[Federal Register Volume 60, Number 125 (Thursday, June 29, 1995)]
[Proposed Rules]
[Pages 33761-33763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15947]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 60, No. 125 / Thursday, June 29, 1995 /
Proposed Rules
[[Page 33761]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 927
[Docket No. AO-99-A-6; FV-92-065]
Winter Pears Grown in Oregon, Washington, and California;
Secretary's Decision and Referendum Order on Proposed Further Amendment
of Marketing Agreement and Order No. 927
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule and referendum order.
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SUMMARY: This decision proposes amendments to the subject marketing
agreement and order (order) and provides winter pear producers with the
opportunity to vote in a referendum to determine if they favor the
proposed amendments. The proposed amendments were submitted by the
Winter Pear Control Committee (WPCC), the agency responsible for local
administration of the order. The proposed amendments would redefine
``ship or handle'' to include shipments of winter pears within the
production area, update the definition of ``export market'' to
recognize that there are now 50 states in the United States, authorize
the WPCC to accept voluntary contributions and how such funds may be
used, and revise the authority for exempting certain shipments from
regulation. These proposed amendments are designed to improve the
administration, operation and function of the winter pear marketing
order program.
DATES: The referendum shall be conducted from November 1 through
November 30, 1995.
FOR FURTHER INFORMATION CONTACT: Britthany Beadle, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, room
2523-S, Washington, DC 20250-0200; telephone: (202) 720-5127; or Teresa
Hutchinson, Northwest Marketing Field Office, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, 1220
SW., Third Avenue, room 369, Portland, Oregon, 97204; telephone: (503)
326-2725.
SUPPLEMENTARY INFORMATION: Prior documents in this proceeding: Notice
of Hearing issued on November 16, 1992, and published in the November
20, 1992, issue of the Federal Register (57 FR 54728). Recommended
Decision and Opportunity To File Written Exceptions issued on March 15,
1995, and published in the Federal Register on March 21, 1995 (60 FR
14914).
This administrative action is governed by the provisions of
sections 556 and 557 of Title 5 of the United States Code and,
therefore, is excluded from the requirements to Executive Order 12866.
Preliminary Statement
The proposed amendments were formulated on the record of a public
hearing held in Portland, Oregon, on December 2, 1992, to consider the
proposed amendment of the Marketing Agreement and Order No. 927,
regulating the handling of winter pears grown in Oregon, Washington,
and California hereinafter referred to collectively as the ``order.''
The hearing was held pursuant to the provisions of the Agricultural
Marketing Agreement Act 1937, as amended (7 U.S.C. 601 et seq.),
hereinafter referred to as the Act, and the applicable rules of
practice and procedure governing proceedings to formulate marketing
agreements and marketing orders (7 CFR part 900). The Notice of Hearing
contained several amendment proposals submitted by the WPCC established
under the order to assist in local administration of the program.
The proposals would: (1) Redefine ``ship or handle'' to include
shipments of winter pears within the production area; (2) update the
definition of ``export market'' to recognize that there are now 50
states in the United States; (3) authorize the WPCC to accept voluntary
contributions and how such funds may be used; and (4) revise the
authority for exempting certain shipments from regulation.
Upon the basis of evidence introduced at the hearing and the record
thereof, the Administrator of the Agricultural Marketing Service (AMS)
on March 21, 1995, filed with the Hearing Clerk, U.S. Department of
Agriculture, a Recommended Decision and Opportunity to File Written
Exceptions thereto by April 20, 1995. None were filed.
Small Business Considerations
In accordance with the provisions of the Regulatory Flexibility Act
(RFA) (5 U.S.C. 601 et seq.), the Administrator of the AMS has
determined that this action would not have a significant economic
impact on a substantial number of small entities. Small agricultural
service firms, which include handlers regulated under this order, have
been defined by the Small Business Administration (SBA) (13 CFR
121.601) as those having annual receipts of less than $5,000,000. Small
agricultural producers are defined as those having annual receipts of
less than $500,000.
The purpose of the RFA is to fit regulatory actions to the scales
of business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders and
rules issued thereunder are unique in that they are brought about
through group action of essentially small entities acting on their own
behalf. Thus both the RFA and the Act have small entity orientation and
compatibility. Interested persons were invited to present evidence at
the hearing on the probable impact that the proposed amendments to the
order would have on small businesses.
During the 1991-92 crop year, 90 handlers were regulated under
Marketing Order No. 927. In addition, there were about 1,650 producers
of winter pears in the production area. Marketing orders and amendments
thereto are unique in that they are normally brought about through
group action of essentially small entities for their own benefit. Thus,
both the RFA and the Act are compatible with respect to small entities.
