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Rules and Regulations Federal Register

57813

Vol. 69, No. 187

Tuesday, September 28, 2004

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: 

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 § 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 

57814 Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 

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 (§ 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 

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

■ 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.

■ 2. Section 927.236 is revised to read as 

follows:

§ 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