This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

83870 

Vol. 88, No. 230 

Friday, December 1, 2023 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 927 

[Doc. No. AMS–SC–23–0037] 

Pears Grown in Oregon and 

Washington; Increased Assessment 

Rate for Processed Pears 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would 

implement a recommendation from the 

Processed Pear Committee (Committee) 

to increase the assessment rate 

established for the 2023–2024 fiscal 

period and subsequent fiscal periods. 

The proposed assessment rate would 

remain in effect indefinitely unless 

modified, suspended, or terminated. 

DATES: Comments must be received by 

January 2, 2024. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this proposed rule. 

Comments can be sent to the Docket 

Clerk, Market Development Division, 

Specialty Crops Program, AMS, USDA, 

1400 Independence Avenue SW, STOP 

0237, Washington, DC 20250–0237. 

Comments may also be submitted to the 

Docket Clerk electronically by Email: 

MarketingOrderComment@usda.gov or 

via the internet at: https://

www.regulations.gov. Comments should 

reference the document number and the 

date and page number of this issue of 

the Federal Register and can be viewed 

at: https://www.regulations.gov. 

Comments submitted in response to this 

proposed rule will be included in the 

record and will be made available to the 

public. Please be advised that the 

identity of the individuals or entities 

submitting the comments will be made 

public on the internet at the address 

provided above. 

FOR FURTHER INFORMATION CONTACT: Dale 

Novotny, Marketing Specialist, or Gary 

Olson, Chief, West Region Branch, 

Market Development Division, Specialty 

Crops Program, AMS, USDA; 

Telephone: (503) 326–2724, or Email: 

DaleJ.Novotny@usda.gov or 

GaryD.Olson@usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Richard Lower, 

Market Development Division, Specialty 

Crops Program, AMS, USDA, 1400 

Independence Avenue SW, STOP 0237, 

Washington, DC 20250–0237; 

Telephone: (202) 720–8085, or Email: 

Richard.Lower@usda.gov. 

SUPPLEMENTARY INFORMATION: This 

action, pursuant to 5 U.S.C. 553, 

proposes to amend regulations issued to 

carry out a marketing order as defined 

in 7 CFR 900.2(j). This proposed 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 of pears 

operating within the area of production, 

and a public member. 

The Agricultural Marketing Service 

(AMS) is issuing this proposed rule in 

conformance with Executive Orders 

12866, 13563, and 14094. Executive 

Orders 12866 and 13563 direct agencies 

to assess all costs and benefits of 

available regulatory alternatives and, if 

regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects, distributive impacts 

and equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. Executive Order 

14094 reaffirms, supplements, and 

updates Executive Order 12866 and 

further directs agencies to solicit and 

consider input from a wide range of 

affected and interested parties through a 

variety of means. This proposed action 

falls within a category of regulatory 

actions that the Office of Management 

and Budget (OMB) exempted from 

Executive Order 12866 review. 

This proposed rule has been reviewed 

under Executive Order 13175, 

Consultation and Coordination with 

Indian Tribal Governments, which 

requires Federal agencies to consider 

whether their rulemaking actions would 

have Tribal implications. The AMS has 

determined that this proposed rule is 

unlikely to have substantial direct 

effects on one or more Indian Tribes, on 

the relationship between the Federal 

Government and Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. 

This proposed rule has been reviewed 

under Executive Order 12988—Civil 

Justice Reform. Under the Order now in 

effect, pear handlers are subject to 

assessments. Funds to administer the 

Order are derived from such 

assessments. It is intended that the 

assessment rate would be applicable to 

all assessable ‘‘summer/fall’’ pears for 

canning for the 2023–2024 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 the U.S. Department of Agriculture 

(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. 

This proposed rule would increase 

the assessment rate for ‘‘summer/fall’’ 

varieties of pears for canning handled 

under the Order from $7.15 per ton, the 

rate that was established for the 2018– 

2019 fiscal period and subsequent fiscal 

periods, to $7.50 per ton for the 2023– 

2024 fiscal period and subsequent fiscal 

periods. 

The Order authorizes the Committee, 

with the approval of AMS, to formulate 

an annual budget of expenses and 

collect assessments from handlers to 

administer the program. The members 


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Federal Register / Vol. 88, No. 230 / Friday, December 1, 2023 / Proposed Rules 83871 

of the Committee are familiar with the 

Committee’s needs and with the costs of 

goods and services in their local area 

and are able to formulate an appropriate 

budget and assessment rate. The 

assessment rate is formulated and 

discussed in a public meeting, and all 

directly affected persons have an 

opportunity to participate and provide 

input. 

For the 2018–2019 fiscal period and 

subsequent fiscal periods, the 

Committee recommended, and AMS 

approved, an assessment rate of $7.15 

per ton of ‘‘summer/fall’’ varieties of 

pears for canning handled (83 FR 

62451). That rate continues in effect 

from fiscal period to fiscal period until 

modified, suspended, or terminated by 

AMS upon recommendation and 

information submitted by the 

Committee or other information 

available to AMS. 

