[Federal Register Volume 65, Number 46 (Wednesday, March 8, 2000)]
[Rules and Regulations]
[Pages 12061-12063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-5610]



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  Federal Register / Vol. 65, No. 46 / Wednesday, March 8, 2000 / Rules 
and Regulations  

[[Page 12061]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Docket No. FV00-993-1 FIR]


Dried Prunes Produced in California; Changes in Producer District 
Boundaries

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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

SUMMARY: The Department of Agriculture (Department) is adopting, as a 
final rule, without change, the provisions of an interim final rule 
realigning the boundaries of seven districts established for 
independent producer representation on the Prune Marketing Committee 
(Committee) under Marketing Order No. 993. The Committee is responsible 
for local administration of the marketing order which regulates the 
handling of dried prunes grown in California. This rule continues in 
effect the realignment of the boundaries of the seven independent 
producer districts. Due to shifts in the production areas, the former 
production districts for independent producer representation on the 
Committee were out of balance. The realignment provides for more 
equitable independent producer representation on the Committee, 
consistent with current industry demographics.

EFFECTIVE DATE: April 7, 2000.

FOR FURTHER INFORMATION CONTACT: Richard P. Van Diest, Marketing 
Specialist, California Marketing Field Office, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 2202 
Monterey Street, suite 102B, Fresno, CA 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) 720-5698.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 96456, room 
2525-S, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: 
(202) 720-5698, or E-mail: Jay.G[email protected].

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, 
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. This rule is not intended to have retroactive effect. 
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 8c(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. A 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 continues in effect modifications to language in the 
order's administrative rules and regulations to realign the boundaries 
of seven districts established for independent producer representation 
on the Committee. The realignment provides for more equitable 
independent producer representation on the Committee, consistent with 
current industry demographics.
    Paragraph (a) of Sec. 993.128 of the order's administrative rules 
and regulations lists and describes the boundaries of each of the seven 
independent grower districts. This rule continues in effect the 
provisions of an interim final rule that realigned those boundaries on 
December 30, 1999 (64 FR 72909, December 29, 1999). To be consistent 
with current industry demographics, this realignment ensures that, 
insofar as practicable, each district represents an equal number of 
independent producers and an equal volume of prunes grown by such 
producers.
    Section 993.24 of the order provides that the Committee shall 
consist of 22 members, of which 14 represent producers, 7 represent 
handlers, and 1 represents the public. The 14 producer member positions 
are apportioned between cooperative producers and independent 
producers. The apportionment, insofar as is practicable, is the same as 
the percentage of the total prune tonnage handled by the cooperative 
and independent handlers during the year preceding the year in which 
nominations are made is to the total handled by all handlers. In recent 
years and currently, cooperative producers and independent producers 
each have been eligible to nominate seven members.
    Section 993.28(a) of the order provides that, for independent 
producers, the Committee shall, with the approval of the Secretary of 
Agriculture, divide the production area into districts giving, insofar 
as practicable, equal representation throughout the production area by 
numbers of independent producers and production of prune tonnage by 
such producers. When revisions are required, the Committee must make 
its recommendations to the Secretary of Agriculture to change the 
district boundaries prior to January 31 of any year in which 
nominations are to be made. Nominations are made in all even-numbered 
years.

[[Page 12062]]

    In recent years, the number of producers and volume of production 
in most districts has changed, causing imbalances among some districts. 
Prune orchards were planted to replace other crops which expanded the 
acreage base to new geographic areas and intensified the prune 
plantings in other districts. Thus, redistricting was needed to bring 
the districts in line with order requirements and current California 
prune industry demographics.
    This rule continues in effect the establishment of new district 
alignments as shown below:

------------------------------------------------------------------------
                        Counties in prior       Counties in new district
     District           district alignment             alignment
------------------------------------------------------------------------
1                   Colusa, Glenn............  Colusa, Glenn, Solano,
                                                Yolo.
2                   Sutter (Central).........  Sutter (North) \1\.
3                   Sutter (South), Yolo.....  Sutter (South) \1\.
4                   Alpine, Amador, Del        Alpine, Amador, Del
                     Norte, El Dorado,          Norte, El Dorado,
                     Humboldt, Lake, Lassen,    Humboldt, Lake, Lassen,
                     Mendocino, Modoc, Napa,    Mendocino, Modoc, Napa,
                     Nevada, Placer, Plumas,    Nevada, Placer, Plumas,
                     Sacramento, Shasta,        Sacramento, Shasta,
                     Sierra, Siskiyou,          Sierra, Siskiyou,
                     Sonoma, Tehama and         Sonoma, Tehama and
                     Trinity..                  Trinity.
5                   Butte, Sutter (North)....  Butte.
6                   Yuba.....................  Yuba.
7                   Fresno, Kings, Merced,     Fresno, Kern, Kings,
                     San Benito, San Joaquin,   Madera, Merced, San
                     Santa Clara, Solano,       Benito, San Joaquin,
                     Tulare all other           Santa Clara, Tulare &
                     counties not included in   all other counties not
                     Districts 1, 2, 3, 4, 5,   included in Districts 1,
                     6.                         2, 3, 4, 5, 6.
------------------------------------------------------------------------
\1\ The north/south boundary of Sutter County will be changed to
  Franklin Road.

