[Federal Register Volume 76, Number 169 (Wednesday, August 31, 2011)]
[Rules and Regulations]
[Pages 54075-54078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22113]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Doc. No. AMS-FV-11-0060; FV11-927-2 IR]


Pears Grown in Oregon and Washington; Assessment Rate Decrease 
for Fresh Pears

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule decreases the assessment rate established for the 
Fresh Pear Committee (Committee) for the 2011-2012 and subsequent 
fiscal periods from $0.501 to $0.471 per standard box or equivalent of 
fresh winter pears handled. The Committee locally administers the 
marketing order

[[Page 54076]]

which regulates the handling of fresh pears grown in Oregon and 
Washington. Assessments upon Oregon-Washington fresh pear handlers are 
used by the Committee to fund reasonable and necessary expenses of the 
program. The fiscal period begins July 1 and ends June 30. The 
assessment rate will remain in effect indefinitely unless modified, 
suspended, or terminated.

DATES: Effective September 1, 2011. Comments received by October 31, 
2011, will be considered prior to issuance of a final rule.

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, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. Comments should reference the document 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.regulations.gov. All comments submitted in response to this rule 
will be included in the record and will be made available to the 
public. Please be advised that the identity of the individuals or 
entities submitting the comments will be made public on the Internet at 
the address provided above.

FOR FURTHER INFORMATION CONTACT: Teresa Hutchinson or Gary Olson, 
Northwest Marketing Field Office, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone: (503) 326-
2724, Fax: (503) 326-7440, or E-mail: [email protected] or 
[email protected].
    Small businesses may request information on complying with this 
regulation by contacting Laurel May, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 
720-2491, Fax: (202) 720-8938, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order 
No. 927, as amended (7 CFR part 927), regulating the handling of 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 marketing order now in effect, Oregon-
Washington 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 winter pears beginning July 1, 2011, and continue 
until amended, suspended, or terminated.
    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 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 decreases the assessment rate established for the 
Committee for the 2011-2012 and subsequent fiscal periods from $0.501 
to $0.471 per standard box or equivalent of fresh winter pears handled. 
The standard box or equivalent assessment rate for fresh ``summer/
fall'' pears and ``other'' fresh pears would remain unchanged at $0.366 
and $0.00, respectively.
    The Oregon-Washington pear marketing order provides authority for 
the Committee, with USDA approval, to formulate an annual budget of 
expenses and to collect assessments from handlers to administer the 
fresh pear program. The members of the Committee are producers and 
handlers of Oregon-Washington fresh pears. They are 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 assessment rate is formulated and 
discussed at a public meeting. Thus, all directly affected persons have 
an opportunity to participate and provide input.
    For the 2005-2006 and subsequent fiscal periods, the Committee 
recommended, and the USDA approved, the following three base rates of 
assessment: (a) $0.366 per standard box or equivalent for any or all 
varieties or subvarieties of fresh pears classified as ``summer/fall''; 
(b) $0.501 per standard box or equivalent for any or all varieties or 
subvarieties of fresh pears classified as ``winter''; and (c) $0.000 
per standard box or equivalent for any or all varieties or subvarieties 
of fresh pears classified as ``other''. These assessment rates would 
continue in effect from fiscal period to fiscal period 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 June 3, 2011, and unanimously recommended 
2011-2012 expenditures of $8,827,860 and an assessment rate of $0.471 
per standard box or equivalent of fresh winter pears handled. In 
comparison, last year's budgeted expenditures were $9,262,200. The 
assessment rate of $0.471 is $0.03 lower than the rate previously in 
effect. The Committee recommended the assessment rate decrease because 
the winter pear promotion budget for the 2011-2011 fiscal period was 
reduced.
    The major expenditures recommended by the Committee for the 2011-
2012 fiscal period include $437,160 for contracted administration by 
Pear Bureau Northwest, $610,700 for production research and market 
development, $6,355,000 for promotion and paid advertising for winter 
pears, and $1,260,000 for promotion and paid advertising for summer/
fall pears. In comparison, major expenses for the 2010-2011 fiscal 
period included $482,500 for contracted administration by Pear Bureau 
Northwest, $610,700 for production research and market development, 
$6,600,000 for promotion and paid advertising for winter pears, and 
$1,410,000 for promotion and paid advertising for summer/fall pears.
    The Committee based its recommended assessment rate for fresh 
winter pears on the 2011-2012 fresh winter pear crop estimate, the 
2011-2012 program expenditure needs, and the current and projected size 
of its monetary reserve. Applying the $0.471 per standard box or 
equivalent assessment rate to the Committee's 15,500,000 standard box 
or equivalent fresh winter pear crop estimate should provide $7,300,500 
in assessment income. The quantity of assessable fresh summer/fall 
pears for the 2011-2012 fiscal period is estimated at 4,200,000 
standard boxes or equivalent. The summer/fall fresh pear assessment 
rate

[[Page 54077]]

