48846 Federal Register / Vol. 74, No. 185 / Friday, September 25, 2009 / Rules and Regulations 

TABLE 1—MAXIMUM MONTHLY ALLOWANCES OF SUPPLEMENTAL FOODS FOR INFANTS IN FOOD PACKAGES I, II AND III— 

Continued 

Foods 1

Fully formula fed (FF) Partially breastfed (BF/FF) Fully breastfed (BF) 

Food packages 

I-FF & III–FF 

A: 0 through 3 

months 

B: 4 through 5 

months 

Food packages 

II–FF & III–FF 

6 through 11 

months 

Food packages 

I-BF/FF & III BF/FF 

A: 0 to 1 month 2

B: 1 through 3 

months 2

C: 4 through 5 

months 

Food packages IIBF/FF & III BF/FF 

6 through 11 

months 

Food package 

I–BF 

0 through 5 

months 

Food package 

II–BF 

6 through 11 

months 

Infant food meat 8 10 ............................... ............................... ............................... ............................... ........................... 77.5 oz. 

Table 1 Footnotes: (Abbreviations in order of appearance in table): FF = fully formula fed; BF/FF = partially breastfed (i.e., the infant is 

breastfed but also receives formula from the WIC Program); BF = fully breastfed (i.e., the infant receives no formula through the WIC program). 1 Table 4 describes the minimum requirements and specifications for the supplemental foods. 2 The powder form is the form recommended for partially breastfed infants ages 0 through 3 months in Food Package I. 3 Liquid concentrate and ready-to-feed (RTF) may be substituted at rates that provide comparable nutritive value. 4 WIC formula means infant formula, exempt infant formula, or WIC-eligible medical food. Only infant formula may be issued for infants in Food 

Packages I and II. Exempt infant formula may only be issued for infants in Food Package III. 5 The maximum monthly allowance is specified in reconstituted fluid ounces for liquid concentrate, RTF liquid, and powder forms of infant formula and exempt infant formula. Reconstituted fluid ounce is the form prepared for consumption as directed on the container. 6 If powder infant formula is provided, State agencies must provide at least the number of reconstituted fluid ounces as the maximum allowance for the liquid concentrate form of the same product in the same Food Package up to the maximum monthly allowance for powder. State 

agencies must issue whole containers that are all the same size. 7 State agencies may round up and disperse whole containers of infant formula over the food package timeframe to allow participants to receive the full authorized nutritional benefit (FNB). State agencies must use the methodology described in accordance with paragraph (h)(1) of 

this section. 8 State agencies may round up and disperse whole containers of infant foods (infant cereal, fruits and vegetables, and meat) over the Food 

Package timeframe. State agencies must use the methodology described in accordance with paragraph (h)(2) of this section. 9 Fresh banana may replace up to 16 ounces of infant food fruit at a rate of 1 pound of bananas per 8 ounces of infant food fruit. 10 In lieu of infant foods (cereal, fruit and vegetables, and meat), infants greater than 6 months of age in Food Package III may receive exempt 

infant formula or WIC-eligible medical foods at the same maximum monthly allowance as infants ages 4 through 5 months of age of the same 

feeding option. 

* * * * * 

Dated: August 25, 2009. 

Julia Paradis, 

Administrator, Food and Nutrition Service. 

[FR Doc. E9–22590 Filed 9–24–09; 8:45 am] 

BILLING CODE 3410–30–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Parts 916 and 917 

[Doc. No. AMS–FV–09–0013; FV09–916/917– 

2 IFR] 

Nectarines and Peaches Grown in 

California; Decreased Assessment 

Rates 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Affirmation of interim final rule 

as final rule. 

