FR Doc 03-26519

[Federal Register: October 21, 2003 (Volume 68, Number 203)]
[Rules and Regulations]
[Page 60025-60028]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21oc03-1]

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Rules and Regulations
Federal Register
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[[Page 60025]]

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 931

[Docket No. FV03-931-1 FR]

Fresh Bartlett Pears Grown in Oregon and Washington; Increased
Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule increases the assessment rate established for the
Northwest Fresh Bartlett Pear Marketing Committee (Committee) for the
2003-2004 and subsequent fiscal periods from $0.025 to $0.335 per 44-
pound standard box or container equivalent of fresh Bartlett pears
handled. The Committee locally administers the marketing order, which
regulates the handling of fresh Bartlett pears grown in the States of
Oregon and Washington. Authorization to assess fresh Bartlett pear
handlers enables the Committee to incur expenses that are reasonable
and necessary to administer the program. The fiscal period began July 1
and ends June 30. The assessment rate will remain in effect
indefinitely unless modified, suspended, or terminated.

EFFECTIVE DATE: October 22, 2003.

FOR FURTHER INFORMATION CONTACT: Susan M. Hiller, Northwest Marketing
Field Office, Fruit and Vegetable Programs, AMS, USDA, 1220 SW., Third
Avenue, Suite 385; 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. 147 and Order No. 931, both as amended (7 CFR part 931),
regulating the handling of fresh Bartlett pears grown in the States of
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 handlers are subject to assessments. Funds to administer the
order are derived from such assessments. It is intended that the
assessment rate as issued herein will be applicable to all assessable
fresh Bartlett pears beginning on July 1, 2003, 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 increases the assessment rate established for the
Committee for the 2003-2004 and subsequent fiscal periods, from $0.025
to $0.335 per 44-pound standard box or container equivalent of fresh
Bartlett pears grown in the States of Oregon and Washington.
The Oregon and Washington fresh Bartlett pear marketing 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 members of the Committee are
growers and handlers of Oregon or Washington fresh Bartlett 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 rate. The assessment
rate is formulated and discussed in a public meeting. Thus, all
directly affected persons have an opportunity to participate and
provide input.
For the 2001-2002 and subsequent fiscal periods, the Committee
recommended, and USDA approved, an assessment rate that would continue
in effect from fiscal period to fiscal period unless modified,
suspended, or terminated by USDA upon recommendation and information
submitted by the Committee or other information available to USDA.
The Committee met on May 29, 2003, and unanimously recommended
2003-2004 expenditures of $1,122,250 and an assessment rate of $0.335
per 44-pound standard box or container equivalent of fresh Bartlett
pears. In comparison, last year's budgeted expenditures were $77,612.
The assessment rate of $0.335 is $0.31 higher than the rate previously
in effect. The Committee recommended an increased assessment rate to
establish market research and development projects to assist, improve,
or promote the marketing, distribution, and consumption of pears. These
projects will be executed through an agreement with Pear Bureau
Northwest, which also oversees market development and promotion,
including paid advertising, projects for the Winter Pear Control
Committee, under Marketing Order No. 927 regulating the handling of
winter pears grown in Oregon and Washington. The Bartlett pear projects
for 2003-2004

[[Page 60026]]

include activities to enhance the consumption of pears in Latin America
and South America, trade and consumer communications through website
and newsletter releases, a domestic field staff program to distribute
point of sale materials and conduct consumer samplings, and
participation in food service and consumer shows to advance Bartletts
as the first available USA pear variety. No paid advertising activities
will be conducted.
These market development projects were previously administered by
the Oregon Bartlett Pear Commission and the Washington State Fruit
Commission. However, following an eight-month series of industry
meetings, both state commissions recommended that the federal committee
administer future Bartlett pear market development projects. Thus, with
industry consensus in support of the action, the Committee, on May 29,
2003, unanimously recommended that it establish and administer future
market development projects for the Bartlett pear industry.
The net effect to the Northwest Bartlett pear industry in
transferring the market development projects from the State commissions
to the Committee is negligible as indicated in the table below.

----------------------------------------------------------------------------------------------------------------
2002-2003 2003-2004 Net change
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Oregon Bartlett Pear Commission................................. $0.34 $.0275 -$0.3125
Washington State Fruit Commission............................... 0.332 0.022 -0.31
Northwest Fresh Bartlett Pear Marketing Committee............... 0.025 0.335 0.31
Oregon Total.................................................... 0.365 0.3625 -0.0025
Washington Total................................................ 0.357 0.357 0.0
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The major expenditures recommended by the Committee for the 2003-
2004 year include $78,934 for expenses shared with Pear Bureau
Northwest and the Winter Pear Control Committee (salaries, employee
benefits, office rent, and similar administration expenses), $38,316
for unshared committee expenses (meetings, assessment collection fees
paid to the Washington State Fruit Commission, fees paid to four
grower/shipper organizations for collating information used in
generating crop and quality reports, and contingency reserves), and
$1,005,000 for market research and development expenses. Budgeted
expenses for these items in 2002-2003 were $63,712, $13,900, and $0,
respectively.
The assessment rate recommended by the Committee was determined by
reviewing the historical market development expenses of other
organizations and past expenses for the Committee. Commodity shipments
for the 2003-2004 season are estimated at 3,350,000 standard boxes,
which should provide $1,122,250 in assessment income. Income derived
from handler assessments, along with miscellaneous income and funds
from the Committee's authorized reserve, should be adequate to cover
budgeted expenses. Funds in the reserve (currently $16,997.14) will be
kept within the maximum permitted by the order of approximately one
fiscal year's operational expenses (Sec. 931.42).
The assessment rate established in this rule 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 this 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 the assessment rate is needed. Further rulemaking will
be undertaken as necessary. The Committee's 2003-2004 budget and those
for subsequent fiscal periods will 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 1,500 growers of fresh Bartlett pears in
the production area and approximately 40 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, 2002 Preliminary
Summary issued in January 2003 by the National Agricultural Statistics
Service, the total farm gate value of fresh Bartlett pears in the
regulated production area for 2002 was $34,782,000. Therefore, the 2002
average gross revenue for a fresh Bartlett pear grower in the regulated
production area was $23,188. Further, based on Committee records and
recent f.o.b. prices for fresh Bartlett pears, over 98 percent of the
regulated handlers ship less than $5,000,000 worth of fresh Bartlett
pears on an annual basis. Based on this information, it can be
concluded that the majority of growers and handlers of fresh Bartlett
pears in the States of Oregon and Washington may be classified as small
entities.
This rule increases the assessment rate established for the
Committee and collected from handlers for the 2003-2004 and subsequent
fiscal periods from $0.025 to $0.335 per 44-pound standard box or
container equivalent of fresh Bartlett pears. The Committee unanimously
recommended 2003-2004 expenditures of $1,122,250 and an assessment rate
of $0.335 per 44-pound standard box or container equivalent. The
assessment rate is $0.31 higher than the rate previously in effect. The
quantity of assessable fresh Bartlett pears for the 2003-2004 season is
estimated at 3,350,000 standard boxes. Thus, the $0.335 rate should
provide $1,122,250 in assessment income. Income derived from handler
assessments, along with miscellaneous income and funds from the
Committee's

