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[Federal Register Volume 75, Number 212 (Wednesday, November 3, 2010)]
[Rules and Regulations]
[Pages 67607-67609]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-27796]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

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

Dried Prunes Produced in California; Increased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule increases 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 that 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 will remain in effect indefinitely 
unless modified, suspended, or terminated.

DATES: Effective Date: November 4, 2010.

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: Andrea.Ricci@ams.usda.gov or 
Kurt.Kimmel@ams.usda.gov.
    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: 
Antoinete.Carter@ams.usda.gov.

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 issued herein will 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 increases 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 this assessment rate, the expected assessment income for the 
2010-11 crop year is $40,500. The Committee believes 2010-11 assessment 
income, plus extra assessment income carried in from the 2009 crop year 
and interest income, will be adequate to cover its estimated expenses 
of $58,353.
    The Committee's 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 major expenditures recommended by the Committee for the 2010-11 
year include $31,781 for salaries and benefits, $10,730 for

[[Page 67608]]

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. 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 its 2010-11 crop year expenses. At the end of the 
5 months, the Committee must either refund or credit excess funds back 
to handlers.
    The assessment rate established in this rule 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 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 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 years, would be reviewed and, as appropriate, 
approved by USDA.

Final 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 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 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 
less than $7,000,000 worth of dried prunes. Dividing the 2009-10 prune 
crop value of $188,400,000 reported by the National Agricultural 
Statistics Service by the number of producers (900) yields an average 
producer revenue of about $209,333. Based on the foregoing, the 
majority of handlers and dried prune producers may be classified as 
small entities.
    This rule increases the assessment rate established for the 
Committee and collected from handlers for the 2010-11 and subsequent 
crop years 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 
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 2010-11 assessment 
income, plus extra assessment income carried in from the 2009-10 crop 
year and anticipated interest income, should 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 this assessment rate, the assessment income for the 2010-11 
crop year should be $40,500. The Committee's 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 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 reviewed and unanimously recommended 2010-11 
expenditures of $58,353, which included 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 its Executive Subcommittee. 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. The Committee considered the alternative of continuing 
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 2010-2010 crop year is expected to range between .027 and .025 
percent.
    This action increases 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

[[Page 67609]]

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.
    This rule 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. As noted in the 
initial regulatory flexibility analysis, USDA has not identified any 
relevant Federal rules that duplicate, overlap, or conflict with this 
final rule.
    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.
    A proposed rule concerning this action was published in the Federal 
Register on August 24, 2010 (75 FR 51956). Copies of the proposed rule 
were also mailed or sent via facsimile to all dried prune handlers. 
Finally, the proposal was made available through the Internet by USDA 
and the Office of the Federal Register. A 30-day comment period ending 
September 23, 2010, was provided for interested persons to respond to 
the proposal. 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/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.
    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 
2010-11 crop year began 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. Also, a 30-day comment period was provided in the proposed rule, 
and no comments were received.

List of Subjects in 7 CFR Part 993

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

PART 993--DRIED PRUNES PRODUCED IN CALIFORNIA

0
For the reasons set forth in the preamble, 7 CFR part 993 is amended as 
follows:

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, 2010, an assessment rate of $0.27 per ton of 
salable dried prunes is established for California dried prunes.

    Dated: October 25, 2010.
Robert C. Keeney,
Acting Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2010-27796 Filed 11-2-10; 8:45 am]
BILLING CODE P
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