[Federal Register Volume 59, Number 42 (Thursday, March 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4822]


[[Page Unknown]]

[Federal Register: March 3, 1994]


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DEPARTMENT OF AGRICULTURE
7 CFR Part 917

[Docket No. FV92-917-1]

 

Fresh Pears and Peaches Grown in California; Suspension of the 
Pear Provisions and Certain Nomination Provisions, and Referendum Order 
Under Marketing Order No. 917

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Suspension and referendum order.

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SUMMARY: This rule suspends all the provisions applicable to pears and 
certain nomination provisions under Federal Marketing Order (M.O.) No. 
917. This rule also directs that a referendum be conducted among 
eligible pear producers in California to determine whether they favor 
continuance of the pear provisions under M.O. 917. This suspension is 
being implemented because the California Bartlett pear industry is now 
using a California State pear program, and is no longer using the pear 
provisions under M.O. 917.

EFFECTIVE DATE: The suspension becomes effective April 4, 1994.

FOR FURTHER INFORMATION CONTACT: Gary D. Rasmussen, Marketing 
Specialist, Marketing Order Administration Branch, Fruit and Vegetable 
Division, AMS, USDA, P.O. Box 96456, room 2523-S, Washington, DC 20090-
6456; telephone: 202-720-5127, or Terry Vawter, California Marketing 
Field Office, USDA/AMS, 2202 Monterey St., suite 102-B, Fresno, 
California 93721; telephone: 209-487-5901.

