[Federal Register: September 28, 2004 (Volume 69, Number 187)]
[Rules and Regulations]
[Page 57813-57815]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28se04-1]
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Rules and Regulations
Federal Register
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[[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.
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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: Jay.Guerber@usda.gov.
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