[Federal Register Volume 68, Number 183 (Monday, September 22, 2003)]
[Rules and Regulations]
[Pages 54979-54981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24099]



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 Rules and Regulations
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  Federal Register / Vol. 68, No. 183 / Monday, September 22, 2003 / 
Rules and Regulations  

[[Page 54979]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Docket No. FV03-993-1 FIR]


Dried Prunes Produced in California; Changes in Reporting 
Requirements

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim final rule changing the reporting 
requirements currently prescribed under the California dried prune 
marketing order (order). The order regulates the handling of dried 
prunes produced in California and is administered locally by the Prune 
Marketing Committee (Committee). This rule continues to allow 
California prune handlers to report their shipments quarterly, rather 
than monthly, and to no longer report export shipment destination 
countries. Also, handlers will continue to report type of pack as 
``bulk and consumer pack'' to reveal less marketing information. This 
action will continue the reduced information collection burden upon 
handlers, while still enabling the Committee to collect information 
necessary for program administration.

EFFECTIVE DATE: October 22, 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, or 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 (7 CFR part 993), both as amended, 
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.''
    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 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'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 in effect modifications to language in the 
order's administrative rules and regulations to allow California prune 
handlers to report their shipments quarterly, rather than monthly. 
Also, handlers will continue to report their export market shipments to 
the Committee by region, rather than by country. The amount of 
information disseminated by the Committee is also reduced. The 
Committee is no longer reporting the export shipments to the industry 
by country, and the regions that handlers ship into is only reported 
once a year, when the marketing policy is prepared. Also, the reporting 
of type of pack is changed from ``carton, visipak, and other'' to 
``bulk and consumer pack''. These changes reduce the information 
collection burden upon handlers and the Committee's administrative 
costs because of the switch to quarterly distribution. This action was 
unanimously recommended by the Committee at a meeting on April 3, 2003.

Marketing Order Authority

    Section 993.72 of the order provides authority for the Committee to 
require handlers to file such reports of acquisitions, sales, uses, and 
shipments of prunes, as may be requested by the Committee. Also, 
pursuant to Sec.  93.36(c), one of the Committee's duties is to 
assemble data on the producing, handling, shipping, and marketing 
conditions relative to prunes in connection with the performance of its 
official duties. To prevent the release of proprietary business 
information, the information from all of the handlers is totaled and 
then distributed.

Administrative Rules and Regulations

    Prior to implementation of the interim final rule, Sec.  993.172 
required handlers to report each month on their holdings, receipts, 
uses, and shipments of prunes produced in California.
    Paragraph (d) of Sec.  993.172 requires handlers to report 
shipments of dried prunes produced in California. This information is 
reported on PMC Form 12.1, ``Report of Shipments,'' and an addendum to 
that form referred to as PMC Form 12.1A, ``Cumulative Prune Export 
Shipments.''
    Prior to the implementation of the interim final rule, each handler 
was required to file with the Committee for each month, not later than 
the 5th working day of the next succeeding month, Forms PMC 12.1 and 
12.1A, reporting shipments (including cumulative exports by country) of

[[Page 54980]]

prunes during the crop year through the last day of the immediately 
preceding month. PMC Form 12.1 was required to contain at least the 
following information:
    (1) The date, the name, and address of the handler, and the period 
covered by the report;
    (2) The pounds of prunes shipped or otherwise disposed of, other 
than shipments to or for the account of other handlers as follows: (i) 
Domestic outlets segregated by uses (including Federal Government 
agencies); (ii) export markets segregated by countries; (iii) both 
domestic and export totals segregated by type of pack (carton, visipak, 
and other); and (iv) pitted prunes (pitted weight) segregated as to 
total to domestic outlets and total to export markets;
    (3) The total pounds shipped to or for the account of other 
handlers, including interhandler transfers; and
    (4) The total pounds of prunes not covered by, or excluded from, 
the definition of the term ``prunes'' (Sec.  993.5) shipped.
    PMC Form 12.1A included a listing of the quantities of whole and 
pitted prunes exported together with the countries to which the exports 
were made.

Recommended Action

    Based upon competition concerns, the Committee unanimously 
recommended changing the frequency and amount of information that is 
required to be reported by handlers. This rule continues to allow the 
Committee to obtain the information it needs for program purposes, and 
continues to permit California prune handlers to file their Shipment 
Reports on a quarterly, rather than monthly basis.
    Handlers are no longer reporting their export shipment destination 
countries to the Committee. Instead handlers are reporting the regions 
into which they ship. The amount of information disseminated by the 
Committee continues to be reduced. The Committee is no longer reporting 
the countries to which the industry exports, but only the total export 
shipments (except that total export shipments into regions is reported 
annually for marketing policy purposes). The reporting of type of pack 
is changed from ``carton, visipak, and other'' to ``bulk and consumer 
pack'' to reveal less marketing information.
    By distributing the Shipment Report quarterly, instead of monthly, 
and revising the report's format to provide less detailed information, 
the Committee reduces the amount of marketing information it is 
releasing. However, this information still satisfies the Committee's 
need for information to prepare the marketing policy, verify 
compliance, monitor the accuracy of handler reports, justify government 
purchases or supply control recommendations, and to help the industry 
develop their marketing programs and evaluate USDA Market Access 
Program applications. At least once a year, export shipments by region 
are reported for the entire crop year. During the remainder of the 
year, the Committee may only report total export shipments.
    These recommendations by the Committee reduce the reporting burden 
on California prune handlers as well as help address some of the 
marketing concerns of the industry and Committee. These changes also 
reduce some of the Committee's administrative costs in disseminating 
this information quarterly, rather than monthly. Accordingly, 
appropriate changes are continued in paragraph (d) of Sec.  993.172.

