Proposed Rule2023-26380
Pears Grown in Oregon and Washington; Increased Assessment Rate for Processed Pears
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Published
December 1, 2023
Issuing agencies
Agriculture DepartmentAgricultural Marketing Service
Abstract
This proposed rule would implement a recommendation from the Processed Pear Committee (Committee) to increase the assessment rate established for the 2023-2024 fiscal period and subsequent fiscal periods. The proposed assessment rate would remain in effect indefinitely unless modified, suspended, or terminated.
Full Text
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<title>Federal Register, Volume 88 Issue 230 (Friday, December 1, 2023)</title>
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[Federal Register Volume 88, Number 230 (Friday, December 1, 2023)]
[Proposed Rules]
[Pages 83870-83872]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-26380]
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Proposed Rules
Federal Register
________________________________________________________________________
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.
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Federal Register / Vol. 88, No. 230 / Friday, December 1, 2023 /
Proposed Rules
[[Page 83870]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 927
[Doc. No. AMS-SC-23-0037]
Pears Grown in Oregon and Washington; Increased Assessment Rate
for Processed Pears
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would implement a recommendation from the
Processed Pear Committee (Committee) to increase the assessment rate
established for the 2023-2024 fiscal period and subsequent fiscal
periods. The proposed assessment rate would remain in effect
indefinitely unless modified, suspended, or terminated.
DATES: Comments must be received by January 2, 2024.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposed rule. Comments can be sent to the Docket
Clerk, Market Development Division, Specialty Crops Program, AMS, USDA,
1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237.
Comments may also be submitted to the Docket Clerk electronically by
Email: <a href="/cdn-cgi/l/email-protection#5e133f2c353b2a373039112c3a3b2c1d3133333b302a1e2b2d3a3f70393128"><span class="__cf_email__" data-cfemail="1c517d6e77796875727b536e78796e5f7371717972685c696f787d327b736a">[email protected]</span></a> or via the internet at: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Comments should reference the document number and
the date and page number of this issue of the Federal Register and can
be viewed at: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Comments submitted in
response to this proposed 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: Dale Novotny, Marketing Specialist, or
Gary Olson, Chief, West Region Branch, Market Development Division,
Specialty Crops Program, AMS, USDA; Telephone: (503) 326-2724, or
Email: <a href="/cdn-cgi/l/email-protection#81c5e0ede4cbafcfeef7eef5eff8c1f4f2e5e0afe6eef7"><span class="__cf_email__" data-cfemail="cf8baea3aa85e181a0b9a0bba1b68fbabcabaee1a8a0b9">[email protected]</span></a> or <a href="/cdn-cgi/l/email-protection#e5a284979ca1cbaa89968a8ba590968184cb828a93"><span class="__cf_email__" data-cfemail="c780a6b5be83e988abb4a8a987b2b4a3a6e9a0a8b1">[email protected]</span></a>.
Small businesses may request information on complying with this
regulation by contacting Richard Lower, Market Development Division,
Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP
0237, Washington, DC 20250-0237; Telephone: (202) 720-8085, or Email:
<a href="/cdn-cgi/l/email-protection#63310a000b0211074d2f0c14061123161007024d040c15"><span class="__cf_email__" data-cfemail="3a685359525b485e1476554d5f487a4f495e5b145d554c">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553,
proposes to amend regulations issued to carry out a marketing order as
defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing
Order No. 927, as amended (7 CFR part 927), regulating the handling of
pears grown in Oregon and Washington. Part 927 (referred to as 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 Committee locally administers the Order and is comprised
of growers, handlers, and processors of pears operating within the area
of production, and a public member.
The Agricultural Marketing Service (AMS) is issuing this proposed
rule in conformance with Executive Orders 12866, 13563, and 14094.
Executive Orders 12866 and 13563 direct agencies to assess all costs
and benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts and equity). Executive Order 13563
emphasizes the importance of quantifying both costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility. Executive
Order 14094 reaffirms, supplements, and updates Executive Order 12866
and further directs agencies to solicit and consider input from a wide
range of affected and interested parties through a variety of means.
This proposed action falls within a category of regulatory actions that
the Office of Management and Budget (OMB) exempted from Executive Order
12866 review.
This proposed rule has been reviewed under Executive Order 13175,
Consultation and Coordination with Indian Tribal Governments, which
requires Federal agencies to consider whether their rulemaking actions
would have Tribal implications. The AMS has determined that this
proposed rule is unlikely to have substantial direct effects on one or
more Indian Tribes, on the relationship between the Federal Government
and Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes.
This proposed rule has been reviewed under Executive Order 12988--
Civil Justice Reform. Under the Order now in effect, pear handlers are
subject to assessments. Funds to administer the Order are derived from
such assessments. It is intended that the assessment rate would be
applicable to all assessable ``summer/fall'' pears for canning for the
2023-2024 fiscal period, 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 the U.S. Department
of Agriculture (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 proposed rule would increase the assessment rate for ``summer/
fall'' varieties of pears for canning handled under the Order from
$7.15 per ton, the rate that was established for the 2018-2019 fiscal
period and subsequent fiscal periods, to $7.50 per ton for the 2023-
2024 fiscal period and subsequent fiscal periods.
