[Federal Register Volume 68, Number 205 (Thursday, October 23, 2003)]
[Rules and Regulations]
[Pages 60618-60620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-26713]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Docket No. FV03-993-4 FIR]


Dried Prunes Produced in California; Decreased Assessment Rate

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 which decreased the 
assessment rate established for the Prune Marketing Committee 
(Committee) under Marketing Order No. 993 for the 2003-04 and 
subsequent crop years from $2.60 to $2.00 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 began August 1 and ends July 31. The assessment 
rate will remain in effect indefinitely unless modified, suspended, or 
terminated.

EFFECTIVE DATE: November 24, 2003.

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, 2003, and continue until

[[Page 60619]]

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'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 2003-04 and subsequent crop years from $2.60 per 
ton to $2.00 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 2002-03 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 26, 2003, and unanimously recommended 
2003-04 expenditures of $341,000 and an assessment rate of $2.00 per 
ton of salable dried prunes. In comparison, last year's budgeted 
expenditures were $384,370. The assessment rate is $0.60 lower than the 
rate previously in effect. The Committee was able to recommend a lower 
assessment rate this year because salable prune production is expected 
to be 170,500 tons, 15,500 tons higher than production last year. With 
a larger 2003-04 prune crop and lower budget, an assessment rate of 
$2.00 per ton will provide sufficient funds for Committee operations 
this year. The following table compares major budget expenditures 
recommended by the Committee on June 26, 2003, and major budget 
expenditures in the 2002-03 budget.

------------------------------------------------------------------------
            Budget expense categories               2002-03     2003-04
------------------------------------------------------------------------
Total Personnel Salaries........................    $232,575    $220,540
Total Operating Expenses........................     136,850     103,750
Reserve for Contingencies.......................      14,945      16,710
------------------------------------------------------------------------

    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 
continues to be estimated at 170,500 salable tons, which should provide 
$341,000 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 2002-03 
crop year (currently estimated at $78,947) for up to 5 months beyond 
the end of the crop year to meet 2003-04 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 2003-04 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 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 less than $750,000, and small agricultural service 
firms are defined as those whose annual receipts are less than 
$5,000,000.
    Eight of the 21 handlers (38%) shipped over $5,000,000 of dried 
prunes and could be considered large handlers by the Small Business 
Administration. Thirteen of the 21 handlers (62%) 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, 
may be considered large growers with annual income over $750,000. 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 2003-04 and 
subsequent crop years from $2.60 per ton to $2.00 per ton of salable 
dried prunes. The Committee unanimously recommended 2003-04 
expenditures of $341,000 and an assessment rate of $2.00 per ton of 
salable dried prunes.
    The assessment rate is $0.60 lower than the rate previously in 
effect. The quantity of assessable dried prunes for the 2003-04 crop 
year continues to be estimated at 170,500 salable tons. Thus, the $2.00 
rate should provide $341,000 in assessment income and be adequate to 
meet this year's expenses. Interest

[[Page 60620]]

income also will be available to cover budgeted expenses if the 2003-04 
expected assessment income falls short.
    The following table compares major budget expenditures recommended 
by the Committee on June 26, 2003, and major budget expenditures in the 
2002-03 budget.

------------------------------------------------------------------------
            Budget expense categories               2002-03     2003-04
------------------------------------------------------------------------
Total Personnel Salaries........................    $232,575    $220,540
Total Operating Expenses........................     136,850     103,750
Reserve for Contingencies.......................      14,945      16,710
------------------------------------------------------------------------

    Prior to arriving at its budget of $341,000, the Committee 
considered information from various sources, such as the Committee's 
Executive Subcommittee. An alternative to this action was to continue 
with the $2.60 per ton assessment rate. However, an assessment rate of 
$2.60 per ton in combination with the estimated crop of 170,500 salable 
tons would have generated monies in excess of that needed to fund all 
the budget items for 2003-04. The assessment rate of $2.00 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 2002-03 crop year 
(currently estimated at $78,947) for up to 5 months beyond the end of 
the crop year to fund 2003-04 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 2003-04 will be adequate to cover authorized expenses.
    The grower price for the 2003-04 season is expected to average 
about the same as the estimated 2002-03 average grower price of about 
$800 per salable ton of dried prunes. Based on an estimated 170,500 
salable tons of dried prunes, assessment revenue during the 2003-04 
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 26, 2003, 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 6, 2003 (68 FR 46436). 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 6, 2003, 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.

PART 993--DRIED PRUNES PRODUCED IN CALIFORNIA

    Accordingly, the interim final rule amending 7 CFR part 993 which 
was published at 68 FR 46436 on August 6, 2003, is adopted as a final 
rule without change.

    Dated: October 17, 2003.
Kenneth C. Clayton,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 03-26713 Filed 10-22-03; 8:45 am]
BILLING CODE 3410-02-P