82 FR 45208 - Hazelnuts Grown in Oregon and Washington; Secretary's Decision and Referendum Order on Proposed Amendments to Marketing Order No. 982
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service Federal Register Volume 82, Issue 187 (September 28, 2017)
Agricultural Marketing Service
Federal Register Volume 82, Issue 187 (September 28, 2017)
| Page Range | 45208-45212 | |
| FR Document | 2017-19920 |
[Federal Register Volume 82, Number 187 (Thursday, September 28, 2017)] [Proposed Rules] [Pages 45208-45212] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-19920] ======================================================================== 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. ======================================================================== Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules [[Page 45208]] DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 982 [Doc. No. AO-SC-16-0136; AMS-SC-16-0074; SC16-982-1] Hazelnuts Grown in Oregon and Washington; Secretary's Decision and Referendum Order on Proposed Amendments to Marketing Order No. 982 AGENCY: Agricultural Marketing Service, USDA. ACTION: Proposed rule and referendum order. ----------------------------------------------------------------------- SUMMARY: This decision proposes amendments to Marketing Order No. 982 (order), which regulates the handling of hazelnuts grown in Oregon and Washington, and provides growers with the opportunity to vote in a referendum to determine if they favor the changes. Two amendments are proposed by the Hazelnut Marketing Board (Board), which is responsible for local administration of the order. The proposed amendments would add both the authority to regulate quality for the purpose of pathogen reduction and the authority to establish different regulations for different markets. In addition, the Agricultural Marketing Service (AMS) proposed to make any such changes as may be necessary to the order to conform to any amendment that may result from the public hearing. The proposals would aid in pathogen reduction and the industry's ability to meet the needs of different market destinations. DATES: The referendum will be conducted from October 16, 2017, through November 3, 2017. The representative period for the purpose of the referendum is July 1, 2016, through June 30, 2017. ADDRESSES: Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., Stop 0237, Washington, DC 20250-0237. FOR FURTHER INFORMATION CONTACT: Melissa Schmaedick, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, Post Office Box 952, Moab, UT 84532; Telephone: (202) 557-4783, Fax: (435) 259- 1502, or Julie Santoboni, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., Stop 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected] or [email protected]. Small businesses may request information on this proceeding by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., Stop 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected]. SUPPLEMENTARY INFORMATION: Prior documents in this proceeding: Notice of Hearing issued on September 27, 2016, and published in the September 30, 2016, issue of the Federal Register (81 FR 67217) and a Recommended Decision issued on June 5, 2017, and published in the June 12, 2017, issue of the Federal Register (82 FR 26859). This 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 Orders 12866, 13563, and 13175. Additionally, because this rule does not meet the definition of a significant regulatory action it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled ``Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs'[thinsp]'' (February 2, 2017). Notice of this rulemaking action was provided to tribal governments through the Department of Agriculture's (USDA) Office of Tribal Relations. Preliminary Statement The proposed amendments are based on the record of a public hearing held on October 18, 2016, in Wilsonville, Oregon. The hearing was held pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), 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). Notice of this hearing was published in the Federal Register September 30, 2016 (81 FR 67217. The notice of hearing contained two proposals submitted by the Board and one submitted by USDA. The amendments in this decision would: (1) Add authority to regulate quality for the purpose of pathogen reduction; (2) Add authority to establish different outgoing quality regulations for different markets; and (3) Make any such changes as may be necessary to the order to conform to any amendment that may be adopted, or to correct minor inconsistencies and typographical errors. USDA is recommending one clarifying change to the language in the proposed new paragraph 982.45(c), which would add authority to regulate quality. USDA has determined that the language as presented in the Notice of Hearing was redundant and, therefore, confusing. USDA has revised the proposed language in the new paragraph Sec. 982.45 (c) so that its intent is more clearly stated. This new language is included in the proposed regulatory text of this decision. Upon the basis of evidence introduced at the hearing and the record thereof, the Administrator of AMS on June 5, 2017, filed with the Hearing Clerk, USDA, a Recommended Decision and Opportunity to File Written Exceptions thereto by July 12, 2017. No exceptions were filed. Final Regulatory Flexibility Analysis 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 businesses subject to such actions so that small businesses will not be unduly or disproportionately burdened. Marketing orders and amendments thereto are unique in that they are normally brought about through group [[Page 45209]] action of essentially small entities for their own benefit. Hazelnut Industry Background and Overview According to the hearing transcript, there are currently over 800 hazelnut growers in the production area. According to National Agricultural Statistics Service (NASS) data presented at the hearing, 2015 grower receipts averaged $2,800 per ton. With a total 2015 production of 31,000 tons, the farm gate value for hazelnuts in that year totaled $86.8 