[Federal Register Volume 63, Number 136 (Thursday, July 16, 1998)]
[Rules and Regulations]
[Pages 38280-38282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19000]


-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 931

[Docket No. FV98-931-1 IFR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

-----------------------------------------------------------------------

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 1998-99 and 
subsequent fiscal periods from $0.03 to $0.02 per standard box handled. 
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 1998-99 fiscal period 
began July 1 and ends June 30. The assessment rate will continue in 
effect indefinitely unless modified, suspended, or terminated.

DATES: Effective July 17, 1998. Comments received by September 14, 
1998, 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 to the Docket Clerk, Fruit 
and Vegetable Programs, AMS, USDA, Room 2525-S, P.O. Box 96456, 
Washington, DC 20090-6456; Fax (202) 205-6632. 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 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 No. 141 and Order No. 931 (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, 1998, and continuing until modified, 
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

[[Page 38281]]

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 1998-99 and subsequent fiscal periods from $0.03 to 
$0.02 per standard box handled.
    The fresh Bartlett 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 
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 1997-98 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 28, 1998, and unanimously recommended 
1998-99 expenditures of $97,000 and an assessment rate of $0.02 per 
standard box of fresh Bartlett pears handled. In comparison, last 
year's budgeted expenditures were $111,441. The assessment rate of 
$0.02 is $0.01 less than the rate currently in effect and will reduce 
the financial burden on handlers. At the current rate of $0.03 per 
standard box and estimated 1998 fresh Bartlett pear shipments of 
3,000,000 standard boxes, the projected reserve on June 30, 1999, 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 $0.02 would not generate 
the income necessary to administer the program with an adequate 
reserve.
    Major expenses recommended by the Committee for the 1998-99 fiscal 
period include $38,878 for salaries, $5,323 for office rent, and $4,062 
for health insurance. Budgeted expenses for these items in 1997-98 were 
$48,454, $8,187, and $4,956, 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 1998-99 estimated at 
3,000,000 standard boxes, the $0.02 per standard box assessment rate 
should provide $60,000 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 
(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 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 
1998-99 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 1998-99 and subsequent 
fiscal periods from $0.03 to $0.02 per standard box handled. The 
Committee unanimously recommended 1998-99 expenditures of $97,000 and 
an assessment rate of $0.02 per standard box of fresh Bartlett pears 
handled. In comparison, last year's budgeted expenditures were 
$111,441. The assessment rate of $0.02 is $0.01 less than the rate 
currently in effect. At the rate of $0.03 per standard box and 
estimated 1998 fresh Bartlett pear shipments of 3,000,000 standard 
boxes, the projected reserve on June 30, 1999, would exceed the level 
the Committee believed to be adequate to administer the program. The 
assessment rate reduction would also lessen the financial burden on 
handlers. The Committee decided that an assessment rate of less than 
$0.02 would not generate the income necessary to administer the program 
with an adequate reserve.
    Major expenses recommended by the Committee for the 1998-99 fiscal 
period include $38,878 for salaries, $5,323 for office rent, and $4,062 
for health insurance. Budgeted expenses for these items in 1997-98 were 
$48,454, $8,187, and $4,956, respectively.
    With fresh Bartlett pear shipments for 1998-99 estimated at 
3,000,000 standard boxes, the $0.02 rate of assessment should provide 
$60,000 in assessment income. Income derived from handler assessments, 
along with funds from the Committee's authorized reserve and 
miscellaneous income, will be adequate to cover budgeted expenses. 
Funds in the reserve (estimated to be $33,000 at the end of the 1997-98 
fiscal period) will be kept within the maximum permitted by the order 
(approximately one fiscal year's operational expenses; Sec. 931.42).
    Recent price information indicates that the grower price for the 
1998-99 marketing season will range between $7.59 and $12.72 per 
standard box of fresh Bartlett pears. Therefore, the estimated 
assessment revenue for the 1998-99 fiscal period as a percentage of 
total grower revenue will range between 0.26 and 0.16 percent.
    This action decreases the assessment obligation imposed on 
handlers. Assessments are applied uniformly on

[[Page 38282]]

all handlers, and some of the costs may be passed on to producers. 
However, decreasing the assessment rate reduces the burden on handlers 
and may reduce the burden on producers. 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 28, 1998, 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 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 1998-99 fiscal period began on July 
1, 1998, 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 60-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, 
1997,'' and adding in their place the words ``July 1, 1998,'' and by 
removing ``$0.03'' and adding in its place ``$0.02.''

    Dated: July 10, 1998.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 98-19000 Filed 7-15-98; 8:45 am]
BILLING CODE 3410-02-P