[Federal Register Volume 69, Number 61 (Tuesday, March 30, 2004)]
[Proposed Rules]
[Pages 16501-16508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7002]


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 Proposed Rules
                                                 Federal Register
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 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. 69, No. 61 / Tuesday, March 30, 2004 / 
Proposed Rules  

[[Page 16501]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Docket No. AO-F&V-927-A1 FV04-927-1 PR]


Winter Pears Grown in Oregon and Washington; Hearing on Proposed 
Amendment of Marketing Agreement and Order No. 927

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Notice of hearing on proposed rulemaking.

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SUMMARY: Notice is hereby given of a public hearing to receive evidence 
on proposed amendments to Marketing Agreement and Order No. 927, which 
regulates the handling of winter pears grown in Oregon and Washington. 
The amendments are jointly proposed by the Winter Pear Control 
Committee and the Northwest Fresh Bartlett Marketing Committee, which 
are responsible for local administration of orders 927 and 931, 
respectively. Marketing Agreement and Order No. 931 regulates the 
handling of fresh Bartlett pears grown in Oregon and Washington. The 
amendments would combine the winter pear and fresh Bartlett orders into 
a single program under marketing order 927, and would add authority to 
assess pears for processing. The Committees also proposed a number of 
conforming changes. All of the proposals are intended to streamline 
industry organization and improve the administration, operation, and 
functioning of the program.

DATES: The hearing dates are:
    1. April 13 and 14, 2004, 9 a.m. to 4 p.m., Yakima, Washington.
    2. April 16, 2004, 9 a.m. to 4 p.m., Portland, Oregon.

ADDRESSES: The hearing locations are:
    1. Doubletree Hotel, 1507 N. 1ST Street, Yakima, Washington, (509) 
248-7850.
    2. Sheraton Inn--Portland Airport, 8235 NE. Airport Way, Portland, 
Oregon, (503) 335-2860.

FOR FURTHER INFORMATION CONTACT: Melissa Schmaedick, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. 
Box 1035, Moab, Utah; telephone: (435) 259-7988, Fax: (435) 259-4945.
    Small businesses may request information on this proceeding by 
contacting Jay Guerber, Marketing Order Administration Branch, Fruit 
and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., Stop 
0237, Washington, DC 20250-0237; telephone: (202) 720-2491, fax: (202) 
720-8938.

SUPPLEMENTARY INFORMATION: This administrative action is instituted 
pursuant to the Agricultural Marketing Agreement Act of 1937, as 
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.'' 
This 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 of Executive Order 12866.
    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) seeks to 
ensure that within the statutory authority of a program, the regulatory 
and informational requirements are tailored to the size and nature of 
small businesses. Interested persons are invited to present evidence at 
the hearing on the possible regulatory and informational impacts of the 
proposals on small businesses.
    The amendments proposed herein have been reviewed under Executive 
Order 12988, 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 proposals.
    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 USDA 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. 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 to review the USDA's 
ruling on the petition, provided an action is filed not later than 20 
days after the date of the entry of the ruling.
    At a joint meeting of the Winter Pear Control Committee and the 
Northwest Fresh Bartlett Pear Marketing Committee on November 13, 2003, 
both Committees voted unanimously to recommend amendments to Marketing 
Order 927. The amendments are intended to streamline industry 
organization by placing both Marketing Order 927, regulating the 
handling of winter pears, and Marketing Order 931, regulating the 
handling of Bartlett pears, under one program: Marketing Order 927. The 
amendments would also add pears for processing to the order, and update 
various provisions of the order.
    The Committees' request for a hearing was submitted to USDA on 
November 19, 2003. The hearing is called pursuant to the provisions of 
the Act and the applicable rules of practice and procedure governing 
the formulation of marketing agreements and orders (7 CFR part 900).
    The Committees' proposed amendments to Marketing Order No. 927 
(order) are summarized below.
    1. Expand the definition of ``pears'' to include all varieties of 
pears classified as summer/fall pears (rather than limiting that class 
to Bartletts); to add Concorde, Packham, and Taylor's Gold pears to the 
current list of winter pear varieties; and to add a third category of 
pears which would include varieties not classified as summer/fall or 
winter pears. This amendment would extend program coverage to all pears 
grown in Oregon and Washington.
    2. Revise the definition of ``size'' to include language currently 
used within the industry.
    3. Extend the order's coverage to pears for processing by revising 
the definition of ``handle,'' and adding definitions of ``processor'' 
and ``process.''
    4. Establish districts for pears for processing. This amendment 
would divide the order's production area into two districts for pears 
for processing: One being the State of Oregon and the other being the 
State of Washington.
    5. Dissolve the current Winter Pear Control Committee and establish 
two new administrative committees: The

[[Page 16502]]

