[Federal Register Volume 73, Number 241 (Monday, December 15, 2008)]
[Rules and Regulations]
[Pages 75934-75936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29598]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Docket No. AMS-FV-08-0060; FV08-993-1 FIR]


Dried Prunes Produced in California; Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim final rule which decreased the 
assessment rate established for the Prune Marketing Committee 
(Committee) for the 2008-09 and subsequent crop years from $0.60 to 
$0.30 per ton of salable dried prunes. The Committee locally 
administers the marketing order which regulates the handling of dried 
prunes in California. Assessments upon dried prune handlers are used by 
the Committee to fund reasonable and necessary expenses of 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: Effective Date: January 14, 2009.

FOR FURTHER INFORMATION CONTACT: Maureen Pello, Assistant Regional 
Manager, or Kurt Kimmel, Regional Manager, California Marketing Field 
Office, Marketing Order Administration Branch, Fruit and Vegetable 
Programs, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906; or 
E-mail: [email protected] or [email protected].
    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: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement No. 110 and Marketing 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.''
    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, 2008, 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 continues in effect the action that decreased the 
assessment rate established for the Committee for the 2008-09 and 
subsequent crop years from $0.60 to $0.30 per ton of salable dried 
prunes handled.
    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 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 at a public meeting. Thus, all 
directly affected persons have an opportunity to participate and 
provide input.
    For the 2007-08 and subsequent crop years, the Committee 
recommended, and USDA approved, an assessment rate

[[Page 75935]]

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, 2008, and unanimously recommended an 
assessment rate of $0.30 per ton of salable dried prunes and 
expenditures totaling $51,587 for the 2008-09 crop year. In comparison, 
last year's approved expenses were $102,523. The assessment rate of 
$0.30 per ton of salable dried prunes is one-half of the rate 
previously in effect.
    The Committee recommended a lower assessment rate because the 2008-
09 crop is estimated at 120,000 tons, which is over 35,000 tons larger 
than the 2007-08 crop. Income generated from the lower assessment rate 
combined with excess assessment income carried into the new crop year 
should be adequate to cover the Committee's 2008-09 expenses.
    The Committee's budget of expenses of $51,587 includes a decrease 
in personnel expenses, and a slight decrease in operating expenses. 
Combined salaries and expenses are almost 50 percent lower than last 
year, or about $26,248. The Committee also included $12,446 for 
contingencies. Most of the Committee's expenses reflect its portion of 
the joint administrative costs of the Committee and the California 
Dried Plum Board (CDPB). Based on the Committee's reduced activities in 
recent years, it is funding only 5 percent of the shared expenses of 
the two programs. This level was reduced from last year's level of 10 
percent to reflect a more accurate figure. The Committee believes that 
extra assessment income carried in from the 2007 crop year, plus 
interest income and 2008 assessment income, is adequate to cover its 
estimated expenses of $51,587.
    The major expenditures recommended by the Committee for the 2008-09 
crop year include $26,248 for salaries and benefits, $12,893 for 
operating expenses, and $12,446 for contingencies. For the 2007-08 crop 
year, the Committee's budgeted expenses were $50,505 for salaries and 
benefits, $15,075 for operating expenses, and $36,943 for 
contingencies.
    The assessment rate recommended by the Committee was derived by 
considering the handler assessment revenue needed to meet anticipated 
expenses, the estimated salable tons of California dried prunes, excess 
funds carried forward into the 2008-09 crop year, and estimated income 
from other sources such as interest. Dried prune production for the 
year is estimated to be 120,000 salable tons, which should provide 
$36,000 in assessment income at $0.30 per ton of salable dried prunes. 
Income derived from handler assessments, plus excess funds from the 
2007-08 crop year should be adequate to cover budgeted expenses.
    The Committee is authorized under Sec.  993.81(c) of the order to 
use excess assessment funds from the 2007-08 crop year (currently 
estimated at $15,487) for up to 5 months beyond the end of the crop 
year to meet 2008-09 crop year expenses. At the end of the 5 months, 
the Committee either refunds or credits excess funds to handlers.
    The assessment rate 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 the 
Committee's recommendations and other available information to 
determine whether modification of the assessment rate is needed. 
Further rulemaking will be undertaken as necessary. The Committees' 
2008-09 budget and those for subsequent crop years will be reviewed 
and, as appropriate, approved by USDA.

