[Federal Register Volume 87, Number 214 (Monday, November 7, 2022)]
[Proposed Rules]
[Pages 66958-66960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24172]


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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. 87, No. 214 / Monday, November 7, 2022 / 
Proposed Rules  

[[Page 66958]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Doc. No. AMS-SC-22-0053; SC22-993-1 PR]


Dried Prunes Produced in California; Increased Assessment Rate

AGENCY: Agricultural Marketing Service, Department of Agriculture 
(USDA).

ACTION: Proposed rule.

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SUMMARY: This proposed rule would implement a recommendation from the 
Prune Marketing Committee (Committee) to increase the assessment rate 
established for the 2022-23 crop year and subsequent fiscal years. The 
proposed assessment rate would remain in effect indefinitely unless 
modified, suspended, or terminated.

DATES: Comments must be received by December 7, 2022.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule. Comments must be submitted to the Docket 
Clerk electronically by Email: [email protected] or via 
the internet at: https://www.regulations.gov. Comments should reference 
the document number and the date and page number of this issue of the 
Federal Register. Comments submitted in response to this proposed rule 
will be included in the record and will be made available to the public 
and can be viewed at: https://www.regulations.gov. 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: Jeffery Rymer, Marketing Specialist, 
or Gary Olson, Regional Director, Western Region Branch, Market 
Development Division, Specialty Crops Program, AMS, USDA; Telephone: 
(559) 487-5901, or Email: [email protected] or 
[email protected].
    Small businesses may request information on complying with this 
regulation by contacting Richard Lower, Market Development Division, 
Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 
0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, or Email: 
[email protected].

SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, 
proposes to amend regulations issued to carry out a marketing order as 
defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing 
Order No. 993, as amended (7 CFR part 993), regulating the handling of 
dried prunes grown in California. Part 993 (referred to as 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 Committee locally administers the Order and is comprised 
of producers and handlers of dried prunes operating within the area of 
production, and a public member.
    The Agricultural Marketing Service (AMS) is issuing this proposed 
rule in conformance with Executive Orders 12866 and 13563. Executive 
Orders 12866 and 13563 direct agencies to assess all costs and benefits 
of available regulatory alternatives and, if regulation is necessary, 
to select regulatory approaches that maximize net benefits (including 
potential economic, environmental, public health and safety effects, 
distributive impacts and equity).
    Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, reducing costs, harmonizing rules, and promoting 
flexibility. This action falls within a category of regulatory actions 
that the Office of Management and Budget (OMB) exempted from Executive 
Order 12866 review.
    This proposed rule has been reviewed under Executive Order 13175--
Consultation and Coordination with Indian Tribal Governments, which 
requires agencies to consider whether their rulemaking actions would 
have tribal implications. AMS has determined that this proposed rule is 
unlikely to have substantial direct effects on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes.
    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. Under the Order now in effect, California prune 
handlers are subject to assessments. Funds to administer the Order are 
derived from such assessments. It is intended that the assessment rate 
would be applicable to all assessable dried prunes for the 2022-23 crop 
year, 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 Department of 
Agriculture (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 proposed rule would increase the assessment rate from $0.28 
per ton of salable dried prunes, the rate that was established for the 
2020-21 and subsequent crop years, to $0.33 per ton of salable dried 
prunes for the 2022-23 and subsequent crop years.
    The Order authorizes the Committee, with the approval of AMS, to 
formulate an annual budget of expenses and collect assessments from 
handlers to administer the program. The members of the Committee are 
familiar with the Committee's needs and with the costs of goods and 
services in their local area and are able to formulate an appropriate 
budget and assessment rate. The assessment rate is formulated and 
discussed in a public meeting, and all directly affected persons have 
an opportunity to participate and provide input.
    For the 2021-22 and subsequent crop years, the Committee 
recommended, and AMS approved, an assessment rate that would continue 
in effect from fiscal