Fresh Pear Committee and the Processing Pear Committee (Committees). 
This proposal also includes adding a public member and public alternate 
member seat to both of the newly established Committees and removing 
Section 927.36, Public advisors. The Committees would jointly 
administer Marketing Order 927.
    Related changes would be made to order provisions governing 
nomination and selection of members and their alternates, terms of 
office, eligibility for membership, and quorum and voting requirements, 
to reflect the proposed dual committee structure.
    6. Authorize changes in the number of Committee members and 
alternates, and allow reapportionment of committee membership among 
districts and groups (i.e., growers, handlers, and processors). Such 
changes would require a Committee recommendation and approval by the 
Department.
    7. Provide that an assessment rate be established for each category 
of pears, including: summer/fall pears, winter pears, and all other 
pears. In addition, rates of assessment could be different for fresh 
pears and pears for processing in each category, and could include 
supplemental rates on individual varieties.
    8. Authorize container marking requirements for fresh pears.
    9. Remove the order provision allowing grower exemptions from 
regulation. This is a tool no longer used by the industry and, thus, is 
considered obsolete.
    10. Amend Sec.  927.70, Reports, to ensure confidentiality in the 
handling and reporting of information provided to the Committees, and 
to require handlers to maintain records for at least two years.
    11. Allow elimination of inspection requirements (when handling 
regulations are in effect) if alternative methods to ensure compliance 
are available.
    12. Eliminate the current exemptions for pears for processing and 
for pears shipped to storage warehouses.
    13. Provide that separate continuance referenda be held every 6 
years for fresh pears and processing pears.
    14. Add authority for the committees to conduct post-harvest 
research, in addition to production research and promotion (including 
paid advertising).
    15. Update several order provisions to make them more current.
    16. Revise order provisions to reflect the two-committee structure 
being recommended for administration of the program.
    These proposals have not received the approval of the Department. 
The Winter Pear Control Committee and Northwest Fresh Bartlett 
Marketing Committee believe that the proposed changes would improve the 
administration, operation, and functioning of the programs in effect 
for pears grown in Oregon and Washington.
    AMS also proposes to allow such changes to the order as may be 
necessary to conform to any amendment that may result from the hearing.
    The public hearing is held for the purpose of: (i) Receiving 
evidence about the economic and marketing conditions which relate to 
the proposed amendments of the order; (ii) determining whether there is 
a need for the proposed amendments to the order; and (iii) determining 
whether the proposed amendments or appropriate modifications thereof 
will tend to effectuate the declared policy of the Act.
    Testimony is invited at the hearing on all the proposals and 
recommendations contained in this notice, as well as any appropriate 
modifications or alternatives.
    All persons wishing to submit written material as evidence at the 
hearing should be prepared to submit four copies of such material at 
the hearing and should have prepared testimony available for 
presentation at the hearing.
    From the time the notice of hearing is issued and until the 
issuance of a final decision in this proceeding, USDA employees 
involved in the decisional process are prohibited from discussing the 
merits of the hearing issues on an ex parte basis with any person 
having an interest in the proceeding. The prohibition applies to 
employees in the following organizational units: Office of the 
Secretary of Agriculture; Office of the Administrator, AMS; Office of 
the General Counsel, except any designated employee of the General 
Counsel assigned to represent the Committee in this proceeding; and the 
Fruit and Vegetable Programs, AMS.
    Procedural matters are not subject to the above prohibition and may 
be discussed at any time.

List of Subjects in 7 CFR Part 927

    Marketing agreements, Reporting and recordkeeping requirements, 
Winter pears.

PART 927--WINTER PEARS GROWN IN OREGON AND WASHINGTON

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


    Authority: 7 U.S.C. 601-674.
    2. Testimony is invited on the following proposals or appropriate 
alternatives or modifications to such proposals.
    Proposals submitted by the Winter Pear Control Committee and the 
Northwest Fresh Bartlett Marketing Committee are as follows:

Proposal No. 1

    Revise Sec.  927.4 to read as follows:


Sec.  927.4  Pears.

    (a) Pears means and includes any and all varieties or subvarieties 
of pears classified as: Summer/fall pears including Bartlett and 
Starkrimson pears; winter pears including Beurre D'Anjou, Beurre Bosc, 
Doyenne du Comice, Concorde, Forelle, Winter Nelis, Packham, Seckel, 
and Taylor's Gold pears; and other pears including any or all other 
varieties or subvarieties of pears not classified as summer/fall or 
winter pears.
    (b) The Fresh Pear Committee and/or the Processed Pear Committee, 
with the approval of the Secretary, may recognize new or delete 
obsolete varieties or subvarieties for each category.
    Revise the heading of 7 CFR part 927 to read as follows:

PART 927--PEARS GROWN IN OREGON AND WASHINGTON

Proposal No. 2

    Revise Sec.  927.5 to read as follows:


Sec.  927.5  Size.

    Size means the number of pears which can be packed in a 44-pound 
net weight standard box or container equivalent, or ``size'' means the 
greatest transverse diameter of the pear taken at right angles to a 
line running from the stem to the blossom end, or such other 
specifications more specifically defined in a regulation issued under 
this part.

Proposal No. 3

    Revise Sec.  927.7 to read as follows:


Sec.  927.7  Handler.

    Handler is synonymous with shipper and means any person (except a 
common or contract carrier transporting pears owned by another person) 
who, as owner, agent, broker, or otherwise, ships or handles pears, or 
causes pears to be shipped or handled by rail, truck, boat, or any 
other means whatsoever.
    Revise Sec.  927.8 to read as follows:


Sec.  927.8  Ship or handle.

    Ship or handle means to sell, deliver, consign, transport or ship 
pears within the production area or between the production area and any 
point outside thereof, including receiving pears for processing: 
Provided, That the term ``handle'' shall not include the transportation 
of pear shipments within the production area from the orchard

[[Page 16503]]

where grown to a packing facility located within the production area 
for preparation for market or delivery for processing.
    Add a new Sec.  927.14 to read as follows:


Sec.  927.14  Processor.

    Processor means any person who as owner, agent, broker, or 
otherwise, commercially processes pears in the production area.
    Add a new Sec.  927.15 to read as follows:


Sec.  927.15  Process.

    Process means to can, concentrate, freeze, dehydrate, press or 
puree pears, or in any other way convert pears commercially into a 
processed product.

Proposal No. 4

    Amend Sec.  927.11 by revising the introductory paragraph, and 
paragraphs (a), (b), and (c), to read as follows:


Sec.  927.11  District.

