[Federal Register Volume 68, Number 75 (Friday, April 18, 2003)]
[Rules and Regulations]
[Pages 19139-19142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-9629]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Docket No. FV00-927-3]


Winter Pears Grown in Oregon and Washington; Order Amending 
Marketing Order No. 927

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends the marketing order for winter pears 
grown in Oregon and Washington (order). Three amendments were proposed 
by the Winter Pear Control Committee (Committee), which is responsible 
for local administration of the order. Of these three, only one 
proposal was favored by winter pear growers in a mail referendum, held 
July 17 through August 2, 2002. The single amendment to the order will 
change provisions related to alternate Committee members serving for 
absent members at Committee meetings. This amendment will improve the 
operation and functioning of the winter pear marketing order program by 
ensuring industry representation at Committee meetings. The two 
amendments that failed to receive grower support in the referendum 
include authorizing the Committee to recommend maturity regulations, 
and authorizing the Committee to recommend container or marking 
requirements. These amendments will not be implemented.

[[Page 19140]]


EFFECTIVE DATE: May 19, 2003.

FOR FURTHER INFORMATION CONTACT: Gary D. Olson, Regional Manager, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, Northwest Marketing Field Office, 1220 SW. Third Avenue, 
room 369, Portland, Oregon 97204; telephone (503) 326-2724 or Fax (503) 
326-7440; or Melissa Schmaedick, Agricultural Marketing Specialist, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, Post Office Box 1035, Moab, Utah 84532; telephone: (435) 259-7988, 
or Fax: (435) 259-4945.
    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, DC 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); Secretary's Decision and Referendum Order issued June 4, 
2002, and published in the Federal Register on June 10, 2002 (67 FR 
39634).
    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

    This final rule was formulated 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. 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 
three amendment proposals submitted by the Committee, and one proposed 
by the Agricultural Marketing Service (AMS).
    The Committee's proposals 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, so that all of the order's 
provisions conform with the effectuated amendment. No conforming 
changes have been deemed necessary.
    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.
    A Secretary's Decision and Referendum Order was issued on June 4, 
2002, directing that a referendum be conducted during the period July 
17 through August 2, 2002, among growers of winter pears to determine 
whether they favored the proposed amendments to the order. Ballots 
representing 522 winter pear producers, or about 34 percent of the 
producers eligible to vote, were cast. The voters voting in the 
referendum favored only one of the three amendments proposed by the 
Committee. This amendment, which will authorize additional alternates 
to serve when a Committee member and that member's alternates are 
unable to attend a Committee meeting, received favorable votes 
representing 87.36 percent of the number of growers and 81.65 percent 
of the volume of production represented in the referendum. The 
additional alternate will be required to be from the same group of 
growers or handlers as the member or alternates they serve in place of.
    The other two amendments, which would have authorized container and 
marking requirements and minimum maturity regulation, failed to obtain 
the requisite number of votes, in number or in volume, needed to pass. 
The proposal to authorize container and marking requirements received 
65.33 percent of the number of voters, and 51.39 percent of the volume 
of production, in favor of the amendment. The proposal to authorize 
maturity regulation received 53.07 percent of the number of voters, and 
45.90 percent of the volume, in favor of the amendment. To become 
effective, the amendments had to be approved by at least two-thirds of 
those producers voting or by voters representing at least two-thirds of 
the volume of winter pears represented by voters voting in the 
referendum.
    The amended marketing agreement was subsequently mailed to all 
winter pear handlers in the production area for their approval. The 
marketing agreement was not approved by handlers representing at least 
50 percent of the volume of winter pears handled by all handlers during 
the representative period of July 1, 2001, through June 30, 2002.

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 agricultural producers are those having annual receipts of less 
than $750,000. Small agricultural service firms, which include 
handlers, are those having annual receipts of less than $5,000,000.
    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, a majority of the winter 
pear producers and handlers are considered small under the SBA 
definition. This action will apply primarily to small entities.
    Interested persons were invited to present evidence at the hearing 
on the probable regulatory and informational impact of the proposed 
amendments on small businesses.
    This final rule amends 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. This action is designed to ensure grower and handler 
representation at all Committee meetings.