million ($2,800 per ton multiplied by 31,000 tons). Taking the total value of production for hazelnuts and dividing it by the total number of hazelnut growers provides a return per grower of $108,500. A small grower as defined by the Small Business Administration (SBA) (13 CFR 121.201) is one that grosses less than $750,000 annually. Therefore, a majority of hazelnut growers are considered small entities under the SBA standards. Record evidence indicates that approximately 98 percent of hazelnut growers are small businesses. According to the industry, there are 17 hazelnut handlers, four of which handle 80 percent of the crop. While market prices for hazelnuts were not included among the data presented at the hearing, an estimation of handler receipts can be calculated using the 2015 grower receipt value of $86.8 million. Multiplying $86.8 million by 80 percent ($86.8 million x 80 percent = $69.4 million) and dividing by four indicates that the largest hazelnut handlers received an estimated $17.3 million each. Dividing the remaining 20 percent of $86.8 million, or $17.4 million, by the remaining 13 handlers, indicates average receipts of $1.3 million each. A small agricultural service firm is defined by the SBA as one that grosses less than $7,500,000. Based on the above calculations, a majority of hazelnut handlers are considered small entities under SBA's standards. The production area regulated under the order covers Oregon and Washington. According to the record, Eastern Filbert Blight has heavily impacted hazelnut production in Washington. One witness stated that there currently is no commercial production in that state. As a result, production data entered into the record pertains almost exclusively to Oregon. NASS data indicates bearing acres of hazelnuts reached a fifteen- year high during the 2013-2014 crop year at 30,000 acres. Acreage has remained steady, at 30,000 bearing acres for the 2015-2016 crop year. By dividing 30,000 acres by 800 growers, NASS data indicate there are approximately 37.5 acres per grower. Industry testimony estimates that due to new plantings, there are potentially 60,000 bearing acres of hazelnuts, or an estimated 75 bearing acres per hazelnut grower. During the hearing held October 18, 2016, interested parties were invited to present evidence on the probable regulatory impact of the proposed amendments to the order on small businesses. The evidence presented at the hearing shows that none of the proposed amendments would have a significant economic impact on a substantial number of small agricultural growers or firms. Material Issue Number 1--Adding Authority To Regulate Quality The proposal described in Material Issue 1 would amend Sec. 982.45 to authorize the Board to establish minimum quality requirements and Sec. 982.46 to allow for certification and inspection to enforce quality regulations. Presently, the Board is charged with assuring hazelnuts meet grade and size standards. The Board also has the authority to employ volume control. If finalized, this proposal would authorize the Board to propose quality regulations that require a treatment to reduce pathogen load prior to shipping hazelnuts. Witnesses supported this proposal and stated that treatment regulation would not significantly impact the majority of handlers since most handlers already treat product prior to shipment. Witness testimony indicated that the proposed amendment would lower the likelihood of a product recall incident and the associated negative economic impacts. Witnesses noted that the proposed amendment would give the Board flexibility to ensure consumer confidence in the quality of hazelnuts. It is determined that the additional costs incurred to regulate quality would be greatly outweighed by the increased flexibility for the industry to respond to changing quality regulation and food safety. There is expected to be no financial impact on growers. Mandatory treatment requirements should not cause dramatic increases in handler operating costs, as most already voluntarily treat hazelnuts. Handlers bear the direct cost associated with installing and operating treatment equipment or contract out the treatment of product to a third party. According to the industry, most domestic hazelnut product is shipped to California for treatment with propylene oxide. The cost to ship and treat product is estimated to be 10 cents per pound or less. Using 2014-2015 shipment data, at 10 cents per pound, the cost to ship and treat the 6.5 million pounds of Oregon hazelnuts shipped to the domestic market is not expected to exceed $650,000. Shipments to foreign markets typically do not require treatment and therefore have no associated treatment costs. Large handlers who wish to install treatment equipment may face costs ranging from $100,000 to $5,000,000 depending on the treatment system. One witness noted that mandatory treatment would benefit the industry by addressing the free-rider situation in which handlers who do not treat the product benefit from consumer confidence while incurring additional risks. Handlers that do treat product absorb all costs of treatment while building the reputation of the industry. The record shows that the proposal to add authority to establish different outgoing quality requirements for different markets would, in itself, have no economic impact on growers or handlers of any size. Regulations implemented under that authority could impose additional costs on handlers required to comply with them. However, witnesses testified that establishing mandatory regulations for different markets could increase the industry's credibility and reduce the risk that shipments of substandard product could jeopardize the entire industry's reputation. Record evidence shows that any additional costs are likely to be offset by the benefits of complying with those requirements. For the reasons described above, it is determined that the costs attributed to the above-proposed changes are minimal; therefore, the proposal would not have a significant economic impact on a substantial number of small entities. Material Issue Number 