This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

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REGISTER issue of each week.

Rules and Regulations Federal Register

66495

Vol. 62, No. 244

Friday, December 19, 1997

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Docket No. FV97–927–1 FIR]

Winter Pears Grown in Oregon and

Washington; Increased 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 increased the assessment rate

established for the Winter Pear Control

Committee (Committee) under

Marketing Order No. 927 for the 1997–

98, and subsequent fiscal periods. The

Committee is responsible for local

administration of the marketing order

which regulates the handling of winter

pears grown in Oregon and Washington.

Authorization to assess winter 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. The marketing order was

amended recently and California was

removed from the production area.

EFFECTIVE DATE: January 20, 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

and Order No. 927, both as amended (7

CFR part 927; 62 FR 60999, November

14, 1997), regulating the handling of

winter 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.’’

Effective November 17, 1997, the

marketing agreement and order were

amended by removing the State of

California from the production area. The

production area now covers the States of

Oregon and Washington.

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, winter 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 winter 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 an

assessment rate established for the

Committee for the 1997–98, and

subsequent fiscal periods of $0.44 per

standard box of winter 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 winter 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 30, 1997,

and unanimously recommended 1997–

98 expenditures of $8,066,790 and an

assessment rate of $0.44 per standard

box of winter pears. In comparison, last

year’s budgeted expenditures were

$5,502,979. The assessment rate of $0.44

is $0.035 more than the rate previously

in effect. The Committee discussed

alternatives to this rule, including

alternative expenditure levels, but

decided that an assessment rate of less

than $0.44 would not generate the

income necessary to administer the

program with an adequate reserve. An

assessment rate of more than $0.44

would have resulted in a reserve that

exceeded the level the Committee

believes is necessary to administer the

program.

The assessment rate recommended by

the Committee was derived by dividing
66496 Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations

anticipated expenses by expected

shipments of winter pears. Applying the

$0.44 per standard box rate of

assessment to the Committee’s

17,310,000 standard box shipment

estimate should provide $7,616,400 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 (approximately

$268,000) will be kept within the

maximum permitted by the order (one

fiscal period’s expenses; § 927.42).

Major expenditures recommended by

the Committee for the 1997–98 include

$7,010,550 for paid advertising,

$346,200 for improvement of winter

pears (production research), $161,549

for salaries, and $75,000 for industry

development. Budgeted expenses for

these items in 1996–97 were $4,674,675,

$249,316, $154,387, and $75,000,

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

25, 1997, and those for subsequent fiscal

periods will be reviewed and, as

appropriate, approved by the

Department.

A final rule amending the order was

published in the Federal Register on

November 14, 1997 (62 FR 60999). One

of the amendments removed California

from the production area effective

November 17, 1997. The removal of

California from the order is expected to

have minimal effect on the Committee’s

anticipated revenue from assessments,

and on expenses. Shipments of winter

pears from California averaged 548,691

standard boxes or approximately four

percent of the total winter pear

shipments during the prior five year

period. Assessments on shipments of

winter pears from Oregon and

Washington, along with interest income

and funds from the Committee’s

authorized reserve, will be adequate to

meet Committee expenses.

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.

Since the interim final rule was

issued, the Department has received

new figures on the number of producers

and handlers in the production area.

There are now approximately 1,700

producers of winter pears in the

production area and approximately 93

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 winter

pear producers and handlers may be

classified as small entities.

This rule continues in effect an

increased 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 $8,066,790,

and an assessment rate of $0.44 per

standard box of winter pears. The

assessment rate of $0.44 is $0.035 more

than the rate previously in effect. Winter

pear shipments for the year are

estimated at 17,310,000 standard boxes,

which should provide $7,616,400 in

assessment income. Income derived

from handler assessments on shipments

of winter pears from Oregon and

Washington, along with interest income

and funds from the Committee’s

authorized reserve, will be adequate to

cover budgeted expenses. Funds in the

reserve (approximately $268,000) will

be kept within the maximum permitted

by the order (one fiscal period’s

expenses; § 927.42).

The Committee discussed alternatives

to this rule, including alternative

expenditure levels. Lower assessment

rates were considered, but not

recommended because they would not

generate the income necessary to

administer the program with an

adequate reserve. An assessment rate of

more than $0.44 would have resulted in

a reserve that exceeded the level the

Committee believes is necessary to

administer the program.

