4202 Federal Register / Vol. 76, No. 16 / Tuesday, January 25, 2011 / Rules and Regulations 

PART 920—KIWIFRUIT GROWN IN 

CALIFORNIA 

■ 1. The authority citation for 7 CFR 

part 920 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Revise § 920.21 to read as follows: 

§ 920.21 Term of office. 

The term of office of each member 

and alternate member of the committee 

shall be for two years from the date of 

their selection and until their successors 

are selected. The terms of office shall 

begin on August 1 and end on the last 

day of July, or such other dates as the 

committee may recommend and the 

Secretary approve. Members may serve 

up to three consecutive 2-year terms not 

to exceed 6 consecutive years as 

members. Alternate members may serve 

up to three consecutive 2-year terms not 

to exceed 6 consecutive years as 

alternate members. 

Dated: January 19, 2011. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2011–1426 Filed 1–24–11; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 927 

[Doc. No. AMS–FV–10–0072; FV10–927–1 

IR] 

Pears Grown in Oregon and 

Washington; Amendment To Allow 

Additional Exemptions 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Interim rule with request for 

comments. 

SUMMARY: This rule adds an exemption 

to the marketing order for OregonWashington pears that provides for the 

sale of fresh pears directly to consumers 

without regard to regulation. The 

marketing order regulates the handling 

of pears grown in Oregon and 

Washington. Local administration of the 

marketing order for the fresh pear 

industry is provided by the Fresh Pear 

Committee (Committee). For each 

customer, this rule exempts consumerdirect sales of up to 220 pounds of fresh 

pears per transaction, for home use 

only, made directly at orchards, packing 

facilities, roadside stands, or farmers’ 

markets without regard to the marketing 

order’s assessment, reporting, handling, 

and inspection requirements. This 

action is intended to provide regulatory 

flexibility to small pear handlers, while 

facilitating the sale of fresh, local pears 

directly to consumers. 

DATES: Effective January 26, 2011; 

comments received by March 28, 2011 

will be considered prior to issuance of 

a final rule. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this rule. Comments must be 

sent to the Docket Clerk, Marketing 

Order Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue, SW., STOP 

0237, Washington, DC 20250–0237; Fax: 

(202) 720–8938; or Internet: http:// 

www.regulations.gov. All comments 

should reference the document number 

and the date and page number of this 

issue of the Federal Register and will be 

made available for public inspection in 

the Office of the Docket Clerk during 

regular business hours, or can be viewed 

at: http://www.regulations.gov. All 

comments submitted in response to this 

rule will be included in the record and 

will be made available to the public. 

Please be advised that the identity of the 

individuals or entities submitting the 

comments will be made public on the 

Internet at the address provided above. 

FOR FURTHER INFORMATION CONTACT: 

Teresa Hutchinson or Gary Olson, 

Northwest Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, Portland, Oregon; 

Telephone: (503) 326–2724, Fax: (503) 

326–7440, or E-mail: 

Teresa.Hutchinson@ams.usda.gov or 

GaryD.Olson@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Antoinette 

Carter, 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, or E-mail: 

Antoinette.Carter@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Order No. 

927, as amended (7 CFR part 927), 

regulating the handling of pears grown 

in Oregon and Washington, hereinafter 

referred to as the ‘‘order.’’ The order is 

effective under the Agricultural 

Marketing Agreement Act of 1937, as 

amended (7 U.S.C. 601–674), hereinafter 

referred to as the ‘‘Act.’’ 

The Department of Agriculture 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. This rule is not intended to 

have retroactive effect. 

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. 

For each customer, this rule exempts 

consumer-direct sales of up to 220 

pounds of fresh pears per transaction, 

for home use only and made directly at 

orchards, packing facilities, roadside 

stands, or farmers’ markets without 

regard to the marketing order’s 

assessment, reporting, handling, and 

inspection requirements. This action is 

intended to provide regulatory 

flexibility to small pear handlers, while 

facilitating the sale of fresh, local pears 

directly to consumers. 

Section 927.65(a) provides the 

authority to exempt from regulation 

pears for consumption by charitable 

institutions and distribution by relief 

agencies. Section 927.65(b) provides the 

authority whereby certain quantities of 

pears or types of pear shipments may be 

exempted from any or all provisions of 

the order. 