    District means the applicable one of the following-described 
subdivisions of the production area covered by the provisions of this 
subpart:
    (a) For the purpose of committee representation, administration and 
application of provisions of this subpart as applicable to pears for 
the fresh market, districts shall be defined as follows:
    (1) Medford District shall include all the counties in the State of 
Oregon except for Hood River and Wasco Counties.
    (2) Mid-Columbia District shall include Hood River and Wasco 
Counties in the State of Oregon, and the counties of Skamania and 
Klickitat in the State of Washington.
    (3) Wenatchee District shall include the counties of King, Chelan, 
Okanogan, Douglas, Grant, Lincoln, and Spokane in the State of 
Washington, and all other counties in Washington lying north thereof.
    (4) Yakima District shall include all of the State of Washington 
not included in the Wenatchee District or in the Mid-Columbia District.
    (b) For the purpose of committee representation, administration and 
application of provisions of this subpart as applicable to pears for 
processing, districts shall be defined as follows:
    (1) The State of Washington.
    (2) The State of Oregon.
    (c) The Secretary, upon recommendation of the Fresh Pear Committee 
or the Processed Pear Committee, may reestablish districts within the 
production area.
* * * * *

Proposal No. 5

    Revise Sec.  927.20 to read as follows:


Sec.  927.20  Establishment and membership.

    There are hereby established two committees to administer the terms 
and provisions of this subpart as specifically provided in Sec. Sec.  
927.20 through 927.35:
    (a) A Fresh Pear Committee, consisting of 13 individual persons as 
its members, is established to administer order provisions relating to 
the handling of pears for the fresh market. Six members of the Fresh 
Pear Committee shall be growers, six members shall be handlers, and one 
member shall represent the public. For each member there shall be two 
alternates, designated as the ``first alternate'' and the ``second 
alternate,'' respectively. Each district shall be represented by one 
grower member and one handler member, except that the Mid-Columbia 
District and the Wenatchee District shall be represented by two grower 
members and two handler members.
    (b) A Processed Pear Committee consisting of 10 members is 
established to administer order provisions relating to the handling of 
pears for processing. Three members of the Processed Pear Committee 
shall be growers, three members shall be handlers, three members shall 
be processors, and one member shall represent the public. For each 
member there shall be two alternates, designated as the ``first 
alternate'' and the ``second alternate,'' respectively. District 1, the 
State of Washington, shall be represented by two grower members, two 
handler members and two processor members. District 2, the State of 
Oregon, shall be represented by one grower member, one handler member 
and one processor member.
    Revise Sec.  927.21 to read as follows:


Sec.  927.21  Nomination and selection of members and their respective 
alternates.

    Grower members and their respective alternates for each district 
shall be selected by the Secretary from nominees elected by the growers 
in such district. Handler members and their respective alternates for 
each district shall be selected by the Secretary from nominees elected 
by the handlers in such district. Processor members and their 
respective alternates shall be selected by the Secretary from nominees 
elected by the processors. Public members for each committee shall be 
nominated by the Fresh Pear Committee and the Processed Pear Committee, 
respectively, and selected by the Secretary. The Fresh Pear Committee 
and the Processed Pear Committee may prescribe such additional 
qualifications, administrative rules and procedures for selection for 
each candidate as it deems necessary and as the Secretary approves.
    Revise Sec.  927.22 to read as follows:


Sec.  927.22  Meetings for election of nominees.

    (a) Nominations for members of the Fresh Pear Committee and their 
alternates shall be made at meetings of growers and handlers held in 
each of the districts designated in Sec.  927.11 at such times and 
places designated by the Fresh Pear Committee.
    (b) Nominations for grower and handler members of the Processed 
Pear Committee and their alternates shall be made at meetings of 
growers and handlers held in each of the districts designated in Sec.  
927.11 at such times and places designated by the Processed Pear 
Committee. Nominations for processor members of the Processed Pear 
Committee and their alternates shall be made at a meeting of processors 
at such time and place designated by the Processed Pear Committee.
    Revise Sec.  927.23 to read as follows:


Sec.  927.23  Voting.

    Only growers in attendance at meetings for election of nominees 
shall participate in the nomination of grower members and their 
alternates, and only handlers in attendance at meetings for election of 
nominees shall participate in the nomination of handler members and 
their alternates, and only processors in attendance for election of 
nominees shall participate in the nomination of processor members and 
their alternates. A grower may participate only in the election held in 
the district in which he or she produces pears, and a handler may 
participate only in the election held in the district or districts in 
which he or she handles pears. Each person may vote as a grower, 
handler or processor, but not a combination thereof. Each grower, 
handler and processor shall be entitled to cast one vote, on behalf of 
himself, his agents, partners, affiliates, subsidiaries, and 
representatives, for each nominee to be elected.
    Revise Sec.  927.24 to read as follows:


Sec.  927.24  Eligibility for membership.

    Each grower member and each of his or her alternates shall be a 
grower, or an officer or employee of a corporate grower, who grows 
pears in the district in which and for which he or she is nominated and 
selected. Each handler member and each of his or her alternates shall 
be a handler, or an officer or employee of a handler, handling pears in 
the district in and for which he or she is nominated and selected. Each 
processor member and each of their alternates shall be a processor, or 
an officer or employee of a processor, who processes pears in the 
production area.

[[Page 16504]]

    Revise Sec.  927.27 to read as follows:


Sec.  927.27  Term of office.

