[Federal Register Volume 67, Number 25 (Wednesday, February 6, 2002)]
[Rules and Regulations]
[Pages 5435-5438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2849]



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 Rules and Regulations
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  Federal Register / Vol. 67, No. 25 / Wednesday, February 6, 2002 / 
Rules and Regulations  

[[Page 5435]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Docket No. FV01-927-1 FR]


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: Final rule.

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SUMMARY: This rule establishes 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 will be used for the purpose of funding data 
collection for Ethoxyquin residue on stored d'Anjou pears, this rule 
also establishes a definition for organically produced pears. The 
fiscal period began July 1 and ends June 30. The supplemental rate of 
assessment will remain in effect indefinitely unless modified, 
suspended, or terminated.

EFFECTIVE DATE: February 7, 2002.

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 (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 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 issued herein will be applicable to 
all assessable d'Anjou pears, excluding organically produced pears, 
beginning on July 1, 2001, and will continue until amended, suspended, 
or terminated. This rule will 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 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. Such 
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.
    This rule establishes 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 also establishes 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 USDA, 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 
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 
USDA's approval, 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

[[Page 5436]]

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 1998-1999 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 will 
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 authority of this final rule, conventionally produced and 
handled d'Anjou pears (pears that are not organically produced) will 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, will 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 
2001-2002 fiscal period, 12.4 million boxes will be conventionally 
produced pears of the d'Anjou variety. While the income derived from 
the basic rate of assessment will continue to fund the Committee's 
administrative and promotional activities, income derived from the 
supplemental rate of assessment will 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 
will 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 will fund the collection of data pertaining 
to Ethoxyquin residue to satisfy requirements of the Environmental 
Protection Agency pertaining to U.S. pesticide tolerance and 
registration. In addition, the data collection will 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-
2002 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 2000-2001 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 
2000-2001 fiscal period.
    Assessment income for the 2001-2002 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, will be adequate to 
cover budgeted expenses. Funds in the reserve (currently $304,181) will 
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 supplemental 
rate of assessment will be in effect for an indefinite period, the 
Committee will 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 USDA. Committee meetings are open to 
the public and interested persons may express their views at these 
meetings. The USDA will evaluate Committee recommendations and other 
available information to determine whether modification of either rate 
of assessment is needed. Further rulemaking will be undertaken as 
necessary. The Committee's 2001-2002 budget has been reviewed and 
approved by USDA. Those for subsequent fiscal periods will also be 
reviewed, and as appropriate, approved.
    This final rule includes the establishment of a definition for 
organically produced pears. The establishment of this definition 
facilitates the implementation of the organically produced pear 
exclusion from the 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, this definition for organically 
produced pears provides the northwest pear industry with an important 
tool.

Final 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, 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 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

[[Page 5437]]

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. 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. 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 establishes 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 of pears handled established at 63 
FR 39037 for the 1998-1999 and subsequent fiscal periods. This rule 
also establishes 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-
2002 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 2000-2001 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 2000-2001 fiscal period.
    Assessment income for the 2001-2002 fiscal period may 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, will be used to fund 
Ethoxyquin data research. Income derived from handler assessments, 
along with interest income and funds from the Committee's authorized 
reserve, should 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 2001-2002 
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. This fact, however, 
is the main reason 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 2001-2002 season could range between $5.87 
and $10.34 per standard box of winter pears. Therefore, the estimated 
assessment revenue for the 2001-2002 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 increases 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 
are generally offset by the benefits derived by the operation of the 
order. 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. Furthermore, interested persons were invited to 
submit information on the regulatory and informational impacts of this 
action on small businesses.
    This rule imposes 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 USDA has not identified any relevant Federal rules that 
duplicate, overlap, or conflict with this rule.
    A proposed rule concerning this action was published in the Federal 
Register on September 21, 2001 (66 FR 48623). A copy of the proposed 
ruled was provided to the Committee office which in turn made copies 
available to producers and handlers. Furthermore, the Office of the 
Federal Register and USDA made a copy available on the Internet. A 30-
day comment period ending October 22, 2001, was provided for interested 
persons to respond to the proposal. No comments were received.
    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.
    After consideration of all relevant material presented, including 
the information and recommendation submitted by the Committee and other 
available information, it is hereby found that this 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 that good 
cause exists for not postponing the effective date of this rule until 
30 days after publication in the Federal Register because: (1) Handlers 
are already receiving 2001-2002 fiscal period pears from producers; (2) 
the 2001-2002 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; and (3) handlers are aware of 
this action which was unanimously recommended by the Committee at a 
public meeting. Furthermore, a 30-day comment period was provided for 
in the proposed rule and no comments were received.

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--WINTER PEARS GROWN IN OREGON AND WASHINGTON

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

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


[[Page 5438]]



    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: January 31, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-2849 Filed 2-5-02; 8:45 am]
BILLING CODE 3410-02-P