43082 Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Proposed Rules 

bargaining agreement or any 

employment benefit program or plan. 

(c) An agency may adopt leave 

policies more generous than those 

provided in this subpart, except that 

such policies may not provide 

entitlement to paid time off in an 

amount greater than that otherwise 

authorized by law or provide sick leave 

in any situation in which sick leave 

would not normally be allowed by law 

or regulation. 

(d) The entitlements under sections 

6381 through 6387 of title 5, United 

States Code, and this subpart do not 

modify or affect any Federal law 

prohibiting discrimination. If the 

entitlements under sections 6381 

through 6387 of title 5, United States 

Code, and this subpart conflict with any 

Federal law prohibiting discrimination, 

an agency must comply with whichever 

statute provides greater entitlements to 

employees. 

§ 630.1215 Records and reports. 

(a) So that OPM can evaluate the use 

of family and medical leave by Federal 

employees and provide the Congress 

and others with information about the 

use of this entitlement, each agency 

must maintain records on employees 

who take leave under this subpart and 

submit to OPM such records and reports 

as OPM may require. 

(b) At a minimum, each agency must 

maintain the following information 

concerning each employee who takes 

leave under this subpart: 

(1) The employee’s rate of basic pay, 

as defined in 5 CFR 550.103; 

(2) The occupational series for the 

employee’s position; 

(3) The number of hours of leave 

taken under § 630.1203(a) and (b), 

including any paid leave substituted for 

leave without pay under § 630.1208(b); 

and 

(4) Whether leave was taken— 

(i) Under § 630.1203(a)(1), (2), or (3); 

(ii) Under § 630.1203(a)(4); or 

(iii) Under § 630.1203(b). 

(c) When an employee transfers to a 

different agency, the losing agency must 

provide the gaining agency with 

information on leave taken under 

§ 630.1203(a) or (b) by the employee 

during the 12 months prior to the date 

of transfer. The losing agency must 

provide the following information: 

(1) The beginning and ending dates of 

the employee’s 12-month period, as 

determined under § 630.1205(a) or (b); 

and 

(2) The number of hours of leave 

taken under § 630.1203(a) or (b) during 

the employee’s 12-month period or 

single 12-month period, respectively, as 

determined under § 630.1205(a) or (b), 

respectively. 

[FR Doc. E9–20610 Filed 8–25–09; 8:45 am] 

BILLING CODE 6325–39–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 927 

[Doc. No. AMS–FV–09–0037; FV09–927–1 

PR] 

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 

Processed Pear Committee (PPC) for the 

2009–2010 and subsequent fiscal 

periods from $6.25 to $8.41 per ton for 

‘‘summer/fall’’ pears for canning. The 

PPC is responsible for local 

administration of the marketing order 

regulating the handling of pears for 

processing grown in Oregon and 

Washington. Assessments upon 

handlers of pears for processing are 

used by the PPC to fund reasonable and 

necessary expenses of the program. The 

fiscal period for the marketing order 

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, 2009. 

ADDRESSES: Interested persons are 

invited to submit written comments 

regarding 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 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.regulations.gov. All 

comments submitted in response to this 

rule will be included in the record and 

will be made available to the public. 

Please be advised that the identity of the 

individuals or entities submitting the 

comments will be made public on the 

Internet at the address provided above. 

FOR FURTHER INFORMATION CONTACT: 

Susan M. Coleman or Gary D. Olson, 

Northwest Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1220 SW., Third Avenue, 

Suite 385, Portland, OR 97204; 

Telephone: (503) 326–2724; Fax: (503) 

326–7440; or E-mail: 

Sue.Coleman@ams.usda.gov or 

GaryD.Olson@ams.usda.gov. 

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@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Order No. 

927, as amended (7 CFR 927), regulating 

the handling of 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 pear 

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 pears beginning July 1, 

2009, 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 

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Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Proposed Rules 43083 

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 PPC 

for the 2009–2010 and subsequent fiscal 

periods from $6.25 to $8.41 per ton for 

‘‘summer/fall’’ pears for canning 

handled under the order. The 

assessment rate for ‘‘winter’’ and 

‘‘other’’ pears for processing would 

remain unchanged at a zero rate. 

The order provides authority for the 

PPC, 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 PPC are growers, 

handlers, and processors of Oregon and 

Washington pears. They are familiar 

with the PPC’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 at a public meeting. 

Thus, all directly affected persons have 

an opportunity to participate and 

provide input. 

