[Federal Register: March 28, 2005 (Volume 70, Number 58)]
[Rules and Regulations]               
[Page 15560-15563]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28mr05-3]                         

-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Docket No. FV05-993-1 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 $4.00 to $6.00 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 very small, and the higher assessment rate is needed to 
generate funds to meet program expenses and provide an adequate 
financial reserve. The crop year began August 1 and ends July 31. The 
assessment rate will remain in effect indefinitely unless modified, 
suspended, or terminated.

EFFECTIVE DATE: March 29, 2005.

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;

[[Page 15561]]

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 No. 110 and Marketing 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 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 $4.00 to $6.00 
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 are 
thus in a position to formulate an appropriate budget and assessment 
rate. The assessment rate is formulated and discussed in a public 
meeting. Thus, all directly affected persons have an opportunity to 
participate and provide input.
    The committee recommended an assessment rate of $4.00 per salable 
ton of prunes for the 2004-05 and subsequent crop years on June 23, 
2004. USDA approved that assessment rate and published it in the 
Federal Register on September 28, 2004 (69 FR 55733.) That assessment 
rate was to 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. At the time of the June 23 meeting, the estimated prune crop 
was expected to be 68,950 salable tons.
    However, the committee met again on December 8, 2004, and 
unanimously recommended an increased assessment rate of $6.00 per ton 
of salable dried prunes and an increase in 2004-05 expenditures to 
$283,218. At its June 23, 2004, meeting, the committee recommended 
expenditures totaling $275,800. The assessment rate of $6.00 per ton is 
$2.00 higher than the rate currently in effect, and $4.00 per ton more 
than the assessment rate in effect during the 2003-2004 crop year.
    The committee recommended a higher assessment rate because a very 
small crop was received by handlers during the crop year. The salable 
prune production this year is expected to be only 47,203 tons, the 
smallest crop since 1918. The assessment rate of $6.00 per ton is 
expected to provide sufficient funds for committee operations this year 
and provide an adequate financial reserve.
    In comparison, the budgeted expenditures for the 2003-2004 crop 
year were $322,022 and the assessment rate was $2.00 per salable ton of 
prunes, based upon an estimated crop of 170,500 salable tons.
    The following table compares the major budget expenditures 
recommended by the committee on December 8, 2004, and major budget 
expenditures in the previously-approved 2004-05 budget.

------------------------------------------------------------------------
                                                   Approved     Revised
            Budget expense categories               budget      budget
                                                    2004-05     2004-05
------------------------------------------------------------------------
Total Personnel Salaries........................    $181,335    $178,335
Total Operating Expenses........................      84,931      75,431
Reserve for Contingencies.......................       9,534      29,452
------------------------------------------------------------------------

    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 to be 47,203 salable tons, which should provide $283,218 in 
assessment income. Income derived from handler assessments is expected 
to be adequate to cover budgeted expenses. The committee is authorized 
to use excess assessment funds from the 2004-05 crop year (currently 
estimated at $29,452) for up to 5 months beyond the end of the crop 
year to meet 2005-06 crop year expenses. At the end of the 5-month 
period, the committee must refund or credit excess funds to handlers, 
as prescribed by Sec.  993.81(c).
    The 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 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)

[[Page 15562]]

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. The Small Business Administration (13 CFR 
121.201) defines small agricultural producers as those whose annual 
receipts are less than $750,000, and small agricultural service firms 
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. Therefore, 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 $4.00 to $6.00 per ton of salable dried prunes. The 
committee unanimously recommended revised 2004-05 expenditures of 
$283,218 and an increased assessment rate of $6.00 per ton of salable 
dried prunes at the meeting on December 8, 2004. The recommended 
expenditures are slightly higher than the committee's initial estimate 
of $275,800 for 2004-05. The assessment rate of $6.00 per ton is $2.00 
higher than the current rate. The quantity of salable dried prunes for 
the 2004-05 crop year is now estimated at 47,203 salable tons. Thus, 
the $6.00 rate should provide $283,218 in assessment income and be 
adequate to meet this year's expenses.
    The following table compares the major budget expenditures 
recommended by the committee on December 8, 2004 and major budget 
expenditures in the previously-approved 2004-05 budget.

------------------------------------------------------------------------
                                                   Approved     Revised
            Budget expense categories               budget      budget
                                                    2004-05     2004-05
------------------------------------------------------------------------
Total Salaries..................................    $181,335    $178,331
Operating Expenses..............................      84,931      75,431
Reserve for Contingencies.......................       9,534      29,452
------------------------------------------------------------------------

    Prior to arriving at its budget of $283,218, 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 $4.00 per ton assessment rate. However, an assessment 
rate of $4.00 per ton in combination with the estimated crop of 47,203 
salable tons would not generate sufficient monies to fund all the 
budget items for 2004-05 and provide an adequate financial reserve. The 
assessment rate of $6.00 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 2004-05 crop year (currently estimated at $29,452) for up to 5 
months beyond the end of the crop year to fund 2005-06 crop year 
expenses. At the end of the 5-month period, the committee must refund 
or credit excess funds to handlers, as prescribed by Sec.  993.81(c). 
Anticipated assessment income collected during 2004-05 would be 
adequate to cover authorized expenses.
    The grower price for the 2004-05 crop year is expected to average 
about $750 per salable ton of dried prunes. Based on an estimated 
47,203 salable tons of dried prunes, assessment revenue during the 
2004-05 crop year is 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 participate in committee 
deliberations on all issues. Like all committee meetings, the December 
8, 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 February 4, 2005 (70 FR 5944). Copies of the proposed rule 
were also provided to prune handlers. Finally, the proposal was made 
available through the Internet by USDA and the Office of the Federal 
Register. A 30-day comment period ending on March 7, 2005, 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 on August 1, 2004, and the marketing order requires 
that the rate of assessment for each crop year apply to all assessable 
prunes handled during the crop year. Further, the Committee needs 
sufficient funds to pay its expenses which are incurred on a continuous 
basis. Handlers are aware of this rule which was unanimously 
recommended at a public meeting. Also, a 30-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.


0
For the reasons set forth in the preamble, 7 CFR part 993 is amended as 
follows:

[[Page 15563]]

PART 993--DRIED PRUNES PRODUCED IN CALIFORNIA

0
1. The authority citation for 7 CFR part 993 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.


0
2. Section 993.347 is revised to read as follows:


Sec.  993.347  Assessment rate.

    On and after August 1, 2004, an assessment rate of $6.00 per ton is 
established for California dried prunes.

    Dated: March 22, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-5984 Filed 3-25-05; 8:45 am]

BILLING CODE 3410-02-P