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

final rule that decreased the assessment 

rates established for the Nectarine 

Administrative Committee and the 

Peach Commodity Committee 

(Committees) for the 2009–10 and 

subsequent fiscal periods. The Nectarine 

Administrative Committee (NAC) 

program decreased its assessment rate 

from $0.06 to $0.0175 per 25-pound 

container or container equivalent of 

nectarines handled. The Peach 

Commodity Committee (PCC) program 

decreased its assessment rate from $0.06 

to $0.0025 per 25-pound container or 

container equivalent of peaches 

handled. The Committees locally 

administer the marketing orders for 

nectarines and peaches grown in 

California (order). The interim final rule 

was necessary to align the Committees’ 

expected revenue with decreases in its 

proposed budget for the 2009–10 fiscal 

period, which began March 1, 2009. 

DATES: Effective Date: Effective 

September 26, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Robinson, 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: 

Jen.Robinson@ams.usda.gov or 

Kurt.Kimmel@ams.usda.gov. 

Small businesses may obtain 

information on complying with this and 

other marketing order regulations by 

viewing a guide at the following Web 

site: http://www.ams.usda.gov/

AMSv1.0/ams.fetchTemplateData.do?

template=TemplateN&page=Marketing

OrdersSmallBusinessGuide; or 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 Order Nos. 

916 and 917, both as amended (7 CFR 

parts 916 and 917), regulating the 

handling of nectarines and peaches 

grown in California, respectively, 

hereinafter referred to as the ‘‘orders.’’ 

The orders are effective under the 

Agricultural Marketing Agreement Act 

of 1937, as amended (7 U.S.C. 601–674), 

hereinafter referred to as the ‘‘Act.’’ 

USDA is issuing this rule in 

conformance with Executive Order 

12866. 

Under the orders, California nectarine 

and peach handlers are subject to 

assessments, which provide funds to 

administer the orders. Assessment rates 

issued under the orders are intended to 

be the applicable to all assessable 

nectarines and peaches for the entire 

fiscal period, and continue indefinitely 

until amended, suspended, or 

terminated. The Committee’s fiscal 

period begins on March 1, and ends on 

the last day of February. 

In an interim final rule published in 

the Federal Register on June 18, 2009, 

and effective on June 19, 2009 (74 FR 

28869, Doc. No. AMS–FV–09–0013; 

FV09–916/917–2 IFR), §§ 916.234 and 


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Federal Register / Vol. 74, No. 185 / Friday, September 25, 2009 / Rules and Regulations 48847 

917.258 were amended by decreasing 

the assessment rates established for the 

NAC program for the 2009–10 and 

subsequent fiscal periods from $0.06 to 

$0.0175 per 25-pound container or 

container equivalent of nectarines and 

for the PCC program for the 2009–10 

and subsequent fiscal periods from 

$0.06 to $0.0025 per 25-pound container 

or container equivalent of peaches. 

Decreases in the per-container 

assessment rates were possible due to 

significant decreases in budgeted 

administrative and promotional 

expenses for 2009. 

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. Thus, both statutes have small 

entity orientation and compatibility. 

There are approximately 120 

California nectarine and peach handlers 

subject to regulation under the orders 

covering nectarines and peaches grown 

in California, and about 550 producers 

of these fruits in California. Small 

agricultural service firms, which 

include handlers, are defined by the 

Small Business Administration (SBA) 

(13 CFR 121.201) as those whose annual 

receipts are less than $7,000,000. Small 

agricultural producers are defined by 

the SBA as those having annual receipts 

of less than $750,000. A majority of 

these handlers and producers may be 

classified as small entities. 

The Committees’ staff has estimated 

that there are fewer than 30 handlers in 

the industry who would not be 

considered small entities. For the 2008 

season, the Committees’ staff estimated 

that the average handler price received 

was $9.00 per container or container 

equivalent of nectarines or peaches. A 

handler would have to ship at least 

777,778 containers to have annual 

receipts of $7,000,000. Given data on 

shipments maintained by the 

Committees’ staff and the average 

handler price received during the 2008 

season, the Committees’ staff estimates 

that small handlers represent 

approximately 78 percent of all the 

handlers within the industry. 

