[Federal Register: May 20, 2005 (Volume 70, Number 97)]
[Rules and Regulations]
[Page 29387-29398]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20my05-13]
[[Page 29387]]
-----------------------------------------------------------------------
Part III
Department of Agriculture
-----------------------------------------------------------------------
Agricultural Marketing Service
-----------------------------------------------------------------------
7 CFR Part 927
Winter Pears Grown in Oregon and Washington; Order Amending Marketing
Order No. 927; Final Rule
[[Page 29388]]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 927
[Docket No. AO-F&V-927-A1; FV04-927-1 FR]
Winter Pears Grown in Oregon and Washington; Order Amending
Marketing Order No. 927
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule amends the marketing order (order) for winter pears
grown in Oregon and Washington. The amendments are based on
recommendations 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. All of the proposals were favored by pear
growers in a mail referendum, held March 22 through April 8, 2005.
These amendments are intended to streamline industry organization and
improve the administration, operation, and functioning of the program.
DATES: This rule is effective May 21, 2005.
FOR FURTHER INFORMATION CONTACT: Melissa Schmaedick, Marketing Order
Administration Branch, Fruit and Vegetable Programs, Agricultural
Marketing Service, USDA, Post Office Box 1035, Moab, UT 84532,
telephone: (435) 259-7988, fax: (435) 259-4945; or Susan Hiller,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, Northwest Marketing Field Office, 1220 SW. Third Avenue,
room 385, Portland, OR 97204; telephone (503) 326-2724 or Fax (503)
326-7440.
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: Prior documents in this proceeding: Notice
of Hearing issued on March 24, 2004, and published in the March 30,
2004, issue of the Federal Register (69 FR 16501), and a Recommended
Decision issued on January 5, 2005, and published in the January 13,
2005, issue of the Federal Register (70 FR 2520). Secretary's Decision
and Referendum Order issued February 28, 2005, and published in the
Federal Register on March 8, 2005 (70 FR 11155).
This action is governed by the provisions of sections 556 and 557
of title 5 of the United States Code and is therefore excluded from the
requirements of Executive Order 12866.
Preliminary Statement
This final rule was formulated on the record of a public hearing
held on April 13 and 14, 2004, in Yakima, Washington and on April 16,
2004, in Portland, Oregon. Notice of this hearing was issued March 24,
2004 and published in the Federal Register on March 30, 2004 (69 FR
16501). The hearing was held to consider the proposed amendment of
Marketing Agreement and Order No. 927, regulating the handling of
winter pears grown in the States of Oregon and Washington, hereinafter
referred to as the ``order.''
The hearing was held pursuant to the provisions of the Agricultural
Marketing Agreement Act of 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 the formulation of marketing
agreements and marketing orders (7 CFR part 900y).
The notice of hearing contained order changes proposed by both 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 order 927 regulates the
handling of winter pears grown in Oregon and Washington. Marketing
order 931 regulates the handling of Bartlett pears in the same
production area.
The amendments included in this decision will:
1. Expand the definition of ``pears'' to include all varieties of
pears classified as summer/fall pears in addition to winter pears; add
Concorde, Packham, and Taylor's Gold pears to the current list of
winter pear varieties; and add a third category of pears which would
include varieties not classified as summer/fall or winter pears. This
amendment extends 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
divides 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 Fresh Pear Committee and the
Processed Pear Committee (Committees). This proposal adds a public
member and public alternate member seat to both of the newly
established Committees and removes Section 927.36, Public advisors. The
Committees will coordinate administration of Marketing Order 927, with
each Committee recommending assessments and administering program
functions specific to their commodity. Coordinated administration will
allow each Committee to make decisions on behalf of the commodity they
represent, yet combine administrative functions, when applicable, to
maximize efficiencies and minimize program costs.
Additionally, related changes are being 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 allowing reapportionment of committee membership among
districts and groups (i.e., growers, handlers, and processors). Such
changes will require a Committee recommendation and approval by the
Department.
7. Add authority to establish assessment rates 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. Add authority for 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 update order language regarding
confidentiality requirements to conform to language under the Act.
[[Page 29389]]
11. Clarify inspection requirements and adding authority to
eliminate those requirements if an alternative, adequate method of
ensuring compliance with quality and size standards in effect under the
order can be developed.
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 the 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.
