[Federal Register Volume 86, Number 221 (Friday, November 19, 2021)]
[Proposed Rules]
[Pages 64830-64832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25160]


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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. 86, No. 221 / Friday, November 19, 2021 / 
Proposed Rules  

[[Page 64830]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Doc. No. AMS-SC-21-0069; SC21-927-1 PR]


Pears Grown in Oregon and Washington; Increased Assessment Rate

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 2021-22 and subsequent fiscal periods. The proposed 
assessment rate would remain in effect indefinitely unless modified, 
suspended, or terminated.

DATES: Comments must be received by December 20, 2021.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule. Comments must be sent to the Docket 
Clerk, Market Development Division, Specialty Crops Program, AMS, USDA, 
1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; or 
internet: https://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: https://www.regulations.gov. All comments submitted in 
response to this proposed rule will be included in the record and will 
be made available to the public. Please be advised that the identity of 
individuals or entities submitting comments will be made public on the 
internet at the address provided above.

FOR FURTHER INFORMATION CONTACT: Dale Novotny, Marketing Specialist, or 
Andrew Hatch, Deputy Director, Market Development Division, Specialty 
Crops Program, AMS, USDA; Telephone: (559) 356-8202 or Email: 
[email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Richard Lower, Market Development Division, 
Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 
0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, or Email: 
[email protected].

SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, 
proposes to amend 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 of pears operating within the production area, 
and a public member.
    The Department of Agriculture (USDA) is issuing this proposed rule 
in conformance with Executive Orders 12866 and 13563. Executive Orders 
12866 and 13563 direct agencies to assess all costs and benefits of 
available regulatory alternatives and, if regulation is necessary, to 
select regulatory approaches that maximize net benefits (including 
potential economic, environmental, public health and safety effects, 
distributive impacts and equity). Executive Order 13563 emphasizes the 
importance of quantifying both costs and benefits, reducing costs, 
harmonizing rules, and promoting flexibility. This action falls within 
a category of regulatory actions that the Office of Management and 
Budget (OMB) exempted from Executive Order 12866 review.
    This proposed rule has been reviewed under Executive Order 13175--
Consultation and Coordination with Indian Tribal Governments, which 
requires agencies to consider whether their rulemaking actions would 
have tribal implications. AMS has determined this proposed rule is 
unlikely to have substantial direct effects on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes.
    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform.
    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 no later than 20 days after the date of the 
entry of the ruling.
    This proposed rule would increase the assessment rate from $0.463 
per 44-pound standard box or equivalent of fresh ``summer/fall'' and 
``winter'' pears, the rate that was established for the 2018-19 and 
subsequent fiscal periods, to $0.468 per 44-pound standard box or 
equivalent of assessable fresh ``summer/fall'' pears and ``winter'' 
pears for the 2021-22 and subsequent fiscal periods.
    The Order authorizes the Committee, with the approval of USDA, to 
formulate an annual budget of expenses and collect assessments from 
handlers to administer the program. Members are familiar with the 
Committee's needs and with costs of goods and services in their local 
area, and they are in a position to formulate an appropriate budget and 
assessment rate. The assessment rate is formulated and discussed in a 
public meeting. Thus, all directly affected persons have an opportunity 
to participate and provide input.
    For the 2018-19 and subsequent fiscal periods, the Committee 
recommended, and USDA approved, an assessment rate of $0.463 per 44-
pound standard box or equivalent of assessable fresh ``summer/fall'' 
pears and ``winter'' pears. That assessment rate continues in effect 
from fiscal period to fiscal period unless

[[Page 64831]]

