[Federal Register Volume 66, Number 184 (Friday, September 21, 2001)]
[Proposed Rules]
[Pages 48623-48626]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23657]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 66, No. 184 / Friday, September 21, 2001 / 
Proposed Rules  

[[Page 48623]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Docket No. FV01-927-1 PR]


Winter Pears Grown in Oregon and Washington; The Establishment of 
a Supplemental Rate of Assessment for the Beurre d'Anjou Variety of 
Pears and of a Definition for Organically Produced Pears

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This rule would establish a supplemental rate of assessment of 
$0.03 per standard box of the Beurre d'Anjou variety of pears (d'Anjou 
pears) handled, excluding organically produced pears, during the 2001-
2002 and subsequent fiscal periods under the marketing order regulating 
the handling of winter pears grown in Oregon and Washington. The 
marketing order is administered locally by the Winter Pear Control 
Committee (Committee). To properly implement the supplemental rate of 
assessment, which would be used for the purpose of funding data 
collection for Ethoxyquin residue on stored d'Anjou pears, this rule 
would also establish a definition for organically produced pears. The 
fiscal period began July 1 and ends June 30. The supplemental rate of 
assessment would remain in effect indefinitely unless modified, 
suspended, or terminated.

DATES: Comments must be received by October 22, 2001.

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, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; Fax: 
(202) 720-8938, or E-mail: [email protected]. Comments should 
reference the docket number and the date and page number of this issue 
of the Federal Register and will be available for public inspection in 
the Office of the Docket Clerk during regular business hours, or can be 
viewed at: http://www.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Gary D. Olson, Northwest Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, suite 385, 
Portland, Oregon 97204-2807; telephone: (503) 326-2724, Fax: (503) 326-
7440; or George Kelhart, Technical Advisor, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room 
2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202) 
720-2491, Fax: (202) 720-8938.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 
96456, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 
720-8938, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement No. 89 and Order No. 927, both as amended (7 CFR part 927), 
regulating the handling of winter 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 (Department) is issuing this rule in 
conformance with Executive Order 12866.
    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. Under the order now in effect, Oregon and Washington 
winter pear handlers are subject to assessments. Funds to administer 
the order are derived from such assessments. It is intended that the 
supplemental rate of assessment as proposed herein would be applicable 
to all assessable d'Anjou pears, excluding organically produced pears, 
beginning on July 1, 2001, and would continue until amended, suspended, 
or terminated. This rule would not preempt any State or local laws, 
regulations, or policies, unless they present an irreconcilable 
conflict with this rule.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with the Secretary a 
petition stating that the order, any provision of the order, or any 
obligation imposed in connection with the order is not in accordance 
with law and request a modification of the order or to be exempted 
therefrom. Such handler is afforded the opportunity for a hearing on 
the petition. After the hearing the Secretary would rule on the 
petition. The Act provides that the district court of the United States 
in any district in which the handler is an inhabitant, or has his or 
her principal place of business, has jurisdiction to review the 
Secretary's ruling on the petition, provided an action is filed not 
later than 20 days after the date of the entry of the ruling.
    This rule would establish a supplemental rate of assessment of 
$0.03 per standard box of d'Anjou pears handled, excluding organically 
produced pears, for the 2001-2002 and subsequent fiscal periods. The 
$0.03 supplemental rate of assessment on conventionally produced and 
handled d'Anjou pears is in addition to the continuing rate of 
assessment of $0.49 per standard box established at 63 FR 39037 for the 
1998-1999 and subsequent fiscal periods, which pertains to all pears 
handled under the order. This rule would also establish a definition 
for organically produced pears. The Committee unanimously recommended 
this rule at its meeting held on June 1, 2001.
    Section 927.41 of the order provides authority for the Secretary, 
upon a recommendation of the Committee, to fix the rate of assessment 
that handlers shall pay on all pears handled during each fiscal period, 
and may also fix supplemental rates of assessment on individual 
varieties or subvarieties to secure sufficient funds to provide for 
projects authorized under Sec. 927.47. Section 927.47 provides 
authority for the establishment of production research, or marketing 
research and development projects designed to assist, improve, or 
promote the marketing, distribution, and consumption of pears.
    Authority for the Committee to recommend the establishment of a

