41808 Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Rules and Regulations

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Docket No. FV97–993–1 IFR]

Dried Prunes Produced in California;

Increased Assessment Rate

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Interim final rule with request

for comments.

SUMMARY: This interim final rule

increases the assessment rate for the

Prune Marketing Committee

(Committee) under Marketing Order No.

993 for the 1997–98 and subsequent

crop years. The Committee is

responsible for local administration of

the marketing order which regulates the

handling of dried prunes produced in

California. Authorization to assess

prune handlers enables the Committee

to incur expenses that are reasonable

and necessary to administer the

program. The 1997–98 crop year covers

the period August 1 through July 31.

The assessment rate will continue in

effect indefinitely unless modified,

suspended, or terminated.

DATES: Effective August 1, 1997.

Comments received by September 3,

1997 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 in triplicate to the Docket Clerk,

Fruit and Vegetable Division, AMS,

USDA, room 2525–S, PO Box 96456,

Washington, DC 20090–6456; Fax: (202)

720–5698. 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.

FOR FURTHER INFORMATION CONTACT:

Richard P. Van Diest, Marketing

Specialist, or Diane Purvis, Marketing

Assistant, California Marketing Field

Office, Fruit and Vegetable Division,

AMS, USDA, 2202 Monterey Street,

suite 102B, Fresno, California 93721;

telephone: (209) 487–5901, Fax: (209)

487–5906; or George Kelhart, Marketing

Order Administration Branch, Fruit and

Vegetable Division, AMS, USDA, room

2525–S, PO Box 96456, Washington, DC

20090–6456; telephone: (202) 690–3919,

Fax: (202) 720–5698. Small businesses

may request information on compliance

with this regulation by contacting Jay

Guerber, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, room

2525–S, PO Box 96456, Washington, DC

20090–6456; telephone: (202) 720–2491,

Fax: (202) 720–5698.

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 produced 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

(Department) 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 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 prunes

beginning August 1, 1997, and

continuing 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 Secretary 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 the Secretary 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 Secretary’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 increases the assessment

rate established for the Committee for

the 1997–98 and subsequent crop years

from $1.50 to $1.60 per salable ton of

dried prunes.

The California dried prune marketing

order provides authority for the

Committee, with the approval of the

Department, 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 1996–97 and subsequent crop

years, the Committee recommended,

and the Department approved, an

assessment rate that would continue in

effect from crop year to crop year

indefinitely unless modified,

suspended, or terminated by the

Secretary upon recommendation and

information submitted by the

Committee or other available

information available to the Secretary.

The Committee met on June 24, 1997,

and unanimously recommended 1997–

98 expenditures of $331,960 and an

assessment rate of $1.60 per salable ton

of dried prunes. In comparison, last

year’s budgeted expenditures were

$283,500. The assessment rate of $1.60

is $0.10 higher than the rate currently in

effect. The higher assessment rate is

needed to cover increases in costs for

the Committee’s acreage survey and staff

salaries.

The major expenditures

recommended by the Committee for the

1997–98 crop year include $176,300 for

salaries, wages, and benefits, $30,000 for

research and development, $23,000 for

office rent, $21,000 for travel, $20,000

for acreage survey, $8,060 for the

reserve for contingency, $5,000 for

office supplies, $9,000 for rental of

equipment, and $8,000 for data

processing. Budgeted expenses for these

items in 1996–97 were $142,120,

$30,000, $22,000, $20,000, $11,000,

$8,430, $6,500, $3,800, and $6,500,

respectively.

The assessment rate recommended by

the Committee was derived by dividing

anticipated expenses by its estimate of

assessable California dried prunes for

1997–98. Assessable tonnage for the

year is estimated at 207,475 salable tons

which should provide $331,960 in

assessment income. Income derived

from handler assessments and interest

income will be adequate to cover

budgeted expenses. Any funds not

expended by the Committee during a

crop year may be used, pursuant to

§ 993.81(c), for a period of five months

subsequent to that crop year. At the end

of such period, the excess funds are

returned or credited to handlers.
Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Rules and Regulations 41809

The assessment rate established in

this rule will continue in effect

indefinitely unless modified,

suspended, or terminated by the

Secretary 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 fiscal period to

recommend a budget of expenses and

consider recommendations for

modification of the assessment rate. The

dates and times of Committee meetings

are open to the public and interested

persons may express their views at these

meetings. The Department 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 1997–98 budget and those

for subsequent fiscal periods will be

reviewed and, as appropriate, approved

by the department.

