[Federal Register Volume 66, Number 231 (Friday, November 30, 2001)]
[Rules and Regulations]
[Pages 59677-59679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29704]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 931

[Docket No. FV01-931-1 FR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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

EFFECTIVE DATES: December 3, 2001.

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, PO Box 96456, Washington, DC 20090-6456; telephone: (202) 720-
2491, Fax: (202) 720-8938. Small businesses may request information on 
complying with this regulation by contacting Jay Guerber, Marketing 
Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 
room 2525-S, PO 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 (USDA) 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 issued herein will be applicable to all assessable fresh Bartlett 
pears beginning July 1, 2001, and will 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

[[Page 59678]]

section 608c(15)(A) of the Act, any handler subject to an order may 
file with USDA 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 USDA 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 USDA'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 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 USDA's approval, 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 USDA 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 USDA 
upon recommendation and information submitted by the Committee or other 
information available to USDA.
    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 in effect prior to this final 
rule. The Committee recommended an increase in the assessment rate 
because the $0.02 rate would not have generated 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 
adequate administer the program.
    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 is adequate to cover budgeted expenses. Funds in the reserve 
(approximately $18,443) will be kept within the maximum permitted by 
the order of approximately one fiscal period's operational expenses 
(Sec. 931.42).
    The assessment rate established in this rule will continue in 
effect indefinitely unless modified, suspended, or terminated by USDA 
upon recommendation and information submitted by the Committee or other 
available information.
    Although this assessment rate will remain 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 USDA. Committee meetings are open to the public and interested 
persons may express their views at these meetings. The USDA 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 
2001-2002 budget has been reviewed and approved by USDA. Those for 
subsequent fiscal periods will also be reviewed and, as appropriate, 
approved by USDA.

Final 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, 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 1,600 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 number of producers, the average annual producer revenue in 
Washington and Oregon could approximate $23,130 this year. 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. 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 increases 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 greater than the rate in effect prior to this 
final rule, and was recommended by the Committee because the $0.02 rate 
would not have generated enough income for it to adequately administer 
the program. At the previous rate of assessment, the Committee's 
monetary reserve would have dropped below $7,000 and this is not 
adequate to administer the program.
    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.

[[Page 59679]]

    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 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 is adequate 
to cover budgeted expenses. Funds in the reserve (approximately 
$18,443) will be kept 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 to be appropriate. The Committee believes that an 
assessment rate of more than $0.025 per standard box would have 
generated income in excess of that needed to adequately administer the 
program, and if left at the $0.02 rate, or reduced, would have been 
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 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 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. Furthermore, interested persons were 
invited to submit information on the regulatory and informational 
impacts of this action on small businesses.
    This rule imposes 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 USDA 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 September 21, 2001 (66 FR 48628). A copy of the proposed 
ruled was provided to the Committee office which in turn made copies 
available to producers and handlers. Furthermore, the Office of the 
Federal Register and the USDA made a copy available on the Internet. A 
30-day comment period ending October 22, 2001, was provided for 
interested persons to respond to the proposal. No comments were 
received.
    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.
    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) Handlers 
are already receiving 2001-2002 fiscal period pears from producers; (2) 
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 Bartlett pears handled during such period; and (3) 
handlers are aware of this action which was unanimously recommended by 
the Committee at a public meeting. Furthermore, a 30-day comment period 
was provided for in the proposed rule and no comments were received.

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.

    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: November 26, 2001.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 01-29704 Filed 11-29-01; 8:45 am]
BILLING CODE 3410-02-P