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###### Department of Agriculture

###### Agricultural Marketing Service 

          - 7 CFR Part 931 
          - [Docket No. FV00-931-1 FIR] 

# AGENCY:

Agricultural Marketing Service, USDA. 

# ACTION:

Final rule. 

# SUMMARY:

The Department of Agriculture (Department) is adopting, as a final rule, with a minor change, the provisions of an interim final rule which decreased 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 that 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 began on July 1 and ends June 30. The assessment rate will continue in effect indefinitely unless modified, suspended, or terminated. 

# EFFECTIVE DATE:

December 1, 2000. 

# 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: (202) 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 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 continues to decrease 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 previously in effect and will reduce the financial burden on handlers. At the previous 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 have exceeded 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                           ( print page 65254)                        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. 

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 approximately $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 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 Department has reviewed and approved the Committee's 2000-2001 budget and will review those for subsequent fiscal periods and approve them as appropriate. 

To facilitate communications between the Committee and growers, handlers, and other interested persons, this final rule also updates § 931.110 to include the Committee's current address. The information collection requirements for this order are currently approved under OMB No. 0581-0092 by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). 

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 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. 

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 of 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 continues to decrease 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 previously 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 have exceeded 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 approximately $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 producer 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 producer 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. 

                    This action imposes no additional reporting or recordkeeping requirements on either small or large fresh Bartlett pear handlers. As with all Federal marketing order programs, reports and                           ( print page 65255)                        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. 

                    An interim final rule concerning this action was published in the                     **Federal Register**                     on July 6, 2000 (65 FR 41557). Copies of that rule were also mailed or sent via facsimile to all Committee members. Finally, the interim final rule was made available through the Internet by the Office of the Federal Register. A 60-day comment period was provided for interested persons to respond to the interim final rule. The comment period ended on September 5, 2000, and no comments were 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/​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 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 931

      - Marketing agreements
      - Pears
      - Reporting and recordkeeping requirements

Accordingly, the interim final rule amending 7 CFR part 931 which was published at 65 FR 41557 on July 6, 2000, is adopted as a final rule and an additional amendment is made to part 931 as set forth below. 

# 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 931.110 is revised to read as follows: 

§ 931.110

Unless otherwise specifically prescribed in this subpart, or in the marketing agreement and order, or unless otherwise required by the Committee, all reports, applications, submittals, requests, inspection certificates, and communications in connection with the marketing agreement or order shall be forwarded to: Northwest Fresh Bartlett Pear Marketing Committee 4382 SE International Way, Suite A, Milwaukie, OR 97222-4635. 

Dated: October 6, 2000. 

Robert C. Keeney, 

Deputy Administrator, Fruit and Vegetable Programs. 

[FR Doc. 00-27977 Filed 10-31-00; 8:45 am] 

BILLING CODE 3410-02-P