The Committee met on June 8, 2023, 

and unanimously recommended 2023– 

2024 fiscal period expenditures of 

$607,532 and an assessment rate of 

$7.50 per ton of ‘‘summer/fall’’ varieties 

of pears for canning handled for the 

2023–2024 fiscal period and subsequent 

fiscal periods. In comparison, last year’s 

budgeted expenditures were $594,130. 

The proposed assessment rate of $7.50 

per ton is $0.35 higher than the rate 

currently in effect. The Committee 

recommended increasing the assessment 

rate to better fund operations using 

assessment revenue and reduce the 

reliance on reserve funds. The 

Committee has drawn down its financial 

reserve in recent years to cover 

Committee expenses and to reduce the 

reserve so as to not exceed 

approximately one fiscal period’s 

budgeted expenses, in conformance 

with the Order (7 CFR 927.42(a)). The 

Committee projects handler receipts of 

78,000 tons of assessable ‘‘summer/fall’’ 

varieties of pears for canning for the 

2023–2024 fiscal period, which is 7,288 

more than was projected for the 2022– 

2023 fiscal period. 

The major expenditures 

recommended by the Committee for the 

2023–2024 fiscal period include 

$492,595 for marketing, promotions, 

and paid advertising; $73,337 for 

research; $25,000 for promotion 

management fees; and $16,600 for 

Committee administrative expenses. 

Budgeted expenditures for the 2022– 

2023 fiscal period were $483,300, 

$66,530, $25,000, and $21,396, 

respectively. 

Processed pears for canning are 

marketed throughout the calendar year. 

The expected 78,000-ton 2023 crop 

would generate $585,000 in assessment 

revenue at the proposed assessment rate 

(78,000 tons of assessable ‘‘summer/ 

fall’’ varieties of pears for canning 

multiplied by $7.50 per ton assessment 

rate). The remaining $22,532 needed to 

cover budgeted expenditures would 

come from reserve funds carried over 

from previous fiscal periods and $100 in 

interest income. The 2023–2024 fiscal 

period assessment rate increase should 

be appropriate to ensure the Committee 

has sufficient revenue, along with its 

reserve, to fully fund its recommended 

2023–2024 fiscal period budgeted 

expenditures and maintain a level of 

reserve funds that the Committee 

believes is appropriate. 

The Committee derived the 

recommended assessment rate by 

considering anticipated fiscal period 

expenses, an estimated 2023 crop 

volume of 78,000 tons of assessable 

‘‘summer/fall’’ varieties of pears for 

canning, and the amount of funds 

available in the authorized reserve. 

Income derived from handler 

assessments ($585,000) and funds from 

the Committee’s authorized reserve 

($22,432) along with interest income 

($100) are expected to be adequate to 

cover budgeted expenses ($607,532). 

The proposed assessment rate would 

continue in effect indefinitely unless 

modified, suspended, or terminated by 

AMS 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 AMS. Committee 

meetings are open to the public and 

interested persons may express their 

views at these meetings. AMS 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 2023–2024 

fiscal period budget, and those for 

subsequent fiscal periods, will be 

reviewed and, as appropriate, approved 

by AMS. 

Initial Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) (5 

U.S.C. 601–612), AMS has considered 

the economic impact of this proposed 

rule on small entities. Accordingly, 

AMS prepared this initial 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 34 

handlers of processed pears subject to 

regulation under the Order. Small 

agricultural growers of processed pears 

are defined by the Small Business 

Administration (SBA) as those having 

annual receipts equal to or less than 

$3.5 million, and small agricultural 

service firms are defined as those whose 

annual receipts are equal to or less than 

$34 million (13 CFR 121.201). 

According to the National 

Agricultural Statistics Service (NASS), 

the average annual grower price 

received for processed pears in 

Washington and Oregon was $361 per 

ton (2022). Total production of pears for 

canning for the 2022 season was 

reported by the Committee to be 74,131 

tons. Using the average grower price 

from 2022, the most recent years for 

which there is NASS data, the total 2022 

crop value of pears grown for processing 

in Oregon and Washington was 

$26,761,291 (74,131 tons multiplied by 

$361 per ton). Dividing the crop value 

by the estimated number of growers 

(1,500) yields an estimated average 

receipt per grower of $17,841, which is 

well below the SBA threshold for small 

growers. 

Given the relatively small total 

farmgate value of pears for processing 

produced in the production area 

($26,761,291), it is probable that most, 

if not all, of the pear processors 

regulated by the Order would be 

considered small entities. Dividing the 

$26,761,291 estimated crop value by the 

number of handlers of processed pears 

(34) equals $787,097. AMS has not 

identified a direct third-party reference 

for estimating processed pear 

manufacturing margins. Without direct 

third-party information regarding the 

industry, determination of the number 

of large and small processors using the 

SBA’s definition would be difficult. 

However, given the low average crop 

value of pears for processing ($787,097) 

it may be assumed that most, if not all, 

of the handlers of processed pears 

would have annual receipts below the 

SBA threshold for small agricultural 

service firms ($34 million). Therefore, 

using the above information and 


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assuming a normal distribution, most of 

the growers and handlers of pears for 

processing may be classified as small 

entities. 

