[Federal Register Volume 66, Number 231 (Friday, November 30, 2001)]
[Rules and Regulations]
[Pages 59675-59677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29705]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 924

[Docket No. FV01-924-1 FIR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim final rule which 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 will remain in effect 
indefinitely unless modified, suspended, or terminated.

EFFECTIVE DATE: December 31, 2001.

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 USDA 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 USDA a petition 
stating that the order, any provision of the order, or any obligation 
imposed in connection with

[[Page 59676]]

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 rule continues to decrease 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 USDA, 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 USDA approved, an assessment rate that would continue 
in effect from fiscal period to fiscal period unless modified, 
suspended, or terminated by USDA upon recommendation and information 
submitted by the Committee or other information available to USDA.
    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 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 that was in effect for 2000-2001. 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 have exceeded the 
maximum level authorized by the order (approximately one fiscal 
period's operational expenses). The reserve on March 31, 2001, was 
$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 were 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 reserve of $9,047 (as of March 31, 2001) will 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 will continue in effect indefinitely unless 
modified, suspended, or terminated by USDA 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 USDA. 
Committee meetings are open to the public and interested persons may 
express their views at these meetings. The USDA 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 USDA.

Final 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 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 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 $750,000 and small agricultural service firms 
are defined as those whose annual receipts are less than $5,000,000. 
The standard for determining small agricultural producers was increased 
from $500,000 to $750,000 in August 2001.
    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. In addition, based on Committee records, all of 
the Washington-Oregon fresh prune handlers ship under $5,000,000 worth 
of fresh prunes. 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 continues to decrease 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 that 
was in effect for 2000-2001. 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.
    With a 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

[[Page 59677]]

was $9,047. With assessment income of $4,850 from the current rate and 
expenditures of $7,804, the Committee may draw up to $2,945 from its 
reserve, thus leaving the reserve at approximately $6,102 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 
assessment rate, the Committee considered information from various 
sources, including 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 continues to decrease 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.
    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 USDA has not identified any relevant Federal rules that 
duplicate, overlap, or conflict with this rule.
    An interim final rule concerning this action was published in the 
Federal Register on August 13, 2001. Copies of the rule were mailed to 
all Committee members. In addition, the rule was made available through 
the Internet by the Office of the Federal Register and USDA. A 60-day 
comment period was provided for interested persons to respond to the 
interim final rule. The comment period ended October 12, 2001, and no 
comments were received.
    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.

List of Subjects in 7 CFR Part 924

    Marketing agreements, Plums, Prunes, Reporting and recordkeeping 
requirements.

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

    Accordingly, the interim final rule amending 7 CFR part 924 which 
was published at 66 FR 42413 on August 13, 2001, is adopted as a final 
rule without change.

    Dated: November 26, 2001.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 01-29705 Filed 11-29-01; 8:45 am]
BILLING CODE 3410-02-P