    The term of office of each member and alternate member of the Fresh 
Pear Committee and the Processed Pear Committee shall be for two years 
beginning July 1 and ending June 30: Provided, That the terms of office 
of one-half of the initial members and alternates shall end June 30, 
2005; and that beginning with the 2005-2006 fiscal period, no member 
shall serve more than three consecutive two-year terms unless 
specifically exempted by the Secretary. Members and alternate members 
shall serve in such capacities for the portion of the term of office 
for which they are selected and have qualified and until their 
respective successors are selected and have qualified. The terms of 
office of successor members and alternates shall be so determined that 
one-half of the total committee membership ends each June 30.
    Revise Sec.  927.33 to read as follows:


Sec.  927.33  Procedure.

    (a) Quorum and voting. A quorum at a meeting of the Fresh Pear 
Committee or the Processed Pear Committee shall consist of 75 percent 
of the number of committee members, or alternates then serving in the 
place of any members, respectively. Except as otherwise provided in 
Sec.  927.52, all decisions of the Fresh Pear Committee or the 
Processed Pear Committee at any meeting shall require the concurring 
vote of at least 75 percent of those members present, including 
alternates then serving in the place of any members.
    (b) Mail voting. The Fresh Pear Committee or the Processed Pear 
Committee may provide for members voting by mail, telecopier or other 
electronic means, telephone, or telegraph, upon due notice to all 
members. Promptly after voting by telephone or telegraph, each member 
thus voting shall confirm in writing, the vote so cast.
    Remove Sec.  927.36, Public advisors.

Proposal No. 6

    Further amend Sec.  927.20 by adding a new paragraph (c) to read as 
follows:


Sec.  927.20  Establishment and membership.

* * * * *
    (c) The Secretary, upon recommendation of the Fresh Pear Committee 
or the Processed Pear Committee may reapportion members among 
districts, may change the number of members and alternates, and may 
change the composition by changing the ratio of members, including 
their alternates. In recommending any such changes, the following shall 
be considered:
    (1) Shifts in pear acreage within districts and within the 
production area during recent years;
    (2) The importance of new pear production in its relation to 
existing districts;
    (3) The equitable relationship between membership and districts;
    (4) Economies to result for growers in promoting efficient 
administration due to redistricting or reapportionment of members 
within districts; and
    (5) Other relevant factors.

Proposal No. 7

    Revise Sec.  927.41 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 Fresh Pear Committee or 
the Processed Pear Committee during a fiscal period. The payment of 
assessments for the maintenance and functioning of the Fresh Pear 
Committee or the Processed Pear 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.
    (b)(1) Based upon a recommendation of the Fresh Pear Committee or 
other available data, the Secretary shall fix three base rates of 
assessment for pears that handlers shall pay on pears handled for the 
fresh market during each fiscal period. Such base rates shall include 
one rate of assessment for any or all varieties or subvarieties of 
pears classified as summer/fall; one rate of assessment for any or all 
varieties or subvarieties of pears classified as winter; and one rate 
of assessment for any or all varieties or subvarieties of pears 
classified as other. Upon recommendation of the Fresh Pear Committee or 
other available data, the Secretary may also fix supplemental rates of 
assessment on individual varieties or subvarieties categorized within 
the above-defined assessment classifications to secure sufficient funds 
to provide for projects authorized under Sec.  927.47. At any time 
during the fiscal period when it is determined on the basis of a Fresh 
Pear Committee recommendation or other information that different rates 
are necessary for fresh pears or for any varieties or subvarieties, the 
Secretary may modify those rates of assessment and such new rates shall 
apply to any or all varieties or subvarieties that are shipped during 
the fiscal period for fresh market.
    (2) Based upon a recommendation of the Processed Pear Committee or 
other available data, the Secretary shall fix three base rates of 
assessment for pears that handlers shall pay on pears handled for 
processing during each fiscal period. Such base rates shall include one 
rate of assessment for any or all varieties or subvarieties of pears 
classified as summer/fall; one rate of assessment for any or all 
varieties or subvarieties of pears classified as winter; and one rate 
of assessment for any or all varieties or subvarieties of pears 
classified as other. Upon recommendation of the Processed Pear 
Committee or other available data, the Secretary may also fix 
supplemental rates of assessment on individual varieties or 
subvarieties categorized within the above-defined assessment 
classifications to secure sufficient funds to provide for projects 
authorized under Sec.  927.47. At any time during the fiscal period 
when it is determined on the basis of a Processed Pear Committee 
recommendation or other information that different rates are necessary 
for pears for processing or for any varieties or subvarieties, the 
Secretary may modify those rates of assessment and such new rates shall 
apply to any or all varieties or subvarieties of pears that are shipped 
during the fiscal period for processing.
    (c) Based on the recommendation of the Fresh Pear Committee, the 
Processed Pear Committee or other available data, the Secretary may 
establish additional base rates of assessments, or change or modify the 
base rate classifications defined in paragraphs (a) and (b) of this 
section.
    (d) The Fresh Pear Committee or the Processed Pear Committee may 
impose a late payment charge on any handler who fails to pay any 
assessment within the time prescribed. In the event the handler 
thereafter fails to pay the amount outstanding, including the late 
payment charge, within the prescribed time, the Fresh Pear Committee or 
the Processed Pear Committee may impose an additional charge in the 
form of interest on such outstanding amount. The Fresh Pear Committee 
or the Processed Pear Committee, with the approval of the Secretary, 
shall prescribe the amount of such late payment charge and rate of 
interest.
    (e) In order to provide funds to carry out the functions of the 
Fresh Pear Committee or the Processed Pear Committee prior to 
commencement of shipments in any season, handlers may make advance 
payments of assessments,

[[Page 16505]]

which advance payments shall be credited to such handlers and the 
assessments of such handlers shall be adjusted so that such assessments 
are based upon the quantity of each variety or subvariety of pears 
handled by such handlers during such season. Further, payment discounts 
may be authorized by the Fresh Pear Committee or the Processed Pear 
Committee upon the approval of the Secretary to handlers making such 
advance assessment payments.