[[Page 66959]]

year to fiscal year unless modified, suspended, or terminated by AMS 
upon recommendation and information submitted by the Committee or other 
information available to AMS.
    The Committee met on June 28, 2022, and unanimously recommended 
2022-23 crop year expenditures of $26,700 and an assessment rate of 
$0.33 per ton of salable dried prunes handled for the 2022-23 and 
subsequent crop years. In comparison, last year's budgeted expenditures 
were $26,212. The proposed assessment rate of $0.33 per ton is $0.05 
higher than the rate currently in effect. The Committee recommended 
increasing the assessment rate due to a lower than normal crop size 
produced in the 2021-22 crop year and a projected lower crop size again 
for the 2022-23 crop year. The Committee projects handler receipts of 
75,000 tons of assessable dried prunes from the 2022-23 crop year, 
which is the same level that was projected for the 2021-22 crop year.
    The major expenditures recommended by the Committee for the 2022-23 
crop year include $14,935 for personnel costs, $11,125 for operating 
expenses, and $640 for contingencies. Budgeted expenditures for the 
2021-22 crop year were $14,025, $12,000, and $187, respectively.
    Dried prunes harvested in 2022 will be marketed over the course of 
the 2022-23 crop year, which begins on August 1, 2022. The crop year is 
a 12-month period that begins on August 1 of each year and ends on July 
31 of the following year. The expected 75,000 tons of assessable dried 
prunes from the 2022-23 crop would generate $24,750 (75,000 tons 
salable dried prunes multiplied by $0.33 assessment rate) in assessment 
revenue at the proposed assessment rate. The $1,950 balance of funds 
needed to cover budgeted expenditures would come from funds carried 
over from the previous crop year. The 2022-23 crop year assessment rate 
increase should be appropriate to ensure the Committee has sufficient 
revenue to fund its recommended 2022-23 crop year budgeted 
expenditures.
    The Committee derived the recommended assessment rate by 
considering anticipated crop year expenses, actual prune tonnage 
received by handlers during the 2021-2022 crop year, an estimated 2022-
23 crop of 75,000 tons of salable dried prunes, and the anticipated 
funds that will be carried over into the new crop year. Income derived 
from handler assessments ($24,750),and the balance carried over from 
the previous crop year ($1,950) are expected to be adequate to cover 
budgeted expenses ($26,700).
    The proposed assessment rate would continue in effect indefinitely 
unless modified, suspended, or terminated by AMS 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 AMS. 
Committee meetings are open to the public and interested persons may 
express their views at these meetings. AMS 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 2022-23 budget and those 
for subsequent crop years would be reviewed and, as appropriate, 
approved by AMS.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of 
this proposed 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 
businesses 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 600 producers of dried prunes in the 
production area and 27 handlers subject to regulation under the Order. 
Small agricultural producers of prunes are defined by the Small 
Business Administration (SBA) as those having annual receipts of less 
than $3,000,000, and small agricultural service firms are defined as 
those whose annual receipts are less than $30,000,000 (13 CFR 121.201).
    According to the National Agricultural Statistics Service (NASS), 
the average producer price for California dried prunes for the 2021-22 
crop was $2,000 per ton. NASS further reported 2021-22 crop year 
production for California dried prunes was 74,000 tons. The estimated 
total 2021-22 crop year value of California dried punes is $148,000,000 
(74,000 tons times $2,000 per ton equals $148,000,000). Dividing the 
estimated total crop value by the estimated number of producers (600) 
yields an estimated average receipt per producer of $246,667 
($148,000,000 divided by 600), so the majority of producers would have 
annual receipts less than the $3,000,000 SBA small agricultural 
producer threshold for prunes.
    In addition, according to AMS Market News data, the reported 
average terminal market price for 2021 for California dried prunes was 
$38.93 per 28-pound carton. Dividing the average carton price by the 
28-pound carton size yields an estimated price per pound of $1.39 
($38.93 average price per 28-pound carton divided by 28 pounds). The 
handler price for prunes is $2,780 per ton ($1.39 per pound multiplied 
by 2,000 pounds per ton equals $2,780 per ton). Multiplying the 2021-22 
California dried prune estimated production of 74,000 tons by the 
estimated average price per ton of $2,780 equals $205,720,000.
    Dividing this figure by the 27 regulated handlers yields estimated 
average annual handler receipts of $7,619,259 ($205,720,000 divided by 
27 handlers), which is, below the SBA threshold for small agricultural 
service firms. Therefore, using the above data, the majority of 
producers and handlers of California dried prunes may be classified as 
small entities.
    This proposal would increase the assessment rate collected from 
handlers for the 2022-23 and subsequent crop years from $0.28 to $0.33 
per ton of salable dried prunes. The Committee unanimously recommended 
2022-23 crop year expenditures of $26,700 and an assessment rate of 
$0.33 per ton of salable dried prunes. The proposed assessment rate of 
$0.33 is $.05 higher than the current rate. The Committee expects the 
industry to handle 75,000 tons of dried prunes during the 2022-23 crop 
year. Thus, the $0.33 per ton of salable dried prunes should provide 
$24,750 in assessment income (75,000 tons multiplied by $0.33). The 
Committee also expects $1,950 to be carried over into the 2022-23 crop 
year, which begins August 1, 2022. Income derived from handler 
assessments, along with funds carried over from the previous crop year, 
should be adequate to meet budgeted expenditures for the 2022-23 crop 
year.
    The major expenditures recommended by the Committee for the 2022-23 
crop year include $14,935 for personnel costs, $11,125 for operating 
expenses, and $640 for contingency

