[Federal Register Volume 68, Number 68 (Wednesday, April 9, 2003)]
[Rules and Regulations]
[Pages 17267-17272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8649]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Docket No. FV02-993-3 FR]


Dried Prunes Produced in California; Revising the Regulations 
Pertaining to a Voluntary Prune Plum Diversion Program

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule changes the administrative rules and regulations 
pertaining to a voluntary prune plum diversion program under the 
California prune marketing order (order). The order regulates the 
handling of dried prunes produced in California and is administered by 
the Prune Marketing Committee (Committee). The changes made reflect 
changes in industry structure and current economic conditions, and 
modify administrative procedures used in connection with implementing a 
diversion program. These changes will provide for more timely and 
efficient implementation of a diversion program if recommended in the 
future.

EFFECTIVE DATE: This final rule becomes effective May 9, 2003.

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, 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 final 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 order is 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. 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 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. A 
handler is afforded the opportunity for a hearing on the petition. 
After the hearing, USDA will 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'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 final rule revises the administrative rules and regulations 
pertaining to a voluntary prune plum diversion program under the 
California prune marketing order (order). The order regulates the 
handling of dried prunes produced in California and is administered by 
the Committee. The changes made reflect changes in industry structure 
and current economic conditions, and modify administrative

[[Page 17268]]

procedures used in connection with implementing a diversion program. 
These changes will also provide for more timely and efficient 
implementation if a diversion program is needed in the future. These 
changes were unanimously recommended by the Committee at a meeting on 
November 29, 2001.

Volume Regulation Authority

    Section 993.54 of the order provides authority for volume control 
in the form of reserve pooling. Volume control regulation is designed 
to promote orderly marketing conditions, stabilize prices and supplies, 
and improve producer returns. When volume regulation is in effect, a 
certain percentage of the California prune crop may be sold by handlers 
to any market (salable or free tonnage) while the remaining percentage 
must be held by handlers in a reserve pool (or reserve) for the account 
of the Committee. Reserve prunes are disposed of through various 
programs authorized under the order. Net proceeds generated from sales 
of reserve prunes are distributed to the reserve pool's equity holders, 
primarily producers.

Diversion Program Authority

    The order also provides authority under Sec.  993.62 for prune 
producers to participate in a voluntary prune plum diversion program 
when a reserve pool is implemented. Under this program, prune producers 
can elect to divert part of their prune plum crop from normal prune or 
prune product markets in lieu of placing prunes in a reserve pool. 
Section 993.62 also authorizes establishment of rules and regulations 
to implement and administer a diversion program.
    Section 993.162 contains the rules and regulations necessary for 
governing the implementation of a diversion program.

Prune Marketing Committee Recommendations

    Because a diversion program has not been implemented since the 
1970's, the administrative rules and regulations contain several 
outdated provisions. Section 993.162(a) of the regulations currently 
establishes specific dryaway ratios by producing regions within the 
production area. Dryaway ratios represent the ratio of the weight of 
fresh prune plums needed to produce dried prunes, and are the basis for 
computing the dried weight equivalent of diverted fresh prune plums. 
The ratios range from 2.6 to 3.25 pounds of fresh plums to make a pound 
of French prunes, depending on the producing region. For non-French 
prunes, the dryaway ratio is established at 3.5 pounds of plums for one 
pound of non-French prunes for the entire production area.
    The dryaway ratios can change from year to year depending upon 
weather conditions, fruit maturity at time of harvest, fruit solids and 
other factors. The dryaway ratios used in the early 1970's are no 
longer valid. Expanding production together with limited dehydration 
capacity has forced some growers to begin harvesting earlier and 
continue later than in the past. This has resulted in dryaway ratios 
higher than those currently specified. Because of this, and to provide 
more flexibility, the Committee recommended removing the specific 
dryaway ratios for non-French prunes from Sec.  993.162(a) of the 
regulations and adding language that will allow the Committee to 
compute dryaway ratios for the applicable producing regions based on a 
survey of at least eight commercial prune dehydrators geographically 
dispersed within the production area.
    When the Committee believes a diversion program is needed, the 
Committee will obtain annual average dryaway ratios from commercial 
dehydrators surveyed and compute a five-year average dryaway ratio for 
each dehydrator. The Committee will then add together the participating 
commercial dehydrators' five-year average dryaway ratios for each 
producing region within the production area, and divide the total 
dryaway ratio by the number of participating commercial dehydrators to 
obtain each year's average dryaway ratio by producing region. In the 
event any of the annual dryaway ratios for any of the crop years are 
abnormally high or low in any year, the Committee could replace the 
abnormal year's data with that of an earlier year. After the 
computations are made, the resulting ratios will be announced and 
commercial dehydrators will be notified by letter prior to the 
beginning of any crop year in which reserve pooling and a diversion 
program was being contemplated. This will result in more accurate 
dryaway ratios in determining the dried weight equivalent of fresh 
prune plums being diverted.
    No change to the dryaway ratio for non-French prunes was 
recommended. Production of these prunes is small (0.06 percent of total 
prune production), little data is available, and it is believed that 
the currently listed ratio of 3.5 to 1 is accurate.
    As previously mentioned, dryaway ratios for French prunes are 
calculated and applied to various producing regions within the 
production area. Section 993.162(a) of the regulations currently 
contains reference to 13 counties that no longer produce prunes. Prune 
production has shifted within the production area over the years. Thus, 
the Committee recommended updating the prune producing regions and 
condensing them into fewer regions. The regions used in determining 
dried weight equivalents for a diversion program in Sec.  993.162(a) 
will be realigned as follows:

