Proposed Rule2023-22335
Pears Grown in Oregon and Washington; Amendment to the Marketing Order
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 10, 2023
Issuing agencies
Agriculture DepartmentAgricultural Marketing Service
Abstract
This document invites comments on a proposed amendment to Marketing Order No. 927, which regulates the handling of pears grown in Oregon and Washington. The proposed amendment would revise the Fresh Pear Committee's approval requirement for recommending modifications to the marketing order's fresh pear handling regulations from 80 to 75 percent.
Full Text
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<title>Federal Register, Volume 88 Issue 194 (Tuesday, October 10, 2023)</title>
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[Federal Register Volume 88, Number 194 (Tuesday, October 10, 2023)]
[Proposed Rules]
[Pages 69888-69891]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-22335]
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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. 88 , No. 194 / Tuesday, October 10, 2023 /
Proposed Rules
[[Page 69888]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 927
[Doc. No. AMS-SC-22-0079]
Pears Grown in Oregon and Washington; Amendment to the Marketing
Order
AGENCY: Agricultural Marketing Service, Department of Agriculture
(USDA).
ACTION: Proposed rule.
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SUMMARY: This document invites comments on a proposed amendment to
Marketing Order No. 927, which regulates the handling of pears grown in
Oregon and Washington. The proposed amendment would revise the Fresh
Pear Committee's approval requirement for recommending modifications to
the marketing order's fresh pear handling regulations from 80 to 75
percent.
DATES: Comments must be received by December 11, 2023 to be assured
consideration.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposed rule. Comments can be sent to the Docket
Clerk, Market Development Division, Specialty Crops Program, AMS, USDA,
1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237.
Comments can also be submitted to the Docket Clerk electronically by
Email at: <a href="/cdn-cgi/l/email-protection#145975667f71607d7a735b66707166577b7979717a6054616770753a737b62"><span class="__cf_email__" data-cfemail="6c210d1e07091805020b231e08091e2f0301010902182c191f080d420b031a">[email protected]</span></a>, or via the internet at:
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. Comments should reference the document
number and the date and page number of this issue of the Federal
Register. All comments will be made available for public inspection in
the Office of the Docket Clerk during regular business hours or can be
viewed at: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. All comments submitted in
response to this proposed rule will be included in the record and will
be made available to the public on the internet at the address provided
above. Please be advised that the identity of the individuals or
entities submitting comments will be made public.
FOR FURTHER INFORMATION CONTACT: Geronimo Quinones, Marketing
Specialist, or Matthew Pavone, Chief, Rulemaking Services Branch,
Market Development Division, Specialty Crops Program, AMS, USDA, 1400
Independence Avenue SW, STOP 0237, Washington, DC 20250-0237;
Telephone: (202) 720-8085, or Email: <a href="/cdn-cgi/l/email-protection#8fc2eefde4eafbe6e1e8c0fdebeafdcce0e2e2eae1fbcffafcebeea1e8e0f9"><span class="__cf_email__" data-cfemail="feb39f8c959b8a979099b18c9a9b8cbd9193939b908abe8b8d9a9fd0999188">[email protected]</span></a>.
Small businesses may request information on complying with this
regulation by contacting Richard Lower, Market Development Division,
Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP
0237, Washington, DC 20250-0237; Telephone: (202) 720-8085, or Email:
<a href="/cdn-cgi/l/email-protection#51033832393023357f1d3e26342311242235307f363e27"><span class="__cf_email__" data-cfemail="eebc878d868f9c8ac0a281998b9cae9b9d8a8fc0898198">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553,
proposes to amend regulations issued to carry out a marketing order as
defined in 7 CFR 900.2(j). This proposal is issued under Marketing
Order No. 927, as amended (7 CFR part 927), regulating the handling of
pears grown in Oregon and Washington. Part 927 (referred to as the
``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 Fresh Pear Committee (``Committee'') administers the
Order's provisions relating to the handling of pears for the fresh
market. The Committee comprises growers and handlers of pears operating
within Oregon and Washington, and a public member.
