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Rules and Regulations Federal Register

24033 

Vol. 78, No. 79 

Wednesday, April 24, 2013 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 927 

[Doc. No. AMS–FV–12–0030; FV12–927–1 

FR] 

Pears Grown in Oregon and 

Washington; Modification of the 

Assessment Rate for Fresh Pears 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule increases the 

assessment rate established for the Fresh 

Pear Committee (Committee) for the 

2012–2013 and subsequent fiscal 

periods from $0.366 to $0.449 per 

standard box or equivalent of summer/ 

fall pears handled, and decreases the 

assessment rate from $0.471 to $0.449 

per standard box or equivalent of fresh 

winter pears handled. The Committee 

locally administers the marketing order 

that regulates the handling of fresh 

pears grown in Oregon and Washington. 

Assessments upon Oregon-Washington 

fresh pear handlers are used by the 

Committee to fund reasonable and 

necessary expenses of the program. The 

fiscal period begins July 1 and ends June 

30. The assessment rate will remain in 

effect indefinitely unless modified, 

suspended, or terminated. 

DATES: Effective Date: April 25, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Teresa Hutchinson or Gary Olson, 

Northwest Marketing Field Office, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Program, 

AMS, USDA; Telephone: (503) 326– 

2724, Fax: (503) 326–7440, or Email: 

Teresa.Hutchinson@ams.usda.gov or 

GaryD.Olson@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Jeffrey Smutny, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Program, 

AMS, USDA, 1400 Independence 

Avenue SW., STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, or Email: 

Jeffrey.Smutny@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: 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, hereinafter 

referred to as the ‘‘order. ‘‘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 Department of Agriculture 

(USDA) 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, Oregon-Washington 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 pears beginning July 1, 

2012, 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. 

This rule increases the assessment 

rate established for the Committee for 

the 2012–2013 and subsequent fiscal 

periods from $0.366 to $0.449 per 

standard box or equivalent of summer/ 

fall pears handled, and decreases the 

assessment rate from $0.471 to $0.449 

per standard box or equivalent of fresh 

winter pears handled. The standard box 

or equivalent assessment rate for 

‘‘other’’ fresh pears would remain 

unchanged at $0.00. 

The Oregon-Washington pear 

marketing order provides authority for 

the Committee, with USDA’s approval, 

to formulate an annual budget of 

expenses and to collect assessments 

from handlers to administer the fresh 

pear program. The members of the 

Committee are producers and handlers 

of Oregon-Washington fresh 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 at a public meeting. Thus, all 

directly affected persons have an 

opportunity to participate and provide 

input. 

For the 2011–2012 and subsequent 

fiscal periods, the Committee 

recommended, and USDA approved, the 

following three base rates of assessment: 

(a) $0.366 per standard box or 

equivalent for any or all varieties or 

subvarieties of fresh pears classified as 

‘‘summer/fall’’; (b) $0.471 per standard 

box or equivalent for any or all varieties 

or subvarieties of fresh pears classified 

as ‘‘winter’’; and (c) $0.000 per standard 

box or equivalent for any or all varieties 

or subvarieties of fresh pears classified 

as ‘‘other’’. These base rates of 

assessment would continue in effect 

from fiscal period to fiscal period unless 

modified, suspended, or terminated by 

USDA upon recommendation and 

information submitted by the 

Committee or other information 

available to USDA. 

The Committee met on May 31, 2012, 

and unanimously recommended 2012– 

2013 expenditures of $9,166,744. To 

fund the 2012–2013 expenditures, the 

Committee also recommended an 

assessment rate of $0.449 per standard 

box or equivalent for both fresh 

summer/fall and winter pears. 

In comparison, last year’s budgeted 

expenditures were $9,301,960. The fresh 

summer/fall pear assessment rate of 

$0.449 is $0.083 higher than the rate 

currently in effect. The fresh winter pear 

assessment rate of $0.449 is $0.022 

lower than the rate currently in effect. 

The Committee recommended 

increasing the promotion and paid 


tkelley on DSK3SPTVN1PROD with RULES
24034 Federal Register / Vol. 78, No. 79 / Wednesday, April 24, 2013 / Rules and Regulations 

advertising expenditures to market the 

larger 2012–2013 fresh summer/fall pear 

crop, estimated at four percent higher 

than 2011–2012 and the five-year 

average. Accordingly, the Committee 

recommended the higher fresh summer/ 

fall pear assessment rate to fund the 

increased 2012–2013 promotion and 

paid advertising expenditures. The 

Committee estimates that the 2012–2013 

fresh winter pear crop will be nine 

percent lower than 2011–2012. 

Consequently, the Committee 

recommended lower promotion and 

paid advertising expenditures for 

marketing the reduced fresh winter pear 

crop, resulting in a lower assessment 

rate for 2012–2013. 

