[Federal Register Volume 69, Number 137 (Monday, July 19, 2004)]
[Proposed Rules]
[Pages 42899-42901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16272]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 69, No. 137 / Monday, July 19, 2004 / 
Proposed Rules  

[[Page 42899]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 924

[Docket No. FV04-924-1 PR]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This rule would increase the assessment rate established for 
the Washington-Oregon Fresh Prune Marketing Committee (Committee) for 
the 2004-2005 and subsequent fiscal periods from $1.50 to $1.75 per ton 
of prunes handled. The Committee locally administers the marketing 
order which regulates the handling of fresh prunes grown in designated 
counties in Washington and in Umatilla County, Oregon. Authorization to 
assess 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: Comments must be received by August 3, 2004.

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, 1400 Independence Avenue SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; E-mail: [email protected]; or 
Internet: http://www.regulations.gov. 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 L. Hutchinson, Marketing 
Specialist, Northwest Marketing Field Office, Marketing Order 
Administration Branch, 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 J. Kelhart, Technical Advisor, Marketing 
Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 
1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; 
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, 1400 Independence SW., 
STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: 
(202) 720-8938.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement and Order No. 924 (7 CFR 924), regulating the handling of 
fresh prunes grown in designated counties in Washington and in 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 (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 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 prunes beginning April 1, 2004, and continue until amended, 
suspended, or terminated. This rule would 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 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 would increase the assessment rate established for the 
Committee for the 2004-2005 and subsequent fiscal periods from $1.50 to 
$1.75 per ton of prunes handled.
    The 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 in designated counties in 
Washington and in Umatilla County, Oregon. 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 was formulated and 
discussed at a public meeting, thus all directly affected persons had 
an opportunity to participate and provide input.
    For the 2003-2004 and subsequent fiscal periods, the Committee 
recommended, and USDA approved, an assessment rate of $1.50 per ton of 
fresh prunes handled. This assessment rate continues 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 May 25, 2004, and unanimously recommended 
2004-2005 expenditures of $7,454 and an increased assessment rate of 
$1.75 per ton of prunes. In comparison, last year's budgeted 
expenditures were $7,411. The assessment rate of $1.75 is $0.25 higher 
than the rate currently in effect. The Committee recommended the higher 
assessment rate to cover budgeted

[[Page 42900]]

expenses and to maintain its monetary reserve at a satisfactory level.
    The major expenditures recommended by the Committee for the 2004-
2005 fiscal period include $3,928 for employee salaries, $576 for rent 
and maintenance, $500 for Committee travel, and $475 for the annual 
financial audit. These budgeted expenses are the same as those approved 
for the 2003-2004 fiscal period.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of Washington-
Oregon prunes. Applying the $1.75 per ton assessment rate to the 
Committee's 4,500 ton crop estimate should provide $7,875 in assessment 
income. Thus, income derived from handler assessments would be adequate 
to cover the recommended $7,454 budget for 2004-2005. Funds in the 
reserve ($4,900 as of March 31, 2004), 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 USDA upon recommendation 
and information submitted by the Committee or other available 
information.
    Although the 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 USDA. 
Committee meetings are open to the public and interested persons may 
express their views at these meetings. USDA would evaluate the 
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 2004-2005 
budget and those for subsequent fiscal periods would be reviewed and, 
as appropriate, approved by USDA.

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, 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 215 producers of fresh prunes in the 
regulated production area and approximately 10 handlers subject to 
regulation under the order. Small agricultural producers are defined by 
the Small Business Administration (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 
$5,000,000.
    Based on the total number of producers (215), the most recent 
three-year average fresh prune production of 4,359 tons (from Committee 
records) and the most recent three-year average producer price of $303 
per ton as reported by the National Agricultural Statistics Service, 
the average annual revenue from the sale of fresh prunes is 
approximately $6,143 per producer. In addition, based on Committee 
records and 2003 f.o.b. prices ranging from $8.50 to $9.50 per 30-pound 
container as reported by the AMS Market News Service, the entire 
Washington-Oregon fresh prune industry handles less than $5,000,000 
worth of prunes. In view of the foregoing, 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 2004-2005 and subsequent 
fiscal periods from $1.50 to $1.75 per ton for prunes. The Committee 
unanimously recommended 2004-2005 expenditures of $7,454 and the $1.75 
per ton assessment rate. The proposed assessment rate of $1.75 is $0.25 
higher than the 2003-2004 rate. With an estimated 2004-2005 prune crop 
of 4,500 tons, the $1.75 rate should provide the Committee with $7,875 
in assessment income, which would be adequate to cover budgeted 
expenses. The Committee recommended the higher assessment rate to help 
ensure that budgeted expenses are covered and that its monetary reserve 
would not have to be used. Funds in the reserve ($4,900 as of March 31, 
2004), would be kept within the maximum permitted by the order of 
approximately one fiscal period's operational expenses (Sec.  924.42).
    The major expenditures recommended by the Committee for the 2004-
2005 fiscal period include $3,928 for employee salaries, $576 for rent 
and maintenance, $500 for Committee travel, and $475 for the annual 
financial audit. These budgeted expenses are the same as those approved 
for the 2003-2004 fiscal period.
    The Committee discussed alternatives to this rule, including 
alternative expenditure levels. Lower assessment rates were considered, 
but not recommended because they would not generate the income 
necessary to administer the program with an adequate reserve.
    A review of historical information and preliminary information 
pertaining to the upcoming crop year indicates that the producer price 
for the 2004-2005 season could range from about $273 per ton and about 
$351 per ton. Therefore, the estimated assessment revenue for the 2004-
2005 fiscal period as a percentage of total producer revenue could 
range between 0.50 and 0.64 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 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 and participate in the Committee's deliberations 
on all issues. Like all Committee meetings, the May 25, 2004, 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. 
USDA 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.ama.usda.gov/fv/moab.html. Any questions about the compliance 
guide should be sent to Jay Guerber at the previously mentioned

[[Page 42901]]

address in the FOR FURTHER INFORMATION CONTACT section.
    A 15-day comment period is provided to allow interested persons to 
respond to this proposed rule. Fifteen days is deemed appropriate 
because: (1) The 2004-2005 fiscal period began on April 1, and the 
marketing order requires that the rate of assessment for each fiscal 
period apply to all assessable Washington-Oregon fresh prunes handled 
during such fiscal period; (2) the Committee needs to have sufficient 
funds to pay for 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

    Plums, Prunes, Marketing agreements, 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 IN 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 or after April 1, 2004, an assessment rate of $1.75 per ton is 
established for the Washington-Oregon Fresh Prune Marketing Committee.

    Dated: July 13, 2004.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 04-16272 Filed 7-16-04; 8:45 am]
BILLING CODE 3410-02-P