Proposal No. 8

    Revise Sec.  927.51 to read as follows:


Sec.  927.51  Issuance of regulations; and modification, suspension, or 
termination thereof.

    (a) Whenever the Secretary finds, from the recommendations and 
information submitted by the Fresh Pear Committee, or from other 
available information, that regulation, in the manner specified in this 
section, of the shipment of pears would tend to effectuate the declared 
policy of the act, he or she shall so limit the shipment of pears 
during a specified period or periods. Such regulation may:
    (1) Limit the total quantity of any grade, size, quality, or 
combinations thereof, of any variety or subvariety of pears grown in 
any district and may prescribe different requirements applicable to 
shipments to different export markets;
    (2) Limit, during any period or periods, the shipment of any 
particular grade, size, quality, or any combination thereof, of any 
variety or subvariety, of pears grown in any district or districts of 
the production area; and
    (3) Provide a method, through rules and regulation issued pursuant 
to this part, for fixing markings on the container or containers, which 
may be used in the packaging or handling of pears, including 
appropriate logo or other container markings to identify the contents 
thereof.
    (b) Whenever the Secretary finds, from the recommendations and 
information submitted by the Fresh Pear Committee, or from other 
available information, that a regulation should be modified, suspended, 
or terminated with respect to any or all shipments of pears grown in 
any district in order to effectuate the declared policy of the act, he 
or she shall so modify, suspend, or terminate such regulation. If the 
Secretary finds, from the recommendations and information submitted by 
the Fresh Pear Committee, or from other available information, that a 
regulation obstructs or does not tend to effectuate the declared policy 
of the act, he or she shall suspend or terminate such regulation. On 
the same basis and in like manner, the Secretary may terminate any such 
modification or suspension.

Proposal No. 9

    Remove Sec.  927.54.

Proposal No. 10

    Revise Sec.  927.70 to read as follows:


Sec.  927.70  Reports.

    (a) Upon the request of the Fresh Pear Committee and the Processed 
Pear Committee, and subject to the approval of the Secretary, each 
handler shall furnish to the aforesaid committee, respectively, in such 
manner and at such times as it prescribes, such information as will 
enable it to perform its duties under this subpart.
    (b) All such reports shall be held under appropriate protective 
classification and custody by the Fresh Pear Committee and/or the 
Processed Pear Committee, or duly appointed employees thereof, so that 
the information contained therein which may adversely affect the 
competitive position of any handler in relation to other handlers will 
not be disclosed. Compilations of general reports from data submitted 
by handlers are authorized subject to the prohibition of disclosure of 
individual handlers' identities or operations.
    (c) Each handler shall maintain for at least two succeeding years 
such records of the pears received and of pears disposed of, by such 
handler as may be necessary to verify reports pursuant to this section.

Proposal No. 11

    Amend Sec.  927.60 by revising paragraph (a) and adding a new 
paragraph (c) to read as follows:


Sec.  927.60  Inspection and certification.

    (a) Except as hereinafter provided, no handler shall ship any pears 
not theretofore inspected, and a certificate issued with respect 
thereto, by a duly authorized representative of the Federal-State 
Inspection Service: Provided, That such inspection and certification of 
shipments of pears may be performed by such other inspection service as 
the Fresh Pear Committee, with the approval of the Secretary, may 
designate. Promptly after shipment of any pears, the handler shall 
submit, or cause to be submitted, to the Fresh Pear Committee a copy of 
the inspection certificate issued on such shipment.
* * * * *
    (c) The Fresh Pear Committee may, with the approval of the 
Secretary, prescribe rules and regulations modifying or eliminating the 
requirement for inspection and certification of shipments if 
alternative methods are available for ensuring such shipments comply 
with regulations in effect.

Proposal No. 12

    Revise Sec.  927.65 to read as follows:


Sec.  927.65  Exemption from regulation.

    (a) Nothing contained in this subpart shall limit or authorize the 
limitation of shipment of pears for consumption by charitable 
institutions or distribution by relief agencies, nor shall any 
assessment be computed on pears so shipped. The Fresh Pear Committee or 
the Processed Pear Committee may, with the approval of the Secretary, 
prescribe regulations to prevent pears shipped for either of such 
purposes from entering commercial fresh-fruit channels of trade 
contrary to the provisions of this subpart.
    (b) The Fresh Pear Committee or the Processed Pear Committee may, 
with the approval of the Secretary, prescribe rules and regulations 
whereby quantities of pears or types of pear shipments may be exempted 
from any or all provisions of this subpart.

Proposal No. 13

    Amend Sec.  927.78 by revising paragraphs (b), (c), and (d) to read 
as follows:


Sec.  927.78  Termination.

* * * * *
    (b) The Secretary shall terminate or suspend the operation of any 
or all of the provisions of this subpart whenever he or she finds that 
such operation obstructs or does not tend to effectuate the declared 
policy of the act.
    (c) The Secretary shall terminate the provisions of this subpart 
applicable to fresh pears for market or pears for processing at the end 
of any fiscal period whenever the Secretary finds, by referendum or 
otherwise, that such termination is favored by a majority of growers of 
fresh pears for market or pears for processing, respectively: Provided, 
That such majority has during such period produced more than 50 percent 
of the volume of fresh pears for market or pears for processing, 
respectively, in the production area. Such termination shall be 
effective only if announced on or before the last day of the then 
current fiscal period.
    (d) The Secretary shall conduct a referendum within every six-year 
period beginning on the date this section becomes effective, to 
ascertain whether continuance of the provisions of this subpart 
applicable to fresh pears for

[[Page 16506]]

market or pears for processing are favored by producers of pears for 
the fresh market and pears for processing, respectively. The Secretary 
may terminate the provisions of this subpart at the end of any fiscal 
period in which the Secretary has found that continuance of this 
subpart is not favored by producers who, during a representative period 
determined by the Secretary, have been engaged in the production of 
fresh pears for market or pears for processing in the production area: 
Provided, That termination of the order shall be effective only if 
announced on or before the last day of the then current fiscal period.
* * * * *

Proposal No. 14

    Revise Sec.  927.47 to read as follows:


Sec.  927.47  Research and development.