The major expenditures 

recommended by the Committee for the 

2012–2013 fiscal period include 

$450,274 for contracted administration 

by Pear Bureau Northwest, $635,500 for 

production research and market 

development, $6,160,000 for promotion 

and paid advertising for winter pears, 

and $1,732,500 for promotion and paid 

advertising for summer/fall pears. In 

comparison, major expenses for the 

2011–2012 fiscal period included 

$437,160 for contracted administration 

by Pear Bureau Northwest, $644,800 for 

production research and market 

development, $6,765,000 for promotion 

and paid advertising for winter pears, 

and $1,290,000 for promotion and paid 

advertising for summer/fall pears. 

The Committee based its 

recommended assessment rate for fresh 

pears on the 2012–2013 summer/fall 

and winter pear crop estimates, the 

2012–2013 program expenditure needs, 

and the current and projected size of its 

monetary reserve. Applying the $0.449 

per standard box or equivalent 

assessment rate to the Committee’s 

4,500,000 standard box or equivalent 

fresh summer/fall pear crop estimate 

should provide $2,020,500 in 

assessment income. The quantity of 

assessable fresh winter pears for the 

2012–2013 fiscal period is estimated at 

16,000,000 standard boxes or equivalent 

and should provide $7,184,000 in 

assessment income. Thus, income 

derived from winter and summer/fall 

fresh pear handler assessments 

($9,204,500) and interest and 

miscellaneous income ($20,000) will be 

adequate to cover the recommended 

$9,166,774 budget for 2012–2013. The 

Committee estimates that it will have a 

monetary reserve of $1,031,259 on June 

30, 2012. During 2012–2013, the 

Committee estimates that $57,726 will 

be added to the reserve for an estimated 

reserve of $1,088,985 on June 30, 2013, 

which will be within the maximum 

permitted by the order of approximately 

one fiscal period’s operational expenses 

(§ 927.42). 

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 2012–2013 budget and 

those 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 

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. 

There are approximately 1,580 

producers of fresh pears in the regulated 

production area and approximately 38 

handlers of fresh pears subject to 

regulation under the order. Small 

agricultural producers are defined by 

the Small Business Administration 

(SBA) (13 CFR 121.201) as those having 

annual receipts of less than $750,000, 

and small agricultural service firms are 

defined as those whose annual receipts 

are less than $7,000,000. 

According to the Noncitrus Fruits and 

Nuts 2011 Preliminary Summary issued 

in March 2012 by the National 

Agricultural Statistics Service, the total 

2011 farm-gate value of all pears grown 

in Oregon and Washington is estimated 

at approximately $275,531,000. Based 

on the number of pear producers in 

Oregon and Washington, the average 

gross revenue for each producer can be 

estimated at approximately $174,387. 

Furthermore, based on Committee 

records, the Committee has estimated 

that 56 percent of Oregon-Washington 

pear handlers currently ship less than 

$7,000,000 worth of fresh pears on an 

annual basis. From this information, it 

is concluded that the majority of 

producers and handlers of Oregon and 

Washington fresh pears may be 

classified as small entities. 

This rule increases the assessment 

rate established for the Committee and 

collected from handlers for the 2012– 

2013 and subsequent fiscal periods from 

$0.366 to $0.449 per standard box or 

equivalent of fresh summer/fall pears 

handled, and decreases the assessment 

rate from $0.471 to $0.449 per standard 

box or equivalent of fresh winter pears 

handled. The Committee unanimously 

recommended 2012–2013 expenditures 

of $9,166,774, and an assessment rate of 

$0.449 per standard box or equivalent of 

fresh summer/fall and winter pears 

handled. The assessment rate of $0.449 

is $0.083 higher than the 2011–2012 

assessment rate for summer/fall pears, 

and $0.022 lower than the 2011–2012 

assessment rate for winter pears. The 

Committee recommended increasing the 

promotion and paid advertising 

expenditures to market the larger 2012– 

2013 fresh summer/fall pear crop, 

estimated at four percent higher than 

2011–2012 and the five-year average. 

Accordingly, the Committee 

recommended the higher fresh summer/ 

fall pear assessment rate to fund the 

increased 2012–2013 promotion and 

paid advertising expenditures. The 

Committee estimates that the 2012–2013 

fresh winter pear crop will be nine 

percent lower than 2011–2012. 

Consequently, the Committee 

recommended lower promotion and 

paid advertising expenditures for 

marketing the reduced fresh winter pear 

crop, resulting in a lower assessment 

rate for 2012–2013. 

