[Federal Register Volume 66, Number 184 (Friday, September 21, 2001)]
[Proposed Rules]
[Pages 48628-48630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23656]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 931

[Docket No. FV01-931-1 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 established for 
the Northwest Fresh Bartlett Pear Marketing Committee (Committee) for 
the 2001-2002 and subsequent fiscal periods from $0.02 to $0.025 per 
standard box of fresh Bartlett pears. The Committee locally administers 
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 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 October 22, 2001.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; Fax 
(202) 720-8938; 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, or can be 
viewed at: http//www.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Gary D. Olson, Northwest Marketing 
Field Office, Fruit and Vegetable Programs, AMS, USDA, 1220 SW Third 
Avenue, suite 385, Portland, OR 97204; telephone: (503) 326-2724, Fax: 
(503) 326-7440 or George J. Kelhart, Technical Advisor, 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) 720-8938.
    Small businesses may request information on complying with this

[[Page 48629]]

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) 
720-8938, or E-mail: [email protected].

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 order is 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 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, 2001, 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 2001-2002 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 2000-2001 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 May 31, 2001, and unanimously recommended 
2001-2002 expenditures of $76,477 and an assessment rate of $0.025 per 
standard box of fresh Bartlett pears handled. In comparison, last 
year's budgeted expenditures were $81,060. The assessment rate of 
$0.025 is $0.005 higher than the rate currently in effect. The 
Committee recommended an increased assessment rate because the current 
rate of $0.02 would not generate enough income to keep its operating 
reserve at a reasonable level ($25,666). Without the increase, the 
operating reserve would drop below $7,000 which is not acceptable to 
the Committee.
    Major expenses recommended by the Committee for the 2001-2002 
fiscal period include $39,040 for salaries, $5,675 for office rent, and 
$3,911 for health insurance. Budgeted expenses for these items in 2000-
2001 were $44,468, $4,847, and $3,891, respectively.
    The Committee developed the $0.025 assessment rate recommendation 
by considering the 2001-2002 budget and crop estimate, as well as the 
relatively small size of the current monetary reserve. Assessment 
income for the fiscal period should approximate $79,700 based on 
estimated fresh Bartlett pear shipments of 3,188,000 standard boxes, 
which would be adequate to cover budgeted expenses. Funds in the 
reserve (currently $18,443) would be kept within the maximum permitted 
by the order of approximately one fiscal period'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 
2001-2002 budget and those for subsequent fiscal periods would be 
reviewed and, as appropriate, approved by the Department.

Initial Regulatory Flexibility Analysis

    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 1,600 producers of fresh Bartlett pears in 
the production area and approximately 54 handlers subject to regulation 
under the marketing order. Small agricultural producers are defined by 
the Small Business Administration (13 CFR 121.201) as those having 
annual receipts of less than $750,000 and small agricultural service 
firms are defined as those whose annual receipts are less than 
$5,000,000.
    Based on data provided by the National Agricultural Statistics 
Service for 1999, the most recent year complete data is available, and 
the current

[[Page 48630]]

number of producers, the average annual producer revenue in Washington 
and Oregon could approximate $23,130 this year, excluding receipts from 
other sources. Further, based on Committee records and recent F.O.B. 
prices reported by the Fruit and Vegetable Market News Service for 
fresh Bartlett pears, over 98 percent of the regulated handlers ship 
less that $5,000,000 worth of fresh Bartlett pears on an annual basis, 
excluding receipts from other sources. 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 2001-2002 and subsequent 
fiscal periods from $0.02 to $0.025 per standard box of fresh Bartlett 
pears handled. The Committee met on May 31, 2001, and unanimously 
recommended 2001-2002 expenditures of $76,477 and an assessment rate of 
$0.025 per standard box of fresh Bartlett pears handled. In comparison, 
budgeted expenditures for last year totaled $81,060. The assessment 
rate of $0.025 is $0.005 more than the rate currently in effect, and 
was recommended by the Committee because the current rate of $0.02 
would not generate enough income for it to adequately administer the 
program. Its monetary reserve would drop below $7,000 at the current 
rate of assessment, which was not acceptable to the Committee.
    Major expenses recommended by the Committee for the 2001-2002 
fiscal period include $39,040 for salaries, $5,675 for office rent, and 
$3,911 for health insurance. Budgeted expenses for these items in 2000-
2001 were $44,468, $4,847, and $3,891, respectively.
    The Committee developed the $0.025 assessment rate recommendation 
by considering the 2001-2002 budget and crop estimate, as well as the 
relatively small size of its current monetary reserve. Assessment 
income for the fiscal period should approximate $79,700 based on 
estimated fresh Bartlett pear shipments of 3,188,000 standard boxes, 
which would be adequate to cover budgeted expenses. Funds in the 
reserve (currently $18,443) are expected to increase to $25,666, which 
would be within the maximum permitted by the order of approximately one 
fiscal period's operational expenses (Sec. 931.42).
    The Committee considered alternative levels of assessment but, 
considering the current relatively low level of funding in the monetary 
reserve, determined that increasing the assessment rate to $0.025 per 
standard box would be appropriate. The Committee believes 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, 
and if left at the current rate of $0.02, or reduced, would be 
inadequate to administer the program.
    A review of historical information and preliminary information 
pertaining to the upcoming crop indicates that the producer price for 
the 2001-2002 marketing season could average about $11.61 per standard 
box of fresh Bartlett pears handled. Therefore, the Committee's 
estimated assessment revenue for the 2001-2002 fiscal period as a 
percentage of total producer revenue should be approximately 0.215 
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 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 May 31, 
2001, 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 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 small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance 
guide should be sent to Jay Guerber at the previously mentioned address 
in the FOR FURTHER INFORMATION CONTACT section.
    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 2001-2002 fiscal period began on July 1, 
2001, 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, 2001, an assessment rate of $0.025 per western 
standard pear box is established for the Northwest Fresh Bartlett Pear 
Marketing Committee.

    Dated: September 17, 2001.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 01-23656 Filed 9-20-01; 8:45 am]
BILLING CODE 3410-02-P