[Federal Register Volume 72, Number 213 (Monday, November 5, 2007)]
[Rules and Regulations]
[Pages 62409-62412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5503]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Docket No. AMS-FV-07-0103; FV07-993-1 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 2007-08 and subsequent 
crop years from $0.40 to $0.60 per ton of salable dried prunes.

[[Page 62410]]

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 higher assessment rate is needed 
to offset an anticipated decrease in dried prune production this year. 
The crop year began August 1 and ends July 31. The assessment rate will 
remain in effect indefinitely unless modified, suspended, or 
terminated.

DATES: Effective Date: November 6, 2007.

FOR FURTHER INFORMATION CONTACT: Terry Vawter, Senior Marketing 
Specialist, or Kurt 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: <a href="/cdn-cgi/l/email-protection#abffced9d9d285fdcadcdfced9ebded8cfca85ccc4dd"><span class="__cf_email__" data-cfemail="e3b78691919acdb58294978691a396908782cd848c95">[email protected]</span></a> or <a href="/cdn-cgi/l/email-protection#0b407e797f25406266666e674b7e786f6a256c647d"><span class="__cf_email__" data-cfemail="bef5cbccca90f5d7d3d3dbd2fecbcddadf90d9d1c8">[email protected]</span></a>.
    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: <a href="/cdn-cgi/l/email-protection#f7bd968ed9b0829285959285b782849396d9909881"><span class="__cf_email__" data-cfemail="89c3e8f0a7cefcecfbebecfbc9fcfaede8a7eee6ff">[email protected]</span></a>.

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, 2007, and continue until amended, 
suspended, or terminated. This rule will not preempt any State or local 
laws, regulations, or policies, unless they present an irreconcilable 
conflict with this rule.
    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 2007-08 and subsequent crop years from $0.40 to $0.60 
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 2006-07 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 28, 2007, and unanimously recommended an 
assessment rate of $0.60 per ton of salable dried prunes and 
expenditures totaling $102,523 for the 2007-08 crop year. In 
comparison, last year's approved expenses as amended in April 2007 were 
$77,722. The assessment rate of $0.60 per ton of salable dried prunes 
is $0.20 higher than the rate currently in effect.
    The Committee recommended a higher assessment rate based on a 
production estimate of 95,000 tons of salable dried prunes for this 
year, which is substantially less than the 187,737 tons produced last 
year. At this assessment rate the assessment income for the 2007-08 
crop year is $57,000. The Committee's budget of expenses of $102,523 
includes a slight increase in personnel expenses, and a slight decrease 
in operating expenses. Combined salaries and expenses are almost two 
percent higher than last year, or about $65,580. The Committee also 
included $36,943 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. Based on the Committee's reduced 
activities in recent years, it is funding only ten percent of the 
shared expenses of the two programs. This funding level is similar to 
that of last year. The Committee believes carryover funds, plus 
assessment and interest income, is adequate to cover its estimated 
expenses of $102,523.
    The major expenditures recommended by the Committee for the 2007-08 
crop year include $50,505 for salaries and benefits, $15,075 for 
operating expenses, and $36,943 for contingencies. For the 2006-07 crop 
year, the Committee's budgeted expenses were $48,662 for salaries and 
benefits, $15,895 for operating expenses, and $13,165 for 
contingencies.
    The assessment rate recommended by the Committee was derived by 
dividing the handler assessment revenue needed to meet anticipated 
expenses by the estimated salable tons of California dried prunes. 
Dried prune production for the year is estimated to be 95,000 salable 
tons, which should provide $57,000 in assessment income at $0.60 per 
ton of salable dried prunes. Income derived from handler assessments, 
plus excess funds from the 2006-07 crop year should be adequate to 
cover budgeted expenses.
    The Committee is authorized under Sec.  993.81(c) of the order to 
use excess assessment funds from the 2006-07 crop year (currently 
estimated at $45,423) for up to 5 months beyond the end of the crop 
year to meet 2007-08 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 will be in effect for an indefinite 
period, the Committee will continue to meet prior

[[Page 62411]]

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 Committees' 
2007-08 budget and those for subsequent crop years will be reviewed 
and, as appropriate, approved by USDA.