The quantity of assessable fresh 

summer/fall pears for the 2012–2013 

fiscal period is estimated at 4,500,000 

standard boxes or equivalent. Thus, the 

$0.449 rate should provide $2,020,500 

in assessment income. Applying the 

$0.449 per standard box or equivalent 

assessment rate to the Committee’s 

16,000,000 standard boxes or 

equivalent, the fresh winter pear crop 

estimate should provide $7,184,000 in 

assessment income. Income derived 

from winter and summer/fall fresh pear 

handler assessments ($9,204,500) along 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 78, No. 79 / Wednesday, April 24, 2013 / Rules and Regulations 24035 

with interest and miscellaneous income 

($20,000) will be adequate to cover the 

budgeted expenses. 

The major expenditures 

recommended by the Committee for the 

2012–2013 fiscal period include 

$450,274 for contracted administration 

by Pear Bureau Northwest, $635,500 for 

production research and market 

development, $6,160,000 for promotion 

and paid advertising for winter pears, 

and $1,732,500 for promotion and paid 

advertising for summer/fall pears. 

Budgeted expenses for these items in 

2011–2012 were $437,160, $644,800, 

$6,765,000, and $1,290,000, 

respectively. 

The Committee discussed alternatives 

to this rule. Leaving the assessment rate 

at the 2011–2012 level for summer/fall 

and winter pears was initially 

considered, but not recommended. 

Although considered, the Committee 

believes that the 2011–2012 assessment 

level for fresh summer/fall pears would 

not generate the funds necessary for the 

promotion and marketing of the larger 

fresh summer/fall pear crop. As a 

consequence, increasing it to the level 

recommended herein was determined as 

the best alternative. Similarly, the 

Committee discussed alternatives for the 

winter pear assessment rate, but 

concluded that the recommended lower 

assessment rate should generate enough 

funds for promotion and marketing of 

the smaller fresh winter pear crop. 

A review of historical information and 

preliminary information pertaining to 

the upcoming fiscal period indicates 

that the Oregon-Washington producer 

price for the 2012–2013 fiscal period 

could average $9 per standard box or 

equivalent of pears. Therefore, the 

estimated assessment revenue for the 

2012–2013 fiscal period as a percentage 

of total producer revenue is 4.99 

percent. 

This action modifies the assessment 

obligation imposed on handlers. While 

the increase in the summer/fall pear 

assessment rate may 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 are offset by the 

benefits derived by the operation of the 

marketing order. On the other hand, 

decreasing the winter pear 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 

Oregon-Washington 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 

31, 2012, 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 the Office of 

Management and Budget (OMB) and 

assigned OMB No. 0581–0189, Generic 

Fruit Crops. No changes in those 

requirements as a result of this action 

are anticipated. Should any changes 

become necessary, they would be 

submitted to OMB for approval. 

This rule imposes no additional 

reporting or recordkeeping requirements 

on either small or large OregonWashington fresh 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. As noted in the initial 

regulatory flexibility analysis, 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 January 2, 2013 (78 FR 34). 

The Committee made copies of the 

proposed rule available to all pear 

handlers. Finally, the proposal was 

made available through the Internet by 

USDA and the Office of the Federal 

Register. A 10-day comment period 

ending January 14, 2013, was provided 

for interested persons to respond to the 

proposal. No comments were received. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: www.ams.usda.gov/ 

MarketingOrdersSmallBusinessGuide. 

Any questions about the compliance 

guide should be sent to Jeffrey Smutny 

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, 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 that good cause 

exists for not postponing the effective 

date of this rule until 30 days after 

publication in the Federal Register 

because: (1) The 2012–2013 fiscal 

period began on July 1, 2012, and the 

marketing order requires that the rate of 

assessment for each fiscal period apply 

to all assessable 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; (3) the rule decreases 

the assessment rate for assessable fresh 

winter pears; and (4) 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. Also, a 10-day comment period 

was provided for in the proposed rule, 

and no comments were received. 

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 

■ 1. The authority citation for 7 CFR 

part 927 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. In § 927.236, the introductory text 

and paragraphs (a) and (b) are revised to 

read as follows: 

§ 927.236 Fresh pear assessment rate. 

On and after July 1, 2012, the 

following base rates of assessment for 

fresh pears are established for the Fresh 

Pear Committee: 

(a) $0.449 per 44-pound net weight 

standard box or container equivalent for 

any or all varieties or subvarieties of 

fresh pears classified as ‘‘summer/fall’’; 

(b) $0.449 per 44-pound net weight 

standard box or container equivalent for 

any or all varieties or subvarieties of 

fresh pears classified as ‘‘winter’’; and 

* * * * * 

Dated: April 18, 2013. 

David R. Shipman, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2013–09679 Filed 4–23–13; 8:45 am] 

BILLING CODE 3410–02–P 


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