2--Adding Authority for Different Market Regulations The proposal described in Material Issue 2 would allow for the establishment of different outgoing quality regulations for different markets. Witnesses testified that allowing different regulations for different markets would likely lower the costs to handlers and prevent multiple treatments of hazelnuts while preserving hazelnut quality. Certain buyers of hazelnuts do not require prior treatment and perform their own kill-step processes such as roasting, baking or pasteurization. A witness stated that two of the largest buyers of hazelnuts, Diamond of [[Page 45210]] California and Kraft Foods, Inc. choose to treat product after arrival. Shipments to foreign markets often do not require treatment and are treated after exportation. Testimony indicated that during the 2014- 2015 season, of the 9.5 million pounds of kernel hazelnuts shipped to Canada, almost all were further treated by the customers. In conjunction with the proposed quality authority discussed in Material Issue 1, specific regulation could be developed to exempt exported product, subject to further pathogen-reduction treatment in the country of purchase, from mandatory treatment. In Canada, the purchaser, not the handler, is responsible for providing pathogen reduction treatment. Requiring handlers to treat hazelnuts before export would be duplicative in cost and treatment. At 10 cents per pound, it is estimated that on sales to Canada alone, handler savings could reach as much as $950,000 (9.5 million pounds of shipments multiplied by 10 cents per pound), if exempted from the mandatory treatment requirement. Hazelnuts shipped to China are typically processed after arrival and also do not necessitate treatment by handlers in the United States. China is a major export market for inshell hazelnuts. According to the hearing transcript, from 2011-2015, 54 percent of inshell hazelnuts were exported. The total value of inshell exports was approximately $41,340,780, if 54 percent is multiplied by the $76,557,000 total hazelnut exports. In 2015-2016 China received 90 percent of U.S. inshell hazelnut exports. The 2015-2016 value of U.S. hazelnut exports to China is estimated to be approximately $37,206,702, or 90 percent of the value of all U.S. inshell exports. Oregon hazelnuts compete primarily with Turkish (kernel) and Chilean (inshell) hazelnuts. Testimony indicates that multiple treatments of hazelnuts would likely affect the quality of hazelnuts. Allowing for different regulations for different markets would help Oregon and Washington hazelnuts compete in foreign markets and maintain U.S. market share. It is estimated that 80 to 90 percent of product is already being treated, and thus, the cost has already been incorporated into the price purchasers pay. One witness noted that shipments to the European Union may require different regulations since this market prefers certain treatment processes. The record shows that the proposal to add authority to establish different outgoing quality requirements for different markets would, in itself, have no economic impact on growers or handlers of any size. Regulations implemented under that authority could potentially impose additional costs on handlers required to comply with them. For the reasons described above, it is determined that the benefits of adding authority for different market regulations to the order would outweigh the potential costs of future implementation. USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule. These amendments are intended to improve the operation and administration of the order and to assist in the marketing of hazelnuts. Board meetings regarding these proposals, as well as the hearing date and location, were widely publicized throughout the Oregon and Washington hazelnut industry, and all interested persons were invited to attend the meetings and the hearing to participate in Board deliberations on all issues. All Board meetings and the hearing were public forums, and all entities, both large and small, were able to express views on these issues. Finally, interested persons are invited to submit information on the regulatory impacts of this action on small businesses. Paperwork Reduction Act Current information collection requirements for part 982 are approved by OMB, under OMB Number 0581-0189--``Generic OMB Fruit Crops.'' No changes are anticipated in these requirements as a result of this proceeding. Should any such changes become necessary, they would be submitted to OMB for approval. 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 Government Paperwork Elimination Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. 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. Civil Justice Reform The amendments to the order 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 would not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this proposal. 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 no later than 20 days after the date of 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 June 12, 2017, issue of the Federal Register (82 FR 26859) 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 of Hazelnuts 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 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 900.400-407) to determine whether the annexed order amending the order regulating the handling of hazelnuts 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 hazelnuts in the production area. The representative period for the conduct of such referendum is hereby determined to be July 1, 2016, through June 30, 2017. [[Page 45211]] The agents of the Secretary to conduct such referendum are hereby designated to be Dale Novotny and Gary Olson, California Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1220 SW Third Avenue, Suite 305, Portland, Oregon 97204; telephone: (503) 326-2724; or fax: (503) 326-7440 or Email: [email protected] or [email protected], respectively. Order Amending the Order Regulating the Handling of Hazelnuts Grown in Oregon and Washington \1\ --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- Findings and Determinations The findings and determinations hereinafter set forth are supplementary to the findings and determinations that were previously made in connection with the issuance of the marketing 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. 