[Federal Register Volume 68, Number 175 (Wednesday, September 10, 2003)]
[Proposed Rules]
[Pages 53306-53309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23048]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 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.
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 

  Federal Register / Vol. 68, No. 175 / Wednesday, September 10, 2003 / 
Proposed Rules  

[[Page 53306]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 931

[Docket No. FV03-931-1 PR]


Fresh Bartlett Pears Grown in Oregon and Washington; Increased 
Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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

SUMMARY: This rule would increase the assessment rate established for 
the Northwest Fresh Bartlett Pear Marketing Committee (Committee) for 
the 2003-2004 and subsequent fiscal periods from $0.025 to $0.335 per 
44-pound standard box or container equivalent of fresh Bartlett pears 
handled. The Committee locally administers the marketing order, which 
regulates the handling of fresh Bartlett pears grown in the States of 
Oregon and Washington. Authorization to assess fresh Bartlett pear 
handlers enables the Committee to incur expenses that are reasonable 
and necessary to administer the program. The fiscal period begins July 
1 and ends June 30. The assessment rate would remain in effect 
indefinitely unless modified, suspended, or terminated.

DATES: Comments must be received by September 25, 2003.

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 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: Susan M. Hiller, Northwest Marketing 
Field Office, Fruit and Vegetable Programs, AMS, USDA, 1220 SW. Third 
Avenue, Suite 385; telephone: (503) 326-2724, Fax: (503) 326-7440; or 
George Kelhart, Technical Advisor, 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.
    Small businesses may request information on complying with this 
regulation 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, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement No. 147 and Order No. 931, both as amended (7 CFR part 931), 
regulating the handling of fresh Bartlett pears grown in the States of 
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 marketing order now in effect, Oregon and 
Washington handlers are subject to assessments. Funds to administer the 
order are derived from such assessments. It is intended that the 
assessment rate as proposed herein would be applicable to all 
assessable fresh Bartlett pears beginning on July 1, 2003, and 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 would increase the assessment rate established for the 
Committee for the 2003-2004 and subsequent fiscal periods, from $0.025 
to $0.335 per 44-pound standard box or container equivalent of fresh 
Bartlett pears grown in the States of Oregon and Washington.
    The Oregon and Washington fresh Bartlett pear marketing order 
provides authority for the Committee, with the approval of USDA, to 
formulate an annual budget of expenses and collect assessments from 
handlers to administer the program. The members of the Committee are 
growers and handlers of Oregon or Washington fresh Bartlett 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 assessment 
rate is formulated and discussed in a public meeting. Thus, all 
directly affected persons have an opportunity to participate and 
provide input.
    For the 2001-2002 and subsequent fiscal periods, the Committee 
recommended, and USDA approved, an assessment rate that would continue 
in effect from fiscal period to fiscal period unless modified, 
suspended, or terminated by USDA upon recommendation and information 
submitted by the Committee or other information available to USDA.
    The Committee met on May 29, 2003, and unanimously recommended 
2003-2004 expenditures of $1,122,250 and an assessment rate of $0.335 
per 44-pound standard box or container equivalent of fresh Bartlett 
pears. In comparison, last year's budgeted expenditures were $77,612. 
The assessment rate of $0.335 is $0.31 higher than the rate currently 
in

[[Page 53307]]

effect. The Committee recommended an increased assessment rate to 
establish market research and development projects to assist, improve, 
or promote the marketing, distribution, and consumption of pears. These 
projects will be executed through an agreement with Pear Bureau 
Northwest, which also oversees market development and promotion, 
including paid advertising, projects for the Winter Pear Control 
Committee, under Marketing Order No. 927 regulating the handling of 
winter pears grown in Oregon and Washington. The Bartlett pear projects 
for 2003-2004 include activities to enhance the consumption of pears in 
Latin America and South America, trade and consumer communications 
though website and newsletter releases, a domestic field staff program 
to distribute point of sale materials and conduct consumer samplings, 
and participation in food service and consumer shows to advance 
Bartletts as the first available USA pear variety. No paid advertising 
activities would be conducted.
    These market development projects were previously administered by 
the Oregon Bartlett Pear Commission and the Washington State Fruit 
Commission. However, following an eight-month series of industry 
meetings, both state commissions recommended that the federal Committee 
administer future Bartlett pear market development projects. Thus, with 
industry consensus in support of the action, the Committee, on May 29, 
2003, unanimously recommended that it establish and administer future 
market development projects for the Bartlett pear industry.
    The net effect to the Northwest Bartlett pear industry in 
transferring the market development projects from the State commissions 
to the Committee is negligible as indicated in the table below.

