[Federal Register Volume 62, Number 161 (Wednesday, August 20, 1997)]
[Rules and Regulations]
[Pages 44202-44204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22013]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Docket No. FV97-927-1 IFR]


Winter Pears Grown in Oregon, Washington, and California; 
Increased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule increases the assessment rate 
established for the Winter Pear Control Committee (Committee) under 
Marketing Order No. 927 for the 1997-98 and subsequent fiscal periods. 
The Committee is responsible for local administration of the marketing 
order which regulates the handling of winter pears grown in Oregon, 
Washington, and California. Authorization to assess winter pear 
handlers enables the Committee to incur expenses that are reasonable 
and necessary to administer the program. The 1997-98 fiscal period for 
this marketing order covers the period July 1 through May 31. The 
assessment rate will continue until amended, suspended, or terminated.

DATES: Effective on August 21, 1997. Comments received by September 19, 
1997, will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent in triplicate to the Docket 
Clerk, Fruit and Vegetable Division, AMS, USDA, room 2525-S, P.O. Box 
96456, Washington, DC 20090-6456; Fax (202) 720-5698. 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.

FOR FURTHER INFORMATION CONTACT: Teresa L. Hutchinson, Northwest 
Marketing Field Office, Fruit and Vegetable Division, AMS, USDA, 1220 
SW Third Avenue, Room 369, Portland, OR 97204; Telephone: (503) 326-
2724,  Fax: (503) 326-7440 or  George J. Kelhart, Marketing Order 
Administration Branch, Fruit and Vegetable Division, AMS, USDA, Room 
2525-S, P.O. Box 96456, Washington, DC 20090-6456; Telephone: (202) 
690-3919, Fax: (202) 720-5698. Small businesses may request information 
on compliance with this regulation by contacting  Jay Guerber, 
Marketing Order Administration Branch, Fruit and Vegetable Division, 
AMS, USDA, Room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; 
Telephone: (202) 720-2491, Fax: (202) 720-5698.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement and Order No. 927, both as amended (7 CFR part 927), 
regulating the handling of winter pears grown in Oregon, Washington, 
and California hereinafter referred to as the ``order.'' The marketing 
agreement and order are 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 (Department) 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, winter pear 
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 winter pears 
beginning July 1, 1997, and continuing 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 the Secretary 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 the Secretary would rule on the

[[Page 44203]]

