[Federal Register Volume 64, Number 170 (Thursday, September 2, 1999)]
[Rules and Regulations]
[Pages 48077-48079]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22906]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 924

[Docket No. FV99-924-1 FR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule increases the assessment rate established for the 
Washington-Oregon Fresh Prune Marketing Committee (Committee) under 
Marketing Order No. 924 for the 1999-2000 and subsequent fiscal periods 
from $1.00 to $1.50 per ton of fresh prunes handled. 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 will 
remain in effect indefinitely unless modified, suspended, or 
terminated.

EFFECTIVE DATE: September 3, 1999.

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 issued herein will 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 
later than 20 days after the date of the entry of the ruling.
    This rule increases 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 less than the 5-year average of 4,985 tons, and the 
current rate will not generate enough income to adequately administer 
the program. The Committee also plans on hiring an additional part-time 
staff person which will 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

[[Page 48078]]

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) will be kept 
within the maximum permitted by the order of approximately one fiscal 
period's operational expenses (Sec. 924.42).
    The assessment rate established in this rule will 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 will be in effect 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 the 
Department. Committee meetings are open to the public and interested 
persons may express their views at these meetings. The Department 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 
1999-2000 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 of this rule on small entities. Accordingly, the 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 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 increases 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 higher than the 1998-99 
rate. 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 will not generate enough 
income to adequately administer the program. The Committee also plans 
on hiring an additional part-time staff person which will 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 $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 
producer revenue should range between 0.30 and 0.75 percent.
    This action increases 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 
are 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 were invited to submit information on the regulatory 
and informational impacts of this action on small businesses.
    This rule imposes 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 proposed rule concerning this action was published in the Federal 
Register on July 14, 1999 (64 FR 37888). The proposal was made 
available through the Internet by the Office of the Federal Register. A 
copy of the proposed rule was also mailed to the Committee's 
administrative office for distribution to producers and handlers. A 30-
day comment period ending August 13, 1999, was provided for interested 
persons to respond to the proposal. No comments were received.
    After consideration of all relevant material presented, including 
the information and recommendation submitted by the Committee and other 
available information, it is hereby found

[[Page 48079]]

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 also found and determined 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 
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. Also, a 30-day comment period was provided for in the proposed 
rule, and no comments were received.

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 
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: August 26, 1999.
Bernadine M. Baker,
Acting Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-22906 Filed 9-1-99; 8:45 am]
BILLING CODE 3410-02-P