FR Doc 05-24544

[Federal Register: December 29, 2005 (Volume 70, Number 249)]
[Rules and Regulations]
[Page 76971-76973]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29de05-1]

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Rules and Regulations
Federal Register
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[[Page 76971]]

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Docket No. FV05-993-5 FIR]

Dried Prunes Produced in California; Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final
rule, without change, an interim final rule which decreased the
assessment rate established for the Prune Marketing Committee
(committee) under Marketing Order No. 993 for the 2005-06 and
subsequent crop years from $6.00 to $0.65 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 crop year began August 1 and ends July 31. The assessment
rate will remain in effect indefinitely unless modified, suspended, or
terminated.

EFFECTIVE DATE: January 30, 2006.

FOR FURTHER INFORMATION CONTACT: Toni Sasselli, Program Analyst, or
Terry Vawter, Marketing Specialist, California Marketing Field Office,
Fruit and Vegetable Programs, AMS, USDA; 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 issued herein will be applicable to all assessable
dried prunes beginning August 1, 2005, 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 continues in effect the action that decreased the
assessment rate established for the committee for the 2005-06 and
subsequent crop years from $6.00 to $0.65 per ton of salable dried
prunes handled.
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 at least one
public meeting. Thus, all directly affected persons have an opportunity
to participate and provide input.
For the 2004-05 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
terminate by USDA upon recommendation and information submitted by the
committee or other information available to USDA.
The committee met on June 30, 2005, and unanimously recommended a
decreased assessment rate of $0.65 per ton of salable dried prunes and
a decreased level of expenses for the 2005-06 crop year. The committee
recommended a total budget of $89,090. The assessment rate of $0.65 per
ton of salable dried prunes is $5.35 lower than the rate in effect
prior to implementation of the interim final rule.
The committee recommended a lower assessment rate based on an
estimated production of 104,500 tons of salable dried prunes. The
committee's expenses are being reduced significantly from the 2004-05
budget as the result of the August 1, 2005, suspension of the reporting
and handling requirements under the order. The assessment rate of $0.65
per ton of salable dried prunes plus excess funds from the 2004-2005
crop year are expected to provide sufficient funds for the committee's
reduced activities.
In comparison, the actual expenditures for the 2004-05 crop year

[[Page 76972]]

were $284,000 and the assessment rate was $6.00 per ton of salable
prunes, based upon 47,203 salable tons.
The following table compares the major budget expenditures
recommended by the committee on June 30, 2005, and major budget
expenditures in the 2004-05 budget.

------------------------------------------------------------------------
Budget expense categories 2004-05 2005-06
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Total Personnel Salaries................ $208,335 $45,945
Total Operating Expenses................ 54,500 16,755
Reserve for Contingencies............... 21,165 26,390
------------------------------------------------------------------------

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 104,500 salable tons, which should provide $67,925 in
assessment income. Income derived from handler assessments plus excess
funds from the 2004-2005 crop year should be adequate to cover budgeted
expenses. The committee is authorized to use excess assessment funds
from the 2004-05 crop year (currently estimated at $13,000) 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 months, the committee either refunds or
credits excess funds to handlers (Sec. 993.81(c)).
The assessment rate 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 is effective 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 would
be undertaken as necessary. The committee's 2005-06 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. 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 $6,000,000.
Eight of the 22 handlers (36.4 percent) shipped over $6,000,000 of
dried prunes and could be considered large handlers by the Small
Business Administration. Fourteen of the 22 handlers (63.6 percent)
shipped under $6,000,000 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 producers with annual
incomes over $750,000. The majority of handlers and producers of
California dried prunes may be classified as small entities.
The producer price for the 2005-06 crop year is expected to average
between $1,500 and $1,600 per ton of salable dried prunes. Based on an
estimated 104,500 salable tons of dried prunes, assessment revenue as a
percentage of producer prices during the 2005-06 crop year is expected
to be between .041 and .043 percent.
This rule continues in effect the action that decreased the
assessment rate established for the committee and collected from
handlers for the 2005-06 and subsequent crop years from $6.00 to $0.65
per ton of salable dried prunes. The committee unanimously recommended
a 2005-06 total budget of $89,090 and a decreased assessment rate of
$0.65 per ton of salable dried prunes at the meeting on June 30, 2005.
The recommended budget of $89,090 is significantly reduced for the
2005-06 crop year as compared to previous crop years. The assessment
rate of $0.65 per ton of salable dried prunes is $5.35 lower than the
previous rate. The quantity of salable dried prunes for the 2005-06
crop year is now estimated at 104,500 salable tons.
The following table compares the major budget expenditures
recommended by the committee on June 30, 2005, and major budget
expenditures in the 2004-05 budget.

Prior to arriving at its budget of $89,090, 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 $6.00 per ton assessment rate. However, an assessment
rate of $0.65 per ton of salable dried prunes and excess funds from the
2004-2005 crop year will provide enough income is to fund the
committee's reduced activities after the August 1, 2005, suspension of
the handling and reporting requirements.

[[Page 76973]]

Therefore, the Executive Subcommittee and committee agreed that
$0.65 per ton of salable dried prunes is an acceptable assessment rate.
The committee is authorized to use excess assessment funds from the
2004-05 crop year (currently estimated at $13,000) for up to 5 months
beyond the end of the crop year to meet 2003-04 crop year expenses. At
the end of the 5 months, the committee either refunds or credits excess
funds to handlers (Sec. 993.81(c)).
This action continues in effect the action that decreased the
assessment obligation imposed on handlers. Assessments are applied
uniformly on all handlers, and some of the costs may be passed on to
producers. However, decreasing the assessment rate reduces the burden
on handlers, and may reduce the burden on producers. 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 June 30, 2005, meeting was a public
meeting and all entities, both large and small, were encouraged to
express views on this issue.
This action 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.
An interim final rule concerning this action was published in the
Federal Register on September 15, 2005. The committee staff mailed
copies of the rule to all committee members, alternates, and prune
handlers. In addition, the rule was made available through the Internet
by the Office of the Federal Register and USDA. That rule provided for
a 60-day comment period which ended November 14, 2005. Three comments
were received. Two comments were not relevant to the rulemaking action,
and one comment supported the reduced assessment rate for prunes.
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.

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
Accordingly, the interim final rule amending 7 CFR part 993 which was
published at 70 FR 54469 on September 15, 2005, is adopted as a final
rule without change.

Dated: December 22, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-24544 Filed 12-28-05; 8:45 am]

BILLING CODE 3410-02-P