All of the amendments are designed to enhance the administration
and functioning of the marketing agreement and order which would
benefit the industry. If implemented, these amendments might impose
some costs on affected handlers and producers. However, the added
burden on small entities, if present at all, would not be significant
because the benefits of the proposed amendments are expected to
outweigh the costs.
[[Page 33762]]
The amendments proposed herein have been reviewed under Executive
Order 12778, Civil Justice Reform. They are not intended to have
retroactive effect. If adopted, the proposed amendments would not
preempt any State or local laws, regulations, or policies, unless they
present an irreconcilable conflict with the amendments.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and requesting a modification of the order or to be exempted
therefrom. A handler is afforded the opportunity for a hearing on the
petition. After the hearing, the Secretary would rule on the petition.
The Act provides that the district court of the United States in any
district in which the handler is an inhabitant, or has his or her
principal place of business, has jurisdiction in equity to review the
Secretary's ruling on the petition, provided a bill in equity is filed
not later than 20 days after the date of the entry of the ruling.
In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C.
35), any change in the reporting and recordkeeping provisions that may
result from the proposed amendments would be submitted to the Office of
Management and Budget (OMB). The provisions would not be effective
until receiving OMB approval.
Findings and Conclusions and Rulings on Exceptions
The material issues, findings and conclusions, rulings, and general
findings and determinations included in the Recommended Decision set
forth in the March 21, 1995, issue of the Federal Register (60 FR
14914) are hereby approved and adopted without change.
Marketing Agreement and Order
Annexed hereto and made a part hereof is the document entitled
``Order Amending the Order Regulating the Handling of Winter Pears
Grown in Oregon, Washington, and California.'' This document has been
decided upon as the detailed and appropriate means of effectuating the
foregoing findings and conclusions.
It is hereby ordered, That this entire decision be published in the
Federal Register.
Referendum Order
It is hereby directed that a referendum be conducted in accordance
with the procedure for the conduct of referenda (7 CFR part 900.400 et
seq.) to determine whether the issuance of the annexed order amending
the order regulating the handling of winter pears grown in Oregon,
Washington, and California is approved or favored by producers, as
defined under the terms of the order, who during the representative
period were engaged in the production of winter pears grown in Oregon,
Washington, and California.
The representative period for the conduct of such referendum is
hereby determined to be July 1, 1994, through June 30, 1995.
The agents of the Secretary to conduct such referendum are hereby
designated to be Teresa L. Hutchinson, Marketing Specialist, and Gary
D. Olson, Officer-in-Charge, Northwest Marketing Field Office,
Marketing Order Administration Branch, Fruit and Vegetable Division,
AMS, USDA, 1220 S.W. Third Avenue, room 369, Portland, Oregon 97204,
telephone: 503-326-2725.
List of Subjects in 7 CFR Part 927
Marketing agreements, Pears, Reporting and recordkeeping
requirements.
Dated: June 22, 1995.
David R. Shipman,
Acting Deputy Assistant Secretary, Marketing and Regulatory Programs.
Order amending the Order Regulating the Handling of Winter Pears
Grown in Oregon, Washington, and California 1
\1\ This order shall not become effective unless and until the
requirements of Sec. 900.14 of the rules of practice and procedure
governing proceedings to formulate marketing agreements and
marketing orders have been met.
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Findings and Determinations
The findings and determinations hereinafter set forth are
supplementary and in addition to the findings and determinations
previously made in connection with the issuance of the order; and all
of said previous findings and determinations are hereby ratified and
affirmed, except insofar as such findings and determinations may be in
conflict with the findings and determinations set forth herein.
(a) Findings and Determinations Upon the Basis of the Hearing Record
Pursuant to the provisions of the Agricultural Marketing Agreement
Act of 1937, as amended (7 U.S.C. 601 et seq.), and the applicable
rules of practice and procedure effective thereunder (7 CFR part 900),
a public hearing was held upon the proposed amendments to the Marketing
Agreement and Order No. 927 (7 CFR part 927), regulating the handling
of winter pears grown in Oregon, Washington, and California.