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 the 
Secretary'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 1997-98 and subsequent fiscal periods from $0.405 to 
$0.44 per standard box.
    The winter pear marketing order provides authority for the 
Committee, with the approval of the Department, to formulate an annual 
budget of expenses and collect assessments from handlers to administer 
the program. The members of the Committee are producers and handlers of 
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 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 1996-97 and subsequent fiscal periods, the Committee 
recommended, and the Department approved, an assessment rate that would 
continue in effect from fiscal period to fiscal period indefinitely 
unless modified, suspended, or terminated by the Secretary upon 
recommendation and information submitted by the Committee or other 
information available to the Secretary.
    The Committee met on May 30, 1997, and unanimously recommended 
1997-98 expenditures of $8,066,790 and an assessment rate of $0.44 per 
standard box of winter pears. In comparison, last year's budgeted 
expenditures were $5,502,979. The assessment rate of $0.44 is $0.035 
more than the rate currently in effect. The Committee recommended an 
increased assessment rate, because the current rate would not generate 
enough income to adequately administer the program.
    The Committee discussed alternatives to this rule, including 
alternative expenditure levels. Major expenses recommended by the 
Committee for the 1997-98 fiscal period include $7,010,550 for paid 
advertising, $346,200 for improvement of winter pears (production 
research), $161,549 for salaries, and $75,000 for industry development. 
Budgeted expenses for these items in 1996-97 were $4,674,675, $249,316, 
$154,387, and $75,000, respectively.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of winter pears. 
Winter pear shipments for the year are estimated at 17,310,000 standard 
boxes, and the $0.44 per standard box assessment rate should provide 
$7,616,400 in assessment income. Income derived from handler 
assessments, along with funds from the Committee's authorized reserve, 
will be adequate to cover budgeted expenses. Funds in the reserve will 
be kept within the maximum permitted by the order.
    The assessment rate established in this rule will continue in 
effect indefinitely unless modified, suspended, or terminated by the 
Secretary upon recommendation and information submitted by the 
Committee or other available information.
    Although this assessment rate is effective 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 the 
Department. Committee meetings are open to the public and interested 
persons may express their views at these meetings. The Department 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 
1997-98 budget and those for subsequent fiscal periods will be reviewed 
and, as appropriate, approved by the Department.
    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Agricultural Marketing Service (AMS) has considered the 
economic impact of this action 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 1,800 producers of winter pears in the 
production area and approximately 90 handlers subject to regulation 
under the marketing order. Small agricultural producers have been 
defined by the Small Business Administration (13 CFR 121.601) as those 
having annual receipts less than $500,000 and small agricultural 
service firms are defined as those whose annual receipts are less than 
$5,000,000. The majority of winter pear producers and handlers may be 
classified as small entities.
    This rule increases the assessment rate established for the 
Committee and collected from handlers for the 1997-98 and subsequent 
fiscal periods. The Committee unanimously recommended 1997-98 
expenditures of $8,066,790 and an assessment rate of $0.44 per standard 
box of winter pears. The assessment rate of $0.44 is $0.035 more than 
the rate currently in effect. The Committee recommended an increased 
assessment rate, because the current rate would not generate enough 
income to adequately administer the program. That is, enough income 
would not be generated to cover its increased expenses, and maintain an 
adequate operating reserve.
    The Committee discussed alternatives to this rule, including 
alternative expenditure levels. Major expenses recommended by the 
Committee for the 1997-98 fiscal period include $7,010,550 for paid 
advertising, $346,200 for improvement of winter pears (production 
research), $161,549 for salaries, and $75,000 for industry development. 
Budgeted expenses for these items in 1996-97 were $4,674,675, $249,316, 
$154,387, and $75,000, respectively. The increase in paid advertising 
is needed to help the industry market this season's crop, which is 
significantly larger than last year's crop. A lower level of funding 
for paid advertising was ruled out by the Committee because it felt 
that a more aggressive advertising program was needed this season to 
market the large crop. The increased level for production research 
provides funds for current and anticipated research in 1997-98.
    The Committee discussed the alternative of not increasing the 
assessment rate. However, it decided against this course of action 
because continuation of the current rate would not provide enough 
income to meet its 1997-98 budgeted expenses, and maintain an adequate 
operating reserve.
    Winter pear shipments for the year are estimated at 17,310,000 
standard boxes, which should provide $7,616,400 in assessment income. 
Income derived from handler assessments, along with funds from the 
Committee's authorized reserve, will be adequate to cover budgeted 
expenses. Funds in the reserve will be kept within the maximum 
permitted by the order.

[[Page 44204]]

    Recent price information indicates that the grower price for the 
1997-98 marketing season will range between $4.82 and $11.81 per 
standard box of winter pears. Therefore, the estimated assessment 
revenue for the 1997-98 fiscal period as a percentage of total grower 
revenue will range between 0.04 and 0.09 percent.
    This action will increase the assessment obligation imposed on 
handlers. While this rule will impose some additional costs on 
handlers, the costs are minimal and in the form of uniform assessments 
on all handlers. Some of the additional costs may be passed on to 
producers. However, these costs will be offset by the benefits derived 
by the operation of the marketing order. In addition, the Committee's 
meeting was widely publicized throughout the 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 May 30, 1997, 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 action will not impose any additional reporting or 
recordkeeping requirements on either small or large 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.
    The Department has not identified any relevant Federal rules that 
duplicate, overlap, or conflict with this rule. After consideration of 
all relevant matter 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 upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect, and 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 1997-98 fiscal period began on July 1, 1997, 
and the marketing order requires that the rate of assessment for each 
fiscal period apply to all assessable winter pears handled during such 
fiscal period; (2) 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; and (3) 
this interim final rule provides a 30-day comment period, and all 
comments timely received will be considered prior to finalization of 
this rule.

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, WASHINGTON, AND CALIFORNIA

    1. The authority citation for 7 CFR part 927 continues to read as 
follows:

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


Sec. 927.236  [Amended]

    2. Section 927.236 is amended by removing the words ``July 1, 
1996,'' and adding in their place the words ``July 1, 1997,'' and by 
removing ``$0.405'' and adding in its place ``$0.44.''

    Dated: August 14, 1997.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 97-22013 Filed 8-19-97; 8:45 am]
BILLING CODE 3410-02-P