[[Page 66960]]

reserve. Budgeted expenses for these items during the 2021-22 crop year 
were $14,025, $12,000, and $187, respectively. The Committee 
deliberated the proposed budget categories and decreased their budget 
for office supplies and expenses to account for the 2022-23 crop year 
being a non-election year, therefore requiring less office supplies. 
Overall, the 2022-23 crop year budget of $26,700 is $488 more than the 
$26,212 budgeted for the 2021-22 crop year.
    The Committee recommended increasing the assessment rate due to a 
lower than normal crop size produced in the 2021-22 crop year and a 
projected lower crop size again for the 2022-23 crop year. At the 
current assessment rate, assessment income would equal $21,000 (75,000 
tons multiplied $0.28), an amount along with the carry over funds from 
the previous year sufficient to cover the Committee's anticipated 2022-
23 expenditures of $26,700.
    Prior to arriving at this budget and the proposed assessment rate, 
the Committee considered information from various sources including the 
Committee's Executive, Marketing, Inspection, and Research 
subcommittees. Alternate expenditure levels were discussed by these 
groups, based upon the relative value of various projects to the dried 
prune industry and the expected dried prune production. The assessment 
rate of $0.33 per ton of salable dried prunes was derived by 
considering anticipated expenses, the projected volume of assessable 
dried prunes, the current monetary balance expected to be carried into 
the upcoming crop year, and additional pertinent factors.
    A review of NASS information indicates that the average producer 
price for the 2021-22 crop year was $2,000 per ton, and the estimated 
quantity of assessable dried prunes harvested in the 2021-22 crop year 
was 74,000 tons, which would yield total producer revenue $148,000,000 
($2,000 per ton multiplied by 74,000 tons). Therefore, utilizing the 
assessment rate of $0.33 per ton, assessment revenue for the 2021-22 
crop year, as a percentage of total producer revenue, would be 
approximately 1.65 percent ($0.33 multiplied by 74,000 tons divided by 
$148,000,000 multiplied by 100).
    This proposed action would increase 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, these 
costs would be offset by the benefits derived by the operation of the 
Order.
    The Committee's meetings were widely publicized throughout the 
production area. The dried prune industry and all interested persons 
are invited to attend the meetings and participate in Committee 
deliberations on all issues. Like all Committee meetings, the June 28, 
2022, 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 information collection impacts of this action on 
small businesses.
    In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. 
Chapter 35), the Order's information collection requirements have been 
previously approved by OMB and assigned OMB No. 0581-0178, Vegetable 
and Specialty Crops. No changes in those requirements would be 
necessary as a result of this proposed rule. Should any changes become 
necessary, they would be submitted to OMB for approval.
    This proposed rule would 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.
    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.
    AMS has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this proposed rule.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 
https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any 
questions about the compliance guide should be sent to Richard Lower 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. All written comments timely received 
will be considered before a final determination is made on this rule.

List of Subjects in 7 CFR Part 993

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

    For the reasons set forth in the preamble, the Agricultural 
Marketing Service proposes to amend 7 CFR part 993 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, 2022, an assessment rate of $0.33 per ton of 
salable dried prunes is established for California dried prunes.

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2022-24172 Filed 11-4-22; 8:45 am]
BILLING CODE P