AMS also proposed to allow such changes as may be necessary to the
order, if any of the proposed changes are adopted, so that all of the
order's provisions conform to the effectuated amendments. None are
deemed necessary.
Upon the basis of evidence introduced at the hearing and the record
thereof, the Administrator of AMS on January 5, 2005, filed with the
Hearing Clerk, U.S. Department of Agriculture, a Recommended Decision
and Opportunity to File Written Exceptions thereto by February 14,
2005.
A Secretary's Decision and Referendum Order was issued on February
28, 2005, directing that a referendum be conducted during the period
March 22 through April 8, 2005, among pear growers to determine whether
they favored the proposed amendments to the order. Ballots representing
387 pear producers, or about 20 percent of the producers eligible to
vote, were cast.
Ballots cast in the referendum were tallied in two ways: (1) To
determine the level of support for the amendments from all pear
producers (both fresh and pears for processing) within the production
area as a whole, and (2) to determine the level of support for the
amendments among producers of pears for processing within the States of
Oregon and Washington, each independently.
To become effective, the amendments had to be approved by at least
two-thirds of all producers voting or by voters representing at least
two-thirds of the volume of pears represented by all voters voting in
the referendum.
Additionally, according to the AMAA, for the purpose of
ascertaining producer support for the issuance of an order applicable
to pears for processing, a referendum must be conducted among producers
of such pears, and results must be tallied by State (as opposed to the
entire production area). In order for such proposal to pass, a minimum
of 66\2/3\ percent of either the number of voters voting by State or
the volume of production for that State represented in the referendum,
must be favorable.
The voters voting in the referendum, both by production area and by
processed pear producers by State, favored all of the amendments
proposed by the Committees. These amendments will authorize all pears
produced in the States of Oregon and Washington, whether for the fresh
or processed market, to be regulated under Federal marketing order 927.
Support for the amendments from both fresh and processed pear
producers within the production area combined represented 98 percent of
the eligible voters voting and 99 percent of the production represented
in the referendum.
Oregon producers of pears for processing voting in favor of the
amendments represented 100 percent of the voters and volume of Oregon
pears for processing represented in the referendum. Washington
producers of pears for processing voting in favor of the amendments
represented 98 percent of the voters and 95 percent of the volume of
Washington pears for processing represented in the referendum.
The amended marketing agreement was subsequently mailed to all pear
handlers in the production area for their approval. The marketing
agreement was not approved by handlers representing at least 50 percent
of the volume of pears handled by all handlers during the
representative period of July 1, 2003, through June 30, 2004.
Small Business Consideration
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA), AMS has considered the economic impact of this
action on small entities. Accordingly, AMS has prepared this final
regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions so that small businesses will not be
unduly or disproportionately burdened. 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.
Small agricultural producers have been defined by the Small
Business Administration (SBA) (13 CFR 121.201) as those having annual
receipts of less than $750,000. Small agricultural service firms, which
include handlers regulated under the order, are defined as those with
annual receipts of less than $6,000,000.
Interested persons were invited to present evidence at the hearing
on the probable regulatory and informational impact of the proposed
amendments to the order on small businesses. The record evidence is
that most of the proposed amendments are designed to enhance industry
efficiencies and reduce costs, thereby improving grower returns.
The record indicates that there are approximately 1,850 pear
growers in Oregon and Washington. Of that total, 1,345 growers report
Bartlett or other summer/fall pear production, and 1,753 growers report
winter pear production. Two-year average NASS figures (the 2002 crop
year and preliminary figures for 2003) provides the following
production profile for Washington and Oregon, respectively: bearing
acres, 24,800 and 17,600; yield per acre, 16.8 tons and 11.8 tons;
annual production, 417,500 tons and 207,500 tons. Total acres planted
in pears for Washington and Oregon (including non-bearing acres) in
2002 were 26,586 and 22,822, respectively.
Summing average Washington and Oregon pear acreage for 2002 and
2003, and dividing by the number of growers (1,850), the estimated
average acreage per grower in the two-state area is 26.7 total acres
and 22.9 bearing acres. According to the 1997 Agricultural Census, the
average Oregon and Washington pear grower had approximately 23 and 15
total acres, respectively. The sum of average Washington and Oregon
pear production for 2002 and 2003, divided by the number of growers,
yields an estimated average production per grower in the two-state area
of 338 tons (676,000 pounds).
