[Federal Register Volume 70, Number 197 (Thursday, October 13, 2005)]
[Rules and Regulations]
[Pages 59625-59628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20531]


-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Docket No. FV05-927-2]


Marketing Order Regulating the Handling of Pears Grown in Oregon 
and Washington; Control Committee Rules and Regulation

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Correcting amendment.

-----------------------------------------------------------------------

SUMMARY: The Agricultural Marketing Service (AMS) is adding provisions 
to the Code of Federal Regulations that include rules and regulations 
used in administering the marketing order regulating the handling of 
pears grown in Oregon and Washington. Inadvertently, Subpart--Control 
Committee Rules and Regulations was removed in May 2005 when the 
marketing order was amended.

EFFECTIVE DATE: May 21, 2005.

FOR FURTHER INFORMATION CONTACT: Susan M. Hiller, Northwest Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA; Telephone: (503) 326-2724, Fax: (503) 
326-7440; or George Kelhart, Technical Advisor, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 
Independence Avenue SW., STOP 0237, Washington, D.C. 20250-0237; 
Telephone: (202) 720-2491, Fax: (202) 720-8938.

SUPPLEMENTARY INFORMATION: A final rule published in the Federal 
Register on Friday, May 20, 2005 (70 FR 29388), was intended to only 
amend Subpart--Order Regulating Handling of Part 927 and to leave 
Subpart--Control Committee Rules and Regulations unchanged. However, 
amendatory language in the final rule resulted in Subpart--Control 
Committee Rules and Regulations being removed from 7 CFR part 927.
    The codified provisions of 7 CFR part 927 do not include the 
Control Committee Rules and Regulations. This correction document adds 
Subpart--Control Committee Rules and Regulations back into 7 CFR part 
927.

List of Subjects in 7 CFR Part 927

    Marketing agreements, Winter pears, Reporting and recording keeping 
requirements.


0
Accordingly, 7 CFR Part 927 is corrected by adding the following 
provisions:

PART 927--PEARS GROWN IN OREGON AND WASHINGTON

0
1. The authority citation for 7 CFR Part 927 continues to read as 
follows:

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


0
2. Part 927 is corrected by adding Subpart--Control Committee Rules and 
Regulations consisting of Sec. Sec.  927.100 through 927.316 to read as 
follows:
Subpart--Control Committee Rules and Regulations

Definitions

Sec.
927.100 Terms.
927.101 Marketing agreement.
927.102 Order.
927.103 Organically produced pears.

Communications

927.105 Communications.

Exemption Certificates

927.110 Determination of district percentages.
927.110a Application for exemption certification.
927.111 Exemption committee.
927.112 Issuance of exemption certificate.
927.113 Appeal to Control Committee.
927.114 Appeal to Secretary.

Exemptions and Safeguards

927.120 Pears for charitable or byproduct purposes.
927.121 Pears for gift purposes.
927.122 Shipments to designated storages.
927.123 Interest and late payment charges.

Reports

927.125 Reports.
927.142 Reserve fund.
927.236 Assessment rate.
927.316 Handling regulation.

Subpart--Control Committee Rules and Regulations

Definitions


Sec.  927.100  Terms.

    Each term used in this subpart shall have the same meaning as when 
used in the marketing agreement and order.


Sec.  927.101  Marketing agreement.

    Marketing agreement means Marketing Agreement No. 89, as amended, 
regulating the handling of Beurre D'Anjou, Beurre Bosc, Winter Nelis, 
Doyenne du Comice, Beurre Easter, and Beurre Clairgeau varieties of 
pears grown in the States of Oregon, Washington, and California.


Sec.  927.102  Order.

    Order means Order No. 927, as amended (Sec. Sec.  927.1 to 927.81), 
regulating the handling of Beurre D'Anjou, Beurre Bosc, Winter Nelis, 
Doyenne du Comice, Beurre Easter, and Beurre Clairgeau varieties of 
pears grown in the States of Oregon, Washington, and California.


Sec.  927.103  Organically produced pears.

    Organically produced pears means pears that have been certified by 
an organic certification organization currently registered with the 
Oregon or Washington State Departments of Agriculture, or such 
certifying organization accredited under the National Organic Program.

Communications


Sec.  927.105  Communications.

