[Federal Register Volume 66, Number 156 (Monday, August 13, 2001)]
[Rules and Regulations]
[Pages 42413-42415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20187]



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  Federal Register / Vol. 66, No. 156 / Monday, August 13, 2001 / Rules 
and Regulations  

[[Page 42413]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 924

[Docket No. FV01-924-1 IFR]


Fresh Prunes Grown in Designated Counties in Washington and 
Umatilla County, OR; Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule decreases the assessment rate established for the 
Washington-Oregon Fresh Prune Marketing Committee (Committee) for the 
2001-2002 and subsequent fiscal periods from $1.50 to $1.00 per ton of 
fresh prunes handled. The Committee locally administers 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 fiscal 
period began April 1 and ends March 31. The assessment rate would 
remain in effect indefinitely unless modified, suspended, or 
terminated.

DATES: August 14, 2001. Comments received by October 12, 2001 will be 
considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, P.O. Box 96456, room 2525-S, Washington, DC 20090-6456; Fax 
(202) 720-8938; 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, or can be 
viewed at: http://www.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Teresa Hutchinson, Northwest Marketing 
Field Office, Fruit and Vegetable Programs, AMS, USDA, 1220 SW Third 
Avenue, suite 385, Portland, OR 97204; telephone: (503) 326-2724, Fax: 
(503) 326-7440; or George Kelhart, Technical Advisor, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. 
Box 96456, room 2525-S, Washington, DC 20090-6456; telephone: (202) 
720-2491, Fax: (202) 720-8938.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 96456, room 
2525-S, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: 
(202) 720-8938, or E-mail: [email protected].

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 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, 2001, and continue until 
amended, 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 decreases the assessment rate established for the 
Committee for the 2001-2002 and subsequent fiscal periods from $1.50 to 
$1.00 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 members of the Committee are 
producers and handlers of Washington-Oregon fresh prunes. They are 
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 assessment rate is 
formulated and discussed in a public meeting. Thus, all directly 
affected persons have an opportunity to participate and provide input.
    For the 1999-2000 and subsequent fiscal periods, the Committee 
recommended, and the Department approved, an assessment rate that would 
continue in effect from fiscal period to fiscal period 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 June 5, 2001, and unanimously recommended 
2001-2002 expenditures of $7,804 and an assessment rate of $1.00 per 
ton of fresh

[[Page 42414]]

prunes handled. In comparison, last year's budgeted expenditures were 
$7,803. The assessment rate of $1.00 is $0.50 lower than the rate 
currently in effect. At the rate of $1.50 per ton and an estimated 
2001-2002 fresh prune production of 4,850 tons, the projected reserve 
on March 31, 2002, would exceed the maximum level authorized by the 
order (approximately one fiscal period's operational expenses). The 
reserve currently is $9,047.
    The major expenditures recommended by the Committee for the 2001-
2002 fiscal period include $3,461 for salaries, $1,000 for travel, $528 
for rent and maintenance, and $475 for its annual audit. Budgeted 
expenses for these items in 2000-2001 were $3,360, $1,000, $528, and 
$475, respectively.
    The assessment rate recommended by the Committee was derived for 
the purpose of reducing the operating reserve to a level consistent 
with the order. As mentioned earlier, fresh prune shipments for the 
year are estimated at 4,850 tons which should provide $4,850 in 
assessment income. This income, along with approximately $2,954 from 
the Committee's authorized reserve, will be adequate to cover the 
Committee's budgeted expenses of $7,804. With the decreased assessment 
rate, the current reserve of $9,047 would be reduced by as much as 
$2,945, thus leaving a balance of about $6,102 at the end of the 2001-
2002 fiscal period. The order permits an operating reserve in an amount 
not to exceed 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 is effective 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 
2001-2002 budget and those for subsequent fiscal periods will be 
reviewed and, as appropriate, approved by the Department.

