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[Federal Register Volume 76, Number 168 (Tuesday, August 30, 2011)]
[Rules and Regulations]
[Pages 53813-53816]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-22119]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Doc. No. AMS-FV-11-0068; FV11-993-1 IR]

Dried Prunes Produced in California; Decreased Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule decreases the assessment rate established for the 
Prune Marketing Committee (Committee) for the 2011-12 and subsequent 
crop years from $0.27 to $0.22 per ton of salable dried prunes handled. 
The Committee locally administers the marketing order which regulates 
the handling of dried prunes produced 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 August 31, 2011. Comments received by October 31, 
2011, 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 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

[[Page 53814]]

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 or Kurt Kimmel, 
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: Andrea.Ricci@ams.usda.gov or 
Kurt.Kimmel@ams.usda.gov.
    Small businesses may request information on complying with this 
regulation by contacting Laurel May, 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: Laurel.May@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 produced 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 August 1, 2011, 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 2011-12 and subsequent crop years from $0.27 per to 
$0.22 per ton of salable dried prunes.
    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 2010-11 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 16, 2011, and unanimously recommended 
2011-12 expenditures of $46,497 and an assessment rate of $0.22 per ton 
of salable dried prunes. In comparison, last year's budgeted 
expenditures were $55,548. The assessment rate of $0.22 is $0.05 lower 
than the rate currently in effect.
    The Committee unanimously recommended the lower assessment rate 
because of a substantial decrease in salaries and wages expense. The 
current excess funds carried forward and estimated interest income 
combined with the funds generated from the decreased assessment rate 
and decreased crop is expected to provide adequate income to cover 
anticipated 2011-12 year expenses.
    The major expenditures recommended by the Committee for the 2011-12 
year include $20,993 for salaries and wages expense, $9,783 for 
operating expenses, and $15,721 for contingences. Budgeted expenses for 
these items in 2010-11 were $31,781, $10,730, and $13,037, 
respectively.
    The assessment rate recommended by the Committee was derived by 
considering the excess funds carried forward into the 2011-12 crop 
year, the estimated interest income, the estimated salable tons of 
California dried prunes, and handler assessment revenue needed to meet 
anticipated expenses. Excess funds carried forward are expected to be 
about $19,650 and interest income is estimated at $7. Dried prune 
production for the year is estimated at 122,000 salable tons, which 
should provide $26,840 in assessment income. In addition, most of the 
Committee's expenses reflect its portion of the joint administrative 
costs of the Committee and the California Dried Plum Board (CDPB). 
Based on the Committee's reduced activities in the recent years, it is 
funding only 5 percent of the shared expenses of the two programs. This 
funding level is similar to that of last year. The Committee believes 
that the current excess funds carried forward from the 2010-11 crop 
year and estimated interest income combined with funds generated from 
the lower 2011-12 assessment rate and decreased crop will be adequate 
to cover its anticipated 2011-2012 expenses of $46,497.
    The Committee is authorized under Sec.  993.81(c) of the order to 
use excess assessment funds from the 2010-11 crop year (currently 
estimated at $19,650) for up to 5 months beyond the end of the crop 
year to meet the 2011-12 crop year expenses. At the end of the 5 
months, the Committee either refunds or credits excess funds 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 is effective 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 Committee 
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 2011-12 budget and those 
for subsequent crop years will be reviewed and, as appropriate, 
approved by USDA.

[[Page 53815]]

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 800 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 dried 
prune crop value for 2010 reported by the National Agricultural 
Statistics Service (NASS) of $149,860,000 by the number of producers 
(800) yields the average annual producer revenue estimate of about 
$187,325. Thus, the majority of handlers and California 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 2011-12 and subsequent 
crop years from $0.27 to $0.22 per ton of salable dried prunes. The 
Committee unanimously recommended 2011-12 estimated expenses of $46,497 
and a decreased assessment rate of $0.22 per ton of salable dried 
prunes.
    The quantity of assessable dried prunes for the 2011-12 crop year 
is estimated at 122,000 tons. Thus, the $0.22 rate should provide 
$26,840 in assessment income. The current excess funds carried forward 
and estimated interest income combined with funds generated from the 
decreased assessment rate and decreased crop is expected to provide 
adequate income to cover anticipated 2011-12 crop year expenses.
    The major expenditures recommended by the Committee for the 2011-12 
crop year include $20,993 for salaries and wages expense, $9,783 for 
operating expenses, and $15,721 for contingences. Budgeted expenses for 
these items in 2010-11 were $31,781, $10,730, and $13,037, 
respectively.
    The Committee unanimously recommended the lower assessment rate 
because of a substantial decrease in salaries and wages expense. The 
current excess funds carried forward and estimated interest income 
combined with the funds generated from the decreased assessment rate 
and decreased crop are expected to provide adequate income to cover 
anticipated 2011-12 year expenses.
    The Committee discussed alternatives to this rule, including 
alternative expenditure levels, but determined that the recommended 
expenses were reasonable and necessary to adequately cover program 
operations. Prior to arriving at its budget of $46,497, 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.
    According to NASS, the season average producer price was $1,230 in 
2009 and $1,180 per ton of salable dried prunes in 2010. A review of 
this historical data and preliminary information pertaining to the 
upcoming crop year indicates that the producer prices for the 2011-12 
crop year could range between $1,230 and $1,180. Therefore, the 
estimated assessment revenue for the 2011-12 crop year as a percentage 
of total producer prices during the 2011-12 crop year could range 
between 0.018 and 0.019 percent.
    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 16, 2011, 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 rule, 
including the regulatory and informational 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 the Office of Management and Budget (OMB) and 
assigned OMB No. 0581-0178 Vegetable and Specialty Crop Marketing 
Orders. No changes in those requirements as a result of this action are 
necessary. Should any changes become necessary, they would be submitted 
to OMB for approval.
    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/MarketingOrdersSmallBusinessGuide. Any questions 
about the compliance guide should be sent to Laurel May 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 is also found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect, and 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 2011-12 crop year begins on August 1, 2011, 
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) this action decreases the assessment rate for assessable 
dried prunes beginning with

[[Page 53816]]

the 2011-12 crop year; (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; and (4) 
this interim rule provides 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

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, 2011, an assessment rate of $0.22 per ton is 
established for California dried prunes.

    Dated: August 19, 2011.
David R. Shipman,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2011-22119 Filed 8-29-11; 8:45 am]
BILLING CODE 3410-02-P
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