For the 2005–06 and subsequent fiscal 

periods, the PPC unanimously 

recommended the following three base 

rates of assessment: (a) $6.25 per ton for 

any or all varieties or subvarieties of 

pears for canning classified as 

‘‘summer/fall’’, excluding pears for 

other methods of processing; (b) $0.00 

per ton for any or all varieties or 

subvarieties of pears for processing 

classified as ‘‘winter’’; and (c) $0.00 per 

ton for any or all varieties or 

subvarieties of pears for processing 

classified as ‘‘other’’. The assessment for 

‘‘summer/fall’’ pears applies only to 

pears for canning and excludes pears for 

other methods of processing as defined 

in § 927.15, which includes pears for 

concentrate, freezing, dehydrating, 

pressing, or in any other way to convert 

pears into a processed product. This rate 

continues in effect from fiscal period to 

fiscal period unless modified, 

suspended, or terminated by USDA 

upon recommendation and information 

submitted by the PPC or other 

information available to USDA. 

The PPC met on May 28, 2009, and 

unanimously recommended 2009–2010 

expenditures of $1,029,554. In 

comparison, last year’s budgeted 

expenditures were $882,606. The major 

expenditures recommended by the PPC 

for the 2009–2010 fiscal period include 

$860,310 for promotion and paid 

advertising; $130,944 for research; 

$24,200 for administration; $13,100 for 

PPC expenses; and $1,000 for 

contingency. In comparison, major 

expenditures for the 2008–09 fiscal 

period included $700,000 for promotion 

and paid advertising; $140,106 for 

research; $28,000 for administration; 

$13,500 for PPC expenses; and $1,000 

for contingency. 

The PPC based its recommended 

assessment rate for ‘‘summer/fall’’ pears 

for canning on the 2009–2010 crop 

estimate, the 2009–2010 program 

expenditure needs, and the current and 

projected size of its monetary reserve. 

Shipments of ‘‘summer/fall’’ pears for 

canning for 2009–2010 are estimated at 

121,000 tons, which should provide 

$1,017,610 in assessment income. 

Income derived from handler 

assessments, along with interest income 

($5,000), and funds from the 

Committee’s authorized reserve 

($136,420), should be adequate to cover 

the budgeted expenditures. The 

estimated 2009–2010 year-end reserve is 

$129,476, which is within the order’s 

limit of approximately one fiscal 

period’s operational expenses. 

Over the past five years, the 

Northwest processed pear industry has 

suffered a reduction in crop size by 

approximately 23 percent. With the 

decreasing crop size, along with the 

increasing costs for promotional 

activities, the PPC has been forced to cut 

back on some promotional activities and 

use reserve funds. The PPC 

recommended the higher assessment 

rate to increase the funding for 

promotional activities. The budget for 

promotion and paid advertising would 

increase from $700,000 to $860,310. 

This increase will allow the PPC to 

effectively carry out the promotional 

activities needed to maintain the 

existing market share and increase 

demand. The PPC recommended no 

change for the $0.00 assessment rate for 

both the ‘‘winter’’ and ‘‘other’’ 

classification of pears for processing. 

The proposed assessment rate would 

continue in effect indefinitely unless 

modified, suspended, or terminated by 

USDA upon recommendation and 

information submitted by the PPC or 

other available information. 

Although this assessment rate would 

be effective for an indefinite period, the 

PPC 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 the PPC’s meetings are available from 

the PPC or USDA. The PPC meetings are 

open to the public and interested 

persons may express their views at these 

meetings. USDA would evaluate the 

PPC’s recommendations and other 

available information to determine 

whether modification of the assessment 

rate is needed. Further rulemaking will 

be undertaken as necessary. The PPC’s 

2009–2010 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), (5 

U.S.C. 601–612), 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. 

There are approximately 1,500 

growers of pears for canning in the 

regulated production area and 

approximately 51 handlers subject to 

regulation under the 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 $7,000,000. 

According to the Noncitrus Fruits and 

Nuts 2008 Preliminary Summary issued 

in January 2009 by the National 

Agricultural Statistics Service, the total 

farm gate value of ‘‘summer/fall’’ 

processed pears grown in Oregon and 

Washington for 2008 was $28,868,000. 

Therefore, the 2008 average gross 

revenue for a ‘‘summer/fall’’ processed 

pear grower in Oregon and Washington 

was $19,245. Based on records of the 

PPC and recent f.o.b. prices for pears, all 

of the handlers ship less than 

$7,000,000 worth of processed pears on 

an annual basis. Thus it can be 

concluded that the majority of growers 

and handlers of Oregon and Washington 

pears may be classified as small entities. 

There are five processing plants in the 

production area, with one in Oregon 

and four in Washington. All five 

processors would be considered large 

entities under the SBA’s definition of 

small businesses. 

This rule would increase the 

assessment rate established for the PPC 

and collected from handlers for the 

2009–2010 and subsequent fiscal 

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43084 Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Proposed Rules 

periods from $6.25 to $8.41 per ton for 

‘‘summer/fall’’ pears for canning. The 

PPC also unanimously recommended 

2009–2010 expenditures of $1,029,554. 

With a 2009–2010 crop of ‘‘summer/ 

fall’’ pears for canning estimate of 

121,000 tons in Oregon and 

Washington, the PPC anticipates 

assessment income of about $1,017,610. 

