[Federal Register Volume 64, Number 249 (Wednesday, December 29, 1999)]
[Rules and Regulations]
[Pages 72909-72912]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33642]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 993
[Docket No. FV00-993-1 IFR]
Dried Prunes Produced in California; Changes in Producer District
Boundaries
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This rule realigns the boundaries of seven districts
established for independent producer representation on the Prune
Marketing Committee (Committee) under Marketing Order No. 993. The
Committee is responsible for local administration of the marketing
order which regulates the handling of dried prunes grown in California.
Due to shifts in the production areas, the current seven production
districts for independent producer representation on the Committee are
out of balance. The realignment provides for more equitable independent
producer representation on the Committee, consistent with current
industry demographics.
EFFECTIVE DATE: The interim final rule is effective December 30, 1999.
Comments which are received by January 28, 2000 will be considered
prior to any finalization of this interim final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent to the Docket Clerk, Fruit
and Vegetable Programs, AMS, USDA, room 2525-S, P.O. Box 96456,
Washington, DC 20090-6456; Fax: (202) 720-5698; or E-mail:
moab.docketclerk@usda.gov. All 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, 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, room 2525-S, P.O. Box
96456, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax: (202)
720-5698.
Small businesses may request information on complying with this
regulation by contacting Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Programs, AMS, USDA, P.O. Box 96456, room
2525-S, Washington, DC 20090-6456; telephone: (202) 720-2491, Fax:
(202) 720-5698, 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 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. 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 8c(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. A 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 in equity 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.
Paragraph (a) of Sec. 993.128 of the order's administrative rules
and regulations lists and describes the boundaries of each of the seven
independent grower districts. This rule realigns the boundaries of the
seven districts based on a unanimous recommendation of the Committee
made on November 30, 1999. To be consistent with current industry
demographics, this rule ensures that, insofar as practicable, each
district represents an equal number of independent producers and an
equal volume of prunes grown by such producers.
Section 993.24 of the order provides that the Committee shall
consist of 22 members, of which 14 shall represent producers, 7 shall
represent handlers, and 1 shall represent the public. The 14 producer
member positions are apportioned between cooperative producers and
independent producers. The apportionment, insofar as is practicable, is
the same as the percentage of the total prune tonnage handled by the
cooperative and independent handlers during the year preceding the year
in which nominations are made is to the total handled by all handlers.
In recent years
[[Page 72910]]
and currently, cooperative producers and independent producers each
have been eligible to nominate seven members.
Section 993.28(a) of the order provides that, for independent
producers, the Committee shall, with the approval of the Secretary of
Agriculture, divide the production area into districts giving, insofar
as practicable, equal representation throughout the production area by
numbers of independent producers and production of prune tonnage by
such producers. When revisions are required, the Committee must make
its recommendations to the Secretary of Agriculture to change the
district boundaries prior to January 31 of any year in which
nominations are to be made. Nominations are made in all even-numbered
years.
Since the last redistricting in 1994, the number of producers and
volume of production in most districts has changed, causing imbalances
among some districts. Prune orchards were planted to replace other
crops which expanded the acreage base to new geographic areas and
intensified the prune plantings in other districts. Thus, redistricting
is needed to bring the districts in line with order requirements and
current California prune industry demographics.
This rule establishes new district alignments as shown below:
------------------------------------------------------------------------
Counties in prior Counties in new district
District district alignment alignment
------------------------------------------------------------------------
1................. Colusa, Glenn............ Colusa, Glenn, Solano,
Yolo.
2................. Sutter (Central)......... Sutter (North).\1\
3................. Sutter (South), Yolo..... Sutter (South).\1\
4................. Alpine, Amador, Del Alpine, Amador, Del
Norte, El Dorado, Norte, El Dorado,
Humboldt, Lake, Lassen, Humboldt, Lake, Lassen,
Mendocino, Modoc, Napa, Mendocino, Modoc, Napa,
Nevada, Placer, Plumas, Nevada, Placer, Plumas,
Sacramento, Shasta, Sacramento, Shasta,
Sierra, Siskiyou, Sierra, Siskiyou,
Sonoma, Tehama and Sonoma, Tehama and
Trinity. Trinity.
5................. Butte, Sutter (North).... Butte.
6................. Yuba..................... Yuba.
7................. Fresno, Kings, Merced, Fresno, Kern, Kings,
San Benito, San Joaquin, Madera, Merced, San
Santa Clara, Solano, Benito, San Joaquin,
Tulare & all other Santa Clara, Tulare &
counties not included in all other counties not
Districts 1, 2, 3, 4, 5, included in Districts 1,
& 6. 2, 3, 4, 5, & 6.