    The Committee calculated the percentage of total independent prune 
growers and the percentage of total independent grower prune tonnage 
for each new district. The two percentages were averaged for each 
district to determine a representation factor for each district. The 
optimal representation factor for each district is 14.29 percent (100 
percent divided by 7 districts).
    The representation factors for the old and new districts are shown 
below, based on the 1998-99 crop year (August 1-July 31) data.

------------------------------------------------------------------------
                                                  Representation Factor
                                               -------------------------
                   District                         Old          New
                                                 Districts    Districts
                                                 (percent)    (percent)
------------------------------------------------------------------------
1                                                      9.75        15.62
2                                                     11.94        16.87
3                                                      12.5        16.37
4                                                     10.33        10.33
5                                                     23.97        12.35
6                                                     14.43        14.43
7                                                     17.02        13.97
------------------------------------------------------------------------

    The redistricting allows each district to approximate the optimal 
representation factor while maintaining a continuous geographic 
boundary for each district.
    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Agricultural Marketing Service (AMS) has considered the 
economic impact of this action on small entities. Accordingly, AMS has 
prepared this initial 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 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 have been 
defined by the Small Business Administration (13 CFR 121.201) 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.
    Last year, 13 of the 20 handlers (65%) shipped under $5,000,000 of 
dried prunes and could be considered small handlers. An estimated 1,141 
producers (91 percent) of the 1,250 producers could be considered small 
growers with annual income less than $500,000. In view of the 
foregoing, it can be concluded that the majority of handlers and 
producers of California dried prunes may be classified as small 
entities.
    This rule continues in effect a realignment of the boundaries of 
the seven districts established for independent producer representation 
on the Committee. To be consistent with current industry demographics, 
this realignment ensures that, insofar as practicable, each district 
represents an equal number of independent producers and an equal volume 
of prunes grown by such producers.
    Shifts in the prune production area over time have lead to greater 
differences among the districts than is desirable for equitable 
independent producer representation. As shown below, prior to the most 
recent realignment, District 1 represented less than 10% of 
California's independent prune producers/production while District 5 
represented nearly 24% as previously defined. The realignment has 
provided for more equitable representation.
    The representation factors for the old and new districts are shown 
below, based on the 1998-99 crop year (August 1-July 31) data.

------------------------------------------------------------------------
                                                  Representation Factor
                                               ------------\1\----------
                   District                         Old          New
                                                 Districts    Districts
                                                 (percent)    (percent)
------------------------------------------------------------------------
1                                                      9.75        15.62
2                                                     11.94        16.87
3                                                      12.5        16.37
4                                                     10.33        10.33
5                                                     23.97        12.35
6                                                     14.43        14.43
7                                                     17.02       13.97
------------------------------------------------------------------------
\1\ The optimal representation factor for each district is 14.29 percent
  (100 percent divided by 7 districts).

    The economic vagaries of prune production are responsible for the 
imbalance among production districts. When the average grower return 
per ton reached $1,121 in 1993, prune tree sales by nurseries jumped to 
1.5 million trees from a normal maintenance and replacement level of 
about 300,000 trees. Prune orchards were planted to replace other crops 
which expanded the acreage base to new geographic areas and intensified 
the prune plantings in others. Non-bearing acreage increased from 8,000 
acres in 1993 to 26,000 acres in 1998.
    More recently, grower prices have steadily declined from 1993's 
peak of $1,121 per ton to $763 in 1998. This lead to the removal of 
over 5,000 acres in 1998 alone. The overall result is a shift in prune 
production which lead to