The Committees’ staff has also 

estimated that fewer than 60 producers 

in the industry would not be considered 

small entities. For the 2008 season, the 

Committees estimated the average 

producer price received was $4.25 per 

container or container equivalent for 

nectarines and peaches. A producer 

would have to produce at least 176,471 

containers of nectarines and peaches to 

have annual receipts of $750,000. Given 

data maintained by the Committees’ 

staff and the average producer price 

received during the 2008 season, the 

Committees’ staff estimates that small 

producers represent more than 88 

percent of the producers within the 

industry. 

With an average producer price of 

$4.25 per container or container 

equivalent, and a combined packout of 

nectarines and peaches of 45,543,561 

containers, the value of the 2008 

packout is estimated to be $193,560,134. 

Dividing this total estimated producer 

revenue figure by the estimated number 

of producers (550) yields an estimate of 

average revenue per producer of about 

$351,928 from the sales of peaches and 

nectarines. 

This rule continues in effect the 

action that decreased the assessment 

rates established for the NAC for the 

2009–10 and subsequent fiscal periods 

from $0.06 to $0.0175 per 25-pound 

container or container equivalent of 

nectarines and for the PCC for the 2009– 

10 and subsequent fiscal periods from 

$0.06 to $0.0025 per 25-pound container 

or container equivalent of peaches. 

The NAC recommended 2009–10 

fiscal period expenditures of 

$1,797,290.20 for nectarines and an 

assessment rate of $0.0175 per 25-pound 

container or container equivalent of 

nectarines. The assessment rate of 

$0.0175 is $0.0425 lower than the rate 

currently in effect. The PCC 

recommended 2009–10 fiscal period 

expenditures of $1,885,250 for peaches 

and an assessment rate of $0.0025 per 

25-pound container or container 

equivalent of peaches. The assessment 

rate of $0.0025 is $0.0575 lower than the 

rate currently in effect. 

This rule continues in effect the 

action that decreased 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 would 

reduce the burden on handlers, and may 

reduce the burden on producers. In 

addition, the Committees’ meetings 

were widely publicized throughout the 

California nectarine and peach 

industries and all interested persons 

were invited to attend the meetings and 

encouraged to participate in the 

Committees’ deliberations on all issues. 

Like all Committee meetings, the 

February 19, 2009 meetings were public 

meetings and entities of all sizes were 

able to express views on this issue. 

This action imposes no additional 

reporting or recordkeeping requirements 

on either small or large 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. 

In addition, as noted in the initial 

regulatory flexibility analysis, USDA 

has not identified any relevant Federal 

rules that duplicate, overlap or conflict 

with this rule. 

Comments on the interim final rule 

were required to be received on or 

before August 17, 2009. One comment 

was received in support of the 

decreased assessment rates. Therefore, 

for the reasons given in the interim final 

rule, we are adopting the interim final 

rule as a final rule, without change. 

To view the interim final rule and 

comment, go to: http:// 

www.regulations.gov/search/Regs/ 

home.html#docketDetail?R=AMS-FV09-0013. 

This action also affirms information 

contained in the interim final rule 

concerning the Executive Orders 12866 

and 12988, the Paperwork Reduction 

Act (44 U.S.C. Chapter 35), and the 

E–Gov Act (44 U.S.C. 101). 

After consideration of all relevant 

material presented, it is found that 

finalizing this interim final rule, 

without change, as published in the 

Federal Register (74 FR 28869, June 18, 

2009) will tend to effectuate the 

declared policy of the Act. 

List of Subjects 

7 CFR Part 916 

Marketing agreements, Nectarines, 

Reporting and recordkeeping 

requirements. 

7 CFR Part 917 

Marketing agreements, Peaches, Pears, 

Reporting and recordkeeping 

requirements. 

PARTS 916 AND 917—[AMENDED] 

■ Accordingly, the interim final rule 

amending 7 CFR parts 916 and 917, 

which was published at 74 FR 28869 on 

June 18, 2009, is adopted as a final rule, 

without change. 


