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

39037

Vol. 63, No. 139

Tuesday, July 21, 1998

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 927

[Docket No. FV98–927–1 PR]

Winter Pears Grown in Oregon and

Washington; Increased Assessment

Rate

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Proposed rule.

SUMMARY: This rule would increase the

assessment rate established for the

Winter Pear Control Committee

(Committee) under Marketing Order No.

927 for the 1998–99 and subsequent

fiscal periods from $0.44 to $0.49 per

standard box of winter pears handled.

The Committee is responsible for local

administration of the marketing order

which regulates the handling of winter

pears grown in Oregon and Washington.

Authorization to assess winter pear

handlers enables the Committee to incur

expenses that are reasonable and

necessary to administer the program.

The 1998–99 fiscal period began 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

August 20, 1998.

ADDRESSES: Interested persons are

invited to submit written comments

concerning this rule. Comments must be

sent to the Docket Clerk, Fruit and

Vegetable Programs, AMS, USDA, Room

2525–S, P.O. Box 96456, Washington,

DC 20090–6456; Fax (202) 205–6632.

Comments should reference the docket

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.

FOR FURTHER INFORMATION CONTACT:

Teresa L. Hutchinson, Northwest

Marketing Field Office, Fruit and

Vegetable Programs, AMS, USDA, 1220

SW Third Avenue, Room 369, 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) 690–

3919, Fax: (202) 205–6632. Small

businesses may request information on

compliance with this regulation by

contacting Jay Guerber, 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) 205–6632.

SUPPLEMENTARY INFORMATION: This rule

is issued under Marketing Agreement

No. 89 and Order No. 927, both as

amended (7 CFR part 927), regulating

the handling of winter 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

(Department) 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, winter 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

winter pears beginning July 1, 1998, and

continue until modified, suspended, or

terminated. This rule would 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 would increase the

assessment rate established for the

Committee for the 1998–99 and

subsequent fiscal periods from $0.44 to

$0.49 per standard box of winter pears

handled.

The 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 Committee consists of

six producer members and six handler

members, each of whom is 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 budget and

assessment rate were discussed at a

public meeting and all directly affected

persons had an opportunity to

participate and provide input.

For the 1997–98 and subsequent fiscal

periods, the Committee recommended,

and the Department approved, an

assessment rate of $0.44 per standard

box 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 May 29, 1998,

and unanimously recommended 1998–

99 expenditures of $7,958,083 and an

assessment rate of $0.49 per standard

box of winter pears handled during the

1998–99 and subsequent fiscal periods.

In comparison, last year’s budgeted

expenditures were $8,066,790. The

assessment rate of $0.49 is $0.05 more

than the rate currently in effect. The

Committee recommended an increased

assessment rate because the current rate

would not generate enough income to

adequately administer the program. The

Committee decided that an assessment

rate of more than $0.49 would generate

income in excess of that needed to

adequately administer the program.
39038 Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 / Proposed Rules

Major expenses recommended by the

Committee for the 1998–99 fiscal period

include $6,719,500 for paid advertising,

$460,925 for unforeseen expenses,

$302,000 for improvement of winter

pears, $182,785 for salaries, and $75,000

for market development. Budgeted

expenses for these items in 1997–98

were $7,010,550, $268,632, $346,200,

$161,549, and $75,000, respectively.

The assessment rate recommended by

the Committee was derived by dividing

anticipated expenses by expected

shipments of winter pears. Winter pear

shipments for the year are estimated at

15,100,000 standard boxes, which

should provide $7,399,000 in

assessment income. Income derived

from handler assessments, along with

interest income and funds from the

Committee’s authorized reserve, will be

adequate to cover budgeted expenses.

Funds in the reserve (currently

$470,000) will be kept within the

maximum permitted by the order of

approximately one fiscal period’s

expenses (§ 927.42).

The proposed assessment rate would

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 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 the

Department. Committee meetings are

open to the public and interested

persons may express their views at these

meetings. The Department would

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 1998–99

budget and those for subsequent fiscal

periods will be reviewed and, as

appropriate, approved by the

Department.

Pursuant to requirements set forth in

the Regulatory Flexibility Act (RFA), the

Agricultural Marketing Service (AMS)

has considered the economic impact

this rule would have 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. Thus, both statutes have small

entity orientation and compatibility.