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 1,400

producers of dried prunes in the

production area and approximately 21

handlers subject to regulation under the

marketing order. Small agricultural

producers have been defined by the

Small Business Administration (13 CFR

121.601) as those having annual receipts

less than $500,000, and small

agricultural service firms are defined as

those whose annual receipts are less

than $5,000,000. The majority of

California dried prune producers and

handlers may be classified as small

entities.

Last year, as a percentage, about 29

percent of the handlers shipped over

$5,000,000 worth of dried prunes and

71 percent of the handlers shipped

under $5,000,000 worth of prunes. In

addition, based on acreage, production,

producer prices provided by the

Committee, and the total number of

dried prune producers, the average

annual producer revenue is

approximately $136,000. The majority

of handlers and producers of California

dried prunes may be classified as small

entities.

This rule increases the assessment

rate established for the Committee and

collected from handlers for the 1997–98

and subsequent crop years from $1.50 to

$1.60 per salable ton. The Committee

unanimously recommended 1997–98

expenditures of $331,960 and an

assessment rate of $1.60 per salable ton

of California dried prunes. The

assessment rate of $1.60 is $0.10 more

than the rate currently in effect. The

Committee estimated assessable dried

prunes in 1997–98 at 207,475 salable

tons. Thus, the current $1.50 rate of

assessment would only provide

$311,212 in revenue, which would not

be adequate to meet the Committee’s

1997–98 budgeted espenses. The $1.60

rate should provide $331,960 in

assessment income and be adequate to

meet this year’s expenses.

The Committee’s increase from

$283,500 to $331,960 in budgeted

expenses for 1997–98 results primarily

from increases in the following line item

categories—total personnel (salaries,

wages, and benefits), rental of

equipment, data processing, and acreage

survey. Expenses for these items for

1997–98, with last year’s budgeted

expenses in parenthesis, are: Total

personnel—$176,300 ($142,120); rental

of equipment—$9,000 ($3,800); data

processing—$8,000 ($6,500); and

acreage survey—$20,000 ($11,000). The

increase is needed to provide wage and

benefit increases for the staff. The

increase in acreage survey is necessary

to allow the Committee to conduct a

more comprehensive dried prune

acreage survey than conducted last year.

The Committee considered the

alternative of conducting a smaller scale

survey at less cost, but decided that a

survey of all California’s producing

counties was needed to help the

industry make production and

marketing plans. In making its budget

recommendation, the Committee felt

that all of the expense levels were

appropriate and reasonable.

Any funds not expended by the

Committee during a crop year may be

used, pursuant to § 993.81(c), for a

period of five months subsequent to that

crop year. At the end of such period, the

excess funds are returned or credited to

handlers.

California dried prune price

information is not yet available for the

1997–98 crop year. Producer prices

averaged $940 per ton in the previous

crop year. The proposed $1.60 per ton

assessment rate for the 1997–98 crop

year is insignificant when compared to

the average prices received the previous

year and what is expected for the 1997–

98 crop year.

This action will increase the

assessment obligation imposed on

handlers. While this rule will impose

some additional costs on handlers, the

costs are minimal and in the form of

uniform assessments on all handlers.

Some of the additional costs may be

passed on to producers. However, these

costs will be offset by the benefits

derived by the operation of the

marketing order. 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 24, 1997,

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 will not impose any

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 Department has not identified

any relevant Federal rules that

duplicate, overlap, or conflict with this

rule.

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.

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 Committee needs to

have sufficient funds to pay its expenses

which are incurred on a continuous

basis; (2) the 1997–98 crop year begins

on August 1, 1997, and the marketing

order requires that the rate of

assessment for each crop year apply to
41810 Federal Register / Vol. 62, No. 149 / Monday, August 4, 1997 / Rules and Regulations

all assessable dried prunes handled

during such 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 30-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

Dried prunes, Marketing agreements,

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.

§ 993.347 [Amended]

2. Section 993.347 is amended by

removing ‘‘August 1, 1996,’’ and adding

in its place ‘‘August 1, 1997,’’, and by

removing ‘‘$1.50’’ and adding in its

place ‘‘$1.60.’’

Dated: July 29, 1997.

Ronald L. Cioffi,

Acting Director, Fruit and Vegetable Division.

