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[Federal Register Volume 76, Number 168 (Tuesday, August 30, 2011)]
[Rules and Regulations]
[Pages 53811-53813]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-22115]

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Rules and Regulations
                                                Federal Register
________________________________________________________________________

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 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
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Federal Register / Vol. 76, No. 168 / Tuesday, August 30, 2011 / 
Rules and Regulations

[[Page 53811]]

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Doc. No. AMS-FV-11-0070 FV11-927-3 IR]

Pears Grown in Oregon and Washington; Assessment Rate Decrease 
for Processed Pears

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule decreases the assessment rate established for the 
Processed Pear Committee (Committee) for the 2011-2012 and subsequent 
fiscal periods from $8.41 to $7.73 per ton of summer/fall processed 
pears. The Committee locally administers the marketing order which 
regulates the handling of processed pears grown in Oregon and 
Washington. Assessments upon handlers of Oregon-Washington processed 
pears 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 August 31, 2011. Comments received by October 31, 
2011, will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
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 Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone: (503) 326-
2724, Fax: (503) 326-7440, or E-mail: 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 Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 
720-2491, Fax: (202) 720-8938, or E-mail: 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 issued herein will be applicable to all 
assessable summer/fall processed pears beginning July 1, 2011, 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 decreases the assessment rate established for the 
Committee for the 2011-2012 and subsequent fiscal periods from $8.41 to 
$7.73 per ton for summer/fall processed pears handled. The assessment 
rate for ``winter'' and ``other'' pears for processing would remain 
unchanged at a zero rate.
    The 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 processed pear program. The members of 
the Committee are producers, handlers, and processors of Oregon-
Washington processed 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 2009-2010 and subsequent fiscal periods, the Committee 
unanimously recommended, and USDA approved, the following three base 
rates of assessment: (a) $8.41 per ton for any or all varieties or 
subvarieties of pears for canning classified as ``summer/fall'', 
excluding pears for other methods of processing; (b) $0.00 per ton for 
any or all varieties or subvarieties of pears for processing classified 
as ``winter''; and (c) $0.00 per ton for any or all varieties or 
subvarieties of pears for processing classified as ``other''. The 
assessment rate for ``summer/fall'' pears applies only to pears for 
canning and excludes pears for other methods of processing as defined 
in Sec.  927.15, which includes

[[Page 53812]]

