[Federal Register Volume 64, Number 85 (Tuesday, May 4, 1999)]
[Rules and Regulations]
[Pages 23759-23763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11078]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 993
[Docket No. FV99-993-2 FR]
Dried Prunes Produced in California; Undersized Regulation for
the 1999-2000 Crop Year
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule changes the undersized regulation for dried
prunes received by handlers from producers and dehydrators under
Marketing Order No. 993 for the 1999-2000 crop year. The marketing
order regulates the handling of dried prunes produced in California and
is administered locally by the Prune Marketing Committee (Committee).
This rule removes the smallest, least desirable of the marketable size
dried prunes produced in California from human consumption outlets, and
allows handlers to dispose of undersized prunes in such outlets as
livestock feed. The Committee estimated that this rule will reduce the
excess of dried prunes expected at the end of the 1998-99 crop year by
approximately 6,700 tons, leaving sufficient prunes to fulfill foreign
and domestic trade demand.
EFFECTIVE DATE: August 1, 1999.
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 compliance with
this regulation, or obtain a guide on complying with fruit, vegetable,
and specialty crop marketing agreements and orders by contacting Jay
Guerber, 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, or E-mail:
Jay.Guerber@usda.gov. You may view the marketing agreement and order
small business compliance guide at the following web site: http://
www.ams.usda.gov/fv/moab.html.
[[Page 23760]]
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 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. 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 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 changes the undersized regulation in Sec. 993.49(c) of
the prune marketing order for the 1999-2000 crop year for volume
control purposes. The regulation removes prunes passing through
specified screen openings. For French prunes, the screen opening will
be increased from \23/32\ to \24/32\ of an inch in diameter, and for
non-French prunes, the opening will be increased from \28/32\ to \30/
32\ of an inch in diameter. This rule removes the smallest, least
desirable of the marketable size dried prunes produced in California
from human consumption outlets. The rule will be in effect from August
1, 1999, through July 31, 2000, and was unanimously recommended by the
Committee at a December 1, 1998, meeting.
Section 993.19b of the prune marketing order defines undersized
prunes as prunes which pass freely through a round opening of a
specified diameter. Section 993.49(c) of the prune marketing order
establishes an undersized regulation of \23/32\ of an inch for French
prunes and \28/32\ of an inch for non-French prunes. These diameter
openings have been in effect for quality control purposes. Section
993.49(c) also provides that the Secretary, upon a recommendation of
the Committee, may establish larger openings for undersized dried
prunes whenever it is determined that supply conditions for a crop year
warrant such regulation. Section 993.50(g) states in part: ``No handler
shall ship or otherwise dispose of, for human consumption, the quantity
of prunes determined by the inspection service pursuant to
Sec. 993.49(c) to be undersized prunes * * *'' Pursuant to Sec. 993.52,
minimum standards, pack specifications, including the openings
prescribed in Sec. 993.49(c), may be modified by the Secretary, on the
basis of a recommendation of the Committee or other information.
Pursuant to the authority in Sec. 993.52 of the order, Sec. 993.400
modifies the undersized openings prescribed in Sec. 993.49(c) to permit
undersized regulations using openings of \23/32\ or \24/32\ of an inch
for French prunes, and \28/32\ or \30/32\ of an inch for non-French
prunes.
During the 1974-75 and 1977-78 crop years, the undersized prune
regulation was established by the Department at \23/32\ of an inch in
diameter for French prunes and \28/32\ of an inch in diameter for non-
French prunes. These diameter openings were established in
Secs. 993.401 and 993.404, respectively (39 FR 32733, September 11,
1974; and 42 FR 49802, September 28, 1977). In addition, the Committee
recommended and the Department established volume regulation
percentages during the 1974-75 crop year with an undersized regulation
at the aforementioned \23/32\ and \28/32\ inch diameter screen sizes.
During the 1975-76 and 1976-77 crop years, the undersized prune
regulation was established at \24/32\ of an inch for French prunes, and
\30/32\ of an inch for non-French prunes. These diameter openings were
established in Secs. 993.402 and 993.403 respectively (40 FR 42530,
September 15, 1975 and 41 FR 37306, September 3, 1976). The prune
industry had an excess supply of prunes, particularly small sized
prunes. Rather than recommending volume regulation percentages for the
1975-76, 1976-77 and 1977-78 crop years, the Committee recommended the
establishment of an undersized prune regulation applicable to all
prunes received by handlers from producers and dehydrators during each
of those crop years.