[FR Doc. 97–20457 Filed 8–1–97; 8:45 am]

BILLING CODE 3410–02–U

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1126

[DA–97–06]

Milk in the Texas Marketing Area;

Suspension of Certain Provisions of

the Order

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule; suspension.

SUMMARY: This document continues the

suspension of segments of the pool

plant and producer milk definitions of

the Texas order for a two-year period.

Associated Milk Producers, Inc., a

cooperative association that represents

producers who supply milk to the

market, requested continuation of the

current suspension with a change to the

producer diversion provision.

Continuation of the suspension

currently in effect is necessary to ensure

that dairy farmers who have historically

supplied the Texas market will continue

to have their milk priced under the

Texas order without incurring costly

and inefficient movements of milk.

EFFECTIVE DATE: August 1, 1997, through

July 31, 1999.

FOR FURTHER INFORMATION CONTACT:

Clifford M. Carman, Marketing

Specialist, USDA/AMS/Dairy Division,

Order Formulation Branch, Room 2971,

South Building, P.O. Box 96456,

Washington, DC 20090–6456, (202) 720–

9368, e-mail address Clifford—M—

Carman@usda.gov.

SUPPLEMENTARY INFORMATION: Prior

document in this proceeding:

Notice of Proposed Suspension:

Issued May 7, 1997; published May 13,

1997 (62 FR 26255).

Notice of Revised Proposed

Suspension: Issued June 23, 1997;

published June 27, 1997 (62 FR 34676).

The Department is issuing this final

rule in conformance with Executive

Order 12866.

This final rule has been reviewed

under Executive Order 12988, Civil

Justice Reform. This rule is not intended

to have a 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 Agricultural Marketing

Agreement Act of 1937, as amended

(7 U.S.C. 601–674), 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

request modification or exemption from

such order by filing with the Secretary

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 the law. A

handler is afforded the opportunity for

a hearing on the petition. After a

hearing, the Secretary 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 its principal place of

business, has jurisdiction in equity to

review the Secretary’s ruling on the

petition, provided a bill in equity is

filed not later than 20 days after the date

of the entry of the ruling.

Small Business Consideration

In accordance with the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.), the

Agricultural Marketing Service has

considered the economic impact of this

action on small entities and has certified

that this rule will not have a significant

economic impact on a substantial

number of small entities. For the

purpose of the Regulatory Flexibility

Act, a dairy farm is considered a ‘‘small

business’’ if it has an annual gross

revenue of less than $500,000, and a

dairy products manufacturer is a ‘‘small

business’’ if it has fewer than 500

employees. For the purposes of

determining which dairy farms are

‘‘small businesses,’’ the $500,000 per

year criterion was used to establish a

production guideline of 326,000 pounds

per month. Although this guideline does

not factor in additional monies that may

be received by dairy producers, it

should be an inclusive standard for

most ‘‘small’’ dairy farmers. For

purposes of determining a handler’s

size, if the plant is part of a larger

company operating multiple plants that

collectively exceed the 500-employee

limit, the plant will be considered a

large business even if the local plant has

fewer than 500 employees.

For the month of March 1997, the

milk of 1,805 producers was pooled on

the Texas Federal milk order. Of these

producers, 1,350 producers were below

the 326,000-pound production guideline

and are considered small businesses.

During this same period, there were 24

handlers operating pool plants under

the Texas order. Five of these handlers

would be considered small businesses.

This rule continues the suspension of

segments of the pool plant and producer

milk definitions under the Texas order.

This rule lessens the regulatory impact

of the order on certain milk handlers

and tends to ensure that dairy farmers

continue to have their milk priced

under the order and thereby receive the

benefits that accrue from such pricing.

Additionally, this rule will not increase

the regulatory burden on handlers since

the suspension has been in effect during

the prior two-year period. The

suspension will continue to provide

handlers the flexibility needed to move

milk supplies in the most efficient

manner and to eliminate costly and

inefficient movements of milk that

would be made solely for the purpose of

pooling the milk of dairy farmers who

have historically supplied the market.

Preliminary Statement

This order of suspension is issued

pursuant to the provisions of the

Agricultural Marketing Agreement Act

and of the order regulating the handling

of milk in the Texas marketing area.

Notice of proposed rulemaking was

published in the Federal Register on

May 7, 1997 (62 FR 26255), concerning

a proposed suspension of certain

provisions of the order. A revised

proposed suspension was issued on

June 23, 1997, and published in the

Federal Register on June 27, 1997 (62

FR 34676). Interested persons were