The average fresh market grower return for the two States has been
between 20 and 22 cents per pound in recent years, and between 10 and
12 cents per pound for processing. Estimated 2-year average pear sales
revenue per grower in the production area is approximately $101,000,
which is between \1/7\ and \1/8\ of the revenue that would qualify a
grower to be a large grower according to the SBA definition (if based
on pear sales alone). According to the hearing record, roughly 75
percent of the fresh pear producers in the States of Oregon and
Washington
[[Page 29390]]
qualify as small producers. One witness stated that a 1,000-acre farm
represents the threshold between a small and a large producer (a
substantially different definition from what the SBA uses).
There are 55 handlers that handle fresh pears produced in Oregon
and Washington; 73 percent of these fall into the SBA definition of
``small business.'' There are five processing plants in the production
area, with one in Oregon and four in Washington. All five processors
are larger than the SBA's definition of small business. According to
information presented by processors testifying at the hearing, roughly
90 percent of pears received for processing come from small grower
entities.
The proposals put forth at the hearing will streamline industry
organization, but will not result in a significant change in industry
production, harvest or distribution activities. In discussing the
impacts of the proposed amendments on small growers and handlers,
witnesses indicated that the changes are expected to result in lower
costs.
When implemented, the amendments will result in the consolidation
of marketing orders 927 and 931, regulating fresh winter pears and
summer/fall pears, respectively. Program coverage will also be extended
to pears for processing. The combined programs will be administered by
two new administrative committees, one for fresh pears and one for
pears for processing. Cost savings are expected to occur as a result of
more efficient coordination of administrative activities between the
two proposed committees.
Record evidence indicates the proposal to revise the order's
inspection provisions may result in cost savings for handlers. Handlers
within the production area typically have about 75 percent of their
product inspected on a voluntary basis. The remaining 25 percent
represents the amount of additional product that would be required to
be inspected if regulations were in effect.
Handler witnesses also reported that inspection costs average 12\1/
2\ cents per hundredweight, with a $9 minimum fee. In addition to
paying the inspection fee, handlers may also experience delays in
shipments while waiting for inspection to be completed. Handlers
indicated that such delays could be longer for smaller shippers that do
not have inspectors regularly stationed at their warehouses. This
amendment seeks to reduce these costs by allowing alternatives to
mandatory inspection.
Traditionally, the pear industry has used end-line inspection
procedures. Under this scenario, samples of packed pears are examined
at the end of the production process, and the results are certified by
Federally licensed inspectors. The record shows that in recent years,
the Federal-State Inspection Service has developed effective, less
costly alternatives to the end-line inspection program. One alternative
is the ``Partners in Quality'' program, a documented quality assurance
system. Under this program, individual packing houses must demonstrate
and document their ability to pack product that meets all relevant
quality requirements. Effectiveness of the program is verified through
periodic, unannounced audits of each packer's system by USDA-approved
auditors.
Another program recently developed is the Customer Assisted
Inspection Program (CAIP). Under CAIP, USDA inspectors oversee the in-
line sampling and inspection process performed by trained company
staff. USDA oversight ranges from periodic visits throughout the day to
a continuous on-site presence. Witnesses at the hearing testified that
the fresh pear industry should be able to utilize any method of
inspection acceptable to the Federal-State Inspection Service. These
alternative methods have been developed by USDA as a means of reducing
costs to industry. When implemented, individual pear handlers will be
able to choose the method of inspection best suited to their
operations, thereby possibly reducing costs associated with inspection.
Additionally, the authority to eliminate inspection requirements is
expected to have handler cost implications. However, any increase or
decrease in costs cannot be determined until specific alternative
methods are developed to assure compliance with any quality and size
standards in effect.
The proposal to authorize container marking requirements is not
expected to result in significant cost increases for fresh pear
handlers. Testimony indicated that packing facilities are already
configured for labeling and container marking. Witnesses noted that
there would be little, if any, need for equipment changes or additions.
Thus, the proposed change is not expected to have any adverse financial
impact related to handling fresh pears. It should be noted that this
amendment will only provide the committees with authority to recommend
container markings. Implementation of this authority would require
informal rulemaking in the future. The amendment itself will therefore
not impose any new regulatory requirements on Oregon or Washington
fresh pear handlers.
