[Federal Register Volume 67, Number 111 (Monday, June 10, 2002)]
[Proposed Rules]
[Pages 39634-39637]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-14404]


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 Proposed Rules
                                                 Federal Register
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 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. 67, No. 111 / Monday, June 10, 2002 / 
Proposed Rules  

[[Page 39634]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Docket No. FV00-927-3]


Winter Pears Grown in Oregon and Washington; Secretary's Decision 
and Referendum Order on Proposed Amendment of Marketing Agreement and 
Order No. 927

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule and referendum order.

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SUMMARY: This decision proposes amendments to the marketing agreement 
and order for winter pears grown in Oregon and Washington (order), and 
provides growers with the opportunity to vote in a referendum to 
determine if they favor the changes. The amendments are based on those 
proposed by the Winter Pear Control Committee (Committee), which is 
responsible for local administration of the order. The amendments 
include: authorizing the Committee to recommend maturity regulations; 
authorizing the Committee to recommend container or marking 
requirements; and changing provisions related to alternate Committee 
members serving for absent members at Committee meetings. The proposed 
amendments are intended to improve the operation and functioning of the 
winter pear marketing order program.

DATES: The referendum will be conducted from July 17 to August 2, 2002. 
The representative period for the purpose of the referendum is July 1, 
2001, through June 30, 2002.

FOR FURTHER INFORMATION CONTACT: Anne M. Dec, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 
Independence Avenue, Stop 0237, room 2522-S, Washington, DC 20250-0237; 
telephone: (202) 720-2491, or Fax: (202) 720-8938. Small businesses may 
request information on compliance with this regulation by contacting 
Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable 
Programs, AMS, USDA, 1400 Independence Avenue, Stop 0237, room 2525-S, 
Washington, D.C. 20250-0237; telephone (202) 720-2491; Fax (202) 720-
8938, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: Prior documents in this proceeding: Notice 
of Hearing issued on November 2, 2000, and published in the November 8, 
2000, issue of the Federal Register (65 FR 66935); Recommended Decision 
and Opportunity to File Written Exceptions issued on March 27, 2002, 
and published in the April 3, 2002, issue of the Federal Register (67 
FR 15747).
    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.

Preliminary Statement

    The proposed amendments were formulated based on the record of a 
public hearing held in Portland, Oregon, on November 29, 2000. Notice 
of this hearing was published in the Federal Register on November 8, 
2000. The hearing was held to consider the proposed amendment of 
Marketing Agreement and Order No. 927, regulating the handling of 
winter pears grown in Oregon and Washington, hereinafter referred to 
collectively as the ``order.'' 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 the 
formulation of marketing agreements and orders (7 CFR Part 900). The 
notice of hearing contained several proposals submitted by the 
Committee, and one proposed by the Agricultural Marketing Service 
(AMS).
    The Committee's proposed amendments included: authorizing the 
Committee to recommend maturity regulations; authorizing the Committee 
to recommend container and marking requirements; and changing 
provisions related to alternate Committee members serving for absent 
members at Committee meetings.
    The Fruit and Vegetable Programs of AMS proposed to allow such 
changes as may be necessary to the order, if any of the proposed 
changes are adopted, so that all of the order's provisions conform with 
the effectuated amendments.
    Upon the basis of evidence introduced at the hearing and the record 
thereof, the Administrator of AMS on March 27, 2002, filed with the 
Hearing Clerk, U.S. Department of Agriculture, a Recommended Decision 
and Opportunity to File Written Exceptions thereto by May 3, 2002. No 
exceptions were filed.

Small Business Considerations

    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA), 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 so that small businesses will not be 
unduly or disproportionately burdened. Marketing orders issued pursuant 
to the Act and amendments thereto are unique in that they are normally 
brought about through group action of essentially small entities acting 
on their own behalf. Thus, both the RFA and the Act are compatible with 
respect to small entities.
    According to the Small Business Administration (13 CFR 121.201), 
small handlers are those having annual receipts of less than $5,000,000 
and small agricultural producers are defined as those with annual 
receipts of less than $750,000. Based on testimony presented at the 
hearing, a majority of the winter pear producers are considered small 
under the SBA definition. Of the 1,800 winter pear growers, 80 to 85 
percent are estimated to have sales equal to or less than $750,000. 
There are 90 handlers operating in the production area. The majority of 
these handlers fit the SBA definition of a small handler. Thus, this 
action will apply primarily to small entities.
    This decision proposes making the following amendments to the 
winter pear marketing order: (1) To amend Sec. 927.51(a)(1) of the 
order to specifically authorize the establishment of maturity 
regulations; (2) To amend Sec. 927.51 of the order to authorize the 
establishment of container requirements which would

