[Federal Register Volume 75, Number 163 (Tuesday, August 24, 2010)]
[Proposed Rules]
[Pages 51956-51958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20981]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 75, No. 163 / Tuesday, August 24, 2010 / 
Proposed Rules  

[[Page 51956]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Doc. No. AMS-FV-10-0057; FV10-993-1 PR]


Dried Prunes Produced in California; Increased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule would increase the assessment rate established for 
the Prune Marketing Committee (Committee) for the 2010-11 and 
subsequent crop years from $0.16 to $0.27 per ton of salable dried 
prunes handled. The Committee locally administers the marketing order 
which regulates the handling of dried prunes grown 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 would remain in effect 
indefinitely unless modified, suspended, or terminated.

DATES: Comments must be received by September 23, 2010.

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 document 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 submitted in response to this rule 
will be included in the record and will be made available to the 
public. Please be advised that the identity of the individuals or 
entities submitting the comments will be made public on the Internet at 
the address provided above.

FOR FURTHER INFORMATION CONTACT: Andrea Ricci, Marketing Specialist, or 
Kurt Kimmel, Regional Manager, California Marketing Field Office, 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 Antoinette Carter, 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 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 order is 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 proposed herein would be applicable to all 
assessable dried prunes beginning on August 1, 2010, 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 would increase the assessment rate established for the 
Committee for the 2010-11 and subsequent crop years from $0.16 to $0.27 
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 and handlers 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 in a public 
meeting. Thus, all directly affected persons have an opportunity to 
participate and provide input.
    For the 2009-10 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 24, 2010, and unanimously recommended 
2010-11 expenditures of $58,353 and an assessment rate of $0.27 per ton 
of salable dried prunes. In comparison, last year's budgeted 
expenditures, as amended in March of 2010, were $57,756. The assessment 
rate of $0.27 is $0.11 higher than the rate currently in effect.
    The Committee recommended the higher assessment rate based on a 
production estimate of 150,000 tons of salable dried prunes for this 
year, which is substantially less than the 165,488 tons produced last 
year. At the proposed assessment rate the assessment income for the 
2010-11 crop year would be $40,500. The Committee's proposed

[[Page 51957]]

budget of expenses of $58,353 includes a twenty percent increase in 
personnel expenses, and a nine percent decrease in operating expenses. 
Combined personnel and operational expenses are about eleven percent 
higher than last year, or about $42,511. The Committee also included 
$15,842 for contingencies, which is substantially less than the $19,526 
included for last year's budget. Most of the Committee's expenses 
reflect its portion of the joint administration 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 five percent of 
the shared expenses of the two programs. This funding level is similar 
to that of last year. The Committee believes that extra assessment 
income carried in from the 2009 crop year, plus interest income and 
2009 assessment income, would be adequate to cover its estimated 
expenses of $58,353.
    The major expenditures recommended by the Committee for the 2010-11 
year include $31,781 for salaries and benefits, $10,730 for operating 
expenses, and $15,842 for contingencies. Budgeted expenses for these 
items in 2009-10 were $26,450, $11,780, and $19,526, respectively.
    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 2010-11 crop year, and estimated 
interest income. As mentioned earlier, dried prune production for the 
year is estimated at 150,000 salable tons, which should provide $40,500 
in assessment income. Income derived from handler assessments, plus 
interest income, and excess funds from the 2009-10 crop year would 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 
2009-10 crop year (currently estimated at $17,847) for up to 5 months 
beyond the end of the crop year to meet the 2010-11 crop year expenses. 
At the end of the 5 months, the Committee either refunds or credits 
excess funds to handlers.
    The proposed assessment rate would 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 would be in effect for an indefinite 
period, the Committee would 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 would evaluate Committee 
recommendations and other available information to determine whether 
modification of the assessment rate is needed. Further rulemaking would 
be undertaken as necessary. The Committee's 2010-11 budget and those 
for subsequent crop year would be reviewed and, as appropriate, 
approved by USDA.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), 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 
California area and approximately 21 handlers subject to regulation 
under the marketing order. Small agricultural producers are defined by 
the Small Business Administration (13 CFR 121.201) as those having 
annual receipts 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 2009 reported by the National Agricultural Statistics Service 
(NASS) of $188,400,000 by the number of producers (900) yields an 
average annual producer revenue estimate of about $209,333. Based on 
the foregoing, the majority of handlers and dried prune producers may 
be classified as small entities.
    This rule would increase the assessment rate established for the 
Committee and collected from handlers for the 2010-11 and subsequent 
crop year from $0.16 to $0.27 per ton of salable dried prunes. The 
Committee unanimously recommended 2010-11 expenditures of $58,353 and 
an assessment rate of $0.27 per ton of salable dried prunes. The 
proposed assessment rate of $0.27 is $0.11 higher than the 2009-10 
rate. The quantity of assessable dried prunes for the 2010-11 year is 
estimated at 150,000 tons. Thus, the $0.27 rate should provide $40,500 
in assessment income. The Committee believes that extra assessment 
income carried in for the 2009 crop year, plus interest income and 2010 
assessment income, would be adequate to cover its estimated expenses of 
$58,353.
    The major expenditures recommended by the Committee for the 2010-11 
year include $31,781 for salaries and benefits, $10,730 for operating 
expenses, and $15,842 for contingencies. Budgeted expenses for these 
items in 2009-10 were $26,450, $11,780, and $19,526, respectively.
    The Committee recommended the higher assessment rate based on a 
production estimate of 150,000 tons of salable dried prunes for this 
year, which is substantially less than the 165,488 tons produced last 
year. At the proposed assessment rate the assessment income for the 
2010-11 crop year would be $40,500. The Committee's proposed budget of 
expenses of $58,353 includes a twenty percent increase in personnel 
expenses, and a nine percent decrease in operating expenses. Combined 
personnel and operational expenses are about eleven percent higher than 
last year, or about $42,511. The Committee also included $15,842 for 
contingencies, which is substantially less than the $19,526 included 
for last year's budget. Most of the Committee's expenses reflect its 
portion of the joint administration 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 five percent of the 
shared expenses of the two programs. This funding level is similar to 
that of last year. The Committee believes that extra assessment income 
from the 2009 crop year, plus interest income and 2010 assessment 
income, would be adequate to cover its estimated expenses of $58,353.
    The Committee reviewed and unanimously recommended 2010-11 
expenditures of $58,353, which includes an increase in personnel 
expenses and a decrease in operational expenses. Prior to arriving at 
its budget of $58,353, the Committee considered information from 
various sources, including the Committee's Executive Subcommittee to 
include the

