[Federal Register Volume 60, Number 125 (Thursday, June 29, 1995)]
[Proposed Rules]
[Pages 33761-33763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15947]



 ========================================================================
 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. 60, No. 125 / Thursday, June 29, 1995 / 
Proposed Rules  


[[Page 33761]]


DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Docket No. AO-99-A-6; FV-92-065]


Winter Pears Grown in Oregon, Washington, and California; 
Secretary's Decision and Referendum Order on Proposed Further Amendment 
of Marketing Agreement and Order No. 927

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule and referendum order.

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SUMMARY: This decision proposes amendments to the subject marketing 
agreement and order (order) and provides winter pear producers with the 
opportunity to vote in a referendum to determine if they favor the 
proposed amendments. The proposed amendments were submitted by the 
Winter Pear Control Committee (WPCC), the agency responsible for local 
administration of the order. The proposed amendments would redefine 
``ship or handle'' to include shipments of winter pears within the 
production area, update the definition of ``export market'' to 
recognize that there are now 50 states in the United States, authorize 
the WPCC to accept voluntary contributions and how such funds may be 
used, and revise the authority for exempting certain shipments from 
regulation. These proposed amendments are designed to improve the 
administration, operation and function of the winter pear marketing 
order program.

DATES: The referendum shall be conducted from November 1 through 
November 30, 1995.

FOR FURTHER INFORMATION CONTACT: Britthany Beadle, Marketing Order 
Administration Branch, Fruit and Vegetable Division, AMS, USDA, room 
2523-S, Washington, DC 20250-0200; telephone: (202) 720-5127; or Teresa 
Hutchinson, Northwest Marketing Field Office, Marketing Order 
Administration Branch, Fruit and Vegetable Division, AMS, USDA, 1220 
SW., Third Avenue, room 369, Portland, Oregon, 97204; telephone: (503) 
326-2725.

SUPPLEMENTARY INFORMATION: Prior documents in this proceeding: Notice 
of Hearing issued on November 16, 1992, and published in the November 
20, 1992, issue of the Federal Register (57 FR 54728). Recommended 
Decision and Opportunity To File Written Exceptions issued on March 15, 
1995, and published in the Federal Register on March 21, 1995 (60 FR 
14914).
    This administrative 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 to Executive Order 12866.

Preliminary Statement

    The proposed amendments were formulated on the record of a public 
hearing held in Portland, Oregon, on December 2, 1992, to consider the 
proposed amendment of the Marketing Agreement and Order No. 927, 
regulating the handling of winter pears grown in Oregon, Washington, 
and California hereinafter referred to collectively as the ``order.'' 
The hearing was held pursuant to the provisions of the Agricultural 
Marketing Agreement Act 1937, as amended (7 U.S.C. 601 et seq.), 
hereinafter referred to as the Act, and the applicable rules of 
practice and procedure governing proceedings to formulate marketing 
agreements and marketing orders (7 CFR part 900). The Notice of Hearing 
contained several amendment proposals submitted by the WPCC established 
under the order to assist in local administration of the program.
    The proposals would: (1) Redefine ``ship or handle'' to include 
shipments of winter pears within the production area; (2) update the 
definition of ``export market'' to recognize that there are now 50 
states in the United States; (3) authorize the WPCC to accept voluntary 
contributions and how such funds may be used; and (4) revise the 
authority for exempting certain shipments from regulation.
    Upon the basis of evidence introduced at the hearing and the record 
thereof, the Administrator of the Agricultural Marketing Service (AMS) 
on March 21, 1995, filed with the Hearing Clerk, U.S. Department of 
Agriculture, a Recommended Decision and Opportunity to File Written 
Exceptions thereto by April 20, 1995. None were filed.