----------------------------------------------------------------------------------------------------------------
                                                             2002-2003          2003-2004          Net change
----------------------------------------------------------------------------------------------------------------
Oregon Bartlett Pear Commission........................              $0.34             $.0275           -$0.3125
Washington State Fruit Commission......................              0.332              0.022              -0.31
Northwest Fresh Bartlett Pear Marketing Committee......              0.025              0.335               0.31
                                                        --------------------
    Oregon Total.......................................              0.365             0.3625             -0.025
    Washington Total...................................              0.357              0.357                0.0
----------------------------------------------------------------------------------------------------------------

    The major expenditures recommended by the Committee for the 2003-
2004 year include $78,934 for expenses shared with Pear Bureau 
Northwest and the Winter Pear Committee (salaries, employee benefits, 
office rent, and similar administration expenses), $38,316 for unshared 
committee expenses (meetings, assessment collection fees paid to the 
Washington State Fruit Commission, fees paid to four grower/shipper 
organizations for collating information used in generating crop and 
quality reports, and contingency reserves), and $1,005,000 for market 
research and development expenses. Budgeted expenses for these items in 
2002-2003 were $63,712, $13,900, and $0, respectively.
    The assessment rate recommended by the Committee was determined by 
reviewing the historical market development expenses of other 
organizations and past expenses for the Committee. Commodity shipments 
for the 2003-2004 season are estimated at 3,350,000 standard boxes, 
which should provide $1,122,250 in assessment income. Income derived 
from handler assessments, along with miscellaneous income and funds 
from the Committee's authorized reserve, would be adequate to cover 
budgeted expenses. Funds in the reserve (currently $16,997.14) would be 
kept within the maximum permitted by the order of approximately one 
fiscal year's operational expenses (Sec.  931.42).
    The proposed assessment rate would continue in effect indefinitely 
unless modified, suspended, or terminated by USDA upon recommendation 
and information submitted by the Committee or other available 
information.
    Although this assessment rate 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 the assessment rate. 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. USDA would evaluate Committee 
recommendations and other available information to determine whether 
modification of the assessment rate is needed. Further rulemaking would 
be undertaken as necessary. The Committee's 2003-2004 budget and those 
for subsequent fiscal periods would be reviewed and, as appropriate, 
approved by USDA.

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, 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 1,500 growers of fresh Bartlett pears in 
the production area and approximately 40 handlers subject to regulation 
under the marketing order. Small agricultural growers are defined by 
the Small Business Administration (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 
$5,000,000.
    According to the Noncitrus Fruits and Nuts, 2002 Preliminary 
Summary issued in January 2003 by the National Agricultural Statistics 
Service, the total farm gate value of fresh Bartlett pears in the 
regulated production area for 2002 was $34,782,000. Therefore, the 2002 
average gross revenue for a fresh Bartlett pear grower in the regulated 
production area was $23,188. Further, based on Committee records and 
recent f.o.b. prices for fresh Bartlett pears, over 98 percent of the 
regulated handlers ship less than $5,000,000 worth of fresh Bartlett 
pears on an annual basis. Based on this information, it can be 
concluded that the majority of growers and handlers of fresh Bartlett 
pears in the States of Oregon and Washington may be classified as small 
entities.
    This rule would increase the assessment rate established for the 
Committee and collected from handlers for the 2003-2004 and subsequent 
fiscal periods from $0.025 to $0.335 per 44-pound standard box or 
container

