Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations 41557

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 931

[Docket No. FV00–931–1 IFR]

Fresh Bartlett Pears Grown in Oregon

and Washington; Decreased

Assessment Rate

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Interim final rule with request

for comments.

SUMMARY: This interim final rule

decreases the assessment rate

established for the Northwest Fresh

Bartlett Pear Marketing Committee

(Committee) under Marketing Order No.

931 for the 2000–2001 and subsequent

fiscal periods from $0.025 to $0.02 per

standard box of fresh Bartlett pears

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 2000–2001 fiscal

period begins July 1 and ends June 30.

The assessment rate will continue in

effect indefinitely unless modified,

suspended, or terminated.

DATES: Effective July 7, 2000. Comments

received by September 5, 2000, will be

considered prior to issuance of a final

rule.

ADDRESSES: Interested persons are

invited to submit written comments

concerning this rule. Comments must be

sent to the Docket Clerk, Marketing

Order Administration Branch, Fruit and

Vegetable Programs, AMS, USDA, room

2525–S, P.O. Box 96456, Washington,

DC 20090–6456; Fax: (202) 720–5698, or

E-mail: moab.docketclerk@usda.gov.

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, or can be viewed

at: http://www.ams.usda.gov/fv/

moab.html.

FOR FURTHER INFORMATION CONTACT:

Teresa L. Hutchinson, Northwest

Marketing Field Office, Fruit and

Vegetable Programs, AMS, USDA, 1220

SW Third Avenue, suite 385, 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: 720–5698.

Small businesses may request

information on complying with this

regulation by contacting Jay Guerber,

Marketing Order Administration

Branch, Fruit and Vegetable Programs,

AMS, USDA, P.O. Box 96456, room

2525–S, Washington, DC 20090–6456;

telephone: (202) 720–2491, Fax: (202)

720–5698, or E-mail:

Jay.Guerber@usda.gov.

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 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 issued herein will be

applicable to all assessable fresh Bartlett

pears beginning July 1, 2000, 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 decreases the assessment

rate established for the Committee for

the 2000–2001 and subsequent fiscal

periods from $0.025 to $0.02 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 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 1999–2000 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 June 1, 2000,

and unanimously recommended 2000–

2001 expenditures of $81,060 and an

assessment rate of $0.02 per standard

box of fresh Bartlett pears handled. In

comparison, last year’s budgeted

expenditures were $77,231. The

assessment rate of $0.02 is $0.005 less

than the rate now in effect and will

reduce the financial burden on

handlers. At the current rate of $0.025

per standard box and with estimated

2000–2001 fresh Bartlett pear shipments

of 3,200,000 standard boxes, the

projected reserve on June 30, 2001,

would exceed the level the Committee

believes 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. The decreased

assessment rate is expected to result in

an operating reserve of $19,261 on June

30, 2001.

Major expenses recommended by the

Committee for the 2000–2001 fiscal

period include $44,468 for salaries,

$4,847 for office rent, and $3,891 for

health insurance. Budgeted expenses for

these items in 1999–2000 were $40,433,

$5,323, and $4,048, respectively.

41558 Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations

The Committee based its

recommended assessment rate on the

2000–2001 crop estimate, the 2000–

2001 fiscal period expenditures

estimate, and the current and projected

balance of the operating reserve. With

fresh Bartlett pear shipments for 2000–

2001 estimated at 3,200,000 standard

boxes, the $0.02 per standard box

assessment rate should provide $64,000

in assessment income. Income derived

from handler assessments, along with

$13,060 from the Committee’s

authorized reserve (currently $32,321)

and miscellaneous income ($3,000), will

be adequate to cover budgeted expenses.

Funds in the reserve (estimated to be

$19,261 at the end of the 2000–2001

fiscal period) will be kept within the

maximum permitted by the order

(approximately one fiscal year’s

operational expenses; § 931.42).

