Cite as 24 A.D. 757 (No. 9877) In re FAIRMONT FOODS COMPANY. AMA Docket No. M 65-1. Decided June 2, 1965. Application to dismiss denied-Petition amended Where application to dismiss has been rendered moot by the filing of amended petition, the application is denied. Decision by Thomas J. Flavin, Judicial Officer ORDER DENYING APPLICATION TO DISMISS In this proceeding under section 8c (15) (A) of the Agricultural Adjustment Act (1933), as reenacted and amended by the Agricultural Marketing Agreement Act of 1937 and subsequent amendments (7 U.S.C. 601 et seq.), respondent filed an application to dismiss the petition herein May 7, 1965. On June 1, 1965, petitioner filed an amended petition and an opposition to the application to dismiss on the ground that such application has been rendered moot by the filing of the amended petition. We are in agreement therewith. Accordingly, the application to dismiss is denied. (No. 9878) In re J. W. JOYCE et al. AMA Docket No. F&V 918-1. Decided June 10, 1965. Peach order-Scope of review-Size regulation-Validity of--Discrimination A limitation of shipments regulation which prohibits, other than in bulk to adjacent markets, shipment of peaches smaller than 1% inches in diameter constitutes a reasonable exercise of administrative discretion authorized by the act and the order and is not discriminatory as to petitioners. The representation on the industry committee from petitioners' section is greater than warranted by the volume of peaches produced in that area and the composition of the committee, therefore, is not discriminatory as to petitioners. Franklin, Barham, Coleman, Elliott & Blackburn, Valdosta, Ga., for petitioners. Mr. Kurt W. Muellenberg, for respondent. Mr. Jack W. Bain, Hearing Examiner. Decision by Thomas J. Flavin, Judicial Officer Cite as 24 A.D. 757 PRELIMINARY STATEMENT This is a proceeding under section 8c (15) (A) of the Agricultural Adjustment Act (1933), as reenacted and amended by the Agricultural Marketing Agreement Act of 1937 and subsequent amendments (7 U.S.C. 601 et seq.). Petitioners, apparently handlers subject to Order No. 918 (7 CFR 918.1 et seq.), issued under the act and regulating the handling of fresh peaches grown in the State of Georgia, filed a petition May 18, 1965. Petitioners attack a limitation of shipments regulation issued under the order effective, in part, June 1, 1965 (30 F.R. 6431) which prohibits, other than in bulk to adjacent markets, the shipment of peaches which are smaller than 1% inches in diameter. Petitioners contend that the regulation in issue and the composition of the Industry Committee established under the order are discriminatory as to them. The Acting Deputy Administrator, Consumer and Marketing Service, filed an answer to the petition May 21, 1965, upholding the validity of the contested regulation. Petitioners also filed an application for interim relief from the operation of the disputed regulation during the pendency of a decision on the merits. Respondent filed an answer to the application for interim relief June 2, 1965, and petitioners' request for such relief was denied on that date. An oral hearing upon the petition was held May 27, 1965, in Macon, Georgia, before Jack W. Bain, Hearing Examiner, Office of Hearing Examiners, United States Department of Agriculture. At the hearing, petitioners were represented by Ed. G. Barham of Franklin, Barham, Coleman, Elliot & Blackburn, Attorneys at Law, Valdosta, Georgia, and respondent was represented by Kurt Muellenberg, Office of the General Counsel, United States Department of Agriculture. After the hearing, respondent filed a brief. On June 9, 1965, the hearing examiner filed a report containing proposed findings of fact and conclusions and recommending that the petition be dismissed. Both parties orally waived the filing of exceptions to the hearing examiner's report in order to expedite this proceeding. FINDINGS OF FACT 1. The names and addresses of the petitioners are as follows: J. W. Joyce, Adel, Georgia F. D. Wilkerson, Morven, Georgia Cite as 24 A.D. 757 A. A. Godwin, Morven, Georgia Burton Brooks Orchard Corp., Barney, Georgia Burton Bros., a partnership composed of Cortez Burton and Owen Burton, Barney, Georgia The petitioners apparently are handlers subject to Order No. 918, issued under the act and regulating the handling of fresh peaches grown in the State of Georgia. 2. Order No. 918 reads, in part, as follows: REGULATION OF SHIPMENTS § 918.60 By grades and sizes. (a) Industry Committee recommendations. Whenever the Industry Committee deems it advisable to limit the shipment of any variety or varieties of peaches, it shall recommend to the Secretary the grades or sizes, or both, thereof deemed advisable by it to be shipped during a specified period or periods; and any such recommendation may include a proposal that separate requirements be made applicable to shipments of any such variety or varieties of peaches to destinations in adjacent markets different from the proposed grade and size limitations applicable to shipments of the same variety to destinations other than in adjacent markets.