[Federal Register Volume 74, Number 141 (Friday, July 24, 2009)]
[Proposed Rules]
[Pages 36616-36618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17601]


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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. 74, No. 141 / Friday, July 24, 2009 / 
Proposed Rules

[[Page 36616]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 924

[Doc. No. AMS-FV-09-0040; FV09-924-1 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 2009-10 and subsequent fiscal periods from $1.00 to $2.00 per ton 
for fresh prunes. The Committee is responsible for local administration 
of the marketing order regulating the handling of fresh prunes grown in 
designated counties in Washington and in Umatilla County, Oregon. 
Assessments upon handlers of fresh prunes are used by the Committee to 
fund reasonable and necessary expenses of the program. The fiscal 
period for the marketing order begins 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 24, 2009.

ADDRESSES: Interested persons are invited to submit written comments 
regarding 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. All comments submitted in response to this rule 
will be included in the record and will be made available to the 
public. Please be advised that the identity of the individuals or 
entities submitting the comments will be made public on the Internet at 
the address provided above.

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: <a href="/cdn-cgi/l/email-protection#54063b363126207a172126262d143539277a212730357a333b22"><span class="__cf_email__" data-cfemail="91c3fef3f4e3e5bfd2e4e3e3e8d1f0fce2bfe4e2f5f0bff6fee7">[email protected]</span></a> or 
<a href="/cdn-cgi/l/email-protection#bef9dfccc7fa90f1d2cdd1d0fedfd3cd90cbcddadf90d9d1c8"><span class="__cf_email__" data-cfemail="1156706368553f5e7d627e7f51707c623f646275703f767e67">[email protected]</span></a>.
    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: <a href="/cdn-cgi/l/email-protection#6e240f1740291b0b1c0c0b1c2e0f031d401b1d0a0f40090118"><span class="__cf_email__" data-cfemail="216b40580f6654445343445361404c520f545245400f464e57">[email protected]</span></a>.

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 proposed herein would be applicable to all 
assessable Washington-Oregon prunes beginning April 1, 2009, 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 would increase the assessment rate established for the 
Committee for the 2009-10 and subsequent fiscal periods from $1.00 to 
$2.00 per ton for Washington-Oregon prunes handled under the order.
    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 of prunes 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 is formulated and 
discussed at a public meeting. Thus, all directly affected persons have 
an opportunity to participate and provide input.
    For the 2007-08 and subsequent fiscal periods, the Committee 
recommended, and the USDA approved, an assessment rate of $1.00 per ton 
of prunes handled. This 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 June 2, 2009, and unanimously recommended 
2009-10 expenditures of $8,893. The major expenditures recommended by 
the

[[Page 36617]]