On April 22, 2010, the Committee 

unanimously recommended adding an 

exemption to the order for the sale of 

small quantities of home-use only pears 

directly to consumers. Other 

exemptions under the order include 

§ 927.120 which provides for the 

regulation free distribution of pears for 

charitable or by-product use, and 

§ 927.121, which provides an exemption 

for mail order sales of gift packages that 

are shipped directly to consumers. In 

order to facilitate the direct sale of local, 

fresh pears to consumers while relaxing 

the regulatory burden on small 

handlers, the Committee believes that 

specified quantities of pears sold at 

orchards, packing facilities, roadside 

stands, and farmers’ markets should also 

be exempt from regulation. 

Some grower handlers have 

traditionally sold a portion of their pear 

harvest directly to consumers from their 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 76, No. 16 / Tuesday, January 25, 2011 / Rules and Regulations 4203 

orchards, or from roadside fruit stands 

and farmers markets. Under the order, 

such sales are considered ‘‘handling’’ 

and thus fall under the various 

regulations of the order including the 

assessment, reporting, handling, and 

inspection requirements. When growers 

sell produce directly to consumers, they 

become handlers and are frequently 

referred to as ‘‘grower handlers.’’ A few 

packing houses, those that are generally 

involved only in the handling aspect of 

the fresh pear industry, may also sell 

small quantities of pears directly to 

consumers. The Committee 

recommended that sales be limited to a 

maximum of 220 pounds of pears per 

customer per sale. This weight 

limitation is equivalent to five standard 

pear boxes weighing 44 pounds each 

and was chosen based on industry 

recommendations. 

By removing the requirement that 

these small consumer-direct sales be 

monitored, assessed, and regulated 

through the implementation of reporting 

requirements, quality regulations, and 

mandatory inspection, the Committee 

believes that this rule will facilitate the 

sale of pears within the local market, 

and reduce overall compliance 

expenses. 

The Committee emphasized that the 

volume represented by such pear sales 

is insignificant and will not adversely 

affect the domestic and international 

marketing of commercial quantities of 

fresh pears. Furthermore, the Committee 

stressed that the majority of the funds 

assessed under the order are earmarked 

for large-scale promotional efforts that 

do not have a direct relationship or 

benefit to the consumer-direct sales 

made directly at orchards, packing 

sheds, roadside stands, and farmers’ 

markets. By recommending and 

implementing this regulatory relaxation, 

the Committee also believes that it is 

taking an important step in helping the 

small businesses within the Northwest 

pear industry to remain viable while 

also facilitating the current consumer 

interest in buying local, fresh produce. 

Initial Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) (5 

U.S.C. 601–612), the Agricultural 

Marketing Service (AMS) has 

considered the economic impact of this 

action on small entities. Accordingly, 

AMS has prepared this initial regulatory 

flexibility analysis. 

The purpose of the RFA is to fit 

regulatory actions to the scale of 

business subject to such actions in order 

that small businesses will not be unduly 

or disproportionately burdened. 

Marketing orders issued pursuant to the 

Act, and rules issued thereunder, are 

unique in that they are brought about 

through group action of essentially 

small entities acting on their own 

behalf. 

There are approximately 1,537 

growers of fresh pears in the regulated 

production area and approximately 38 

handlers subject to regulation under the 

order. Small agricultural growers are 

defined by the Small Business 

Administration (SBA) (13 CFR 121.201) 

as those having annual receipts of less 

than $750,000, and small agricultural 

service firms are defined as those whose 

annual receipts are less than $7,000,000. 

According to the Noncitrus Fruits and 

Nuts 2010 Preliminary Summary issued 

in January 2010 by the National 

Agricultural Statistics Service, the 

average 2009 fresh pear price of $456 

per ton places the farm-gate value of 

fresh pears grown in Oregon and 

Washington at $202,053,810. Based on 

the number of fresh pear growers in the 

Oregon and Washington, the average 

gross revenue for each can be estimated 

at approximately $131,460. 