601-674), and the applicable rules of practice and procedure effective thereunder (7 CFR part 900), a public hearing was held upon proposed further amendment of Marketing Order No. 982, regulating the handling of hazelnuts grown in Oregon and Washington. Upon the basis of the record, it is found that: (1) The marketing order, as amended, and as hereby proposed to be further amended, and all of the terms and conditions thereof, would tend to effectuate the declared policy of the Act; (2) The marketing order, as amended, and as hereby proposed to be further amended, regulates the handling of hazelnuts 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 order upon which a hearing has been held; (3) The marketing order, as amended, and as hereby proposed to be further amended, is limited in its 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 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 proposed to be 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 hazelnuts grown in Oregon and Washington; and (5) All handling of hazelnuts grown in the production area as defined in the marketing 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 hazelnuts 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 Recommended Decision issued on June 5, 2017, and published in the June 12, 2017, issue of the Federal Register (82 FR 26859) 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 982 Hazelnuts, Marketing agreements, Nuts, Reporting and recordkeeping requirements. Recommended Further Amendment of the Marketing Order For the reasons set out in the preamble, 7 CFR part 989 is proposed to be amended as follows: PART 982--HAZELNUTS GROWN IN OREGON AND WASHINGTON 0 1. The authority citation for 7 CFR part 982 continues to read as follows: Authority: 7 U.S.C. 601-674. Subpart A--[Amended] 0 2. Designate the subpart labeled ``Order Regulating Handling'' as subpart A. 0 3. Revise Sec. 982.12 to read as follows: Sec. 982.12 Merchantable hazelnuts. Merchantable hazelnuts means inshell hazelnuts that meet the grade, size, and quality regulations in effect pursuant to Sec. 982.45 and are likely to be available for handling as inshell hazelnuts. 0 4. Amend Sec. 982.40 by revising paragraph (d) to read as follows: Sec. 982.40 Marketing policy and volume regulation. * * * * * (d) Grade, size, and quality regulations. Prior to September 20, the Board may consider grade, size, and quality regulations in effect and may recommend modifications thereof to the Secretary. * * * * * 0 5. Revise the undesignated center heading prior to Sec. 982.45 to read as follows: Grade, Size, and Quality Regulation 0 6. In Sec. 982.45: 0 a. Revise the section heading; and 0 b. Add new paragraphs (c) and (d). The revisions to read as follows: Sec. 982.45 Establishment of grade, size, and quality regulations. * * * * * (c) Quality regulations. For any marketing year, the Board may establish, with the approval of the Secretary, such minimum quality and inspection requirements applicable to hazelnuts to facilitate the reduction of pathogens as will contribute to orderly marketing or will be in the public interest. In such marketing year, no handler shall handle hazelnuts unless they meet applicable minimum quality and inspection requirements as evidenced by certification acceptable to the Board. (d) Different regulations for different markets. The Board may, with the approval of the Secretary, recommend different outgoing quality requirements for different markets. The Board, with the approval of the Secretary, may establish rules and regulations necessary and incidental to the administration of this provision. 0 7. Amend Sec. 982.46 by adding paragraph (d) to read as follows: Sec. 982.46 Inspection and certification. * * * * * (d) Whenever quality regulations are in effect pursuant to Sec. 982.45, each handler shall certify that all product to be handled or credited in satisfaction of a restricted obligation meets the quality regulations as prescribed. Subpart B--Grade and Size Requirements 0 8. Designate the subpart labeled ``Grade and Size Regulation'' as subpart B and revise the heading as shown above. [[Page 45212]] Subpart C--[Amended] 0 9. Designate the subpart labeled ``Free and Restricted Percentages'' as subpart C. Subpart D--[Amended] 0 10. Designate the subpart labeled ``Assessment Rates'' as subpart D. Subpart E--Administrative Requirements 0 11. Designate the subpart labeled ``Administrative Rules and Regulations'' as subpart E and revise the heading as shown above. Dated: September 14, 2017. Bruce Summers, Acting Administrator, Agricultural Marketing Service. [FR Doc. 2017-19920 Filed 9-27-17; 8:45 am] BILLING CODE 3410-02-P
![45208
Proposed Rules Federal Register
Vol. 82, No. 187
Thursday, September 28, 2017
This section of the FEDERAL REGISTER Independence Avenue SW., Stop 0237, to the provisions of the Agricultural
contains notices to the public of the proposed Washington, DC 20250–0237. Marketing Agreement Act of 1937, as
issuance of rules and regulations. The FOR FURTHER INFORMATION CONTACT: amended (7 U.S.C. 601–674), hereinafter
purpose of these notices is to give interested referred to as the ‘‘Act,’’ and the
Melissa Schmaedick, Marketing Order
persons an opportunity to participate in the applicable rules of practice and
rule making prior to the adoption of the final and Agreement Division, Specialty
rules. Crops Program, AMS, USDA, Post Office procedure governing the formulation of
Box 952, Moab, UT 84532; Telephone: marketing agreements and orders (7 CFR
(202) 557–4783, Fax: (435) 259–1502, or part 900). Notice of this hearing was
DEPARTMENT OF AGRICULTURE Julie Santoboni, Marketing Order and published in the Federal Register
Agreement Division, Specialty Crops September 30, 2016 (81 FR 67217. The
Agricultural Marketing Service Program, AMS, USDA, 1400 notice of hearing contained two
