[Federal Register: August 16, 2004 (Volume 69, Number 157)]
[Proposed Rules]
[Page 50334-50337]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16au04-23]
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Proposed Rules
Federal Register
________________________________________________________________________
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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[[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: moab.docketclerk@usda.gov; 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: 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 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