    Unless otherwise prescribed in this subpart, or in the marketing 
agreement and order, or required by the Control Committee, all reports, 
applications, submittals, requests, inspection

[[Page 59626]]

certificates, and communications in connection with the marketing 
agreement and order shall be forwarded to: Winter Pear Control 
Committee, 4382 SE International Way, Suite A, Milwaukie OR 97222-4635.

Exemption Certificates


Sec.  927.110  Determination of district percentages.

    (a) The Control Committee, at its meeting held on or before August 
1 of each year for the purpose of making recommendations to the 
Secretary under the provisions of Sec.  927.50, shall estimate the 
district percentages which the grades and sizes of each variety of 
pears permitted to be shipped from each district under the recommended 
regulation bears to the total quantity of each variety of pears which 
could be shipped from that district in the absence of regulation.
    (b) Any notice issued or given pursuant to this estimate shall 
specifically state that each of the said percentages is merely an 
estimate subject to change, and is not to be relied upon until final 
action is taken as hereinafter provided. Each exemption committee, as 
hereinafter constituted in each district, shall meet and elect a 
district chairman and a secretary, either at or within ten days 
following said meeting of the Control Committee. Said district chairman 
shall immediately notify the secretary of the Control Committee of the 
names of the chairman and the secretary. The chairman of each exemption 
committee shall call a meeting of such committee within his district 
not later than a date to be determined each year by the Control 
Committee at the meeting specified in paragraph (a) of this section.
    (c) At said district meeting, the district percentage estimates 
made by the Control Committee shall be reviewed by the exemption 
committee, and, if found to be not in accordance with conditions then 
existing within the district, said committee shall recommend proper 
adjustments to the Control Committee. Each exemption committee shall 
make only one recommendation for adjustment of district percentages in 
any one season, and said recommendation shall be made not later than 
the date specified by the Control Committee, except that should a major 
change occur in the crop or crops in any district after such date, the 
exemption committee may recommend a further change in such percentages. 
On the basis of the information submitted to it by the exemption 
committees and such other information and evidence as is available to 
it, the Control Committee shall establish all district percentages to 
be used in computing exemptions to growers. In the event no adjustment 
is recommended by the exemption committees by the date above specified, 
the Control Committee shall immediately, on the basis of information 
and evidence available to it, establish the district percentages to be 
used in computing exemptions to growers.
    (d) The Control Committee shall give prompt notice to growers and 
handlers of the final percentages to be used in computing exemptions to 
growers.
    (e) Any action taken by an exemption committee shall be approved by 
four affirmative votes, and each such committee shall keep accurate 
minutes and records of the proceedings of each of its meetings. A copy 
of such minutes and records shall be forwarded to the secretary of the 
Control Committee promptly after each meeting.


Sec.  927.110a  Application for exemption certification.

    Each application for an exemption certificate authorizing the 
shipment (pursuant to Sec.  927.54) during a particular marketing 
season of any variety of pears shall be filed with the Secretary of the 
Control Committee. At the same time, and in order to insure prompt 
handling of such application, the applicant shall mail or deliver a 
copy of the application to the chairman of the exemption committee in 
the district in which the pears are grown. The application should be 
filed at the time the pears are harvested, and must be filed prior to 
the time the applicant's crop is graded, sized, and packed. Each 
application duly mailed and received by the Secretary of the Control 
Committee shall be deemed to have been filed with the Secretary as of 
the date of such mailing. As a part, and in support, of the application 
for an exemption certificate, the applicant shall submit one or more 
inspection certificates (or copies thereof) issued by a duly authorized 
representative of the Federal-State Inspection Service indicating the 
percentage of such applicant's production of all pears of such variety 
which will meet the grade, size, and quality regulations in effect and 
the percentage which will not meet these regulations; and the volume of 
pears so inspected shall be representative of such applicant's total 
production of such variety. The said exemption committee shall have the 
right to make or cause to be made such additional investigation as may 
be necessary to determine whether the portion of the applicant's 
production covered by the inspection certificates adequately represents 
the applicant's total production of such variety. The cost of such 
inspection shall be borne by the applicant. The application to be 
submitted shall be ``Form E-1 Growers Application for Exemption 
Certificate'' and shall contain the following information:
    (a) The name and address of the applicant;
    (b) The location of the orchard (by district and distance from the 
nearest town) from which the fruit is to be shipped pursuant to the 
exemption certificate;
    (c) The number and age of the trees producing the particular 
variety for which exemption is requested;
    (d) The estimated quantity of such variety which could be shipped 
by the applicant in the absence of the grade, size, or quality 
regulations in effect at the time the application is filed;
    (e) The percentage of such variety, as set forth in the attached 
Federal-State inspection certificate or the weighted average of such 
percentages if there is more than one inspection certificate, which 
meets the requirements of the aforesaid effective grade, size, or 
quality regulations;
    (f) The quantity of such variety which meets the requirements of 
the aforesaid effective grade, size, or quality regulations (such 
quantity shall be determined by applying the applicable percentage 
prescribed in paragraph (e) of this section to be the estimated 
quantity pursuant to paragraph (d) of this section);
    (g) The total crop of such variety and the quantity shipped during 
the preceding marketing season;
    (h) The names of the shippers who shipped all or any portion of the 
applicant's aforesaid crop during the preceding marketing season;
    (i) The reasons why the quantity of the particular variety of 
pears, for which exemption is requested, does not meet the aforesaid 
effective grade, size, or quality regulations; and
    (j) The name of the shipper or shippers who will ship the exempted 
pears if the exemption certificate is issued.


