[Federal Register: March 30, 2004 (Volume 69, Number 61)]
[Proposed Rules]
[Page 16501-16508]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30mr04-24]
========================================================================
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.
========================================================================
[[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.
-----------------------------------------------------------------------
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