[[Page 19141]]

    The amendment provides that, in the event that a Committee member 
and both his or her alternates cannot attend a meeting, the absent 
Committee member can designate a temporary alternate, provided that the 
temporary alternate represents the same group (grower or handler) as 
the absent member. Thus, in the event that all alternates for Committee 
members in the same group representing a given district are 
unavailable, selection of a temporary alternate would rely on the 
availability of other Committee members' alternates from the remaining 
districts.
    This method of selecting a temporary alternate will 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 will not be 
affected by this amendment 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 final rule. This amendment is designed to 
enhance the administration and functioning of the marketing order to 
the benefit of the industry.
    Committee meetings to discuss the proposals 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 amendment contained in this rule has been reviewed under 
Executive Order 12988, Civil Justice Reform. It is not intended to have 
retroactive effect. The amendment will not preempt any State or local 
laws, regulations, or policies, unless it presents an irreconcilable 
conflict with the amendment.
    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.

Order Amending the Order Regulating the Handling of Winter Pears Grown 
in Washington and Oregon

Findings and Determinations

    The findings and determinations hereinafter set forth are 
supplementary and in addition to the findings and determinations 
previously made in connection with the issuance of the order; and all 
of 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 order, as amended, and as hereby further amended, 
and all of the terms and conditions thereof, will tend to effectuate 
the declared policy of the Act;
    (2) The marketing order, as amended, and as hereby further amended, 
regulates the handling of winter pears grown in the production area in 
the same manner as, and is applicable only to persons in the respective 
classes of commercial and industrial activity specified in the 
marketing order upon which hearings have been held;
    (3) The marketing order, as amended, and as hereby further amended, 
is limited in 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 order, as amended, and as hereby further amended, 
prescribes, 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 grown in the production area; and
    (5) All handling of winter pears grown in the production area is in 
the current of interstate or foreign commerce or directly burdens, 
obstructs, or affects such commerce.
    (b) Determinations. It is hereby determined that:
    (1) Handlers (excluding cooperative associations of producers who 
are not engaged in processing, distributing, or shipping winter pears 
covered by the order as hereby amended) who, during the period July 1, 
2001, through June 30, 2002, handled 50 percent or more of the volume 
of such winter pears covered by said order, as hereby amended, have not 
signed an amended marketing agreement;
    (2) The issuance of this amendatory order, further amending the 
aforesaid order, is favored or approved by at least two-thirds of the 
producers who participated in a referendum on the question of approval 
and who, during the period July 1, 2001, through June 30, 2002 (which 
has been deemed to be a representative period), have been engaged 
within the production area in the production of such winter pears, such 
producers having also produced for market at least two-thirds of the 
volume of such commodity represented in the referendum; and
    (3) In the absence of a signed marketing agreement, the issuance of 
this amendatory order is the only practical means pursuant to the 
declared policy of the Act of advancing

[[Page 19142]]

the interests of producers of winter pears in the production area.

Order Relative to Handling of Winter Pears Grown in Oregon and 
Washington

    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 amended as follows:
    The provisions to change order language relating to alternate 
Committee members serving for absent members at Committee meetings 
contained in USDA's Decision issued by the Administrator on June 4, 
2002, and published in the Federal Register on June 10, 2002, shall be 
and are the terms and provisions of this order amending the order and 
are set forth in full herein.

List of Subjects in 7 CFR Part 927

    Marketing agreements, Pears, Reporting and recordkeeping 
requirements.


0
For the reasons set out in the preamble, 7 CFR part 927 is amended as 
follows:

PART 927--WINTER PEARS GROWN IN OREGON AND WASHINGTON

0
1. The authority citation for 7 CFR part 927 continues to read as 
follows:

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

0
2. 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.
* * * * *

    Dated: April 14, 2003.
A. J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-9629 Filed 4-17-03; 8:45 am]
BILLING CODE 3410-02-P