[Federal Register Volume 62, Number 149 (Monday, August 4, 1997)]
[Rules and Regulations]
[Pages 41808-41810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-20457]



[[Page 41808]]

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

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 
Sec. 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.

[[Page 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 Sec. 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

[[Page 41810]]

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.


Sec. 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