The PPC recommended the higher 

assessment rate to increase the funding 

for promotional activities. 

The major expenditures 

recommended by the PPC for the 2009– 

2010 fiscal period include $860,310 for 

promotion and paid advertising, 

$130,944 for research, $24,200 for 

administration, $13,100 for PPC 

expenses, and $1,000 for contingency. 

In comparison, major expenditures for 

the 2008–09 fiscal period included 

$700,000 for promotion and paid 

advertising, $140,106 for research, 

$28,000 for administration, $13,500 for 

PPC expenses, and $1,000 for 

contingency. 

The PPC discussed alternatives to this 

recommended assessment increase. The 

PPC reviewed a ‘‘critical issue analysis’’ 

of the key components of the PPC’s 

promotion program and discussed 

individual promotional activities. 

Leaving the assessment rate at the 

current $6.25 per ton would have cut 

core promotional activities. A $0.05 

increase to $6.30 per ton would not be 

sufficient and would limit promotional 

activities. The assessment rate of $8.41 

per ton for ‘‘summer/fall’’ pears for 

canning enables the PPC to achieve the 

key components of the PPC’s promotion 

program. 

A review of historical information and 

preliminary information pertaining to 

the upcoming crop year indicates that 

the grower price for the 2009–2010 

season could average about $250 per ton 

for ‘‘summer/fall’’ pears for canning. 

Therefore, the estimated assessment 

revenue for the 2009–2010 fiscal period 

as a percentage of total grower revenue 

is 3.364 percent for Oregon and 

Washington ‘‘summer/fall’’ pears for 

canning. 

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 

order. 

In addition, the PPC’s meeting was 

widely publicized throughout the 

Oregon and Washington pear industry 

and all interested persons were invited 

to attend and participate in PPC 

deliberations on all issues. Like all PPC 

meetings, the May 28, 2009 meeting was 

a public meeting and all entities, both 

large and small, were able to express 

views on the issues. 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 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. Additionally, USDA has 

not identified any relevant Federal rules 

that duplicate, overlap, or conflict with 

this rule. 

AMS is committed to complying with 

the E–Government Act, to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and order may be 

viewed at: http://www.ams.usda.gov/ 

AMSv1.0/ams.fetchTemplateData.do?

template=TemplateN&page=Marketing

OrdersSmallBusinessGuide. 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 30-day comment period is provided 

to allow interested persons to respond 

to this proposed rule. Thirty days is 

deemed appropriate because: (1) The 

2009–2010 fiscal period will begin on 

July 1, 2009, and the order requires that 

the assessment rate for each fiscal 

period apply to all pears for canning 

handled during such fiscal period; (2) 

the Oregon and Washington pear 

harvest and shipping season is expected 

to begin in mid-August; (3) the PPC 

needs to have sufficient funds to pay its 

expenses, which are incurred on a 

continuous basis; and (4) handlers are 

aware of this action, which was 

recommended by the PPC 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—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. In § 927.237, the introductory text 

and paragraph (a) are revised to read as 

follows: 

§ 924.237 Processed pear assessment 

rate. 

On or after July 1, 2009, the following 

base rates of assessment for pears for 

processing are established for the 

Processed Pear Committee: 

(a) $8.41 per ton for any or all 

varieties or subvarieties of pears for 

canning classified as ‘‘summer/fall’’ 

excluding pears for other methods of 

processing; 

* * * * * 

Dated: August 20, 2009. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E9–20515 Filed 8–25–09; 8:45 am] 

BILLING CODE 3410–02–P 

CONSUMER PRODUCT SAFETY 

COMMISSION 

16 CFR Part 1119 

Civil Penalty Factors; Withdrawal of 

Proposed Rule 

AGENCY: Consumer Product Safety 

Commission. 

ACTION: Withdrawal of proposed rule. 

SUMMARY: In the Federal Register of July 

12, 2006, the Consumer Product Safety 

Commission (‘‘CPSC’’ or ‘‘Commission’’) 

issued a proposed rule that would 

identify and explain related factors, 

other than those specified by statute, 

which the Commission may consider in 

evaluating the appropriateness and 

amount of a civil penalty under the 

Consumer Product Safety Act (‘‘CPSA’’). 

The Consumer Product Safety 

Improvement Act of 2008 (‘‘CPSIA’’), 

Public Law 110–314, 122 Stat. 3016, 

supersedes the proposed rule by 

amending the CPSA, the Federal 

Hazardous Substances Act (‘‘FHSA’’), 

and the Flammable Fabrics Act (‘‘FFA’’) 

to require the Commission to consider 

additional factors and to issue a rule 

providing its interpretation of all 

statutory factors pertaining to civil 

penalties. Consequently, the 

Commission is withdrawing the July 12, 

2006 proposed rule. 

DATES: The proposed rule is withdrawn 

as of August 26, 2009. 

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