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, 2021, and unanimously recommended 
2021-22 fiscal period expenditures of $8,472,263 and an assessment rate 
of $0.468 per 44-pound standard box or equivalent of assessable fresh 
``summer/fall'' pears and ``winter'' pears handled for the 2021-22 and 
subsequent fiscal periods. In comparison, the previous fiscal period's 
budgeted expenditures were $8,901,114. The proposed assessment rate of 
$0.468 is $0.005 higher than the rate currently in effect. Due to a 
smaller estimated 2021-22 crop, the Committee recommended increasing 
the assessment rate to provide adequate income that, along with reserve 
funds and interest income, would cover the Committee's budgeted 
expenses for the 2021-22 fiscal period.
    Expenditures recommended by the Committee for the 2021-22 fiscal 
period include $391,047 for contracted administration, $159,540 for 
industry development, $964,476 for production research and market 
development, $27,200 for miscellaneous expenses, and $6,930,000 for 
promotion and paid advertising for ``summer/fall'' and ``winter'' 
varieties of fresh pears. Budgeted expenses for these items for the 
2020-21 fiscal period were $388,520, $172,000, $997,394, $28,200, and 
$7,315,000, respectively.
    The Committee derived the recommended assessment rate by 
considering anticipated expenses, and an estimated 2021 crop of 
18,000,000 44-pound standard boxes or equivalent of assessable fresh 
``summer/fall'' pears and ``winter'' pears. Income derived from handler 
assessments, calculated at $8,424,000 (18,000,000 standard boxes or 
equivalent multiplied by $0.468 assessment rate), along with reserve 
funds and interest income ($48,263), should be adequate to cover 
budgeted expenses of $8,472,263.
    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 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. 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 2021-22 fiscal period 
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 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 are unique in that they are brought about through 
group action of essentially small entities acting on their own behalf.
    There are approximately 708 growers of fresh pears in the 
production area and 27 handlers subject to the regulation under the 
Order. Small agricultural producers are defined by the Small Business 
Administration (SBA) as those having annual receipts of less than 
$1,000,000, and small agricultural service firms have been defined as 
those whose annual receipts are less than $30,000,000 (13 CFR 121.201).
    According to the National Agricultural Statistics Service (NASS), 
the 2020 average grower price received for fresh pears produced in 
Oregon and Washington was $11.39 per standard 44-pound box or 
equivalent. Committee data indicates total production was 16,290,225 
44-pound standard boxes or equivalent in the 2019-20 fiscal period. The 
total 2019-20 fiscal period value of assessable fresh ``summer/fall'' 
and ``winter'' pears grown in Oregon and Washington was $185,545,663 
(16,290,225 44-pound standard boxes or equivalent times $11.39 per box 
equals $185,545,663). Dividing the crop value by the estimated number 
of growers (708) yields an estimated average receipt per grower of 
$262,070.
    According to USDA Market News data, the reported average terminal 
price for 2020 Oregon and Washington fresh pears was $34.87 per 44-
pound standard box or equivalent (data reported in \4/5\ bushel). 
Multiplying the Committee-reported 2019-20 Oregon and Washington total 
production of 16,290,225 44-pound standard boxes or equivalent by the 
estimated average price per box or equivalent of $34.87 equals 
$568,040,146. Dividing this figure by 27 regulated handlers yields 
estimated average annual handler receipts of $21,038,524.
    Therefore, using the above data, the majority of growers of Oregon 
and Washington fresh pears may be classified as small entities. 
Assuming a normal distribution, the majority of handlers of Oregon and 
Washington fresh pears may also be classified as small entities.
    As noted above, the average price received by growers in 2020 was 
$11.39 per 44-pound standard box or equivalent of assessable fresh 
``summer/fall'' pears and ``winter'' pears. Given the Committee-
estimated production of 18,000,000 44-pound standard boxes or 
equivalent of assessable fresh pears for the 2021-22 fiscal period, the 
total grower revenue is estimated to be $205,020,000. The total 
assessment revenue is expected to be $8,424,000 (18,000,000 boxes 
multiplied by $0.468 per box). Thus, the total assessment revenue 
compared to total grower revenue is 4.1 percent ($8,424,000 divided by 
$205,020,000).
    This proposal would increase the assessment rate collected from 
handlers for the 2021-22 and subsequent fiscal periods from $0.463 to 
$0.468 per 44-pound standard box or equivalent of assessable fresh 
``summer/fall'' pears and ``winter'' pears. The Committee unanimously 
recommended 2021-22 fiscal period expenditures of $8,472,263 and an 
assessment rate of $0.468 per 44-pound standard box or equivalent of 
assessable fresh ``summer/fall'' pears and ``winter'' pears handled. 
The proposed assessment rate of $0.468 per 44-pound standard box or 
equivalent of assessable fresh ``summer/fall'' pears and ``winter'' 
pears is $0.005 higher than the current rate. The volume of assessable 
fresh ``summer/fall'' pears and ``winter'' pears in the production area 
for the 2021-22 fiscal period is estimated to be 18,000,000 44-pound 
standard boxes or equivalent. Thus, the $0.468 per 44-pound standard 
box or equivalent of assessable fresh ``summer/fall'' pears and 
``winter'' pears should provide $8,424,000 in assessment income 
(18,000,000 multiplied by $0.468). Income derived from handler 
assessments, along with reserve funds and interest income, should be 
adequate to cover budgeted expenses of for the 2021-22 fiscal period.
    Major expenditures recommended by the Committee for the 2021-22 
fiscal

