[Federal Register Volume 64, Number 134 (Wednesday, July 14, 1999)]
[Proposed Rules]
[Pages 37888-37890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17891]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 924

[Docket No. FV99-924-1 PR]


Fresh Prunes Grown in Designated Counties in Washington and 
Umatilla County, Oregon; Increased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule would increase the assessment rate from $1.00 to 
$1.50 per ton of fresh prunes established for the Washington-Oregon 
Fresh Prune Marketing Committee (Committee) under Marketing Order No. 
924 for the 1999-2000 and subsequent fiscal periods. The Committee is 
responsible for local administration of the marketing order which 
regulates the handling of fresh prunes grown in designated counties in 
Washington and Umatilla County, Oregon. Authorization to assess fresh 
prune handlers enables the Committee to incur expenses that are 
reasonable and necessary to administer the program. The 1999-2000 
fiscal period began April 1 and ends March 31. The assessment rate 
would remain in effect indefinitely unless modified, suspended, or 
terminated.

DATES: Comments must be received by August 13, 1999.

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) 720-5698; or E-mail: 
[email protected]. 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) 
720-2491, Fax: (202) 720-5698. Small businesses may request information 
on complying with this regulation, or obtain a guide on complying with 
fruit, vegetable, and specialty crop marketing agreements and orders 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) 720-
5698, or E-mail: Jay.G[email protected]. You may view the marketing 
agreement and order small business compliance guide at the following 
web site: http://www.ams.usda.gov/fv/moab.html.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order 
No. 924, as amended (7 CFR part 924), regulating the handling of fresh 
prunes grown in designated counties in Washington and Umatilla County, 
Oregon, hereinafter referred to as the ``order.'' The marketing 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 (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, Washington-
Oregon fresh prune 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 prunes beginning April 1, 1999, and continue until 
modified, suspended, or terminated. This rule will 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

[[Page 37889]]

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 1999-2000 and subsequent fiscal periods from $1.00 to 
$1.50 per ton of fresh prunes handled.
    The Washington-Oregon fresh prune marketing 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 three 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 1998-99 and subsequent fiscal periods, the Committee 
recommended, and the Department approved, an assessment rate of $1.00 
per ton 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 27, 1999, and unanimously recommended 
1999-2000 expenditures of $7,630 and an assessment rate of $1.50 per 
ton of fresh prunes handled. In comparison, last year's budgeted 
expenditures were $7,003. The assessment rate of $1.50 is $0.50 higher 
than the rate currently in effect. The Committee recommended an 
increased assessment rate because assessable 1999-2000 tonnage is 
expected to be smaller than the 5-year average of 4,985 tons, and the 
current rate would not generate enough income to adequately administer 
the program. The Committee also plans on hiring an additional part-time 
staff person which would increase its salary expense.
    Major expenses recommended by the Committee for the 1999-2000 
fiscal period include $3,560 for salaries, $1,000 for travel, $528 for 
rent and maintenance, and $475 for its annual audit. Budgeted expenses 
for these items in 1998-99 were $2,880, $1,000, $528, and $475, 
respectively.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of Washington-
Oregon fresh prunes. Fresh prune shipments for the year are estimated 
at 4,600 tons, which should provide $6,900 in assessment income. Income 
derived from handler assessments, along with funds from the Committee's 
authorized reserve, should be adequate to cover budgeted expenses. 
Funds in the reserve (currently $6,013) would be kept within the 
maximum permitted by the order of approximately one fiscal period's 
operational expenses (Sec. 924.42).
    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 would be undertaken as necessary. The Committee's 
1999-2000 budget and those for subsequent fiscal periods would 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 of this rule on small entities. Accordingly, the 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 100 producers of fresh prunes in the 
production area and approximately 12 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.
    Currently, all of the Washington-Oregon fresh prune handlers ship 
under $5,000,000 worth of fresh prunes. In addition, based on acreage, 
production, and producer prices reported by the National Agricultural 
Statistics Service, and the total number of Washington-Oregon fresh 
prune producers, the average annual producer revenue is approximately 
$21,000. In view of the foregoing, it can be concluded that the 
majority of Washington-Oregon fresh prune producers and handlers may be 
classified as small entities.
    This rule would increase the assessment rate established for the 
Committee and collected from handlers for the 1999-2000 and subsequent 
fiscal periods from $1.00 to $1.50 per ton of fresh prunes handled. The 
Committee met on May 27, 1999, and unanimously recommended 1999-2000 
expenditures of $7,630 and an assessment rate of $1.50 per ton of fresh 
prunes handled. In comparison, last year's budgeted expenditures were 
$7,003. The assessment rate of $1.50 is $0.50 more than the rate 
currently in effect. The Committee recommended an increased assessment 
rate because assessable 1999-2000 tonnage is expected to be smaller 
than the 5-year average of 4,985 tons, and the current rate would not 
generate enough income to adequately administer the program. The 
Committee also plans on hiring an additional part-time staff person 
which would increase its salary expense.
    Major expenses recommended by the Committee for the 1999-2000 
fiscal period include $3,560 for salaries, $1,000 for travel, $528 for 
rent and maintenance, and $475 for its annual audit. Budgeted expenses 
for these items in 1998-99 were $2,880, $1,000, $528, and $475, 
respectively.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of fresh prunes. 
Fresh prune shipments for the year are estimated at 4,600 tons, which 
should provide $6,900 in assessment income. Income derived from handler 
assessments, along with funds from the Committee's authorized reserve, 
should be adequate to cover budgeted expenses. The reserve is within 
the maximum permitted by the order of approximately one fiscal period's 
operational expenses (Sec. 924.42).
    The Committee considered alternative levels of assessment but 
determined that, with the reduced estimate of assessable tonnage, 
increasing the assessment rate to $1.50 per ton would be appropriate. 
The Committee decided that an assessment rate of more than

[[Page 37890]]

$1.50 per ton would generate income in excess of that needed to 
adequately administer the program.
    A review of historical information and preliminary information 
pertaining to the upcoming crop indicates that the producer price for 
the 1999-2000 marketing season could range between $200 and $500 per 
ton of fresh prunes handled. Therefore, the estimated assessment 
revenue for the 1999-2000 fiscal period as a percentage of total grower 
revenue should range between 0.30 and 0.75 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 Washington-Oregon fresh prune 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 27, 1999, 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 Washington-Oregon 
fresh prune 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 proposed rule. Thirty days is deemed 
appropriate because: (1) The 1999-2000 fiscal period began on April 1, 
1999, and the order requires that the rate of assessment for each 
fiscal period apply to all assessable fresh prunes handled during such 
fiscal period; (2) the Committee needs to have sufficient funds to pay 
its expenses which are incurred on a continuous basis; and (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.

List of Subjects in 7 CFR Part 924

    Marketing agreements, Plums, Prunes, Reporting and recordkeeping 
requirements.
    For the reasons set forth in the preamble, 7 CFR part 924 is 
proposed to be amended as follows:

PART 924--FRESH PRUNES GROWN IN DESIGNATED COUNTIES IN WASHINGTON 
AND UMATILLA COUNTY, OREGON

    1. The authority citation for 7 CFR part 924 continues to read as 
follows:

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

    2. Section 924.236 is revised to read as follows:


Sec. 924.236  Assessment rate.

    On and after April 1, 1999, an assessment rate of $1.50 per ton is 
established for the Washington-Oregon Fresh Prune Marketing Committee.

    Dated: July 7, 1999.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-17891 Filed 7-13-99; 8:45 am]
BILLING CODE 3410-02-P