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

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 931

[Docket No. FV99-931-1 PR]

Fresh Bartlett Pears Grown in Oregon and Washington; Increased

Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule would increase the assessment rate from $0.02 to

$0.025 per standard box of fresh Bartlett pears established for the

Northwest Fresh Bartlett Pear Marketing Committee (Committee) under

Marketing Order No. 931 for the 1999-2000 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 1999-2000

fiscal period began 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 September 7, 1999.

ADDRESSES: Interested persons are invited to submit written comments

concerning this rule. Comments must be sent to the Docket Clerk, Fruit

and Vegetable Programs, AMS, USDA, Room 2525-S, P.O. Box 96456,

Washington, DC 20090-6456; Fax (202) 720-5698; or E-mail:

[email protected]. Comments should reference the docket 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.

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) 720-5698.

SUPPLEMENTARY INFORMATION: Small businesses may request information on

complying with this regulation, or obtain a guide on complying with

fruit, vegetable, and specialty crop marketing agreements and orders 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) 720-

5698, or E-mail: Jay.G[email protected]. You may view the marketing

agreement and order small business compliance guide at the following

web site: http://www.ams.usda.gov/fv/moab.html.

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 of Agriculture (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 proposed herein would be applicable to all assessable fresh

Bartlett pears beginning July 1, 1999, and continue 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 would increase the assessment rate established for the

Committee for the 1999-2000 and subsequent fiscal periods from $0.02 to

$0.025 per standard box of fresh Bartlett pears 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 Committee consists of eight grower members and six

handler members, each of whom is 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 budget and assessment rate were discussed at a public meeting

and all directly affected persons had an opportunity to participate and

provide input.

For the 1998-99 and subsequent fiscal periods, the Committee

recommended, and the Department approved, an assessment rate of $0.02

per standard box 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 June 3, 1999, and unanimously recommended

1999-2000 expenditures of $77,231 and an assessment rate of $0.025 per

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

year's budgeted expenditures were $97,000. The

[[Page 42859]]

assessment rate of $0.025 is $0.005 higher than the rate currently in

effect. The Committee recommended an increased assessment rate because

assessable 1999-2000 tonnage is expected to be less than the five-year

average of 2,910,048 standard boxes, and the current rate would not

generate enough income to adequately administer the program.

Major expenses recommended by the Committee for the 1999-2000

fiscal period include $40,433 for salaries, $5,323 for office rent, and

$4,048 for health insurance. Budgeted expenses for these items in 1998-

99 were $38,878, $5,323, and $4,062, respectively.

The assessment rate recommended by the Committee was derived by

dividing anticipated expenses by expected shipments of fresh Bartlett

pears. Fresh Bartlett pear shipments for the year are estimated at

2,630,450 standard boxes, which should provide $65,761 in assessment

income. Income derived from handler assessments, along with funds from

the Committee's authorized reserve and miscellaneous income, should be

adequate to cover budgeted expenses. Funds in the reserve (currently

$23,604) would be kept within the maximum permitted by the order of

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

The proposed assessment rate would 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 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 the

Department. Committee meetings are open to the public and interested

persons may express their views at these meetings. The Department 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

1999-2000 budget and those for subsequent fiscal periods would 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 rule on small entities. Accordingly, the 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. 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.

Currently, about 98.5 percent of the fresh Bartlett pear handlers

ship less that $5,000,000 worth of fresh Bartlett pears and 1.5 percent

ship more than $5,000,000 worth on an annual basis. In addition, based

on acreage, production, and producer prices reported by the National

Agricultural Statistics Service, and the total number of fresh Bartlett

pear producers, the average annual producer revenue is approximately

$12,250. In view of the foregoing, it can be concluded that the

majority of fresh Bartlett pear producers and handlers may be

classified as small entities.

This rule would increase the assessment rate established for the

Committee and collected from handlers for the 1999-2000 and subsequent

fiscal periods from $0.02 to $0.025 per standard box of fresh Bartlett

pears handled. The Committee met on June 3, 1999, and unanimously

recommended 1999-2000 expenditures of $77,231 and an assessment rate of

$0.025 per standard box of fresh Bartlett pears handled. In comparison,

last year's budgeted expenditures were $97,000. The assessment rate of

$0.025 is $0.005 more than the rate currently in effect. The Committee

recommended an increased assessment rate because assessable 1999-2000

tonnage is expected to be less than the five-year average of 2,910,048

standard boxes, and the current rate would not generate enough income

to adequately administer the program.

Major expenses recommended by the Committee for the 1999-2000

fiscal period include $40,433 for salaries, $5,323 for office rent, and

$4,048 for health insurance. Budgeted expenses for these items in 1998-

99 were $38,878, $5,323, and $4,062, respectively.

The assessment rate recommended by the Committee was derived by

dividing anticipated expenses by expected shipments of fresh Bartlett

pears. Fresh Bartlett pear shipments for the year are estimated at

2,630,450 standard boxes, which should provide $65,761 in assessment

income. Income derived from handler assessments, along with funds from

the Committee's authorized reserve and miscellaneous income, should be

adequate to cover budgeted expenses. The reserve is within the maximum

permitted by the order of approximately one fiscal year's operational

expenses (Sec. 931.42).

The Committee considered alternative levels of assessment but

determined that, with the reduced estimate of assessable tonnage,

increasing the assessment rate to $0.025 per standard box would be

appropriate. The Committee decided that an assessment rate of more than

$0.025 per standard box would generate income in excess of that needed

to adequately administer the program.

A review of historical information and preliminary information

pertaining to the upcoming crop indicates that the producer price for

the 1999-2000 marketing season could range between $8.56 and $12.72 per

standard box of fresh Bartlett pears handled. Therefore, the estimated

assessment revenue for the 1999-2000 fiscal period as a percentage of

total grower revenue should range between 0.29 and 0.20 percent.

This 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 producers. However, these costs

would 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 June 3, 1999, 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 information on the regulatory

and informational impacts of this action on small businesses.

This proposed rule would impose no additional reporting or

recordkeeping requirements on either small or large fresh Bartlett pear

handlers. As with all

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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.

A 30-day comment period is provided to allow interested persons the

opportunity to respond to this proposed rule. Thirty days is deemed

appropriate because: (1) The 1999-2000 fiscal period began on July 1,

1999, and the order requires that the rate of assessment for each

fiscal period apply to all assessable fresh Bartlett 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; and

(3) 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 931

Marketing agreements, Pears, Reporting and recordkeeping

requirements.

For the reasons set forth in the preamble, 7 CFR part 931 is

proposed to be amended as follows:

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

1. The authority citation for 7 CFR part 931 continues to read as

follows:

Authority: 7 U.S.C. 601-674.

2. Section 931.231 is revised to read as follows:

Sec. 931.231 Assessment rate.

On and after July 1, 1999, an assessment rate of $0.025 per western

standard pear box is established for the Northwest Fresh Bartlett Pear

Marketing Committee.

Dated: August 3, 1999.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable Programs.

[FR Doc. 99-20289 Filed 8-5-99; 8:45 am]

BILLING CODE 3410-02-P