83 FR 62449 - Pears Grown in Oregon and Washington; Decreased Assessment Rate for Processed Pears

DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service

Federal Register Volume 83, Issue 233 (December 4, 2018)

This final rule implements a recommendation from the Processed Pear Committee (Committee) to decrease the assessment rate established for ``summer/fall'' varieties of pears for canning for the 2018-2019 and subsequent fiscal periods. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated.

[Federal Register Volume 83, Number 233 (Tuesday, December 4, 2018)]
[Rules and Regulations]
[Pages 62449-62451]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-26311]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
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under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 83, No. 233 / Tuesday, December 4, 2018 / 
Rules and Regulations

[[Page 62449]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Doc. No. AMS-SC-18-0049; SC18-927-2 FR]


Pears Grown in Oregon and Washington; Decreased Assessment Rate 
for Processed Pears

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule implements a recommendation from the Processed 
Pear Committee (Committee) to decrease the assessment rate established 
for ``summer/fall'' varieties of pears for canning for the 2018-2019 
and subsequent fiscal periods. The assessment rate will remain in 
effect indefinitely unless modified, suspended, or terminated.

DATES: Effective January 3, 2019.

FOR FURTHER INFORMATION CONTACT: Dale Novotny, 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, 
amends regulations issued to carry out a marketing order as defined in 
7 CFR 900.2(j). This 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, 
handlers, and processors operating within the area of production, and a 
public member.
    The Department of Agriculture (USDA) is issuing this rule in 
conformance with Executive Orders 13563 and 13175. This 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 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'[thinsp]'' (February 2, 2017).
    This 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. The assessment rate established by 
this rule will be applicable to all ``summer/fall'' varieties of pears 
specifically used for canning 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 Committee 
members are familiar with the Committee's needs and with the costs of 
goods and services in their local area and can 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 final rule decreases the assessment rate from $8.00 per ton, 
the rate that was established for the 2017-2018 and subsequent fiscal 
periods, to $7.15 per ton of ``summer/fall'' varieties of pears for 
canning handled for the 2018-2019 and subsequent fiscal periods. The 
assessment rate for ``winter'' and ``other'' pears for processing will 
remain unchanged at $0.00. The Committee met on May 30, 2018, and 
unanimously recommended 2018-2019 fiscal period expenditures of 
$693,472. In comparison, last year's budgeted expenditures were 
$800,150. The Committee also unanimously recommended an assessment rate 
of $7.15 per ton of ``summer/fall'' varieties of pears for canning 
handled. The new assessment rate of $7.15 per ton is $0.85 lower than 
the previous $8.00 per ton rate. The Committee recommended the lower 
assessment rate to balance assessment revenue with its budgeted 
expenditures and to maintain its monetary reserve at levels authorized 
by the Order.
    The major expenditures recommended by the Committee for the 2018-
2019 fiscal period include $495,000 for promotion and paid advertising, 
$136,172 for research, $15,000 for market access programs, $25,000 for 
administrative and management services, and $22,300 for Committee 
expenses. In comparison, these major expense categories for the 2017-
2018 fiscal period were budgeted at $591,030, $147,694, $14,576, 
$25,000, and $21,850; respectively.
    The assessment rate recommended by the Committee was derived by 
considering anticipated expenses, expected shipments, and the amount of

[[Page 62450]]

funds available in the authorized reserve. The quantity of assessable 
``summer/fall'' pears for canning for the 2018-2019 fiscal period is 
estimated at 100,000 tons. Thus, the recommended $7.15 per ton 
assessment rate is expected to provide handler assessments of $715,000. 
This amount will be adequate to cover budgeted expenses of $693,472, 
with any excess funds used to make a small contribution to the 
Committee's monetary reserve. Funds in the reserve (currently $497,565) 
will be kept within the maximum permitted by Sec.  927.42(a) of 
approximately one fiscal period's expenses.
    The assessment rate established in this rule will 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 will 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. 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 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 budget for subsequent 
fiscal periods will be reviewed and, as appropriate, approved by USDA.

