[Federal Register Volume 67, Number 158 (Thursday, August 15, 2002)]
[Rules and Regulations]
[Pages 53293-53296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-20687]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Docket No. FV02-993-4 IFR]


Dried Prunes Produced in California; Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule decreases the assessment rate established for the 
Prune Marketing Committee (Committee) under Marketing Order No. 993 for 
the 2002-03 and subsequent crop years from $2.80 to $2.60 per ton of 
salable dried prunes. 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.

DATES: August 16, 2002. Comments received by October 15, 2002, will be 
considered prior to issuance of a final rule.

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, 1400 Independence Avenue SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202)

[[Page 53294]]

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, 1400 
Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; 
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, 1400 Independence 
Avenue SW., STOP 0237, Washington, DC 20250-0237; 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, 2002, 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 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 the USDA'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 decreases the assessment rate established for the 
Committee for the 2002-03 and subsequent crop years from $2.80 per ton 
to $2.60 per ton of salable dried prunes.
    The California dried prune marketing order provides authority for 
the Committee, with the approval of the 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 2001-02 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 27, 2002, and unanimously recommended 
2002-03 expenditures of $386,880 and an assessment rate of $2.60 per 
ton of salable dried prunes. In comparison, last year's budgeted 
expenditures were $384,370. The recommended assessment rate of $2.60 
per ton is $0.20 lower than the rate currently in effect. The $0.20 per 
ton decrease in the assessment rate would allow the Committee to meet 
its 2002-03 expenses. The Committee was able to recommend a lower 
assessment rate this year because salable prune production this year is 
expected to be 148,800 tons, 16,750 tons higher than production last 
year. Although 2002-03 recommended expenses are slightly higher than 
2001-02 expenses, an assessment rate of $2.60 per ton will provide 
sufficient funds for Committee operations this year.
    The following table compares major budget expenditures recommended 
by the Committee on June 27, 2002, and major budget expenditures in the 
revised 2001-02 budget.

------------------------------------------------------------------------
                                                  2001-02
           Budget expense categories             (Revised)     2002-03
------------------------------------------------------------------------
Total Personnel Salaries......................     $226,315     $232,575
Total Operating Expenses......................      123,700      136,850
Reserve for Contingencies.....................       34,355       17,455
------------------------------------------------------------------------

    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 148,800 salable tons, which should provide $386,880 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 2001-02 
crop year (currently estimated at $76,878) 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 the 
USDA upon recommendation and information submitted by the Committee or 
other available information.

[[Page 53295]]

    Although this assessment rate is effective 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. 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 2002-03 budget and those 
for subsequent crop years will be reviewed and, as appropriate, 
approved by USDA.

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 1,205 producers of dried prunes in the 
production area and approximately 24 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.
    An updated prune industry profile shows that 9 of the 24 handlers 
(37.5%) shipped over $5,000,000 of dried prunes and could be considered 
large handlers by the Small Business Administration. Fifteen of the 24 
handlers (62.5%) shipped under $5,000,000 of dried prunes and could be 
considered small handlers. An estimated 32 producers, or less than 3% 
of the 1,205 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 decreases the assessment rate established for the 
Committee and collected from handlers for the 2002-03 and subsequent 
crop years from $2.80 per ton to $2.60 per ton of salable dried prunes. 
The Committee unanimously recommended 2002-03 expenditures of $386,880 
and an assessment rate of $2.60 per ton of salable dried prunes. The 
recommended assessment rate is $0.20 lower than the current rate. The 
quantity of assessable dried prunes for the 2002-03 crop year is now 
estimated at 148,800 salable tons. Thus, the $2.60 rate should provide 
$386,880 in assessment income and be adequate to meet this year's 
expenses. Interest income also would be available to cover budgeted 
expenses if the 2002-03 expected assessment income falls short.
    The following table compares major budget expenditures recommended 
by the Committee on June 27, 2002, and major budget expenditures in the 
revised 2001-02 budget.

------------------------------------------------------------------------
                                                  2001-02
        Major budget expense categories          (Revised)     2002-03
------------------------------------------------------------------------
Total Personnel Salaries......................     $226,315     $232,575
Total Operating Expenses......................      123,700      136,850
Reserve for Contingencies.....................       34,355       17,455
------------------------------------------------------------------------

    The Committee reviewed and unanimously recommended 2002-03 
expenditures of $386,880. 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 $2.80 per ton assessment rate, but the 
anticipated larger crop, with an assessment rate of $2.80 per ton, 
would generate monies in excess of that needed to fund all the budget 
items. The assessment rate of $2.60 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 2001-02 crop year (currently estimated at 
$76,878) for up to 5 months beyond the end of the crop year to fund 
2002-03 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 2002-03 would 
be adequate to cover authorized expenses.
    The grower price for the 2002-03 season is expected to average 
above the estimated 2001-02 average grower price of about $750 per 
salable ton of dried prunes. Based on estimated shipments of 148,800 
salable tons, assessment revenue during the 2002-03 crop year is 
expected to be less than 1 percent of the total expected grower 
revenue.
    This action decreases the assessment obligation imposed on 
handlers. Assessments are applied uniformly on all handlers, and some 
of the costs may be passed on to producers. However, decreasing the 
assessment rate reduces the burden on handlers, and may reduce the 
burden on producers. 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 27, 2002, 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 action 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 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

[[Page 53296]]

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 is also found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect, and 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 2002-03 crop year begins on August 1, 2002, 
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 rule would decrease the assessment rate for assessable 
prunes beginning with the 2002-03 crop year; (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; and (4) this interim final rule provides a 60-day 
comment period, and all comments timely received will be considered 
prior to finalization of this rule.

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, 2002, an assessment rate of $2.60 per ton is 
established for California dried prunes.

    Dated: August 8, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-20687 Filed 8-14-02; 8:45 am]
BILLING CODE 3410-02-P