Furthermore, based on Committee 

records, the Committee has estimated 

that 56 percent of Northwest pear 

handlers currently ship less than 

$7,000,000 worth of fresh pears on an 

annual basis. From this information, it 

is concluded that the majority of 

growers and handlers of Oregon and 

Washington pears may be classified as 

small entities. 

This rule exempts from regulation 

fresh pears that are sold directly to 

consumers—in quantities of 220 pounds 

or less per customer and transaction— 

at orchards, packing houses, roadside 

stands, and farmers’ markets. This 

change should provide small pear 

handlers with increased marketing 

flexibility while facilitating the sale of 

pears in local markets. 

Section § 927.65(b) of the order 

authorizes the establishment of 

regulations that exempt specified 

quantities of pears, or types of pear 

shipments from the order. 

This rule is expected to have a 

beneficial impact on the Northwest pear 

industry, especially on small grower 

handlers and handlers. The Committee’s 

goal is that this exemption will reduce 

overall costs to the pear industry, relax 

the burden on small businesses, and 

facilitate the distribution of fruit at the 

local level. The Committee believes that 

this action will be especially beneficial 

to small independent businesses 

because such agricultural operations 

tend to utilize roadside stands and 

farmers’ markets more than do large, 

vertically integrated entities. The 

Committee has stated that the majority 

of pear handlers are small businesses 

under the SBA definition. Although this 

rule was recommended by the 

Committee with the goal of helping 

small pear grower handlers and 

handlers, it does not prevent large 

businesses from realizing the same 

benefits. 

In discussing alternatives to this 

recommendation, the Committee 

contemplated maintaining the status 

quo. The Committee’s stated goal in 

recommending this exemption is to 

reduce the regulatory burden on small 

entities to help them remain viable 

while enhancing the vibrancy of the 

local produce market. The Committee 

quickly reached the conclusion that this 

course of action is the only feasible 

option. 

This rule will not impose any 

additional reporting or recordkeeping 

requirements on either small or large 

pear handlers. 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. In addition, USDA has 

not identified any relevant Federal rules 

that duplicate, overlap or conflict with 

this rule. 

AMS is committed to complying with 

the E-government Act, to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

The Committee’s meeting was widely 

publicized throughout the OregonWashington pear industry and all 

interested persons were invited to 

participate in Committee deliberations. 

Like all Committee meetings, the April 

22, 2010, meeting was a public meeting 

and all entities, both large and small, 

were able to express views on this issue. 

Interested persons are invited to submit 

comments on this interim rule, 

including the regulatory and 

informational impacts of this action on 

small businesses. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: http://www.ams.usda.gov/ 

MarketingOrdersSmallBusinessGuide. 

Any questions about the compliance 

guide should be sent to Antoinette 

Carter at the previously mentioned 

address in the FOR FURTHER INFORMATION

CONTACT section. 

This rule invites comments on the 

addition of an exemption under the 

Oregon-Washington pear order for 

specified small quantities of fresh pear 

sales directly to consumers. Any 


srobinson on DSKHWCL6B1PROD with RULES
4204 Federal Register / Vol. 76, No. 16 / Tuesday, January 25, 2011 / Rules and Regulations 

comments received will be considered 

prior to finalization of this rule. 

After consideration of all relevant 

material presented, including the 

Committee’s recommendation, and 

other information, it is found that this 

interim rule, as hereinafter set forth, 

will tend to effectuate the declared 

policy of the Act. 

Pursuant to 5 U.S.C. 553, it is also 

found and determined upon good cause 

that it is impracticable, unnecessary, 

and contrary to the public interest to 

give preliminary notice prior to putting 

this rule into effect and that good cause 

exists for not postponing the effective 

date of this rule until 30 days after 

publication in the Federal Register 

because: (1) Any changes resulting from 

this rule should be effective as soon as 

practicable because the OregonWashington pear shipping season began 

in August; (2) the Committee discussed 

and unanimously recommended this 

change at a public meeting and all 

interested parties had an opportunity to 

provide input; (3) this action is a 

relaxation of the handling regulations 

that is intended to benefit pear handlers 

while facilitating the sale of fresh, local 

pears directly to consumers; (4) the 

industry is aware of this action and 

wants to take advantage of the 

relaxation during this shipping season; 

and (5) this rule provides a 60-day 

comment period and any comments 

received will be considered prior to 

finalization of this rule. 

