[Federal Register Volume 66, Number 161 (Monday, August 20, 2001)]
[Proposed Rules]
[Pages 43534-43536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20847]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 66, No. 161 / Monday, August 20, 2001 / 
Proposed Rules  

[[Page 43534]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Docket No. FV01-993-3 PR]


Dried Prunes Produced in California; Increased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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

SUMMARY: This rule would increase the assessment rate from $2.00 to 
$2.80 per ton of salable dried prunes established for the Prune 
Marketing Committee (Committee) under Marketing Order No. 993 for the 
2001-02 and subsequent crop years. The Committee locally administers 
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 crop year begins August 1 and ends July 31. 
The assessment rate would remain in effect indefinitely unless 
modified, suspended, or terminated.

DATES: Comments must be received by September 19, 2001.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, room 2525-S, P.O. Box 96456, Washington, DC 20090-6456; Fax: 
(202) 720-8938; or E-mail: [email protected]. 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, or can be 
viewed at: http://www.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Toni Sasselli, Program 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) 720-8938.
    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) 720-8938, or E-mail: [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 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 proposed herein would be applicable to all 
assessable dried prunes beginning on August 1, 2001, 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 would increase the assessment rate established for the 
Committee for the 2001-02 and subsequent crop years from $2.00 per ton 
to $2.80 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 1999-2000 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 June 28, 2001, and unanimously recommended 
2001-02 expenditures of $403,200 and an assessment rate of $2.80 per 
ton of salable dried prunes. In comparison, last year's budgeted 
expenditures were $388,000. The recommended assessment rate of $2.80 
per ton is $.80 higher than the rate currently in effect. The $0.80 per 
ton increase in the assessment rate would allow the Committee to meet 
its 2001-02 expenses. The primary reason for the

[[Page 43535]]

increased assessment rate is an estimated reduction in 2001-02 crop 
year production. The Committee estimates a 150,000 ton crop during the 
2001-02 crop year. A total of 6,000 tons are not expected to be salable 
because of size or quality, leaving a balance of 144,000 salable tons. 
This is a 28 percent decrease in salable tonnage from last year and 
caused the Committee to recommend increasing its assessment rate to 
meet expenses.
    The following table compares major budget expenditures recommended 
by the Committee on June 28, 2001, and major budget expenditures in the 
revised 2000-01 budget recommended on April 5, 2001.

------------------------------------------------------------------------
     Budget expense categories      2000-01 (revised)       2001-02
------------------------------------------------------------------------
Salaries, Wages & Benefits........           $225,850           $226,315
Research & Development............             30,000             30,000
Office Rent.......................             28,000             23,300
Travel............................             21,000             20,000
Reserve (Contingencies)...........             28,550             53,185
Equipment Rental..................              8,000              9,000
Data Processing...................              5,000              4,000
Stationery & Printing.............              5,500              4,500
Office Supplies...................              5,000              4,500
Postage & Messenger...............              7,000              6,000
------------------------------------------------------------------------

    The assessment rate recommended by the Committee was derived by 
dividing anticipated expenses by the estimated salable tons of 
California dried prunes. Production of dried prunes for the year is 
estimated at 144,000 salable tons which should provide $403,200 in 
assessment income. Income derived from handler assessments would be 
adequate to cover budgeted expenses. Interest income also would be 
available if assessment income is reduced for some reason. The 
Committee is authorized to use excess assessment funds from the 2000-01 
crop year (currently estimated at $51,005) for up to 5 months beyond 
the end of the crop year to meet 2001-02 crop year expenses. At the end 
of the 5 months, the Committee refunds or credits excess funds to 
handlers (Sec. 993.81(c)).
    The proposed assessment rate would continue 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 would be in effect for an indefinite 
period, the Committee would 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 would 
evaluate Committee recommendations and other available information to 
determine whether modification of the assessment rate is needed. 
Further rulemaking would be undertaken as necessary. The Committee's 
2001-02 budget and those for subsequent crop years would be reviewed 
and, as appropriate, approved by the Department.

