[Federal Register Volume 69, Number 173 (Wednesday, September 8, 2004)]
[Rules and Regulations]
[Pages 54199-54201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20273]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 924

[Docket No. FV04-924-1 FR]


Fresh Prunes Grown in Designated Counties in Washington and in 
Umatilla County, OR; 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) 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 will remain in 
effect indefinitely unless modified, suspended, or terminated.

EFFECTIVE DATE: September 9, 2004.

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,

[[Page 54200]]

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 issued herein 
will be applicable to all assessable prunes beginning April 1, 2004, 
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 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 increases 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 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 should be 
adequate to cover the recommended $7,454 budget for 2004-2005. Funds in 
the reserve ($4,900 as of March 31, 2004), 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 USDA 
upon recommendation and information submitted by the Committee or other 
available information.
    Although the 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 USDA. 
Committee meetings are open to the public and interested persons may 
express their views at these meetings. USDA will evaluate the 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 2004-2005 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, 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 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-

[[Page 54201]]

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 increases 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 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 and 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 will not 
have to be used. Funds in the reserve ($4,900 as of March 31, 2004), 
will 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 have generated 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 to 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 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 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.
    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.
    USDA 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 19, 2004 (69 FR 42899). Copies of the proposed rule 
were also mailed or sent via facsimile to Committee members. Finally, 
the proposal was made available through the Internet by USDA and the 
Office of the Federal Register. A 15-day comment period ending August 
3, 2004, was provided for interested persons to respond to the 
proposal. 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.ama.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 that good 
cause exists for not postponing the effective date of this rule until 
30 days after publication in the Federal Register because handlers are 
already receiving 2004 crop fresh prunes from growers. 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. The 
Committee needs to have sufficient funds to pay for expenses which are 
incurred on a continuous basis. Further, handlers are aware of this 
action which was unanimously recommended by the Committee at a public 
meeting. Also, a 15-day comment period was provided for in the proposed 
rule, and no comments were received.

List of Subjects in 7 CFR Part 924

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


0
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 IN UMATILLA COUNTY, OREGON

0
1. The authority citation for 7 CFR part 924 continues to read as 
follows:

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


0
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: September 1, 2004.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 04-20273 Filed 9-7-04; 8:45 am]
BILLING CODE 3410-02-P