Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 26343

industry to shoulder the expense of an

advertising program.

The Board met again on February 1,

1995, and recommended, by a six to

four vote, to further reduce the

assessment rate. The Board

recommended an assessment rate of .25

cents per pound. This action was taken

after the Board further evaluated its

financial position and current and

future program activities.

An assessment rate of .25 cents per

pound will generate income of

$1,675,000 based on an estimated

assessable crop of 670 million pounds.

When combined with cash and cash

equivalents held by the Board, this will

provide the Board with sufficient

income to meet its administrative

expenses and those promotional

expenses to which it is contractually

obligated for the remainder of the

current fiscal year.

To reduce the budget of expenses

previously approved ($9,435,262), the

Board deleted the funds budgeted for

reserve replenishment ($300,000) and at

its November 30, 1994, meeting,

postponed a major portion ($3.9

million) of the $4.7 million funds

budgeted for promotional activities.

These revisions will reduce the budget

to $5,235,262. The reduced budget will

provide the Board with sufficient capital

to carry into the next fiscal year to

finance operations prior to collection of

future assessments.

Concerns were raised that the

reduction of the assessment rate midway through the crop year may generate

complaints from those handlers who

relied on the final rule of September 8,

1994, which established an assessment

rate of 2.25 cents per pound, of which

handlers could receive credit-back up to

one cent per pound for their own

promotional expenditures. Some

handlers have incurred expenses that

would be eligible for credit-back under

the provisions of that rule.

Under this assessment rate reduction,

there is no assessment for these

handlers to claim credit-back against.

However, an assessment rate of .25 cents

per pound is significantly lower than

the previously established rate of 2.25

cents. Under the previous assessment of

2.25 cents, if handlers claimed creditback for the entire one cent, they would

still be required to pay 1.25 cents per

pound to the Board. Handlers will pay

significantly less even if they conducted

advertising for which they believed

credit-back would be obtained. In

addition, benefits are derived from

advertising undertaken by these

handlers.

A proposed rule concerning this rule

was published in the March 24, 1995,

Federal Register (60FR 15523), with a

30-day comment period. Two comments

were received.

The first comment received was from

an independent handler who was

concerned that some handlers will make

their final accountings to growers prior

to the finalization of the proposed rule.

If handlers make final payment to their

growers based on the proposed

assessment and USDA modifies the

proposal, the commenter states that

some of these handlers will file

petitions against USDA for modifying

the proposal under section 608c(15)(A)

of the Act. However, this final rule does

not modify the proposed rule and both

handlers and growers had adequate

notice of this change. In addition, the

marketing order does not regulate

contractual relationships between

handlers and growers.

The second comment was received

from the Office of Chief Counsel for

Advocacy of the United States Small

Business Administration (SBA). The

SBA contended that although it concurs

with the cancellation of the advertising

component of the order until legal

disputes are resolved, USDA’s assertion

that this cancellation of the advertising

program would not have a significant

economic impact on a substantial

number of small entities was illogical.

SBA contends that rational businesses

are not going to subject themselves to

the increased paperwork generated by

the advertising program for insignificant

economic gain and USDA appears to be

avoiding its responsibilities under the

RFA.

Although SBA’s comment seems to

relate to the implementation of the

almond promotional program, rather

than the elimination of that program,

consideration was given to the impact of

this rule on large and small handlers. As

stated previously in this final rule and

in the proposed rule, concerns were

raised about the handlers who have

incurred expenses that would be eligible

for credit-back. It was determined that

handlers will pay significantly less even

if they conducted advertising for which

they believed they would be entitled to

credit-back as well as derive benefits

from the advertising they conducted.

Another determination made in this

rule and in the proposed rule was that

the action taken by the Board to

minimize financial liability in the event

the pending litigation is decided

unfavorably to the Board, is sensible

and reduces economic risk to handlers.

For the above reasons, USDA

disagrees with the SBA’s assertion that

this action fails to meet the

requirements of the RFA. The program’s

impact on small businesses has been

properly addressed in this document

and in the proposed rule.

This rule reduces the assessment

obligation imposed on handlers. The

assessments are uniform for all

handlers. The assessment cost 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 the Board’s

recommendations and other relevant

information presented, it is found that

this final rule 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: (1) This rule reduces the

assessment rate currently in effect; (2)

this rule should be in effect as soon as

possible because the 1994 crop year

began on July 1, 1994; and (3) the

proposed rule provided a 30-day

comment period and the only comments

received did not oppose the reduction.

List of Subjects in 7 CFR Part 981

Almonds, Marketing agreements,

Nuts, Reporting and recordkeeping

requirements.

For the reasons set forth in the

preamble, 7 CFR part 981 is amended as

follows:

PART 981—ALMONDS GROWN IN

CALIFORNIA

1. The authority citation for 7 CFR

part 981 continues to read as follows:

Authority: 7 U.S.C. 601–674.

Note: The following section will not appear

in the Code of Federal Regulations.

2. Section 981.341 is revised to read

as follows:

§ 981.341 Expenses and assessment rate.

Expenses of $5,235,262 by the

Almond Board of California are

authorized for the crop year ending June

30, 1995. An assessment rate for the

crop year payable by each handler in

accordance with § 981.81 is fixed at .25

cents per kernel pound of almonds. Of

the .25 cents assessment rate, none is

available for handler credit-back

pursuant to § 981.441.

Dated: May 11, 1995.

Sharon Bomer Lauritsen,

Deputy Director, Fruit and Vegetable Division.

[FR Doc. 95–12145 Filed 5–16–95; 8:45 am]

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