[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]
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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.
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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.
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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