------------------------------------------------------------------------
\1\ The north/south boundary of Sutter County will be changed to
Franklin Road.
The Committee calculated the percentage of total independent prune
growers and the percentage of total independent grower prune tonnage
for each proposed new district. The two percentages were averaged for
each district to determine a representation factor for each district.
The optimal representation factor for each district is 14.29 percent
(100 percent divided by 7 districts).
The representation factors for the seven old and the seven new
districts are shown below, based on the 1998-99 crop year (August 1-
July 31) data.
------------------------------------------------------------------------
Representation factor
---------------------------
District New
Old districts districts
(percent) (percent)
------------------------------------------------------------------------
1........................................... 9.75 15.62
2........................................... 11.94 16.87
3........................................... 12.5 16.37
4........................................... 10.33 10.33
5........................................... 23.97 12.35
6........................................... 14.43 14.43
7........................................... 17.02 13.97
------------------------------------------------------------------------
The redistricting is desirable because it allows each district to
approximate the optimal representation factor, while maintaining a
continuous geographic boundary for each district.
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 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 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 1,250 producers of dried prunes in the
production area and approximately 20 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.
Last year, 13 of the 20 handlers (65%) shipped under $5,000,000 of
dried prunes and could be considered small handlers. An estimated 1,141
producers (91 percent) of the 1,250 producers, could be considered
small growers with annual income less than $500,000. The majority of
handlers and producers of California dried prunes may be classified as
small entities.
This rule realigns the boundaries of the seven districts
established for independent producer representation on the Committee.
To be consistent with current industry demographics, this rule ensures
that, insofar as practicable, each district represents an equal number
of independent producers and an equal volume of prunes grown by such
producers.
Shifts in the prune production area have lead to greater
differences among the current districts than is desirable for equitable
independent producer representation. As shown below, District 1
represents less than 10% of California's independent prune producers/
production while District 5 represents nearly 24% as currently defined.
The representation factors for the seven old and the seven new
districts are shown below, based on the 1998-99 crop year (August 1-
July 31) data.
------------------------------------------------------------------------
Representation factor \1\
---------------------------
District New
Old districts districts
(percent) (percent)
------------------------------------------------------------------------
1........................................... 9.75 15.62
2........................................... 11.94 16.87
3........................................... 12.5 16.37
4........................................... 10.33 10.33
5........................................... 23.97 12.35
6........................................... 14.43 14.43
7........................................... 17.02 13.97
------------------------------------------------------------------------
\1\ The optimal representation factor for each district is 14.29 percent
(100 percent divided by 7 districts).
The economic vagaries of prune production are responsible for the
[[Page 72911]]
current imbalance among production districts. When the average grower
return per ton reached $1,121 in 1993, prune tree sales by nurseries
jumped to 1.5 million trees from a normal maintenance and replacement
level of about 300,000 trees. Prune orchards were planted to replace
other crops which expanded the acreage base to new geographic areas and
intensified the prune plantings in others. Non-bearing acreage
increased from 8,000 acres in 1993 to 26,000 acres in 1998.
More recently, grower prices have steadily declined from 1993's
peak of $1,121 per ton to $763 in 1998. This lead to the removal of
over 5,000 acres in 1998 alone. The overall result is a shift in prune
production which leaves imbalance in the composition of independent
producer districts.
The recommended realignment of district boundaries will yield more
equitable representation. Currently, the representation factors for the
districts range from 9.75% to 23.97%. The revised alignment narrows
this range to 10.33% to 16.87%. The California prune industry
considered other district alignments; however, none would not have
improved the balance among districts as much as this rule. Since the
weather-reduced 1998-99 prune crop (102,000 tons) was the smallest
since 1986, the Committee also did a representation factor analysis on
the more typical 1997-98 crop (205,000 tons) to ensure that the short
crop year did not produce atypical results. The results were consistent
as far as each district's percent of the total. Another alternative
considered was to do nothing, but this would not have done anything to
correct the representation factor imbalance, and this was not
acceptable.
The Committee unanimously recommended this change at its November
30, 1999, meeting. Since the last redistricting in 1994, the number of
producers and volume of production in most districts has changed
causing imbalances among some districts. Thus, redistricting is needed
to bring the districts in line with order requirements and current
California prune industry demographics.
This rule establishes new district alignments as shown below:
------------------------------------------------------------------------
Counties in prior Counties in new district
District district alignment alignment
------------------------------------------------------------------------
1................. Colusa, Glenn............ Colusa, Glenn, Solano,
Yolo.