Sec.  927.111  Exemption committee.

    The members and alternate members of the Control Committee residing 
in the district in which the applicant grower's orchard is located 
shall act as an exemption committee for that district and shall make or 
cause to be made such investigation as may be necessary to determine 
whether and to what extent such applicant will be prevented, because of 
the aforesaid grade, size, or quality regulations in effect, from 
shipping as large a percentage of the

[[Page 59627]]

particular variety of his pears as the percentage of all pears of that 
particular variety permitted to be shipped from his district as 
determined by the Control Committee. In the event any member or 
alternate member of the Control Committee shall himself apply for an 
exemption certificate he shall be disqualified to serve as a member of 
the exemption committee to act upon the application.


Sec.  927.112  Issuance of exemption certificate.

    In the event such exemption committee finds and determines from 
proof, satisfactory to the committee, that the applicant is entitled to 
an exemption certificate, such exemption certificate shall be issued so 
as to permit the applicant to ship or have shipped the requisite 
quantity of his pears. Each exemption certificate shall be signed by 
the secretary or assistant secretary of the Control Committee and one 
copy thereof shall be delivered to the grower, one copy shall be 
delivered to each shipper designated by the grower to receive a copy, 
and one copy shall be retained in the files of the Control Committee. 
In the event the secretary of the Control Committee has reason to 
believe that any such finding or determination by an exemption 
committee is improper or not in accordance with the facts, he may 
disapprove the same, and shall make or cause to be made such further 
investigation as he may determine to be necessary or advisable, and may 
request or obtain such information as he may deem necessary to enable 
him to determine whether or not and to what extent an applicant is 
entitled to an exemption certificate.


Sec.  927.113  Appeal to Control Committee.

    Any grower, whose application is denied in whole or in part by the 
appropriate exemption committee or by the secretary of the Control 
Committee, may file a written appeal with the Control Committee within 
fifteen (15) days after the date of the notice to such grower of the 
decision involved. Upon receipt of such appeal, the secretary of the 
Control Committee shall submit the same, together with all applicable 
information and data, including the report of the exemption committee 
on that grower's application to the members of the Control Committee, 
who thereafter shall review the same and shall determine whether and to 
what extent the applicant is entitled to an exemption certificate. 
Thereupon the secretary of the Control Committee shall issue to that 
grower such exemption certificate as the Control Committee shall 
determine to be proper.


Sec.  927.114  Appeal to Secretary.

    Any grower who is dissatisfied with the Control Committee's 
determination with respect to any appeal by that grower from a decision 
by an exemption committee or by the Secretary of the Control Committee 
with respect to that grower's application for an exemption certificate, 
may appeal from such determination by the Control Committee to the 
Secretary of Agriculture. Any such appeal shall be made by filing with 
the secretary of the Control Committee a written notice of appeal 
within fifteen (15) days after notice to that grower of the aforesaid 
determination by the Control Committee. Promptly upon receipt of notice 
of an appeal signed by the applicant, the secretary of the Control 
Committee shall forward to the Secretary of Agriculture, or to his 
designated representative, a true and correct copy of all information 
pertaining to that grower's application for an exemption certificate 
and the action taken thereon by the Control Committee, together with 
such written information and proof as was submitted to or obtained by 
the Control Committee with regard to said application, and a true copy 
of the appellant grower's notice of appeal.

