FR Doc 03-19969

[Federal Register: August 6, 2003 (Volume 68, Number 151)]
[Rules and Regulations]
[Page 46436-46439]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06au03-4]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Docket No. FV03-993-4 IFR]

Dried Prunes Produced in California; Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule decreases 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.

DATES: August 7, 2003. Comments received by October 6, 2003, 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 to the Docket Clerk,
Marketing Order Administration Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC
20250-0237; Fax: (202) 720-8938; or E-mail: moab.docketclerk@usda.gov.
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, or can be viewed at: http://www.ams.usda.gov/fv/moab.html
.

[[Page 46437]]

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: Jay.Guerber@usda.gov.
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.''
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. 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 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 decreases 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 recommended assessment rate is $0.60
lower than the rate currently in effect. The Committee was able to
recommend a lower assessment rate this year because salable prune
production this year 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 is
estimated at 170,500 salable tons, which should provide $341,000 in
assessment income. Income derived from handler assessments would be
adequate to cover budgeted expenses. Interest income also would 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 established in this rule 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.

Initial 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 initial regulatory flexibility analysis.

[[Page 46438]]

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,
would 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 decreases 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
recommended assessment rate is $0.60 lower than the current rate. The
quantity of assessable dried prunes for the 2003-04 crop year is now
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 income also would 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.

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 would be 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 generate 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 would 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 decreases 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. Finally,
interested persons are invited to submit information on the regulatory
and informational impacts of this action on small businesses.
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.
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.
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 2003-04 crop year began on August 1, 2003,
and the marketing order requires that the rate of assessment for each
crop year apply to all assessable dried prunes handled during such crop
year; (2) this rule decreases the assessment rate for assessable prunes
beginning with the 2003-04 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 60-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

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:

[[Page 46439]]

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. Section 993.347 is revised to read as follows:

Sec. 993.347 Assessment rate.

On and after August 1, 2003, an assessment rate of $2.00 per ton is
established for California dried prunes.

Dated: July 31, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-19969 Filed 8-5-03; 8:45 am]

BILLING CODE 3410-02-P