The Order authorizes the Committee, with the approval of AMS, to
formulate an annual budget of expenses and collect assessments from
handlers to administer the program. The members
[[Page 83871]]
of the Committee are familiar with the Committee's needs and with the
costs of goods and services in their local area and are able to
formulate an appropriate budget and assessment rate. The assessment
rate is formulated and discussed in a public meeting, and all directly
affected persons have an opportunity to participate and provide input.
For the 2018-2019 fiscal period and subsequent fiscal periods, the
Committee recommended, and AMS approved, an assessment rate of $7.15
per ton of ``summer/fall'' varieties of pears for canning handled (83
FR 62451). That rate continues in effect from fiscal period to fiscal
period until modified, suspended, or terminated by AMS upon
recommendation and information submitted by the Committee or other
information available to AMS.
The Committee met on June 8, 2023, and unanimously recommended
2023-2024 fiscal period expenditures of $607,532 and an assessment rate
of $7.50 per ton of ``summer/fall'' varieties of pears for canning
handled for the 2023-2024 fiscal period and subsequent fiscal periods.
In comparison, last year's budgeted expenditures were $594,130. The
proposed assessment rate of $7.50 per ton is $0.35 higher than the rate
currently in effect. The Committee recommended increasing the
assessment rate to better fund operations using assessment revenue and
reduce the reliance on reserve funds. The Committee has drawn down its
financial reserve in recent years to cover Committee expenses and to
reduce the reserve so as to not exceed approximately one fiscal
period's budgeted expenses, in conformance with the Order (7 CFR
927.42(a)). The Committee projects handler receipts of 78,000 tons of
assessable ``summer/fall'' varieties of pears for canning for the 2023-
2024 fiscal period, which is 7,288 more than was projected for the
2022-2023 fiscal period.
The major expenditures recommended by the Committee for the 2023-
2024 fiscal period include $492,595 for marketing, promotions, and paid
advertising; $73,337 for research; $25,000 for promotion management
fees; and $16,600 for Committee administrative expenses. Budgeted
expenditures for the 2022-2023 fiscal period were $483,300, $66,530,
$25,000, and $21,396, respectively.
Processed pears for canning are marketed throughout the calendar
year. The expected 78,000-ton 2023 crop would generate $585,000 in
assessment revenue at the proposed assessment rate (78,000 tons of
assessable ``summer/fall'' varieties of pears for canning multiplied by
$7.50 per ton assessment rate). The remaining $22,532 needed to cover
budgeted expenditures would come from reserve funds carried over from
previous fiscal periods and $100 in interest income. The 2023-2024
fiscal period assessment rate increase should be appropriate to ensure
the Committee has sufficient revenue, along with its reserve, to fully
fund its recommended 2023-2024 fiscal period budgeted expenditures and
maintain a level of reserve funds that the Committee believes is
appropriate.
The Committee derived the recommended assessment rate by
considering anticipated fiscal period expenses, an estimated 2023 crop
volume of 78,000 tons of assessable ``summer/fall'' varieties of pears
for canning, and the amount of funds available in the authorized
reserve. Income derived from handler assessments ($585,000) and funds
from the Committee's authorized reserve ($22,432) along with interest
income ($100) are expected to be adequate to cover budgeted expenses
($607,532).
The proposed assessment rate would continue in effect indefinitely
unless modified, suspended, or terminated by AMS 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 AMS. Committee meetings are open to the public and interested
persons may express their views at these meetings. AMS 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 2023-2024
fiscal period budget, and those for subsequent fiscal periods, will be
reviewed and, as appropriate, approved by AMS.
Initial Regulatory Flexibility Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of
this proposed rule on small entities. Accordingly, AMS prepared this
initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
businesses 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 pears for processing in
the production area and approximately 34 handlers of processed pears
subject to regulation under the Order. Small agricultural growers of
processed pears are defined by the Small Business Administration (SBA)
as those having annual receipts equal to or less than $3.5 million, and
small agricultural service firms are defined as those whose annual
receipts are equal to or less than $34 million (13 CFR 121.201).
According to the National Agricultural Statistics Service (NASS),
the average annual grower price received for processed pears in
Washington and Oregon was $361 per ton (2022). Total production of
pears for canning for the 2022 season was reported by the Committee to
be 74,131 tons. Using the average grower price from 2022, the most
recent years for which there is NASS data, the total 2022 crop value of
pears grown for processing in Oregon and Washington was $26,761,291
(74,131 tons multiplied by $361 per ton). Dividing the crop value by
the estimated number of growers (1,500) yields an estimated average
receipt per grower of $17,841, which is well below the SBA threshold
for small growers.
