[Federal Register Volume 72, Number 134 (Friday, July 13, 2007)]
[Rules and Regulations]
[Pages 38463-38465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-13583]



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  Federal Register / Vol. 72, No. 134 / Friday, July 13, 2007 / Rules 
and Regulations  

[[Page 38463]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 924

[Docket No. AMS-FV-07-0087; FV07-924-1 IFR]


Fresh Prunes Grown in Designated Counties in Washington and in 
Umatilla County, Oregon; 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 
2007-2008 and subsequent fiscal periods from $1.75 to $1.00 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. Assessments upon 
fresh prune handlers are used by the Committee to fund reasonable and 
necessary expenses of 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.

DATES: Effective July 16, 2007. Comments received by September 11, 
2007, 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, 1400 Independence Avenue SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; 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.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Robert J. Curry or Gary D. Olson, 
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 E-mail: [email protected] or [email protected].
    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; or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement and Order No. 924 (7 CFR part 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, 2007, 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 decreases the assessment rate established for the 
Committee for the 2007-2008 and subsequent fiscal periods from $1.75 to 
$1.00 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 2004-2005 and subsequent fiscal periods, the Committee 
recommended, and USDA approved, an assessment rate of $1.75 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 29, 2007, and unanimously recommended 
2007-2008 expenditures of $9,043 and a decreased assessment rate of 
$1.00 per ton. In comparison, last year's budgeted expenditures were 
$5,600. The assessment rate of $1.00 is $0.75 lower than the rate in 
effect since the 2004-

[[Page 38464]]

2005 fiscal period. The Committee recommended the assessment rate 
change for the purpose of lowering its monetary reserve to a level 
commensurate with the maximum permitted by the order of approximately 
one fiscal period's operational expenses (7 CFR 924.42).
    The major expenditures recommended by the Committee for the 2007-
2008 fiscal period include $4,800 for the management fee, $1,000 for 
Committee travel expenses, $3,000 for the annual financial audit, and 
$100 for compliance. In comparison, budgeted expenses for the 2006-2007 
season were $4,200, $800, $500, and $100, respectively. In addition, 
the Committee also budgeted an additional $343 this fiscal period to 
cover the cost of insurance, bonds, equipment maintenance, and other 
possible miscellaneous expenses.
    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by expected shipments of Washington-
Oregon prunes. Applying the $1.00 per ton assessment rate to the 
Committee's 4,400 ton crop estimate should provide $4,400 in assessment 
income. This assessment income in addition to approximately $4,643 from 
the Committee's reserve would be adequate to cover the recommended 
$9,043 budget for the 2007-2008 fiscal period. As of March 31, 2007, 
there was $8,815 in the Committee's reserve. The assessment rate 
established with 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 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. USDA would 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 2007-2008 budget and those 
for subsequent fiscal periods will 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.
    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 
$6,500,000.
    Based on information compiled by both the Committee and the 
National Agricultural Statistics Service, the average annual revenue 
from the sale of fresh prunes was approximately $8,440 per producer in 
2006. This estimate is based on 215 producers with a total utilized 
production of 5,200 tons selling for an average of $349 per ton. In 
addition, based on Committee records and 2006 f.o.b. prices ranging 
from $14.00 to $16.50 per 30-pound container as reported by AMS Market 
News Service, the entire Washington-Oregon fresh prune industry handled 
less than $6,500,000 worth of prunes last season. In view of the 
foregoing, 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 2007-2008 and subsequent 
fiscal periods from $1.75 to $1.00 per ton. The Committee unanimously 
recommended 2007-2008 expenditures of $9,043 and the $1.00 per ton 
assessment rate at the May 29, 2007 meeting. The assessment rate of 
$1.00 is $0.75 lower than the rate in effect since the 2004-2005 fiscal 
period. With an estimated 2007-2008 prune crop of 4,400 tons, income 
from the $1.00 assessment combined with funds from the Committee's 
monetary reserve should be adequate to cover budgeted expenses. The 
Committee recommended the lower assessment rate to help decrease the 
monetary reserve. Funds in the reserve ($8,815 as of March 31, 2007) 
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 2007-
2008 fiscal period include $4,800 for the management fee, $1,000 for 
Committee travel expenses, $3,000 for the annual financial audit, and 
$100 for compliance.
    The Committee discussed alternatives to this rule, including 
alternative expenditure levels. Higher assessment rates were 
considered, but not recommended because of the potential of generating 
too much income and thus maintaining the reserve fund at an amount 
higher than program requirements allow.
    A review of historical information and preliminary information 
pertaining to the upcoming crop year indicates that the producer price 
for the 2007-2008 season could average about $325 per ton. Therefore, 
the estimated assessment revenue for the 2007-2008 fiscal period as a 
percentage of total producer revenue could approximate 0.31 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 and participate in the 
Committee's deliberations on all issues. Like all Committee meetings, 
the May 29, 2007 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 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. Furthermore, USDA 
has not identified any relevant Federal rules that duplicate, overlap, 
or conflict with this rule.

[[Page 38465]]

    AMS is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.
    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 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 2007-2008 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) this action decreases the 
assessment rate for assessable prunes beginning with the 2007-2008 
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

    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, 2007, an assessment rate of $1.00 per ton is 
established for the Washington-Oregon Fresh Prune Marketing Committee.

    Dated: July 9, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E7-13583 Filed 7-12-07; 8:45 am]
BILLING CODE 3410-02-P