[Federal Register Volume 63, Number 139 (Tuesday, July 21, 1998)]
[Proposed Rules]
[Pages 39037-39039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19389]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 63, No. 139 / Tuesday, July 21, 1998 / 
Proposed Rules  

[[Page 39037]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Docket No. FV98-927-1 PR]


Winter Pears Grown in Oregon and Washington; Increased Assessment 
Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule would increase the assessment rate established for 
the Winter Pear Control Committee (Committee) under Marketing Order No. 
927 for the 1998-99 and subsequent fiscal periods from $0.44 to $0.49 
per standard box of winter pears handled. 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 1998-
99 fiscal period began July 1 and ends June 30. The assessment rate 
would remain in effect indefinitely unless modified, suspended, or 
terminated.

DATES: Comments must be received by August 20, 1998.

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) 
690-3919, 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. 89 and Order No. 927, both as amended (7 CFR part 927), 
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.''
    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 proposed herein would be applicable to all assessable winter pears 
beginning July 1, 1998, and continue until modified, suspended, or 
terminated. This rule would 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 would increase the assessment rate established for the 
Committee for the 1998-99 and subsequent fiscal periods from $0.44 to 
$0.49 per standard box of winter pears handled.
    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 
Committee consists of six producer members and six handler members, 
each of whom is 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 budget and 
assessment rate were discussed at a public meeting and all directly 
affected persons had 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 of $0.44 
per standard box 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, 1998, and unanimously recommended 
1998-99 expenditures of $7,958,083 and an assessment rate of $0.49 per 
standard box of winter pears handled during the 1998-99 and subsequent 
fiscal periods. In comparison, last year's budgeted expenditures were 
$8,066,790. The assessment rate of $0.49 is $0.05 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 decided that an 
assessment rate of more than $0.49 would generate income in excess of 
that needed to adequately administer the program.

[[Page 39038]]

    Major expenses recommended by the Committee for the 1998-99 fiscal 
period include $6,719,500 for paid advertising, $460,925 for unforeseen 
expenses, $302,000 for improvement of winter pears, $182,785 for 
salaries, and $75,000 for market development. Budgeted expenses for 
these items in 1997-98 were $7,010,550, $268,632, $346,200, $161,549, 
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 15,100,000 standard 
boxes, which should provide $7,399,000 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 (currently $470,000) will be 
kept within the maximum permitted by the order of approximately one 
fiscal period's expenses (Sec. 927.42).
    The proposed assessment rate would 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 would be in effect for an indefinite 
period, the Committee would 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 would 
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 this rule would have 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 would increase the assessment rate established for the 
Committee for the 1998-99 and subsequent fiscal periods from $0.44 to 
$0.49 per standard box of winter pears handled. The Committee met on 
May 29, 1998, and unanimously recommended 1998-99 expenditures of 
$7,958,083 and an assessment rate of $0.49 per standard box of winter 
pears handled. In comparison, last year's budgeted expenditures were 
$8,066,790. The assessment rate of $0.49 is $0.05 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 decided that an 
assessment rate of more than $0.49 would generate income in excess of 
that needed to adequately administer the program.
    Major expenses recommended by the Committee for the 1998-99 fiscal 
period include $6,719,500 for paid advertising, $460,925 for unforeseen 
expenses, $302,000 for improvement of winter pears, $182,785 for 
salaries, and $75,000 for market development. Budgeted expenses for 
these items in 1997-98 were $7,010,550, $268,632, $346,200, $161,549, 
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 15,100,000 standard 
boxes, which should provide $7,399,000 in assessment income. Income 
derived from handler assessments, along with interest income and funds 
from the Committee's authorized reserve, would be adequate to cover 
budgeted expenses. The operating reserve is within the maximum 
permitted by the order of approximately one fiscal period's expenses 
(Sec. 927.42).
    Recent price information indicates that the grower price for the 
1998-99 marketing season will range between $6.18 and $10.78 per 
standard box of winter pears handled. Therefore, the estimated 
assessment revenue for the 1998-99 fiscal period as a percentage of 
total grower revenue would range between 0.5 and 0.8 percent.
    This action would increase 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 producers. However, these costs 
would 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 29, 
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 proposed rule would impose no 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.
    A 30-day comment period is provided to allow interested persons the 
opportunity to respond to this request for information and comments. 
Thirty days is deemed appropriate because: (1) The Committee needs to 
have sufficient funds to pay its expenses which are incurred on a 
continuous basis; (2) the 1998-99 fiscal period began on July 1, 1998, 
and the order requires that the rate of assessment for each fiscal 
period apply to all assessable winter 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.

[[Page 39039]]

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 
proposed to be amended as follows:

PART 927--WINTER PEARS GROWN IN OREGON AND WASHINGTON

    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 proposed to be amended by removing the words 
``July 1, 1997,'' and adding in their place the words ``July 1, 1998,'' 
and by removing ``$0.44'' and adding in its place ``$0.49.''

    Dated: July 15, 1998.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 98-19389 Filed 7-20-98; 8:45 am]
BILLING CODE 3410-02-P