[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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Rules and Regulations
Federal Register
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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