[Federal Register: September 8, 2004 (Volume 69, Number 173)]
[Rules and Regulations]
[Page 54199-54201]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08se04-2]
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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