Exemptions and Safeguards


Sec.  927.120  Pears for charitable or byproduct purposes.

    Pears which do not meet the requirements of the then effective 
grade, size, or quality regulations shall not be shipped or handled for 
consumption by any charitable institution or for distribution by any 
relief agency or for conversion into any by-product, unless there first 
shall have been delivered to the manager of the Control Committee a 
certificate executed by the intended receiver and user of said pears 
showing, to the manager's satisfaction, that said pears actually will 
be used for one or more of the aforesaid purposes.


Sec.  927.121  Pears for gift purposes.

    There are exempted from the provisions of the marketing agreement 
and order any and all pears which, in individual gift packages, are 
shipped directly to, or which are shipped for distribution without 
resale to, an individual person as the consumer thereof, and any and 
all pears which, in individual gift packages are shipped directly to, 
or are shipped for distribution without resale to, a purchaser who will 
use these pears solely for gift purposes and not for sale.


Sec.  927.122  Shipments to designated storages.

    (a) Pears may be shipped without prior inspection and certification 
to any public warehouse in Yakima, Zillah, Wenatchee, or Grandview in 
the State of Washington; in Portland, Klamath Falls, or Medford in the 
State of Oregon; or in Tulelake or Yuba City in the State of 
California, for storage therein in transit: Provided, That any pears so 
shipped shall be inspected, and a certificate issued with respect 
thereto, as provided in Sec.  927.60 of the marketing agreement and 
order, prior to such pears being removed from such warehouse. At the 
time any pears are so shipped into such public storage warehouse and 
again when such pears are shipped out of such warehouse, the handler 
shall, on his ``Handler's Statement of Pear Shipments,'' report each 
such shipment as prescribed in Sec.  927.125(b).
    (b) Any pears shipped to one of the aforesaid storage warehouses 
pursuant to this section which, upon inspection, do not meet the 
requirements of the then effective grade, size, or quality regulations 
may be repacked at such warehouse so as to meet such requirements, sold 
and delivered within the state where such warehouse is located for 
processing or conversion into by-products, or returned to the state 
where the pears were produced for repacking or for sale within such 
state: Provided, That there first shall have been submitted to the 
manager of the Control Committee proof, satisfactory to the manager, 
that the pears will not be handled contrary to the provisions of the 
marketing agreement and order; such proof shall include, in the case of 
sale and delivery for byproducts purposes, a written certificate, 
executed by both the handler and the intended receiver, stating that 
the pears will be processed or converted into by-products within the 
state where such warehouse is located.


Sec.  927.123  Interest and late payment charges.

    Payments received more than 45 days after the date on which they 
are due shall be considered delinquent and subject to a late payment 
charge of $25.00 or 2 percent of the total due, whichever is greater. 
Payments received more than 60 days after the date on which they are 
due shall be subject to a 1\1/2\ percent interest charge per month, 
until final payment is made and interest shall be applied to the total 
unpaid balance, including the late payment charge and any accumulated 
interest. Any amount paid shall be credited when the payment is 
received in the Control Committee office.

[[Page 59628]]

Reports


Sec.  927.125  Reports.