[[Page 39635]]

encompass capacity, weight, dimensions, and packing of the container, 
or containers, which may be used in packaging or handling of pears; and 
(3) To amend Sec. 927.28 of the order to authorize additional 
alternates to serve for a Committee member in the event that both that 
member and that member's alternates are unable to attend a Committee 
meeting.
    These actions are designed to enhance the quality of winter pears 
at consumer outlets through the regulation of maturity regulations, to 
create more orderly marketing conditions for winter pears through the 
implementation of container uniformity, to improve grower returns 
through these combined actions, and to ensure grower and handler 
representation at all Committee meetings.
    Members of the Winter Pear Control Committee attending the hearing 
testified that the proposal to grant authority to establish maturity 
regulations has been widely discussed within the grower community, an 
estimated 80 to 85 percent of which qualify as small producers. 
Moreover, among the witnesses testifying, it was often stated that 
implementing maturity requirements would equally benefit small and 
large producers by standardizing industry requirements and enhancing 
overall product quality in the market.
    Small handlers from both Oregon and Washington were present and 
participated in the hearing, and indicated their support for this 
proposal. When asked if such regulations would increase handler costs, 
one small handler responded that while some additional inspection costs 
would be incurred, those costs are expected to be offset with the 
increase in consumption. Ultimately, witnesses testifying at the 
hearing indicated that net returns to both handlers and producers would 
increase.
    Testimony also indicated that the proposal to grant authority to 
fix the size, capacity, weight, dimensions, markings, or pack of the 
container, or containers, used in the packaging or handling of winter 
pears has been widely discussed within the winter pear industry. The 
proposed changes also include definitions of ``pack'' and ``container'' 
that are added based upon testimony at the hearing. Among the witnesses 
testifying, it was widely stated that implementing this authority would 
equally benefit both small and large handlers and growers. By 
standardizing container and packing requirements, handling costs would 
decrease through reduced inventories and more efficient packing 
procedures. Uniformity in the market would also facilitate standardized 
transactions by ensuring more equitable cost per unit comparisons and 
producer returns on product.
    Small handlers testifying at the hearing indicated their support 
for this proposal. When asked if such regulations would increase 
handler costs, one small handler explained that the costs of new 
containers are likely to be offset by gains in packing efficiency and a 
more transparent cost per unit comparisons in handler to retailer 
transactions. Small producers testifying to this issue realized that 
increased costs in packing material would more than likely be passed 
from the handler to the grower, but the net gain from container 
standardization will ultimately benefit the industry as a whole, 
including the small producer. It was stated that by removing confusion 
related to container size in the marketplace, growers should get a 
fairer return on their product.
    In the case of districts having only two Committee members, a 
temporary alternate will be selected by the absent Committee member 
from the collective pool of alternates from all districts and will 
represent the same group (grower or handler). The amendment proposed in 
this decision represents a modification to the Committee's proposal in 
order to better effectuate its terms. This method of selecting a 
temporary alternate would ensure representation of all growers and 
handlers (both large and small) at Committee meetings while having 
little or no increase in Committee administrative costs. Moreover, 
testimony demonstrated that the authority to temporarily assign 
alternates would improve representation of the small producers and 
handlers.
    The collection of information under the marketing order would not 
be affected by these amendments to the marketing order. Current 
information collection requirements for Part 927 are approved by OMB 
under OMB number 0581-0089.
    As with all Federal marketing order programs, reports and forms are 
periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap or conflict with this proposed rule. All of these amendments 
are designed to enhance the administration and functioning of the 
marketing order to the benefit of the industry.
    Committee meetings held to discuss these proposals, as well as the 
hearing, were widely publicized throughout the Oregon and Washington 
winter pear production area. All interested persons were invited to 
attend the meetings and the hearing, and participate in Committee 
deliberations on all issues. All Committee meetings and the hearing 
were public forums, and all entities, both large and small, were able 
to express views on these issues.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at the 
following Web site: http://www.ams.usda.gov/fv/moab.html. Any questions 
about the compliance guide should be sent to Jay Guerber at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.

Civil Justice Reform

    The amendments proposed herein have been reviewed under Executive 
Order 12988, Civil Justice Reform. They are not intended to have 
retroactive effect. If adopted, the proposed amendments will 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 USDA 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, USDA 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 USDA's ruling on the petition, 
provided an action is filed not later than 20 days after date of the 
entry of the ruling.

Findings and Conclusions

    The findings and conclusions, rulings, and general findings and 
determinations included in the Recommended Decision set forth in the 
April 3, 2002, issue of the Federal Register are hereby approved and 
adopted.

Marketing Agreement and Order

    Annexed hereto and made a part hereof is the document entitled 
``Order Amending the Order Regulating the Handling of Winter Pears 
Grown in Oregon and Washington.'' This document has been decided upon 
as the detailed and appropriate means of

[[Page 39636]]

effectuating the foregoing findings and conclusions.
    It is hereby ordered, That this entire decision be published in the 
Federal Register.