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 2000–2001 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 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

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 are defined by the Small

Business Administration (13 CFR

121.201) 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 under

$5,000,000 worth of fresh Bartlett pears

and 1.5 percent ship over $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

$9,800. 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,

excluding receipts from other sources.

This rule decreases the assessment

rate established for the Committee and

collected from handlers for the 2000–

2001 and subsequent fiscal periods from

$0.025 to $0.02 per standard box of

fresh Bartlett pears handled. The

Committee unanimously recommended

2000–2001 expenditures of $81,060 and

an assessment rate of $0.02 per standard

box of fresh Bartlett pears handled. In

comparison, last year’s budgeted

expenditures were $77,231. The

assessment rate of $0.02 is $0.005 less

than the rate currently in effect. At the

rate of $0.025 per standard box and with

2000 fresh Bartlett pear shipments

estimated at 3,200,000 standard boxes,

the projected reserve on June 30, 2001,

would exceed the level the Committee

believes to be adequate to administer

the program. The assessment rate

reduction would 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 2000–2001 fiscal

period include $44,468 for salaries,

$4,847 for office rent, and $3,891 for

health insurance. Budgeted expenses for

these items in 1999–2000 were $40,433,

$5,323, and $4,048, respectively.

With fresh Bartlett pear shipments for

2000–2001 estimated at 3,200,000

standard boxes, the $0.02 rate of

assessment should provide $64,000 in

assessment income. Income derived

from handler assessments, along with

$13,060 from the Committee’s

authorized reserve (currently $32,321)

and miscellaneous income ($3,000), will

be adequate to cover budgeted expenses.

Funds in the reserve (estimated to be

$19,261 at the end of the 2000–2001

fiscal period) will be kept within the

maximum permitted by the order

(approximately one fiscal year’s

operational expenses; 931.42).

Recent price information indicates

that the grower price for the 2000–2001

marketing season will range between

$8.60 and $11.30 per standard box of

fresh Bartlett pears. Therefore, the

estimated assessment revenue for the

2000–2001 fiscal period as a percentage

of total grower revenue will range

between 0.18 and 0.23 percent.

This action decreases 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, 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 June 1,

2000, 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 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

rule.

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/

fv/moab.html. Any questions about the

compliance guide should be sent to Jay

Guerber at the previously mentioned

address in the FOR FURTHER INFORMATION

CONTACT section.

After consideration of all relevant

matter presented, including the

Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations 41559

1See 65 FR at 12913 (provisions describing the

certifications that the notice must contain).

2See, e.g., OCC Corporate Decision No. 97–54

(June 26, 1997); OCC Interpretive Letter No. 692,

reprinted in [1995–1996 Transfer Binder] Fed.

Banking L. Rep. (CCH) ¶ 81,007 (Nov. 1, 1995); OCC

Interpretive Letter No. 694, reprinted in [1995–1996

Transfer Binder] Fed. Banking L. Rep. (CCH) ¶

81,009 (Dec. 13, 1995); OCC Interpretive Letter No.

705, reprinted in [1995–1996 Transfer Binder] Fed.

Banking L. Rep. (CCH) ¶ 81,020 (October 25, 1995);

OCC Interpretive Letter No. 711, reprinted in [1995–

1996 Transfer Binder] Fed. Banking L. Rep. (CCH)

¶ 81–026 (Feb. 23, 1996).

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.

Pursuant to 5 U.S.C. 553, it is also

found and determined upon good cause

that it is impracticable, unnecessary,

and contrary to the public interest to

give preliminary notice prior to putting

this rule into effect, and that good cause

exists for not postponing the effective

date of this rule until 30 days after

publication in the Federal Register

because: (1) This action reduces the

current assessment rate for fresh Bartlett

pears; (2) the 2000–2001 fiscal period

begins on July 1, 2000, and the

marketing order requires that the rate of

assessment for each fiscal period apply

to all assessable fresh Bartlett pears

handled during such fiscal period; (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; and (4) this interim

final rule provides a 60-day comment

period, and all comments timely

received will be considered prior to

finalization of this rule.

