[Federal Register: February 4, 2005 (Volume 70, Number 23)]
[Proposed Rules]
[Page 5944-5946]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04fe05-16]
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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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[[Page 5944]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 993
[Docket No. FV05-993-1 PR]
Dried Prunes Produced in California; 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 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 begins August 1 and ends
July 31. The assessment rate would remain in effect indefinitely unless
modified, suspended, or terminated.
DATES: Comments must be received by March 7, 2005.
ADDRESSES: Interested persons are invited to submit written comments
concerning 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 e-mail: moab.docketclerk@usda.gov,
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.ams.usda.gov/fv/moab.html.
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 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 proposed herein would 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 would increase 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 it was published 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, 2004, meeting, the
[[Page 5945]]
prune crop was expected to be 68,950 salable tons.
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 proposed 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 crop 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 proposed major budget expenditures
recommended by the committee on December 8, 2004, and major budget
expenditures in the previously-approved 2004-05 budget.
------------------------------------------------------------------------
Approved Proposed
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
2003-04 crop year (currently estimated at $96,702) 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-month period, the committee must refund or credit
excess funds to handlers, as prescribed by Sec. 993.81(c).
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 in effect for an indefinite
period, the committee would 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 would
be undertaken as necessary. The committee's 2004-05 budget and those
for subsequent crop years would be reviewed and, as appropriate,
approved by USDA.
Initial 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 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 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
incomes over $750,000. The majority of handlers and producers of
California dried prunes may be classified as small entities.
This rule would increase 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 proposed 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. The Committee's earlier estimate was 68,950 salable tons. The
$6.00 rate should provide $283,218 in assessment income (6 x 47,203)
and be adequate to meet this year's expenses.
The following table compares the proposed major budget expenditures
recommended by the committee on December 8, 2004 and major budget
expenditures in the previously-approved 2004-05 budget.
------------------------------------------------------------------------
Approved Proposed
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
2003-04 crop year (currently estimated at $96,702) for up to 5 months
beyond the end of the crop year to fund 2004-05 crop year expenses. At
the end of the 5-month period, the committee must
[[Page 5946]]
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 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 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.
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 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 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.
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 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 such crop year; (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 993
Marketing agreements, Plums, Prunes, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 993 is
proposed to be 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:
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: January 31, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-2153 Filed 2-3-05; 8:45 am]
BILLING CODE 3410-02-P