*** (b) Establishment of grade and size regulations. Whenever the Secretary finds, from the recommendation and information submitted by the Industry Committee or from other available information, that to limit the shipment of any variety or varieties of peaches to particular grades or sizes, or both, would tend to effectuate the declared policy of the act, he shall so limit the shipment of peaches during a specified period or periods; and any such regulation may prescribe separate requirements for shipments of any such Cite as 24 A.D. 757 variety or varieties of peaches to destinations in adjacent markets different from the grade and size limitations applicable to shipments of the same variety to destinations other than in adjacent markets. The Secretary shall immediately notify the committee of the issuance of each such regulation, and the committee shall promptly give adequate notice thereof to handlers and growers. § 918.11 Adjacent markets "Adjacent markets" means the States of Florida, Alabama, Tennessee, North Carolina, South Carolina, Mississippi, and that portion of Louisiana which is east of the Mississippi River. 3. The Industry Committee established under the order is composed of eight members with one member representing the South Georgia District, four members representing the Central Georgia District and three members representing the North Georgia District. Petitioners are shippers from the South Georgia District. The total expected shipment from the South Georgia District is approximately 150 cars of peaches, or 82,500 bushels. Shipments of peaches from the entire production area under the order are expected to total approximately 4200 cars or 2,310,000 bushels of peaches. 4. On April 29, 1965, the Industry Committee established under the order met in Macon, Georgia, in part, to discuss 1965 crop prospects and to consider the recommendation of grade and size regulation to the Secretary. After the issuance of a marketing policy report by the committee and the recommendation by the Distributors' Advisory Committee for a size limitation of 1% inches minimum diameter beginning June 1, 1965, the representative from the South Georgia District, a petitioner herein, proposed a committee recommendation for limitation of shipments which was approved or favored by seven of the eight member committee. The one dissenting vote was based on grounds other than the proposed size limitation contained in the recommendation. 5. On May 6, 1965, the Secretary, through his delegatee, after consideration of the committee's recommendation and other available information, and after a finding that the order issued "will tend to effectuate the declared policy of the Act with respect to shipments of fresh peaches grown in the State of Georgia", issued a limitation of shipments regulation (30 F.R. 6431) which adopted Cite as 24 A.D. 757 the committee's recommendation as to size restriction and which reads, in part, as follows: § 918.306 Peach Order 1. *** (b) Order. *** (4) During the period beginning at 12:01 a.m., e.s.t., June 1, 1965, and ending at 12:01 a.m., e.s.t., September 1, 1965, no handler shall ship (except peaches in bulk to destinations in the adjacent markets) any peaches which are smaller than 1% inches in diameter, except that not more than 10 percent, by count, of such peaches in any bulk lot or any lot of packages, and not more than 15 percent, by count, of such peaches in any container in such lot, may be smaller than 1% inches in diameter. (c) The inspection requirement contained in § 918.64 of this part is hereby suspended with respect to peaches in bulk shipped to destinations in the adjacent markets during the period specified in paragraph (b) of this section. (d) The maturity regulations contained in § 913.400 of this part are hereby suspended with respect to shipments of peaches to destinations other than in the adjacent markets during the period specified in paragraph (b) of this section. (e) When used herein, the terms "handler," "adjacent markets," "peaches," "peaches in bulk," and "ship" shall have the same meaning as when used in the aforesaid amended marketing agreement and order, and the terms "U. S. No. 1" and "diameter" shall have the same meaning as when used in the revised United States Standards for Peaches (7 CFR 51.1210-51.1223). 6. All shippers of peaches grown in the State of Georgia have a percentage of their crop which will not meet the minimum size requirements recommended by the committee and issued by the Secretary. The peaches grown in the South Georgia District are primarily of the Maygold variety. This variety of peach can meet the 1% inch minimum diameter restriction provided proper cultural practices are followed, primarily proper thinning of the peaches, that is, the reduction of the number of peaches on the trees. |