[[Page 48624]]

definition for organically produced pears is provided in Sec. 927.4, 
which defines ``pears'' for purposes of this order, and in 
Sec. 927.31(b), which provides the Committee with the power to 
recommend administrative rules and regulations to effectuate the terms 
and provisions of the order.
    The winter pear order provides authority for the Committee, with 
the approval of the Secretary, to formulate an annual budget of 
expenses and collect assessments from handlers to administer the 
program. The members of the Committee are producers and handlers of 
Oregon and Washington winter pears. They are familiar with the 
Committee's needs and with the costs for goods and services in their 
local area and are thus in a position to formulate an appropriate 
budget and assessment rate. The rate of assessment, both basic and 
supplemental, is formulated and discussed in a public meeting. Thus, 
all directly affected persons have an opportunity to participate and 
provide input.
    The Committee met on June 1, 2001, and unanimously recommended 
2001-2002 expenditures of $8,127,777. The Committee also recommended 
continuation of the rate of assessment of $0.49 per standard box of 
winter pears established for the 1998-99 and subsequent fiscal periods. 
In addition to this continuing, basic rate of assessment, the Committee 
unanimously recommended the establishment of a supplemental rate of 
assessment of $0.03 per standard box of d'Anjou pears handled, 
excluding organically produced pears. Both the basic rate of $0.49 per 
standard box of winter pears and the supplemental rate of $0.03 per 
standard box of conventionally produced and handled d'Anjou pears would 
continue in effect indefinitely unless modified, suspended, or 
terminated by the Secretary upon recommendation and information 
submitted by the Committee or other available information.
    Under this proposal, conventionally produced and handled d'Anjou 
pears (pears that are not organically produced) would be assessed at a 
total rate of $0.52 per standard box, while all other varieties of 
winter pears, including organically produced and handled d'Anjou pears, 
would be assessed at the currently established rate of $0.49 per 
standard box. The Committee estimates that of the 15.8 million boxes of 
winter pears projected for utilization during the 2001-02 fiscal 
period, 12.4 million will be conventionally produced pears of the 
d'Anjou variety. While the income derived from the basic rate of 
assessment would continue to fund the Committee's administrative and 
promotional activities, income derived from the supplemental rate of 
assessment would be used exclusively to fund the collection of data on 
Ethoxyquin residue on stored d'Anjou pears. Ethoxyquin is an 
antioxidant that is registered for use on pears in the control of 
superficial scald, a physiological disease affecting the appearance of 
certain varieties of stored pears. The supplemental rate would not be 
applicable to d'Anjou pears that are organically produced, as 
Ethoxyquin is not used in their handling and storage.
    Since the d'Anjou variety of pear is of major importance to the 
Oregon and Washington winter pear industry, the Committee has embarked 
on a research project that would fund the collection of data pertaining 
to Ethoxyquin residue. Such data could be used to help satisfy 
requirements of the Environmental Protection Agency pertaining to U.S. 
pesticide tolerance and registration. In addition, the data collection 
could be used in conjunction with the Codex Alimentarius system that 
establishes maximum residue limits used as tolerances in many nations 
receiving shipments of Oregon and Washington d'Anjou pears.
    The major expenditures recommended by the Committee for the 2001-02 
year include $6,952,000 for market development projects including paid 
advertising, $688,000 for research including $372,000 for Ethoxyquin 
data research (funded by the supplemental rate of assessment), and 
operational expenses of $474,000, including $241,401 for salaries and 
employee benefits. Budgeted expenses for these items in 2000-01 were 
$7,342,500, $330,000, and $412,500 (including $269,658 for salaries and 
benefits), respectively. Collection of data on the use of Ethoxyquin 
was not a funded research project during the 2000-01 fiscal period.
    Assessment income for the 2001-02 fiscal period is expected to 
total $8,114,000 based on estimated shipments of 15,800,000 standard 
boxes at the current rate of $0.49 per standard box. This includes 
12,400,000 standard boxes of conventionally produced d'Anjou pears at 
the proposed supplemental rate of $0.03 per standard box. Income from 
the additional $0.03 rate of assessment is estimated at $372,000. 
Income derived from handler assessments, along with interest income and 
funds from the Committee's authorized reserve, would be adequate to 
cover budgeted expenses. Funds in the reserve (currently $304,181) 
would be kept within the maximum permitted by the order of 
approximately one fiscal period's expenses (Sec. 927.42).
    Although both the basic rate of assessment and the proposed 
supplemental rate of assessment would be in effect for an indefinite 
period, the Committee would continue to meet prior to or during each 
fiscal period to recommend a budget of expenses and consider 
recommendations for modification of both. The dates and times of 
Committee meetings are available from the Committee or the Department. 
Committee meetings are open to the public and interested persons may 
express their views at these meetings. The Department would evaluate 
Committee recommendations and other available information to determine 
whether modification of either rate of assessment is needed. Further 
rulemaking would be undertaken as necessary. The Committee's 2001-02 
budget and those for subsequent fiscal periods would be reviewed and, 
as appropriate, approved by the Department.
    The Committee's recommendation includes the establishment of a 
definition for organically produced pears. The Committee recommended 
the establishment of this definition primarily so that it could 
properly implement the organically produced pear exclusion included 
with the proposed supplemental rate of assessment. The Committee 
recommended that the definition be established as follows: 
``Organically produced pears'' means pears that have been certified by 
an organic certification organization currently registered with the 
Oregon or Washington State Departments of Agriculture, or such 
certifying organization accredited under the National Organic 
Program.'' Although the Committee recommended that this definition be 
established primarily so that it could properly administer the proposed 
supplemental rate of assessment, the definition could prove useful to 
both the Committee and the Department in a variety of ways in the 
administration of the order. With the increasing interest and emphasis 
being put on organic food production in the United States, the 
existence of a definition for organically produced pears in this order 
would provide the northwest pear industry with an important tool.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Agricultural Marketing Service (AMS) has considered the 
economic impact of this rule on small entities. Accordingly,