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48848 Federal Register / Vol. 74, No. 185 / Friday, September 25, 2009 / Rules and Regulations 

Dated: September 21, 2009. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E9–23152 Filed 9–24–09; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 924 

[Doc. No. AMS–FV–09–0040; FV09–924–1 

FR] 

Fresh Prunes Grown in Designated 

Counties in Washington and in 

Umatilla County, OR; Increased 

Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule increases the 

assessment rate established for the 

Washington-Oregon Fresh Prune 

Marketing Committee (Committee) for 

the 2009–10 and subsequent fiscal 

periods from $1.00 to $2.00 per ton for 

fresh prunes. The Committee is 

responsible for local administration of 

the marketing order regulating the 

handling of fresh prunes grown in 

designated counties in Washington and 

in Umatilla County, Oregon. 

Assessments upon handlers of fresh 

prunes are used by the Committee to 

fund reasonable and necessary expenses 

of the program. The fiscal period for the 

marketing order began April 1 and ends 

March 31. The assessment rate will 

remain in effect indefinitely unless 

modified, suspended or terminated. 

DATES: Effective Date: September 26, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

Robert J. Curry or Gary D. Olson, 

Northwest Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1220 SW., Third Avenue, 

Suite 385, Portland, OR 97204; 

Telephone: (503) 326–2724; Fax: (503) 

326–7440; or E-mail: 

Robert.Curry@ams.usda.gov or 

GaryD.Olson@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, 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 final 

rule is issued under Marketing 

Agreement and Order No. 924 (7 CFR 

part 924), regulating the handling of 

fresh prunes grown in designated 

counties in Washington and in Umatilla 

County, Oregon, 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 final rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. Under the marketing 

order now in effect, Washington-Oregon 

prune handlers are subject to 

assessments. Funds to administer the 

order are derived from such 

assessments. It is intended that the 

assessment rate will be applicable to all 

assessable Washington-Oregon prunes 

beginning April 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 final rule increases the 

assessment rate established by the 

Committee for the 2009–10 and 

subsequent fiscal periods from $1.00 to 

$2.00 per ton for Washington-Oregon 

prunes handled under the order. 

The 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 prunes in 

designated counties in Washington and 

in Umatilla County, Oregon. 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 2007–08 and subsequent fiscal 

periods, the Committee recommended, 

and the USDA approved, an assessment 

rate of $1.00 per ton of prunes handled. 

This rate continues in effect from fiscal 

period to fiscal period 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 2, 2009, 

and unanimously recommended 2009– 

10 expenditures of $8,893. The major 

expenditures recommended by the 

Committee for the 2009–10 fiscal period 

include $4,800 for the management fee, 

$800 for Committee travel, $100 for 

compliance, $2,000 for the financial 

audit, and $1,193 for equipment 

maintenance, insurance, bonds, and 

miscellaneous expenses. In comparison, 

the $6,893 budget approved for the 

2008–09 fiscal period included $4,800 

for the management fee, $800 for travel 

expenses, $100 for compliance, and 

$1,150 for audits, equipment 

maintenance, insurance, bonds, and 

miscellaneous expenses. The major 

increase in expenses this year is in the 

audit category. 

The assessment rate recommended by 

the Committee was derived by dividing 

the anticipated expenses of $8,893 by 

the projected 2009 4,400-ton prune 

production. Applying the $2.00 per ton 

assessment rate to this crop estimate 

should provide $8,800 in assessment 

income, which, in addition to a small 

draw of approximately $93.00 from the 

Committee’s monetary reserve, should 

adequately cover the budgeted 

expenditures. The reserve balance at the 

end of the 2008–09 fiscal period was 

$5,160. The estimated 2009–10 year-end 

reserve is $5,067, which is within the 

order’s limit of approximately one fiscal 

period’s operational expenses. The 

Committee recommended the higher 

assessment rate in order that the 

budgeted expenditures—$2,000 higher 

than the 2008–09 approved budget—are 

adequately covered and that the current 

reserve balance is maintained. 

The increased assessment rate will 

continue in effect indefinitely unless 

modified, suspended, or terminated by 

USDA upon recommendation and 

information submitted by the 

Committee or other available 

information. 


CPrice-Sewell on DSKGBLS3C1PROD with RULES