French Prunes

    --North Sacramento Valley--The counties of Butte, Glenn, Shasta, 
and Tehama.
    --South Sacramento, Napa, Sonoma, and Santa Clara Valleys and the 
counties of Amador, Colusa, Lake, Placer, Solano, Sutter, Yolo, Yuba, 
Napa, Sonoma, San Benito, and Santa Clara.
    --San Joaquin Valley--The counties of Fresno, Kern, Kings, Madera, 
Merced, San Joaquin, Stanislaus, and Tulare.
    This final rule also will allow the Committee to assign any new 
counties of production to one of these three regions or remove counties 
when production ceases. When prune acreage ceases to exist in a county, 
the Committee will remove that county from the existing production 
region, with the approval of the Secretary, and announce the removal to 
the industry. In like manner, if there were new producing counties 
within the State, the Committee will, with the approval of the 
Secretary, be allowed to assign them to one of the existing regions 
based on geographic proximity and/or production/dehydration 
characteristics, instead of listing the counties in the rules and 
regulations. These assignments also will be announced to the industry. 
This process will allow the Committee to make timely changes to the 
producing regions so they reflect the current industry situation. 
Section 993.162(a) is modified to reflect these changes.
    The region for non-French prunes will continue to include all 
counties within the production area because specific information on 
growing regions within the State is not maintained.
    Section 993.162(b) of the regulations currently establishes the 
following eligible diversion methods: (1) Disposing of harvested prune 
plums under Committee supervision for nonhuman use at a location and in 
a manner satisfactory to the Committee; and (2) Leaving unharvested the 
entire production of prune plums from a solid block of bearing trees 
designated by the producer applying for the diversion. This final rule 
will specifically

[[Page 17269]]