[[Page 12063]]

an imbalance in the composition of independent producer districts.
    The realignment of district boundaries yields more equitable 
representation. The representation factors for the districts ranged 
from 9.75% to 23.97%. The revised alignment narrows this range to 
10.33% to 16.87%. The California prune industry considered other 
district alignments; however, none would have improved the balance 
among districts as much as the realignment implemented. Since the 
weather-reduced 1998-99 prune crop (102,000 tons) was the smallest 
since 1986, the Committee also analyzed the representation factor on 
the more typical 1997-98 crop (205,000 tons) to ensure that the short 
crop year did not produce atypical results. The results were consistent 
as far as each district's percent of the total. Another alternative 
considered was to do nothing. However, this would not have done 
anything to correct the representation factor imbalance, and this was 
not acceptable.
    The Committee unanimously recommended this change at its November 
30, 1999, meeting. Since the redistricting in 1994, the number of 
producers and volume of production in most districts changed causing 
imbalances among some districts. Thus, redistricting was needed to 
bring the districts in line with order requirements and current 
California prune industry demographics.
    This rule continues in effect new district alignments as shown 
below:

------------------------------------------------------------------------
                        Counties in prior       Counties in new district
     District           district alignment             alignment
------------------------------------------------------------------------
1                   Colusa, Glenn............  Colusa, Glenn, Solano,
                                                Yolo
2                   Sutter (Central).........  Sutter (North) \1\
3                   Sutter (South), Yolo.....  Sutter (South) \1\
4                   Alpine, Amador, Del        Alpine, Amador, Del
                     Norte, El Dorado,          Norte, El Dorado,
                     Humboldt, Lake, Lassen,    Humboldt, Lake, Lassen,
                     Mendocino, Modoc, Napa,    Mendocino, Modoc, Napa,
                     Nevada, Placer, Plumas,    Nevada, Placer, Plumas,
                     Sacramento, Shasta,        Sacramento, Shasta,
                     Sierra, Siskiyou,          Sierra, Siskiyou,
                     Sonoma, Tehama and         Sonoma, Tehama and
                     Trinity.                   Trinity
5                   Butte, Sutter (North)....  Butte
6                   Yuba.....................  Yuba
7                   Fresno, Kings, Merced,     Fresno, Kern, Kings,
                     San Benito, San Joaquin,   Madera, Merced, San
                     Santa Clara, Solano,       Benito, San Joaquin,
                     Tulare & all other         Santa Clara, Tulare &
                     counties not included in   all other counties not
                     Districts 1, 2, 3, 4, 5,   included in Districts 1,
                     & 6.                       2, 3, 4, 5, & 6
------------------------------------------------------------------------
\1\ The north/south boundary of Sutter County will be changed to
  Franklin Road.

    At the November 30, 1999, meeting, the Committee discussed the 
financial impact of this change on handlers and producers. All 
independent producers regardless of size will continue to have 
representation and the overall representation will be more equitable as 
previously explained. There will be no additional costs generated by 
this rule. Since this rule affects only independent producers, there is 
no expected impact on handlers.
    This rule continues in effect the realignment of the boundaries of 
seven independent grower districts. This realignment allows each 
district to approximate the optimal representation factor, while 
maintaining a continuous geographic boundary for each district.
    This rule will not impose any additional reporting or recordkeeping 
requirements on either small or large entities. 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. In addition, as noted in the initial regulatory 
flexibility analysis, the Department has not identified any relevant 
Federal rules that duplicate, overlap, or conflict with this rule.
    Further, 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 November 
30, 1999, meeting was a public meeting and all entities, both large and 
small, were able to express their views on this issue. The Committee 
itself is composed of 22 members, of which 7 are handlers, 14 are 
producers and 1 is a public representative, the majority of whom are 
small entities.
    Also, the Committee has a number of appointed subcommittees to 
review certain issues and make recommendations to the Committee. The 
Committee's Ad-Hoc Redistricting Subcommittee met on November 2, 1999, 
and discussed this issue in detail. That meeting was also a public 
meeting and both large and small entities were able to participate and 
express their views.
    An interim final rule concerning this action was published in the 
Federal Register on December 29, 1999. Copies of the rule were mailed 
by the Committee's staff to all Committee members and alternates and 
prune handlers. In addition, the rule was made available through the 
Internet by the Office of the Federal Register. That rule provided for 
a 30-day comment period which ended January 28, 2000. No comments were 
received.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at the 
following web site: 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 Committee's unanimous recommendation and other information, it is 
found that finalizing the interim final rule, without change, as 
hereinafter set forth and published in the Federal Register (64 FR 
72909, December 29, 1999), 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.

PART 993--DRIED PRUNES PRODUCED IN CALIFORNIA

    Accordingly, the interim final rule amending 7 CFR part 993 which 
was published at 64 FR 72909 on December 29, 1999, is adopted as a 
final rule without change.

    Dated: March 3, 2000.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 00-5610 Filed 3-7-00; 8:45 am]
BILLING CODE 3410-02-P