57824 Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 

interested persons were invited to 

attend the meetings and participate in 

the industry’s deliberations.

An interim final rule concerning this 

action was published in the Federal 

Register on July 9, 2004. Copies of the 

rule were mailed by RAC staff to all 

RAC members and raisin handlers. In 

addition, the rule was made available 

through the Internet by USDA and the 

Office of the Federal Register. That rule 

provided for a 60-day comment period 

which ended September 7, 2004. 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.ams.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 RAC and other 

available information, it is hereby found 

that finalizing the interim rule, without 

change, as published in the Federal 

Register (69 FR 41385, July 9, 2004) will 

tend to effectuate the declared policy of 

the Act.

List of Subjects in 7 CFR Part 989 

Grapes, Marketing agreements, 

Raisins, Reporting and recordkeeping 

requirements.

PART 989—RAISINS PRODUCED 

FROM GRAPES GROWN IN 

CALIFORNIA

■ Accordingly, the interim final rule 

amending 7 CFR part 989 which was 

published at 69 FR 41385 on July 9, 2004, 

is adopted as a final rule without change.

Dated: September 22, 2004. 

A.J. Yates, 

Administrator, Agricultural Marketing 

Service.

[FR Doc. 04–21629 Filed 9–27–04; 8:45 am] 

BILLING CODE 3410–02–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service 

7 CFR Part 993 

[Docket No. FV04–993–2 FR] 

Dried Prunes Produced in California; 

Increased Assessment Rate

AGENCY: Agricultural Marketing Service, 

USDA.

ACTION: Final rule.

SUMMARY: This rule increases the 

assessment rate established for the 

Prune Marketing Committee 

(committee) under Marketing Order No. 

993 for the 2004–05 and subsequent 

crop years from $2.00 to $4.00 per ton 

of salable dried prunes. The committee 

locally administers the marketing order 

which regulates the handling of dried 

prunes grown in California. 

Authorization to assess dried prune 

handlers enables the committee to incur 

expenses that are reasonable and 

necessary to administer the program. 

The committee recommended a higher 

assessment rate because the 2004–05 

crop is expected to be very small and a 

higher assessment rate is needed to 

generate sufficient funds to meet 

program expenses. The crop year begins 

August 1 and ends July 31. The 

assessment rate will remain in effect 

indefinitely unless modified, 

suspended, or terminated.

DATES: Effective September 29, 2004.

FOR FURTHER INFORMATION CONTACT: Toni 

Sasselli, Program Analyst, or Terry 

Vawter, Marketing Specialist, California 

Marketing Field Office, Fruit and 

Vegetable Programs, AMS, USDA, 2202 

Monterey Street, suite 102B, Fresno, 

California 93721; telephone: (559) 487–

5901; Fax (559) 487–5906; or George 

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 

Avenue, SW., STOP 0237, Washington, 

DC 20250–0237; telephone: (202) 720–

2491, Fax: (202) 720–8938, or e-mail: 

Jay.Guerber@usda.gov.

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Agreement 

and Order No. 993, both as amended (7 

CFR part 993), regulating the handling 

of dried prunes grown in California, 

hereinafter referred to as the ‘‘order.’’

The marketing agreement and order are 

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, California dried 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 dried prunes beginning on 

August 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 2004–05 and subsequent crop years 

from $2.00 to $4.00 per ton of salable 

dried prunes. 

The California dried prune marketing 

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 of California 

dried prunes. They are familiar with the 

committee’s needs and with the costs 

for goods and services in their local area 

and, thus, are in a position to formulate 

an appropriate budget and assessment 

rate. The assessment rate is formulated 

and discussed in a public meeting. 

Therefore, all directly affected persons 

have an opportunity to participate and 

provide input. 

For the 2003–04 and subsequent crop 

years, the committee recommended, and 

USDA approved, an assessment rate that 

would continue in effect from crop year 

to crop year unless modified, 

suspended, or terminated by USDA 

upon recommendation and information 

submitted by the committee or other 

information available to USDA.

Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 57825

The committee met on June 23, 2004, 

and unanimously recommended 2004–

05 expenditures of $275,800 and an 

increased assessment rate of $4.00 per 

ton of salable dried prunes. In 

comparison, last year’s budgeted 

expenditures were $322,022 and the 

assessment rate was $2.00 per ton of 

salable dried prunes. The recommended 

assessment rate of $4.00 per ton is $2.00 

higher than the rate currently in effect. 

The committee recommended a higher 

assessment rate because a very small 

crop is expected this year. The salable 

prune production this year is expected 

to be 68,950 tons, the smallest crop 

since the early 1900’s. The assessment 

rate of $4.00 per ton is expected to 

provide sufficient funds for committee 

operations this year. The following table 

compares major budget expenditures 

recommended by the committee on June 

23, 2004, and major budget 

expenditures in the 2003–04 budget.