    The Fresh Pear Committee and/or the Processed Pear Committee, with 
the approval of the Secretary, may establish or provide for the 
establishment of production and post-harvest 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 Sec. Sec.  927.41 and 927.45. Expenditures for a 
particular variety or subvariety of pears shall approximate the amount 
of assessments and voluntary contributions collected for that variety 
or subvariety of pears.

Proposal No. 15

    Revise Sec.  927.1 to read as follows:


Sec.  927.1  Secretary.

    Secretary means the Secretary of Agriculture of the United States, 
or any officer or employee of the Department of Agriculture who has 
been delegated, or to whom authority may hereafter be delegated, the 
authority to act for the Secretary.
    Revise Sec.  927.3 to read as follows:


Sec.  927.3  Person.

    Person means an individual partnership, corporation, association, 
or any other business unit.
    Revise Sec.  927.6 to read as follows:


Sec.  927.6  Grower.

    Grower is synonymous with producer and means any person engaged in 
the production of pears, either as owner or as tenant.
    Revise Sec.  927.76 to read as follows:


Sec.  927.76  Agents.

    The Secretary may name, by designation in writing, any person, 
including any officer or employee of the Government or any bureau or 
division in the Department of Agriculture to act as his agent or 
representative in connection with any of the provisions of this 
subpart.
    Revise Sec.  927.77 to read as follows:


Sec.  927.77  Effective time.

    The provisions of this subpart and of any amendment thereto shall 
become effective at such time as the Secretary may declare, and shall 
continue in force until terminated in one of the ways specified in 
Sec.  927.78.

Proposal No. 16

    Revise in 7 CFR part 927 the undesignated center heading ``CONTROL 
COMMITTEE'' to read as follows:

ADMINISTRATIVE BODIES

    Revise Sec.  927.9 to read as follows:


Sec.  927.9  Fiscal period.

    Fiscal period means the period beginning July 1 of any year and 
ending June 30 of the following year or such may be approved by the 
Secretary pursuant to a joint recommendation by the Fresh Pear 
Committee and the Processed Pear Committee.
    Revise Sec.  927.13 to read as follows:


Sec.  927.13  Subvariety.

    Subvariety means and includes any mutation, sport, or other 
derivation of any of the varieties covered in Sec.  927.4 which is 
recognized by the Fresh Pear Committee or the Processed Pear Committee 
and approved by the Secretary. Recognition of a subvariety shall 
include classification within a varietal group for the purposes of 
votes conducted under Sec.  927.52.
    Revise Sec.  927.26 to read as follows:


Sec.  927.26  Qualifications.

    Any person prior to or within 15 days after selection as a member 
or as an alternate for a member of the Fresh Pear Committee or the 
Processed Pear Committee shall qualify by filing with the Secretary a 
written acceptance of the person's willingness to serve.
    Revise Sec.  927.28 to read as follows:


Sec.  927.28  Alternates for members.

    The first alternate for a member shall act in the place and stead 
of the member for whom he or she is an alternate during such member's 
absence. In the event of the death, removal, resignation, or 
disqualification of a member, his or her first alternate shall act as a 
member until a successor for the member is selected and has qualified. 
The second alternate for a member shall serve in the place and stead of 
the member for whom he or she is an alternate whenever both the member 
and his or her first alternate are unable to serve. In the event that a 
member of the Fresh Pear Committee or the Processed Pear Committee and 
both that member's alternates are unable to attend a meeting, the 
member may designate any other alternate member from the same group 
(handler, processor, or grower) to serve in that member's place and 
stead.
    Revise Sec.  927.29 to read as follows:


Sec.  927.29  Vacancies.

    To fill any vacancy occasioned by the failure of any person 
selected as a member or as an alternate for a member of the Fresh Pear 
Committee or the Processed Pear Committee to qualify, or in the event 
of death, removal, resignation, or disqualification of any qualified 
member or qualified alternate for a member, a successor for his or her 
unexpired term shall be nominated and selected in the manner set forth 
in Sec. Sec.  927.20 to 927.35. If nominations to fill any such vacancy 
are not made within 20 days after such vacancy occurs, the Secretary 
may fill such vacancy without regard to nominations.
    Revise Sec.  927.30 to read as follows:


Sec.  927.30  Compensation and expenses.

    The members and alternates for members shall serve without 
compensation, but may be reimbursed for expenses necessarily incurred 
by them in the performance of their respective duties.
    Revise Sec.  927.31 to read as follows:


Sec.  927.31  Powers.

    The Fresh Pear Committee and the Processed Pear Committee shall 
have the following powers:
    (a) To administer, as specifically provided in Sec. Sec.  927.20 to 
927.35, the terms and provisions of this subpart:
    (b) To make administrative rules and regulations in accordance 
with, and to effectuate, the terms and provisions of this subpart; and
    (c) To receive, investigate, and report to the Secretary complaints 
of violations of the provisions of this subpart.
    Revise Sec.  927.32 to read as follows:


Sec.  927.32  Duties.