reference the removal of prune plum trees prior to harvest as an 
eligible diversion method. In the past, it has been determined that 
removing trees will qualify as unharvested production under the 
existing regulations. However, the Committee recommended adding 
clarifying language to the regulations to ensure that the removal of 
trees will qualify as an eligible diversion method.
    A final change to Sec.  993.162(b) will require the Committee to 
conduct a meeting prior to the beginning of any crop year in which a 
diversion program was being contemplated to determine which diversion 
method or methods may be used, and announce the eligible diversion 
method(s) to the industry. Section 993.162(b) is modified to reflect 
these changes.
    To participate in the diversion program, producers must file an 
application with the Committee. Section 993.162(c) of the regulations 
currently requires that when a producer applies for the diversion 
program, a deposit fee shall accompany the application. The deposit 
fees established in the current regulations are as follows: For each 
producer application, the fee shall be the greater of either $100 or 
the amount obtained by multiplying the quantity, in tons, of prune 
plums to be diverted by $3.50. For commercial dehydrators acting as an 
agent for a group of four or more producers, the fee shall be the 
greatest of either $200 or the amount obtained by multiplying the 
aggregate quantity in tons of prune plums to be diverted by the group 
by $3.50. The deposit fees charged to diverting growers were intended 
to finance the Committee's administrative costs for the entire 
diversion program with any excess monies to be refunded on a prorate 
basis to participants. Because of changed economics since these fees 
were established in the 1970's, the deposit fees established in the 
regulations will not currently cover these costs. The Committee, 
therefore, recommended revising the regulations to provide that 
whenever a diversion program is implemented, the Committee shall, with 
the approval of the Secretary, compute and announce the deposit fees 
associated with filing applications for the diversion program. The 
deposit fees will be announced to the industry, instead of specifying 
the deposit fees in the rules and regulations. It is intended that the 
computed fees will reflect Committee administrative costs associated 
with administering a diversion program whenever such a program is 
recommended.
    These changes will allow flexibility in the regulations by allowing 
the Committee to compute and announce the fees. Section 993.162(c) is 
modified to reflect these changes.
    The Committee also recommended changes to Sec.  993.162(d) of the 
regulations. This section includes criteria for approving diversion 
applications and establishes fees in connection with modifying 
applications. The changes will remove reference to specific fees and 
allow the Committee to apply fees consistent with the process regarding 
deposit fees. The changes also will increase the service charge for 
modifying applications from $1 to $2 per ton to reflect current 
administrative costs. Section 993.162(d) is modified accordingly.
    The rules and regulations pertaining to implementing a prune 
diversion program were developed in the 1970's, and several provisions 
are outdated. These changes are designed to bring the rules and 
regulations in line with the present California prune industry 
practices. The changes also provide for flexibility in years when 
reserve pooling and a diversion program are implemented.

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 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 of less than $750,000, and small agricultural service 
firms are defined as those whose annual receipts are less than 
$5,000,000.
    An updated industry profile shows that 9 out of 24 handlers (37.5 
percent) shipped over $5,000,000 worth of dried prunes and could be 
considered large handlers by the Small Business Administration. Fifteen 
of the 24 handlers (62.5 percent) shipped under $5,000,000 worth of 
prunes and could be considered small handlers. An estimated 32 
producers, or less than 3 percent of the 1,205 total producers, would 
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. USDA does not have precise numbers on the 
total number of commercial dehydrators in the industry or their size. 
However, it may be assumed that many may be considered small under SBA 
criteria.
    Under Sec.  993.62 of the order, when volume control in the form of 
a reserve pool is implemented, prune producers can elect to divert part 
of their prune plum crop from normal markets in lieu of placing prunes 
in a reserve pool. Section 993.162 contains the administrative rules 
and regulations necessary to administer a diversion program. This rule 
will revise those regulations.
    One of the changes will remove references in the regulations to 
establish dryaway ratios for prune plums of the French variety. Dryaway 
ratios are used to determine the dried weight equivalent of fresh prune 
plums diverted from normal markets. Because these dryaway ratios are 
outdated, the Committee recommended replacing them by a process that 
will allow the Committee to compute and announce current dryaway ratios 
based on a survey of commercial dehydrators. Surveying commercial prune 
dehydrators will impose a minor information collection burden on such 
entities. It is estimated that between 8 and 15 commercial dehydrators 
will be requested to furnish information on their annual average 
dryaway ratios to the Committee, and that it will take approximately 15 
minutes to furnish the information. The total estimated annual burden 
of collecting this information is estimated to be 225 minutes (3 hours 
and 45 minutes) for the industry. However, the Committee believes that 
the burden to complete a commercial dehydrator dryaway ratio survey 
will be outweighed by obtaining and using updated dryaway ratio data 
for French prunes when dryaway ratios are used to determine the dried 
weight equivalent of fresh prune plums diverted from normal markets.
    Another change will update the prune producing regions to which the 
dryaway ratios for French prunes are applied, and allow the Committee 
to update the areas based on current production information. Dryaway 
ratios vary from area to area, and prune production shifts over time. 
Another change will specify in the regulatory text that tree removal is 
an acceptable diversion method, and

