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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A99-17891

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** July 14, 1999
- **Citation:** 64 FR 37888

## Text

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 924

[Docket No. FV99-924-1 PR]

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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule would increase the assessment rate from $1.00 to
$1.50 per ton of fresh prunes established for the Washington-Oregon
Fresh Prune Marketing Committee (Committee) under Marketing Order No.
924 for the 1999-2000 and subsequent fiscal periods. The Committee is
responsible for local administration of the marketing order which
regulates the handling of fresh prunes grown in designated counties in
Washington and Umatilla County, Oregon. Authorization to assess fresh
prune handlers enables the Committee to incur expenses that are
reasonable and necessary to administer the program. The 1999-2000
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 13, 1999.

ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent to the Docket Clerk, Fruit
and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456,
Washington, DC 20090-6456; Fax (202) 720-5698; or E-mail:
[email protected]. 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.

FOR FURTHER INFORMATION CONTACT: Teresa L. Hutchinson, Northwest
Marketing Field Office, Fruit and Vegetable Programs, AMS, USDA, 1220
SW Third Avenue, room 369, Portland, OR 97204; telephone: (503) 326-
2724, Fax: (503) 326-7440; or George J. Kelhart, Marketing Order
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room
2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202)
720-2491, Fax: (202) 720-5698. Small businesses may request information
on complying with this regulation, or obtain a guide on complying with
fruit, vegetable, and specialty crop marketing agreements and orders by
contacting Jay Guerber, Marketing Order Administration Branch, Fruit
and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456,
Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 720-
5698, or E-mail: Jay.G[email protected]. You may view the marketing
agreement and order small business compliance guide at the following
web site: http://www.ams.usda.gov/fv/moab.html.

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order
No. 924, as amended (7 CFR part 924), regulating the handling of fresh
prunes grown in designated counties in Washington and Umatilla County,
Oregon, hereinafter referred to as the ``order.'' The marketing 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 (Department) 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 fresh 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 fresh prunes beginning April 1, 1999, and continue until
modified, 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 the Secretary 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 the Secretary 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 the
Secretary's ruling on the petition, provided an action is filed not

[[Page 37889]]