Final 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 rule 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 
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 1,500 growers of pears for processing in 
the production area and approximately 43 handlers of processed pears 
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 National Agricultural Statistics 
Service (NASS), the Committee, and the industry for the 2016-2017 
season (the most recent complete season of record) the average f.o.b. 
price for Oregon-Washington processed Bartlett pears (the only variety 
used for canning in the production area) was approximately $390.50 per 
ton. Total shipments for that period were approximately 103,020 tons. 
Using the number of handlers, and assuming a normal distribution, the 
majority of handlers may have average annual receipts of less than 
$7,500,000 ($390.50 per ton times 103,020 tons equals $40,229,310 
divided by 43 handlers equals $935,565 per handler).
    In addition, based on data from the Committee, the industry 
produced 103,020 tons of processed pears in the production area during 
the 2016-2017 season, with an average grower price of $360 per ton. 
Based on the average grower price, production, and the total number of 
Oregon-Washington processed pear growers reported by the Committee 
(1,500), and assuming a normal distribution, the average annual grower 
revenue is below $750,000 ($360 per ton times 103,020 tons equals 
$37,087,200 divided by 1,500 growers equals $24,725 per grower). Thus, 
the majority of Oregon and Washington processed pear handlers and 
growers may be classified as small entities.
    This rule decreases the assessment rate collected from handlers for 
the 2018-2019 and subsequent fiscal periods from $8.00 per ton to $7.15 
per ton of Oregon and Washington ``summer/fall'' pears for canning 
handled. The Committee unanimously recommended 2018-2019 fiscal period 
expenditures of $693,472 and the $7.15 per ton assessment rate. The 
assessment rate of $7.15 per ton is $0.85 lower than the previous rate 
in effect for the 2017-2018 fiscal period. The quantity of assessable 
``summer/fall'' pears for canning for the 2018-2019 fiscal period is 
estimated at 100,000 tons. Thus, the $7.15 per ton rate should provide 
$715,000 in assessment income. Income derived from handler assessments 
should be adequate to cover budgeted expenses, with any excess funds to 
be carried over in the Committee's monetary reserve to be used in 
subsequent years.
    The major expenditures recommended by the Committee for the 2018-
2019 fiscal period include $495,000 for promotion and paid advertising, 
$136,172 for research, $15,000 for market access programs, $25,000 for 
administrative and management services, and $22,300 for Committee 
expenses. In comparison, these major expense categories for the 2017-
2018 fiscal period were budgeted at $591,030, $147,694, $14,576, 
$25,000, and $21,850, respectively.
    The new, lower assessment rate is necessary to balance assessment 
revenue with the Committee's 2018-2019 fiscal period budgeted 
expenditures and to maintain its monetary reserve at levels authorized 
in the Order.
    Prior to arriving at this budget and assessment rate, the Committee 
considered the benefits and costs related to maintaining the previous 
assessment rate of $8.00 per ton and establishing other assessment 
rates. However, leaving the assessment rate unchanged would have 
generated more revenue than required to meet the Committee's 2018-2019 
fiscal period budgeted expenses of $693,472, and would have added a 
large amount of excess funds to the Committee's already sufficient 
monetary reserve. Based on estimated shipments, the assessment rate of 
$7.15 per ton is expected to provide $715,000 in assessment income. The 
Committee determined assessment revenue will be adequate to fully cover 
budgeted expenditures for the 2018-2019 fiscal period, with a small 
amount of excess funds to be added to the Committee's monetary reserve. 
Reserve funds will be kept within the amount authorized by 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 $296 per 
ton of pears for processing. Therefore, the estimated assessment 
revenue for the 2018-2019 fiscal period as a percentage of total grower 
revenue is about 2.4 percent ($7.15 per ton assessment divided by $296 
per ton grower price).
    This action decreases the assessment obligation imposed on handlers 
for the 2018-2019 and subsequent fiscal periods. Assessments are 
applied uniformly on all handlers, and some of the costs may be passed 
on to producers. However, decreasing the assessment rate will reduce 
the burden on handlers, and may reduce the burden on producers.
    The Committee's meetings were widely publicized throughout the

[[Page 62451]]

Oregon and Washington processed 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 30, 
2018, meeting was a public meeting and all entities, both large and 
small, were able to express views on this issue.
    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 are necessary because of this action. 
Should any changes become necessary, they will be submitted to OMB for 
approval.
    This rule does not impose any additional reporting or recordkeeping 
requirements on either small or large Oregon and Washington processed 
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. USDA has not 
identified any relevant Federal rules that duplicate, overlap, or 
conflict with this final rule.
    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.
    A proposed rule concerning this action was published in the Federal 
Register on September 12, 2018 (83 FR 46119). Copies of the proposed 
rule were also mailed or sent via facsimile to all Oregon and 
Washington fresh pear handlers. The proposal was made available through 
the internet by USDA and the Office of the Federal Register. A 30-day 
comment period ending October 12, 2018, was provided for interested 
persons to respond to the proposal. Two comments were received during 
the comment period. The first comment was in support of the action. The 
second comment was a negative opinion on marketing orders in general 
and did not address the specific proposed rulemaking action. 
Accordingly, no changes will be made to the rule as proposed, based on 
the comments received.
    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.
    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, will tend to 
effectuate the declared policy of the Act.

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 
amended as follows:

PART 927--PEARS GROWN IN OREGON AND WASHINGTON

0
1. The authority citation for part 927 continues to read as follows:

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

0
2. Section 927.237 is amended by revising the introductory text and 
paragraph (a) to read as follows:


Sec.  927.237  Assessment rate.

    On and after July 1, 2018, the following base rates of assessment 
for pears for processing are established for the Processed Pear 
Committee:
    (a) $7.15 per ton for any or all varieties or subvarieties of pears 
for canning classified as ``summer/fall'' excluding pears for other 
methods of processing;
* * * * *

    Dated: November 29, 2018.
Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2018-26311 Filed 12-3-18; 8:45 am]
 BILLING CODE 3410-02-P