The objective of the undersized regulations during each of those
crop years was to preclude the use of small prunes in manufactured
prune products, such as juice and concentrate. Handlers could not
market undersized prunes for human consumption, but could dispose of
them in nonhuman outlets such as livestock feed.
With these experiences as a basis, the marketing order was amended
on August 1, 1982, establishing the continuing quality-related
regulation for undersized French and non-French prunes under
Sec. 993.49(c). That regulation has removed from the marketable supply
those prunes which are not desirable for use in prune products.
As in the 1970's, the prune industry is currently experiencing an
excess supply of prunes, particularly in the smaller sizes. During the
1998-99 crop year, the undersized prune regulation was established at
\24/32\ of an inch for French prunes, and \30/32\ of an inch for non-
French prunes. These diameter openings were established in Sec. 993.405
(63 FR 20058, April 23, 1998). At its meeting on December 1, 1998, the
Committee recognized that the 1998-99 prune crop is about 50% of the
normal size; however, with the large inventories and anticipated large
1999-2000 prune crop, the Committee unanimously recommended continuing
with volume controls for the 1999-2000 crop year by proposing an
undersized prune regulation at \24/32\ of an inch in diameter for
French prunes and \30/32\ of an inch in diameter for non-French prunes.
This regulation will be in effect from August 1, 1999, through July 31,
2000.
The Committee estimated that there will be an excess of about
18,700 natural condition tons of dried prunes as of July 31, 1999. This
rule will continue to remove primarily small sized prunes from human
consumption channels, consistent with the undersized regulation that
was implemented for the 1998-99 crop year. It is estimated that
approximately 6,700 natural condition tons of small prunes will be
removed from human consumption channels during the 1999-2000 crop year.
This will leave sufficient prunes to fill domestic and foreign trade
demand during the 1999-2000 crop year, and provide an adequate carryout
on July 31, 2000, for early season shipments until the new crop is
available for shipment. According to the Committee, the desired
inventory level to keep trade distribution channels full while awaiting
the new crop is about 38,000 natural condition tons.
In its deliberations, the Committee reviewed statistics reflecting:
(1) A
[[Page 23761]]
worldwide prune demand which has been relatively stable at about
260,000 tons; (2) a worldwide oversupply that is expected to continue
growing into the next century (estimated at 350,845 natural condition
tons by the year 2003); (3) a continuing oversupply situation in
California caused by increased production from increased plantings and
higher yields per acre (between the 1990-91 and 1997-98 crop years, the
yield ranged from 1.5 to 2.8 versus a 10 year average of 2.2 tons per
acre); and (4) California's continued excess supply situation. The
production of these small sizes ranged from 2,575 to 8,778 natural
condition tons during the 1990-91 through the 1997-98 crop years. The
Committee concluded that it had to continue utilizing supply management
techniques to accelerate the return to a balanced supply/demand
situation in the interest of the California dried prune industry. The
changes to the undersized regulation for the 1999-2000 crop year are
the result of these deliberations, and the Committee's desire to bring
supplies more in line with market needs.
The current oversupply situation facing the California prune
industry has been caused by four consecutive large crops (1994-95
through 1997-98) of over 180,000 natural condition tons. Further
burdening this oversupply situation will be large California prune
crops over the next few years caused by the new prune plantings in
recent years and higher yields per acre. During the 1990-91 crop year,
the non-bearing acreage totaled 5,900 acres, but by 1995-96, the non-
bearing acreage had quadrupled to more than 23,000 acres. Yields have
ranged from 2.3 to 2.8 tons per acre over a three-year period from the
1995-96 through the 1997-98 crop years, compared to a 10-year average
of 2.2 tons to the acre. The 1998-99 crop prune is exceptionally light,
about 50% of normal size (103,000 tons), due to the unusually cool and
wet weather conditions caused by the weather phenomenon known as El
Nino. Even though this year's small prune crop and the 1998-99
undersized prune regulation will help reduce the existing oversupply,
the prune supply has been outstripping demand over the past nine years.