of $0.366 per standard box or equivalent should provide $1,537,200 in 
assessment income. Thus, income derived from winter and summer/fall 
fresh pear handler assessments ($8,837,700) and interest and 
miscellaneous income ($20,000) would be adequate to cover the 
recommended $8,827,860 budget for 2011-2012. Funds in the reserve were 
$1,040,646 as of June 30, 2010. The Committee estimates that $61,117 
will be deducted from the reserve to cover budgeted expenses for 2010-
2011. The Committee estimates a reserve of $979,529 on June 30, 2011. 
For 2011-2012, the Committee estimates that $29,840 will be added to 
the reserve for an estimated reserve of $1,009,369 on June 30, 2012, 
which would be within the maximum permitted by the order of 
approximately one fiscal period's operational expenses (Sec.  927.42).
    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 is effective 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. 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 2011-2012 budget and those 
for subsequent fiscal periods will be reviewed and, as appropriate, 
approved by USDA.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) 
has considered the economic impact of this rule 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.
    There are approximately 1,581 growers of fresh pears in the 
regulated production area and approximately 38 handlers of fresh pears 
subject to regulation under the order. Small agricultural growers are 
defined by the Small Business Administration (SBA) (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 $7,000,000.
    According to the Noncitrus Fruits and Nuts 2010 Summary issued in 
July 2011 by the National Agricultural Statistics Service, the average 
price for fresh pears in 2010 was $591 per ton. The 2010 farm-gate 
value of fresh pears grown in Oregon and Washington is estimated at 
approximately $249,500,579, based on shipments of 19,189,400 44-pound 
standard boxes. Based on the number of fresh pear growers in the Oregon 
and Washington, the average gross revenue for each grower can be 
estimated at approximately $157,812. Furthermore, based on Committee 
records, the Committee has estimated that 56 percent of Northwest pear 
handlers currently ship less than $7,000,000 worth of fresh pears on an 
annual basis. From this information, it is concluded that the majority 
of growers and handlers of Oregon and Washington fresh pears may be 
classified as small entities.
    This rule decreases the assessment rate established for the 
Committee and collected from handlers for the 2011-2012 and subsequent 
fiscal periods from $0.501 to $0.471 per standard box or equivalent of 
fresh winter pears handled. The Committee unanimously recommended 2011-
2012 expenditures of $8,827,860 and an assessment rate of $0.471 per 
standard box or equivalent of fresh winter pears. The assessment rate 
of $0.471 is $0.03 lower than the previous rate. The Committee 
recommended the assessment rate decrease because the winter pear 
promotion budget for the 2011-2012 fiscal period was reduced.
    The quantity of assessable fresh winter pears for the 2011-2012 
fiscal period is estimated at 15,500,000 standard boxes or equivalent. 
Thus, the $0.471 rate should provide $7,300,500 in assessment income. 
Applying the $0.366 per standard box or equivalent assessment rate to 
the Committee's 4,200,000 standard box or equivalent fresh summer/fall 
pear crop estimate should provide $1,537,200 in assessment income. 
Income derived from winter and summer/fall fresh pear handler 
assessments ($8,837,700) and interest and miscellaneous income 
($20,000) would be adequate to cover the budgeted expenses.
    The major expenditures recommended by the Committee for the 2011-
2012 fiscal period include $437,160 for contracted administration by 
Pear Bureau Northwest, $610,700 for production research and market 
development, $6,355,000 for promotion and paid advertising for winter 
pears, and $1,260,000 for promotion and paid advertising for summer/
fall pears. In comparison, major expenses for the 2010-2011 fiscal 
period included $482,500 for contracted administration by Pear Bureau 
Northwest, $610,700 for production research and market development, 
$6,600,000 for promotion and paid advertising for winter pears, and 
$1,410,000 for promotion and paid advertising for summer/fall pears.
    The Committee discussed alternate lower rates of assessment, but 
determined that the recommended assessment rate would be sufficient to 
fund the 2011-2012 fresh winter pear programs.
    A review of historical information and preliminary information 
pertaining to the upcoming fiscal period indicates that the grower 
price for the 2011-2012 fiscal period could range between $372 and $456 
per ton of pears. Therefore, the estimated assessment revenue for the 
2011-2012 fiscal period as a percentage of total grower revenue could 
range between 5.75 and 4.69 percent.
    This action decreases the assessment obligation imposed on 
handlers. Assessments are applied uniformly on all handlers, and some 
of the costs may be passed on to producers. However, decreasing the 
assessment rate reduces the burden on handlers, and may reduce the 
burden on producers.
    In addition, the Committee's meeting was widely publicized 
throughout the Oregon-Washington 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, 
2011, 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 comments on this interim rule, including 
the regulatory and informational impacts of this action on small 
businesses.
    In accordance with the Paperwork Reduction Act of 1991 (44 U.S.C. 
Chapter 35), the order's information collection requirements have been 
previously approved by the Office of Management and Budget (OMB) and 
assigned OMB No. 0581-0189, Generic

[[Page 54078]]

Fruit Crops. No changes in those requirements as a result of this 
action are anticipated. Should any changes become necessary, they would 
be submitted to OMB for approval.
    This action imposes no additional reporting or recordkeeping 
requirements on either small or large Oregon-Washington fresh 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.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.
    USDA 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/MarketingOrdersSmallBusinessGuide. Any questions 
about the compliance guide should be sent to Laurel May 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 upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect, and 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 2011-2012 fiscal period begins on July 1, 
2011, and the marketing order requires that the rate of assessment for 
each fiscal period apply to all assessable pears handled during such 
fiscal period; (2) this action decreases the assessment rate for 
assessable fresh winter pears beginning with the 2011-2012 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; and (4) this 
interim rule provides a 60-day comment period, and all comments timely 
received will be considered prior to finalization of this rule.

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--PEARS GROWN IN OREGON AND WASHINGTON

0
1. The authority citation for 7 CFR part 927 continues to read as 
follows:

    Authority:  7 U.S.C. 601-674.

0
2. In Sec.  927.236, the introductory text and paragraph (b) are 
revised to read as follows:


Sec.  927.236  Fresh pear assessment rate.

    On and after July 1, 2011, the following base rates of assessment 
for fresh pears are established for the Fresh Pear Committee:
* * * * *
    (b) $0.471 per 44-pound net weight standard box or container 
equivalent for any or all varieties or subvarieties of fresh pears 
classified as ``winter''; and
* * * * *

    Dated: August 19, 2011.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2011-22113 Filed 8-30-11; 8:45 am]
BILLING CODE 3410-02-P