Final 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 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.
    There are approximately 800 producers of dried prunes in the 
production area and approximately 22 handlers subject to regulation 
under the marketing order. The Small Business Administration (13 CFR 
121.201) defines small agricultural producers as those whose annual 
receipts are less than $750,000, and small agricultural service firms 
are defined as those whose annual receipts are less than $7,000,000.
    Committee data indicates that about 64 percent of the handlers ship 
under $6,500,000 worth of dried prunes. Dividing the average prune crop 
value for 2007-08 reported by the National Agricultural Statistics 
Service (NASS) of $111,650,000 by the number of producers (800) yields 
an average annual producer revenue estimate of about $139,562. Based on 
the foregoing, the majority of handlers and dried prune producers may 
be classified as small entities.
    This rule continues in effect the action that decreased the 
assessment rate established for the Committee and collected from 
handlers for the 2008-09 and subsequent crop years from $0.60 to $0.30 
per ton of salable dried prunes.
    The Committee met on June 26, 2008, and unanimously recommended 
estimated expenses for 2008-09 of $51,587 and a decreased assessment 
rate of $0.30 per ton of salable dried prunes. The Committee's 
recommended budget was based on a decrease in personnel expenses and a 
decrease in operating expenses. Combined salaries and expenses are 
almost 50 percent lower than last year, or about $26,248. The Committee 
also included $12,446 for contingencies. Most of the Committee's 
expenses reflect its portion of the joint administrative costs of the 
Committee and the CDPB. Based on the Committee's reduced activities in 
recent years, it is funding only 5 percent of the shared expenses of 
the two programs. This level was reduced from last year's level of 10 
percent to reflect a more accurate figure. The Committee believes that 
extra assessment income carried in from the 2007 crop year, plus 
interest income and 2008 assessment income, is adequate to cover its 
estimated expenses of $51,587.
    The assessment rate of $0.30 per ton of salable dried prunes is 
one-half of the rate previously in effect. The quantity of salable 
dried prunes for the 2008-09 crop year is currently estimated at 
120,000 tons, compared to 95,000 tons of salable dried prunes for the 
2007-08 crop year.
    The major expenditures recommended by the Committee for the 2008-09 
crop year include $26,248 for salaries and benefits, $12,893 for 
operating expenses, and $12,446 for contingencies. Budgeted expenses 
for these items in 2007-08 were $50,505 for salaries and benefits, 
$15,075 for

[[Page 75936]]

operating expenses, and $36,943 for contingencies.
    The 2008-09 assessment rate was derived by considering the handler 
assessment revenue needed to meet anticipated expenses, the estimated 
salable tons of California dried prunes, excess funds carried forward 
into the 2008-09 crop year, and estimated income from other sources 
such as interest. Therefore, the Committee recommended an assessment 
rate of $0.30 per ton of salable dried prunes.
    Prior to arriving at its budget of $51,587, the Committee 
considered information from various sources, including the Committee's 
Executive Subcommittee. The Executive Subcommittee reviewed the 
administrative expenses shared between the Committee and the CDPB in 
recent years. Accordingly, the Executive Subcommittee recommended 
reducing the share of expenses allocated to the Committee from 10 to 5 
percent. The Executive Subcommittee then recommended the $51,587 budget 
and $0.30 per ton assessment rate to the Committee. The Committee 
recommended the same budget and assessment rate to USDA.
    Section 993.81(c) of the order provides the Committee the authority 
to use excess assessment funds from the 2007-08 crop year (estimated at 
$15,487) for up to 5 months beyond the end of the crop year to meet 
2008-09 crop year expenses. At the end of the 5 months, the Committee 
either refunds or credits excess funds to handlers.
    To calculate the percentage of grower revenue represented by the 
assessment rate for 2007, the assessment rate of $0.60 per ton is 
divided by the estimated average grower price (according to the NASS). 
This results in estimated assessment revenue for the 2007-08 crop year 
as a percentage of grower revenue of .05 percent ($0.60 divided by 
$1,450 per ton). NASS data for 2008 is not yet available. However, 
applying the same calculations above using the average grower price for 
2005-07 would result in estimated assessment revenue as a percentage of 
total grower revenue of .02 percent for the 2008-09 crop year ($0.30 
divided by $1,437 per ton). Thus, the assessment revenue should be well 
below 1 percent of estimated grower revenue in 2008.
    This action continues in effect the action that decreased 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, 2008, meeting was a public 
meeting and all entities, both large and small, were able to express 
views on this issue.
    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.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.
    In addition, as noted in the initial regulatory flexibility 
analysis, USDA has not identified any relevant Federal rules that 
duplicate, overlap, or conflict with this rule.
    An interim final rule concerning this action was published in the 
Federal Register on August 26, 2008 (73 FR 50188). Copies of that rule 
were also mailed or sent via facsimile to all prune handlers. Finally, 
the interim final rule was made available through the Internet by USDA 
and the Office of the Federal Register. A 60-day comment period was 
provided for interested persons to respond to the interim final rule. 
The comment period ended on October 27, 2008, and no comments were 
received.
    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/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide. 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.

List of Subjects in 7 CFR Part 993

    Prunes, Marketing agreements, Plums, Prunes, Reporting and 
recordkeeping requirements.

PART 993--DRIED PRUNES PRODUCED IN CALIFORNIA

0
Accordingly, the interim final rule amending 7 CFR part 993 which was 
published at 73 FR 50188 on August 26, 2008, is adopted as a final rule 
without change.

    Dated: December 8, 2008.
James E. Link,
Administrator, Agricultural Marketing Service.
[FR Doc. E8-29598 Filed 12-12-08; 8:45 am]
BILLING CODE 3410-02-P