This proposal would increase the 

assessment rate collected from handlers 

for the 2023–2024 fiscal period and 

subsequent fiscal periods from $7.15 to 

$7.50 per ton of Oregon and Washington 

‘‘summer/fall’’ pears for canning. The 

Committee unanimously recommended 

2023–2024 fiscal period expenditures of 

$607,532 and an assessment rate of 

$7.50 per ton of ‘‘summer/fall’’ pears for 

canning. The proposed assessment rate 

of $7.50 is $0.35 higher than the current 

rate. The Committee expects the 

industry to handle 78,000 tons of 

‘‘summer/fall’’ varieties of pears for 

canning during the 2023–2024 fiscal 

period. Thus, the $7.50 per ton rate 

should provide $585,000 in assessment 

income (78,000 tons multiplied by 

$7.50). The Committee also expects to 

use $22,532 from its financial reserve 

and $100 in interest income to cover 

remaining expenses. Income derived 

from handler assessments, along with 

reserve funds, should be adequate to 

meet budgeted expenditures for the 

2023–2024 fiscal period. 

The major expenditures 

recommended by the Committee for the 

2023–2024 fiscal period include 

$492,595 for marketing, promotions, 

and paid advertising; $73,337 for 

research; $25,000 for promotion 

management fees; and $16,600 for 

Committee administrative expenses. 

Budgeted expenditures for the 2022– 

2023 fiscal period were $483,300, 

$66,530, $25,000, and $21,396, 

respectively. 

In recent years, the Committee has 

utilized reserve funds to partially fund 

its budgeted expenditures. The 

Committee recommended increasing the 

assessment rate to better fund 2023– 

2024 fiscal period budgeted 

expenditures and refrain from 

excessively drawing down the funds 

held in its reserve. This action would 

maintain the Committee’s reserve 

balance at a level that the Committee 

believes is appropriate and is compliant 

with the provisions of the Order. 

Prior to arriving at this budget and the 

proposed assessment rate, the 

Committee discussed various 

alternatives, including maintaining the 

current assessment rate of $7.15 per ton 

and increasing the assessment rate by 

different amounts. However, the 

Committee determined that the 

recommended assessment rate would be 

able to fund most of the budgeted 

expenses and avoid drawing down 

reserves at an unsustainable rate. The 

assessment rate of $7.50 per ton of 

Oregon and Washington ‘‘summer/fall’’ 

pears for canning was derived by 

considering anticipated expenses, the 

projected volume of assessable pears for 

canning, the projected monetary balance 

held in reserve, and additional pertinent 

factors. 

A review of NASS information 

indicates that the average grower price 

for the 2022–2023 fiscal period was 

$361 per ton. Utilizing the assessment 

rate of $7.50 per ton, assessment 

revenue for the 2022–2023 fiscal period, 

as a percentage of total grower revenue, 

would have been approximately 2.08 

percent ($7.50 per ton divided by $361 

multiplied by 100). 

This proposed action would increase 

the assessment obligation imposed on 

handlers. Assessments are applied 

uniformly on all handlers, and some of 

the costs may be passed on to 

producers. However, these costs are 

expected to be offset by the benefits 

derived by the operation of the Order. 

The Committee’s meetings are widely 

publicized throughout the production 

area. The processed pear industry and 

all interested persons are invited to 

attend the meetings and participate in 

Committee deliberations on all issues. 

Like all Committee meetings, the June 8, 

2023, 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 comments on this proposed rule, 

including the regulatory and 

information collection impacts of this 

action on small businesses. 

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 would be necessary as a 

result of this proposed rule. Should any 

changes become necessary, they would 

be submitted to OMB for approval. 

This proposed rule would not impose 

any additional reporting or 

recordkeeping requirements on either 

small or large 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. 

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. 

AMS has not identified any relevant 

Federal rules that duplicate, overlap, or 

conflict with this proposed rule. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: https://

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. 

A 30-day comment period is provided 

to allow interested persons to respond 

to this proposed rule. All written 

comments timely received will be 

considered before a final determination 

is made on this proposed rule. 

List of Subjects in 7 CFR Part 927 

Marketing agreements, Pears, 

Reporting and recordkeeping 

requirements. 

For the reasons set forth in the 

preamble, the Agricultural Marketing 

Service proposes to amend 7 CFR part 

927 as follows: 

PART 927—PEARS GROWN IN 

OREGON AND WASHINGTON 

■ 1. The authority citation for 7 CFR 

part 927 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Revise § 927.237 introductory text 

and paragraph (a) to read as follows: 

§ 927.237 Processed pear assessment 

rate. 

On and after July 1, 2023, the 

following base rates of assessment for 

pears for processing are established for 

the Processed Pear Committee: 

(a) $7.50 per ton for any or all 

varieties or subvarieties of pears for 

canning classified as ‘‘summer/fall’’ 

excluding pears for other methods of 

processing; 

* * * * * 

Erin Morris, 

Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2023–26380 Filed 11–30–23; 8:45 am] 

BILLING CODE P 


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