[Federal Register Volume 69, Number 157 (Monday, August 16, 2004)]
[Proposed Rules]
[Pages 50334-50337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18615]


 ========================================================================
 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. 69, No. 157 / Monday, August 16, 2004 / 
Proposed Rules  

[[Page 50334]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Docket No. FV04-927-2 PR]


Winter Pears Grown in Oregon and Washington; Decrease of a 
Continuing Supplemental Assessment Rate for the Beurre d'Anjou Variety 
of Pears Grown in Oregon and Washington

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule would decrease the continuing supplemental 
assessment rate established for the Winter Pear Control Committee 
(Committee) for the 2004-2005 and subsequent fiscal periods from $0.03 
to $0.01 per 44-pound standard box or container equivalent of the 
Beurre d'Anjou variety of pears (d'Anjou pears) handled, excluding 
organically produced d'Anjou pears. The Committee locally administers 
the marketing order which regulates the handling of winter pears grown 
in Oregon and Washington. Authorization for a supplemental assessment 
rate on individual varieties or subvarieties of winter pears enables 
the Committee to fund authorized projects for these varieties. The 
fiscal period began July 1 and ends June 30. The supplemental 
assessment rate would remain in effect indefinitely unless modified, 
suspended, or terminated.

DATES: Comments must be received by September 7, 2004.

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; e-mail: [email protected]; or 
Internet: http://www.regulations.gov. 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, 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, 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. 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 marketing 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 assessment rate as proposed herein would be 
applicable to all assessable d'Anjou pears, excluding organically 
produced d'Anjou pears, beginning on July 1, 2004, 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 decrease the supplemental assessment rate 
established for the Committee for the 2004-2005 and subsequent fiscal 
periods from $0.03 to $0.01 per 44-pound standard box or container 
equivalent of d'Anjou pears, excluding organically produced d'Anjou 
pears. The $0.01 supplemental assessment rate on conventionally 
produced (pears that are not organically produced) and handled d'Anjou 
pears is in addition to the continuing base assessment rate of $0.49 
per 44-pound standard box or container equivalent established for the 
1998-1999 and subsequent fiscal periods, which pertains to all winter 
pears handled under the order (63 FR 46633; September 2, 1998). The 
current supplemental rate of $0.03 per 44-pound standard box or 
container equivalent was established at 67 FR 5438; February 6, 2002.
    The 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 order also 
provides authority to 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,

[[Page 50335]]

improve, or promote the marketing, distribution, and consumption of 
pears. The members of the Committee are growers 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 rates. The assessment rates are 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 4, 2004, and unanimously recommended 
2004-2005 expenditures of $7,302,905 and reconfirmed the continuing 
base assessment rate of $0.49 per 44-pound standard box or container 
equivalent of winter pears established for the 1998-1999 and subsequent 
fiscal periods. The Committee also recommended a supplemental 
assessment rate of $0.01 per 44-pound standard box or container 
equivalent of d'Anjou pears, excluding organically produced d'Anjou 
pears. In comparison, last year's budgeted expenditures were 
$8,320,989.
    The Committee shares management and other expenses with Pear Bureau 
Northwest and the Northwest Fresh Bartlett Pear Marketing Committee (7 
CFR part 931) under a management agreement. The major expenditures 
recommended by the Committee for the 2004-2005 fiscal period include 
$339,905 for shared expenses (salaries and benefits, insurance, office 
rent, equipment rental and maintenance, office supplies, telephone, 
postage, and similar expenses); $290,000 for production research, and 
market research and development; $110,000 for Ethoxyquin data research, 
$183,000 for program expenses (compliance and education, committee 
meetings, office equipment purchases, industry development, and 
computer programs); and $6,380,000 for paid advertising. Budgeted 
expenses for these items in 2003-2004 were $329,989, $324,000, 
$360,000, $179,000, and $7,128,000, respectively.
    Under this proposed rule, conventionally produced and handled 
d'Anjou pears would be assessed at a total rate of $0.50 per 44-pound 
standard box or container equivalent, while all other varieties of 
winter pears, including organically produced d'Anjou pears, will be 
assessed at the currently established rate of $0.49 per 44-pound 
standard box or container equivalent. The Committee estimates that of 
the 14,500,000 44-pound standard boxes or container equivalents of 
winter pears projected for utilization during the 2004-2005 fiscal 
period, 11,000,000 44-pound standard boxes or container equivalents 
will be conventionally produced pears of the d'Anjou variety. While the 
income derived from the base assessment rate will continue to fund the 
Committee's administrative and promotional activities, income derived 
from the supplemental assessment rate 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 for 
controlling superficial scald, a physiological disease affecting the 
appearance of certain varieties of stored pears. The supplemental 
assessment rate would not be applicable to d'Anjou pears that are 
organically produced, because Ethoxyquin is not used in their handling 
and storage.
    Assessment income for the 2004-2005 fiscal period is expected to 
total $7,215,000. Income from the $0.49 base assessment rate is 
estimated at $7,105,000, calculated on estimated shipments of 
14,500,000 44-pound standard boxes or container equivalents. In 
addition, income from the $0.01 supplemental assessment rate is 
estimated at $110,000, calculated on estimated shipments of 11,000,000 
44-pound standard boxes or container equivalents. The supplemental 
assessment rate of $0.01 is $0.02 lower than the rate currently in 
effect. The Committee recommended a decreased supplemental assessment 
rate due to the projected reduced cost for the final stage of the 
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. Funds in the 
reserve (currently $440,550) would be kept within the maximum permitted 
by the order of approximately one fiscal period's expenses (Sec.  
927.42).
    The continuing base assessment rate and the decreased supplemental 
assessment rate of $0.01 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 the supplemental 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 either the base assessment rate or the 
supplemental assessment rate is needed. Further rulemaking would be 
undertaken as necessary. The Committee's 2004-2005 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 1,753 growers of winter pears in Oregon and 
Washington and approximately 50 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, 2003 Preliminary 
Summary issued in January 2004 by the National Agricultural Statistics 
Service, the total farm gate value of winter pears in the regulated 
production area for 2003 was $135,492,000. Therefore, the 2003 average 
gross revenue for a winter pear grower in the regulated production area 
was $77,292. Further, based on Committee records and recent f.o.b. 
prices for winter pears, over 76 percent of the regulated handlers ship 
less than $5,000,000 worth of winter pears on an annual basis. Based on 
this information it can be concluded that the majority of growers and 
handlers of winter pears in the States of Oregon and Washington may be 
classified as small entities.
    This rule would decrease the supplemental assessment rate 
established for the Committee and collected from handlers for the 2004-
2005 and subsequent fiscal periods from

