[Federal Register Volume 63, Number 170 (Wednesday, September 2, 1998)]
[Rules and Regulations]
[Pages 46633-46635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23512]


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

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Docket No. FV98-927-1 FR]


Winter Pears Grown in Oregon and Washington; Increased Assessment 
Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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

SUMMARY: This rule increases 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 
will remain in effect indefinitely unless modified, suspended, or 
terminated.

EFFECTIVE DATE: September 3, 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 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 issued herein will be applicable to all assessable winter pears 
beginning July 1, 1998, and continue 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 
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 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

[[Page 46634]]

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.
    Major expenses recommended by the Committee for the 1998-99 fiscal 
period include $6,719,500 for paid advertising, $460,925 for 
contingencies (i.e., 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 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 will be in effect 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 rule 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.
    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 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 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.
    Major expenses recommended by the Committee for the 1998-99 fiscal 
period include $6,719,500 for paid advertising, $460,925 for 
contingencies (i.e., 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. This amount 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 will range between 5 and 8 percent.
    This action increases 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 
are 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.
    This rule imposes 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

[[Page 46635]]

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 proposed rule concerning this action was published in the Federal 
Register on July 21, 1998 (63 FR 39037). The proposal was made 
available through the Internet by the Office of the Federal Register. A 
30-day comment period ending August 20, 1998, was provided for 
interested persons to respond to the proposal. 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.
    Pursuant to 5 U.S.C. 553, it is also found and determined 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 
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; (2) the 
Committee needs to have sufficient funds to pay its expenses which are 
incurred on a continuous basis; (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) a 30-day comment period was provided and no comments were 
received.

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 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 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: August 26, 1998.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 98-23512 Filed 9-1-98; 8:45 am]
BILLING CODE 3410-02-P