Committee for the 2009-10 fiscal period include $4,800 for the 
management fee, $800 for Committee travel, $100 for compliance, $2,000 
for the financial audit, and $1,193 for equipment maintenance, 
insurance, bonds, and miscellaneous expenses. In comparison, the $6,893 
budget approved for the 2008-09 fiscal period included $4,800 for the 
management fee, $800 for travel expenses, $100 for compliance, and 
$1,150 for audits, equipment maintenance, insurance, bonds, and 
miscellaneous expenses. The major increase in expenses this year is in 
the audit category.
    The assessment rate recommended by the Committee was derived by 
dividing the anticipated expenses of $8,893 by the projected 2009 4,400 
ton prune production. Applying the $2.00 per ton assessment rate to 
this crop estimate should provide $8,800 in assessment income, which, 
in addition to a small draw of approximately $93.00 from the 
Committee's monetary reserve should adequately cover the budgeted 
expenditures. The reserve balance at the end of the 2008-09 fiscal 
period was $5,160. The estimated 2009-10 year-end reserve is $5,067, 
which is within the order's limit of approximately one fiscal period's 
operational expenses. The Committee recommended the higher assessment 
rate in order that the budgeted expenditures--$2,000 higher than the 
2008-09 approved budget--are adequately covered and that the current 
reserve balance is maintained.
    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 this assessment rate would be effective 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 the Committee's meetings are available from the Committee or 
USDA. The Committee's meetings are open to the public and interested 
persons may express their views at these meetings. USDA would evaluate 
the Committee's 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 
2009-10 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) (5 U.S.C. 601-612), 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 
$7,000,000.
    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 $7,930 per producer in 
2008. This estimate is based on 215 producers with a total production 
of about 3,514 tons of fresh prunes selling for an average of $485 per 
ton. In addition, based on AMS Market News Service reports that 2008 
f.o.b. prices ranged from $17.00 to $19.00 per 30-pound container, the 
entire Washington-Oregon fresh prune industry handled less than 
$7,000,000 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 would increase the assessment rate established for the 
Committee and collected from handlers for the 2009-10 and subsequent 
fiscal periods from $1.00 to $2.00 per ton for prunes handled under the 
order's authority. The Committee also unanimously recommended 2009-10 
expenditures of $8,893, which is $2,000 higher than the $6,893 budget 
approved for the 2008-09 fiscal period. When the recommended $2.00 per 
ton assessment rate is levied against the 2009-10 prune crop estimate 
of 4,400 tons, the Committee expects assessment income of about $8,800. 
The Committee recommended the higher assessment rate to help ensure 
that the 2009-10 budgeted expenses are adequately covered and that the 
current reserve balance is maintained. With the 4,400 crop estimate 
this year, the Committee would have realized income of about $4,400 
without the assessment rate increase. This would have forced the 
Committee to draw approximately $4,493 from its $5,160 reserve fund, 
leaving an inadequate amount in reserve.
    The major expenditures recommended by the Committee for the 2009-10 
fiscal period include $4,800 for the management fee, $800 for Committee 
travel, $100 for compliance, $2,000 for the financial audit, and $1,193 
for equipment maintenance, insurance, bonds, and miscellaneous 
expenses. In comparison, the $6,893 budget approved for the 2008-09 
fiscal period included $4,800 for the management fee, $800 for travel 
expenses, $100 for compliance, and $1,193 for audits, equipment 
maintenance, insurance, bonds, and miscellaneous expenses. The major 
increase in expenses this year is in the audit category.
    The Committee discussed alternatives to this recommended assessment 
increase. Leaving the assessment rate at the current $1.00 per ton was 
discussed, but not considered since such a rate would not have 
generated income adequate to maintain the Committee's reserve at or 
about the current level.
    A review of historical information and preliminary information 
pertaining to the upcoming crop year indicates that the producer price 
for the 2009-10 season could average about $500 per ton for fresh 
Washington and Oregon grown prunes. Therefore, the estimated assessment 
revenue for the 2009-10 fiscal period as a percentage of total producer 
revenue is 0.4 percent for Washington-Oregon prunes.
    This action would increase the assessment obligation imposed on 
handlers. While assessments impose some additional costs on handlers, 
the costs are 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 prune industry and all interested persons 
were invited to attend and participate in Committee deliberations on 
all issues. Like all Committee meetings, the June 2, 2009, meeting was 
a public meeting and all entities, both large and small, were able to 
express views on the issues. Finally,

[[Page 36618]]

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 
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. Additionally, 
USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this rule.
    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 order may be viewed at: http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to 
Jay Guerber at the previously mentioned address in the FOR FURTHER 
INFORMATION CONTACT section.
    A 30-day comment period is provided to allow interested persons to 
respond to this proposed rule. Thirty days is deemed appropriate 
because: (1) The 2009-10 fiscal period began on April 1, 2009, and the 
order requires that the assessment rate for each fiscal period apply to 
all assessable prunes handled during such fiscal period; (2) the 
Washington-Oregon prune harvest and shipping season is expected to 
begin in early August; (3) the Committee needs to have sufficient funds 
to pay its expenses, which are incurred on a continuous basis; and (4) 
handlers are aware of this action, which was 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

    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--PRUNES GROWN IN DESIGNATED COUNTIES IN WASHINGTON

    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, 2009, an assessment rate of $2.00 per ton is 
established for the Washington-Oregon Fresh Prune Marketing Committee.

    Dated: July 20, 2009.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. E9-17601 Filed 7-23-09; 8:45 am]
BILLING CODE 3410-02-P


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