[[Page 50336]]

$0.03 to $0.01 per 44-pound standard box or container equivalent of 
d'Anjou pears, excluding organically produced d'Anjou pears. The 
Committee unanimously recommended 2004-2005 expenditures of $7,302,905 
and reconfirmed the continuing base assessment rate of $0.49 per 44-
pound standard box or container equivalent of winter pears established 
for the 1998-1999 and subsequent fiscal periods. The Committee also 
recommended a decreased supplemental assessment rate of $0.01 per 44-
pound standard box or container equivalent of d'Anjou pears, excluding 
organically produced d'Anjou pears.
    The Committee shares management and other expenses with Pear Bureau 
Northwest and the Northwest Fresh Bartlett Pear Marketing Committee (7 
CFR part 931) under a management agreement. The major expenditures 
recommended by the Committee for the 2004-2005 fiscal period include 
$339,905 for shared expenses (salaries and benefits, insurance, office 
rent, equipment rental and maintenance, office supplies, telephone, 
postage, and similar expenses); $290,000 for production research, and 
market research and development; $110,000 for Ethoxyquin data research, 
$183,000 for program expenses (compliance and education, committee 
meetings, office equipment purchases, industry development, and 
computer programs); and $6,380,000 for paid advertising. Budgeted 
expenses for these items in 2003-2004 were $329,989, $324,000, 
$360,000, $179,000, and $7,128,000, respectively.
    Assessment income for the 2004-2005 fiscal period is expected to 
total $7,215,000. Income from the $0.49 base assessment rate is 
estimated at $7,105,000, calculated on estimated shipments of 
14,500,000 44-pound standard boxes or container equivalents. In 
addition, income from the $0.01 supplemental assessment rate is 
estimated at $110,000, calculated on estimated shipments of 11,000,000 
44-pound standard boxes or container equivalents. The supplemental 
assessment rate of $0.01 is $0.02 lower than the rate currently in 
effect. The Committee recommended a decreased supplemental assessment 
rate due to the projected reduced cost for the final stage of the 
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. Funds in the 
reserve (currently $440,550) would be kept within the maximum permitted 
by the order of approximately one fiscal period's expenses (Sec.  
927.42).
    The Committee reviewed and unanimously recommended 2004-2005 
expenditures of $7,302,905 which includes increases in shared expenses 
and program expenses and decreases in production research, and market 
research and development, Ethoxyquin data research, and paid 
advertising expenses. Prior to arriving at this budget, alternative 
expenditure and assessment levels were discussed by the Committee. 
Based upon the projected reduced cost for the final stage of the 
Ethoxyquin data research, the Committee recommended a reduction in the 
supplemental assessment rate. 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 rate 
recommendation.
    A review of historical information and preliminary information 
pertaining to the upcoming fiscal period indicates that the grower 
price for the 2004-2005 fiscal period could range between $5.80 and 
$7.35 per standard box of winter pears. Therefore, the estimated 
assessment revenue for the 2004-2005 fiscal period, inclusive of 
revenue from both the base assessment rate and the supplemental 
assessment rate, as a percentage of total grower revenue could range 
between 6.8 and 8.6 percent.
    This action would decrease the assessment obligation imposed on 
handlers. Assessments are applied uniformly on all handlers, and some 
of the costs may be passed on to growers. However, decreasing the 
supplemental assessment rate would reduce the burden on handlers, and 
may reduce the burden on growers. In addition, the Committee's meeting 
was widely publicized throughout the Oregon and Washington 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 4, 2004, 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 and 
Washington 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.
    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 20-day comment period is provided to allow interested persons to 
respond to this proposed rule. Twenty days is deemed appropriate 
because: (1) The 2004-2005 fiscal period began on July 1, 2004, and the 
marketing order requires that the rates of assessment for each fiscal 
period apply to all assessable winter pears handled during such fiscal 
period; (2) the proposed rule would decrease the supplemental 
assessment rate for assessable d'Anjou pears beginning with the 2004-
2005 fiscal period; 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 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:

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

    2. Section 927.236 is revised to read as follows:


Sec.  927.236  Assessment rate.

    On and after July 1, 2004, an assessment rate of $0.49 per 44-pound 
standard box or container equivalent of conventionally and organically 
produced pears and, in addition, a supplemental assessment rate of 
$0.01 per 44-pound standard box or container equivalent of Beurre 
d'Anjou variety pears, excluding organically produced Beurre d'Anjou 
pears, is established for the Winter Pear Control Committee.


[[Page 50337]]


    Dated: August 10, 2004.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 04-18615 Filed 8-13-04; 8:45 am]
BILLING CODE 3410-02-P