List of Subjects in 7 CFR Part 927 

Marketing agreements, Pears, 

Reporting and recordkeeping 

requirements. 

For the reasons set forth in the 

preamble, 7 CFR part 927 is amended as 

follows: 

PART 927—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. A new § 927.122 is added to read 

as follows: 

§ 927.122 Consumer direct pear sales. 

Notwithstanding any other provision 

of this section, fresh pears may be 

handled without regard to the 

provisions of §§ 927.41, 927.51, 927.60, 

and 927.70 under the following 

conditions: 

(a) Such pears are sold in person and 

sold directly to consumers on the 

premises where grown, at packing 

facilities, at roadside stands, or at 

farmers’ markets. 

(b) Such pears are for home use only 

and are not for resale. 

(c) The total quantity of such pears 

sold to each consumer during any single 

transaction does not exceed 220 pounds. 

Dated: January 19, 2011. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2011–1508 Filed 1–24–11; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 985 

[Docket Nos. AMS–FV–09–0082; FV10–985– 

1A IR] 

Marketing Order Regulating the 

Handling of Spearmint Oil Produced in 

the Far West; Revision of the Salable 

Quantity and Allotment Percentage for 

Class 3 (Native) Spearmint Oil for the 

2010–2011 Marketing Year 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Interim rule with request for 

comments. 

SUMMARY: This rule revises the quantity 

of Class 3 (Native) spearmint oil that 

handlers may purchase from, or handle 

on behalf of, producers during the 

2010–2011 marketing year. This rule 

increases the Native spearmint oil 

salable quantity from 980,220 pounds to 

1,118,639 pounds, and the allotment 

percentage from 43 percent to 50 

percent. The marketing order regulates 

the handling of spearmint oil produced 

in the Far West and is administered 

locally by the Spearmint Oil 

Administrative Committee (Committee). 

The Committee unanimously 

recommended this rule for the purpose 

of avoiding extreme fluctuations in 

supplies and prices and to help 

maintain stability in the Far West 

spearmint oil market. 

DATES: Effective June 1, 2010, through 

May 31, 2011; comments received by 

March 28, 2011 will be considered prior 

to issuance of a final rule. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this proposal. Comments 

must be sent to the Docket Clerk, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., STOP 0237, Washington, 

DC 20250–0237; Fax: (202) 720–8938; or 

Internet: http://www.regulations.gov. All 

comments should reference the 

document number and the date and 

page number of this issue of the Federal 

Register and will be made available for 

public inspection in the Office of the 

Docket Clerk during regular business 

hours, or can be viewed at: http:// 

www.regulations.gov. All comments 

submitted in response to this rule will 

be included in the record and will be 

made available to the public. Please be 

advised that the identity of the 

individuals or entities submitting the 

comments will be made public on the 

Internet at the address provided above. 

FOR FURTHER INFORMATION CONTACT: 

Barry Broadbent, Marketing Specialist 

or Gary Olson, Regional Manager, 

Northwest Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (503) 326– 

2724, Fax: (503) 326–7440, or E-mail: 

Barry.Broadbent@ams.usda.gov or 

GaryD.Olson@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Antoinette 

Carter, 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, or E-mail: 

Antoinette.Carter@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Order No. 

985 (7 CFR part 985), as amended, 

regulating the handling of spearmint oil 

produced in the Far West (Washington, 

Idaho, Oregon, and designated parts of 

Nevada and Utah), hereinafter referred 

to as the ‘‘order.’’ The order is effective 

under the Agricultural Marketing 

Agreement Act of 1937, as amended (7 

U.S.C. 601–674), hereinafter referred to 

as the ‘‘Act.’’ 

The Department of Agriculture 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. Under the provisions of the 

marketing order now in effect, salable 

quantities and allotment percentages 

may be established for classes of 

spearmint oil produced in the Far West. 

This rule increases the quantity of 

Native spearmint oil produced in the 

Far West that handlers may purchase 

from, or handle on behalf of, producers 

during the 2010–2011 marketing year, 

which ends on May 31, 2011. 

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 


srobinson on DSKHWCL6B1PROD with RULES