Witnesses explained that the winter, summer/fall, fresh and
processed pear industries are closely inter-related. Growing,
harvesting, packing, processing and marketing activities of these
industries all impact each other. Thus, bringing all industry segments
together under a single marketing program will be beneficial for the
Oregon and Washington pear industry. Proponent witnesses stated that
the combined amendments, if implemented, will help to improve the
orderly marketing of product within the industry.
Similarly, coordinated marketing and distribution efforts for fresh
varieties that appear in the marketplace simultaneously will assist in
maximizing grower returns from each variety. While the industries
currently undertake coordinated marketing and promotional activities,
witnesses stated that combining these industries will further
synchronize activities and facilitate industry discussions and
decision-making.
The amendments will add authority to assess summer/fall pear
handlers and undertake promotional activities on their behalf in a
manner similar to that done currently for winter pears. When asked if
assuming this authority would be acceptable to the summer/fall pear
industry, witnesses supported promotional activities, including paid
generic advertising, as a way to boost sales and maintain market share.
Post-harvest research will also benefit the pear industries by
focusing on a section of the pear crop-to-market flow that, until now,
has not benefited from research activities. Improved storage techniques
resulting from industry-funded post-harvest research could, for
example, benefit the pear industry by decreasing the loss of product
due to storage, or by increasing the storability of product to help
prolong the marketing season.
A significant market-facilitating function carried out by the
current marketing order committees is the collection of statistical
data. That function will continue under the amended marketing order and
the authority to collect information will extend to additional
varieties that are currently produced. Flexibility is provided for
including other varieties in the future. Witnesses emphasized the
importance and value of collecting and disseminating accurate
statistical information to enable industry participants to make
economic and marketing decisions.
The proposal to establish two administrative committees also
includes the addition of a public member to each
[[Page 29391]]
of those committees. The benefit of adding a non-industry, consumer
perspective to committee deliberations and decision-making could prove
very beneficial. Witnesses stated that this additional perspective
would improve the committees' understanding of the consumer in the
marketplace and could enhance committee activities aimed at increasing
consumer demand for Oregon and Washington pears.
The addition of a public member to each committee is not expected
to result in any substantial cost increases. While these members will
be entitled to reimbursement for certain expenses allowed for under the
order, this expense is neither different nor any more burdensome than
the current reimbursement arrangement for committee members.
Interested persons were invited to present evidence at the hearing
on the probable regulatory and informational impact of the proposed
amendments to the order on small entities. The record evidence is that
most of the amendments are designed to reduce costs. While some of the
proposals could impose some minimal costs, those costs would be
outweighed by the benefits expected to accrue to the Oregon and
Washington pear industry.
As with all Federal marketing order programs, reports and forms are
periodically reviewed to reduce information requirements and
duplication by industry and public sector agencies.
The Department has not identified any relevant Federal rules that
duplicate, overlap or conflict with this proposed rule. These
amendments are designed to enhance the administration and functioning
of the marketing order to the benefit of the industry.
Committee meetings regarding these proposals as well as the hearing
dates were widely publicized throughout the winter pear industry, and
all interested persons were invited to attend the meetings and the
hearing and participate in Committee deliberations on all issues. All
Committee meetings and the hearing were public forums and all entities,
both large and small, were able to express views on these issues.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C.
35), any reporting and recordkeeping provision changes that are
generated by the amendments will be submitted to the Office of
Management and Budget (OMB). Current information collection
requirements for Part 927 are approved by OMB under OMB number 0581-
0089. Any changes in those requirements as a result of this proceeding
will be submitted to OMB for approval.
Witnesses stated that existing forms could be adequately modified
to serve the needs of the proposed fresh and processed pear committees.
While conforming changes to the forms would need to be made (such as
changing the name of the committee), the functionality of the forms
would remain the same. Therefore, there will be no modification to
reporting and recordkeeping burdens generated from these amendments.
Civil Justice Reform
The amendments to Marketing Agreement and Order 927 proposed herein
have been reviewed under Executive Order 12988, Civil Justice Reform.
They are not intended to have retroactive effect. The amendments will
not preempt any State or local laws, regulations, or policies, unless
they present an irreconcilable conflict with this proposal.
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.
After the hearing, USDA 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 to review 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.