Given the relatively small total farmgate value of pears for
processing produced in the production area ($26,761,291), it is
probable that most, if not all, of the pear processors regulated by the
Order would be considered small entities. Dividing the $26,761,291
estimated crop value by the number of handlers of processed pears (34)
equals $787,097. AMS has not identified a direct third-party reference
for estimating processed pear manufacturing margins. Without direct
third-party information regarding the industry, determination of the
number of large and small processors using the SBA's definition would
be difficult. However, given the low average crop value of pears for
processing ($787,097) it may be assumed that most, if not all, of the
handlers of processed pears would have annual receipts below the SBA
threshold for small agricultural service firms ($34 million).
Therefore, using the above information and
[[Page 83872]]
assuming a normal distribution, most of the growers and handlers of
pears for processing may be classified as small entities.
This proposal would increase the assessment rate collected from
handlers for the 2023-2024 fiscal period and subsequent fiscal periods
from $7.15 to $7.50 per ton of Oregon and Washington ``summer/fall''
pears for canning. The Committee unanimously recommended 2023-2024
fiscal period expenditures of $607,532 and an assessment rate of $7.50
per ton of ``summer/fall'' pears for canning. The proposed assessment
rate of $7.50 is $0.35 higher than the current rate. The Committee
expects the industry to handle 78,000 tons of ``summer/fall'' varieties
of pears for canning during the 2023-2024 fiscal period. Thus, the
$7.50 per ton rate should provide $585,000 in assessment income (78,000
tons multiplied by $7.50). The Committee also expects to use $22,532
from its financial reserve and $100 in interest income to cover
remaining expenses. Income derived from handler assessments, along with
reserve funds, should be adequate to meet budgeted expenditures for the
2023-2024 fiscal period.
The major expenditures recommended by the Committee for the 2023-
2024 fiscal period include $492,595 for marketing, promotions, and paid
advertising; $73,337 for research; $25,000 for promotion management
fees; and $16,600 for Committee administrative expenses. Budgeted
expenditures for the 2022-2023 fiscal period were $483,300, $66,530,
$25,000, and $21,396, respectively.
In recent years, the Committee has utilized reserve funds to
partially fund its budgeted expenditures. The Committee recommended
increasing the assessment rate to better fund 2023-2024 fiscal period
budgeted expenditures and refrain from excessively drawing down the
funds held in its reserve. This action would maintain the Committee's
reserve balance at a level that the Committee believes is appropriate
and is compliant with the provisions of the Order.
Prior to arriving at this budget and the proposed assessment rate,
the Committee discussed various alternatives, including maintaining the
current assessment rate of $7.15 per ton and increasing the assessment
rate by different amounts. However, the Committee determined that the
recommended assessment rate would be able to fund most of the budgeted
expenses and avoid drawing down reserves at an unsustainable rate. The
assessment rate of $7.50 per ton of Oregon and Washington ``summer/
fall'' pears for canning was derived by considering anticipated
expenses, the projected volume of assessable pears for canning, the
projected monetary balance held in reserve, and additional pertinent
factors.
A review of NASS information indicates that the average grower
price for the 2022-2023 fiscal period was $361 per ton. Utilizing the
assessment rate of $7.50 per ton, assessment revenue for the 2022-2023
fiscal period, as a percentage of total grower revenue, would have been
approximately 2.08 percent ($7.50 per ton divided by $361 multiplied by
100).
This proposed action would increase 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, these
costs are expected to be offset by the benefits derived by the
operation of the Order.
The Committee's meetings are widely publicized throughout the
production area. The processed pear industry and all interested persons
are invited to attend the meetings and participate in Committee
deliberations on all issues. Like all Committee meetings, the June 8,
2023, 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 information collection 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 OMB and assigned OMB No. 0581-0189, Fruit Crops.
No changes in those requirements would be necessary as a result of this
proposed rule. Should any changes become necessary, they would be
submitted to OMB for approval.
This proposed rule would not impose any additional reporting or
recordkeeping requirements on either small or large 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.
AMS has not identified any relevant Federal rules that duplicate,
overlap, or conflict with this proposed rule.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at:
<a href="https://www.ams.usda.gov/rules-regulations/moa/small-businesses">https://www.ams.usda.gov/rules-regulations/moa/small-businesses</a>. Any
questions about the compliance guide should be sent to Richard Lower at
the previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
A 30-day comment period is provided to allow interested persons to
respond to this proposed rule. All written comments timely received
will be considered before a final determination is made on this
proposed rule.
List of Subjects in 7 CFR Part 927
Marketing agreements, Pears, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, the Agricultural
Marketing Service proposes to amend 7 CFR part 927 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. Revise Sec. 927.237 introductory text and paragraph (a) to read as
follows:
Sec. 927.237 Processed pear assessment rate.
On and after July 1, 2023, the following base rates of assessment
for pears for processing are established for the Processed Pear
Committee:
(a) $7.50 per ton for any or all varieties or subvarieties of pears
for canning classified as ``summer/fall'' excluding pears for other
methods of processing;
* * * * *
Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2023-26380 Filed 11-30-23; 8:45 am]
BILLING CODE P
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