Independence Avenue SW., Stop 0237, proposals submitted by the Board and
7 CFR Part 982 Washington, DC 20250–0237; one submitted by USDA.
Telephone: (202) 720–2491, Fax: (202) The amendments in this decision
[Doc. No. AO–SC–16–0136; AMS–SC–16– 720–8938, or Email: would:
0074; SC16–982–1] Melissa.Schmaedick@ams.usda.gov or (1) Add authority to regulate quality
Julie.Santoboni@ams.usda.gov. for the purpose of pathogen reduction;
Hazelnuts Grown in Oregon and Small businesses may request (2) Add authority to establish
Washington; Secretary’s Decision and information on this proceeding by different outgoing quality regulations for
Referendum Order on Proposed contacting Richard Lower, Marketing different markets; and
Amendments to Marketing Order No. Order and Agreement Division, (3) Make any such changes as may be
982 Specialty Crops Program, AMS, USDA, necessary to the order to conform to any
AGENCY: Agricultural Marketing Service, 1400 Independence Avenue SW., Stop amendment that may be adopted, or to
USDA. 0237, Washington, DC 20250–0237; correct minor inconsistencies and
Telephone: (202) 720–2491, Fax: (202) typographical errors.
ACTION: Proposed rule and referendum 720–8938, or Email: Richard.Lower@ USDA is recommending one
order. ams.usda.gov. clarifying change to the language in the
SUMMARY: This decision proposes SUPPLEMENTARY INFORMATION: Prior proposed new paragraph 982.45(c),
amendments to Marketing Order No. documents in this proceeding: Notice of which would add authority to regulate
982 (order), which regulates the Hearing issued on September 27, 2016, quality. USDA has determined that the
handling of hazelnuts grown in Oregon and published in the September 30, language as presented in the Notice of
and Washington, and provides growers 2016, issue of the Federal Register (81 Hearing was redundant and, therefore,
with the opportunity to vote in a FR 67217) and a Recommended confusing. USDA has revised the
referendum to determine if they favor Decision issued on June 5, 2017, and proposed language in the new paragraph
the changes. Two amendments are published in the June 12, 2017, issue of § 982.45 (c) so that its intent is more
proposed by the Hazelnut Marketing the Federal Register (82 FR 26859). clearly stated. This new language is
Board (Board), which is responsible for This action is governed by the included in the proposed regulatory text
local administration of the order. The provisions of sections 556 and 557 of of this decision.
proposed amendments would add both title 5 of the United States Code and, Upon the basis of evidence
the authority to regulate quality for the therefore, is excluded from the introduced at the hearing and the record
purpose of pathogen reduction and the requirements of Executive Orders thereof, the Administrator of AMS on
authority to establish different 12866, 13563, and 13175. Additionally, June 5, 2017, filed with the Hearing
regulations for different markets. In because this rule does not meet the Clerk, USDA, a Recommended Decision
addition, the Agricultural Marketing definition of a significant regulatory and Opportunity to File Written
Service (AMS) proposed to make any action it does not trigger the Exceptions thereto by July 12, 2017. No
such changes as may be necessary to the requirements contained in Executive exceptions were filed.
order to conform to any amendment that Order 13771. See OMB’s Memorandum Final Regulatory Flexibility Analysis
may result from the public hearing. The titled ‘‘Interim Guidance Implementing
proposals would aid in pathogen Section 2 of the Executive Order of Pursuant to the requirements set forth
reduction and the industry’s ability to January 30, 2017 titled ‘Reducing in the Regulatory Flexibility Act (RFA),
meet the needs of different market Regulation and Controlling Regulatory AMS has considered the economic
destinations. Costs’ ’’ (February 2, 2017). impact of this action on small entities.