[[Page 17270]]

that the Committee may determine, with the approval of the Secretary, 
and announce which method(s) of diversion may be used whenever a 
program is implemented. Another change will remove from the regulations 
outdated deposit fees for diversion program participants and authorize 
the Committee to compute such fees based on current program 
administration costs.
    The changes to the prune producing regions, addition of acceptable 
diversion methods, and the Committee's authority to determine which 
methods of diversion are to be used are not expected to have a 
significant impact on growers or handlers, either small or large. These 
changes will update the regulations to reflect changes in the industry 
and to facilitate administration and implementation of a voluntary 
diversion program, if recommended in the future.
    The changes regarding deposit fees will allow the Committee to 
collect charges from diversion program participants that reflect actual 
administrative costs incurred by the Committee. The fees specified in 
the regulations are outdated and will not cover the Committee's actual 
costs if a diversion program was needed to be implemented in the 
future. These changes will help to ensure that the growers 
participating in a future diversion program will pay the administrative 
costs of the program, as specified in Sec.  993.62(g) of the order. 
Because growers participating in a diversion program are the 
beneficiaries of the program, it is appropriate that they pay the 
administrative fees of the program. In addition, because the diversion 
program is voluntary, growers will determine individually whether the 
costs will outweigh the benefits prior to their participation. It is 
not known how many growers will participate in a diversion program, 
since there has not been one implemented under the marketing order 
since the 1970's.
    This final rule will be applied to small and large entities 
equally, regardless of size. The Committee believes that these actions 
will benefit the prune industry by updating the regulations to reflect 
changes in the industry, and by providing a process that will 
facilitate timelier implementation of a diversion program, if 
recommended.
    The Committee discussed alternatives to this change on November 29, 
2001, including taking no action. However, that will leave any future 
diversion program a less viable supply management tool due to outdated 
program elements. Another alternative was to update the data on dryaway 
ratios, prune producing regions, and diversion application charges 
through informal rulemaking the next time a diversion program was 
considered, rather than changing to a formula or survey procedure as 
stated herein. This alternative was not recommended because the 
Committee believed that this final rule would provide for more 
flexibility in administering a future diversion program.
    This action will allow the Committee to survey commercial prune 
dehydrators to estimate costs applicable to drying prune plums. The 
reporting and record keeping burdens are necessary for compliance 
purposes and for developing statistical data to administer a future 
program. This rule will impose some additional reporting or 
recordkeeping requirements on both small and large California prune 
plum commercial dehydrators. It is estimated that between 8 and 15 
commercial dehydrators will be requested to furnish information on 
their annual average dryaway ratios to the Committee, and that it will 
take an average of 15 minutes per response to furnish this information. 
The total estimated annual burden of collecting this information is 
estimated to be 225 minutes (3 hours and 45 minutes) for the industry. 
However, the Committee believes that the burden to complete a 
commercial dehydrator dryaway ratio survey will be outweighed by 
obtaining and using updated dryaway ratio data for French prunes when 
dryaway ratios are used to determine the dried weight equivalent of 
fresh prune plums from normal markets.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), AMS is seeking approval by the Office of Management and 
Budget (OMB) for the additional burden imposed by the commercial 
dryaway ratio survey. Upon OMB approval, the additional burden will be 
merged into the information collection currently approved under OMB No. 
0581-0178, Vegetable and Specialty Crop Marketing Orders. As noted in 
the initial regulatory flexibility analysis, USDA has not identified 
any relevant Federal rules that duplicate, overlap or conflict with 
this rule. 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, the Committee's Supply Management Subcommittee meeting 
on November 28, 2001, and the Committee meeting on November 29, 2001, 
where this action was deliberated, were both public meetings widely 
publicized throughout the prune industry. All interested persons, both 
large and small, were invited to attend the subcommittee and Committee 
meetings and participate in the industry's deliberations.
    A proposed rule concerning this action was published in the Federal 
Register on October 28, 2002, (67 FR 65732). Copies of this rule were 
mailed or sent via facsimile to all Committee members, alternates and 
dried prune handlers. Finally, the Office of the Federal Register and 
USDA made the rule available through the Internet. The rule provided a 
comment period that ended December 27, 2002. No comments were received. 
Accordingly, no changes will be made to the rule as proposed.
    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 matter 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.