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 1999-2000 and subsequent fiscal periods from $1.00 to
$1.50 per ton of fresh prunes handled.
The Washington-Oregon fresh prune marketing order provides
authority for the Committee, with the approval of the Department, to
formulate an annual budget of expenses and collect assessments from
handlers to administer the program. The Committee consists of six
producer members and three handler members, each of whom is 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 budget and assessment rate were
discussed at a public meeting and all directly affected persons had an
opportunity to participate and provide input.
For the 1998-99 and subsequent fiscal periods, the Committee
recommended, and the Department approved, an assessment rate of $1.00
per ton that would continue in effect from fiscal period to fiscal
period indefinitely unless modified, suspended, or terminated by the
Secretary upon recommendation and information submitted by the
Committee or other information available to the Secretary.
The Committee met on May 27, 1999, and unanimously recommended
1999-2000 expenditures of $7,630 and an assessment rate of $1.50 per
ton of fresh prunes handled. In comparison, last year's budgeted
expenditures were $7,003. The assessment rate of $1.50 is $0.50 higher
than the rate currently in effect. The Committee recommended an
increased assessment rate because assessable 1999-2000 tonnage is
expected to be smaller than the 5-year average of 4,985 tons, and the
current rate would not generate enough income to adequately administer
the program. The Committee also plans on hiring an additional part-time
staff person which would increase its salary expense.
Major expenses recommended by the Committee for the 1999-2000
fiscal period include $3,560 for salaries, $1,000 for travel, $528 for
rent and maintenance, and $475 for its annual audit. Budgeted expenses
for these items in 1998-99 were $2,880, $1,000, $528, and $475,
respectively.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses by expected shipments of Washington-
Oregon fresh prunes. Fresh prune shipments for the year are estimated
at 4,600 tons, which should provide $6,900 in assessment income. Income
derived from handler assessments, along with funds from the Committee's
authorized reserve, should be adequate to cover budgeted expenses.
Funds in the reserve (currently $6,013) 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 the Secretary upon
recommendation and information submitted by the Committee or other
available information.
Although this 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 the
Department. Committee meetings are open to the public and interested
persons may express their views at these meetings. The Department would
evaluate 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
1999-2000 budget and those for subsequent fiscal periods would be
reviewed and, as appropriate, approved by the Department.
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, the 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 100 producers of fresh prunes in the
production area and approximately 12 handlers subject to regulation
under the marketing order. Small agricultural producers have been
defined by the Small Business Administration (13 CFR 121.601) as those
having annual receipts less than $500,000 and small agricultural
service firms are defined as those whose annual receipts are less than
$5,000,000.
Currently, all of the Washington-Oregon fresh prune handlers ship
under $5,000,000 worth of fresh prunes. In addition, based on acreage,
production, and producer prices reported by the National Agricultural
Statistics Service, and the total number of Washington-Oregon fresh
prune producers, the average annual producer revenue is approximately
$21,000. In view of the foregoing, it can be concluded that 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 1999-2000 and subsequent
fiscal periods from $1.00 to $1.50 per ton of fresh prunes handled. The
Committee met on May 27, 1999, and unanimously recommended 1999-2000
expenditures of $7,630 and an assessment rate of $1.50 per ton of fresh
prunes handled. In comparison, last year's budgeted expenditures were
$7,003. The assessment rate of $1.50 is $0.50 more than the rate
currently in effect. The Committee recommended an increased assessment
rate because assessable 1999-2000 tonnage is expected to be smaller
than the 5-year average of 4,985 tons, and the current rate would not
generate enough income to adequately administer the program. The
Committee also plans on hiring an additional part-time staff person
which would increase its salary expense.
Major expenses recommended by the Committee for the 1999-2000
fiscal period include $3,560 for salaries, $1,000 for travel, $528 for
rent and maintenance, and $475 for its annual audit. Budgeted expenses
for these items in 1998-99 were $2,880, $1,000, $528, and $475,
respectively.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses by expected shipments of fresh prunes.
Fresh prune shipments for the year are estimated at 4,600 tons, which
should provide $6,900 in assessment income. Income derived from handler
assessments, along with funds from the Committee's authorized reserve,
should be adequate to cover budgeted expenses. The reserve is within
the maximum permitted by the order of approximately one fiscal period's
operational expenses (Sec. 924.42).
The Committee considered alternative levels of assessment but
determined that, with the reduced estimate of assessable tonnage,
increasing the assessment rate to $1.50 per ton would be appropriate.
The Committee decided that an assessment rate of more than

[[Page 37890]]

$1.50 per ton would generate income in excess of that needed to
adequately administer the program.
A review of historical information and preliminary information
pertaining to the upcoming crop indicates that the producer price for
the 1999-2000 marketing season could range between $200 and $500 per
ton of fresh prunes handled. Therefore, the estimated assessment
revenue for the 1999-2000 fiscal period as a percentage of total grower
revenue should range between 0.30 and 0.75 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
marketing 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 the meeting and
participate in Committee deliberations on all issues. Like all
Committee meetings, the May 27, 1999, 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.
The Department has not identified any relevant Federal rules that
duplicate, overlap, or conflict with this rule.
A 30-day comment period is provided to allow interested persons the
opportunity to respond to this proposed rule. Thirty days is deemed
appropriate because: (1) The 1999-2000 fiscal period began on April 1,
1999, and the order requires that the rate of assessment for each
fiscal period apply to all assessable fresh prunes handled during such
fiscal period; (2) the Committee needs to have sufficient funds to pay
its 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

Marketing agreements, Plums, Prunes, 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 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 and after April 1, 1999, an assessment rate of $1.50 per ton is
established for the Washington-Oregon Fresh Prune Marketing Committee.

Dated: July 7, 1999.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-17891 Filed 7-13-99; 8:45 am]
BILLING CODE 3410-02-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-17891. Public record. Not legal advice.