    The duties of the Fresh Pear Committee and the Processed Pear 
Committee shall be as follows:
    (a) To act as intermediary between the Secretary and any grower, 
handler or processor;
    (b) To keep minutes, books, and records which will reflect clearly 
all of

[[Page 16507]]

the acts and transactions. The minutes, books, and records shall be 
subject at any time to examination by the Secretary or by such person 
as may be designated by the Secretary;
    (c) To investigate, from time to time, and to assemble data on the 
growing, harvesting, shipping, and marketing conditions relative to 
pears, and to furnish to the Secretary such available information as 
may be requested;
    (d) To cause the books to be audited by one or more competent 
accountants at the end of each fiscal year and at such other times as 
the Fresh Pear Committee and the Processed Pear Committee may deem 
necessary or as the Secretary may request, and to file with the 
Secretary copies of any and all audit reports made;
    (e) To appoint such employees agents, and representatives as it may 
deem necessary, and to determine the compensation and define the duties 
of each;
    (f) To give the Secretary, or the designated agent of the 
Secretary, the same notice of meetings as is given to the members of 
the Fresh Pear Committee and the Processed Pear Committee;
    (g) To select a chairman of the Fresh Pear Committee and the 
Processed Pear Committee and, from time to time, such other officers as 
it may deem advisable and to define the duties of each; and
    (h) To submit to the Secretary as soon as practicable after the 
beginning of each fiscal period, a budget for such fiscal year, 
including a report in explanation of the items appearing therein and a 
recommendation as to the rate of assessment for such period.
    Revise Sec.  927.34 to read as follows:


Sec.  927.34  Right of the Secretary.

    The members and alternates for members and any agent or employee 
appointed or employed by the Fresh Pear Committee or the Processed Pear 
Committee shall be subject to removal or suspension by the Secretary at 
any time. Each and every regulation, decision, determination, or other 
act shall be subject to the continuing right of the Secretary to 
disapprove of the same at any time, and, upon such disapproval, shall 
be deemed null and void, except as to acts done in reliance thereon or 
in compliance therewith prior to such disapproval by the Secretary.
    Revise Sec.  927.35 to read as follows:


Sec.  927.35  Funds and other property.

    (a) All funds received pursuant to any of the provisions of this 
subpart shall be used solely for the purposes specified in this 
subpart, and the Secretary may require the Fresh Pear Committee or the 
Processed Pear Committee and its members to account for all receipts 
and disbursements.
    (b) Upon the death, resignation, removal, disqualification, or 
expiration of the term of office of any member or employee, all books, 
records, funds, and other property in his or her possession belonging 
to the Fresh Pear Committee or the Processed Pear Committee shall be 
delivered to his or her successor in office or to the Fresh Pear 
Committee or Processed Pear Committee, and such assignments and other 
instruments shall be executed as may be necessary to vest in such 
successor or in the Fresh Pear Committee or Processed Pear Committee 
full title to all the books, records, funds, and other property in the 
possession or under the control of such member or employee pursuant to 
this subpart.
    Revise Sec.  927.40 to read as follows:


Sec.  927.40  Expenses.

    The Fresh Pear Committee and the Processed Pear Committee are 
authorized to incur such expenses as the Secretary finds may be 
necessary to carry out its functions under this subpart. The funds to 
cover such expenses shall be acquired by the levying of assessments as 
provided in Sec.  927.41.
    Revise Sec.  927.42 to read as follows:


Sec.  927.42  Accounting.

    (a) If, at the end of a fiscal period, the assessments collected 
are in excess of expenses incurred, the Fresh Pear Committee or the 
Processed Pear Committee may carryover such excess into subsequent 
fiscal periods as a reserve: Provided, That funds already in the 
reserve do not exceed approximately one fiscal period's expenses. Such 
reserve may be used to cover any expense authorized under this part and 
to cover necessary expenses of liquidation in the event of termination 
of this part. Any such excess not retained in a reserve or applied to 
any outstanding obligation of the person from whom it was collected 
shall be refunded proportionately to the persons from whom it was 
collected. Upon termination of this part, any funds not required to 
defray the necessary expenses of liquidation shall be disposed of in 
such manner as the Secretary may determine to be appropriate: Provided, 
That to the extent practical, such funds shall be returned pro rata to 
the persons from whom such funds were collected.
    (b) All funds received pursuant to the provisions of this part 
shall be used solely for the purpose specified in this part and shall 
be accounted for in the manner provided in this part. The Secretary may 
at any time require the Fresh Pear Committee and/or the Processed Pear 
Committee and its members to account for all receipts and 
disbursements.
    Revise Sec.  927.43 to read as follows:


Sec.  927.43  Use of funds.

    From the funds acquired pursuant to Sec.  927.41 the Fresh Pear 
Committee and the Processed Pear Committee shall pay the salaries of 
its employees, if any, and pay the expenses necessarily incurred in the 
performance of the duties of the Fresh Pear Committee and the Processed 
Pear Committee.
    Remove Sec.  927.44.
    Revise Sec.  927.45 to read as follows:


Sec.  927.45  Contributions.

    The Fresh Pear Committee or the Processed Pear 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 Fresh Pear 
Committee or the Processed Pear Committee shall retain complete control 
of their use.
    Revise Sec.  927.50 to read as follows:


Sec.  927.50  Marketing policy.