Section 608c(17) of the Act (7 U.S.C. 608c(17)) and the applicable
rules of practice and procedure at 7 CFR 900.43 authorize amendment of
the Order through this informal rulemaking action. The Agricultural
Marketing Service (``AMS'') will consider comments received in response
to this proposed rule and, based on all the information available, will
determine if the amendment is warranted. If AMS determines amendment of
the Order is warranted, a subsequent proposed rule and notice of
referendum would be issued, and growers would be allowed to vote for or
against the proposed amendment. AMS would then issue a final rule
effectuating any amendments favored in the referendum.
AMS is issuing this proposed rule in conformance with Executive
Orders 12866, 13563, and 14094. Executive Orders 12866 and 13563 direct
agencies to assess all costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health and safety effects, distributive impacts,
and equity). Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility. Executive Order 14094 reaffirms,
supplements, and updates Executive Order 12866 and further directs
agencies to solicit and consider input from a wide range of affected
and interested parties through a variety of means. This proposed rule
is not a significant regulatory action within the meaning of Executive
Order 12866. Accordingly, this action has not been reviewed by the
Office of Management and Budget (``OMB'') under section 6 of the
Executive Order.
This proposed rule has been reviewed under Executive Order 13175,
Consultation and Coordination with Indian Tribal Governments, which
requires agencies to consider whether their rulemaking actions would
have Tribal implications. AMS has determined this proposed rule is
unlikely to have substantial direct effects on one or more Indian
Tribes, on the relationship between the Federal Government and Indian
Tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian Tribes.
This proposal has been reviewed under Executive Order 12988, Civil
Justice Reform. This proposed rule is not intended to have retroactive
effect.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act (7 U.S.C. 608c(15)(A)), any handler subject to a marketing 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 requesting a modification of the order
or to be exempted therefrom. The handler is afforded the opportunity
for a hearing on the petition. After the hearing, USDA would rule on
the petition. The handler may then seek judicial review of the ruling
by filing suit in the U.S. district
[[Page 69889]]
court for the district in which the handler is an inhabitant or has his
or her principal place of business, provided the action is filed no
later than 20 days after the date of entry of the ruling.
Section 608c(17) of the Act (7 U.S.C. 608c(17)) and the
supplemental rules of practice at 7 CFR 900.43 authorize the use of
informal rulemaking (5 U.S.C. 553) to amend Federal fruit, vegetable,
and nut marketing agreements and orders. In determining whether
informal rulemaking is appropriate, USDA is required to consider the
nature and complexity of the proposed amendments, the potential
regulatory and economic impacts on affected entities, and any other
relevant matters.
AMS has considered these factors and has determined that the
amendment proposed herein is not unduly complex and the nature of the
proposed amendment is appropriate for utilizing the informal rulemaking
process to amend the Order. This proposed rule would revise the
approval requirement for recommending modifications to the Order's
fresh pear handling regulations. In addition, as discussed in the
Initial Regulatory Flexibility Analysis section below, the proposed
rule is not anticipated to have any significant economic impact on
affected entities. Further, the proposed amendment would not impose any
new reporting, record-keeping, or compliance costs on businesses.
The Committee recommended the proposed amendment to the Order
following deliberations at a public meeting held on June 2, 2022. The
Committee recommended this change by vote of nine in favor and two
opposed, with one abstention. The two opposing voters did not feel the
proposed change was necessary, and the abstention voter wanted an even
lower requirement. The Committee submitted its formal recommendation to
amend the Order through the informal rulemaking process on August 23,
2022, and subsequently provided AMS clarification about the
recommendation on December 1, 2022.
Proposal--Prerequisites to Recommendations
Currently, sections 927.33(a) and 927.52(a) of the Order provide
that all decisions of the Committee require a supporting vote of 75
percent or greater; except that a decision to recommend changes to the
regulations concerning the shipment of fresh pears requires a
supporting vote of 80 percent or greater. The voting requirements in
section 927.52 of the Order utilize a weighted calculation of votes
based on the handling of specific pear varieties. The Committee
recommended modifying the current 80-percent voting requirement to 75
percent to align these voting requirements, mitigate confusion, and
simplify the Order.