    (a) Each shipper handling pears covered by an exemption certificate 
shall keep an accurate record, in the manner provided on such 
certificate, of all shipments of such pears. Such shipper, after having 
shipped as many pears as authorized by the particular exemption 
certificate, shall promptly mail to the Secretary of the Control 
Committee, such handler's copy of the exemption certificate containing 
an accurate record of such shipments.
    (b) Each handler shall furnish to the Control Committee, as of 
every other Friday, a report containing the following information on 
Form 1 ``Handlers' Statement of Pear Shipments'':
    (1) The number of standard western pear boxes (two half boxes shall 
be counted as one box) of each variety of pears shipped by that handler 
during the preceding two weeks;
    (2) The date of each shipment;
    (3) The ultimate destination, by city and state or city and 
country; and
    (4) The name and address of such handler. In addition, the handler 
shall indicate, for each lot of pears shipped in accordance with the 
provisions of Sec.  927.122, the storage lot number, and the name and 
address of the storage warehouse.
    (c) Each handler shall furnish to the Control Committee, as of 
every other Friday, a ``Handler's Packout Report'' containing the 
following information:
    (1) The total of the packout of each variety;
    (2) The quantity of each variety loose in storage;
    (3) The volume of each variety sold; and
    (4) The name and address of such handler.
    (d) Each handler who has shipped less than 2,500 standard western 
pear boxes during any two-week reporting period of the shipping season 
may, in lieu of reporting biweekly, report as follows:
    (1) At completion of harvest, on the next biweekly reporting date, 
furnish to the Control Committee a ``Handler's Packout Report';
    (2) After unreported shipments total 2,500 standard western pear 
boxes, furnish to the Control Committee a ``Handler's Statement of Pear 
Shipments'' and a ``Handler's Packout Report'' on the next biweekly 
reporting date;
    (3) After completion of all shipments from regular storage (i.e. 
non-Controlled Atmosphere storage) at the end of the shipping season, 
furnish to the Control Committee a ``Handler's Statement of Pear 
Shipments'' and a ``Handler's Packout Report'' on the next biweekly 
reporting date;
    (4) At mid-season for Controlled Atmosphere storage, at a date 
established by the Control Committee, furnish to the Control Committee 
a ``Handler's Statement of Pear Shipments'' and a ``Handler's Packout 
Report''; and
    (5) At the completion of all seasonal pear shipments, furnish to 
the Control Committee a ``Handler's Statement of Pear Shipments'' and a 
``Handler's Packout Report'' on the next biweekly reporting date. Each 
of these reports shall be marked ``final report'' and include an 
explanation of the actual shipments versus the original estimate, if 
different.
    (e) Each handler who has pears inspected and certificated in lots 
larger than carload lots and who wishes to rely on such lot inspections 
in lieu of inspection certificates for individual carlot shipments 
shall deliver to the manager within 10 days after shipment of any such 
pears a written report showing the quantity, variety, grade, and size 
of the pears so shipped and the date of shipment thereof, and said 
report shall identify such pears with the lot-inspection certificate 
covering the same, and shall further show what portion of that lot 
remains unshipped, and where located; such report shall be in addition 
to, and not in lieu of, the handler's reports of shipments required 
under paragraphs (b) and (c) of this section.
    (f) Each handler shall specify on each bill of lading covering each 
shipment the variety, and number of boxes thereof, of all pears 
included in that shipment.


Sec.  927.142  Reserve fund.

    (a) It is necessary and appropriate to establish and maintain an 
operating reserve fund in an amount not to exceed approximately one 
fiscal period's expenses to be used in accordance with the provisions 
of Sec.  927.42 of the amended marketing agreement and this part, and
    (b) Assessments collected for the period ended June 30, 1962, were 
in excess of the expenses for such period and the committee is hereby 
authorized to place $2,500 of such excess in said reserve.

Assessment Rate


Sec.  927.236  Assessment rate.

    On and after July 1, 2004, an assessment rate of $0.49 per 44-pound 
standard box or container equivalent of conventionally and organically 
produced pears and, in addition, a supplemental assessment rate of 
$0.01 per 44-pound standard box or container equivalent of Beurre 
d'Anjou variety pears, excluding organically produced Beurre d'Anjou 
pears, is established for the Winter Pear Control Committee.


Sec.  927.316  Handling regulation.

    During the period August 15 through November 1, no person shall 
handle any Beurre D'Anjou variety of pears for shipments to North 
America (Continental United States, Mexico, or Canada), unless such 
pears meet the following requirements:
    (a) Beurre D'Anjou variety of pears shall have a certification by 
the Federal-State Inspection Service, issued prior to shipment, showing 
that the core/pulp temperature of such pears has been lowered to 35 
degrees Fahrenheit or less and any such pears have an average pressure 
test of 14 pounds or less. The handler shall submit, or cause to be 
submitted, a copy of the certificate issued on the shipment to the 
Control Committee.
    (b) Each handler may ship on any one conveyance 8,800 pounds or 
less of Beurre D'Anjou variety of pears without regard to the quality 
and inspection requirements in paragraph (a) of this section.

    Dated: October 7, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-20531 Filed 10-12-05; 8:45 am]
BILLING CODE 3410-02-P