[Federal Register Volume 64, Number 15 (Monday, January 25, 1999)]
[Rules and Regulations]
[Pages 3621-3623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1611]



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  Federal Register / Vol. 64, No. 15 / Monday, January 25, 1999 / Rules 
and Regulations  

[[Page 3621]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Docket No. FV99-993-1 FR]


Dried Prunes Produced in California; Increased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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

SUMMARY: This rule increases the current assessment rate from $2.16 to 
$3.28 per ton of salable dried prunes for the Prune Marketing Committee 
(Committee) under Marketing Order No. 993 for the 1998-99 and 
subsequent crop years. The Committee is responsible for local 
administration of 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 increased assessment rate 
is needed because the assessable tonnage is expected to be 99,750 
salable tons, or 38 percent less than the Committee's initial estimate 
for 1998-99. Increasing the assessment rate to $3.28 per ton of salable 
dried prunes will allow the Committee to meet its 1998-99 expenses and 
to operate for the first three months of the 1999-2000 crop year before 
monies become available from that year's assessments. The higher 
assessment rate applies to the entire 1998-99 crop year, which began 
August 1 and ends July 31. The assessment rate will remain in effect 
indefinitely unless modified, suspended, or terminated.

EFFECTIVE DATE: January 26, 1999.

FOR FURTHER INFORMATION CONTACT: Diane Purvis, Marketing Assistant, or 
Richard P. Van Diest, Marketing Specialist, California Marketing Field 
Office, Fruit and Vegetable Programs, AMS, USDA, 2202 Monterey Street, 
suite 102B, Fresno, California 93721; telephone (559) 487-5901; Fax 
(559) 487-5906; or George Kelhart, Technical Advisor, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, room 
2525-S, P.O. Box 96456, Washington, DC 20090-6456; telephone: (202) 
720-2491, Fax: (202) 205-6632. Small businesses may request information 
on compliance with this regulation, or obtain a guide on complying with 
fruit, vegetable, and specialty crop marketing agreements and orders by 
contacting Jay Guerber, Marketing Order Administration Branch, Fruit 
and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456, 
Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202) 205-
6632, or E-mail: Jay__N__G[email protected]. You may view the marketing 
agreement and order small business compliance guide at the following 
web site: http://www.ams.usda.gov/fv/moab.html.

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 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 (Department) 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 on August 1, 1998, 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 the Secretary 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 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 to review the 
Secretary'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 increases the assessment rate established for the 
Committee for the 1998-99 and subsequent crop years from $2.16 per ton 
to $3.28 per ton of salable dried prunes.
    The California dried prune marketing order provides authority for 
the Committee, with the approval of the Department, 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 a public meeting. Thus, all directly affected persons have 
an opportunity to participate and provide input.
    For the 1998-99 and subsequent crop years, the Committee 
recommended, and the Department approved, an assessment rate that would 
continue in effect from crop year to crop year unless modified, 
suspended, or terminated by the Secretary upon recommendation and 
information submitted by the Committee or other information available 
to the Secretary.
    The Committee met on December 1, 1998, and unanimously recommended 
reducing its 1998-99 budget from $348,840 to $327,180 and increasing 
the current assessment rate from $2.16 to $3.28 per ton of salable 
dried prunes. The assessment rate of $2.16 per ton was approved by the 
Department in a final rule published in the Federal Register on October 
2, 1998 (63 FR

[[Page 3622]]

52959). The $1.22 per ton increase in the assessment rate to $3.28 per 
ton will allow the Committee to meet its 1998-99 expenses and to 
operate for the first three months of the 1999-2000 crop year before 
monies become available from next year's assessments. The California 
Agricultural Statistical Service originally estimated a 170,000 ton 
crop (161,500 salable tons) for the 1998-99 crop year. Due to unusually 
cool and wet weather conditions caused by the El Nino this season, the 
1998-99 crop harvest is about four weeks late, of poor quality, and 
approximately 50 percent less than normal size. The Committee now 
expects the salable prune tonnage to be 99,750 salable tons, or 38 
percent less than the Committee's initial estimate for 1998-99.
    The following table compares major budget expenditures recommended 
by the Committee on June 25, 1998, and major budget expenditures in the 
revised budget recommended on December 1, 1998:

------------------------------------------------------------------------
                                                       ($1,000)
          Budget expense categories          ---------------------------
                                                 6/25/98       12/1/98
------------------------------------------------------------------------
Salaries, Wages and Benefits................        191.5         189.7
Research and Development....................         30             0
Office Rent.................................         23            23
Travel......................................         21            18.5
Acreage Survey..............................         21             0
Reserve (Contingencies).....................          9.14         50.93
Equipment Rental............................          9             9
Data Processing.............................          8             3.85
Stationery and Printing.....................          5.5           5
Office Supplies.............................          5             5
Postage and Messenger.......................          5             5
------------------------------------------------------------------------