Notice of this rulemaking action was Accordingly, AMS has prepared this
DATES: The referendum will be final regulatory flexibility analysis.
jstallworth on DSKBBY8HB2PROD with PROPOSALS
provided to tribal governments through
conducted from October 16, 2017, the Department of Agriculture’s (USDA) The purpose of the RFA is to fit
through November 3, 2017. The Office of Tribal Relations. regulatory actions to the scale of
representative period for the purpose of businesses subject to such actions so
the referendum is July 1, 2016, through Preliminary Statement that small businesses will not be unduly
June 30, 2017. The proposed amendments are based or disproportionately burdened.
ADDRESSES: Marketing Order and on the record of a public hearing held Marketing orders and amendments
Agreement Division, Specialty Crops on October 18, 2016, in Wilsonville, thereto are unique in that they are
Program, AMS, USDA, 1400 Oregon. The hearing was held pursuant normally brought about through group
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![Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules 45211
The agents of the Secretary to conduct Act, and the issuance of several orders available for handling as inshell
such referendum are hereby designated applicable to subdivisions of the hazelnuts.
to be Dale Novotny and Gary Olson, production area would not effectively ■ 4. Amend § 982.40 by revising
California Marketing Field Office, carry out the declared policy of the Act; paragraph (d) to read as follows:
Marketing Order and Agreement (4) The marketing order, as amended,
Division, Specialty Crops Program, and as hereby proposed to be further § 982.40 Marketing policy and volume
regulation.
AMS, USDA, 1220 SW Third Avenue, amended, prescribes, insofar as
Suite 305, Portland, Oregon 97204; practicable, such different terms * * * * *
telephone: (503) 326–2724; or fax: (503) applicable to different parts of the (d) Grade, size, and quality
326–7440 or Email: DaleJ.Novotny@ production area as are necessary to give regulations. Prior to September 20, the
ams.usda.gov or GaryD.Olson@ due recognition to the differences in the Board may consider grade, size, and
ams.usda.gov, respectively. production and marketing of hazelnuts quality regulations in effect and may
grown in Oregon and Washington; and recommend modifications thereof to the
Order Amending the Order Regulating Secretary.
the Handling of Hazelnuts Grown in (5) All handling of hazelnuts grown in
the production area as defined in the * * * * *
Oregon and Washington 1
marketing order is in the current of ■ 5. Revise the undesignated center
Findings and Determinations interstate or foreign commerce or heading prior to § 982.45 to read as
The findings and determinations directly burdens, obstructs, or affects follows:
hereinafter set forth are supplementary such commerce.
Grade, Size, and Quality Regulation
to the findings and determinations that Order Relative to Handling
were previously made in connection ■ 6. In § 982.45:
with the issuance of the marketing It is therefore ordered, that on and ■ a. Revise the section heading; and
order; and all said previous findings and after the effective date hereof, all ■ b. Add new paragraphs (c) and (d).
determinations are hereby ratified and handling of hazelnuts grown in Oregon The revisions to read as follows:
affirmed, except insofar as such findings and Washington shall be in conformity
to, and in compliance with, the terms § 982.45 Establishment of grade, size, and
and determinations may be in conflict quality regulations.
with the findings and determinations set and conditions of the said order as
hereby proposed to be amended as * * * * *
forth herein.
follows: (c) Quality regulations. For any
(a) Findings and Determinations
The provisions of the proposed marketing year, the Board may establish,
Upon the Basis of the Hearing Record
Pursuant to the provisions of the marketing order amending the order with the approval of the Secretary, such
Agricultural Marketing Agreement Act contained in the Recommended minimum quality and inspection
of 1937, as amended (7 U.S.C. 601–674), Decision issued on June 5, 2017, and requirements applicable to hazelnuts to
and the applicable rules of practice and published in the June 12, 2017, issue of facilitate the reduction of pathogens as
procedure effective thereunder (7 CFR the Federal Register (82 FR 26859) will will contribute to orderly marketing or
part 900), a public hearing was held be and are the terms and provisions of will be in the public interest. In such
upon proposed further amendment of this order amending the order and are marketing year, no handler shall handle
Marketing Order No. 982, regulating the set forth in full herein. hazelnuts unless they meet applicable
handling of hazelnuts grown in Oregon minimum quality and inspection
List of Subjects in 7 CFR Part 982 requirements as evidenced by
and Washington.