Another large crop of about 200,000 natural condition tons is expected
for the 1999-2000 crop year, partly because of an anticipated increase
in bearing acreage, and this will add to the continuing oversupply.
Because of the oversupply situation during the 1997-98 crop year,
producer prices for the \24/32\ of an inch in diameter French prunes
declined to $40-50 per ton. Consequently, producers lost about $260-270
per ton on every ton they delivered to handlers during 1997-98. The
lower pricing of the smaller prunes continued in 1998-99, and is
expected to continue as an incentive in future crop years to convince
producers to produce the larger sizes needed to help the industry
better meet the increasing market demand for larger size prunes used
for pitted prunes.
The 1998-99 undersized prune rule of \24/32\ of an inch for French
prunes and \30/32\ of an inch for non-French prunes has expedited the
reduction of small prune inventories, but more needs to be done to
bring supplies into balance with market demand. The excess inventory on
July 31, 1998, was 88,840 natural condition tons, and only about 2,400
natural condition tons of dried prunes are expected to be removed from
the 1998-99 marketable supply by the current undersized regulation. The
Committee believes that the same undersized regulation also should be
implemented during the 1999-2000 crop year to continue reducing the
inventories of small prunes, to help reduce the expected large 1999-
2000 prune crop, and more quickly bring supplies in line with demand.
Attainment of this goal will benefit all of the producers and handlers
of California prunes.
The recommended decision of June 1, 1981 (46 FR 29271) regarding
undersized prunes states that the undersized prune regulation at the
\23/32\ and \28/32\ inch diameter size openings will be continuous for
the purposes of quality control even in above parity situations. It
further states that any change (i.e., increase) in the size of those
openings will not be for the purpose of establishing a new quality-
related minimum. Larger openings will only be applicable when supply
conditions warrant the regulation of a larger quantity of prunes as
undersized prunes. Thus, any regulation prescribing openings larger
than those in Sec. 993.49(c) should not be implemented when the grower
average price is expected to be above parity. The season average price
received by prune growers averaged about 54 percent of parity during
the 1992 through 1997 seasons, and is in a downward trend. As discussed
later, the average grower price for prunes during the 1999-2000 crop
year is not expected to be above parity, and implementation of this
more restrictive undersized regulation will be appropriate in reference
to parity.
Section 8e of the Act requires that when certain domestically
produced commodities, including prunes, are regulated under a Federal
marketing order, imports of that commodity must meet the same or
comparable grade, size, quality, or maturity requirements for the
domestically produced commodity. This action does not impact the dried
prune import regulation because the action to be implemented is for
volume control, not quality control. The smaller diameter openings of
\23/32\ of an inch in diameter for French prunes and \28/32\ of an inch
in diameter for non-French prunes were implemented to improve product
quality. The recommended increases to \24/32\ of an inch in diameter
for French prunes and \30/32\ of an inch in diameter for non-French
prunes are for purposes of volume control. Therefore, the increased
diameters will not be applied to imported prunes.
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 1,250 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.
An updated industry profile shows that 8 out of 20 handlers (40%)
shipped over $5,000,000 worth of dried prunes and could be considered
large handlers by the Small Business Administration. Twelve of the 20
handlers (60%) shipped under $5,000,000 worth of prunes and could be
considered small handlers. An estimated 90 producers, or about 7% of
the 1,250 total producers, could be considered large growers with
annual income over $500,000. The majority of handlers and producers of
California dried prunes may be classified as small entities.
This rule will establish an undersized prune regulation of \24/32\
of an inch in diameter for French prunes and \30/32\ of an inch in
diameter for non-French prunes for the 1999-2000 crop year for
[[Page 23762]]
volume control purposes. This change in regulation will result in more
of the smaller sized prunes being classified as undersized prunes, and
is expected to benefit producers, handlers, and consumers. Since prune
handlers already use \24/32\ and \30/32\ grader screens, small and
large producers and handlers will not incur extra costs to purchase new
screen sizes. Moreover, because the quality related undersized
regulation has been in place continuously since the early 1980's, the
only additional cost resulting from the increased openings will be the
disposal of additional undersized prune tonnage (about 6,700 natural
condition tons) to nonhuman consumption outlets as required by the
order. With the less restrictive openings, only 5,635 natural condition
tons or 3.3 percent of the marketable production has been removed on
average over the past eight crop years since 1990-91. The more
restrictive openings currently in place for 1998-99 are expected to
remove only 2,400 tons of dried prunes from the excess marketable
supply. The Committee estimated that there will be an excess of about
18,700 natural condition tons of dried prunes on July 31, 1999.
