[Federal Register Volume 78, Number 1 (Wednesday, January 2, 2013)]
[Proposed Rules]
[Pages 34-36]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-31516]


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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. 78, No. 1 / Wednesday, January 2, 2013 / 
Proposed Rules  

[[Page 34]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Doc. No. AMS-FV-12-0030; FV12-927-1 PR]


Pears Grown in Oregon and Washington; Modification of the 
Assessment Rate for Fresh Pears

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule would increase the assessment rate established for 
the Fresh Pear Committee (Committee) for the 2012-2013 and subsequent 
fiscal periods from $0.366 to $0.449 per standard box or equivalent of 
summer/fall pears handled, and would decrease the assessment rate from 
$0.471 to $0.449 per standard box or equivalent of fresh winter pears 
handled. The Committee locally administers the marketing order 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 would 
remain in effect indefinitely unless modified, suspended, or 
terminated.

DATES: Comments must be received by January 14, 2013.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, 
Marketing Order and Agreement Division, Fruit and Vegetable Program, 
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 and Agreement 
Division, Fruit and Vegetable Program, AMS, USDA; Telephone: (503) 326-
2724, Fax: (503) 326-7440, or Email: [email protected] or 
[email protected].
    Small businesses may request information on complying with this 
regulation by contacting Laurel May, Marketing Order and Agreement 
Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-
2491, Fax: (202) 720-8938, or Email: [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 proposed herein would be applicable to all 
assessable fresh pears beginning July 1, 2012, 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 would increase the assessment rate established for the 
Fresh Pear Committee (Committee) for the 2012-2013 and subsequent 
fiscal periods from $0.366 to $0.449 per standard box or equivalent of 
summer/fall pears handled, and would decrease the assessment rate from 
$0.471 to $0.449 per standard box or equivalent of fresh winter pears 
handled. The standard box or equivalent assessment rate for ``other'' 
fresh pears would remain unchanged at $0.00.
    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 2011-2012 and subsequent fiscal periods, the Committee 
recommended, and 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) $0.471 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 base rates of

[[Page 35]]

assessment 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 May 31, 2012, and unanimously recommended 
2012-2013 expenditures of $9,166,744. To fund the 2012-2013 
expenditures, the Committee also recommended an assessment rate of 
$0.449 per standard box or equivalent for both fresh summer/fall and 
winter pears.
    In comparison, last year's budgeted expenditures were $9,301,960. 
The fresh summer/fall pear assessment rate of $0.449 is $0.083 higher 
than the rate currently in effect. The fresh winter pear assessment 
rate of $0.449 is $0.022 lower than the rate currently in effect. The 
Committee recommended increasing the promotion and paid advertising 
expenditures to market the larger 2012-2013 fresh summer/fall pear 
crop, estimated at four percent higher than 2011-2012 and the five-year 
average. Accordingly, the Committee recommended the higher fresh 
summer/fall pear assessment rate to fund the increased 2012-2013 
promotion and paid advertising expenditures. The Committee estimates 
that the 2012-2013 fresh winter pear crop will be nine percent lower 
than 2011-2012. Consequently, the Committee recommended lower promotion 
and paid advertising expenditures for marketing the reduced fresh 
winter pear crop, resulting in a lower assessment rate for 2012-2013.
    The major expenditures recommended by the Committee for the 2012-
2013 fiscal period include $450,274 for contracted administration by 
Pear Bureau Northwest, $635,500 for production research and market 
development, $6,160,000 for promotion and paid advertising for winter 
pears, and $1,732,500 for promotion and paid advertising for summer/
fall pears. In comparison, major expenses for the 2011-2012 fiscal 
period included $437,160 for contracted administration by Pear Bureau 
Northwest, $644,800 for production research and market development, 
$6,765,000 for promotion and paid advertising for winter pears, and 
$1,290,000 for promotion and paid advertising for summer/fall pears.
    The Committee based its recommended assessment rate for fresh pears 
on the 2012-2013 summer/fall and winter pear crop estimates, the 2012-
2013 program expenditure needs, and the current and projected size of 
its monetary reserve. Applying the $0.449 per standard box or 
equivalent assessment rate to the Committee's 4,500,000 standard box or 
equivalent fresh summer/fall pear crop estimate should provide 
$2,020,500 in assessment income. The quantity of assessable fresh 
winter pears for the 2012-2013 fiscal period is estimated at 16,000,000 
standard boxes or equivalent and should provide $7,184,000 in 
assessment income. Thus, income derived from winter and summer/fall 
fresh pear handler assessments ($9,204,500) and interest and 
miscellaneous income ($20,000) would be adequate to cover the 
recommended $9,166,774 budget for 2012-2013. The Committee estimates 
that it will have a monetary reserve of $1,031,259 on June 30, 2012. 
During 2012-2013, the Committee estimates that $57,726 would be added 
to the reserve for an estimated reserve of $1,088,985 on June 30, 2013, 
which would be within the maximum permitted by the order of 
approximately one fiscal period's operational expenses (Sec.  927.42).
    The proposed assessment rate would 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 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 USDA. 
Committee meetings are open to the public and interested persons may 
express their views at these meetings. USDA 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 2012-2013 budget and those 
for subsequent fiscal periods would 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 1,580 producers of fresh pears in the 
regulated production area and approximately 38 handlers of fresh pears 
subject to regulation under the order. Small agricultural producers 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 2011 Preliminary Summary 
issued in March 2012 by the National Agricultural Statistics Service, 
the total 2011 farm-gate value of all pears grown in Oregon and 
Washington is estimated at approximately $275,531,000. Based on the 
number of pear producers in the Oregon and Washington, the average 
gross revenue for each producer can be estimated at approximately 
$174,387. Furthermore, based on Committee records, the Committee has 
estimated that 56 percent of Oregon-Washington 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 producers and 
handlers of Oregon and Washington fresh pears may be classified as 
small entities.
    This rule would increase the assessment rate established for the 
Committee and collected from handlers for the 2012-2013 and subsequent 
fiscal periods from $0.366 to $0.449 per standard box or equivalent of 
fresh summer/fall pears handled, and would decrease the assessment rate 
from $0.471 to $0.449 per standard box or equivalent of fresh winter 
pears handled. The Committee unanimously recommended 2012-2013 
expenditures of $9,166,774, and an assessment rate of $0.449 per 
standard box or equivalent of fresh summer/fall and winter pears 
handled. The proposed assessment rate of $0.449 is $0.083 higher than 
the 2011-2012 assessment rate for summer/fall pears, and $0.022 lower 
than the 2011-2012 assessment rate for winter pears. The Committee 
recommended increasing the promotion and paid advertising expenditures 
to market the larger 2012-2013 fresh summer/fall pear crop, estimated 
at four percent higher than 2011-2012 and the five-year average. 
Accordingly, the Committee recommended the higher fresh summer/fall 
pear assessment rate to fund the

