Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Rules and Regulations 67607 

finalizing the interim rule, without 

change, as published in the Federal 

Register (75 FR 43038; July 23, 2010), 

will tend to effectuate the declared 

policy of the Act. 

List of Subjects in 7 CFR Part 920 

Kiwifruit, Marketing agreements, 

Reporting and recordkeeping 

requirements. 

■ Accordingly, the interim rule that 

amended 7 CFR part 920 and that was 

published at 75 FR 43038 on July 23, 

2010, is adopted as a final rule without 

change. 

Dated: October 25, 2010. 

Robert C. Keeney, 

Acting Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2010–27788 Filed 11–2–10; 8:45 am] 

BILLING CODE P 

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. 

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 


emcdonald on DSK2BSOYB1PROD with RULES
67608 Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Rules and Regulations 

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 

§ 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 


emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 75, No. 212 / Wednesday, November 3, 2010 / Rules and Regulations 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 

■ For the reasons set forth in the 

preamble, 7 CFR part 993 is amended as 

follows: 

■ 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, 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 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1215 

[Document Number AMS–FV–10–0010] 

Popcorn Promotion, Research, and 

Consumer Information Order; 

Reapportionment 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule amends the Popcorn 

Promotion, Research and Consumer 

Information Order (Order) to reduce the 

Popcorn Board (Board) membership 

from nine to five members to reflect the 

consolidation of the popcorn industry 

and therefore, fewer popcorn processors 

in the industry. In accordance with the 

Popcorn Promotion, Research and 

Consumer Information Order which is 

authorized by the Popcorn Promotion, 

Research and Consumer Information Act 

(Act), the number of members on the 

Board may be changed by regulation; 

provided, that the Board consist of not 

fewer than four members and not more 

than nine members. In addition, the 

Order states that for purposes of 

nominating and appointing processors 

to the Board, the Secretary may take into 

account the geographical distribution of 

popcorn processors. 

DATES: Effective Date: November 4, 

2010. 

FOR FURTHER INFORMATION CONTACT: 

Deborah Simmons, Marketing 

Specialist, Research and Promotion 

Branch, Fruit and Vegetable Programs, 

AMS, U.S. Department of Agriculture, 

Stop 0244, 1400 Independence Avenue, 

SW., Room 0632–S, Washington, DC 

20250–0244; telephone: (888) 720–9917; 

facsimile: (202) 205–2800; or electronic 

mail: deborah.simmons@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under the Popcorn Promotion, 

Research, and Consumer Information 

Order [7 CFR part 1215]. The Order is 

authorized under the Popcorn 

Promotion, Research and Consumer 

Information Act [7 U.S.C. 7481–7491]. 

This rule amends the Popcorn 

Promotion, Research and Consumer 

Information Order to reduce the 

Popcorn Board membership from nine 

to five members to reflect the 

consolidation of the popcorn industry 

and therefore, fewer popcorn processors 

in the industry. 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has waived the review process 

required by Executive Order 12866 for 

this action. 

Executive Order 12988 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. The rule is not intended to have 

retroactive effect and will not affect or 

preempt any other State or Federal law 

authorizing promotion or research 

relating to an agricultural commodity. 

The Act provides that any person 

subject to an order may file a written 

petition with the U.S. Department of 

Agriculture (Department) if they believe 

that the Order, any provision of the 

Order, or any obligation imposed in 

connection with the Order, is not 

established in accordance with law. In 

any petition, the person may request a 

modification of the Order or an 

exemption from the Order. The 

petitioner is afforded the opportunity 

for a hearing on the petition. After a 

hearing, the Department would rule on 

the petition. The Act provides that the 

district court of the United States in any 

district in which the petitioner resides 


emcdonald on DSK2BSOYB1PROD with RULES