[[Page 51958]]

administrative expenses shared between the Committee and the CDPB in 
recent years. The assessment rate of $0.27 per ton of salable dried 
prunes 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 2010-11 crop year, 
and estimated interest income. An alternative to this action would to 
be to continue with the $0.16 per ton assessment rate. However, an 
assessment rate of $0.27 per ton of salable dried prunes, along with 
excess funds from the 2009-10 crop year, is needed to provide enough 
income to fund the Committee's operations.
    A review of historical and preliminary information pertaining to 
the upcoming crop year indicates that the grower price for the 2008-09 
crop year was $1,500 per ton, that the grower price for the 2009-10 
crop year was $1,200 per ton, and that the grower price for the 2010-11 
crop year could range between $1,000 and $1,100 per ton of salable 
dried prunes. Based on an estimated 150,000 salable tons of dried 
prunes, assessment revenue as a percentage of producer prices during 
the 2010-2011 crop year is expected to range between .027 and .025 
percent.
    This action would increase the assessment obligation imposed on 
handlers. While assessments impose some additional costs on handlers, 
the costs are minimal and uniform on all handlers. Some of the 
additional costs may be passed on to producers. However, these costs 
would be offset by the benefits derived by the operation of the 
marketing order. 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 24, 2010, 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 proposed 
rule, including the regulatory and informational impacts of this action 
on small businesses.
    This proposed rule would impose no additional reporting or 
recordkeeping requirements on either small or large California 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/MarketingOrdersSmallBusinessGuide. Any questions 
about the compliance guide should be sent to Antoinette Carter at the 
previously-mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    A 30-day comment period is provided to allow interested persons to 
respond to this proposed rule. Thirty days is deemed appropriate 
because: (1) The 2010-11 crop begins on August 1, 2010, and the 
marketing order requires that the rate of assessment for each crop year 
apply to all assessable dried prunes handled during such crop year; (2) 
the Committee needs to have sufficient funds to pay its expenses which 
are incurred on a continuous basis; and (3) handlers are aware of this 
action which was unanimously recommended by the Committee at a public 
meeting and is similar to other assessment rate actions issued in past 
years.

List of Subjects in 7 CFR Part 993

    Marketing agreements, Plum, Prunes, Reporting and recordkeeping 
requirements.
    For the reasons set forth in the preamble, 7 CFR part 993 is 
proposed to be 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. Section 993.347 is revised to read as follows:


Sec.  993.347  Assessment rate.

    On and after August 1, 2010, an assessment rate of $0.27 per ton of 
salable dried prunes is established for California dried prunes.

    Dated: August 17, 2010.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. 2010-20981 Filed 8-23-10; 8:45 am]
BILLING CODE 3410-02-P