[[Page 48625]]

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 the rules issued thereunder, are unique in 
that they are brought about through group action of essentially small 
entities acting on their own behalf. Thus, both statutes have small 
entity orientation and compatibility.
    There are approximately 70 handlers of winter pears who are subject 
to regulation under the marketing order and approximately 1,700 winter 
pear producers in the production area. Small agricultural service firms 
are defined by the Small Business Administration (SBA) (13 CFR 121.201) 
as those having annual receipts less than $5,000,000, and small 
agricultural producers are defined as those whose annual receipts are 
less than $750,000.
    The Committee estimates, based upon handler shipment totals and an 
average F.O.B price of $14 per standard box, that about 93 percent of 
winter pear handlers could be considered small businesses under SBA's 
definition, excluding receipts from other sources. In addition, based 
on acreage, production, and producer prices reported by the National 
Agricultural Statistics Service, and the total number of winter pear 
producers, the average annual producer receipts are approximately 
$69,635, excluding receipts from other sources. In view of the 
foregoing, it can be concluded that the majority of producers of winter 
pears may be classified as small entities.
    This rule would establish a supplemental rate of assessment of 
$0.03 per standard box of d'Anjou pears handled, excluding organically 
produced pears, for the 2001-2002 and subsequent fiscal periods. The 
$0.03 supplemental rate of assessment on conventionally produced and 
handled d'Anjou pears would be in addition to the continuing rate of 
assessment of $0.49 per standard box of pears handled established at 63 
FR 39037 for the 1998-1999 and subsequent fiscal periods. This rule 
would also establish a definition for organically produced pears. The 
Committee unanimously recommended this action at its meeting held on 
June 1, 2001.
    The major expenditures recommended by the Committee for the 2001-02 
year include $6,952,000 for market development including paid 
advertising, $688,000 for research including $372,000 for Ethoxyquin 
data collection, and operational expenses of $474,000, including 
$241,401 for salaries and employee benefits. Budgeted expenses for 
these items in 2001-01 were $7,342,500, $330,000, and $412,500 
($269,658 for salaries and benefits), respectively. Ethoxyquin data 
research was not a budgeted item during the 2000-01 fiscal period.
    Assessment income for the 2001-02 fiscal period would total 
$8,114,000 based on estimated winter pear shipments of 15,800,000 
standard boxes at the current rate of $0.49 per standard box, and 
12,400,000 standard boxes of conventionally produced d'Anjou pears at 
the supplemental rate of $0.03 per standard box. The supplemental 
assessment income, estimated at $372,000, would be used to fund 
Ethoxyquin data research. Income derived from handler assessments, 
along with interest income and funds from the Committee's authorized 
reserve, would be adequate to cover budgeted expenses. The operating 
reserve is within the maximum permitted by the order of approximately 
one fiscal period's expenses.
    The Committee reviewed and unanimously recommended 2001-02 
expenditures of $8,127,777. This compares to last year's approved 
budget of $8,199,694. Prior to arriving at this budget, alternative 
expenditure and assessment levels were discussed by the Committee. 
Based upon the relative value of the Ethoxyquin research to the 
industry, a supplemental rate of assessment was recommended on d'Anjou 
pears. Ethoxyquin is not used in the handling and storage of 
organically produced d'Anjou pears, thus they were excluded from the 
Committee's supplemental assessment recommendation. Therefore, the 
