[Federal Register Volume 74, Number 173 (Wednesday, September 9, 2009)]
[Rules and Regulations]
[Pages 46310-46312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21658]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Doc. No. AMS-FV-09-0048; FV09-993-1 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) for the 2009-10 and subsequent 
crop years from $0.30 to $0.16 per ton of salable dried prunes. The 
Committee locally administers the marketing order that 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 begins August 1 and ends July 
31. The assessment rate will remain in effect indefinitely unless 
modified, suspended, or terminated.

DATES: Effective September 10, 2009. Comments received by November 9, 
2009, 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 Internet: http://www.regulations.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.regulations.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, or can be viewed at the Web site 
referenced above.

FOR FURTHER INFORMATION CONTACT: Debbie Wray, Marketing Specialist, or 
Kurt J. 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.''
    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, 2009, and continue until amended, 
suspended, or terminated.
    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 2009-10 and subsequent crop years

[[Page 46311]]

from $0.30 to $0.16 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 2008-09 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 25, 2009, and unanimously recommended an 
assessment rate of $0.16 per ton of salable dried prunes and 
expenditures totaling $54,138 for the 2009-10 crop year. In comparison, 
last year's approved expenses were $65,600. The assessment rate of 
$0.16 per ton of salable dried prunes is $0.14 lower than the rate 
currently in effect.
    The Committee recommended a lower assessment rate because the 2009-
10 crop is estimated at 160,000 tons, which is over 34,000 tons larger 
than the 2008-09 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 2009-10 expenses.
    The Committee's budget of expenses of $54,138 includes a slight 
increase in personnel expenses and decreases in operating expenses and 
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). The Committee believes that extra assessment 
income carried in from the 2008 crop year, plus interest income and 
2009 assessment income, is adequate to cover its estimated expenses of 
$54,138.
    The major expenditures recommended by the Committee for the 2009-10 
crop year include $26,450 for salaries and benefits, $11,780 for 
operating expenses, and $15,908 for contingencies. For the 2008-09 crop 
year, the Committee's budgeted expenses were $26,248 for salaries and 
benefits, $12,893 for operating expenses, and $26,459 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 2009-10 crop year, and estimated 
interest income. Dried prune production for the year is estimated to be 
160,000 salable tons, which should provide $25,600 in assessment income 
at $0.16 per ton of salable dried prunes. Income derived from handler 
assessments, plus excess funds from the 2008-09 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 2008-09 crop year (currently 
estimated at $28,533) for up to 5 months beyond the end of the crop 
year to meet 2009-10 crop year expenses, which are estimated to be 
$54,138. At the end of the 5 months, the Committee either refunds or 
credits excess funds to handlers.
    The assessment rate established in this rule is effective 
indefinitely unless modified, suspended, or terminated by USDA upon 
recommendation and information submitted by the Committee or other 
available information.
    Although this assessment rate will be in effect 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 Committee's 
2009-10 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.
    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 900 producers of dried prunes in the 
production area and approximately 20 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 $7,000,000 worth of dried prunes. Dividing the average prune crop 
value for 2008-09 reported by the National Agricultural Statistics 
Service (NASS) of $196,080,000 by the number of producers (900) yields 
an average annual producer revenue estimate of about $217,867. Based on 
the foregoing, the majority of handlers and dried prune producers may 
be classified as small entities.
    This rule decreases the assessment rate established for the 
Committee and collected from handlers for the 2009-10 and subsequent 
crop years from $0.30 to $0.16 per ton of salable dried prunes.
    The Committee met on June 25, 2009, and unanimously recommended 
estimated expenses for 2009-10 of $54,138 and a decreased assessment 
rate of $0.16 per ton of salable dried prunes. The Committee's budget 
of expenses of $54,138 includes a slight increase in personnel expenses 
and decreases in operating expenses and for contingencies. Most of the 
Committee's expenses reflect its portion of the joint administrative 
costs of the Committee and the CDPB. The Committee believes that extra 
assessment income carried in from the 2008 crop year, plus interest 
income and 2009 assessment income, is adequate to cover its estimated 
expenses of $54,138.
    The assessment rate of $0.16 per ton of salable dried prunes is 
$0.14 per ton of salable dried prunes lower than the rate currently in 
effect. The quantity of salable dried prunes for the 2009-10 crop year 
is currently estimated at 160,000 tons, compared to 125,373 tons of 
salable dried prunes for the 2008-09 crop year.
    The major expenditures recommended by the Committee for the

[[Page 46312]]

2009-10 crop year include $26,450 for salaries and benefits, $11,780 
for operating expenses, and $15,908 for contingencies. Budgeted 
expenses for these items in 2008-09 were $26,248 for salaries and 
benefits, $12,893 for operating expenses, and $26,459 for 
contingencies.
    The 2009-10 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 2009-10 crop year, and estimated interest income. Therefore, 
the Committee recommended an assessment rate of $0.16 per ton of 
salable dried prunes.
    Prior to arriving at its budget of $54,138, 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. The Executive Subcommittee then recommended the $54,138 
budget and $0.16 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 2008-09 crop year (estimated at 
$28,533) for up to 5 months beyond the end of the crop year to meet 
2009-10 crop year expenses, which are estimated to be $54,138. 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 2008, the assessment rate of $0.30 per ton is 
divided by the estimated average grower price (according to the NASS). 
This results in estimated assessment revenue for the 2008-09 crop year 
as a percentage of grower revenue of .02 percent ($0.30 divided by 
$1,520 per ton). NASS data for 2009 is not yet available. However, 
applying the same calculations above using the average grower price for 
2006-08 would result in estimated assessment revenue as a percentage of 
total grower revenue of .01 percent for the 2009-10 crop year ($0.16 
divided by $1,453 per ton). Thus, the assessment revenue should be well 
below 1 percent of estimated grower revenue in 2009.
    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 25, 2009, 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 comments on this interim final 
rule, including 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.
    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.
    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/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.
    Pursuant to 5 U.S.C. 553, it also found and determined 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 
2009-10 crop year begins on August 1, 2009, and the marketing order 
requires that the rate of assessment for each year apply to all 
assessable prunes handled during the year; (2) this action decreases 
the assessment rate for assessable prunes beginning with the 2009-10 
crop year; (3) handlers are aware of this action which was unanimously 
recommended at a public meeting and is similar to actions recommended 
by the Committee in past years, and (4) this interim final rule 
provides for 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:

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, 2009, an assessment rate of $0.16 per ton of 
salable dried prunes is established for California dried prunes.

    Dated: September 2, 2009.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. E9-21658 Filed 9-8-09; 8:45 am]
BILLING CODE 3410-02-P