Final 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 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 1,100 producers of dried prunes in the 
production area and approximately 22 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 
as those whose annual receipts are less than $6,500,000.
    An estimated 1,068 of the 1,100 producers (97.1 percent) have 
incomes of less than $750,000 and are considered small producers. 
Fourteen of the 22 handlers (63.6 percent) have incomes from handling 
prunes of less than $6,500,000 and could be considered small handlers. 
Therefore, the majority of handlers and producers of California dried 
prunes may be classified as small entities.
    This rule increases the assessment rate established for the 
Committee and collected from handlers for the 2007-08 and subsequent 
crop years from $0.40 to $0.60 per ton of salable dried prunes.
    The Committee met on June 28, 2007, and unanimously recommended 
estimated expenses for 2007-08 of $102,523 and an increased assessment 
rate of $0.60 per ton of salable dried prunes. The Committee's 
recommended budget was based on a slight increase in personnel expenses 
and a slight decrease in operating expenses. Combined salaries and 
expenses are almost two percent higher than last year, or about 
$65,580. The Committee also included $36,943 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. Based on the Committee's reduced activities in recent years, it 
is funding only ten percent of the shared expenses of the two programs. 
This funding level is similar to that of last year. The Committee 
believes carryover funds, plus assessment and interest income, are 
adequate to cover its estimated expenses of $102,523.
    The assessment rate of $0.60 per ton of salable dried prunes is 
$0.20 higher than the rate currently in effect. The quantity of salable 
dried prunes for the 2007-08 crop year is currently estimated at 95,000 
tons of salable dried prunes, compared to 187,737 tons of salable dried 
prunes for the 2006-07 crop year.
    The major expenditures recommended by the Committee for the 2007-08 
crop year include $50,505 for salaries and benefits, $15,075 for 
operating expenses, and $36,943 for contingencies. Budgeted expenses 
for these items in 2006-07 were $48,662 for salaries and benefits, 
$15,895 for operating expenses, and $13,165 for contingencies.
    The 2007-08 crop year assessment rate was derived after considering 
the handler assessment rate revenue needed to meet anticipated crop 
year expenses; estimated production of salable dried prunes; and the 
estimated income from other sources, such as interest. Therefore, the 
Committee recommended an assessment rate of $0.60 per ton of salable 
dried prunes.
    Prior to arriving at its budget of $102,523, the Committee 
considered information from various sources, including the Committee's 
Executive Subcommittee. Alternative assessment rates, including the 
rate currently in effect, and different expenditure levels were 
discussed by the subcommittee and the Committee. An alternative to this 
action is to continue with the $0.40 per ton assessment rate. However, 
an assessment rate of $0.60 per ton of salable dried prunes, along with 
excess funds from the 2006-07 crop year, is needed to provide enough 
income to fund the Committee's operations.
    Therefore, the Committee agreed that $0.60 per ton of salable dried 
prunes is an acceptable assessment rate. Section 993.81(c) of the order 
provides the Committee the authority to use excess assessment funds 
from the 2006-07 crop year (currently estimated at $45,423) for up to 5 
months beyond the end of the crop year to meet 2007-08 crop year 
expenses. At the end of the 5 months, the Committee either refunds or 
credits excess funds to handlers.
    A review of historical information and preliminary data pertaining 
to the upcoming crop year indicates that the producer price for the 
2007-08 crop year is expected to average between $1,500 and $1,600 per 
ton of salable dried prunes. Based on an estimated 95,000 salable tons 
of dried prunes, assessment revenue as a percentage of producer prices 
during the 2006-07 crop year is expected to be between .038 and .040 
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 
are 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 interested 
persons were invited to attend the meeting and participate in Committee 
deliberations on all issues. Like all Committee meetings, the June 28, 
2007, 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.
    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.
    As noted in the initial regulatory flexibility analysis, USDA has 
not identified any relevant Federal rules that duplicate, overlap, or 
conflict with this rule.
    A proposed rule concerning this action was published in the Federal 
Register on September 7, 2007 (72 FR 51381). Copies of the proposed 
rule were also mailed or sent via facsimile to

[[Page 62412]]

all prune handlers. Finally, the proposal was made available through 
the Internet by USDA and the Office of the Federal Register. A 20-day 
comment period ending September 27, 2007, was provided to allow 
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/fv/moab/html. 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 the 2007-08 
crop year began on August 1, 2007, and the marketing order requires 
that the rate of assessment for each year apply to all assessable 
prunes handled during the year; and handlers are already receiving 
2007-08 crop prunes from growers. The Committee needs to have 
sufficient funds to meet its expenses which are incurred on a 
continuous basis. Further, handlers are aware of this rule which was 
which was unanimously recommended at a public meeting. Also, a 20-day 
comment period was provided for in the proposed rule and no comments 
were received.

List of Subjects in 7 CFR Part 993

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


0
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, 2007, an assessment rate of $0.60 per ton of 
salable dried prunes is established for California dried prunes.

    Dated: October 31, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 07-5503 Filed 11-1-07; 8:57 am]
BILLING CODE 3410-02-P


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