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

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 931

[Docket No. FV97-931-2 FIR]

Fresh Bartlett Pears Grown in Oregon and Washington; Reduced

Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Agriculture (Department) is adopting as a

final rule, without change, the provisions of an interim final rule

which decreased the assessment rate established for the Fresh Bartlett

Pear Marketing Committee (Committee) under Marketing Order No. 931 for

the 1997-98, and subsequent fiscal periods. The Committee is

responsible for local administration of 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 1997-98 fiscal period began

July 1 and ends June 30. The assessment rate will continue in effect

indefinitely unless modified, suspended, or terminated.

EFFECTIVE DATE: December 24, 1997.

FOR FURTHER INFORMATION CONTACT: Teresa L. Hutchinson, Northwest

Marketing Field Office, Fruit and Vegetable Programs, AMS, USDA, 1220

SW Third Avenue, Room 369, Portland, OR 97204; telephone: (503) 326-

2724, Fax: (503) 326-7440 or George J. Kelhart, Marketing Order

Administration Branch, Fruit and Vegetable Programs, AMS, USDA, Room

2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202)

720-2491, Fax: (202) 205-6632. Small businesses may request information

on compliance with this regulation by contacting Jay Guerber, Marketing

Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA,

Room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone:

(202) 720-2491, Fax: (202) 205-6632.

[[Page 62507]]

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement No. 141 and Order No. 931, both as amended (7 CFR part 931),

regulating the handling of fresh Bartlett pears grown in Oregon and

Washington, hereinafter referred to as the ``order.'' The marketing

agreement and order are 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 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, 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, 1997, and continuing until amended,

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 section 608c(15)(A) of the

Act, any handler subject to an order may file with the Secretary 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 the Secretary 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 the

Secretary'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 continues in effect the assessment rate established for

the Committee for the 1997-98, and subsequent fiscal periods of $0.03

per standard box of fresh Bartlett pears.

The order provides authority for the Committee, with the approval

of the Department, to formulate an annual budget of expenses and

collect assessments from handlers to administer the program. The

members of the Committee are producers and handlers of fresh Bartlett

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 in a public meeting. Thus, all

directly affected persons have an opportunity to participate and

provide input.

For the 1996-97 and subsequent fiscal periods, the Committee

recommended, and the Department approved, an assessment rate that would

continue in effect from fiscal period to fiscal period indefinitely

unless modified, suspended, or terminated by the Secretary upon

recommendation and information submitted by the Committee or other

information available to the Secretary.

The Committee met on May 29, 1997, and unanimously recommended

1997-98 expenditures of $111,441 and an assessment rate of $0.03 per

standard box of fresh Bartlett pears. In comparison, last year's

budgeted expenditures were $89,774. The assessment rate of $0.03 is

$0.0075 less than the rate previously in effect. The former rate of

$0.0375 would have resulted in a reserve that exceeded the level the

Committee believes is necessary to administer the program. The

Committee discussed alternatives to this rule, including alternative

assessment levels, but decided that an assessment rate of less than

$0.03 would not generate the income necessary to administer the program

with an adequate reserve.

The assessment rate recommended by the Committee was derived by

dividing anticipated expenses by expected shipments of fresh Bartlett

pears. Applying the $0.03 per standard box rate of assessment to the

Committee's 3,150,000 standard box shipment estimate should provide

$94,500 in assessment income. Income derived from handler assessments,

along with interest income and funds from the Committee's authorized

reserve, will be adequate to cover budgeted expenses. Funds in the

reserve will be kept within the maximum permitted by the order.

Major expenditures recommended by the Committee for the 1997-98

year include $48,454 for salaries, $8,187 for office rent, and $4,956

for health insurance. Budgeted expenses for these items in 1996-97 were

$46,306, $7,016, and $4,991, respectively.

The assessment rate established in this rule will continue in

effect indefinitely unless modified, suspended, or terminated by the

Secretary 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 the

Department. Committee meetings are open to the public and interested

persons may express their views at these meetings. The Department 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

1997-98 budget was approved by the Department on August 26, 1997, and

those for subsequent fiscal periods will be reviewed and, as

appropriate, approved by the Department.

Pursuant to requirements set forth in the Regulatory Flexibility

Act (RFA), the Agricultural Marketing Service (AMS) has considered the

economic impact of this action 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 1,800 producers of fresh Bartlett pears in

the production area and approximately 65 handlers subject to regulation

under the marketing order. Small agricultural producers have been

defined by the Small Business Administration (13 CFR 121.601) as those

having annual receipts less than $500,000 and small agricultural

service firms are defined as those whose annual receipts are less than

$5,000,000. The majority of fresh Bartlett pear producers and handlers

may be classified as small entities.

This rule continues in effect a decreased assessment rate

established for the Committee and collected from handlers for the 1997-

98 and subsequent fiscal periods. The Committee unanimously recommended

1997-98 expenditures of $111,441 and an assessment rate of $0.03 per

standard box of fresh Bartlett pears. The assessment rate of $0.03 is

$0.0075 less than the rate previously in effect. Fresh Bartlett pear

shipments for the year

[[Page 62508]]

were estimated at 3,150,000 standard boxes, which should provide

$94,500 in assessment income. Income derived from handler assessments,

along with interest income and funds from the Committee's authorized

reserve, will be adequate to cover budgeted expenses. Funds in the

reserve will be kept within the maximum permitted by the order.

The Committee discussed alternatives to this rule, including

alternative expenditure levels. The former rate of $0.0375 would have

resulted in a reserve that exceeded the level the Committee believes is

necessary to administer the program. Lower assessment rates were

considered, but not recommended because they would not generate the

income necessary to administer the program with an adequate reserve.

Major expenses recommended by the Committee for the 1997-98 fiscal

period include $48,454 for salaries, $8,187 for office rent, and $4,956

for health insurance. Budgeted expenses for these items in 1996-97 were

$46,306, $7,016, and $4,991, respectively.

Recent price information indicates that the grower price for the

1997-98 season will range between $5.79 and $12.72 per standard box of

fresh Bartlett pears. Therefore, the estimated assessment revenue for

the 1997-98 fiscal period as a percentage of total grower revenue will

range between 0.24 and 0.52 percent.

This action will reduce the assessment obligation imposed on

handlers. While this rule will impose some additional costs on

handlers, the costs are minimal and in the form of uniform assessments

on all handlers. Some of the additional costs may be passed on to

producers. However, these costs will be offset by the benefits derived

by the operation of the marketing 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 29, 1997, meeting was a public meeting and

all entities, both large and small, were able to express views on this

issue.

This action will not impose any 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 Department has not identified any relevant Federal rules that

duplicate, overlap, or conflict with this final rule.

The interim final rule published in the Federal Register (62 FR

44884) on August 25, 1997, requested comments to be received by

September 24, 1997. A copy of the interim final rule was also made

available on the Internet by the U.S. Government Printing Office. No

comments were received.

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.

List of Subjects in 7 CFR Part 931

Fresh Bartlett pear, Marketing agreements, Reporting and

recordkeeping requirements.

PART 931--FRESH BARTLETT PEARS GROWN IN OREGON AND WASHINGTON

Accordingly, the interim final rule amending 7 CFR part 931 which

was published at 62 FR 44884 on August 25, 1997, is adopted as a final

rule without change.

Dated: November 18, 1997.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable Programs.

[FR Doc. 97-30785 Filed 11-21-97; 8:45 am]

BILLING CODE 3410-02-P