In 2020, the Committee recommended a regulation change to the Anjou
pear variety in three separate motions, each receiving a separate vote.
A subcommittee was formed to investigate how the proposed modification
to the voting requirement might have affected the 2020 voting outcomes.
The subcommittee analyzed the three motions by comparing each voting
outcome at 75- and 80-percent vote requirement levels. Of the three,
two motions did not have enough Committee support at either voting
level and received only 52 percent and 66 percent of the vote. The
third motion for the regulation change received 86 percent affirmative
support by vote. Therefore, the subcommittee concluded that changing
the requirement to 75 percent would not have altered the outcome of
those votes.
While most of the Committee believes the current 80-percent voter
affirmation requirement is too high, two members believe the change to
75 percent is not necessary, and one member believes the change is not
impactful enough.
The Committee considered alternatives, including a 70-percent
requirement. However, after running simulations with historical data to
assess the impact of a 70- or 75-percent requirement, the Committee
determined 75 percent to be optimal in that it did not materially
affect vote outcomes for recommendations. Additionally, the adjustment
from an 80- to 75-percent voting requirement establishes regulatory
consistency with other Committee recommendations that have a 75-percent
voting requirement. As such, the Committee believes this proposal would
provide more continuity to all Committee voting procedures without
materially changing voting outcomes, thereby mitigating confusion and
improving the efficiency of its operations.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of
this proposed rule on small entities. Accordingly, AMS has prepared
this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
businesses subject to such actions in order to ensure that small
businesses will not be unduly or disproportionately burdened. Marketing
orders issued pursuant to the Act, and the rules issued thereunder, are
unique in that they are brought about through group action of
essentially small entities acting on their own behalf.
There are approximately 708 growers of fresh pears in the
production area and 27 handlers subject to regulation under the Order.
At the time this analysis was prepared, small agricultural producers of
pears were defined by the Small Business Administration (``SBA'') as
those having annual receipts equal to or less than $3,500,000 (North
American Industry Classification System code 111339, Other Noncitrus
Fruit Farming), and small agricultural service firms were defined as
those whose annual receipts are equal to or less than $34,000,000
(North American Industry Classification System Code 115114, Postharvest
Crop Activities) (13 CFR 121.201).
According to the National Agricultural Statistics Service, the 2020
average grower price received for fresh pears produced in Oregon and
Washington was $11.39 per standard 44-pound box or equivalent.
Committee data indicates total production was 16,290,225 44-pound
standard boxes or equivalent in the 2019-20 fiscal period. The total
2019-20 fiscal period value of assessable fresh ``summer/fall'' and
``winter'' pears grown in Oregon and Washington was $185,545,663
(16,290,225 44-pound standard boxes or equivalent multiplied by $11.39
per box equals $185,545,663). Dividing the crop value by the estimated
number of growers (708), yields an estimated average receipt per grower
of $262,070.
According to USDA Market News data, the reported average terminal
price for 2020 Oregon and Washington fresh pears was $34.87 per 44-
pound standard box or equivalent (data reported in \4/5\ bushel).
Multiplying the Committee-reported 2019-20 Oregon and Washington total
production of 16,290,225 44-pound standard boxes or equivalent by the
estimated average price per box or equivalent of $34.87 equals
$568,040,146. Dividing this figure by 27 regulated handlers yields
estimated average annual handler receipts of $21,038,524. Therefore,
using the above data, the majority of growers and handlers of Oregon
and Washington fresh pears may be classified as small entities.
This proposed rule would revise a provision in the Order's subpart
regulating handling of pears grown in Oregon and Washington. This
proposal would align the approval requirement for recommending
modifications to the Order's fresh pear handling regulations,
[[Page 69890]]
which is 80 percent, with all other Committee voting requirements
within the Order. Currently, all other Committee recommendations
require 75 percent concurrence. The different voting requirements
sometimes result in confusion for some Committee members, which can
disrupt Committee operations.
The proposed amendment has no anticipated impact on the reporting,
record-keeping, or compliance costs of small businesses.
The proposed amendment would not directly increase or decrease
costs to members of the pear industry.
