[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