2................. Sutter (Central)......... Sutter (North).\1\
3................. Sutter (South), Yolo..... Sutter (South).\1\
4................. Alpine, Amador, Del Alpine, Amador, Del
Norte, El Dorado, Norte, El Dorado,
Humboldt, Lake, Lassen, Humboldt, Lake, Lassen,
Mendocino, Modoc, Napa, Mendocino, Modoc, Napa,
Nevada, Placer, Plumas, Nevada, Placer, Plumas,
Sacramento, Shasta, Sacramento, Shasta,
Sierra, Siskiyou, Sierra, Siskiyou,
Sonoma, Tehama and Sonoma, Tehama and
Trinity. Trinity.
5................. Butte, Sutter (North).... Butte.
6................. Yuba..................... Yuba.
7................. Fresno, Kings, Merced, Fresno, Kern, Kings,
San Benito, San Joaquin, Madera, Merced, San
Santa Clara, Solano, Benito, San Joaquin,
Tulare & all other Santa Clara, Tulare &
counties not included in all other counties not
Districts 1, 2, 3, 4, 5, included in Districts 1,
& 6. 2, 3, 4, 5, & 6.
------------------------------------------------------------------------
\1\ The north/south boundary of Sutter County will be changed to
Franklin Road.
At the November 30, 1999, meeting, the Committee discussed the
financial impact of this change on handlers and producers. All
independent producers regardless of size will continue to have
representation and the overall representation will be more equitable as
previously explained. There will be no additional costs generated by
this rule. Since this rule affects only independent producers, there is
no expected impact on handlers.
This rule will realign the boundaries of seven independent grower
districts. This rule allows each district to approximate the optimal
representation factor, while maintaining a continuous geographic
boundary for each district.
This rule will impose no additional reporting or recordkeeping
requirements on either small or large entities. 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, the Department has not identified
any relevant Federal rules that duplicate, overlap, or conflict with
this rule.
Further, 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 November
30, 1999, meeting was a public meeting and all entities, both large and
small, were able to express views on this issue. The Committee itself
is composed of 22 members, of which 7 are handlers, 14 are producers
and 1 is a public representative.
Also, the Committee has a number of appointed subcommittees to
review certain issues and make recommendations to the Committee. The
Committee's Ad-Hoc Redistricting Subcommittee met on November 2, 1999,
and discussed this issue in detail. That meeting was also a public
meeting and both large and small entities were able to participate and
express their views. Finally, interested persons are invited to submit
information on the regulatory and informational impacts of this action
on small businesses.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at the
following website: 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 information presented,
including the Committee's unanimous recommendation and other available
information, it is found that this rule, as hereinafter set forth, will
tend to effectuate the declared policy of the Act.
This rule invites comments on realigning the independent producer
districts as currently prescribed in Sec. 993.128(a) of the
administrative rules and regulations. Any comments received will be
considered prior to finalization of this rule.
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 order requires that
[[Page 72912]]
independent producer nomination meetings be held for each of the seven
districts prior to March 8, 2000, for the term of office beginning June
1, 2000, and this action should be in place before those meetings. The
first meeting is scheduled on January 18, 2000; (2) the industry is
aware of this action, which was unanimously recommended by the
Committee at an open meeting on November 30, 1999; and (3) this rule
provides a 30-day comment period, which is considered appropriate in
view of the above, and any comments 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.
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.
2. In Sec. 993.128, paragraph (a) is revised to read as follows:
Sec. 993.128 Nominations for membership.
(a) Districts. In accordance with the provisions of Sec. 993.28,
the districts referred to therein are described as follows:
District No. 1. The counties of Colusa, Glenn, Solano and Yolo.
District No. 2. That portion of Sutter County north of a line
extending along Franklin Road easterly to the Yuba County line and
westerly to the Colusa County line.
District No. 3. That portion of Sutter County south of a line
extending along Franklin Road easterly to the Yuba County line and
westerly to the Colusa County line.
District No. 4. The counties of Alpine, Amador, Del Norte, El
Dorado, Humboldt, Lake, Lassen, Mendocino, Modoc, Napa, Nevada, Placer,
Plumas, Sacramento, Shasta, Sierra, Siskiyou, Sonoma, Tehama and
Trinity.
District No. 5. All of Butte County.
District No. 6. All of Yuba County.
District No. 7. The counties of Fresno, Kern, Kings, Madera Merced,
San Benito, San Joaquin, Santa Clara, Tulare and all other counties not
included in Districts 1, 2, 3, 4, 5 and 6.
* * * * *
Dated: December 21, 1999.
James R. Frazier,
Acting Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-33642 Filed 12-28-99; 8:45 am]
BILLING CODE 3410-02-D