Implementation of the more restrictive openings in 1999-2000 is
expected to reduce the surplus by about 6,700 tons.
Because the benefits and costs of the action will be directly
proportional to the quantity of \24/32\ screen French prunes and \30/
32\ screen non-French prunes produced or handled, small businesses
should not be disproportionately affected by the action. While
variation in sugar content, prune density and dry-away ratio vary from
county to county, they also vary from orchard to orchard and season to
season. In the major producing areas of the Sacramento and San Joaquin
Valleys, which account for over 99 percent of the State's production,
the prunes produced are homogeneous enough that this action will not be
viewed as inequitable by large and small producers in any area of the
State.
The quantity of small prunes in a lot is not dependent on whether a
producer or handler is small or large, but is primarily dependant on
cultural practices, soil composition, and water costs. The cost to
minimize the quantity of small prunes is similar for small and large
entities. The anticipated benefits of this rule are not expected to be
disproportionately greater or lesser for small handlers or producers
than for larger entities. The only additional costs on producers and
handlers expected from the increased openings will be the disposal of
additional tonnage (now estimated to be about 6,700 tons) to nonhuman
consumption outlets. These costs are expected to be minimal, and will
be offset by the benefits derived by the elimination of some of the
excess supply of small sized prunes.
At the December 1, 1998, meeting, the Committee discussed the
financial impact of this change on handlers and producers. Handlers and
producers receive higher returns for the larger size prunes. Prunes
eliminated through the implementation of this rule have very little
value. As mentioned earlier, the current situation for these small
sizes is quite bleak with producers losing about $260-270 on every ton
they deliver to handlers. The 1998-99 grower field price for \24/32\
screen French prunes is ranging between $40 and $50 per ton, just like
last crop year. The cost of drying a ton of such prunes is $260 per ton
at a 4 to 1 dry-away ratio, transportation is at least $20 per ton, and
the producer assessment paid to the California Prune Board (a body
which administers the State marketing order for promotion and research)
is $30 per ton. The total cost is about $310 per ton which equates to a
loss of about $260-270 per ton for every ton of \24/32\ screen French
prunes produced and delivered to handlers.
Utilizing data provided by the Committee, the Department has
evaluated the impact of the undersized regulation change upon producers
and handlers in the industry. The analysis shows that a reduction in
the marketable production and handler inventories will result in higher
season-average prices which will benefit all producers. The removal of
the smallest, least desirable of the marketable dried prunes produced
in California from human consumption outlets will eliminate an
estimated 6,700 tons of small-sized dried prunes during the 1999-2000
crop year from the marketplace. This will help lessen the negative
marketing and pricing effects resulting from the excess supply
situation facing the industry. California prune handlers reported that
they held 126,485 tons of natural condition prunes on July 31, 1998,
the end of the 1997-98 crop year. This was the largest year-end
inventory reported since the Committee began collecting such statistics
in 1949. The desired industry inventory level is based on an average
12-week supply to keep trade distribution channels full while awaiting
new crop. Currently, it is about 38,000 natural condition tons. This
leaves an inventory surplus of over 88,000 tons which will likely take
the industry several years to market. The small 1998-99 prune crop and
undersized regulation will help reduce the surplus, but the anticipated
large 1999-2000 prune crop is expected to bring supplies further out-
of-balance with demand.
Further burdening this oversupply situation will be large
California prune crops over the next few years caused by the new prune
plantings of recent years and higher yields per acre. During the 1990-
91 crop year, the non-bearing acreage totaled 5,900 acres, but by 1995-
96, the non-bearing acreage had quadrupled to more than 23,000 acres.
Yields have ranged from 2.3 to 2.8 tons per acre over a three-year
period from the 1995-96 through the 1997-98 crop year, compared to a
10-year average of 2.2 tons to the acre. The 1998-99 prune crop is
expected to be about 50% of normal size (103,000 natural condition
tons). Even though this year's small prune crop and the 1998-99
undersized prune regulation will help reduce the existing oversupply,
the prune supply has been outstripping demand over the past nine years.
