[Federal Register Volume 64, Number 151 (Friday, August 6, 1999)]
[Proposed Rules]
[Pages 42858-42860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20289]


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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. 64, No. 151 / Friday, August 6, 1999 / 
Proposed Rules  

[[Page 42858]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 931

[Docket No. FV99-931-1 PR]


Fresh Bartlett 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 from $0.02 to 
$0.025 per standard box of fresh Bartlett pears established for the 
Northwest Fresh Bartlett Pear Marketing Committee (Committee) under 
Marketing Order No. 931 for the 1999-2000 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 1999-2000 
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 September 7, 1999.

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) 720-5698; or E-mail: 
[email protected]. 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) 720-5698.

SUPPLEMENTARY INFORMATION: Small businesses may request information on 
complying with this regulation, or obtain a guide on complying with 
fruit, vegetable, and specialty crop marketing agreements and orders 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) 720-
5698, or E-mail: Jay.G[email protected]. You may view the marketing 
agreement and order small business compliance guide at the following 
web site: http://www.ams.usda.gov/fv/moab.html.
    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 proposed herein would be applicable to all assessable fresh 
Bartlett pears beginning July 1, 1999, 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 would increase the assessment rate established for the 
Committee for the 1999-2000 and subsequent fiscal periods from $0.02 to 
$0.025 per standard box of fresh Bartlett pears 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 Committee consists of eight grower 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 1998-99 and subsequent fiscal periods, the Committee 
recommended, and the Department approved, an assessment rate of $0.02 
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 June 3, 1999, and unanimously recommended 
1999-2000 expenditures of $77,231 and an assessment rate of $0.025 per 
standard box of fresh Bartlett pears handled. In comparison, last 
year's budgeted expenditures were $97,000. The

[[Page 42859]]

assessment rate of $0.025 is $0.005 higher than the rate currently in 
effect. The Committee recommended an increased assessment rate because 
assessable 1999-2000 tonnage is expected to be less than the five-year 
average of 2,910,048 standard boxes, and the current rate would not 
generate enough income to adequately administer the program.
    Major expenses recommended by the Committee for the 1999-2000 
fiscal period include $40,433 for salaries, $5,323 for office rent, and 
$4,048 for health insurance. Budgeted expenses for these items in 1998-
99 were $38,878, $5,323, and $4,062, respectively.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of fresh Bartlett 
pears. Fresh Bartlett pear shipments for the year are estimated at 
2,630,450 standard boxes, which should provide $65,761 in assessment 
income. Income derived from handler assessments, along with funds from 
the Committee's authorized reserve and miscellaneous income, should be 
adequate to cover budgeted expenses. Funds in the reserve (currently 
$23,604) would be kept within the maximum permitted by the order of 
approximately one fiscal year's operational expenses (Sec. 931.42).
    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 would be undertaken as necessary. The Committee's 
1999-2000 budget and those for subsequent fiscal periods would 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, the 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.
    Currently, about 98.5 percent of the fresh Bartlett pear handlers 
ship less that $5,000,000 worth of fresh Bartlett pears and 1.5 percent 
ship more than $5,000,000 worth on an annual basis. In addition, based 
on acreage, production, and producer prices reported by the National 
Agricultural Statistics Service, and the total number of fresh Bartlett 
pear producers, the average annual producer revenue is approximately 
$12,250. In view of the foregoing, it can be concluded that the 
majority of fresh Bartlett pear producers and handlers may be 
classified as small entities.
    This rule would increase the assessment rate established for the 
Committee and collected from handlers for the 1999-2000 and subsequent 
fiscal periods from $0.02 to $0.025 per standard box of fresh Bartlett 
pears handled. The Committee met on June 3, 1999, and unanimously 
recommended 1999-2000 expenditures of $77,231 and an assessment rate of 
$0.025 per standard box of fresh Bartlett pears handled. In comparison, 
last year's budgeted expenditures were $97,000. The assessment rate of 
$0.025 is $0.005 more than the rate currently in effect. The Committee 
recommended an increased assessment rate because assessable 1999-2000 
tonnage is expected to be less than the five-year average of 2,910,048 
standard boxes, and the current rate would not generate enough income 
to adequately administer the program.
    Major expenses recommended by the Committee for the 1999-2000 
fiscal period include $40,433 for salaries, $5,323 for office rent, and 
$4,048 for health insurance. Budgeted expenses for these items in 1998-
99 were $38,878, $5,323, and $4,062, respectively.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of fresh Bartlett 
pears. Fresh Bartlett pear shipments for the year are estimated at 
2,630,450 standard boxes, which should provide $65,761 in assessment 
income. Income derived from handler assessments, along with funds from 
the Committee's authorized reserve and miscellaneous income, should be 
adequate to cover budgeted expenses. The reserve is within the maximum 
permitted by the order of approximately one fiscal year's operational 
expenses (Sec. 931.42).
    The Committee considered alternative levels of assessment but 
determined that, with the reduced estimate of assessable tonnage, 
increasing the assessment rate to $0.025 per standard box would be 
appropriate. The Committee decided that an assessment rate of more than 
$0.025 per standard box would generate income in excess of that needed 
to adequately administer the program.
    A review of historical information and preliminary information 
pertaining to the upcoming crop indicates that the producer price for 
the 1999-2000 marketing season could range between $8.56 and $12.72 per 
standard box of fresh Bartlett pears handled. Therefore, the estimated 
assessment revenue for the 1999-2000 fiscal period as a percentage of 
total grower revenue should range between 0.29 and 0.20 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 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 June 3, 1999, 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 fresh Bartlett pear 
handlers. As with all

[[Page 42860]]

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 proposed rule. Thirty days is deemed 
appropriate because: (1) The 1999-2000 fiscal period began on July 1, 
1999, and the order requires that the rate of assessment for each 
fiscal period apply to all assessable fresh Bartlett 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; and 
(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.

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 
proposed to be 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.

    2. Section 931.231 is revised to read as follows:


Sec. 931.231  Assessment rate.

    On and after July 1, 1999, an assessment rate of $0.025 per western 
standard pear box is established for the Northwest Fresh Bartlett Pear 
Marketing Committee.

    Dated: August 3, 1999.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-20289 Filed 8-5-99; 8:45 am]
BILLING CODE 3410-02-P