    (a) It shall be the duty of the Fresh Pear Committee to 
investigate, from time to time, supply and demand conditions relative 
to pears and each grade, size, and quality of each variety or 
subvariety thereof. Such investigations shall be with respect to the 
following:
    (1) Estimated production of each variety or subvariety of pears and 
of each grade, size, and quality thereof;
    (2) Prospective supplies and prices of pears and other fruits, both 
in fresh and processed form, which are competitive to the marketing of 
pears;
    (3) Prospective exports of pears and imports of pears from other 
producing areas;
    (4) Probable harvesting period for each variety or subvariety of 
pears;
    (5) The trend and level of consumer income;
    (6) General economic conditions; and
    (7) Other relevant factors.
    (b) On or before August 1 of each year, the Fresh Pear Committee 
shall recommend regulations to the Secretary if it finds, on the basis 
of the foregoing investigations, that such regulation as is provided in 
Sec.  927.51 will tend to effectuate the declared policy of the act.
    (c) In the event the Fresh Pear Committee at any time finds that by 
reason of changed conditions any regulation issued pursuant to Sec.  
927.51

[[Page 16508]]

should be modified, suspended, or terminated, it shall so recommend to 
the Secretary.
    Revise Sec.  927.52 to read as follows:


Sec.  927.52  Prerequisites to recommendations.

    (a) Decisions of the Fresh Pear Committee or the Processed Pear 
Committee with respect to any recommendations to the Secretary pursuant 
to the establishment or modification of a supplemental rate of 
assessment for an individual variety or subvariety of pears shall be 
made by affirmative vote of not less than 75 percent of the applicable 
total number of votes, computed in the manner hereinafter described in 
this section, of all members. Decisions of the Fresh Pear Committee 
pursuant to the provisions of Sec.  927.50 shall be made by an 
affirmative vote of not less than 80 percent of the applicable total 
number of votes, computed in the manner hereinafter prescribed in this 
section, of all members.
    (b) With respect to regulation of a particular variety or 
subvariety of pears, the applicable total number of votes shall be the 
aggregate of the votes allotted to the members in accordance with the 
following: Each member shall have one vote as an individual and, in 
addition, shall have an equal share of the vote of the district 
represented by such member; and such district vote shall be computed as 
soon as practical after the beginning of each fiscal period on either:
    (1) The basis of one vote for each 25,000 boxes (except 2,500 boxes 
for varieties or subvarieties with less than 200,000 standard boxes or 
container equivalents) of the average quantity of such variety or 
subvariety produced in the particular district and shipped therefrom 
during the immediately preceding three fiscal periods; or
    (2) Such other basis as the Fresh Pear Committee or the Processed 
Pear Committee may recommend and the Secretary may approve. The votes 
so allotted to a member may be cast by such member on each 
recommendation relative to the variety or subvariety of pears on which 
such votes were computed.
    Revise Sec.  927.53 to read as follows:


Sec.  927.53  Notification.

    (a) The Fresh Pear Committee shall give prompt notice to growers 
and handlers of each recommendation to the Secretary pursuant to the 
provisions of Sec.  927.50.
    (b) The Secretary shall immediately notify the Fresh Pear Committee 
of the issuance of each regulation and of each modification, 
suspension, or termination of a regulation and the Fresh Pear Committee 
shall give prompt notice thereof to growers and handlers.
    Revise Sec.  927.75 to read as follows:


Sec.  927.75  Liability.

    No member or alternate for a member of the Fresh Pear Committee 
and/or the Processed Pear Committee, nor any employee or agent thereof, 
shall be held personally responsible, either individually or jointly 
with others, in any way whatsoever, to any party under this subpart or 
to any other person for errors in judgment, mistakes, or other acts, 
either of commission or omission, as such member, alternate for a 
member, agent or employee, except for acts of dishonesty, willful 
misconduct, or gross negligence.
    Revise Sec.  927.79 to read as follows:


Sec.  927.79  Proceedings after termination.

    (a) Upon the termination of this subpart, the members of the Fresh 
Pear Committee and/or the Processed Pear Committee then functioning 
shall continue as joint trustees for the purpose of liquidating all 
funds and property then in the possession or under the control of the 
Fresh Pear Committee and/or the Processed Pear Committee, including 
claims for any funds unpaid or property not delivered at the time of 
such termination.
    (b) The joint trustees shall continue in such capacity until 
discharged by the Secretary; from time to time account for all receipts 
and disbursements; deliver all funds and property on hand, together 
with all books and records of the Fresh Pear Committee and/or the 
Processed Pear Committee and of the joint trustees, to such person as 
the Secretary shall direct; and, upon the request of the Secretary, 
execute such assignments or other instruments necessary and appropriate 
to vest in such person full title and right to all of the funds, 
property, or claims vested in the Fresh Pear Committee and/or the 
Processed Pear Committee or in said joint trustees.
    (c) Any funds collected pursuant to this subpart and held by such 
joint trustees or such person over and above the amounts necessary to 
meet outstanding obligations and the expenses necessarily incurred by 
the joint trustees or such other person in the performance of their 
duties under this subpart, as soon as practicable after the termination 
hereof, shall be returned to the handlers pro rata in proportion to 
their contributions thereto.
    (d) Any person to whom funds, property, or claims have been 
transferred or delivered by the Fresh Pear Committee and/or the 
Processed Pear Committee or its members, upon direction of the 
Secretary, as provided in this section, shall be subject to the same 
obligations and duties with respect to said funds, property, or claims 
as are imposed upon the members or upon said joint trustees.
    Revise Sec.  927.80 to read as follows:


Sec.  927.80  Amendments.

    Amendments to this subpart may be proposed from time to time by the 
Fresh Pear Committee and/or the Processed Pear Committee or by the 
Secretary.
    USDA proposes the following:

Proposal No. 17

    Make such changes as may be necessary to the order to conform with 
any amendment thereto that may result from the hearing.

    Dated: March 24, 2004.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 04-7002 Filed 3-29-04; 8:45 am]
BILLING CODE 3410-02-P