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

34 

Vol. 78, No. 1 

Wednesday, January 2, 2013 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 927 

[Doc. No. AMS–FV–12–0030; FV12–927–1 

PR] 

Pears Grown in Oregon and 

Washington; Modification of the 

Assessment Rate for Fresh Pears 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This rule would increase 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 would decrease 

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 which 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 would remain in effect indefinitely 

unless modified, suspended, or 

terminated. 

DATES: Comments must be received by 

January 14, 2013. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this rule. Comments must be 

sent to the Docket Clerk, Marketing 

Order and Agreement Division, Fruit 

and Vegetable Program, AMS, USDA, 

1400 Independence Avenue SW., STOP 

0237, Washington, DC 20250–0237; Fax: 

(202) 720–8938; or Internet: http:// 

www.regulations.gov. Comments should 

reference the document 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.regulations.gov. All 

comments submitted in response to this 

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: 

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 Laurel May, 

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: 

Laurel.May@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 

proposed herein would 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 would increase 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 would decrease 

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 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 


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Federal Register / Vol. 78, No. 1 / Wednesday, January 2, 2013 / Proposed Rules 35 

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 

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) would 

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 

would be added to the reserve for an 

estimated reserve of $1,088,985 on June 

30, 2013, which would be within the 

maximum permitted by the order of 

approximately one fiscal period’s 

operational expenses (§ 927.42). 

The proposed assessment rate would 

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 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 

USDA. Committee meetings are open to 

the public and interested persons may 

express their views at these meetings. 

USDA 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 2012–2013 budget and 

those for subsequent fiscal periods 

would be reviewed and, as appropriate, 

approved by USDA. 

Initial 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 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. 

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 the 

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 would increase 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 would 

decrease 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 proposed 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 


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36 Federal Register / Vol. 78, No. 1 / Wednesday, January 2, 2013 / Proposed Rules 

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 box or equivalent 

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) and interest 

and miscellaneous income ($20,000) 

would 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 current level for summer/fall and 

winter pears was initially considered, 

but not recommended. Although 

considered, the Committee believes that 

the current 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 would modify 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. These costs would be offset 

by the benefits derived by the operation 

of the marketing order. On the other 

hand, decreasing the winter pear 

assessment rate would reduce 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. 

Finally, interested persons are invited to 

submit comments on this proposed rule, 

including the regulatory and 

informational 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 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 proposed rule would impose no 

additional reporting or recordkeeping 

requirements on either small or large 

Oregon-Washington 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. 

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. 

USDA 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: www.ams.usda.gov/ 

MarketingOrdersSmallBusinessGuide. 

Any questions about the compliance 

guide should be sent to Laurel May at 

the previously mentioned address in the 

FOR FURTHER INFORMATION CONTACT

section. 

A 10-day comment period is provided 

to allow interested persons to respond 

to this proposed rule. Ten days is 

deemed appropriate because: (1) The 

2012–2013 fiscal period begins 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 proposed rule would 

decrease 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. 

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 proposed to 

be 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: December 26, 2012. 

David R. Shipman, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2012–31516 Filed 12–31–12; 8:45 am] 

BILLING CODE 3410–02–P 


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