Final Regulatory Flexibility Analysis and the Paperwork Reduction Act

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Agricultural Marketing Service (AMS) has considered the 
economic impact of this action 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.

Industry Profile

    There are approximately 1,205 producers of dried prunes in the 
production area and approximately 21 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 having annual receipts of less than 
$5,000,000.
    Currently 8 of the 21 handlers (38 percent) shipped over $5,000,000 
worth of dried prunes and could be considered large handlers by the 
Small Business Administration. Thirteen of the 21 handlers (62 percent) 
shipped less than $5,000,000 worth of dried prunes and could be 
considered small handlers. An estimated 32 producers, or less than 3 
percent of the 1,205 total producers, will be considered large growers 
with annual incomes over $750,000. The majority of handlers and 
producers of California dried prunes may be classified as small 
entities.

Summary of Rule Change

    This rule continues to change the reporting requirements specified 
in Sec.  993.172(d) of the administrative rules and regulations 
regarding the reporting of dried prune shipments by handlers. This rule 
continues to allow the California prune handlers to file their Shipment 
Reports quarterly, rather than monthly. Also handlers are no longer 
reporting their export market shipments to the Committee by country, 
but by region. The amount of information disseminated by the Committee 
continues to be reduced. The Committee is no longer reporting export 
shipments by country, but only in total (except that total export 
shipments into regions are reported annually to enable the Committee to 
prepare its marketing policy). The reporting of type of pack is changed 
from ``carton, visipak, and other'' to ``bulk and consumer pack''.

Impact of Regulation

    Regarding the impact of this rule on affected entities, this action 
continues the reduced reporting and recordkeeping burden on California 
prune handlers and continues the reduction in the Committee's 
administrative costs. The Committee estimates that 21 California prune 
handlers are required to file the Supply and Disposition reports each 
month. It is estimated that it takes each handler about 20 minutes to 
complete each revised PMC Form 12.1, and about 20 minutes to complete 
each revised PMC Form 12.1A. In comparison it is estimated that 
previously each handler needed about 30 minutes to complete each PMC 
Form 12.1, and about 35 minutes to complete each PMC Form 12.1A. Thus, 
completion of the revised reports takes 10 minutes less, and 15 minutes 
less, respectively, than was required for each of the reports 
previously. The total annual industry reporting burden for the current 
PMC Form 12.1 was 120 hours, and for the PMC Form 12.1A was 139 hours, 
for a combined total of 259 hours. The total burden hours for the 
revised PMC Forms 12.1 and 12.1A is 28 hours each, for a combined total 
of 55 hours. These changes thereby reduce the annual industry 
information collection burden by 204 hours. Committee costs are also 
reduced because the report is compiled

[[Page 54981]]

and distributed quarterly, rather than monthly.
    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Chapter 35), the information collection burden reduction contained in 
this rule has been submitted to the Office of Management and Budget. 
This action reduces existing approved burden requirements which have 
been assigned OMB No. 0581-0178. 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, as noted in the initial regulatory flexibility 
analysis, USDA has not identified any relevant Federal rules that 
duplicate, overlap or conflict with this rule.

Alternatives Considered

    The Committee considered alternatives to this action at meetings on 
March 11, April 2, and April 3, 2003. The Executive Subcommittee and 
Committee discussed the possibility of eliminating all reporting, but 
determined that this was not viable because it needs certain 
information to prepare its marketing policy and for other decision-
making. Some industry leaders also felt that the statistics are 
important for grower, handler, and bargaining association decisions 
that need to be made each year. Finally, the Executive Subcommittee and 
Committee discussed disseminating the information only to members and 
alternates of the Committee, its subcommittees, and to California prune 
handlers. Ultimately, the Executive Subcommittee and Committee decided 
to proceed with the changes in shipment reporting requirements to 
reduce the frequency of the reports, and to reduce the amount of 
information reported to and disseminated by the Committee.
    The Executive Subcommittee's March 11 and April 2, 2003, meetings 
and the Committee's April 3, 2003, meeting where this issue was 
deliberated were public and widely publicized throughout the prune 
industry. All interested persons were invited to attend the meetings 
and participate in the industry's deliberations. All entities, both 
large and small, were able to express their views on this issue at the 
meetings.
    An interim final rule concerning this action was published in the 
Federal Register on June 24, 2003. Copies of the rule were provided by 
the Committee's staff to all who attended a June 26, 2003, Committee 
meeting. In addition, the rule was made available through the Internet 
by the Office of the Federal Register and USDA. That rule provided for 
a 60-day comment period, which ended August 25, 2003. 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 Committee's recommendation, and other information, it is found that 
finalizing the interim final rule, without change, as published in the 
Federal Register (68 FR 37391, June 24, 2003) 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.

PART 993--DRIED PRUNES IN CALIFORNIA

0
Accordingly, the interim final rule amending 7 CFR part 993 which was 
published in the Federal Register at 68 FR 37391 on June 24, 2003, is 
adopted as a final rule without change.

    Dated: September 16, 2003.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 03-24099 Filed 9-18-03; 12:01 pm]
BILLING CODE 3410-02-U