Dried Prunes Produced in California; Changes in Producer District Boundaries

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:

[email protected]. 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.G[email protected].

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:

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Counties in prior Counties in new district

District district alignment alignment

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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.

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\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.

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Representation factor

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

District New

Old districts districts

(percent) (percent)

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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

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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

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\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