pears for concentrate, freezing, dehydrating, pressing, or in any other 
way to convert pears into a processed product. This rate 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 June 2, 2011, and unanimously recommended 
2011-2012 expenditures of $926,933 and an assessment rate of $7.73 per 
ton for summer/fall processed pears handled. In comparison, last year's 
budgeted expenditures were $1,038,258. The assessment rate of $7.73 is 
$0.78 lower than the rate previously in effect. The Committee 
recommended the assessment rate decrease because the summer/fall 
processed pear promotion budget was reduced.
    The major expenditures recommended by the Committee for the 2011-
2012 fiscal period include $759,000 for promotion and paid advertising, 
$117,243 for research programs, $24,000 for contracted administration 
by Washington State Fruit Commission, and $12,500 for market access and 
trade policy. In comparison, major expenses for the 2010-2011 fiscal 
period included $846,500 for promotion and paid advertising, $140,658 
for research programs, $24,200 for contracted administration by 
Washington State Fruit Commission, and $11,400 for market access and 
trade policy.
    The Committee based its recommended assessment rate for processed 
pears on the 2011-2012 summer/fall processed pear crop estimate, the 
2011-2012 program expenditure needs, and the current and projected size 
of its monetary reserve. Applying the $7.73 per ton rate to the 
Committee's 120,000 ton summer/fall processed pear crop estimate should 
provide $927,600 in assessment income. Thus, income derived from 
summer/fall processed pear handler assessments, and interest and other 
income ($500) would be adequate to cover the recommended $926,933 
budget for 2011-2012. Funds in the reserve were $467,501 as of June 30, 
2010. The Committee estimates that $98,055 will be added to the reserve 
for 2010-2011. Thus, the Committee estimates a reserve of $565,556 on 
June 30, 2011, For 2011-2012, the Committee estimates that $1,167 will 
be added to the reserve for an estimated reserve of $566,723 on June 
30, 2012, which would be within the maximum permitted by the order of 
approximately one fiscal period's operational expenses (Sec.  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 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 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 2011-2012 budget and those 
for subsequent fiscal periods will 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 1,500 growers of processed pears in the 
regulated production area and approximately 51 handlers of processed 
pears subject to regulation under the order. Small agricultural growers 
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 2010 Preliminary Summary 
issued in January 2011 by the National Agricultural Statistics Service, 
the total farm-gate value of summer/fall processed pears grown in 
Oregon and Washington for 2010 was $76,427,000. Based on the number of 
processed pear growers in the Oregon and Washington, the average gross 
revenue for each grower can be estimated at approximately $50,951. 
Furthermore, based on Committee records, the Committee has estimated 
that all of the Northwest pear handlers currently ship less than 
$7,000,000 worth of processed pears each on an annual basis. From this 
information, it is concluded that the majority of growers and handlers 
of Oregon and Washington processed pears may be classified as small 
entities.
    There are five processing plants in the production area, with one 
in Oregon and four in Washington. All five processors would be 
considered large entities under the SBA's definition of small 
businesses.
    This rule decreases the assessment rate established for the 
Committee and collected from handlers for the 2011-2012 and subsequent 
fiscal periods from $8.41 to $7.73 per ton for processed pears handled. 
The Committee unanimously recommended 2011-2012 expenditures of 
$926,933 and an assessment rate of $7.73 per ton for summer/fall 
processed pears. The assessment rate of $7.73 is $0.78 lower than the 
previous rate. The Committee recommended the assessment rate decrease 
because the summer/fall processed pear promotion budget was reduced.
    The quantity of assessable processed pears for the 2011-2012 fiscal 
period is estimated at 120,000 tons. Thus, the $7.73 rate should 
provide $927,600 in assessment income. Income derived from summer/fall 
processed pear handler assessments, and interest and other income 
($500) would be adequate to cover the budgeted expenses.
    The major expenditures recommended by the Committee for the 2011-
2012 fiscal period include $759,000 for promotion and paid advertising, 
$117,243 for research programs, $24,000 for contracted administration 
by Washington State Fruit Commission, and $12,500 for market access and 
trade policy. In comparison, major expenses for the 2010-2011 fiscal 
period included $846,500 for promotion and paid advertising, $140,658 
for research programs, $24,200 for contracted administration by 
Washington State Fruit Commission, and $11,400 for market access and 
trade policy.
    The Committee discussed alternate rates of assessment, but 
determined that the recommended assessment rate would be sufficient to 
fund the 2011-2012 summer/fall processed pear programs.

[[Page 53813]]

    A review of historical information and preliminary information 
pertaining to the upcoming fiscal period indicates that the Oregon-
Washington grower price for the 2011-2012 fiscal period could range 
between $216 and $283 per ton of processed pears. Therefore, the 
estimated assessment revenue for the 2011-2012 fiscal period as a 
percentage of total grower revenue could range between 3.58 and 2.73 
percent.
    This action decreases 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, 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 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 June 2, 
2011, 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 interim rule, including 
the regulatory and informational impacts of this action on small 
businesses.
    In accordance with the Paperwork Reduction Act of 1991 (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 action imposes no additional reporting or recordkeeping 
requirements on either small or large Oregon-Washington 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.
    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: http://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.
    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 upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect, and 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 2011-2012 fiscal period began on July 1, 
2011, 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) this action decreases the assessment rate for 
assessable processed pears beginning with the 2011-2012 fiscal period; 
(3) 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; and (4) this interim rule provides a 
60-day comment period, and all comments timely received will be 
considered prior to finalization of this rule.

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

0
1. The authority citation for 7 CFR part 927 continues to read as 
follows:

    Authority:  7 U.S.C. 601-674.

0
2. In Sec.  927.237, the introductory text and paragraph (a) are 
revised to read as follows:

Sec.  927.237   Processed pear assessment rate.

    On and after July 1, 2011, the following base rates of assessment 
for pears for processing are established for the Processed Pear 
Committee:
    (a) $7.73 per ton for any or all varieties or subvarieties of pears 
for canning classified as ``summer/fall'' excluding pears for other 
methods of processing;
* * * * *

    Dated: August 19, 2011.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2011-22115 Filed 8-29-11; 8:45 am]
BILLING CODE 3410-02-P
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