[[Page 64832]]

period include $391,047 for contracted administration, $159,540 for 
industry development, $964,476 for production research and market 
development, and $6,930,000 for promotion and paid advertising for 
``summer/fall'' and ``winter'' varieties of fresh pears. Budgeted 
expenses for these items for the 2020-21 fiscal period were $388,520, 
$172,000, $997,394, and $7,315,000, respectively.
    Due to a smaller estimated 2021-22 crop, the Committee recommended 
increasing the assessment rate to provide adequate income that, along 
with reserve funds and interest income, would cover the Committee's 
budgeted expenses for the 2021-22 fiscal period. Prior to arriving at 
this budget and assessment rate recommendation, the Committee discussed 
various alternatives, including maintaining the current assessment rate 
and, alternatively, increasing the assessment rate by a different 
amount. However, the Committee determined that the recommended 
assessment rate, along with reserve funds and interest income, should 
adequately fund budgeted expenses.
    This proposed rule would increase the assessment obligation imposed 
on handlers. Assessments are applied uniformly on all handlers, and 
some of the costs may be passed on to growers. However, these costs 
would be offset by the benefits derived by the operation of the Order.
    The Committee's meeting was widely publicized throughout the Oregon 
and Washington pear industry. All interested persons were invited to 
attend the meeting and encouraged to participate in Committee 
deliberations on all issues. Like all Committee meetings, the June 3, 
2021, meeting was a public meeting, and all entities, both large and 
small, were able to express views on this issue. Interested persons are 
invited to submit comments on this proposed rule, including 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 OMB and assigned OMB No. 0581-0189, Fruit Crops. 
No changes in those requirements would be necessary as a result of this 
proposed rule. 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 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: 
https://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.
    A 30-day comment period is provided to allow interested persons to 
respond to this proposed rule. All written comments timely received 
will be considered before a final determination is made on this matter.

List of Subjects in 7 CFR Part 927

    Marketing agreements, Pears, Reporting and recordkeeping 
requirements.

    For 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, revise the introductory text and paragraphs (a) 
and (b) to read as follows:


Sec.  927.236  Fresh pear assessment rate.

    On and after July 1, 2021, the following base rates of assessment 
for fresh pears are established for the Fresh Pear Committee:
    (a) $0.468 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) $0.468 per 44-pound net weight standard box or container 
equivalent for any or all varieties or subvarieties of fresh pears 
classified as ``winter''; and
* * * * *

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2021-25160 Filed 11-18-21; 8:45 am]
BILLING CODE P