Major expenditures recommended by

the Committee for the 1997–98 include

$7,010,550 for paid advertising,

$346,200 for improvement of winter

pears (production research), $161,549

for salaries, and $75,000 for industry

development. Budgeted expenses for

these items in 1996–97 were $4,674,675,

$249,316, $154,387, and $75,000,

respectively. The increase in paid

advertising is needed to help the

industry market this season’s crop,

which is significantly larger than last

year’s crop. A lower level of funding for

paid advertising was ruled out by the

Committee because it felt that a more

aggressive advertising program was

needed this season to market the large

crop. The increased level for production

research provides funds for current and

anticipated research in 1997–98. The

increase in salaries provides funds for

staff salary adjustments.

Recent price information indicates

that the grower price for the 1997–98

season will range between $4.82 and

$11.81 per standard box of winter pears.

Therefore, the estimated assessment

revenue for the 1997–98 fiscal period as

a percentage of total grower revenue

will range between 4 and 9 percent.

This action will increase 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 winter 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 30, 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
Federal Register / Vol. 62, No. 244 / Friday, December 19, 1997 / Rules and Regulations 66497

winter 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.

The interim final rule concerning this

action was published in the Federal

Register (62 FR 44202) on August 20,

1997, and requested comments to be

received by September 21, 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 927

Marketing agreements, Pears,

Reporting and recordkeeping

requirements.

PART 927—WINTER PEARS GROWN

IN OREGON AND WASHINGTON

Accordingly, the interim final rule

amending 7 CFR part 927 which was

published at 62 FR 44202 on August 20,

1997, is adopted as a final rule without

change.

Dated: December 15, 1997.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable

Programs.

[FR Doc. 97–33168 Filed 12–18–97; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 948

[Docket No. FV97–948–1 FIR]

Irish Potatoes Grown in Colorado;

Change in Handling Regulation for

Area No. 2

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 changed the size requirement

from a 2 inch minimum diameter or 4

ounce minimum weight to a 17⁄8 inch

minimum diameter for Centennial

Russet variety potatoes grown in Area

No. 2 of Colorado. The size requirement

for Centennial Russets had been larger

than the requirement for similar long

varieties. The change recognized the

similarity among all long varieties and

provided potato handlers with more

marketing flexibility, growers with

increased returns, and consumers with

a greater supply of potatoes.

EFFECTIVE DATE: January 20, 1998.

FOR FURTHER INFORMATION CONTACT:

Dennis L. West, Northwest Marketing

Field Office, Marketing Order

Administration Branch, F&V, AMS,

USDA, 1220 SW Third Avenue, room

369, Portland, Oregon 97204; telephone:

(503) 326–2724, Fax: (503) 326–7440, or

Anne M. Dec, Marketing Order

Administration Branch, F&V, 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. 97 and Marketing Order No. 948 (7

CFR part 948), both as amended,

regulating the handling of Irish potatoes

grown in Colorado. The marketing

agreement and order are authorized by

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. This rule is not intended to

have retroactive effect. 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. A

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 date of the entry

of the ruling.

The interim rule relaxed the size

requirement for Centennial Russet

variety potatoes grown in Area No. 2

from the current 2 inch minimum

diameter or 4-ounce minimum weight to

a 17⁄8 inch minimum diameter with no

minimum weight option. This change

enabled handlers to market a larger

portion of the crop in fresh market

outlets and improved the marketing of

Colorado potatoes. Further, all Russet

varieties are now required to meet the

same size specifications.

Section 948.22 (7 CFR 948.22)

authorizes the issuance of regulations

for grade, size, quality, maturity, and

pack for any variety or varieties of

potatoes grown in different portions of

the production area during any period.

Section 948.4 of the order defines the

counties included in Area No. 2, which

is commonly known as the San Luis

Valley. The Colorado Potato

Administrative Committee, San Luis

Valley Office (Area No. 2) (Committee),

is the agency responsible for local

administration of the Federal marketing

order in Area No. 2.

Size regulations for potatoes grown in

Area No. 2 are currently in effect under

§ 948.386. Centennial Russet variety

potatoes had to be 2 inches minimum

diameter or 4 ounces minimum weight.

Other long varieties, which include

other Russet varieties, had to be 17⁄8

inch minimum diameter with no

minimum weight option. The interim

final rule amended that section by

removing the weight requirement option

for Centennial Russets and reducing the

minimum diameter requirement for

Centennial Russets to 17⁄8 inches. Thus,

all Russet varieties are now required to

meet the same minimum diameter. The

Committee unanimously recommended

this change at its August 21, 1997,

meeting.

When the previous size regulations

were established, the Centennial Russet

was the dominant variety in the San

Luis Valley (Area No. 2), accounting for

approximately 65–75 percent of the

crop. The other major Russet variety

grown in the San Luis Valley was the

Russet Burbank, a slimmer potato which

was required to meet the 17⁄8 inch

minimum diameter. Today, the Russet