0
For the reasons set forth in the preamble, 7 CFR part 993 is amended as 
follows:

PART 993--DRIED PRUNES PRODUCED IN CALIFORNIA

0
1. The authority citation for 7 CFR part 993 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.

0
2. In Sec.  993.162, paragraphs (a), (b), (c), and (d) are revised to 
read as follows:


Sec.  993.162  Voluntary prune plum diversion.

    (a) Quantity to be diverted. The Committee shall indicate the 
quantity of prune plums that producers may divert pursuant to Sec.  
993.62 whenever it recommends to the Secretary that diversion 
operations for a crop year be permitted. Whenever diversion operation 
for a crop year have been authorized by the Secretary, the Committee 
shall notify producers, commercial dehydrators, and handlers, known to 
it of such authorization and diversion program procedures. The

[[Page 17271]]

Committee shall compute the dried weight equivalent of prune plums so 
diverted on a dryaway basis as follows:
    (1) For prune plums of the French variety, the Committee shall 
survey at least eight commercial prune dehydrators that are 
geographically dispersed within the production area to obtain their 
annual dryaway ratios for each of the preceding five crop years, and 
compute a five-year average dryaway ratio for each dehydrator. The 
Committee shall then add together the participating commercial 
dehydrators' five-year average dryaway ratios for each producing region 
within the production area, and divide the total by the number of 
participating commercial dehydrators in that region to compute the 
dryaway ratio by producing region. In the event any of the annual 
dryaway ratios for any of the crop years is abnormally high or low in 
any year, the Committee may replace the abnormal year's data with that 
of an earlier year. The prune producing regions for which dryaway 
ratios shall be computed for prune plums of the French variety are as 
follows:
    (i) North Sacramento Valley, which includes the counties of Butte, 
Glenn, Shasta, and Tehama;
    (ii) South Sacramento, Napa, Sonoma, and Santa Clara Valleys, which 
includes the counties of Amador, Colusa, Lake, Placer, Solano, Sutter, 
Yolo, Yuba, Napa, Sonoma, San Benito, and Santa Clara; and
    (iii) San Joaquin Valley, which includes the counties of Fresno, 
Kern, Kings, Madera, Merced, San Joaquin, Stanislaus, and Tulare.
    (A) New producing counties within the area. If there were new 
producing counties within the State of California, the Committee will, 
with the approval of the Secretary, assign the new prune producing 
county or counties, as the case may be, to one of the prune producing 
regions based on geographic proximity and/or production/dehydration 
characteristics. The addition of a county or counties, as the case may 
be, to one of the producing regions will be announced to the industry.
    (B) Removal of a county from a production area. When prune acreage 
ceases to exist in a county, the Committee will, with the approval of 
the Secretary, remove that county from the existing region. Removal of 
a county from a production region also will be announced to the 
industry.
    (2) For prune plums of the non-French variety, the dryaway ratio 
shall be 1 pound for each 3.50 pounds of prune plums diverted. The 
prune-producing region for prune plums of non-French varieties is the 
State of California.
    (b) Eligible diversions. Eligible diversions shall preclude prune 
plums from becoming prunes and may include the following methods:
    (1) Disposing of harvested prune plums under Committee supervision 
for nonhuman use at a location and in a manner satisfactory to the 
Committee;
    (2) Leaving unharvested the entire production of prune plums from a 
solid block of bearing trees designated by the producer applying for 
the diversion of removing prune plum trees prior to harvest; and/or
    (3) Such other diversions as may be authorized by he Committee and 
approved by the Secretary.
    (4) In accordance with Sec.  993.62(c), eligible diversion shall 
not apply to prune plums, which would not, under normal producer 
practices, be dried and delivered to a handler. On or before July 20 of 
each crop year when the Committee recommends a reserve pool and 
diversion program (except the Committee with the approval of the 
Secretary may extend this date by not more than 10 business days if 
warranted by a late crop), the Committee shall identify, with the 
approval of the Secretary, the acceptable method(s) of voluntary prune 
plum diversion through reasonable publicity to producers, commercial 
dehydrators, handlers, and the cooperative bargaining association(s). 
For the purposes of this section, cooperative bargaining association 
means a nonprofit cooperative association of dried prune producers 
engaged within the production area in bargaining with handlers as to 