Order Amending the Order Regulating Winter Pears Grown in Oregon and
Washington
Findings and Determinations
The findings and determinations set forth hereinafter are
supplementary and in addition to the findings and determination
previously made in connection with the issuance of the order; and all
of said previous findings and determinations are hereby ratified and
affirmed, except 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 Order No. 927 (7 CFR part 927), regulating the handling of
winter pears grown in Oregon and Washington.
Upon the basis of the evidence introduced at such hearing and the
record thereof it is found that:
(1) The marketing 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 order, as amended, and as hereby further amended,
regulates the handling of 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 order upon which hearings have been held;
(3) The marketing 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
subdivision of the production area would not effectively carry out the
declared policy of the Act;
(4) The marketing 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 pears
grown in the production area; and
(5) All handling of pears grown in the production area is in the
current of interstate or foreign commerce or directly burdens,
obstructs, or affects such commerce.
(b) Additional findings. It is necessary and in the public interest
to make the amendments to this order effective not later than one day
after publication in the Federal Register. A later effective date would
unnecessarily delay implementation of the approved changes, which are
expected to benefit the Oregon and Washington pear industry. Making the
amendments effective as specified would allow the Oregon and Washington
pear industries (all varieties of pears for the fresh market and pears
for processing) to proceed with the combining of marketing orders 927
and 931 under the amended marketing order 927. Immediate implementation
of the amendments is necessary in order to
[[Page 29392]]
execute administrative changes necessary for the establishment of two
administrative committees and incorporating pears for processing under
the provisions of the order.
In view of the foregoing, it is hereby found and determined that
good cause exists for making these amendments effective one day after
publication in the Federal Register, and that it would be contrary to
the public interest to delay the effective date for 30 days after
publication in the Federal Register (Sec. 553(d), Administrative
Procedure Act; 5 U.S.C. 551-559).
(b) Determinations. It is hereby determined that:
(1) Handlers (excluding cooperative associations of producers who
are not engaged in processing, distributing, or shipping pears covered
by the order as hereby amended) who, during the period July 1, 2003,
through June 30, 2004, handled 50 percent or more of the volume of such
pears covered by said order, as hereby amended, have not signed an
amended marketing agreement;
(2) The issuance of this amendatory order, further amending the
aforesaid order, is favored or approved by at least two-thirds of the
producers who participated in a referendum on the question of approval
and who, during the period of July 1, 2003, through June 30, 2004
(which has been deemed to be a representative period), have been
engaged within the production area in the production of such pears,
such producers having also produced for market at least two-thirds of
the volume of such commodity represented in the referendum;
(3) The issuance of this amendatory order, further amending the
aforesaid order, is favored or approved by at least two-thirds of the
producers of pears for processing from each of the States of Oregon and
Washington, who participated in a referendum on the question of
approval and who, during the period of July 1, 2003, through June 30,
2004 (which has been deemed to be a representative period), have been
engaged within the production area in the production of such pears for
processing, such producers having also produced for market at least
two-thirds of the volume of such commodity represented in the
referendum; and
(4) In the absence of a signed marketing agreement, the issuance of
this amendatory order is the only practical means pursuant to the
declared policy of the Act of advancing the interests of producers of
pears in the production area.
Order Relative to Handling of Pears Grown in Oregon and Washington
It is therefore ordered, That on and after the effective date
hereof, all handling of pears grown in Washington 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 order amending the order
contained in the Recommended Decision issued by the Administrator on
January 5, 2005, and published in the Federal Register on January 13,
2005, (70 FR 2520) shall be and are the terms and provisions of this
order amending the order and set forth in full herein.
List of Subjects in 7 CFR Part 927
Marketing agreements, Winter pears, Reporting and recordkeeping
requirements.
0
For the reasons set forth in the preamble, Title 7 of Chapter XI of the
Code of Federal Regulations is amended by revising part 927 to read as
follows:
PART 927--PEARS GROWN IN OREGON AND WASHINGTON
Subpart--Order Regulating Handling
Definitions
Sec.
927.1 Secretary.
927.2 Act.
927.3 Person 927.4 Pears.
927.5 Size.
927.6 Grower.
927.7 Handler.
927.8 Ship or handle.
927.9 Fiscal period.
927.10 Production area.
927.11 District.
927.12 Export market.
927.13 Subvariety.
927.14 Processor.
927.15 Process.
Administrative Bodies
927.20 Establishment and membership.
927.21 Nomination and selection of members and their respective
alternates.