[[Page 60027]]

authorized reserve, should be adequate to cover budgeted expenses
(Sec. 931.42).
The major expenditures recommended by the Committee for the 2003-
2004 year include $78,934 for expenses shared with Pear Bureau
Northwest and the Winter Pear Control Committee (salaries, employee
benefits, office rent, and similar administration expenses), $38,316
for unshared committee expenses (meetings, assessment collection fees
paid to the Washington State Fruit Commission, fees paid to four
grower/handler organizations for collating information used in
generating crop and quality reports, and contingency reserves), and
$1,005,000 for market research and development expenses. Budgeted
expenses for these items in 2002-2003 were $63,712, $13,900, and $0,
respectively.
The increase in the assessment rate is necessary for the Committee
to establish market research and development projects. These market
development projects will be executed through an agreement with Pear
Bureau Northwest, which also oversees the market development projects
for the Winter Pear Control Committee, administering Marketing Order
No. 927. The Bartlett pear projects for 2003-2004 include activities to
enhance the consumption of pears in Latin America and South America,
trade and consumer communications through website and newsletter
releases, a domestic field staff program to distribute point of sale
materials and conduct consumer samplings, and participation in food
service and consumer shows to advance Bartletts as the first available
USA pear variety. No paid advertising activities will be implemented.
These market development projects were previously administered by
the Oregon Bartlett Pear Commission and the Washington State Fruit
Commission. However, following an eight-month series of industry
meetings, both state commissions recommended that the federal Committee
administer future Bartlett pear market development projects. Thus, with
industry consensus in support of the action, the Committee, on May 29,
2003, unanimously recommended that it establish and administer future
market development projects for the Bartlett pear industry.
The net effect to the Northwest Bartlett pear industry in
transferring the market development projects from the State commissions
to the Committee is negligible as indicated in the table below.

A review of historical information and preliminary information
pertaining to the upcoming season indicates that the grower price for
the 2003-2004 season could range between $9.20 and $11.00 per standard
box of fresh Bartlett pears. Therefore, the estimated assessment
revenue for the 2003-2004 season as a percentage of total grower
revenue could range between 3.6 and 3 percent.
This action increases 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 are
offset by the benefits derived by the operation of the marketing order.
In addition, the Committee's meeting was widely publicized throughout
the Oregon and Washington fresh Bartlett pear industry and all
interested persons were invited to attend the meeting and participate
in Committee deliberations on all issues discussed. Like all Committee
meetings, the May 29, 2003, meeting was a public meeting and all
entities, both large and small, were able to express views on this
issue.
This rule imposes no additional reporting or recordkeeping
requirements on either small or large Oregon or Washington fresh
Bartlett 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 September 10, 2003. Copies of the proposed rule were also
mailed or sent via facsimile to all fresh Bartlett pear handlers.
Finally, the proposal was made available through the Internet by the
Office of the Federal Register and USDA. A 15-day comment period ending
September 25, 2003, 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 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 the 2003-2004
fiscal period began on July 1, 2003, and the order requires that the
rate of assessment for each fiscal period apply to all assessable fresh
Bartlett pears handled during such fiscal period. In addition, the
Committee needs sufficient funds to pay its expenses which are incurred
on a continuous basis. Further, handlers are aware of this rule which
was recommended at a public meeting. Also, a 15-day comment period was
provided for in the proposed rule and no comments were received.

List of Subjects in 7 CFR Part 931

Marketing agreements, Pears, Reporting and recordkeeping
requirements.

0
For the reasons set forth in the preamble, 7 CFR part 931 is amended as
follows:

PART 931--FRESH BARTLETT PEARS GROWN IN OREGON AND WASHINGTON

0
1. The authority citation for 7 CFR part 931 continues to read as
follows:

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

[[Page 60028]]

0
2. Section 931.231 is revised to read as follows:

Sec. 931.231 Assessment rate.

On and after July 1, 2003, an assessment rate of $0.335 per 44-
pound standard box or container equivalent is established for fresh
Bartlett pears grown in Oregon and Washington.

Dated: October 15, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-26519 Filed 10-20-03; 8:45 am]

BILLING CODE 3410-02-P