[Federal Register Volume 69, Number 187 (Tuesday, September 28, 2004)]
[Rules and Regulations]
[Pages 57813-57815]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21630]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / 
Rules and Regulations  

[[Page 57813]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Docket No. FV04-927-2 FR]


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: Final rule.

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

SUMMARY: This rule decreases 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 
will remain in effect indefinitely unless modified, suspended, or 
terminated.

DATES: Effective September 29, 2004.

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 will 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 decreases 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 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, 
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

[[Page 57814]]

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 the 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 final rule, conventionally produced and handled d'Anjou 
pears will 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 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 for 
controlling superficial scald, a physiological disease affecting the 
appearance of certain varieties of stored pears. The supplemental 
assessment rate will 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 will be adequate to cover budgeted expenses. Funds in the 
reserve (currently $440,550) will 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 will 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 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 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 will 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 will 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.

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 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 decreases the supplemental assessment rate established 
for the Committee and collected from handlers 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 Committee unanimously recommended the 
supplemental assessment rate decrease and 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 shares management and other expenses with the 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

[[Page 57815]]

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 in effect prior 
to this action. 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 will be adequate to cover budgeted expenses. Funds 
in the reserve (currently $440,550) will 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 will 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, the decreased 
supplemental assessment rate should 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 were invited to submit information 
on the regulatory and informational impacts of this action on small 
businesses.
    This rule will 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 proposed rule concerning this action was published in the Federal 
Register on August 16, 2004 (69 FR 50334). Copies of the proposed rule 
were also mailed or sent via facsimile to all winter pear handlers. 
Finally, the proposal was made available through the Internet by the 
Office of Federal Register and USDA. A 20-day comment period ending 
September 7, 2004, 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) 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) this 
rule decreases 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. Also, a 20-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.


0
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

0
1. The authority citation for 7 CFR part 927 continues to read as 
follows:

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


0
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.

    Dated: September 22, 2004.
A. J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 04-21630 Filed 9-27-04; 8:45 am]
BILLING CODE 3410-02-P