[Federal Register Volume 60, Number 63 (Monday, April 3, 1995)]
[Rules and Regulations]
[Pages 16768-16770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8100]



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DEPARTMENT OF AGRICULTURE
7 CFR Part 982

[Docket No. FV94-982-3FIR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (Department) is adopting as a 
final rule, without change, the provisions of an interim final rule 
which established 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 recommended by 
the Filbert/Hazelnut Marketing Board (Board), which is the agency 
responsible for local administration of the order.

EFFECTIVE DATE: May 3, 1995.

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 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, hereinafter referred to as the ``order.'' 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 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 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 
[[Page 16769]] than $5,000,000. The majority of producers and handlers 
of filberts/hazelnuts may be classified as small entities.
    The Board's recommendation and this final rule are based on 
requirements specified in the order. The interim final rule was issued 
on January 24, 1995, and published in the Federal Register (60 FR 5561, 
January 30, 1995), with an effective date of January 30, 1995. That 
rule established 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 finalization of interim 
and final free and restricted percentages will continue to benefit the 
industry by promoting stronger marketing conditions and stabilizing 
prices and supplies, thus improving grower returns. That rule provided 
a 30-day comment period which ended March 1, 1995. No comments were 
received.
    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 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 made 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 released 3,775 tons to the 
domestic inshell market from the 1994 supply subject to regulation. The 
final marketing percentages released an additional 626 tons from the 
1994 crop for domestic use. Thus, a total of 4,401 tons of inshell 
filberts/hazelnuts was available from the 1994 supply subject to 
regulation for domestic use when the final percentages were 
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 
[[Page 16770]]
                                                                        
    (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


------------------------------------------------------------------------
                                                    Free      Restricted
------------------------------------------------------------------------
Percentages:                                                            
    (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 considered the Department's 1982 ``Guidelines for 
Fruit, Vegetable, and Specialty Crop Marketing Orders'' (Guidelines) 
when making its computations in the marketing policy. The 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 these considerations, the Administrator of the AMS has 
determined that this action will not have a significant economic impact 
on a substantial number of small entities.
    After consideration of all relevant material presented, the 
information and recommendations submitted by the Committee, and other 
information, it is found that finalizing the interim final rule, 
without change, as published in the Federal Register (60 FR 5561, 
January 30, 1995), will tend to effectuate the declared policy of the 
Act.

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

    Accordingly, the interim final rule amending 7 CFR part 982, which 
was published at 60 FR 5561 on January 30, 1995, is adopted as a final 
rule without change.

    Dated: March 28, 1995.
Sharon Bomer Lauritsen,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 95-8100 Filed 3-31-95; 8:45 am]
BILLING CODE 3410-02-W