Small Business Considerations

    In accordance with the provisions of the Regulatory Flexibility Act 
(RFA) (5 U.S.C. 601 et seq.), the Administrator of the AMS has 
determined that this action would not have a significant economic 
impact on a substantial number of small entities. Small agricultural 
service firms, which include handlers regulated under this order, have 
been defined by the Small Business Administration (SBA) (13 CFR 
121.601) as those having annual receipts of less than $5,000,000. Small 
agricultural producers are defined as those having annual receipts of 
less than $500,000.
    The purpose of the RFA is to fit regulatory actions to the scales 
of business subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders 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 the RFA and the Act have small entity orientation and 
compatibility. Interested persons were invited to present evidence at 
the hearing on the probable impact that the proposed amendments to the 
order would have on small businesses.
    During the 1991-92 crop year, 90 handlers were regulated under 
Marketing Order No. 927. In addition, there were about 1,650 producers 
of winter pears in the production area. Marketing orders and amendments 
thereto are unique in that they are normally brought about through 
group action of essentially small entities for their own benefit. Thus, 
both the RFA and the Act are compatible with respect to small entities.
    All of the amendments are designed to enhance the administration 
and functioning of the marketing agreement and order which would 
benefit the industry. If implemented, these amendments might impose 
some costs on affected handlers and producers. However, the added 
burden on small entities, if present at all, would not be significant 
because the benefits of the proposed amendments are expected to 
outweigh the costs. 

[[Page 33762]]

    The amendments proposed herein have been reviewed under Executive 
Order 12778, 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 the amendments.
    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 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.
    In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C. 
35), any change in the reporting and recordkeeping provisions that may 
result from the proposed amendments would be submitted to the Office of 
Management and Budget (OMB). The provisions would not be effective 
until receiving OMB approval.

Findings and Conclusions and Rulings on Exceptions

    The material issues, findings and conclusions, rulings, and general 
findings and determinations included in the Recommended Decision set 
forth in the March 21, 1995, issue of the Federal Register (60 FR 
14914) are hereby approved and adopted without change.

Marketing Agreement and Order

    Annexed hereto and made a part hereof is the document entitled 
``Order Amending the Order Regulating the Handling of Winter Pears 
Grown in Oregon, Washington, and California.'' 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 part 900.400 et 
seq.) to determine whether the issuance of the annexed order amending 
the order regulating the handling of winter pears grown in Oregon, 
Washington, and California is approved or favored by producers, as 
defined under the terms of the order, who during the representative 
period were engaged in the production of winter pears grown in Oregon, 
Washington, and California.
    The representative period for the conduct of such referendum is 
hereby determined to be July 1, 1994, through June 30, 1995.
    The agents of the Secretary to conduct such referendum are hereby 
designated to be Teresa L. Hutchinson, Marketing Specialist, and Gary 
D. Olson, Officer-in-Charge, Northwest Marketing Field Office, 
Marketing Order Administration Branch, Fruit and Vegetable Division, 
AMS, USDA, 1220 S.W. Third Avenue, room 369, Portland, Oregon 97204, 
telephone: 503-326-2725.
List of Subjects in 7 CFR Part 927
    Marketing agreements, Pears, Reporting and recordkeeping 
requirements.

    Dated: June 22, 1995.
David R. Shipman,
Acting Deputy Assistant Secretary, Marketing and Regulatory Programs.
    Order amending the Order Regulating the Handling of Winter Pears 
Grown in Oregon, Washington, and California 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.
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Findings and Determinations
    The findings and determinations hereinafter set forth are 
supplementary and in addition to the findings and determinations 
previously made in connection with the issuance of the order; and all 
of 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 et seq.), and the applicable 
rules of practice and procedure effective thereunder (7 CFR part 900), 
a public hearing was held upon the proposed amendments to the Marketing 
Agreement and Order No. 927 (7 CFR part 927), regulating the handling 
of winter pears grown in Oregon, Washington, and California.
    Upon the basis of the evidence introduced at such hearing and the 
record thereof, it is found that:
    (1) The marketing agreement and order, as amended, as hereby 
proposed to be further amended, and all of the terms and conditions 
thereof, will tend to effectuate the declared policy of the Act;
    (2) The marketing agreement and order, as amended, as hereby 
proposed to be further amended, regulates the handling of winter pears 
grown in the production area in the same manner as, and is applicable 
only to persons in the respective classes or commercial and industrial 
activity specified in the marketing agreement and order upon which 
hearings have been held;
    (3) The marketing agreement and order, as amended, as hereby 
proposed to be further amended, is limited in application to the 
smallest regional production area which 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 agreement and order, as amended, 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 winter pears grown in production area; and
    (5) All handling of winter pears grown in the production area 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 winter pears grown in Oregon, Washington, and 
California, 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 agreement and the order 
amending the order contained in the Recommended Decision issued by the 
Administrator on March 15, 1995, and published in the Federal Register 
on March 21, 1995, shall be and are the terms and provisions of this 
order amending the order and are set forth in full herein. 