[[Page 53308]]

equivalent of fresh Bartlett pears. The Committee unanimously 
recommended 2003-2004 expenditures of $1,122,250 and an assessment rate 
of $0.335 per 44-pound standard box or container equivalent. The 
proposed assessment rate is $0.31 higher than the current rate. The 
quantity of assessable fresh Bartlett pears for the 2003-2004 season is 
estimated at 3,350,000 standard boxes. Thus, the $0.335 rate should 
provide $1,122,250 in assessment income. Income derived from handler 
assessments, along with miscellaneous income and funds from the 
Committee's authorized reserve, would be adequate to cover budgeted 
expenses (Sec.  931.42).
    The major expenditures recommended by the Committee for the 2003-
2004 year include $78,934 for expenses shared with Pear Bureau 
Northwest and the Winter Pear Committee (salaries, employee benefits, 
office rent, and similar administration expenses), $38,316 for unshared 
committee expenses (meetings, assessment collection fees paid to the 
Washington State Fruit Commission, fees paid to four grower handler 
organizations for collating information used in generating crop and 
quality reports, and contingency reserves), and $1,005,000 for market 
research and development expenses. Budgeted expenses for these items in 
2002-2003 were $63,712, $13,900, and $0, respectively.
    The proposed increase in the assessment rate is necessary for the 
Committee to establish market research and development projects. These 
market development projects will be executed through an agreement with 
Pear Bureau Northwest, which also oversees the market development 
projects for the Winter Pear Control Committee, administering Marketing 
Order No. 927. The Bartlett pear projects for 2003-2004 include 
activities to enhance the consumption of pears in Latin America and 
South America, trade and consumer communications though website and 
newsletter releases, a domestic field staff program to distribute point 
of sale materials and conduct consumer samplings, and participation in 
food service and consumer shows to advance Bartletts as the first 
available USA pear variety. No paid advertising activities would be 
implemented.
    These market development projects were previously administered by 
the Oregon Bartlett Pear Commission and the Washington State Fruit 
Commission. However, following an eight-month series of industry 
meetings, both state commissions recommended that the federal Committee 
administer future Bartlett pear market development projects. Thus, with 
industry consensus in support of the action, the Committee, on May 29, 
2003, unanimously recommended that it establish and administer future 
market development projects for the Bartlett pear industry.
    The net effect to the Northwest Bartlett pear industry in 
transferring the market development projects from the State commissions 
to the Committee is negligible as indicated in the table below.

----------------------------------------------------------------------------------------------------------------
                                                             2002-2003          2003-2004          Net change
----------------------------------------------------------------------------------------------------------------
Oregon Bartlett Pear Commission........................              $0.34             $.0275           -$.03125
Washington State Fruit Commission......................              0.332              0.022              -0.31
Northwest Fresh Bartlett Pear Marketing Committee......              0.025              0.335               0.31
                                                        --------------------
    Oregon Total.......................................              0.365             0.3625             -0.025
    Washington Total...................................              0.357              0.357                0.0
----------------------------------------------------------------------------------------------------------------

    A review of historical information and preliminary information 
pertaining to the upcoming season indicates that the grower price for 
the 2003-2004 season could range between $9.20 and $11.00 per standard 
box of fresh Bartlett pears. Therefore, the estimated assessment 
revenue for the 2003-2004 season as a percentage of total grower 
revenue could range between 3.6 and 3 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 growers. 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 Oregon and Washington fresh Bartlett 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 May 29, 2003, 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 Oregon or 
Washington fresh Bartlett 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.
    USDA 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 15-day comment period is provided to allow interested persons to 
respond to this proposed rule. Fifteen days is deemed appropriate 
because: (1) The 2003-2004 fiscal period began on July 1, 2003, and the 
marketing order requires that the rate of assessment for each fiscal 
period apply to all assessable fresh Bartlett pears handled during such 
fiscal period; (2) the Committee needs to have sufficient funds to pay 
its expenses which are incurred on a continuous basis; and (3) handlers 
are aware of this action which was unanimously recommended by the 
Committee at a public meeting and is similar to other assessment rate 
actions issued in past years.

List of Subjects in 7 CFR Part 931

    Marketing agreements, Pears, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR part 931 is 
proposed to be amended as follows:

PART 931--FRESH BARTLETT PEARS GROWN IN OREGON AND WASHINGTON

    1. The authority citation for 7 CFR part 931 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.
    2. Section 931.231 is revised to read as follows:


[[Page 53309]]




Sec.  931.231  Assessment rate.

    On and after July 1, 2003, an assessment rate of $0.335 per 44-
pound standard box or container equivalent is established for fresh 
Bartlett pears grown in Oregon and Washington.

    Dated: September 5, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-23048 Filed 9-9-03; 8:45 am]
BILLING CODE 3410-02-P