[Federal Register Volume 62, Number 164 (Monday, August 25, 1997)]
[Rules and Regulations]
[Pages 44884-44886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22522]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 931

[Docket No. FV97-931-2 IFR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule decreases the assessment rate 
established for the Northwest Fresh Bartlett Pear Marketing Committee 
(Committee) under Marketing Order No. 931 for the 1997-98 and 
subsequent fiscal periods. The Committee is responsible for local 
administration of the marketing order which regulates the handling of 
fresh Bartlett pears grown in 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 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 26, 1997. Comments received by September 24, 
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 No. 141 and Order No. 931, both as amended (7 CFR part 931), 
regulating the handling of fresh Bartlett pears grown in Oregon and 
Washington 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, fresh Bartlett 
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 fresh 
Bartlett 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 
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 decreases the assessment rate established for the 
Committee for the 1997-98 and subsequent fiscal periods from $0.0375 to 
$0.03 per standard box.
    The fresh Bartlett pear marketing order provides authority for the

[[Page 44885]]

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 
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 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 29, 1997, and unanimously recommended 
1997-98 expenditures of $111,441 and an assessment rate of $0.03 per 
standard box of fresh Bartlett pears. In comparison, last year's 
budgeted expenditures were $89,774. The assessment rate of $0.03 is 
$0.0075 less than the rate currently in effect. At the current rate of 
$0.0375 per standard box and an estimated 1997 fresh Bartlett pear 
production of 3,150,000 standard boxes, the projected reserve on May 
31, 1998, would exceed the level the Committee believed to be adequate 
to administer the program. The Committee discussed lower assessment 
rates, but decided that an assessment rate of less than $0.03 would not 
generate the income necessary to administer the program with an 
adequate reserve. Major expenses recommended by the Committee for the 
1997-98 fiscal period include $48,454 for salaries, $8,187 for office 
rent, and $4,956 for health insurance. Budgeted expenses for these 
items in 1996-97 were $46,306, $7,016, and $4,991, respectively.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of fresh Bartlett 
pears. With fresh Bartlett pear shipments for the year estimated at 
3,150,000 standard boxes, the $0.03 per standard box assessment rate 
should provide $94,500 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 fresh Bartlett pears in 
the production area and approximately 65 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 fresh Bartlett pear producers and handlers 
may be classified as small entities.
    This rule decreases 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 $111,441 and an assessment rate of $0.03 per standard 
box of fresh Bartlett pears. The assessment rate of $0.03 is $0.0075 
less than the rate currently in effect. At the current assessment rate 
of $0.0375 per standard box, the Committee's reserve was projected to 
exceed the level the Committee believed to be adequate to administer 
the program. Therefore, the Committee voted to lower its assessment 
rate and use more of the reserve to cover its expenses.
    The Committee discussed alternatives to this rule, including 
alternative expenditure levels. Lower assessment rates were considered, 
but not recommended because they would not generate the income 
necessary to administer the program with an adequate reserve. Major 
expenses recommended by the Committee for the 1997-98 fiscal period 
include $48,454 for salaries, $8,187 for office rent, and $4,956 for 
health insurance. Budgeted expenses for these items in 1996-97 were 
$46,306, $7,016, and $4,991, respectively.
    Fresh Bartlett pear shipments for the year are estimated at 
3,150,000 standard boxes, which should provide $94,500 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.
    Recent price information indicates that the grower price for the 
1997-98 marketing season will range between $5.79 and $12.72 per 
standard box of fresh Bartlett pears. Therefore, the estimated 
assessment revenue for the 1997-98 fiscal period as a percentage of 
total grower revenue will range between 0.24 and 0.52 percent.
    This action will reduce 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 fresh Bartlett 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 29, 1997, meeting was a public meeting and 
all entities, both large and small, were able to express views on this 
issue. Finally,

[[Page 44886]]

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 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.
    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) This action reduces the current assessment rate 
for fresh Bartlett pears; (2) 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 fresh Bartlett pears 
handled during such fiscal period; (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; and (4) 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 931

    Marketing agreements, Pears, Reporting and recordkeeping 
requirements.

    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

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

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


Sec. 931.231  [Amended]

    2. Section 931.231 is amended by removing the words ``July 1, 
1996,'' and adding in their place the words ``July 1, 1997,'' and by 
removing ``$0.0375'' and adding in its place ``$0.03.''

    Dated: August 19, 1997.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 97-22522 Filed 8-22-97; 8:45 am]
BILLING CODE 3410-02-P