Initial Regulatory Flexibility Analysis

    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 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 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 22 handlers subject to regulation 
under the marketing order. Small agricultural producers are 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.
    An updated prune industry profile shows that 9 of the 22 handlers 
(41 percent) shipped over $5,000,000 of dried prunes and could be 
considered large handlers by the Small Business Administration. 
Thirteen of the 22 handlers (59 percent) shipped under $5,000,000 of 
dried prunes and could be considered small handlers. An estimated 109 
producers, or about 9 percent of the 1,250 total producers, would be 
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 would increase the current assessment rate established 
for the Committee and collected from handlers for the 2001-2002 and 
subsequent crop years from $2.00 per ton to $2.80 per ton of salable 
dried prunes. The Committee unanimously recommended 2001-2002 
expenditures of $403,200 and an assessment rate of $2.80 per ton of 
salable dried prunes. The proposed assessment rate of $2.80 is $0.80 
higher than the assessment rate (64 FR 50426, September 17, 1999) that 
has been in effect since the 1999-2000 crop year. The quantity of 
assessable dried prunes for the 2001-02 crop year is now estimated at 
144,000 salable tons. Thus, the $2.80 rate should provide $403,200 in 
assessment income and be adequate to meet this year's expenses. 
Interest income also would be available to cover budgeted expenses if 
the 2001-02 expected assessment income falls short.
    The following table compares major budget expenditures recommended 
by the Committee on June 28, 2001, with major budget expenditures in 
the revised 2000-01 budget recommended on April 5, 2001.

------------------------------------------------------------------------
     Budget expense categories      2000-01 (revised)       2001-02
------------------------------------------------------------------------
Salaries, Wages & Benefits........           $225,850           $226,315
Research & Development............             30,000             30,000

[[Page 43536]]

 
Office Rent.......................             28,000             23,300
Travel............................             21,000             20,000
Reserve (Contingencies)...........             28,550             53,185
Equipment Rental..................              8,000              9,000
Data Processing...................              5,000              4,000
Stationery & Printing.............              5,500              4,500
Office Supplies...................              5,000              4,500
Postage & Messenger...............              7,000              6,000
------------------------------------------------------------------------

    The Committee reviewed and unanimously recommended 2001-02 
expenditures of $403,200. Prior to arriving at this budget, the 
Committee considered information from various sources, such as the 
Committee's Executive Subcommittee. An alternative to this action would 
be to continue with the $2.00 per ton assessment rate, but the reduced 
anticipated crop size would not be sufficient to generate monies to 
fund all the budget items. The assessment rate of $2.80 per ton of 
salable dried prunes was determined by dividing the total recommended 
budget by the estimated salable dried prunes. The Committee is 
authorized to use excess assessment funds from the 2000-01 crop year 
(currently estimated at $51,005) for up to 5 months beyond the end of 
the crop year to fund 2001-02 crop year expenses. At the end of the 5 
months, the Committee refunds or credits excess funds to handlers 
(Sec. 993.81(c)). Anticipated assessment income and interest income 
during 2001-02 would be adequate to cover authorized expenses.
    Recent price information indicates that the grower price for the 
2001-02 season should average above $850 per salable ton of dried 
prunes. Based on estimated shipments of 144,000 salable tons, 
assessment revenue during the 2001-02 crop year is expected to be less 
than 1 percent of the total expected grower revenue.
    This action would increase the assessment obligation imposed on 
handlers. While assessments impose some additional costs on all 
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 June 28, 2001, meeting was a public meeting and all entities, both 
large and small, were able to express views on this issue. Finally, 
interested persons are invited to submit information on the regulatory 
and informational impacts of this action on small businesses.
    This proposed rule would impose 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 small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 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.
    A 30-day comment period is provided to allow interested persons to 
respond to this proposed rule. Thirty days is deemed appropriate 
because: (1) The 2001-02 crop year begins on August 1, 2001, and the 
marketing order requires that the rate of assessment for each crop year 
apply to all assessable dried prunes handled during such crop year; (2) 
the proposed rule would increase the assessment rate for assessable 
prunes beginning with the 2001-02 crop year; and (3) handlers are aware 
of this action which was unanimously recommended by the Committee at a 
public meeting and is similar to other assessment rate actions issued 
in past years.

List of Subjects in 7 CFR Part 993

    Plums, Prunes, Marketing agreements, Reporting and Recordkeeping 
requirements.

    For the reasons set forth in the preamble, 7 CFR part 993 is 
proposed to be 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, 2001, an assessment rate of $2.80 per ton is 
established for California dried prunes.

    Dated: August 14, 2001.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 01-20847 Filed 8-17-01; 8:45 am]
BILLING CODE 3410-02-P