[Federal Register Volume 83, Number 167 (Tuesday, August 28, 2018)]
[Proposed Rules]
[Pages 43799-43801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18552]


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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. 83, No. 167 / Tuesday, August 28, 2018 / 
Proposed Rules  

[[Page 43799]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Doc. No. AMS-SC-18-0048; SC18-927-1 PR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would implement a recommendation from the 
Fresh Pear Committee (Committee) to increase the assessment rate 
established for the 2018-2019 and subsequent fiscal periods. The 
assessment rate would remain in effect indefinitely unless modified, 
suspended, or terminated.

DATES: Comments must be received by September 27, 2018.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule. Comments must be sent to the Docket 
Clerk, Marketing Order and Agreement Division, Specialty Crops 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: Barry Broadbent, Marketing Specialist, 
or Gary Olson, Regional Director, Northwest Marketing Field Office, 
Marketing Order and Agreement Division, Specialty Crops 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 Richard Lower, Marketing Order and Agreement 
Division, Specialty Crops 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 action, pursuant to 5 U.S.C. 553, 
proposes an amendment to regulations issued to carry out a marketing 
order as defined in 7 CFR 900.2(j). This proposed rule is issued under 
Marketing Order No. 927, as amended (7 CFR part 927), regulating the 
handling of pears grown in Oregon and Washington. Part 927, (referred 
to as ``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 Committee locally administers the Order 
and is comprised of growers and handlers operating within the area of 
production, and a public member.
    The Department of Agriculture (USDA) is issuing this proposed rule 
in conformance with Executive Orders 13563 and 13175. This proposed 
rule falls within a category of regulatory actions that the Office of 
Management and Budget (OMB) exempted from Executive Order 12866 review. 
Additionally, because this proposed rule does not meet the definition 
of a significant regulatory action, it does not trigger the 
requirements contained in Executive Order 13771. See OMB's Memorandum 
titled ``Interim Guidance Implementing Section 2 of the Executive Order 
of January 30, 2017, titled `Reducing Regulation and Controlling 
Regulatory Costs' '' (February 2, 2017).
    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. Under the Order now in effect, Oregon and 
Washington pear handlers are subject to assessments. Funds to 
administer the Order are derived from such assessments. It is intended 
that the assessment rate would be applicable to all assessable pears 
for the 2018-2019 fiscal period, 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.
    The Order provides authority for the Committee, with the approval 
of USDA, to formulate an annual budget of expenses and collect 
assessments from handlers to administer the program. The members are 
familiar with the Committee's needs and with the costs of goods and 
services in their local area and are in a position to formulate an 
appropriate budget and assessment rate. The assessment rate is 
formulated and discussed in a public meeting where all directly 
affected persons have an opportunity to participate and provide input.
    This proposed rule would increase the assessment rate from $0.449 
to $0.463 per 44-pound standard box or equivalent of fresh ``summer/
fall'' and ``winter'' pears handled for the 2018-2019 and subsequent 
fiscal periods. The proposed higher rate is necessary to fully cover 
the Committee's 2018-2019 fiscal period budgeted expenditures. The 
Committee has had to draw from its monetary reserve to partially fund 
program activities during the last two fiscal periods. Drawing from 
reserves to fund operations on an on-going basis is not a sustainable 
strategy. Therefore, increasing the continuing assessment rate would 
allow the Committee to fully fund budgeted expenses and replenish its 
financial reserve.
    The Committee met on May 31, 2018, and unanimously recommended 
2018-

[[Page 43800]]

