[Federal Register Volume 66, Number 218 (Friday, November 9, 2001)]
[Rules and Regulations]
[Pages 56602-56604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28204]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Docket No. FV01-993-3 FR]


Dried Prunes Produced in California; Increased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule increases 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 will remain in effect indefinitely unless modified, suspended, or 
terminated.

EFFECTIVE DATE: November 13, 2001.

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, room 2525-S, P.O. Box 
96456, 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 (USDA) 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, 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 USDA 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 USDA 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 USDA 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 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 USDA, 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 USDA approved, an assessment rate that would continue 
in effect from crop year to crop year unless modified, suspended, or 
terminated by USDA upon recommendation and information submitted by the 
Committee or other information available to USDA.
    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 will allow the Committee to meet 
its 2001-02 expenses. The primary reason for the 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.

[[Page 56603]]



------------------------------------------------------------------------
                                                  2000-01
           Budget expense categories             (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
Other Expenses................................       24,100       22,400
------------------------------------------------------------------------

    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 will be 
adequate to cover budgeted expenses. Interest income also will 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 assessment rate established in this rule will continue in 
effect indefinitely unless modified, suspended, or terminated by USDA 
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 USDA. 
Committee meetings are open to the public and interested persons may 
express their views at these meetings. The USDA 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 2001-02 budget and those 
for subsequent crop years would be reviewed and, as appropriate, 
approved by USDA.

Final 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 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 1,205 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 $750,000, and small agricultural service 
firms are defined as those whose annual receipts are less than 
$5,000,000. The standard for producers has been increased from $500,000 
to $750,000 since the proposed rule was published.
    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 32 
producers, or about 2.7 percent of the 1,205 total producers, will be 
considered large growers with annual receipts over $750,000. 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 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 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 will 
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.

------------------------------------------------------------------------
                                                  2000-01
           Budget expense categories             (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
Other Expenses................................       24,100       22,400
------------------------------------------------------------------------

    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 will be adequate to cover authorized expenses.
    Recent price information indicates that the grower price for the 
2001-02 season should average about $763 per salable ton of dried 
prunes. This is $87 less than the $850 figure quoted in the proposed 
rule. Based on estimated shipments of 144,000 salable tons, assessment 
revenue during the 2001-02 crop year is still expected to be less than

[[Page 56604]]

1 percent of the total expected grower revenue.
    This action increases 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 are 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.
    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 USDA 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 August 20, 2001 (66 FR 43534). Copies of the proposed rule 
were also mailed or sent via facsimile to all prune handlers. Finally, 
the proposal was made available through the Internet by the Office of 
the Federal Register and USDA. A 30-day comment period ending September 
19, 2001, was provided for interested persons to respond to the 
proposal. No comments were received.
    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.
    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 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. Further, handlers are aware 
of this action which was recommended at a public meeting. Also, 30-day 
comment period was provided for in the proposed rule and no comments 
were received.

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 
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: November 5, 2001.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 01-28204 Filed 11-8-01; 8:45 am]
BILLING CODE 3410-02-P