Budget expense 

categories 2003–04 2004–05 

Total personnel 

salaries .......... $179,726 $181,335 

Total operating 

expenses ....... 96,876 85,080 

Reserve for contingencies ...... 45,420 9,385 

The assessment rate recommended by 

the committee was derived by dividing 

anticipated expenses by the estimated 

salable tons of California dried prunes. 

Production of dried prunes for the year 

is estimated at 68,950 salable tons, 

which should provide $275,800 in 

assessment income. Income derived 

from handler assessments will be 

adequate to cover budgeted expenses. 

Interest income also will be available if 

assessment income is reduced for some 

reason. The committee is authorized to 

use excess assessment funds from the 

2003–04 crop year (currently estimated 

at $105,000) for up to 5 months beyond 

the end of the crop year to meet 2004–

05 crop year expenses. At the end of the 

5 months, the committee either refunds 

or credits the excess funds to handlers 

(§ 993.81(c)). 

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 this assessment rate will be 

in effect for an indefinite period, the 

committee will continue to meet prior to 

or during each crop year 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 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 2004–05 budget and those 

for subsequent crop years 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 1,100 

producers of dried prunes in the 

production area and approximately 22 

handlers subject to regulation under the 

marketing order. Small agricultural 

producers are defined by the Small 

Business Administration (13 CFR 

121.201) as those having annual receipts 

less than $750,000, and small 

agricultural service firms are defined as 

those whose annual receipts are less 

than $5,000,000. 

Eight of the 22 handlers (36.4 percent) 

shipped over $5,000,000 of dried prunes 

and could be considered large handlers 

by the Small Business Administration. 

Fourteen of the 22 handlers (63.6 

percent) shipped under $5,000,000 of 

dried prunes and could be considered 

small handlers. An estimated 32 

producers, or less than 3 percent of the 

1,100 total producers, would be 

considered large growers with annual 

income over $750,000. The majority of 

handlers and producers of California 

dried prunes may be classified as small 

entities. 

This rule increases the assessment 

rate established for the committee and 

collected from handlers for the 2004–05 

and subsequent crop years from $2.00 to 

$4.00 per ton of salable dried prunes. 

The committee unanimously 

recommended 2004–05 expenditures of 

$275,800 and an assessment rate of 

$4.00 per ton of salable dried prunes. 

The assessment rate of $4.00 per ton is 

$2.00 higher than the current rate. The 

quantity of assessable dried prunes for 

the 2004–05 crop year is now estimated 

at 68,950 salable tons. Thus, the $4.00 

rate should provide $275,800 in 

assessment income and be adequate to 

meet this year’s expenses. Interest 

income also will be available to cover 

budgeted expenses if the 2004–05 

expected assessment income falls short. 

The following table compares major 

budget expenditures recommended by 

the committee on June 23, 2004, and 

major budget expenditures in the 2003–

04 budget.

Budget expense 

categories 2003–04 2004–05 

Total personnel 

salaries .......... $179,726 $181,335 

Total operating 

expenses ....... 96,876 85,080 

Reserve for contingencies ...... 45,420 9,385 

Prior to arriving at its budget of 

$275,800, the committee considered 

information from various sources, such 

as the committee’s Executive 

Subcommittee. An alternative to this 

action would be to continue with the 

$2.00 per ton assessment rate. However, 

an assessment rate of $2.00 per ton in 

combination with the estimated crop of 

68,950 salable tons would not generate 

sufficient monies needed to fund all the 

budget items for 2004–05. The 

assessment rate of $4.00 per ton of 

salable dried prunes was determined by 

dividing the total recommended budget 

by the estimated salable dried prunes. 

The committee is authorized to use 

excess assessment funds from the 2003–

04 crop year (currently estimated at 

$105,000) for up to 5 months beyond the 

end of the crop year to fund 2003–04 

crop year expenses. At the end of the 5 

months, the committee either refunds or 

credits the excess funds to handlers 

(§ 993.81(c)). Anticipated assessment 

income and interest income during 

2004–05 would be adequate to cover 

authorized expenses. 

The grower price for the 2004–05 

season is expected to average above the 

estimated 2003–04 average grower price 

of about $750 per salable ton of dried 

prunes. Based on an estimated 68,950 

salable tons of dried prunes, assessment 

revenue during the 2004–05 crop year is 

57826 Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 

expected to be less than 1 percent of the 

total expected grower revenue. 