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 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:

§ 931.231 Assessment rate.

On and after July 1, 2000, an

assessment rate of $0.02 per western

standard pear box is established for the

Northwest Fresh Bartlett Pear Marketing

Committee.

Dated: June 27, 2000.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable

Programs.

[FR Doc. 00–16990 Filed 7–5–00; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF THE TREASURY

Office of the Comptroller of the

Currency

12 CFR Part 5

[Docket No. 00–14]

RIN 1557–AB86

Other Equity Investments

AGENCY: Office of the Comptroller of the

Currency, Treasury.

ACTION: Final rule.

SUMMARY: The Office of the Comptroller

of the Currency (OCC) is making a

technical correction to its regulation on

non-controlling equity investments to

clarify that a national bank that wishes

to use the notice procedure to make a

non-controlling investment in an

enterprise must certify that its loss

exposure is limited, as a legal and

accounting matter, and that it does not

have open-ended liability for the

obligations of the enterprise.

EFFECTIVE DATE: July 6, 2000.

FOR FURTHER INFORMATION CONTACT:

Stuart Feldstein, Assistant Director, or

Karl Betz, Attorney, Legislative and

Regulatory Activities Division, (202)

874–5090, Office of the Comptroller of

the Currency, 250 E Street, SW,

Washington, DC, 20219.

SUPPLEMENTARY INFORMATION:

Description of Change

On March 10, 2000 the OCC

published a final rule titled ‘‘Financial

Subsidiaries and Operating

Subsidiaries.’’ 65 FR 12905. The final

rule amended 12 CFR 5.36, ‘‘Other

equity investments,’’ to provide a

streamlined, after-the-fact notice

procedure for national banks making

non-controlling investments in

enterprises engaging in specified

activities. As part of the notice process,

the applicant must certify that it has

satisfied the standards and conditions

that the OCC applies to investments of

this type.1 These standards and

conditions are established by OCC

precedents approving non-controlling

investments.2

The final rule omitted from the notice

procedure one standard contained in

these precedents. In order to clarify that

all of the standards and conditions

contained in OCC precedent approving

non-controlling investments apply to

non-controlling investments that are

eligible for the after-the-fact notice

procedure, we are amending § 5.36(e) to

conform the requirements of the notice

procedure with those of the precedents

on which it is based. Accordingly, this

rule adds the requirement that a

national bank certify that its loss

exposure is limited, as a legal and

accounting matter, and that the bank

does not have open-ended unlimited

liability for the obligations of the

enterprise. The rule is published in final

form and takes effect immediately upon

publication in the Federal Register.

Administrative Procedure Act—Notice

and Comment

Pursuant to section 553(b)(B) of the

Administrative Procedure Act (APA), 5

U.S.C. 553(b)(B), the OCC finds good

cause for dispensing with the

requirements for notice and an

opportunity for public comment that the

APA would otherwise require. This

technical correction conforms the rule

with the governing standards that have

been available in published OCC

precedent for some time. By removing

an apparent inconsistency with the

precedents in this area, the rule avoids

the confusion, and the potential for the

filing of incomplete notices, that may

otherwise occur when banks compare

the requirements of the rule with those

in the precedents.

Effective Date

The APA generally requires that a

final rule take effect 30 days after

publication in the Federal Register. 5

U.S.C. 553(d). Similarly, section 302 of

the Riegle Community Development and

Regulatory Improvement Act of 1994

(CDRI Act) generally requires that a final

rule issued by a Federal banking agency

take effect on the first day of the first

calendar quarter that begins on or after

the date on which the regulation is

published in final form. 12 U.S.C.

4802(b)(1). Both requirements are

subject to a good cause exception.

For the reasons previously explained,

the OCC finds good cause for making

this amendment to 12 CFR 5.36(e)

effective immediately upon publication.

Delaying the effective date of the

amendment will delay national banks’

ability to rely with certainty on the

notice process for non-controlling

investments and thus impede the rule’s

purpose of facilitating national banks’

ability to make non-controlling