2019 fiscal period expenditures of $9,213,133 and an assessment rate of 
$0.463 per standard box or equivalent of fresh ``summer/fall'' and 
``winter'' pears handled. In comparison, last year's budgeted 
expenditures were $9,282,059. The proposed assessment rate of $0.463 is 
$0.014 higher than the $0.449 rate currently in effect. The Committee 
recommended the assessment rate increase because expenditures have 
exceeded assessment revenue in the previous two fiscal periods.
    The major expenditures recommended by the Committee for the 2018-
2019 fiscal period include $550,790 for contracted administration by 
Pear Bureau Northwest, $190,700 for administrative expenses, $771,643 
for production research and market development, and $7,700,000 for 
promotion and paid advertising for both ``summer/fall'' and ``winter'' 
varieties of fresh pears. In comparison, major expenses for the 2017-
2018 fiscal period included $512,928 for contracted administration, 
$232,200 for administrative expenses, $836,931 for production research 
and market development, and $7,700,000 for promotion and paid 
advertising.
    The assessment rate recommended by the Committee was derived by 
considering anticipated expenses, expected shipments, and the amount of 
funds available in the authorized reserve. Income derived from handler 
assessments of $9,260,000 (20 million standard boxes or equivalent at 
$0.463 per box) would be adequate to cover budgeted expenses of 
$9,213,133, with any excess funds used to replenish the Committee's 
monetary reserve. Funds in the reserve (currently $1,096,332) would be 
kept within the maximum permitted by Sec.  927.42(a) and would not 
exceed the expenses of approximately one fiscal period.
    The assessment rate proposed in this rule 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 budget 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 proposed 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 
businesses 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 827 growers of fresh pears in the 
production area and approximately 38 handlers subject to regulation 
under the Order. Small agricultural producers are defined by the Small 
Business Administration (SBA) as those having annual receipts less than 
$750,000, and small agricultural service firms are defined as those 
whose annual receipts are less than $7,500,000 (13 CFR 121.201).
    According to data from USDA Market News, the industry, and the 
Committee, for the 2016-17 season, the weighted average f.o.b. price 
for Oregon-Washington fresh pears was approximately $26.99 per standard 
44-pound box. Total shipments for that period were 17,878,219 standard 
boxes or equivalent. Using the number of handlers, and assuming a 
normal distribution, the majority of handlers would have average annual 
receipts of more than $7,500,000 ($26.99 per box times 17,878,219 
equals $482,533,130 divided by 38 handlers equals $12,698,240 per 
handler).
    In addition, based on National Agricultural Statistics Service 
data, the industry produced 441,950 tons of fresh pears in the 
production area during the 2016-2017 season, with an average grower 
price of $797 per ton. Based on the average grower price, production, 
and the total number of Oregon-Washington fresh pear growers, and 
assuming a normal distribution, the average annual grower revenue is 
below $750,000 ($797 per ton times 441,950 tons equals $352,234,150 
divided by 827 growers equals $425,918 per grower). Thus, the majority 
of Oregon and Washington fresh pear handlers may be classified as large 
entities, while the majority of growers may be classified as small 
entities.
    This proposal would increase the assessment rate collected from 
handlers for the 2018-2019 and subsequent fiscal periods from $0.449 to 
$0.463 per standard box or equivalent of Oregon and Washington fresh 
``summer/fall'' and ``winter'' pears handled. The Committee unanimously 
recommended 2018-2019 fiscal period expenditures of $9,213,133 and the 
$0.463 per standard box or equivalent assessment rate. The proposed 
assessment rate of $0.463 is $0.014 higher than the rate for the 2017-
2018 fiscal period. The quantity of assessable fresh ``summer/fall'' 
and ``winter'' pears for the 2018-2019 fiscal period is estimated at 20 
million standard boxes or equivalent. Thus, the $0.463 rate should 
provide $9,260,000 in assessment income. Income derived from handler 
assessments would be adequate to cover budgeted expenses, with any 
excess funds used to replenish the Committee's monetary reserve.
    The major expenditures recommended by the Committee for the 2018-
2019 fiscal period include $550,790 for contracted administration by 
Pear Bureau Northwest, $190,700 for administrative expenses, $771,643 
for production research and market development, and $7,700,000 for 
promotion and paid advertising for both ``summer/fall'' pears and 
``winter'' pears. Budgeted expenses for these items in the 2017-2018 
fiscal period were $512,928, $232,200, $836,931, and $7,700,000, 
respectively.
    The proposed higher rate is necessary to fully cover the 
Committee's 2018-2019 fiscal period budgeted expenditures. The 
Committee has had to draw from its monetary reserve to partially fund 
program activities during the 2016-2017 and 2017-2018 fiscal periods. 
Drawing from its financial reserve to fund operations on an on-going 
basis is not a sustainable strategy. Increasing the continuing 
assessment rate would allow the Committee to fully fund budgeted 
expenses and replenish its financial reserve.
    Prior to arriving at this budget and assessment rate, the Committee 
considered maintaining the current assessment rate of $0.449 per 
standard box or equivalent. However, leaving the assessment unchanged 
would not generate sufficient revenue to meet the Committee's 2018-2019 
fiscal period budgeted expenses of $9,213,133, and would have required 
the Committee to continue to deplete its financial reserve. Based on 
estimated shipments, the

[[Page 43801]]

recommended assessment rate of $0.463 per standard box or equivalent 
should provide $9,260,000 in assessment income. The Committee 
determined assessment revenue would be adequate to fully cover budgeted 
expenditures for the 2018-2019 fiscal period, with any excess funds 
used to replenish the Committee's monetary reserve. Reserve funds would 
be kept within the amount authorized in the Order.
    A review of historical information and preliminary information 
pertaining to the upcoming fiscal year indicates that the average 
grower price for the 2018-2019 season should be approximately $800 per 
ton of fresh pears. Therefore, the estimated assessment revenue for the 
2018-2019 fiscal period as a percentage of total grower revenue would 
be about 2.6 percent.
    This proposed 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 growers. However, these costs 
would be offset by the benefits derived by the operation of the Order. 
In addition, the Committee's meetings were widely publicized throughout 
the Oregon and Washington fresh pear industry. All interested persons 
were invited to attend the meetings and participate in Committee 
deliberations on all issues. Like all Committee meetings, the May 31, 
2018, 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 information collection 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 OMB and assigned OMB No. 0581-0189 Fruit 
Crops. No changes in those requirements would be necessary because of 
this action. Should any changes become necessary, they would be 
submitted to OMB for approval.
    This proposed rule would not impose any additional reporting or 
recordkeeping requirements on either small or large Oregon and 
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 proposed 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/rules-regulations/moa/small-businesses. Any questions 
about the compliance guide should be sent to Richard Lower at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.

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. Section 927.236 paragraphs (a) and (b) are revised to read as 
follows:


Sec.  927.236  Fresh pear assessment rate.

    On and after July 1, 2018, the following base rates of assessment 
for fresh pears are established for the Fresh Pear Committee:
    (a) $0.463 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) $0.463 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 22, 2018.
Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2018-18552 Filed 8-27-18; 8:45 am]
 BILLING CODE 3410-02-P