Pears Grown in Oregon and Washington; Amendment to the Marketing Order, 69888-69891 [2023-22335]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[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 [www.gpo.gov]
[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: [email protected], or via the internet at: 
https://www.regulations.gov. 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: https://www.regulations.gov. 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: [email protected].
    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: 
[email protected].

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: 
https://www.ams.usda.gov/rules-regulations/moa/small-businesses. 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