[Federal Register Volume 71, Number 222 (Friday, November 17, 2006)]
[Rules and Regulations]
[Pages 66837-66839]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-19463]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Docket No. FV06-993-1 FR]


Dried Prunes Produced in California; Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule decreases the assessment rate established for the 
Prune Marketing Committee (committee) under Marketing Order No. 993 for 
the 2006-07 and subsequent crop years from $0.65 to $0.40 per ton of 
salable dried prunes. The committee locally administers the marketing 
order which regulates the handling of dried prunes produced in 
California. Assessments upon dried prune handlers are used by the 
committee to fund reasonable and necessary expenses of the program. 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 Date: November 20, 2006.

FOR FURTHER INFORMATION CONTACT: Toni Sasselli, Program Analyst, Terry 
Vawter, Marketing Specialist, or Kurt Kimmel, Regional Manager, 
California Marketing Field Office, Fruit and Vegetable Programs, AMS, 
USDA; Telephone: (559) 487-5901; Fax (559) 487-5906, or E-mail: 
[email protected], [email protected], or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber,

[[Page 66838]]

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, 2006, 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 decreases the assessment rate established for the 
committee for the 2006-07 and subsequent crop years from $0.65 to $0.40 
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 2005-06 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.
    The committee met on June 29, 2006, and unanimously recommended a 
decreased assessment rate of $0.40 per ton of salable dried prunes and 
expenditures totaling $77,215 for the 2006-07 crop year. In comparison, 
last year's approved expenditures were $89,090. The $0.40 per ton 
assessment rate is $0.25 lower than the 2005-06 rate.
    The committee recommended a lower assessment rate based on an 
estimated production of 145,000 tons of salable dried prunes. At the 
decreased assessment rate, the assessment income for the 2006-07 crop 
year should be $58,000. The committee has $19,215 of excess assessment 
income available and those funds plus assessment income should be 
adequate to cover its estimated expenses of $77,215.
    The major expenditures recommended by the committee for the 2006-07 
crop year include $48,405 for personnel salaries, $15,645 for operating 
expenses, and $13,165 for contingencies. For the 2005-06 crop year, the 
committee's budgeted expenses for these items were $45,945, $16,755, 
and $26,390, respectively.
    The assessment rate recommended by the committee was derived by 
dividing the handler assessment revenue needed to meet expenses by the 
estimated salable tons of California dried prunes. Dried prune 
production for the year is estimated to be 145,000 salable tons, which 
should provide $58,000 in assessment income. Income derived from 
handler assessments plus excess funds from the 2005-06 crop year should 
be adequate to cover budgeted expenses.
    The committee is authorized under Sec.  993.81(c) of the order to 
use excess assessment funds from the 2005-06 crop year (estimated at 
$19,215) for up to 5 months beyond the end of the crop year to meet 
2006-07 crop year expenses. At the end of the 5 months, the committee 
must either refund or credit excess funds to handlers.
    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 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 2006-07 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 having annual 
receipts less than $750,000, and small agricultural service

[[Page 66839]]

firms as those whose annual receipts are less than $6,500,000.
    An estimated 1,068 of the 1,100 producers (97.1 percent) have 
incomes of less than $750,000 and would be considered small producers. 
Fourteen of the 22 handlers (63.6 percent) have incomes from handling 
prunes of less than $6,500,000 and could be considered small handlers. 
Therefore, the majority of handlers and producers of California dried 
prunes may be classified as small entities.
    This rule decreases the assessment rate established for the 
committee and collected from handlers for the 2006-07 and subsequent 
crop years from $0.65 to $0.40 per ton of salable dried prunes.
    The committee met on June 29, 2006, and unanimously recommended a 
2006-07 total budget of $77,215 and a decreased assessment rate of 
$0.40 per ton of salable dried prunes. The recommended budget of 
$77,215 for the 2006-07 crop year is smaller than the budgets in 
previous crop years. The $0.40 per ton assessment rate is $0.25 lower 
than the 2005-06 rate. The quantity of salable dried prunes for the 
2006-07 crop year is estimated at 145,000 tons, compared to 94,402 tons 
for the 2005-06 crop year.
    Prior to arriving at its budget of $77,215, the committee 
considered information from various sources, including the committee's 
Executive Subcommittee. Alternative assessment rates, including the 
rate currently in effect, and different expenditure levels were 
discussed by the subcommittee and the committee. An alternative to this 
action would be to continue with the $0.65 per ton assessment rate. 
However, an assessment rate of $0.40 per ton of salable dried prunes 
and excess funds from the 2005-06 crop year will provide enough income 
to fund the committee's operations.
    Therefore, the committee agreed that $0.40 per ton of salable dried 
prunes is an acceptable assessment rate. Section 993.81(c) of the order 
provides the committee the authority to use excess assessment funds 
from the 2005-06 crop year (estimated at $19,215) 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 must either refund or credit 
excess funds to handlers.
    A review of historical information and preliminary data pertaining 
to the 2006-07 crop year indicates that the producer price for the 
2006-07 crop year is expected to average between $1,500 and $1,600 per 
ton of salable dried prunes. Based on an estimated 145,000 salable tons 
of dried prunes, assessment revenue as a percentage of producer revenue 
during the 2006-07 crop year is expected to be between .025 and .027 
percent.
    This action decreases 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 29, 2006, meeting was public and all entities, both large and 
small, were encouraged 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.
    The AMS is committed to complying with the E-Government Act, to 
promote the use of the Internet and other information technologies to 
provide increased opportunities for citizen access to Government 
information and services, and for other purposes.
    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 September 22, 2006. Copies of the proposed rule were also 
mailed or sent via facsimile to all dried 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 October 23, 
2006, was provided for interested persons to respond to the proposal. 
One comment was received. The commenter was of the view that the rule 
was confusing. We disagree. This action is similar to previous actions 
published in the Federal Register concerning assessments on handlers 
under marketing order programs. Accordingly, no changes will be made to 
the proposed rule based on the comment 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 is 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 crop year 
began on August 1, 2006, and handlers are already receiving 2006-07 
crop dried prunes from growers. The decreased assessment rate applies 
to all dried prunes received during the 2006-07 year and subsequent 
seasons, and this action reduces the assessment rate. Further, 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.

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, 2006, an assessment rate of $0.40 per ton of 
salable dried prunes is established for California dried prunes.

    Dated: November 14, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
 [FR Doc. E6-19463 Filed 11-16-06; 8:45 am]
BILLING CODE 3410-02-P