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

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 931

[Docket No. FV98-931-1 FIR]

Fresh Bartlett Pears Grown in Oregon and Washington; Decreased

Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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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 Northwest Fresh

Bartlett Pear Marketing Committee (Committee) under Marketing Order No.

931 for the 1998-99 and subsequent fiscal periods from $0.03 to $0.02

per standard box handled. 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 1998-99 fiscal period began July 1 and ends June 30. The assessment

rate will remain in effect indefinitely unless modified, suspended, or

terminated.

EFFECTIVE DATE: November 13, 1998.

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.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing

Agreement No. 141 and Order No. 931 (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 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, 1998, and continuing until modified,

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 to decrease the assessment rate established for

the Committee for the 1998-99 and subsequent fiscal periods from $0.03

to $0.02 per standard box handled.

The fresh Bartlett pear marketing 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 1997-98 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 28, 1998, and unanimously recommended

1998-99 expenditures of $97,000 and an assessment rate of $0.02 per

standard box of fresh Bartlett pears handled. In comparison, last

year's budgeted expenditures were $111,441. The assessment rate of

$0.02 is $0.01 less than the 1997-98 rate and will reduce the financial

burden on handlers. With a 1997-98 rate of $0.03 per standard box and

estimated 1998 fresh Bartlett pear shipments of 3,000,000 standard

boxes, the projected reserve on June 30, 1999, would have exceeded the

level the Committee believed to be adequate to administer the program.

The Committee discussed lower assessment rates, but decided that an

assessment rate of less than $0.02 would not generate the income

necessary to administer the program with an adequate reserve.

Major expenses recommended by the Committee for the 1998-99 fiscal

period include $38,878 for salaries, $5,323 for office rent, and $4,062

for health insurance. Budgeted expenses for these

[[Page 55006]]

items in 1997-98 were $48,454, $8,187, and $4,956, respectively.

The assessment rate recommended by the Committee was derived by

dividing anticipated expenses by expected shipments of fresh Bartlett

pears. With fresh Bartlett pear shipments for 1998-99 estimated at

3,000,000 standard boxes, the $0.02 per standard box assessment rate

should provide $60,000 in assessment income. Income derived from

handler assessments, along with funds from the Committee's authorized

reserve and miscellaneous income, will be adequate to cover budgeted

expenses. Funds in the reserve ($38,990 at the end of the 1997-98

fiscal period) will be kept within the maximum permitted by the order

(approximately one fiscal year's operational expenses; Sec. 931.42).

The assessment rate 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

1998-99 budget 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 to decrease the assessment rate established for

the Committee and collected from handlers for the 1998-99 and

subsequent fiscal periods from $0.03 to $0.02 per standard box handled.

The Committee unanimously recommended 1998-99 expenditures of $97,000

and an assessment rate of $0.02 per standard box of fresh Bartlett

pears handled. In comparison, last year's budgeted expenditures were

$111,441. The assessment rate of $0.02 is $0.01 less than the 1997-98

rate. At the 1997-98 rate of $0.03 per standard box and estimated 1998

fresh Bartlett pear shipments of 3,000,000 standard boxes, the

projected reserve on June 30, 1999, would have exceeded the level the

Committee believed to be adequate to administer the program. The

assessment rate reduction will also lessen the financial burden on

handlers. The Committee decided that an assessment rate of less than

$0.02 would not generate the income necessary to administer the program

with an adequate reserve.

Major expenses recommended by the Committee for the 1998-99 fiscal

period include $38,878 for salaries, $5,323 for office rent, and $4,062

for health insurance. Budgeted expenses for these items in 1997-98 were

$48,454, $8,187, and $4,956, respectively.

With fresh Bartlett pear shipments for 1998-99 estimated at

3,000,000 standard boxes, the $0.02 rate of assessment should provide

$60,000 in assessment income. Income derived from handler assessments,

along with funds from the Committee's authorized reserve and

miscellaneous income, will be adequate to cover budgeted expenses.

Funds in the reserve ($38,990 at the end of the 1997-98 fiscal period)

will be kept within the maximum permitted by the order (approximately

one fiscal year's operational expenses; Sec. 931.42).

Recent price information indicates that the grower price for the

1998-99 marketing season will range between $7.59 and $12.72 per

standard box of fresh Bartlett pears. Therefore, the estimated

assessment revenue for the 1998-99 fiscal period as a percentage of

total grower revenue will range between 0.26 and 0.16 percent.

This action continues to decrease 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 producers. However, these

costs are offset by the benefits derived by the operation of the

marketing order. Also, 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 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 28, 1998, meeting was a

public meeting and all entities, both large and small, were able to

express views on this issue.

This action imposes no 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 rule.

An interim final rule concerning this action was published in the

Federal Register on July 16, 1998 (63 FR 38280). In addition, the rule

was made available through the Internet by the Office of the Federal

Register. That rule provided for a 60-day comment period which ended

September 14, 1998. No comments were received.

After consideration of all relevant matter 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

Marketing agreements, Pears, 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 63 FR 38280 on July 16,

[[Page 55007]]

1998, is adopted as a final rule without change.

Dated: October 8, 1998.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable Programs.

[FR Doc. 98-27531 Filed 10-13-98; 8:45 am]

BILLING CODE 3410-02-P