[Federal Register Volume 62, Number 244 (Friday, December 19, 1997)]
[Rules and Regulations]
[Pages 66495-66497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33168]



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 Rules and Regulations
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  Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / 
Rules and Regulations  

[[Page 66495]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Docket No. FV97-927-1 FIR]


Winter Pears Grown in Oregon and Washington; Increased Assessment 
Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (Department) is adopting, as a 
final rule, without change, the provisions of an interim final rule 
which increased 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 and Washington. 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 began July 1 and ends June 30. The assessment rate 
will continue in effect indefinitely unless modified, suspended, or 
terminated. The marketing order was amended recently and California was 
removed from the production area.

EFFECTIVE DATE: January 20, 1998.

FOR FURTHER INFORMATION CONTACT: Teresa L. Hutchinson, Northwest 
Marketing Field Office, Fruit and Vegetable Programs, 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 Programs, AMS, USDA, Room 
2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202) 
720-2491, Fax: (202) 205-6632. Small businesses may request information 
on compliance with this regulation by contacting Jay Guerber, Marketing 
Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 
Room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: 
(202) 720-2491, Fax: (202) 205-6632.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement and Order No. 927, both as amended (7 CFR part 927; 62 FR 
60999, November 14, 1997), regulating the handling of winter 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.'' Effective November 17, 
1997, the marketing agreement and order were amended by removing the 
State of California from the production area. The production area now 
covers the States of Oregon and Washington.
    The Department of Agriculture 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 
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 continues in effect an assessment rate established for 
the Committee for the 1997-98, and subsequent fiscal periods of $0.44 
per standard box of winter pears.
    The 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 previously in effect. The Committee discussed 
alternatives to this rule, including alternative expenditure levels, 
but decided that an assessment rate of less than $0.44 would not 
generate the income necessary to administer the program with an 
adequate reserve. An assessment rate of more than $0.44 would have 
resulted in a reserve that exceeded the level the Committee believes is 
necessary to administer the program.
    The assessment rate recommended by the Committee was derived by 
dividing

[[Page 66496]]

anticipated expenses by expected shipments of winter pears. Applying 
the $0.44 per standard box rate of assessment to the Committee's 
17,310,000 standard box shipment estimate should provide $7,616,400 in 
assessment income. Income derived from handler assessments, along with 
interest income and funds from the Committee's authorized reserve, will 
be adequate to cover budgeted expenses. Funds in the reserve 
(approximately $268,000) will be kept within the maximum permitted by 
the order (one fiscal period's expenses; Sec. 927.42).
    Major expenditures recommended by the Committee for the 1997-98 
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 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 was approved by the Department on August 25, 1997, and 
those for subsequent fiscal periods will be reviewed and, as 
appropriate, approved by the Department.
    A final rule amending the order was published in the Federal 
Register on November 14, 1997 (62 FR 60999). One of the amendments 
removed California from the production area effective November 17, 
1997. The removal of California from the order is expected to have 
minimal effect on the Committee's anticipated revenue from assessments, 
and on expenses. Shipments of winter pears from California averaged 
548,691 standard boxes or approximately four percent of the total 
winter pear shipments during the prior five year period. Assessments on 
shipments of winter pears from Oregon and Washington, along with 
interest income and funds from the Committee's authorized reserve, will 
be adequate to meet Committee expenses.
    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 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.
    Since the interim final rule was issued, the Department has 
received new figures on the number of producers and handlers in the 
production area. There are now approximately 1,700 producers of winter 
pears in the production area and approximately 93 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 continues in effect an increased 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 previously in effect. 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 on shipments of winter pears from Oregon and 
Washington, along with interest income and funds from the Committee's 
authorized reserve, will be adequate to cover budgeted expenses. Funds 
in the reserve (approximately $268,000) will be kept within the maximum 
permitted by the order (one fiscal period's expenses; Sec. 927.42).
    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. An 
assessment rate of more than $0.44 would have resulted in a reserve 
that exceeded the level the Committee believes is necessary to 
administer the program.
    Major expenditures recommended by the Committee for the 1997-98 
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 increase in salaries provides funds for staff 
salary adjustments.
    Recent price information indicates that the grower price for the 
1997-98 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 4 and 9 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.
    This action will not impose any additional reporting or 
recordkeeping requirements on either small or large

[[Page 66497]]

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.
    The interim final rule concerning this action was published in the 
Federal Register (62 FR 44202) on August 20, 1997, and requested 
comments to be received by September 21, 1997. A copy of the interim 
final rule was also made available on the Internet by the U.S. 
Government Printing Office. No comments were received.
    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.

List of Subjects in 7 CFR Part 927

    Marketing agreements, Pears, Reporting and recordkeeping 
requirements.

PART 927--WINTER PEARS GROWN IN OREGON AND WASHINGTON

    Accordingly, the interim final rule amending 7 CFR part 927 which 
was published at 62 FR 44202 on August 20, 1997, is adopted as a final 
rule without change.

    Dated: December 15, 1997.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 97-33168 Filed 12-18-97; 8:45 am]
BILLING CODE 3410-02-P