927.22 Meetings for elections of nominees.
927.23 Voting.
927.24 Eligibility for membership.
927.25 Failure to nominate.
927.26 Qualifications.
927.27 Term of office.
927.28 Alternates for members.
927.29 Vacancies.
927.30 Compensation and expenses.
927.31 Powers.
927.32 Duties.
927.33 Procedure.
927.34 Right of the Secretary.
927.35 Funds and other property.
Expenses and Assessments
927.40 Expenses.
927.41 Assessments.
927.42 Accounting.
927.43 Use of funds.
927.44 [Reserved].
927.45 Contributions.
Research and Development
927.47 Research and development.
Regulation of Shipments
927.50 Marketing policy.
927.51 Issuance of regulations; and modification, suspension, or
termination thereof.
927.52 Prerequisites to recommendations.
927.53 Notification.
927.54 [Reserved].
Inspection
927.60 Inspection and certification.
Exceptions
927.65 Exemption from regulation.
Miscellaneous Provisions
927.70 Reports.
927.71 Compliance.
927.72 Duration of immunities.
927.73 Separability.
927.74 Derogation.
927.75 Liability.
927.76 Agents.
927.77 Effective time.
927.78 Termination.
927.79 Proceedings after termination.
927.80 Amendments.
Authority: 7 U.S.C. 601-674.
Subpart--Order Regulating Handling
Definitions
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.
Sec. 927.2 Act.
Act means Public Act No. 10, 73d Congress (May 12, 1933), as
amended and as reenacted and amended by the Agricultural Marketing
Agreement Act of 1937, as amended (48 Stat. 31, as amended; 7 U.S.C.
601 et seq.).
Sec. 927.3 Person.
Person means an individual partnership, corporation, association,
legal representative, or any other business unit.
Sec. 927.4 Pears.
(a) Pears means and includes any and all varieties or subvarieties
of pears with the genus Pyrus that are produced in the production area
and are classified as:
(1) Summer/fall pears including Bartlett and Starkrimson pears;
(2) Winter pears including Beurre D'Anjou, Beurre Bosc, Doyenne du
Comice, Concorde, Forelle, Winter
[[Page 29393]]
Nelis, Packham, Seckel, and Taylor's Gold pears; and
(3) 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.
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 as ``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.
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.
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.
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 where grown to a packing facility located within the production
area for preparation for market or delivery for processing.
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.
Sec. 927.10 Production area.
Production area means and includes the States of Oregon and
Washington.
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.
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.
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.
Sec. 927.14 Processor.
Processor means any person who as owner, agent, broker, or
otherwise, commercially processes pears in the production area.
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.
Administrative Bodies
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.
(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
[[Page 29394]]
(5) Other relevant factors.
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,
each independently, and selected by the Secretary. The Fresh Pear
Committee and the Processed Pear Committee may, each independently,
prescribe such additional qualifications, administrative rules and
procedures for selection for each candidate as it deems necessary and
as the Secretary approves.
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.
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 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.
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 or LLC 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.
Sec. 927.25 Failure to nominate.
In the event nominations are not made pursuant to Sec. Sec. 927.21
and 927.22 on or before June 1 of any year, the Secretary may select
members and alternates for members without regard to nominations.
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.
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 the initial members and alternates shall end June 30, 2006;
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.
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.
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.
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.
Sec. 927.31 Powers.
The Fresh Pear Committee and the Processed Pear Committee shall
have the following powers to exercise each independently:
(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.
Sec. 927.32 Duties.
The duties of the Fresh Pear Committee and the Processed Pear
Committee, each independently, shall be as follows:
[[Page 29395]]
(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 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 perform such duties as may be assigned to it from time to
time by the Secretary in connection with the administration of section
32 of the Act to amend the Agricultural Adjustment Act, and for other
purposes, Public Act No. 320, 74th Congress, approved August 24, 1935
(49 Stat. 774), as amended;
(e) 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 or 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;
(f) To appoint such employees agents, and representatives as it may
deem necessary, and to determine the compensation and define the duties
of each;
(g) 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 or the Processed Pear Committee;
(h) To select a chairman of the Fresh Pear Committee or 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
(i) 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.
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.
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.
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.
Expenses and Assessments
Sec. 927.40 Expenses.