There are approximately 1,800

producers of winter pears in the

production area and approximately 90

handlers subject to regulation under the

marketing order. Small agricultural

producers have been defined by the

Small Business Administration (13 CFR

121.601) as those having annual receipts

less than $500,000 and small

agricultural service firms are defined as

those whose annual receipts are less

than $5,000,000. The majority of winter

pear producers and handlers may be

classified as small entities.

This rule would increase the

assessment rate established for the

Committee for the 1998–99 and

subsequent fiscal periods from $0.44 to

$0.49 per standard box of winter pears

handled. The Committee met on May

29, 1998, and unanimously

recommended 1998–99 expenditures of

$7,958,083 and an assessment rate of

$0.49 per standard box of winter pears

handled. In comparison, last year’s

budgeted expenditures were $8,066,790.

The assessment rate of $0.49 is $0.05

more than the rate currently in effect.

The Committee recommended an

increased assessment rate because the

current rate would not generate enough

income to adequately administer the

program. The Committee decided that

an assessment rate of more than $0.49

would generate income in excess of that

needed to adequately administer the

program.

Major expenses recommended by the

Committee for the 1998–99 fiscal period

include $6,719,500 for paid advertising,

$460,925 for unforeseen expenses,

$302,000 for improvement of winter

pears, $182,785 for salaries, and $75,000

for market development. Budgeted

expenses for these items in 1997–98

were $7,010,550, $268,632, $346,200,

$161,549, and $75,000, respectively.

The assessment rate recommended by

the Committee was derived by dividing

anticipated expenses by expected

shipments of winter pears. Winter pear

shipments for the year are estimated at

15,100,000 standard boxes, which

should provide $7,399,000 in

assessment income. Income derived

from handler assessments, along with

interest income and funds from the

Committee’s authorized reserve, would

be adequate to cover budgeted expenses.

The operating reserve is within the

maximum permitted by the order of

approximately one fiscal period’s

expenses (§ 927.42).

Recent price information indicates

that the grower price for the 1998–99

marketing season will range between

$6.18 and $10.78 per standard box of

winter pears handled. Therefore, the

estimated assessment revenue for the

1998–99 fiscal period as a percentage of

total grower revenue would range

between 0.5 and 0.8 percent.

This action would increase 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, these costs would be offset by

the benefits derived by the operation of

the marketing order. In addition, the

Committee’s meeting was widely

publicized throughout the winter 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 29, 1998, 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

information on the regulatory and

informational impacts of this action on

small businesses.

This proposed rule would impose no

additional reporting or recordkeeping

requirements on either small or large

winter 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.

The Department has not identified

any relevant Federal rules that

duplicate, overlap, or conflict with this

rule.

A 30-day comment period is provided

to allow interested persons the

opportunity to respond to this request

for information and comments. Thirty

days is deemed appropriate because: (1)

The Committee needs to have sufficient

funds to pay its expenses which are

incurred on a continuous basis; (2) the

1998–99 fiscal period began on July 1,

1998, and the order requires that the

rate of assessment for each fiscal period

apply to all assessable winter pears

handled during such 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.
Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 / Proposed Rules 39039

1The Tennessee Valley Federal milk order, an

order involved in this rulemaking proceeding, was

terminated as of October 1, 1997.

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—WINTER 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.

§ 927.236 [Amended]

2. Section 927.236 is proposed to be

amended by removing the words ‘‘July

1, 1997,’’ and adding in their place the

words ‘‘July 1, 1998,’’ and by removing

‘‘$0.44’’ and adding in its place ‘‘$0.49.’’

Dated: July 15, 1998.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable

Programs.

[FR Doc. 98–19389 Filed 7–20–98; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 1005, 1007, and 1046

[Docket No. AO–338–A9, et al.; DA–96–08]

Milk in the Carolina and Certain Other

Marketing Areas; Final Decision and

Order To Terminate Proceeding on

Proposed Amendments to Marketing

Agreements and Orders

7 CFR

part Marketing area Docket No.

1005 .. Carolina ................. AO–388–A9.

1007 .. Southeast .............. AO–366–A38.

1046 .. Louisville-Lexington-Evansville.AO–123–A67.

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final decision and termination

of proceeding.

SUMMARY: This document denies

proposed amendments to 3 Federal milk

orders in the Southeastern United States

and terminates the rulemaking

proceeding. The proposals involve

deductions from the minimum uniform

price to producers and the definition of

‘‘producer’’ specified in each of the

orders. The decision to deny the

proposals is based upon 2 public

hearings, and upon comments and

exceptions filed in response to a

subsequent recommended decision

issued by the Department.