Initial Regulatory Flexibility Analysis

    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 60 producers of fresh prunes in the 
production area and approximately 12 handlers subject to regulation 
under the marketing order. Small agricultural producers are defined by 
the Small Business Administration (13 CFR 121.201) 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.
    Based on Committee records, all of the Washington-Oregon fresh 
prune handlers ship under $5,000,000 worth of fresh prunes. In 
addition, based on 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 $18,000, excluding receipts from other 
sources. 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 decreases the assessment rate established for the 
Committee and collected from handlers for the 2001-2002 and subsequent 
fiscal periods from $1.50 to $1.00 per ton of fresh prunes handled. The 
Committee unanimously recommended 2001-2002 expenditures of $7,804 and 
an assessment rate of $1.00 per ton of fresh prunes handled. The 
assessment rate of $1.00 is $0.50 lower than the rate currently in 
effect. The quantity of assessable fresh prunes for the 2001-2002 
fiscal period is estimated at 4,850 tons. Thus, the $1.00 rate should 
provide $4,850 in assessment income which along with funds from the 
Committee's authorized reserve will be adequate to cover budgeted 
expenses.
    The major expenditures recommended by the Committee for the 2001-
2002 fiscal period include $3,461 for salaries, $1,000 for travel, $528 
for rent and maintenance, and $475 for its annual audit. Budgeted 
expenses for these items in 2000-2001 were $3,360, $1,000, $528, and 
$475, respectively.
    At the rate of $1.50 per ton and an estimated 2001-2002 fresh prune 
production of 4,850 tons, the projected reserve on March 31, 2002, 
would exceed the maximum level authorized by the order (approximately 
one fiscal period's operational expenses). As of March 31, 2001, the 
Committee's reserve was $9,047. With assessment income of $4,850 and 
expenditures of $7,804, the Committee may draw up to $2,945 from its 
reserve, thus leaving the reserve at approximately $6,093 on March 31, 
2002.
    The Committee considered alternative levels of assessment but 
determined that decreasing the assessment rate to $1.00 per ton would 
be adequate to reduce the reserve to a level lower than approximately 
one fiscal period's expenses. The Committee decided that an assessment 
rate of more than $1.00 per ton, but less than $1.50 per ton, would not 
decrease the reserve to an adequate level. Prior to arriving at this 
budget, the Committee considered information from various sources, such 
as the Committee's Finance and Executive Committees.
    A review of historical information and preliminary information 
pertaining to the upcoming fiscal period indicates that the producer 
price for the 2001-2002 marketing season could range between $160 and 
$275 per ton of fresh prunes handled. Therefore, the estimated 
assessment revenue for the 2001-2002 fiscal period as a percentage of 
total grower revenue should range between 0.36 and 0.63 percent.
    This action decreases 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, decreasing the 
assessment rate reduces the burden on handlers, and may reduce the 
burden on producers. 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 June 5, 2001, 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

[[Page 42415]]

and informational impacts of this action on small businesses.
    This action 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 small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance 
guide should be sent to Jay Guerber at the previously mentioned address 
in the FOR FURTHER INFORMATION CONTACT section.
    After consideration of all relevant material presented, including 
the information and recommendation submitted by the Committee and other 
available information, it is hereby found 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 is also found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect, and 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 2001-2002 fiscal period began on April 1, 
2001, and the marketing order requires that the rate of assessment for 
each fiscal period apply to all assessable fresh prunes handled during 
such fiscal period; (2) the action decreases the assessment rate for 
all assessable fresh prunes beginning with the 2001-2002 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; and (4) this interim final rule 
provides a 60-day comment period, and all comments timely received will 
be considered prior to finalization of this rule.

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, 2001, an assessment rate of $1.00 per ton is 
established for the Washington-Oregon Fresh Prune Marketing Committee.

    Dated: August 7, 2001.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 01-20187 Filed 8-10-01; 8:45 am]
BILLING CODE 3410-02-P