Upon the basis of the record, it is Hazelnuts, Marketing agreements, certification acceptable to the Board.
found that: Nuts, Reporting and recordkeeping (d) Different regulations for different
(1) The marketing order, as amended, requirements. markets. The Board may, with the
and as hereby proposed to be further approval of the Secretary, recommend
Recommended Further Amendment of different outgoing quality requirements
amended, and all of the terms and the Marketing Order
conditions thereof, would tend to for different markets. The Board, with
effectuate the declared policy of the Act; For the reasons set out in the the approval of the Secretary, may
(2) The marketing order, as amended, preamble, 7 CFR part 989 is proposed to establish rules and regulations
and as hereby proposed to be further be amended as follows: necessary and incidental to the
amended, regulates the handling of administration of this provision.
hazelnuts grown in the production area PART 982—HAZELNUTS GROWN IN ■ 7. Amend § 982.46 by adding
in the same manner as, and are OREGON AND WASHINGTON paragraph (d) to read as follows:
applicable only to, persons in the
■ 1. The authority citation for 7 CFR § 982.46 Inspection and certification.
respective classes of commercial and
part 982 continues to read as follows: * * * * *
industrial activity specified in the
marketing order upon which a hearing Authority: 7 U.S.C. 601–674. (d) Whenever quality regulations are
has been held; in effect pursuant to § 982.45, each
(3) The marketing order, as amended, Subpart A—[Amended] handler shall certify that all product to
and as hereby proposed to be further be handled or credited in satisfaction of
■ 2. Designate the subpart labeled a restricted obligation meets the quality
amended, is limited in its application to ‘‘Order Regulating Handling’’ as subpart
jstallworth on DSKBBY8HB2PROD with PROPOSALS
the smallest regional production area regulations as prescribed.
A.
that is practicable, consistent with ■ 3. Revise § 982.12 to read as follows: Subpart B—Grade and Size
carrying out the declared policy of the
§ 982.12 Merchantable hazelnuts.
Requirements
1 This order shall not become effective unless and Merchantable hazelnuts means ■ 8. Designate the subpart labeled
until the requirements of § 900.14 of the rules of
practice and procedure governing proceedings to
inshell hazelnuts that meet the grade, ‘‘Grade and Size Regulation’’ as subpart
formulate marketing agreements and marketing size, and quality regulations in effect B and revise the heading as shown
orders have been met. pursuant to § 982.45 and are likely to be above.
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![45212 Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules
Subpart C—[Amended] SBA will post all comments on paragraphs, existing § 134.201(b)(8)
www.regulations.gov. If you wish to would be redesignated as
■ 9. Designate the subpart labeled ‘‘Free submit confidential business § 134.201(b)(10).
and Restricted Percentages’’ as subpart information (CBI) as defined in the User
C. B. 13 CFR Part 134, Subpart J
Notice at www.regulations.gov, please
submit the information to Daniel K. SBA proposes to add new subpart J,
Subpart D—[Amended]
George, Attorney Advisor, Office of consisting of §§ 134.1001–1013, in order
■ 10. Designate the subpart labeled Hearings and Appeals, U.S. Small to conform OHA’s rules of practice for
‘‘Assessment Rates’’ as subpart D. Business Administration, 409 Third protests of eligibility for inclusion in the
Street SW., Washington, DC 20416, or CVE database (CVE Protests). As a
Subpart E—Administrative send an email to Daniel.George@ result, the new rules of practice for
Requirements sba.gov. Highlight the information that protests of eligibility for inclusion in the
■ 11. Designate the subpart labeled you consider to be CBI and explain why CVE database would mirror SBA’s
‘‘Administrative Rules and Regulations’’ you believe SBA should hold this existing rules for protests of service-
as subpart E and revise the heading as information as confidential. SBA will disabled veteran owned small
shown above. review the information and make the businesses, found in 13 CFR part 125
final determination whether it will subpart D.
Dated: September 14, 2017. publish the information. Proposed § 134.1001(b) states that the
Bruce Summers, FOR FURTHER INFORMATION CONTACT: provisions of subparts A and B also
Acting Administrator, Agricultural Marketing Daniel K. George, Attorney Advisor, at apply to protests of eligibility for
Service. (202) 401–8200 or Daniel.George@ inclusion in the CVE database. Section
[FR Doc. 2017–19920 Filed 9–27–17; 8:45 am] sba.gov. 134.1001(c) adds that the protest
BILLING CODE 3410–02–P procedures are separate from those
SUPPLEMENTARY INFORMATION:
governing Service-Disabled Veteran-
Background Owned Small Business Concern (SDVO
SMALL BUSINESS ADMINISTRATION Sections 1832 and 1833 of the NDAA SBC) protests for non-VA procurements,
2017 authorized the SBA’s OHA to which are subject to 13 CFR part 125.