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 marketing order. In 

addition, the committee’s meeting was 

widely publicized throughout the 

California dried prune industry and all 

interested persons were invited to 

attend the meeting and encouraged to 

participate in committee deliberations 

on all issues. Like all committee 

meetings, the June 23, 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 California dried 

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 August 16, 2004 (69 FR 

50337). Copies of the proposed rule 

were also mailed or sent via facsimile to 

all prune handlers. Finally, the proposal 

was made available through the Internet 

by USDA and the Office of the Federal 

Register. A 20-day comment period 

ending September 7, 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.ams.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 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 the 

2004–05 crop year began August 1, 

2004, and the marketing order requires 

that the rate of assessment for each crop 

year apply to all assessable prunes 

handled during such period. Further, 

handlers are aware of this rule which 

was unanimously recommended at a 

public meeting. Also, a 20-day comment 

period was provided for in the proposed 

rule, and no comments were received.

List of Subjects in 7 CFR Part 993 

Marketing agreements, Plums, Prunes, 

Reporting and recordkeeping 

requirements.

■ For the reasons set forth in the 

preamble, 7 CFR part 993 is amended as 

follows:

PART 993—DRIED PRUNES 

PRODUCED IN CALIFORNIA

■ 1. The authority citation for 7 CFR part 

993 continues to read as follows:

Authority: 7 U.S.C. 601–674.

■ 2. Section 993.347 is revised to read as 

follows:

§ 993.347 Assessment rate. 

On and after August 1, 2004, an 

assessment rate of $4.00 per ton is 

established for California dried prunes.

Dated: September 22, 2004. 

A.J. Yates, 

Administrator, Agricultural Marketing 

Service.

[FR Doc. 04–21627 Filed 9–27–04; 8:45 am] 

BILLING CODE 3410–02–P

DEPARTMENT OF JUSTICE

8 CFR Parts 1003, 1212, and 1240 

[EOIR No. 130F; AG Order No. 2734–2004] 

Executive Office for Immigration 

Review; Section 212(c) Relief for 

Aliens With Certain Criminal 

Convictions Before April 1, 1997

AGENCY: Executive Office for 

Immigration Review, Justice.

ACTION: Final rule.

SUMMARY: This final rule adopts without 

substantial change the proposed rule to 

establish procedures for lawful 

permanent residents with certain 

criminal convictions arising from plea 

agreements reached prior to a verdict at 

trial to apply for relief from deportation 

or removal pursuant to former section 

212(c) of the Immigration and 

Nationality Act. The final rule also sets 

forth procedures and deadlines for filing 

motions to seek such relief before an 

immigration judge or the Board of 

Immigration Appeals for eligible aliens 

currently in proceedings or under final 

orders of deportation or removal.

DATES: This rule is effective on October 

28, 2004.

FOR FURTHER INFORMATION CONTACT:

Mary Beth Keller, General Counsel, 

Executive Office for Immigration 

Review, 5107 Leesburg Pike, Suite 2600, 

Falls Church, Virginia 22041, telephone 

(703) 305–0470.

SUPPLEMENTARY INFORMATION:

Introduction 

Response to Comments Received 

A. Ineligibility of Aliens Outside the 

United States 

B. Ineligibility of Aliens Convicted After a 

Trial 

C. Stay of Deportation or Removal 

D. The 180-Day Deadline To File a Special 

Motion To Seek Section 212(c) Relief 

E. Date of the Plea Agreement 

F. Retroactivity of IIRIRA’s Definition of 

‘‘Aggravated felony’’

G. Applicability of AEDPA 

H. The Accrual of Seven Consecutive Years 

of Lawful Unrelinquished Domicile 

I. Eligibility for Aliens Who Are Deportable 

on Grounds for Which There Do Not 

Exist Corresponding Grounds of 

Exclusion or Inadmissibility 

J. Notification to Affected Individuals 

K. Proof of Permanent Residence 

L. Applicability of the Soriano Rule 

M. Filing New Motions To Reopen After 

Previously Filing Motions To Reopen

Introduction 

On August 13, 2002, the Department 

of Justice (Department) published a 

proposed rule to permit certain lawful 

permanent residents (LPRs) to apply for 

relief under former section 212(c) of the 

Immigration and Nationality Act, 8 

U.S.C. 1182(c) (1994 Supp. II 1996), 

from deportation or removal based on 

certain criminal convictions before 

April 1, 1997 (‘‘section 212(c) relief’’). 

67 FR 52627. The proposed rule 

described procedures implementing the 

Supreme Court’s decision in INS v. St. 

Cyr, 533 U.S. 289 (2001). 

This final rule adopts the proposed 

rule without substantial change. Certain 

LPRs who pleaded guilty or nolo 

contendere to crimes before April 1, 

1997, may seek section 212(c) relief 

from being deported or removed from 

the United States on account of those 

pleas. Under this rule, eligible LPRs 

currently in immigration proceedings 

(and former LPRs under a final order of 

deportation or removal) who have not 

departed from the United States may file 

a request to apply for relief under 

former section 212(c) of the Act, as in 

effect on the date of their plea, 

regardless of the date the plea agreement 

was entered by the court. This rule is 

applicable only to certain eligible aliens 

who were convicted pursuant to plea 

agreements made prior to April 1, 1997.