    The assessment rate recommended by the Committee was derived by 
dividing the reduced expenses by its reduced estimate of salable 
California dried prunes. Production of dried prunes for the year is 
estimated at 99,750 salable tons which should provide $327,180 in 
assessment income. Interest income also will be available to cover 
anticipated expenses. The Committee is authorized to use excess 
assessment funds from the 1997-98 crop year (currently estimated at 
$58,088) for up to five months beyond the end of the crop year to meet 
1998-99 crop year expenses. At the end of the five months, the 
Committee refunds or credits excess funds to handlers (Sec. 993.81(c)). 
Income derived from handler assessments, along with interest income, 
will be adequate to cover budgeted expenses.
    The assessment rate established in this rule will be in effect 
indefinitely unless modified, suspended, or terminated by the Secretary 
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 the 
Department. Committee meetings are open to the public and interested 
persons may express their views at these meetings. The Department 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 
1998-99 budget and those for subsequent crop years will be reviewed 
and, as appropriate, approved by the Department.
    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 1,250 producers of dried prunes in the 
production area and approximately 20 handlers subject to regulation 
under the marketing order. Small agricultural producers are defined by 
the Small Business Administration (13 CFR 121.601) as those having 
annual receipts less than $500,000, and small agricultural service 
firms are defined as those whose annual receipts are less than 
$5,000,000.
    An updated prune industry profile shows that 8 of the 20 handlers 
(40 percent) shipped over $5,000,000 of dried prunes and could be 
considered large handlers by the Small Business Administration. Twelve 
of the 20 handlers (60 percent) shipped under $5,000,000 of dried 
prunes and could be considered small handlers. An estimated 90 
producers, or about 7 percent of the 1,250 total producers, are 
considered large growers with annual income over $500,000. The majority 
of handlers and producers of California dried prunes may be classified 
as small entities.
    This rule increases the assessment rate established for the 
Committee and collected from handlers for the 1998-99 and subsequent 
crop years from $2.16 per ton to $3.28 per ton of salable dried prunes. 
The Committee unanimously recommended 1998-99 expenditures of $327,180 
and an assessment rate of $3.28 per ton of salable dried prunes. The 
assessment rate of $3.28 is $1.22 higher than the current 1998-99 rate 
(63 FR 52959, October 2, 1998). The quantity of assessable dried prunes 
for the 1998-99 crop year is now estimated at 99,750 salable tons. 
Thus, the $3.28 rate should provide $327,180 in assessment income and 
be adequate to meet this year's expenses. Interest income will also be 
available to cover budgeted expenses if the 1998-99 expected assessment 
income falls short.
    The following table compares major budget expenditures recommended 
by the Committee on June 25, 1998, with major budget expenditures in 
the revised budget recommended on December 1, 1998:

[[Page 3623]]



------------------------------------------------------------------------
                                                       ($1,000)
          Budget expense categories          ---------------------------
                                                 6/25/98       12/1/98
------------------------------------------------------------------------
Salaries, Wages and Benefits................        191.5         189.7
Research and Development....................         30             0
Office Rent.................................         23            23
Travel......................................         21            18.5
Acreage Survey..............................         21             0
Reserve (Contingencies).....................          9.14         50.93
Equipment Rental............................          9             9
Data Processing.............................          8             3.85
Stationery and Printing.....................          5.5           5
Office Supplies.............................          5             5
Postage and Messenger.......................          5             5
------------------------------------------------------------------------

    Due to unusually cool and wet weather conditions caused by the El 
Nino this season, the 1998-99 crop harvest is about four weeks late, of 
poor quality, and approximately 50 percent less than normal size. At 
its December 1, 1998, meeting, the Committee reduced the California 
Agricultural Statistical Service's dried prune crop estimate for 1998-
99 from 170,000 tons (161,500 salable tons) to 103,000 tons (99,750 
salable tons).
    The Committee reviewed and unanimously recommended 1998-99 
expenditures of $327,180. The assessment rate of $3.28 per ton of 
salable dried prunes was then determined by dividing the total 
recommended budget by the reduced estimate for salable dried prunes. 
The Committee is authorized to use excess assessment funds from the 
1997-98 crop year (currently estimated at $58,088) for up to five 
months beyond the end of the crop year to fund 1998-99 crop year 
expenses. At the end of the five months, the Committee refunds or 
credits excess funds to handlers (Sec. 993.81(c)). Anticipated 
assessment income and interest income during 1998-99 would be adequate 
to cover authorized expenses.
    Recent price information indicates that the grower price for the 
1998-99 season should average about $800 per salable ton of dried 
prunes. Based on estimated shipments of 99,750 salable tons, assessment 
revenue during the 1998-99 crop year is expected to be less than 1 
percent of the total expected grower revenue.
    This action increases the assessment obligation imposed on 
handlers. While assessments impose some additional costs on handlers, 
the costs are minimal and uniform on all handlers. Some of the 
additional costs may be passed on to producers. However, these costs 
would be offset by the benefits derived by the operation of the 
marketing order. 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 December 1, 1998, meeting was a public meeting and all entities, 
both large and small, were able 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 Department 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 December 18, 1998 (63 FR 70063). The proposal was made 
available through the Internet by the Office of the Federal Register. A 
10-day comment period ending December 28, 1998, was provided for 
interested persons to respond to the proposal. No comments were 
received.
    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 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) The 
Committee needs to collect assessments from handlers based on the 
higher rate as soon as possible to pay its expenses which are incurred 
on a continuous basis; (2) the 1998-99 crop year began on August 1, 
1998, and the marketing order requires that the rate of assessment for 
each crop year apply to all assessable dried prunes handled during such 
year. Further, handlers are aware of this rule which was recommended 
unanimously at a public meeting. Also, no comments were received in 
response to the proposed rule on the assessment rate increase.

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. Section 993.347 is revised to read as follows:


Sec. 993.347  Assessment rate.

    On and after August 1, 1998, an assessment rate of $3.28 per ton is 
established for California dried prunes.

    Dated: January 19, 1999.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-1611 Filed 1-22-99; 8:45 am]
BILLING CODE 3410-02-P