[[Page 33763]]


PART 927--WINTER PEARS GROWN IN OREGON, WASHINGTON, AND CALIFORNIA

    1. The authority citation for 7 CFR Part 927 continues to read as 
follows:

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

    2. Section 927.8 is revised to read as follows:


Sec. 927.8  Ship or handle.

    Ship or handle means to sell, deliver, consign or transport pears, 
within the production area or between the production area and any point 
outside thereof: Provided, That the term ``handle'' shall not include 
the transportation of winter pear shipments within the production area 
from the orchard where grown to a packing facility located within the 
production area for preparation for market.
    3. Section 927.10 is revised to read as follows:


Sec. 927.10  Production area.

    Production area means and includes the States of Oregon, 
Washington, and California.
    4. Section 927.12 is revised to read as follows:


Sec. 927.12  Export market.

    Export market means any destination which is not within the 50 
states, or the District of Columbia, of the United States.
    5. In Sec. 927.41, paragraph (a) is revised to read as follows:


Sec. 927.41  Assessments.

    (a) Assessments will be levied only upon handlers who first handle 
pears. Each handler shall pay assessments on all pears handled by such 
handler as the pro rata share of the expenses which the Secretary finds 
are reasonable and likely to be incurred by the Control Committee 
during a fiscal period. The payment of assessments for the maintenance 
and functioning of the Control Committee may be required under this 
part throughout the period such assessments are payable irrespective of 
whether particular provisions thereof are suspended or become 
inoperative.
* * * * *
    6. Section 927.45 is added to read as follows:
Sec. 927.45  Contributions.

    The Control Committee may accept voluntary contributions but these 
shall only be used to pay expenses incurred pursuant to Sec. 927.47. 
Furthermore, such contributions shall be free from any encumbrances by 
the donor and the Control Committee shall retain complete control of 
their use.
    7. Section 927.47 is revised to read as follows:


Sec. 927.47  Research and development.

    The Control Committee, with the approval of the Secretary, may 
establish or provide for the establishment of production research, or 
marketing research and development projects designed to assist, 
improve, or promote the marketing, distribution, and consumption of 
pears. Such projects may provide for any form of marketing promotion, 
including paid advertising. The expense of such projects shall be paid 
from funds collected pursuant to Secs. 927.41 and 927.45. Expenditures 
for a particular variety of pears shall approximate the amount of 
assessments and voluntary contributions collected for that variety of 
pears.
    8. In Sec. 927.52, paragraph (b)(1) is revised to read as follows:


Sec. 927.52  Prerequisites to Control Committee recommendations.

* * * * *
    (b) * * *
    (1) The basis of one vote for each 25,000 boxes (except 2,500 boxes 
for Forelle and Seckel varieties) of the average quantity of such 
variety produced in the particular district and shipped therefrom 
during the immediately preceding three fiscal periods; or
* * * * *
    9. In Sec. 927.65, paragraph (b) is revised to read as follows:


Sec. 927.65  Exemption from regulation.

* * * * *
    (b) The Control Committee may prescribe rules and regulations, to 
become effective upon the approval of the Secretary, whereby quantities 
of pears or types of pear shipments may be exempted from any or all 
provisions of this subpart.
* * * * *
[FR Doc. 95-15947 Filed 6-28-95; 8:45 am]
BILLING CODE 3410-02-P