In addition, the 1999-2000 prune crop is expected to be about 200,000
tons, further increasing the industry's oversupply problems.
As the marketable dried prune production and surplus prune
inventories are reduced through this action, the trade should begin
taking a position early in the season for its dried prune needs, which
will help firm up market prices and eventually reflect a higher overall
price to the producers. In addition, as producers implement improved
cultural and thinning practices, the overall size of the prunes will
get larger. As a result, producer returns will increase because
producers will be producing less tonnage of small sized fruit at a
$260-270 per ton loss. Instead producers will be receiving the higher
prices paid for the larger sizes.
For the 1993-94 through the 1997-98 crop years, the season average
price received by the producers ranged from a high of $1,120 per ton to
a low of $827 per ton during the 1997-98 crop year. The season average
price received by producers averaged about 54 percent of parity. Based
on available data and estimates of prices, production, and other
economic factors, the season average producer price for the 1998-99
season is expected to be about $790 per ton, or about 41 percent of
parity.
The Committee discussed alternatives to this change, including
making no changes to the undersized prune regulation and allowing
market dynamics to foster prune inventory adjustments through lower
prices on the smaller prunes. While reduced grower prices for small
prunes are expected to contribute toward a slow reduction in dried
prune inventories, the Committee
[[Page 23763]]
believed that the undersized rule change was needed to expedite that
reduction. With the excess tonnage of dried prunes, the Committee also
considered establishing a reserve pool and diversion program to reduce
the oversupply situation. These initiatives were not supported because
they would not specifically eliminate the smallest, least valuable
prunes which are in oversupply. Instead, the reserve pool and diversion
program would eliminate larger size prunes from human consumption
outlets. Reserve pools for prunes have historically been implemented on
dried prunes regardless of the size of the prunes. While the marketing
order also allows handlers to remove the larger prunes from the pool by
replacing them with small prunes and the value difference in cash, this
exchange would be cumbersome and expensive to administer compared to
this rule.
Section 8e of the Act requires that when certain domestically
produced commodities, including prunes, are regulated under a Federal
marketing order, imports of that commodity must meet the same or
comparable grade, size, quality, or maturity requirements for the
domestically produced commodity. This action does not impact the dried
prune import regulation because the action to be implemented is for
volume control, not quality control, purposes. The smaller diameter
openings of \23/32\ of an inch for French prunes and \28/32\ of an inch
for non-French prunes were implemented for the purpose of improving
product quality. The increases to \24/32\ of an inch in diameter for
French prunes and \30/32\ of an inch in diameter for non-French prunes
are for purposes of volume control.
Therefore, the increased diameters will not be applied to imported
prunes.
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. In addition, as
noted in the initial regulatory flexibility analysis, the Department
has not identified any relevant Federal rules that duplicate, overlap,
or conflict with this rule.
In addition, the Committee's meeting was widely publicized
throughout the 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 December 1, 1998, 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
twenty-two members, of which seven are handlers, fourteen are
producers, and one is a public member. Moreover, the Committee and its
Supply Management Subcommittee have been reviewing this supply
management problem for the second year, and this rule reflects their
deliberations completely.
A proposed rule concerning this action was published in the Federal
Register on January 25, 1999 (64 FR 3660). Copies of this rule were
mailed or sent via facsimile to all Committee members, alternates and
dried prune handlers. Finally, the rule was made available through the
Internet by the U.S. Government Printing Office. The rule provided a
comment period which ended April 15, 1999. No comments were received.
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.
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. A new Sec. 993.406 is added to read as follows:
Note: This section will not appear in the Code of Federal
Regulations.
Sec. 993.406 Undersized prune regulation for the 1999-2000 crop year.
Pursuant to Secs. 993.49(c) and 993.52, an undersized prune
regulation for the 1999-2000 crop year is hereby established.
Undersized prunes are prunes which pass through openings as follows:
For French prunes, \24/32\ of an inch in diameter; for non-French
prunes, \30/32\ of an inch in diameter.
Dated: April 27, 1999.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-11078 Filed 5-3-99; 8:45 am]
BILLING CODE 3410-02-P