Alternatives to the proposed amendment were considered, including
making no changes at this time. However, the Committee believes it is
necessary to bring all voting requirements in-line for clarity and
understanding to ensure the efficient execution of the Order.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), the Order's information collection requirements have been
previously approved by OMB and assigned OMB No. 0581-0189, Fruit Crops.
No changes in those requirements would be necessary because of this
proposed rule. Should any changes become necessary, they would be
submitted to OMB for approval.
This proposed rule would impose no additional reporting or
recordkeeping requirements on either small or large pear handlers. 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.
AMS is committed to complying with the E-Government Act to promote
the use of the internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes.
USDA has not identified any relevant Federal rules that duplicate,
overlap, or conflict with this proposed rule.
The Committee's meetings are widely publicized throughout the pear
production area. All interested persons are invited to attend the
meetings and encouraged to participate in Committee deliberations on
all issues. Like all Committee meetings, the meeting held on June 2,
2022, was open to the public, and all entities, both large and small,
were encouraged to express their views on the proposed amendment.
Interested persons are invited to submit comments on the proposed
amendment to the Order, including comments on the regulatory and
information collection impacts of the proposed rule on small
businesses.
Following analysis of any comments received on the amendment in
this proposed rule, AMS will evaluate all available information and
determine whether to proceed. If appropriate, a proposed rule and
notice of referendum would be issued, and growers would be provided the
opportunity to vote for or against the proposed amendment. Information
about the referendum, including dates and voter eligibility
requirements, would be published in a future issue of the Federal
Register. A final rule would then be issued to effectuate any amendment
favored in the referendum.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at:
<a href="https://www.ams.usda.gov/rules-regulations/moa/small-businesses">https://www.ams.usda.gov/rules-regulations/moa/small-businesses</a>. Any
questions about the compliance guide should be sent to Richard Lower at
the previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
General Findings
The findings hereinafter set forth are supplementary to the
findings and determinations which were previously made in connection
with the issuance of Marketing Order 927; 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.
1. Marketing Order 927 as hereby proposed to be amended and all the
terms and conditions thereof, would tend to effectuate the declared
policy of the Act;
2. Marketing Order 927 as hereby proposed to be amended regulates
the handling of pears grown in Oregon and Washington and is applicable
only to persons in the respective classes of commercial and industrial
activity specified in the Order;
3. Marketing Order 927 as hereby proposed to be 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 marketing orders applicable to
subdivisions of the production area would not effectively carry out the
declared policy of the Act;
4. Marketing Order 927 as hereby proposed to be 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 pears produced or
packed in the production area; and
5. All handling of pears grown or handled in the production area,
as defined in Marketing Order 927, is in the current of interstate or
foreign commerce or directly burdens, obstructs, or affects such
commerce.
A 60-day comment period is provided to allow interested persons to
respond to this proposal. Any comments received on the amendment
proposed in this rule will be analyzed and, if AMS determines to
proceed based on all the information presented, a producer referendum
would be conducted to determine industry support for the proposed
amendment. If appropriate, a final rule would then be issued to
effectuate the amendments favored by producers participating in the
referendum.
List of Subjects in 7 CFR Part 927
Marketing agreements, Pears, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, the Agricultural
Marketing Service proposes to amend 7 CFR part 927 as follows:
PART 927--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. Amend Sec. 927.52 by revising paragraph (a) to read as follows:
Sec. 927.52 Prerequisites to recommendations.
(a) Decisions of the Fresh Pear Committee or the Processed Pear
Committee with respect to any recommendations to the Secretary pursuant
to the establishment or modification of a supplemental rate of
assessment for an individual variety or subvariety of pears shall be
made by affirmative vote of not less than 75 percent of the applicable
total number of votes, computed in the manner described in paragraph
(b) of this section, of all members. Decisions of the Fresh Pear
Committee pursuant to the provisions of Sec. 927.50 shall be made by
an affirmative vote of not less than 75 percent of the applicable total
number of votes, computed in the manner
[[Page 69891]]
prescribed in paragraph (b) of this section, of all members.
* * * * *
Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2023-22335 Filed 10-6-23; 8:45 am]
BILLING CODE P
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