Referendum Order

    It is hereby directed that a referendum be conducted in accordance 
with the procedure for the conduct of referenda (7 CFR part 900.400 et 
seq.) to determine whether the annexed order amending the order 
regulating the handling of winter pears grown in Oregon and Washington 
is approved or favored by growers, as defined under the terms of the 
order, who during the representative period were engaged in the 
production of winter pears in the production area.
    The representative period for the conduct of such referendum is 
hereby determined to be July 1, 2001, through June 30, 2002.
    The agent of the Secretary to conduct such referendum is hereby 
designated to be Gary Olson, Northwest Marketing Field Office, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, 1220 S.W. Third Avenue, room 369, Portland, Oregon 97204; 
telephone (503) 326-2724.

List of Subjects in 7 CFR Part 927

    Marketing agreements, Pears, Reporting and recordkeeping 
requirements.

    Dated: June 4, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.

Order Amending the Order Regulating the Handling of Winter Pears Grown 
in Oregon and Washington\1\
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    \1\ This order shall not become effective unless and until the 
requirements of Sec. 900.14 of the rules of practice and procedure 
governing proceedings to formulate marketing agreements and 
marketing orders have been met.
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Findings and Determinations

    The findings and determinations hereinafter set forth are 
supplementary and in addition to the findings and determinations which 
were previously made in connection with the issuance of the marketing 
agreement and order; and all 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 the applicable 
rules of practice and procedure effective thereunder (7 CFR part 900), 
a public hearing was held upon the proposed amendments to the Marketing 
Agreement and Order No. 927 (7 CFR part 927), regulating the handling 
of winter pears grown in Oregon and Washington. Upon the basis of the 
evidence introduced at such hearing and the record thereof, it is found 
that:
    (1) 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;
    (2) 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 
hearings have been held;
    (3) 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 subdivisions of the production area would 
not effectively carry out the declared policy of the Act;
    (4) The marketing agreement and order, as amended, and as hereby 
proposed to be further amended, prescribe, 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 cherries grown in the 
production area; and
    (5) All handling of winter pears grown in the production area as 
defined in the marketing agreement and order, is in the current of 
interstate or foreign commerce or directly burdens, obstructs, or 
affects such commerce.

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 proposed to be amended as 
follows:
    The provisions of the proposed marketing agreement and order 
amending the order contained in the Recommended Decision issued by the 
Administrator on March 27, 2002, and published in the Federal Register 
on April 3, 2002, will be and are the terms and provisions of this 
order amending the order and are set forth in full herein.

PART 927--WINTER PEARS GROWN IN OREGON AND WASHINGTON

    1. The authority citation for 7 CFR part 927 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.
    2. Revise Sec. 927.5 to read as follows:


Sec. 927.5  Size

    Size means the number of pears which can be packed in a standard 
pear box when packed in accordance with the packing requirements of the 
U.S. Standards for Pears (part 51 of this title), or as such 
regulations hereafter may be modified or as Asize'' may be more 
specifically defined in a regulation issued under this part.
    3. Add a new Sec. 927.14 to read as follows:


Sec. 927.14  Pack.

    Pack means the specific arrangement, size, weight, count, or grade 
of a quantity of pears in a particular type and size of container, or 
any combination thereof.
    4. Add a new Sec. 927.15 to read as follows:


Sec. 927.15  Container.

    Container means a box, bag, crate, lug, basket, carton, package, or 
any other type of receptacle used in the packaging or handling of 
pears.
    5. Revise Sec. 927.28 to read as follows:


Sec. 927.28  Alternates for members of the Control Committee.

    The first alternate for a member shall act in the place and stead 
of the member for whom he or she is an alternate during such member's 
absence. In the event of the death, removal, resignation, or 
disqualification of a member, his or her first alternate shall act as a 
member until a successor for the member is selected and has qualified. 
The second alternate for a member shall serve in the place and stead of 
the member for whom he or she is an alternate whenever both the member 
and his or her first alternate are unable to serve. In the event that 
both a member of the Control Committee and that member's alternates are 
unable to attend a Control Committee meeting, the member may designate 
any other alternate member from the same group (handler or grower) to 
serve in that member's place and stead.

[[Page 39637]]

    6. Amend Sec. 927.51 by revising paragraph (a) to read as follows:


Sec. 927.51  Issuance of regulations and modification, suspension, or 
termination thereof.

    (a) Whenever the Secretary finds, from the recommendations and 
information submitted by the Control Committee, or from other available 
information, that regulation, in the manner specified in the section, 
of the shipment of pears would tend to effectuate the declared policy 
of the act, he or she shall so limit the shipment of pears during a 
specified period or periods. Such regulation:
    (1) May limit the total quantity of any grade, size, quality, 
maturity, or combination thereof, of any variety of pears grown in any 
district and may prescribe different requirements applicable to 
shipments in different export markets; or
    (2) May prescribe minimum standards of quality for any variety of 
pears and limit the shipment thereof to those meeting such minimum 
standards; or
    (3) Fix the size, capacity, weight, dimensions, markings, or pack 
of the container, or containers, which may be used in packaging or 
handling of pears.
* * * * *

[FR Doc. 02-14404 Filed 6-7-02; 8:45 am]
BILLING CODE 3410-02-P