[Federal Register Volume 70, Number 249 (Thursday, December 29, 2005)]
[Rules and Regulations]
[Pages 76971-76973]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24544]



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  Federal Register / Vol. 70, No. 249 / Thursday, December 29, 2005 / 
Rules and Regulations  

[[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.

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

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: [email protected].

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
------------------------------------------------------------------------
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.

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

    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