Cite as 24 A.D. 757 CONCLUSIONS It should be stated at the outset, as we have stated many times that the applicable statutory provisions afford a forum for adjudicating issues as to whether an order, a provision thereof, or an obligation imposed in connection therewith is ". . . not in accordance with law" (7 U.S.C. 608c (15) (A)). Our inquiry does not encompass questions of policy or the evaluation of the effectiveness of economic and marketing regulations promulgated pursuant to the act. See e.g., In re Independent Milk Producer-Distributors' Association, 20 A.D. 1 (1961); In re Hygeia Dairy Company, 19 A.D. 257, 273 (1960), aff'd, S.D. Tex. June 19, 1964; In re Charles P. Mosby, Jr., d/b/a Cedar Grove Farms, 16 A.D. 1209, 1220 (1957), aff'd, S.D. Miss. Jan. 5, 1959; In re Clover Leaf Dairy Company, 15 A.D. 339 (1956), aff'd, N.D. Ind. Sept. 10, 1958. Cf. Pacific States Box & Basket Co. v. White, 296 U.S. 176, 182 (1935). Consequently, we do not consider herein what the composition of the Industry Committee, or what the size limitation for the 1965 shipping season, should be. Cf. In re Colonel Norman J. Riebe, 22 A.D. 350 (1963); In re Edward J. Vagim, d/b/a Edward J. Vagim & Co., 17 A.D. 167 (1958). Rather, we are limited to an inquiry as to the validity of what was promulgated. The districts established under the order were redefined recently (28 F.R. 1418) to afford the shippers in the most southern section of Georgia, a relatively new peach producing area, a representative on the Industry Committee. The representation on the committee from this section is much greater than is warrented by the volume of peaches produced in such area. Under these circumstances, we cannot conclude that the composition of the Industry Committee is "not in accordance with law" or that petitioners are discriminated against by virtue thereof, as contended by petitioners. We now turn to petitioners' attack upon the regulation in issue. Some basic principles must be kept in mind when examining the validity or reasonableness of an order, a provision thereof, or a regulation issued thereunder. "The background and legislative history of the Agricultural Marketing Agreement Act of 1937, as amended, leave no doubt that Congress gave the Secretary broad discretion in its administration." Queensboro Farm Products Inc. v. Wickard, 137 F.2d 969, 977 (2d Cir. 1943). The "terms of the Order are largely matters of administrative discretion" and the technical details "are left to the Secretary Cite as 24 A.D. 757 and his aids." Stark v. Wickard, 321 U.S. 288, 310 (1944). The responsibility of selecting the means of achieving the statutory policy and the relationship between the remedy and the policy are peculiarly matters for administrative competence. American Power & Light Co. v. Securities and Exchange Commission, 329 U.S. 90, 112 (1946); Secretary of Agriculture v. Central Roig Refining Co. 338 U.S. 605, 613-14 (1950). The test of reasonableness or substantive due process is a check upon such administrative discretion, and it may be stated roughly as an inquiry as to whether the means selected to achieve the statutory policy bear a reasonable and substantial relationship to the accomplishment of such policy and whether such means are arbitrary or capricious. Nebbia v. New York, 291 U.S. 502, 525, 537 (1934); Lapides v. Clark, 176 F.2d 619 (D.C. Cir. 1949), cert. denied, 338 U.S. 860 (1949); North American Company v. Securities and Exchange Commission, 133 F.2d 148 (2d Cir. 1943), aff'd, 327 U.S. 686 (1946); In re Clover Leaf Dairy Company et al., 15 A.D. 339 (1956). Pursuant to section 918.60 (a) of the amended order, after the issuance of a marketing policy report as required by sections 918.48 and 918.49 thereof and in accordance with the recommendation of the Distributors' Advisory Committee composed, in part, of the leading handlers of Georgia peaches (see sections 918.32, 918.33 and 918.37), the Industry Committee recommended to the Secretary the promulgation of the disputed size limitation. Such recommendation was proposed by the representative on the committee from the South Georgia District, the district in which petitioners are located, and was approved by seven of the eight member committee with the vote in opposition thereto based on matters other than the size limitation in issue. The committee's recommendation was made, in part, to serve notice on the Georgia peach industry that proper thinning of the peach trees was then necessary to meet the proposed size restriction. The recommended regulation was issued by the Secretary and was accompanied by the finding that such order "will tend to effectuate the declared policy of the Act with respect to shipments of fresh peaches grown in the State of Georgia."1 Petitioners contend that the establishment of the 1% inch 1 Section 2(1) of the act (7 U.S.C. 602 (1)) declares it to be the policy of the act, in part, to establish and maintain such orderly marketing conditions for agricultural commodities in interstate commerce as would establish parity prices to the growers thereof. See, e.g., In re Lo Bue Bros., 15 A.D. 1285 (1956); In re Beatrice Foods Co. et al., 15 A.D. 767 (1956); In re Terrace Park Dairy et al., 12 A.D. 1383, 1393 (1953). Cite as 24 A.D. 757 minimum diameter requirement is discriminatory as to them as the Maygold variety of peach which they grow in the South Georgia District cannot readily make this minimum size. A research horticulturist testified at the hearing herein that such was not the case, that is, that the Maygold variey can make the 1% inch diameter requirement if the trees