13 CFR Part 134 determine protests and appeals related Section 134.1001(d) states that protests
RIN 3245–AG87 to inclusion in the CVE database. In of a concern’s eligibility for a non-VA
order to implement these sections, this procurement as an SDVO SBC are
Rules of Practice for Protests and proposed rule would amend OHA’s governed by 13 CFR part 125. In
Appeals Regarding Eligibility for jurisdiction at subparts A and B of 13 addition, § 134.1001(e) specifies that
Inclusion in the U.S. Department of CFR part 134 to include protests of appeals that relate to a determination
Veterans Affairs, Center for eligibility for inclusion in the CVE made by the SBA’s Director, Office of
Verification and Evaluation Database database and appeals of denials and Government Contracting (D/GC) are
AGENCY: U.S. Small Business cancellations of inclusion in the CVE governed by subpart E of 13 CFR part
Administration. database. In addition, the proposed rule 125.
would create a new subpart J in 13 CFR As proposed in § 134.1002, the
ACTION: Proposed rule.
part 134 to set out detailed rules of Secretary of the VA, or his/her designee,
SUMMARY: The U.S. Small Business practice for protests of eligibility for as well as the Contracting Officer (CO)
Administration (SBA) is proposing to inclusion in the VA CVE database, and or an offeror in a VA procurement
amend the rules of practice of its Office a new subpart K to set out detailed rules awarded to a small business may file a
of Hearings and Appeals (OHA) to of practice for appeals of denials and CVE Protest. A protesting offeror need
implement procedures for protests of cancellations of verification for not be the offeror next in line for award.
eligibility for inclusion in the inclusion in the VA’s CVE database. Section 134.1003 establishes the
Department of Veterans Affairs (VA) Section-by-Section Analysis grounds for filing a CVE Protest as
Center for Verification and Evaluation status, and ownership and control.
(CVE) database, and procedures for A. 13 CFR Part 134 Subparts A and B Paragraph (c) requires the Judge to
appeals of denials and cancellations of SBA proposes to amend § 134.102, the determine a protested concern’s
inclusion in the CVE database. These rules for establishing OHA jurisdiction, eligibility for inclusion in the CVE as of
amendments would be in accordance to add protests of eligibility for the date the protest was filed.
with Sections 1832 and 1833 of the inclusion in the CVE database and Section 134.1004(a) establishes the
National Defense Authorization Act for appeals of denials and cancellations of deadlines for filing a CVE Protest, which
Fiscal Year 2017 (NDAA 2017). inclusion in the CVE database, as two is at any time for the Secretary of the VA
DATES: Comments must be received on new types of proceedings over which and any time during the life of a
or before October 30, 2017. OHA would have jurisdiction. New contract for the CO. Paragraph (a)(2)(i)
ADDRESSES: You may submit comments, § 134.102(u) would allow for protests of instructs that an offeror must file its
identified by RIN 3245–AG87 by any of eligibility for inclusion in the CVE protest within five days of being
the following methods: database. New § 134.102(v) would allow notified of the identity of the apparent
• Federal eRulemaking Portal: http:// for appeals of denials and cancellations awardee. Paragraphs (a)(3) and (4)
jstallworth on DSKBBY8HB2PROD with PROPOSALS
www.regulations.gov. Follow the of inclusion in the CVE database. indicate the rule for counting days and
instructions for submitting comments. SBA also proposes to amend that any untimely protest will be
• Mail, Hand Delivery/Courier: § 134.201(b) by adding new paragraphs dismissed. Paragraph (b) describes the
Delorice Price Ford, Assistant (8) and (9) to include protests of methods for filing a CVE Protest by
Administrator for Hearings and eligibility for inclusion in the CVE interested parties. A CVE Protest
Appeals, U.S. Small Business database and appeals of denials and brought by an offeror is filed with the
Administration, 409 Third Street SW., cancellations of inclusion in the CVE CO, who then forwards the protest to
Washington, DC 20416. database. As a result of these new OHA.
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Document Created: 2017-09-28 01:32:44
Document Modified: 2017-09-28 01:32:44
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule and referendum order. | |
| Dates | The referendum will be conducted from October 16, 2017, through November 3, 2017. The representative period for the purpose of the referendum is July 1, 2016, through June 30, 2017. | |
| Contact | Melissa Schmaedick, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, Post Office Box 952, Moab, UT 84532; Telephone: (202) 557-4783, Fax: (435) 259- 1502, or Julie Santoboni, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., Stop 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected] or [email protected] | |
| FR Citation | 82 FR 45208 | |
| CFR Associated | Hazelnuts; Marketing Agreements; Nuts and Reporting and Recordkeeping Requirements |
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