price and otherwise arranging for the sale of natural condition dried 
prunes of its members.
    (c) Applications for diversion.
    (1) By producers. Each producer desiring to divert prune plums of 
his own production shall, prior to diversion, file with the Committee a 
certified application on Form PMC 10.1 ``Application for Prune Plum 
Diversion'' containing at least the following information:
    (i) The name and address of the producer; whether the producer is 
an owner-operator, share-landlord, share-tenant, or cash tenant; and 
the name and address of any other person or persons sharing a 
proprietary interest in such prune plums;
    (ii) The proposed method of diversion and the location where the 
diversion is to take place;
    (iii) The quantity and variety of prune plums proposed to be 
diverted; and
    (iv) The approximate period of diversion.
    (v) A deposit fee shall accompany each producer's application to 
cover costs associated with processing the application and 
administering the diversion program. The Committee shall compute, with 
the approval of the Secretary, and announce to the industry, the 
deposit fee. The deposit fee announced shall be a set dollar amount or 
a per ton cost based on the tonnage to be diverted. The fee paid by the 
applicant shall be the greater of these amounts.
    (2) By dehydrator as agent. Any producer, or group of producers, 
may authorize a dehydrator to act as an agent to divert harvested prune 
plums. Prior to diversion such dehydrator shall submit to the Committee 
an application on Form PMC 10.1 ``Application for Prune Plum 
Diversion'' for each producer or group of producers under contract with 
the dehydrator. A deposit fee shall accompany each such application to 
cover the costs associated with processing the application and 
administration of the program. With respect to any group of four or 
more producers under contract with a dehydrator, the deposit fee for 
the group shall be the greater of either double the single deposit fee, 
pursuant to paragraph (c)(1) of this section, or the amount obtained by 
multiplying the total tonnage of prune plums to be diverted by the 
group of producers covered in the dehydrator's application times the 
per ton deposit rate announced by the Committee pursuant to (c)(1) of 
this section.
    (3) Receipt of applications. The Committee shall establish, and 
give prompt notice to the industry, a final date for receipt of 
applications for diversion: Provided, That the Committee may extend 
such deadline if the total tonnage represented in all applications is 
substantially less than the total tonnage established by the Committee 
pursuant to paragraph (a) of this section.
    (d) Approval of applications. No certificate of diversion shall be 
issued by the Committee unless it has approved the application covering 
such diversion.
    (1) The Committee's approval of an application shall be in writing, 
and include at least the following:
    (i) The details as to the method of diversion to be followed;
    (ii) The method of appraisal to be used by the Committee to 
determine the quantity of prune plums diverted;
    (iii) The lesser of either the quantity specified in the 
application to be diverted, or modification of that quantity as a 
result of any Committee action to prorate the total quantity to be 
diverted by all producers; and

[[Page 17272]]

    (iv) Such other information as may be necessary to assist the 
applicant in meeting the requirements of this section, including the 
conditions for proof of diversion.
    (2) If the Committee determines that it cannot approve an 
application it shall notify the applicant promptly. The Committee shall 
state the reason(s) for failing to approve the application, and request 
the applicant to submit, if practicable, an amended application 
correcting the deficiencies in the original application.
    (3) The Committee shall establish, and give prompt notice to the 
industry of a final date by which a producer or dehydrator may modify 
an approved application, including changing the method of diversion or 
the quantity of prune plums to be diverted: Provided, That any such 
change shall include information on the location or quantity of such 
diversion and shall be accompanied by a payment of a second deposit 
fee, calculated pursuant to paragraph (c)(1) or (c)(2), as applicable, 
of this section, plus a $2 per ton service charge for any increase in 
tonnage to be diverted.
    (4) If an applicant cancels an approved diversion application prior 
to diversion, no part of the deposit fee shall be refunded, except upon 
approval by the Committee following review of all circumstances in the 
matter.
* * * * *

    Dated: April 3, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-8649 Filed 4-8-03; 8:45 am]
BILLING CODE 3410-02-P