[[Page 36]]

increased 2012-2013 promotion and paid advertising expenditures. The 
Committee estimates that the 2012-2013 fresh winter pear crop will be 
nine percent lower than 2011-2012. Consequently, the Committee 
recommended lower promotion and paid advertising expenditures for 
marketing the reduced fresh winter pear crop, resulting in a lower 
assessment rate for 2012-2013.
    The quantity of assessable fresh summer/fall pears for the 2012-
2013 fiscal period is estimated at 4,500,000 standard boxes or 
equivalent. Thus, the $0.449 rate should provide $2,020,500 in 
assessment income. Applying the $0.449 per standard box or equivalent 
assessment rate to the Committee's 16,000,000 standard box or 
equivalent fresh winter pear crop estimate should provide $7,184,000 in 
assessment income. Income derived from winter and summer/fall fresh 
pear handler assessments ($9,204,500) and interest and miscellaneous 
income ($20,000) would be adequate to cover the budgeted expenses.
    The major expenditures recommended by the Committee for the 2012-
2013 fiscal period include $450,274 for contracted administration by 
Pear Bureau Northwest, $635,500 for production research and market 
development, $6,160,000 for promotion and paid advertising for winter 
pears, and $1,732,500 for promotion and paid advertising for summer/
fall pears. Budgeted expenses for these items in 2011-2012 were 
$437,160, $644,800, $6,765,000, and $1,290,000, respectively.
    The Committee discussed alternatives to this rule. Leaving the 
assessment rate at the current level for summer/fall and winter pears 
was initially considered, but not recommended. Although considered, the 
Committee believes that the current assessment level for fresh summer/
fall pears would not generate the funds necessary for the promotion and 
marketing of the larger fresh summer/fall pear crop. As a consequence, 
increasing it to the level recommended herein was determined as the 
best alternative. Similarly, the Committee discussed alternatives for 
the winter pear assessment rate, but concluded that the recommended 
lower assessment rate should generate enough funds for promotion and 
marketing of the smaller fresh winter pear crop.
    A review of historical information and preliminary information 
pertaining to the upcoming fiscal period indicates that the Oregon-
Washington producer price for the 2012-2013 fiscal period could average 
$9 per standard box or equivalent of pears. Therefore, the estimated 
assessment revenue for the 2012-2013 fiscal period as a percentage of 
total producer revenue is 4.99 percent.
    This action would modify the assessment obligation imposed on 
handlers. While the increase in the summer/fall pear assessment rate 
may 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. These costs would be offset by the benefits derived by 
the operation of the marketing order. On the other hand, decreasing the 
winter pear assessment rate would reduce 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 May 31, 
2012, 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 proposed rule, including 
the regulatory and informational impacts of this action on small 
businesses.
    In accordance with the Paperwork Reduction Act of 1995 (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 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 proposed rule would impose 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: 
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.
    A 10-day comment period is provided to allow interested persons to 
respond to this proposed rule. Ten days is deemed appropriate because: 
(1) The 2012-2013 fiscal period begins on July 1, 2012, 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) the Committee needs to have sufficient funds to pay its expenses 
which are incurred on a continuous basis; (3) the proposed rule would 
decrease the assessment rate for assessable fresh winter pears; and (4) 
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 927

    Marketing agreements, Pears, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR part 927 is 
proposed to be 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 paragraphs (a) and (b) 
are revised to read as follows:


Sec.  927.236  Fresh pear assessment rate.

    On and after July 1, 2012, the following base rates of assessment 
for fresh pears are established for the Fresh Pear Committee:
    (a) $0.449 per 44-pound net weight standard box or container 
equivalent for any or all varieties or subvarieties of fresh pears 
classified as ``summer/fall'';
    (b) $0.449 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: December 26, 2012.
David R. Shipman,
Administrator, Agricultural Marketing Service.
[FR Doc. 2012-31516 Filed 12-31-12; 8:45 am]
BILLING CODE 3410-02-P