[Federal Register Volume 61, Number 78 (Monday, April 22, 1996)]
[Rules and Regulations]
[Pages 17552-17555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9828]



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DEPARTMENT OF AGRICULTURE
7 CFR Part 927
[Docket No. AO-99-A-6; FV-92-065]


Winter Pears Grown in Oregon, Washington, and California; Order 
Amending the Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends the marketing agreement and order for 
winter pears grown in Oregon, Washington, and California. The 
amendments were recommended by the Winter Pear Control Committee 
(WPCC), the agency responsible for local administration of the 
marketing order, and were favored by winter pear producers in a 
referendum held from November 1 through November 30, 1995. The 
amendments will: 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 amendments are designed to 
improve the administration, operation and function of the winter pear 
marketing agreement and order program.

EFFECTIVE DATE: May 22, 1996.

FOR FURTHER INFORMATION CONTACT: Britthany E. Beadle, Marketing 
Specialist, Marketing Order Administration Branch, Fruit and Vegetable 
Division, AMS, USDA, PO Box 96456, Room 2522-S, Washington, DC 20090-
6456, telephone (202) 720-5127; or Teresa L. Hutchinson, Marketing 
Specialist, Northwest Marketing Field Office, Marketing Order 
Administration Branch, Fruit and Vegetable Division, AMS, USDA, 1220 SW 
Third Avenue, room 369, Portland, Oregon 97204-2807, telephone: (503) 
326-2724.

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). Secretary's Decision and Referendum Order issued on June 22, 
1995, and published in the Federal Register on June 29, 1995, (60 FR 
3376).
    This administrative action is governed by the provisions of section 
556 and 557 of Title 5 of the United States Code and therefore, is 
excluded from the requirements of 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 Agricultural Marketing Agreement Act of 1937 (Act), as amended 
(7 U.S.C. 601 et seq.) 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 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 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 date of the entry of the ruling.

Preliminary Statement

    This final rule was formulated on the record of a public hearing 
held in Portland, Oregon, on December 2, 1992, to consider the proposed 
amendment of 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 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 marketing 
order.
    This final rule: (1) Redefines ``ship or handle'' to include 
shipments of winter pears within the production area; (2) updates the 
definition of ``export market'' to recognize that there are now 50 
states in the United States; (3) authorizes the WPCC to accept 
voluntary contributions and specifies how such funds may be used; and 
(4) revises 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, Department of 
Agriculture, a Recommended Decision and Opportunity to File Written 
Exceptions thereto by April 20, 1995. None were filed.
    A Secretary's Decision and Referendum Order was issued on June 22, 
1995, directing that a referendum be conducted during the period 
November 1 through November 30, 1995, among winter pear producers to 
determine whether they favored the proposed amendments to the order. In 
that referendum, producers voted in favor of all four of the amendment 
proposals listed on the referendum ballot. All of the proposed 
amendments were favored by more then the requisite two-thirds of the 
producers voting in the referendum by number and volume.
    The amended marketing agreement was subsequently mailed to all 
winter pear handlers throughout the production area for their approval. 
The marketing agreement was signed by handlers of more than 50 percent 
of the volume of winter pears handled by all handlers during the 
representative period of July 1, 1994, through June 30, 1995.

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 will not have a significant economic impact 
on a substantial number of small entities. Small agricultural producers 
have been defined by the Small Business Administration (SBA) (13 CFR 
121.601) as those having annual receipts of less than $500,000. Small 
agricultural service firms, which include handlers under this order, 
are defined as those with annual receipts of less than $5 million.
    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 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

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proposed amendments to the order would have on small businesses.
    During the 1995-96 crop year, approximately 90 handlers were 
regulated under Marketing Order No. 927. In addition, there are about 
1,980 growers of winter pears in the regulated area. The Act provides 
for the application of uniform rules on regulated handlers. Since 
handlers covered under the winter pear marketing order are 
predominantly small businesses, the order itself is tailored to the 
size and nature of these small businesses. 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 order amendments are designed to enhance the 
administration and functioning of the marketing agreement and order to 
the benefit of the industry. The benefits are expected to outweigh any 
costs associated with the amendments. Accordingly, it is determined 
that the amendments to the order will not have a significant economic 
impact on growers or handlers.
    In accordance with the Paperwork Reduction Act (44 U.S.C. Chapter 
35), the reporting and recordkeeping requirements that may result from 
the amendments will be submitted to the Office of Management and Budget 
(OMB) for approval.

List of Subjects in 7 CFR Part 929

    Marketing agreements, Pears, Reporting and recordkeeping 
requirements.

Order Amending the Order for Winter Pears Grown in Oregon, Washington, 
and California

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 
Marketing Agreement and Order No. 927 (7 CFR part 927), covering 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, and as hereby 
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, and as hereby 
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 of 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, and as hereby 
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, and as hereby 
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.
    (b) Determinations. It is hereby determined that:
    (1) Handlers (excluding cooperative associations of growers who are 
not engaged in processing, distribution, or shipping of winter pears 
covered by the said order, as hereby amended) who during the period of 
July 1, 1994, through June 30, 1995, handled 50 percent or more of the 
volume of such winter pears covered by the said order, as amended and 
hereby further amended have signed a marketing agreement; and
    (2) The issuance of this amendatory order, amending the aforesaid 
order, is favored or approved by at least two-thirds of the producers 
who participated in a referendum and represented at least two-thirds of 
the volume of such commodity in the referendum, all such producers 
during the period June 1, 1994, through June 30, 1995 (which has been 
deemed to be a representative period), having been engaged within the 
production area in the production of winter pears for fresh market.

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 amended as follows:
    The provisions of the proposed marketing agreement and order 
amending the order contained in the Secretary's Decision issued on June 
22, 1995, and published in the Federal Register on June 29, 1995, shall 
be and are the terms and provisions of this order amending the order 
and are set forth in full herein.

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.

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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 section 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.
* * * * *
    Dated: April 16, 1996.
Michael V. Dunn,
Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 96-9828 Filed 4-19-96; 8:45 am]
BILLING CODE 3410-02-P