and order, as amended, and as hereby
proposed to be further amended, is in the current of interstate or
foreign commerce or directly burdens, obstructs, or affects such
commerce.
Recommended Further Amendment of the Marketing Agreement and Order
The following amendment of the marketing agreement and order, both
as amended, is recommended as the detailed means by which the foregoing
conclusions may be carried out:
List of Subjects in 7 CFR Part 927
Marketing agreements, Pears, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, the following provisions
in Title 7, Part 927, are proposed to be amended as follows:
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. Section 927.8 is revised to read as follows:
Sec. 927.8 Ship or handle.
Ship or handle means to sell, deliver, consign or transport pears,
within the production area or between the production area and any point
outside thereof: Provided, That the term ``handle'' shall not include
the transportation of winter pear shipments within the production area
from the orchard where grown to a packing facility located within the
production area for preparation for market.
3. Section 927.10 is revised to read as follows:
Sec. 927.10 Production area.
Production area means and includes the States of Oregon,
Washington, and California.
4. Section 927.12 is revised to read as follows:
Sec. 927.12 Export market.
Export market means any destination which is not within the 50
states, or the District of Columbia, of the United States.
5. In Sec. 927.41, paragraph (a) is revised to read as follows:
Sec. 927.41 Assessments.
(a) Assessments will be levied only upon handlers who first handle
pears. Each handler shall pay assessments on all pears handled by such
handler as the pro rata share of the expenses which the Secretary finds
are reasonable and likely to be incurred by the Control Committee
during a fiscal period. The payment of assessments for the maintenance
and functioning of the Control Committee may be required under this
part throughout the period such assessments are payable irrespective of
whether particular provisions thereof are suspended or become
inoperative.
* * * * *
6. Section 927.45 is added to read as follows:
Sec. 927.45 Contributions.
The Control Committee may accept voluntary contributions but these
shall only be used to pay expenses incurred pursuant to Sec. 927.47.
Furthermore, such contributions shall be free from any encumbrances by
the donor and the Control Committee shall retain complete control of
their use.
7. Section 927.47 is revised to read as follows:
Sec. 927.47 Research and development.
The Control Committee, with the approval of the Secretary, may
establish or provide for the establishment of production research, or
marketing research and development projects designed to assist,
improve, or promote the marketing, distribution, and consumption of
pears. Such projects may provide for any form of marketing promotion,
including paid advertising. The expense of such projects shall be paid
from funds collected pursuant to Secs. 927.41 and 927.45. Expenditures
for a particular variety of pears shall approximate the amount of
assessments and voluntary contributions collected for that variety of
pears.
8. In Sec. 927.52, paragraph (b)(1) is revised to read as follows:
Sec. 927.52 Prerequisites to Control Committee recommendations.
* * * * *
(b) * * *
(1) The basis of one vote for each 25,000 boxes (except 2,500 boxes
for Forelle and Seckel varieties) of the average quantity of such
variety produced in the particular district and shipped therefrom
during the immediately preceding three fiscal periods; or
* * * * *
9. In Sec. 927.65, paragraph (b) is revised to read as follows:
Sec. 927.65 Exemption from regulation.
* * * * *
(b) The Control Committee may prescribe rules and regulations, to
become effective upon the approval of the Secretary, whereby quantities
of pears or types of pear shipments may be [[Page 14918]] exempted from
any or all provisions of this subpart.
* * * * *
Dated: March 15, 1995.
Lon Hatamiya,
Administrator.
[FR Doc. 95-6909 Filed 3-20-95; 8:45 am]
BILLING CODE 3410-02-P