FR Doc 04-21627

[Federal Register: September 28, 2004 (Volume 69, Number 187)]
[Rules and Regulations]
[Page 57824-57826]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28se04-5]

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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.

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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.

[[Page 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 (Sec. 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.

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 (Sec. 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

[[Page 57826]]

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.

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

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 $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