2011-11714. Pears Grown in Oregon and Washington; Amendment To Allow Additional Exemptions

AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Adoption of interim rule as final.

SUMMARY:

The Department of Agriculture is adopting, as a final rule, without change, an interim rule that added an exemption to the marketing order for Oregon-Washington pears that provides for the sale of fresh pears directly to consumers without regard to regulation. For each customer, the interim rule provided an exemption for consumer-direct sales of up to 220 pounds of fresh pears per transaction, for home use only, made directly at orchards, packing facilities, roadside stands, or farmers' markets without regard to the marketing order's assessment, reporting, handling, and inspection requirements. This action is intended to provide increased marketing flexibility to small pear handlers, while facilitating the sale of fresh, local pears directly to consumers.

DATES:

Effective May 16, 2011.

FOR FURTHER INFORMATION CONTACT:

Teresa Hutchinson or Gary Olson, Northwest Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, Portland, Oregon; Telephone: [phone], Fax: [phone], or E-mail: [e-mail] or Gary [e-mail].

Small businesses may obtain information on complying with this and other marketing order regulations by viewing a guide at the following Web site: http://www.ams.usda.gov/​ Marketing Orders Small Business Guide; or 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: [phone], Fax: [phone], or E-mail: [e-mail].

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.

The handling of pears grown in Oregon and Washington is regulated by 7 CFR part 927. This rule continues in effect the interim rule that added an exemption for consumer-direct sales of up to 220 pounds of fresh pears per customer and transaction, for home use only, and made directly at orchards, packing facilities, roadside stands, or farmers' markets. These consumer-direct sales are exempt from the marketing order's assessment, reporting, handling, and inspection requirements. The Committee believes that the volume represented by these pear sales is insignificant and will not adversely affect the domestic and international marketing of commercial quantities of fresh pears. The majority of promotional funds collected by the Committee are utilized for large-scale promotional efforts that do not have a direct relationship or benefit to these consumer-direct sales. This exemption provides regulatory flexibility to small pear handlers, while facilitating the sale of fresh, local pears directly to consumers.

In an interim rule published in the Federal Register on January 25, 2011, and effective on January 26, 2011, (76 FR 4202, Doc. No. AMS-FV-10-0072, FV10-927-1 IR), a new § 927.122 was added to the order's rules and regulations providing for the consumer-direct exemption.

Final 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 action 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 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 1,537 growers of fresh pears in the regulated production area and approximately 38 handlers 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 2010 by the National Agricultural Statistics Service, the average 2009 fresh pear price of $456 per ton places the farm-gate value of fresh pears grown in Oregon and Washington at $202,053,810. Based on the number of fresh pear growers in the Oregon-Washington production area, the average gross revenue for each grower can be estimated at approximately $131,460. Furthermore, based on Committee records, the Committee has estimated that 56 percent of Northwest 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 growers and handlers of Oregon and Washington pears may be classified as small entities.

This rule continues in effect the action that exempts from regulation fresh pears that are sold directly to consumers—in quantities of 220 pounds or less per customer and transaction—at orchards, packing houses, roadside stands, and farmers' markets. This change provides small pear handlers with increased marketing flexibility while facilitating the sale of pears in local markets. Section § 927.65(b) of the order authorizes the establishment of regulations that exempt specified quantities of pears, or types of pear shipments from the order.

This action is expected to have a beneficial impact on the Northwest pear industry, especially on small growers and handlers. The Committee's goal is that this exemption will reduce overall costs to the pear industry, relax the burden on small businesses, and facilitate the distribution of fruit at the local level. The Committee believes that this action will be especially beneficial to small independent businesses because such agricultural operations tend to utilize roadside stands and farmers' markets more than do large, vertically integrated entities. The Committee has stated that the majority of pear handlers are small businesses under the SBA definition. Although this rule was recommended by the Committee with the goal of helping small pear grower handlers and handlers, it does not prevent large businesses from realizing the same benefits.

This rule will not impose any additional reporting or recordkeeping requirements on either small or large 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. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Further, the Committee's meeting was widely publicized throughout the Oregon-Washington pear industry and all interested persons were invited to participate in Committee deliberations. Like all Committee meetings, the April 22, 2010, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

Comments on the interim rule were required to be received on or before March 28, 2011. No comments were received. Therefore, for the reasons given in the interim rule, USDA is adopting the interim rule as a final rule, without change.

To view the interim rule, go to: http://www.regulations.gov/​#!documentDetail;​D=​AMS-FV-10-0072-0001.

This action also affirms information contained in the interim rule concerning Executive Orders 12866 and 12988, the Paperwork Reduction Act (44 U.S.C. Chapter 35), and the E-Gov Act (44 U.S.C. 101).

After consideration of all relevant material presented, it is found that finalizing the interim rule, without change, as published in the Federal Register (76 FR 4202, January 25, 2011) will tend to effectuate the declared policy of the Act.

List of Subjects in 7 CFR Part 927

• Marketing agreements
• Pears
• Reporting and recordkeeping requirements

PART 927—PEARS GROWN IN OREGON AND WASHINGTON

Accordingly, the interim rule that amended 7 CFR part 927 and that was published at 76 FR 4202 on January 25, 2011, is adopted as a final rule, without change.

Dated: May, 9, 2011.

Ellen King,

Acting Administrator, Agricultural Marketing Service.