Dried Prunes Produced in California; Expenses and Assessment Rate

DEPARTMENT OF AGRICULTURE

7 CFR Part 993

[Docket No. FV94-993-1IFR]

Dried Prunes Produced in California; Expenses and Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule authorizes expenditures and

establishes an assessment rate under Marketing Order No. 993 for the

1994-95 crop year. Authorization of this budget enables the Prune

Marketing Committee (Committee) to incur expenses that are reasonable

and necessary to administer the program. Funds to administer this

program are derived from assessments on handlers.

DATES: Effective beginning August 1, 1994, through July 31, 1995.

Comments received by September 12, 1994, will be considered prior to

issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments

concerning this action. Comments must be sent in triplicate to the

Docket Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456,

room 2523-S, Washington, DC 20090-6456, FAX 202-720-5698. 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.

FOR FURTHER INFORMATION CONTACT: Martha Sue Clark, Marketing Order

Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.

Box 96456, room 2523-S, Washington, DC 20090-6456, telephone 202-720-

9918; or Richard P. Van Diest, California Marketing Field Office, Fruit

and Vegetable Division, AMS, USDA, 2202 Monterey Street, suite 102B,

Fresno, California 93721, telephone 209-487-5901.

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 produced in California. 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 (Department) is issuing this rule in

conformance with Executive Order 12866.

This interim final rule has been reviewed under Executive Order

12778, Civil Justice Reform. Under the provisions of the marketing

order now in effect, California prunes are subject to assessments. It

is intended that the assessment rate as issued herein will be

applicable to all assessable prunes handled during the 1994-95 crop

year, which begins August 1, 1994, and ends July 31, 1995. This interim

final 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 the Secretary a

petition stating that the order, any provisions of the order, or any

obligation imposed in connection with the order is not in accordance

with law and requesting 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 the Secretary 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 in equity to review

the Secretary's ruling on the petition, provided a bill in equity is

filed not later than 20 days after the date of the entry of the ruling.

Pursuant to the requirements set forth in the Regulatory

Flexibility Act (RFA), the Administrator of the Agricultural Marketing

Service (AMS) has considered the economic impact of this rule on small

entities.

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 1,360 producers of California prunes under

this marketing order, and approximately 20 handlers. Small agricultural

producers have been defined by the Small Business Administration (13

CFR 121.601) as those having annual receipts of less than $500,000, and

small agricultural service firms are defined as those whose annual

receipts are less than $5,000,000. The majority of California prune

producers and handlers may be classified as small entities.

The budget of expenses for the 1994-95 crop year was prepared by

the Prune Marketing Committee, the agency responsible for local

administration of the marketing order, and submitted to the Department

of Agriculture for approval. The members of the Committee are producers

and handlers of California prunes. They are familiar with the

Committee's needs and with the costs of goods and services in their

local area and are thus in a position to formulate an appropriate

budget. The budget was formulated and discussed in a public meeting.

Thus, all directly affected persons have had an opportunity to

participate and provide input.

The assessment rate recommended by the Committee was derived by

dividing anticipated expenses by expected shipments of dried California

prunes. Because that rate will be applied to actual shipments, it must

be established at a rate that will provide sufficient income to pay the

Committee's expenses.

The Committee met June 28, 1994, and unanimously recommended a

1994-95 budget of $270,200, $21,395 more than the previous year. Budget

items for 1994-95 which have increased compared to those budgeted for

1993-94 (in parentheses) are: Executive salaries, $83,850 ($81,500),

clerical salaries, $18,650 ($17,600), employee benefits, $15,800

($14,500), audit fees, $3,650 ($3,500), office rent, $21,500 ($19,000),

postage and messenger, $5,000 ($4,500), telephone, $2,500 ($2,000),

fieldman travel, $4,000 ($3,500), purchase of equipment, $4,500

(3,000), acreage survey $10,000 ($5,000), and reserve for

contingencies, $19,250 ($6,705). Items which have decreased compared to

the amount budgeted for 1993-94 (in parentheses) are: Temporary help,

$5,000 ($8,000), and data processing, $3,500 ($7,000). All other items

are budgeted at last year's amounts.

The Committee also unanimously recommended an assessment rate of

$1.60 per salable ton, $0.30 less than the previous year. This rate,

when applied to anticipated shipments of 168,875 salable tons, will

yield $270,200 in assessment income, which will be adequate to cover

budgeted expenses. Any funds not expended by the Committee during a

crop year may be used, pursuant to Sec. 993.81(c), for a period of five

months subsequent to that crop year. At the end of such period, the

excess funds are returned or credited to handlers.

While this action will impose some additional costs on handlers,

the costs are in the form of uniform assessments on handlers. Some of

the additional costs may be passed on to producers. However, these

costs will be offset by the benefits derived by the operation of the

marketing order. Therefore, the Administrator of the AMS has determined

that this action will not have a significant economic impact on a

substantial number of small entities.

After consideration of all relevant matter presented, including the

information and recommendations 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 upon good

cause that it is impracticable, unnecessary, and contrary to the public

interest to give preliminary notice prior to putting this rule into

effect and that good cause exists for not postponing the effective date

of this action until 30 days after publication in the Federal Register

because: (1) The Committee needs to have sufficient funds to pay its

expenses which are incurred on a continuous basis, (2) the crop year

begins on August 1, 1994, and the marketing order requires that the

rate of assessment for the fiscal period apply to all assessable

California prunes handled during the crop year; (3) handlers are aware

of this action which was unanimously recommended by the Committee at a

public meeting and is similar to other budget actions issued in past

years; and (4) this interim final rule provides a 30-day comment

period, and all comments timely received will be considered prior to

finalization of this action.

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

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. A new Sec. 993.345 is added to read as follows:

Note: This section will not appear in the Code of Federal

Regulations.

Sec. 993.345 Expenses and assessment rate.

Expenses of $270,200 by the Prune Marketing Committee are

authorized, and an assessment rate of $1.60 per salable ton of dried

prunes is established for the crop year ending July 31, 1995.

Unexpended funds may be carried over as a reserve within the

limitations specified in Sec. 993.81(c).

Dated: August 8, 1994.

Eric M. Forman,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 94-19783 Filed 8-11-94; 8:45 am]

BILLING CODE 3410-02-P