Committee recommended the establishment of a definition for organically 
produced pears in the order's rules and regulations.
    A review of historical information, as well as preliminary 
information pertaining to the upcoming fiscal period, indicates that 
the producer price for the 2001-02 season could range between $5.87 and 
$10.34 per standard box of winter pears. Therefore, the estimated 
assessment revenue for the 2001-02 fiscal period, inclusive of revenue 
from both the basic $0.49 rate and the $0.03 supplemental rate of 
assessment, as a percentage of total grower revenue could range between 
5 and 9 percent.
    This action would increase the assessment obligation imposed on 
handlers. While assessments impose some additional costs on handlers, 
the costs are minimal and uniform on all handlers. Some of the 
additional costs may be passed on to producers. However, these costs 
would be offset by the benefits derived by the operation of the 
marketing order. In addition, the Committee's meeting was widely 
publicized throughout the winter pear industry and all interested 
persons were invited to attend the meeting and participate in Committee 
deliberations on all issues. Like all Committee meetings, the June 1, 
2001, meeting was a public meeting and all entities, both large and 
small, were able to express views on this issue. Finally, interested 
persons are invited to submit information on the regulatory and 
informational impacts of this action on small businesses.
    This proposed rule would impose no additional reporting or 
recordkeeping requirements on either small or large winter 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.
    The Department has not identified any relevant Federal rules that 
duplicate, overlap, or conflict with this rule.
    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/fv/moab.html. Any questions about the compliance 
guide should be sent to Jay Guerber at the previously mentioned address 
in the FOR FURTHER INFORMATION CONTACT section.
    A 30-day comment period is provided to allow interested persons to 
respond to this proposed rule. Thirty days is deemed appropriate 
because: (1) The 2001-02 fiscal period began on July 1, 2001, and the 
supplemental rate of assessment should apply to all assessable, non-
organic, d'Anjou pears handled during such fiscal period; (2) the 
Committee needs to have sufficient funds to pay its expenses in regard 
to the Ethoxyquin data collection; and (3) handlers are aware of this 
action which was unanimously recommended by the Committee at a public 
meeting.

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 
proposed to be amended as follows:

PART 927--WINTER PEARS GROWN IN OREGON AND WASHINGTON

    1. The authority citation for 7 CFR part 927 continues to read as 
follows:


[[Page 48626]]


    Authority: 7 U.S.C. 601-674.

    2. In Subpart--Control Committee Rules and Regulations, under the 
undesignated center heading ``Definitions'', a new Sec. 927.103 is 
added as follows:


Sec. 927.103  Organically produced pears.

    Organically produced pears means pears that have been certified by 
an organic certification organization currently registered with the 
Oregon or Washington State Departments of Agriculture, or such 
certifying organization accredited under the National Organic Program.
    3. Section 927.236 is revised to read as follows:


Sec. 927.236  Assessment rate.

    On and after July 1, 2001, an assessment rate of $0.49 per standard 
box of conventionally and organically produced pears and, in addition, 
a supplemental assessment rate of $0.03 per standard box of Beurre 
d'Anjou variety pears, excluding organically produced pears, is 
established for the Winter Pear Control Committee.

    Dated: September 17, 2001.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 01-23657 Filed 9-20-01; 8:45 am]
BILLING CODE 3410-02-P