SUPPLEMENTARY INFORMATION: This rule is issued under the provisions of 
section 8c(16)(A) of the Agricultural Marketing Agreement Act of 1937, 
as amended (7 U.S.C. 601-674), hereinafter referred to as the Act; and 
of Sec. 917.42 (b) of Marketing Order No. 917 (7 CFR Part 917) 
regulating the handling of fresh pears and peaches grown in California, 
hereinafter referred to as the order.
    The order authorizes minimum grade, maturity, quality, and size 
requirements; container size, pack, and marking requirements; and 
reporting and special purpose shipment requirements. The order also 
provides for the establishment of production and marketing research, 
market development, and paid advertising.
    The referendum will be conducted in accordance with the procedure 
for the conduct of referenda to determine whether continuation of the 
order's pear provisions is favored by producers, who during the 
representative period were engaged, in the State of California, in the 
production of pears covered by the order. The procedure applicable to 
the referenda is the ``Procedure for the Conduct of Referenda in 
Connection with Marketing Orders for Fruits, Vegetables, and Nuts 
Pursuant to the Agricultural Marketing Agreement Act of 1937, as 
Amended'' (7 CFR Part 900.400 et seq.). The representative production 
period for the conduct of such referendum is hereby determined to be 
June 1, 1994, through November 30, 1994. The referendum will be 
conducted within the period beginning December 1, 1994, and ending 
February 15, 1995.
    The Department is issuing this rule in conformance with Executive 
Order 12866.
    This rule has been reviewed under Executive Order 12778, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This rule will not preempt any state or local laws, regulations, or 
policies, unless they present an irreconcilable conflict with this 
rule.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 8c(15)(A) of the 
Act, any handler subject to an order may file with the Secretary a 
petition stating that the order, any provision of the order, or any 
obligation imposed in connection with the order is not in accordance 
with law and requesting a modification of the order or to be exempted 
therefrom. A handler is afforded the opportunity for a hearing on the 
petition. After the hearing, the Secretary 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 in equity to review the 
Secretary's ruling on the petition, provided a bill in equity is filed 
not later than 20 days after the date of the entry of the ruling.
    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA), the Administrator of the Agricultural Marketing 
Service (AMS) has considered the economic impact of this action on 
small entities.
    The purpose of the RFA is to fit regulatory actions to the scale of 
business subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and rules issued thereunder, are unique in that 
they are brought about through group action of essentially small 
entities acting on their own behalf. Thus, both statutes have small 
entity orientation and compatibility.
    There are about 45 California pear handlers subject to regulation 
under the order, and about 300 producers of pears in the production 
area. Small agricultural service firms are defined as those whose 
annual receipts are less than $3,500,000, and small agricultural 
producers have been defined by the Small Business Administration (13 
CFR 121.601) as those having annual receipts of less than $500,000. A 
majority of these handlers and producers may be classified as small 
entities.
    This rule indefinitely suspends all of the pear provisions in the 
order, along with the rules and regulations issued thereunder, 
including: (1) Provisions pertaining to the administration of the 
order, including committee nominations and selections; (2) the 
establishment of grade, size, quality, maturity, pack and container, 
and inspection requirements; (3) the issuance of administrative rules 
and regulations related to exemptions and special purpose shipments; 
and (4) information collection and reporting requirements. The pear 
provisions being suspended are in Secs. 917.4, 917.15, 917.20, 917.21, 
917.24, 917.25, 917.26, 917.28, 917.29, 917.34, and 917.35 of the 
order; and in Secs. 917.100, 917.121, 917.143, 917.149, 917.176, 
917.179, and 917.461 of the rules and regulations issued thereunder.
    This rule also suspends certain provisions in Sec. 917.18 
pertaining to nomination of Control Committee members, to enable the 
Control Committee to continue to function with only peach members upon 
suspension of the order's pear provisions. Since the pear provisions 
are being suspended, there is no need for the pear industry members to 
serve on the Control Committee.
    The Pear Commodity Committee (committee) unanimously recommended 
suspension of most of the pear provisions under the order, because such 
provisions are no longer needed. The California Bartlett pear industry 
is now functioning under the California Pear Marketing Program (State 
pear program), and is no longer using the pear order provisions. The 
State pear program, developed by the California Bartlett pear industry 
and the California Department of Food and Agriculture, is similar to 
the Federal pear program.
    The committee recommended suspension, not termination, of the 
order's pear provisions to provide the California Bartlett pear 
industry with an opportunity to review operations under the State pear 
program for an indefinite period of time. The committee wants to 
maintain the option of reactivating the Federal pear program, if the 
State pear program does not operate satisfactorily. The California pear 
industry will have the opportunity to examine the effectiveness of the 
State pear program until the end of the 1994 marketing season. At that 
time, the Department will conduct a referendum of eligible pear 
producers to determine whether they favor continuance of the Federal 
pear program.
    The Secretary of Agriculture (Secretary) has the authority to 
conduct a continuance referendum to determine whether producers 
affected by a marketing order favor continuance of their order. The 
Secretary has determined that continuance referenda are an effective 
means for ascertaining whether producers favor continuance of marketing 
order programs.
    The Secretary would consider termination of the order's pear 
provisions if less than two-thirds of the pear producers voting in the 
referendum and producers of less than two-thirds of the volume of pears 
represented in the referendum, favor continuance. In evaluating the 
merits of continuance versus termination, the Secretary would consider 
the results of the continuance referendum, other relevant information 
concerning the operation of the order's pear provisions, and the 
relative benefits and disadvantages to producers, handlers, and 
consumers. Through such analysis, the Secretary would determine whether 
continued existence of the order's pear provisions would tend to 
effectuate the declared policy of the Act.
    In any event section 8c(16)(B) of the Act requires the Secretary to 
terminate an order whenever the Secretary finds that a majority of all 
producers favor termination, and that majority produced for market more 
than 50 percent of the commodity covered by the order.
    In the event the Secretary terminates the order's pear provisions, 
the Control Committee shall, for the purpose of liquidating the affairs 
of the committee, continue as trustees of any and all the funds and 
property in its possession, or under its control, including claims for 
any funds unpaid or property not delivered.
    Upon termination, the said trustees shall (1) continue in such 
capacity until discharged by the Secretary; (2) from time to time 
account for all receipts and disbursements and deliver all property on 
hand, together with all books and records of the committee and of the 
trustees, to such persons as the Secretary may direct; and (3) upon the 
request of the Secretary, execute such assignments or other instruments 
necessary or appropriate to vest in such person, full title and right 
to all of the funds, property, and claims vested in the committee or 
the trustees pursuant hereto.
    Any person to whom funds, property, or claims have been transferred 
or delivered, shall be subject to the same obligation imposed upon the 
committee and upon the trustees.
    After a statement of total claims and debts, any remaining funds 
held in the reserve account will be returned, on a pro rata basis, to 
those pear handlers who paid assessments under the order during the 
1991-92 fiscal period.
    It is hereby directed that a referendum be conducted in accordance 
with the procedure for the conduct of referenda (7 CFR 900.400 et seq.) 
to determine whether continuance of the order's pear provisions 
regulating the handling of pears is approved or favored by producers 
who during the representative period were engaged in the production of 
such pears grown in California.
    The referendum agents of the Secretary to conduct the referendum 
are hereby designated as Kurt J. Kimmel and Terry Vawter, California 
Marketing Field Office, USDA/AMS, 2202 Monterey St., suite 102-B, 
Fresno, California 93721; telephone: 209-487-5901.
    Ballots will be mailed to all pear producers of record. Ballots may 
also be obtained at County Extension Service Offices, or by contacting 
the California Marketing Field Office. Copies of the order may also be 
obtained by contacting the California Marketing Field Office.
    In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C. 
chapter 35), information and collection requirements for pears under 
the order have been approved by the Office of Management and Budget 
(OMB) and assigned OMB Control No. 0581-0080). The ballot material to 
be used in the referendum herein ordered has been submitted to and 
approved by OMB, and it has been estimated that it will take an average 
of 30 minutes to read and complete the ballot for each of the 
approximately 300 producers who elect to participate in the voluntary 
referendum balloting.
    Based on the above, the Administrator of the AMS has determined 
that this rule will not have a significant economic impact on a 
substantial number of small entities.
    After consideration of all relevant material presented, including 
the committee's recommendations, and other available information, it is 
found and determined that the pear provisions in the order and the 
rules and regulations issued thereunder, along with certain provisions 
in Sec. 917.18 pertaining to the nomination of members to the Control 
Committee, do not tend to effectuate the declared policy of the Act at 
this time, and that such provisions should be suspended. It is further 
found that suspending all the rules and regulations pertaining to pears 
issued under the order will tend to effectuate the declared policy of 
the Act.

