Pears Grown in Oregon and Washington; Amendment to the Marketing Order, 33288-33291 [2024-09049]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 89, Number 83 (Monday, April 29, 2024)]
[Proposed Rules]
[Pages 33288-33291]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09049]


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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. 89, No. 83 / Monday, April 29, 2024 / 
Proposed Rules

[[Page 33288]]



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, USDA.

ACTION: Proposed rule and referendum order.

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SUMMARY: This rulemaking proposes an 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: The referendum will be conducted from May 13 through May 27, 
2024. Only pear growers who grew pears within the designated production 
area during the period July 1, 2022, through June 30, 2023, are 
eligible to vote in this referendum.

ADDRESSES: Interested persons with questions and comments are invited 
to submit written questions and comments to the Docket Clerk, Market 
Development Division, Specialty Crops Program, AMS, USDA, 1400 
Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; or 
Telephone: (202) 720-8085.

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] or 
[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 Committee locally administers the Order and is comprised 
of growers and handlers of pears operating within the area of 
production.
    The Agricultural Marketing Service (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 action falls within a category of regulatory actions that the 
Office of Management and Budget (OMB) exempted from Executive Order 
12866 review.
    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 proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule shall not be deemed to preclude, 
preempt, or supersede any State program covering pears grown in Oregon 
and Washington.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under sec. 8c(15)(A) of the Act 
(7 U.S.C. 608c(15)(A)), any handler subject to an order may file with 
the U.S. Department of Agriculture (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 no later than 20 days after the date of 
entry of the ruling.
    Section 1504 of the Food, Conservation, and Energy Act of 2008 
(2008 Farm Bill) (Pub. L. 110-246) amended sec. 8c(17) of the Act, 
which in turn required the addition of supplemental rules of practice 
to 7 CFR part 900 (73 FR 49307; August 21, 2008). The amendment of sec. 
8c(17) of the Act and the supplemental rules of practice authorize the 
use of informal rulemaking (5 U.S.C. 553) to amend Federal fruit, 
vegetable, and nut marketing agreements and orders. USDA may use 
informal rulemaking to amend marketing orders depending upon the nature 
and complexity of the proposed amendment, 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

[[Page 33289]]

would revise the approval requirement for recommending modifications to 
the Order's fresh pear handling regulations. A discussion of the 
potential regulatory and economic impacts on affected entities is 
discussed later in the ``Final Regulatory Flexibility Analysis'' 
section of this proposed rule. The amendment would apply equally to all 
producers and handlers, regardless of size. The proposed amendment also 
has no additional impact on the reporting, record-keeping, or 
compliance costs of small 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 voter approval 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.
    A proposed rule soliciting public comments on the proposed 
amendment was published in the Federal Register on October 10, 2023 (88 
FR 69888). AMS received one comment--supporting the proposed rule. 
Based on all the information available to AMS at this time, including 
the comment received in response to the proposed rule, no substantive 
changes will be made to the proposed amendment.
    AMS will conduct a producer referendum to determine support for the 
proposed amendment. If appropriate, a final rule will then be issued to 
effectuate the amendment, if it is favored by producers in the 
referendum.

Proposal--Prerequisites to Recommendations

    Currently, Sec. Sec.  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 
Sec.  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 for the 
Anjou pear variety in three separate motions, each receiving a separate 
vote. A subcommittee was then 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 concurrence 
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, respectively. 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 a majority 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.

Final 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 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 
businesses subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act 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 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 (NASS), 
the 2020 average grower price received for fresh pears produced in 
Oregon and Washington was $11.39 per 44-pound standard 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, 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

[[Page 33290]]

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 are necessary because of this action. 
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 action.
    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.
    A proposed rule concerning this action published in the Federal 
Register on October 10, 2023 (88 FR 69888). A copy of the rule was sent 
via email to Committee staff for distribution to all Committee members 
and Oregon and Washington pear growers and handlers. The proposed rule 
was also made available by USDA through the internet and the Office of 
the Federal Register. A 60-day comment period ending December 11, 2023, 
was provided to allow interested persons to respond to the proposals. 
AMS received one comment--supportive of the proposed amendment--during 
the comment period. Based on all the information available to AMS at 
this time, including the comment received in response to the proposed 
rule, no substantive changes will be made to the amendment as proposed.
    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.

Findings and Conclusions

    AMS has determined that the findings and conclusions, and general 
findings and determinations included in the proposed rule set forth in 
the October 10, 2023, issue of the Federal Register (88 FR 69888) are 
appropriate and necessary and are hereby approved and adopted.

Marketing Order

    Annexed hereto and made a part hereof is the document entitled, 
``Order Amending the Order Regulating the Handling Pears Grown in 
Oregon and Washington.'' This document has been decided upon as the 
detailed and appropriate means of effectuating the foregoing findings 
and conclusions. It is hereby ordered that this entire proposed rule 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 900.400-407) to 
determine whether the annexed order amending the Order regulating the 
handling of pears grown in Oregon and Washington is approved by 
growers, as defined under the terms of the Order, who during the 
representative period were engaged in the production of pears in the 
production area. The representative period for the conduct of such 
referendum is hereby determined to be July 1, 2022, through June 30, 
2023.
    The agents designated by the Secretary to conduct the referendum 
are Josh Wilde and Barry Broadbent, West Region Branch, Market 
Development Division, Specialty Crops Program, AMS, USDA; Telephone: 
(863) 324-3375, Fax: (863) 291-8614, or Email: [email protected] 
and [email protected], respectively.

Order Amending the Order Regulating the Handling of 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 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 that 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.

Order Relative to Handling

    It is therefore ordered, that on and after the effective date 
hereof, all

[[Page 33291]]

handling of 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 order amending the Order 
contained in the proposed rule issued by the Administrator and 
published in the Federal Register (88 FR 69888) on October 10, 2023, 
will 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.

    For the reasons set forth in the preamble, the AMS 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 prescribed in paragraph (b) of 
this section, of all members.
* * * * *

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2024-09049 Filed 4-26-24; 8:45 am]
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