46310 Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Rules and Regulations 

(1) The beginning inventory of the 

handler by size and container type; 

(2) The quantity of fruit the handler 

lost in repack and repacked into other 

container types; 

(3) The total domestic and export 

shipments of the handler by size and 

container type; and 

(4) Any other adjustments which 

increase or decrease posted handler 

inventory. 

* * * * * 

(d) KISS Price/Shipment report. Each 

handler who ships 100,000 or more 

trays, or the equivalent thereof, per 

season, shall file the KISS Price/ 

Shipment report with the committee. 

Handlers are not required to report 

organic kiwifruit shipments on this 

report. The handler shall file the report 

weekly following the first week he or 

she makes shipments and shall continue 

filing reports until he or she submits a 

final report for the season. Each such 

report shall be filed with the committee 

no later than 5:00 p.m. (the close of 

business) on the Tuesday immediately 

following the shipping week. For the 

purpose of this subsection, the shipping 

week is defined as Sunday through 

Saturday. The report shall show: 

(1) The company name, contact 

person, and phone number of the 

handler; 

(2) Weekly period covered by the 

report; 

(3) Total fresh market shipments and 

gross f.o.b. sales of kiwifruit by pack 

style and size; and 

(4) Total fresh market shipments and 

gross f.o.b. sales to export markets by 

pack style and size. 

(e) Handlers who file the KISS Price/ 

Shipment report specified in paragraph 

(d) of this section are exempt from filing 

the shipping report specified in 

paragraph (a) of this section and the 

KISS/Shipment report specified in 

paragraph (b) of this section. 

Dated: September 2, 2009. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E9–21657 Filed 9–8–09; 8:45 am] 

BILLING CODE 3410–02–P 

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. 

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: 

Debbie.Wray@ams.usda.gov, or 

Kurt.Kimmel@ams.usda.gov. 

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: 

Jay.Guerber@ams.usda.gov. 

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 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Rules and Regulations 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 

§ 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 


jlentini on DSKJ8SOYB1PROD with RULES
46312 Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Rules and Regulations 

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=Marketing

OrdersSmallBusinessGuide. 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. 

■ For the reasons set forth in the 

preamble, 7 CFR part 993 is 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: 

§ 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 

SMALL BUSINESS ADMINISTRATION 

13 CFR Part 121 

RIN 3245–AE92 

Small Business Size Regulations; 

Rules of Procedure Governing Cases 

Before the Office of Hearings and 

Appeals; Correction 

AGENCY: U.S. Small Business 

Administration. 

ACTION: Correcting amendments. 

SUMMARY: The U.S. Small Business 

Administration (SBA) is correcting 

several of its Small Business Size 

Regulations, published in the Federal 

Register on May 21, 2004. SBA is 

correcting a reference to an incorrect 

North American Industry Classification 

System (NAICS) code, and updating two 

Internet Web addresses that appear in 

part 121 of the Code of Federal 

Regulations (CFR), chapter 13. 

DATES: Effective September 9, 2009. 

FOR FURTHER INFORMATION CONTACT: Carl 

J. Jordan, Program Analyst, Office of 


jlentini on DSKJ8SOYB1PROD with RULES