[Federal Register Volume 67, Number 225 (Thursday, November 21, 2002)]
[Rules and Regulations]
[Pages 70148-70150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-29532]


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

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Docket No. FV02-993-4 FIR]


Dried Prunes Produced in California; Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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

SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim final rule which decreased 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.

EFFECTIVE DATE: December 23, 2002.

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.''
    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 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

[[Page 70149]]

review 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 continues to decrease 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 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 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 will 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 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 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 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 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.

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 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, will 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 continues to decrease 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 assessment rate is $0.20 lower than the 
previous 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 will 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

[[Page 70150]]

 
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 will 
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 continues to decrease 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.
    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.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this rule.
    An interim final rule concerning this action was published in the 
Federal Register on August 15, 2002 (67 FR 53293). Copies of that rule 
were also mailed or sent via facsimile to all prune handlers. Finally, 
the interim final rule was made available through the Internet by the 
Office of the Federal Register and USDA. A 60-day comment period was 
provided for interested persons to respond to the interim final rule. 
The comment period ended on October 15, 2002, and 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.

List of Subjects in 7 CFR Part 993

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

    Accordingly, the interim final rule amending 7 CFR part 993 which 
was published at 67 FR 53293 on August 15, 2002, is adopted as a final 
rule without change.

    Dated: November 13, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-29532 Filed 11-20-02; 8:45 am]
BILLING CODE 3410-02-P