FOR FURTHER INFORMATION CONTACT:

Nicholas Memoli, Marketing Specialist,

USDA/AMS/Dairy Division, Order

Formulation Branch, Room 2971, South

Building, P.O. Box 96456, Washington,

DC 20090–6456, (202) 690–1932, e-mail

address: NicholaslMemoli@usda.gov.

SUPPLEMENTARY INFORMATION: This

administrative action is governed by the

provisions of Sections 556 and 557 of

Title 5 of the United States Code and

therefore is excluded from the

requirements of Executive Order 12866.

This partial final decision denies the

proposed amendments to the Carolina,

Southeast, and Louisville-LexingtonEvansville Federal milk orders,1 and

terminates this rulemaking proceeding.

Small Business Consideration

In accordance with the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.), the

Agricultural Marketing Service has

considered the economic impact of this

action on small entities. The Act seeks

to ensure that, within the statutory

authority of a program, the regulatory

and informational requirements are

tailored to the size and nature of small

businesses. For the purpose of the

Regulatory Flexibility Act, a dairy farm

is considered a ‘‘small business’’ if it

has an annual gross revenue of less than

$500,000, and a dairy products

manufacturer is a ‘‘small business’’ if it

has fewer than 500 employees. For the

purposes of determining which dairy

farms are ‘‘small businesses,’’ the

$500,000 per year criterion was used to

establish a production guideline of

326,000 pounds per month. Although

this guideline does not factor in

additional monies that may be received

by dairy producers, it should be an

inclusive standard for most ‘‘small’’

dairy farmers. For purposes of

determining a handler’s size, if the plant

is part of a larger company operating

multiple plants that collectively exceed

the 500-employee limit, the plant will

be considered a large business even if

the local plant has fewer than 500

employees.

The milk of approximately 7,600

producers is pooled on the Carolina,

Southeast, and Louisville-LexingtonEvansville milk orders. Of these

producers, 97 percent produce below

the 326,000-pound production guideline

and are considered to be small

businesses.

There are 48 handlers operating pool

plants under the 3 orders. Of these

handlers, 22 have fewer than 500

employees and qualify as small

businesses.

The Agricultural Marketing Service

has determined, as set forth in the

recommended decision, that neither the

denial, nor the adoption, of proposed

amendments involving deductions from

the minimum payments to producers

will have a significant economic impact

on a substantial number of small entities

under current marketing conditions.

Dairy farmers are presently receiving the

minimum order prices and should

continue to do so given the current level

of over-order premiums now in effect.

Similarly, neither adoption nor denial of

the proposed amendments will have any

effect on handlers’ costs under the

orders because, currently, handlers are

voluntarily paying producer prices in

excess of the minimum prices specified

in the orders. Furthermore, for the long

term, the issue of deductions from

minimum payments will be considered

as part of the Federal order reform in

connection with the Federal Agriculture

Improvement and Reform Act of 1996

which requires an examination of the

Federal milk order system. The

concerns of small businesses will be

addressed throughout the review

process.

Additionally, neither the denial nor

the adoption of the proposal to modify

the definition of ‘‘producer’’ under the

3 orders will have a significant

economic impact on a substantial

number of small entities. Standards

already exist in the 3 orders to assure an

adequate association by producers in

meeting the fluid milk needs of the

markets. The denial of the proposal to

incorporate additional producer

qualification standards maintains the

existing regulatory burden, and will not

place any additional responsibilities on

handlers operating under the orders.

Prior Documents in This Proceeding

Notice of Hearing: Issued May 1,

1996; published May 3, 1996 (61 FR

19861).

Tentative Partial Final Decision:

Issued July 12, 1996; published July 18,

1996 (61 FR 37628).

Interim Amendment of Orders: Issued

August 2, 1996; published August 9,

1996 (61 FR 41488).

Extension of Time for Filing

Comments to the Tentative Decision:

Issued August 16, 1996; published

August 23, 1996 (61 FR 43474).

Extension of Time for Filing

Comments to the Tentative Decision:

Issued October 18, 1996; published

October 25, 1996 (61 FR 55229).

Notice of Reopened Hearing: Issued

November 19, 1996; published

November 25, 1996 (61 FR 59843).