The Fresh Pear Committee and the Processed Pear Committee are
authorized, each independently, to incur such expenses as the Secretary
finds may be necessary to carry out their functions under this subpart.
The funds to cover such expenses shall be acquired by the levying of
assessments as provided in Sec. 927.41.
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 assessment classifications in this paragraph (b)(1) 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 rate 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
[[Page 29396]]
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 assessment
classifications defined in paragraph (b)(1) of this section 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 rate 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, 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.
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 or the Processed Pear
Committee and its members to account for all receipts and
disbursements.
Sec. 927.43 Use of funds.
From the funds acquired pursuant to Sec. 927.41 the Fresh Pear
Committee and the Processed Pear Committee, each independently, 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 or the Processed Pear Committee.
Sec. 927.44 [Reserved]
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.
Research and Development
Sec. 927.47 Research and development.
The Fresh Pear Committee 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.
Regulation of Shipments
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 investigations specified in this section, 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 should be modified, suspended, or terminated, it shall so
recommend to the Secretary.
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
[[Page 29397]]
shipment of fresh pears would tend to effectuate the declared policy of
the act, he or she shall so limit the shipment of such 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 fresh 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.
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 described in paragraph
(b) of 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 prescribed in paragraph (b) of
this section, of all members.
(b) With respect to 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 a vote equal to the percentage 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.
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.
Sec. 927.54 [Reserved]
Inspection
Sec. 927.60 Inspection and certification.
(a) Handlers shall ship only fresh pears inspected by the Federal-
State Inspection Service or under a program developed by the Federal-
State Inspection Service: except, 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.
(b) Any handler may ship pears, on any one conveyance and in such
quantity as the committee, with the approval of the Secretary, may
prescribe, exempt from the inspection and certification requirements of
paragraph (a) of this section.
(c) The Fresh Pear Committee may, with the approval of the
Secretary, prescribe rules and regulations modifying or eliminating the
requirement for mandatory inspection and certification of shipments:
Provided, That an adequate method of ensuring compliance with quality
and size requirements is developed.
Exceptions
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 prescribe regulations to prevent pears
shipped for either of such purposes from entering commercial channels
of trade contrary to the provisions of this subpart.
(b) The Fresh Pear Committee or the Processed Pear 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.
Miscellaneous Provisions
Sec. 927.70 Reports.
(a) Upon the request of the Fresh Pear Committee or 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 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 handler's 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
[[Page 29398]]
necessary to verify reports pursuant to this section.
Sec. 927.71 Compliance.
Except as provided in Sec. 927.65, no handler shall ship any pears
contrary to the applicable restrictions and limitations specified in,
or effective pursuant to, the provisions of this subpart.
Sec. 927.72 Duration of immunities.
The benefits, privileges, and immunities conferred by virtue of
this subpart shall cease upon termination hereof, except with respect
to acts done under and during the existence of this subpart.
Sec. 927.73 Separability.
If any provision of this subpart is declared invalid, or the
applicability thereof to any person, circumstance, or thing is held
invalid, the validity of the remaining provisions and the applicability
thereof to any other person, circumstance, or thing shall not be
affected thereby.
Sec. 927.74 Derogation.
Nothing contained in this subpart is or shall be construed to be in
derogation of, or in modification of, the rights of the Secretary or of
the United States to exercise any powers granted by the act or
otherwise, or, in accordance with such powers, to act in the premises
whenever such action is deemed advisable.
Sec. 927.75 Liability.
No member or alternate for a member of the Fresh Pear Committee 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.
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 or her agent or
representative in connection with any of the provisions of this
subpart.
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.
Sec. 927.78 Termination.
(a) The Secretary may at any time terminate this subpart.
(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 May 21, 2005, to ascertain whether continuance of
the provisions of this subpart applicable to fresh pears for 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.
(e) The provisions of this part shall, in any event, terminate
whenever the provisions of the act authorizing them cease to be in
effect.
Sec. 927.79 Proceedings after termination.
(a) Upon the termination of this subpart, the members of the Fresh
Pear Committee 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 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 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 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 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.
Sec. 927.80 Amendments.
Amendments to this subpart may be proposed from time to time by the
Fresh Pear Committee or the Processed Pear Committee or by the
Secretary.
Dated: May 13, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-9961 Filed 5-17-05; 9:47 am]
BILLING CODE 3410-02-P