are properly thinned. Further, it is interesting and significant to note in this regard from the 1963 and 1964 annual reports of the Industry Committee introduced into evidence herein that the Central Georgia District, an older and more experienced peach growing area, shipped during these seasons a much higher percentage of Maygold variety peaches which were 1% inches in diameter than were shipped from the South Georgia District. For example, during the 1963 season, 14.53% of the Maygold variety peaches shipped from the South Georgia District were below 17% inches in diameter while only 4.47% of this variety shipped from the Central Georgia District were below this size. Also, it is clear from the record that varieties of peaches other than the Maygold variety similarly experience some difficulty in attaining greater sizes and that all peach producers have peaches which will not meet the minimum size requirement contained in the disputed regulation. We cannot conclude on the basis of the record herein that petitioners have met their burden of establishing that the contested regulation is unduly discriminatory as to them especially as the size of peach produced depends so much upon the extent of thinning of peaches from the trees.2 See, e.g., United States v. Rock Royal Cooperative, Inc., 309 U.S. 533 (1939); Bailey Farm Dairy Co. v. Jones, 61 F.Supp. 209 (E.D. Mo. 1945), aff'd, 157 F.2d 87 (8th Cir. 1946), cert. denied, 329 U.S. 788 (1946); Wawa Dairy Farms, Inc. v. Wickard, 56 F.Supp. 67 (E.D. Pa. 1944), aff'd 149 F.2d 860 (3d Cir. 1945). Even if our conclusions had been otherwise, we seriously doubt that the result herein would be altered. The record contains testimony to the effect, and we would expect, that the presence of small sized peaches on the northern markets, especially when the larger peaches come on such markets in volume, has a price depressing effect on the bulk of the Georgia peach crop marketed in fresh channels. With this marketing condition in mind, it is clear that the pertinent restriction on the handling of the peach crop is reasonable, appropriate to 2 The amount of thinning which is "proper" is extremely elusive and we cannot find herein that petitioners have established that their trees are presently in this condition. Cite as 24 A.D. 757 a permissible end and reflects the particular conditions prevailing in the industry.3 Cf., e. g., In re Griffin & Brand of McAllen, Inc., 24 A.D. 415 (1965); In re Lo Bue Bros., 15 A.D. 1285 (1956); In re Kroells Packing Company, 10 A.D. 774 (1951). Cf. also Edwards v. United States, 91 F.2d 767 (9th Cir 1937). Under these circumstances, the fact that a particular regulation may impose economic losses upon certain areas or persons does not constitute a violation of the due process clause. See, e.g., Secretary of Agriculture v. Central Roig Refiing Co., supra at pp. 617-19. Bowles v. Willingham, 321 U.S. 503, 518 (1944); In re Central Dairy Products Company, 12 A.D. 303 (1953), and cases cited therein. It should be stated at this point that petitioners' peaches which do not meet the 1% inch diameter restriction are not a total loss to petitioners as they contend. Petitioners may market such peaches under the contested limitation of shipments regulation in bulk in adjacent markets and to processing plants. It seems to us that all other growers dispose of peaches in these outlets. In conclusion, the regulation under Order No. 918 of the handling of the 1965 Georgia peach crop is in accordance with law and the petition should be dismissed. All contentions of the parties presented for the record have been considered and whether or not specifically mentioned herein, any suggestions, requests, etc., inconsistent with this decision are denied. ORDER In view of the foregoing, the relief requested by the petitioners is denied and the petition is dismissed. 3 Petitioners' references to shipping regulations in effect during the 1964 season are of no assistance to them as such season, as stated in the committee's annual report for that year, "was by no means a run-of-the-mine year among the last dozen or so," but was "strikingly unique in many respects." Cite as 24 A.D. 766 (No. 9879) In re ADAMSON DAIRY, INC. AMA Docket No. M 33-1. Decided June 29, 1965. Reconsideration-Petition for, dismissed As the order of June 4, 1965, is supported by the evidence and by the law applicable thereto, petitioner's petition for reconsideration is dismissed. Decision by Thomas J. Flavin, Judicial Officer ORDER ON RECONSIDERATION 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.), an order was issued June 4, 1965, denying part of the relief requested in the petition. On June 21, 1965, petitioner filed a petition to reconsider the order of June 4, 1965. Such order was stayed June 21, 1965, to enable us to consider the petition for reconsideration and respondent filed an answer to such petition June 25, 1965. In the petition, petitioner repeats the arguments presented earlier in this proceeding. The matters set forth in the petition were considered at the time of the issuance of the prior order herein. Upon reconsideration, we find that the order of June 4, 1965, is supported by the evidence of record and by the law applicable thereto. Accordingly the petition for reconsideration should be and hereby is dismissed, the stay order of June 21, 1965, is hereby vacated and the order of June 4, 1965 is hereby reinstated. (No. 9880) In re STATE BROKERAGE AND MANUFACTURING COMPANY. AMA Docket No. M 135-3. Decided June 2, 1965. Withdrawal-Consent of Parties Decision by Thomas J. Flavin, Judicial Officer |