List of Subjects in 7 CFR Part 917

    Marketing agreements, Peaches, Pears, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR part 917 is 
amended as follows:
    1. The authority citation for 7 CFR part 917 is revised to read as 
follows:


    Authority: 7 U.S.C. 601-674.

PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA


Sec. 917.4  [Suspended in part]

    2. In Sec. 917.4 the words ``, and (b) all varieties of pears 
except Beurre Hardy, Beurre D'Anjou, Bosc, Winter Nelis, Doyenne du 
Comice, Beurre Easter, and Beurre Clairgeau'' are suspended.


Sec. 917.15  [Suspended in part]

    3. In Sec. 917.15 the words ``Sec. 917.21 through'' are suspended.


Sec. 917.18  [Suspended in part]

    4. In Sec. 917.18, paragraph (a) the words ``The number of 
remaining members which each respective commodity committee shall be 
entitled to nominate shall be based upon the proportion that the 
previous three fiscal period's shipments of the respective fruit is of 
the total shipments of all fruit to which this part is applicable 
during such periods. In the event provisions of this part are 
terminated as to any one fruit, nominations of members to the Control 
Committee shall be composed of representatives of the remaining two 
fruits. The apportionment shall be determined as aforesaid. In the 
event provisions of this part are terminated as to any two fruits, the 
members of the commodity committee of the remaining fruit shall have 
all the powers, duties, and functions given to the Control Committee 
under this part and sections of this part pertaining to the designation 
of the Control Committee shall be terminated.'' are suspended.


Sec. 917.20  [Suspended in part]

    5. In Sec. 917.20 the words ``a Pear Commodity Committee and'' are 
suspended.


Sec. 917.21  [Suspended]

    6. Section 917.21 is suspended in its entirety.


Sec. 917.24  [Suspended in part]

    7. In Sec. 917.24, paragraph (a) the words ``Sec. 917.21 and'' are 
suspended, and in paragraph (c) the words ``A grower nominated for 
membership on the Pear Commodity Committee must have produced at least 
51 percent of the pears shipped by him during the previous fiscal 
period, or he must represent an organization which produced at least 51 
percent of the pears shipped by it during such period.'' are suspended.


Sec. 917.25  [Suspended in part]

    8. In Sec. 917.25 the words ``Sec. 917.21 through'' are suspended.


Sec. 917.26  [Suspended in part]

    9. In Sec. 917.26 the words ``Sec. 917.21 through'' and the words 
``Sec. 917.21 and'' are suspended.


Sec. 917.28  [Suspended in part]

    10. In Sec. 917.28 the words ``Sec. 917.21 through'', and the 
word'', 917.21'' are suspended.


Sec. 917.29  [Suspended in part]

    11. In Sec. 917.29, paragraph (b) the words ``of the Pear Commodity 
Committee and'' and the word ``each'' are suspended.


Sec. 917.34  [Suspended in part]

    12. In Sec. 917.34, paragraph (k) the words ``Sec. 917.21 and'' are 
suspended.


Sec. 917.35  [Suspended in part]

    13. In Sec. 917.35, paragraph (a) the words ``and Pear'' and the 
word ``each'' are suspended everywhere they appear.


Sec. 917.100  [Suspended in part]

    14. In Sec. 917.100 the words ``pears and'' are suspended.


Sec. 917.121  [Suspended]

    15. Section 917.121 is suspended in its entirety.


Sec. 917.143  [Suspended in part]

    16. In Sec. 917.143, paragraph (b) introductory text and paragraphs 
(b)(1), (b)(2), and (b)(4) the words ``pears and'' are suspended, and 
in paragraph (b)(3) the words ``200 pounds of pears and'' are 
suspended.


Sec. 917.149  [Suspended]

    17. Section 917.149 is suspended in its entirety.


Sec. 917.176  [Suspended]

    18. Section 917.176 is suspended in its entirety.


Sec. 917.179  [Suspended in part]

    19. In Sec. 917.179 the words ``Sec. 917.176 and'' and the words 
``pears and'' are suspended.


Sec. 917.461  [Suspended]

    20. Section 917.461 is suspended in its entirety.


    Dated: February 24, 1994.
Patricia Jensen,
Acting Assistant Secretary, Marketing and Inspection Services.
[FR Doc. 94-4822 Filed 3-2-94; 8:45 am]
BILLING CODE 3410-02-P