Upon the basis of the evidence introduced at such hearing and the
record thereof, it is found that:
(1) The marketing agreement and order, as amended, as hereby
proposed to be further amended, and all of the terms and conditions
thereof, will tend to effectuate the declared policy of the Act;
(2) The marketing agreement and order, as amended, as hereby
proposed to be further amended, regulates the handling of winter pears
grown in the production area in the same manner as, and is applicable
only to persons in the respective classes or commercial and industrial
activity specified in the marketing agreement and order upon which
hearings have been held;
(3) The marketing agreement and order, as amended, as hereby
proposed to be further amended, is limited in application to the
smallest regional production area which is practicable, consistent with
carrying out the declared policy of the Act, and the issuance of
several orders applicable to subdivisions of the production area would
not effectively carry out the declared policy of the Act;
(4) The marketing agreement and order, as amended, as hereby
proposed to be further amended, prescribes, insofar as practicable,
such different terms applicable to different parts of the production
area as are necessary to give due recognition to the differences in the
production and marketing of winter pears grown in production area; and
(5) All handling of winter pears grown in the production area is in
the current of interstate or foreign commerce or directly burdens,
obstructs, or affects such commerce.
Order Relative to Handling
It is therefore ordered, That on and after the effective date
hereof, all handling of winter pears grown in Oregon, Washington, and
California, shall be in conformity to, and in compliance with, the
terms and conditions of the said order as hereby proposed to be amended
as follows:
The provisions of the proposed marketing agreement and the order
amending the order contained in the Recommended Decision issued by the
Administrator on March 15, 1995, and published in the Federal Register
on March 21, 1995, shall be and are the terms and provisions of this
order amending the order and are set forth in full herein.
[[Page 33763]]
PART 927--WINTER PEARS GROWN IN OREGON, WASHINGTON, AND CALIFORNIA
1. The authority citation for 7 CFR Part 927 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 927.8 is revised to read as follows:
Sec. 927.8 Ship or handle.
Ship or handle means to sell, deliver, consign or transport pears,
within the production area or between the production area and any point
outside thereof: Provided, That the term ``handle'' shall not include
the transportation of winter pear shipments within the production area
from the orchard where grown to a packing facility located within the
production area for preparation for market.
3. Section 927.10 is revised to read as follows:
Sec. 927.10 Production area.
Production area means and includes the States of Oregon,
Washington, and California.
4. Section 927.12 is revised to read as follows:
Sec. 927.12 Export market.
Export market means any destination which is not within the 50
states, or the District of Columbia, of the United States.
5. In Sec. 927.41, paragraph (a) is revised to read as follows:
Sec. 927.41 Assessments.
(a) Assessments will be levied only upon handlers who first handle
pears. Each handler shall pay assessments on all pears handled by such
handler as the pro rata share of the expenses which the Secretary finds
are reasonable and likely to be incurred by the Control Committee
during a fiscal period. The payment of assessments for the maintenance
and functioning of the Control Committee may be required under this
part throughout the period such assessments are payable irrespective of
whether particular provisions thereof are suspended or become
inoperative.
* * * * *
6. Section 927.45 is added to read as follows:
Sec. 927.45 Contributions.
The Control Committee may accept voluntary contributions but these
shall only be used to pay expenses incurred pursuant to Sec. 927.47.
Furthermore, such contributions shall be free from any encumbrances by
the donor and the Control Committee shall retain complete control of
their use.
7. Section 927.47 is revised to read as follows:
Sec. 927.47 Research and development.
The Control Committee, with the approval of the Secretary, may
establish or provide for the establishment of production research, or
marketing research and development projects designed to assist,
improve, or promote the marketing, distribution, and consumption of
pears. Such projects may provide for any form of marketing promotion,
including paid advertising. The expense of such projects shall be paid
from funds collected pursuant to Secs. 927.41 and 927.45. Expenditures
for a particular variety of pears shall approximate the amount of
assessments and voluntary contributions collected for that variety of
pears.
8. In Sec. 927.52, paragraph (b)(1) is revised to read as follows:
Sec. 927.52 Prerequisites to Control Committee recommendations.
* * * * *
(b) * * *
(1) The basis of one vote for each 25,000 boxes (except 2,500 boxes
for Forelle and Seckel varieties) of the average quantity of such
variety produced in the particular district and shipped therefrom
during the immediately preceding three fiscal periods; or
* * * * *
9. In Sec. 927.65, paragraph (b) is revised to read as follows:
Sec. 927.65 Exemption from regulation.
* * * * *
(b) The Control Committee may prescribe rules and regulations, to
become effective upon the approval of the Secretary, whereby quantities
of pears or types of pear shipments may be exempted from any or all
provisions of this subpart.
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[FR Doc. 95-15947 Filed 6-28-95; 8:45 am]
BILLING CODE 3410-02-P
