Dried Prunes Produced in California; Increased Assessment Rate, 14481-14484 [2023-04810]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 88, Number 46 (Thursday, March 9, 2023)]
[Rules and Regulations]
[Pages 14481-14484]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04810]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Doc. No. AMS-SC-22-0053]


Dried Prunes Produced in California; Increased Assessment Rate

AGENCY: Agricultural Marketing Service, Department of Agriculture 
(USDA).

ACTION: Final rule.

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SUMMARY: This rule implements a recommendation from the Prune Marketing 
Committee (Committee) to increase the assessment rate established

[[Page 14482]]

for the 2022-23 crop year. The assessment rate will remain in effect 
indefinitely unless modified, suspended, or terminated.

DATES: Effective April 10, 2023.

FOR FURTHER INFORMATION CONTACT: Jeremy Sasselli, Marketing Specialist, 
or Gary Olson, Chief, Western Region Field Office, Market Development 
Division, Specialty Crops Program, AMS, USDA; Telephone: (559) 487-
5901, or Email: [email protected] or [email protected].
    Small businesses may request information on complying with this 
regulation by contacting Richard Lower, Market Development Division, 
Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 
0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, or Email: 
[email protected].

SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, 
amends regulations issued to carry out a marketing order as defined in 
7 CFR 900.2(j). This final 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. Part 993 
(referred to as 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 Committee locally 
administers the Order and is comprised of producers and handlers of 
dried prunes operating within the area of production, and one public 
member.
    The Agricultural Marketing Service (AMS) is issuing this final rule 
in conformance with Executive Orders 12866 and 13563. Executive Orders 
12866 and 13563 direct agencies to assess all costs and benefits of 
available regulatory alternatives and, if regulation is necessary, to 
select regulatory approaches that maximize net benefits (including 
potential economic, environmental, public health and safety effects, 
distributive impacts and equity). Executive Order 13563 emphasizes the 
importance of quantifying both costs and benefits, reducing costs, 
harmonizing rules, and promoting flexibility. This action falls within 
a category of regulatory actions that the Office of Management and 
Budget (OMB) exempted from Executive Order 12866 review.
    This final rule has been reviewed under Executive Order 13175--
Consultation and Coordination with Indian Tribal Governments, which 
requires agencies to consider whether their rulemaking actions would 
have tribal implications. AMS has determined that this final rule is 
unlikely to have substantial direct effects on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes.
    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. Under the Order now in effect, California prune 
handlers are subject to assessments. Funds to administer the Order are 
derived from such assessments. The assessment rate is applicable to all 
assessable dried prunes for the 2022-23 crop year and will 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.
    The Order provides authority for the Committee, with the approval 
of AMS, to formulate an annual budget of expenses and collect 
assessments from handlers to administer the program. The members are 
familiar with the Committee's needs and with the costs of 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.
    This final rule increases the assessment rate from $0.28 per ton of 
assessed dried prunes, the rate that was established for the 2020-21 
and subsequent crop years, to $0.33 per ton of assessed dried prunes 
for the 2022-23 and subsequent crop years.
    The Committee met on June 28, 2022, and unanimously recommended 
2022-23 crop year expenditures of $26,700 and an assessment rate of 
$0.33 per ton of assessed dried prunes to fund administrative expenses. 
In comparison, last year's budgeted expenditures were $26,212. The 
assessment rate of $0.33 per ton is $0.05 higher than the rate 
currently in effect. The Committee projects handler receipts of 75,000 
tons of assessable dried prunes from the 2022-23 crop year, which is 
the same level that was projected for the 2021-22 crop year.
    Dried prunes harvested in 2022 will be marketed over the course of 
the 2022-23 crop year, which begins on August 1, 2022. The expected 
75,000 tons of assessable dried prunes from the 2022 crop should 
generate $24,750 in assessment revenue. The $1,950 balance of funds 
needed to cover budgeted expenditures will come from funds carried over 
from the previous crop year. The 2022-23 crop year assessment rate 
increase will be adequate, along with carryover funds, to cover 2022-23 
crop year budgeted expenditures.
    The crop year is a 12-month period that begins on August 1 of each 
year and ends on July 31 of the following year. The Committee expects 
that 2022-23 crop year production will be 75,000 tons of assessable 
fruit. The Committee used the projected 75,000-ton production estimate 
in determining its assessment rate recommendation for the 2022-23 crop 
year.
    The major expenditures recommended by the Committee for the 2022-23 
crop year include $14,935 for personnel costs, $11,125 for operating 
expenses, and $640 for reserve for contingencies. Budgeted expenditures 
for the 2021-22 crop year were $14,025, $12,000, and $187, 
respectively.
    The Committee derived the recommended assessment rate by 
considering anticipated crop year expenses, actual prune tonnage 
received by handlers during the 2021-2022 crop year, and the 
anticipated funds that will be carried over into the new crop year. 
Income derived from handler assessments and the balance carried over 
from the previous crop year is expected to be adequate to cover 
budgeted expenses. The assessment rate established in this rule will 
continue in effect indefinitely unless modified, suspended, or 
terminated by AMS 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

[[Page 14483]]

are available from the Committee or AMS. Committee meetings are open to 
the public and interested persons may express their views at these 
meetings. AMS will 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 budget for subsequent crop years would be 
reviewed and, as appropriate, approved by AMS.

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 final 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 
businesses 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 600 producers of dried prunes in the 
production area and 27 handlers subject to regulation under the Order. 
The SBA threshold for producers and handlers changed after the 
publication of the proposed rule. Thus, AMS changed the thresholds to 
reflect the new SBA thresholds in this final rule. The changes do not 
impact AMS's ultimate determination regarding the impact of the rule on 
small entities. Small agricultural producers of prunes are defined by 
the Small Business Administration (SBA) as those having annual receipts 
less than $3,500,000, and small agricultural service firms are defined 
as those whose annual receipts are less than $34,000,000 (13 CFR 
121.201).
    According to the National Agricultural Statistics Service (NASS), 
the average producer price for California dried prunes for the 2021 
crop was $2,000 per ton. NASS further reported 2021 crop year 
production for California dried prunes was 74,000 tons. The estimated 
total 2021-22 crop year value of California dried punes is $148,000,000 
(74,000 tons times $2,000 per ton equals $148,000,000). Dividing the 
estimated total crop value by the estimated number of producers (600) 
yields an estimated average receipt per producer of $246,667, which is 
considerably lower than the $3,500,000 SBA small agricultural producer 
threshold.
    In addition, according to USDA Market News data, the reported 
average terminal market price for 2021 for California dried prunes was 
$38.93 per carton. Dividing the average carton price by the 28-pound 
carton size yields an estimated price per pound of $1.39 ($38.93 
average price divided by 28 pounds). Multiplying $1.39 per pound by 
2,000 pounds yields $2,780 per ton, which, when multiplied by total 
estimated 2021 production of 74,000 tons, yields estimated total 
handler receipts of $205,720,000. Dividing this figure by the 27 
regulated handlers yields estimated average annual handler receipts of 
$7,619,259, well below the $34 million SBA threshold for small 
agricultural service firms. Therefore, using the above data, the 
majority of producers and handlers of California dried prunes may be 
classified as small entities.
    This final rule increases the assessment rate collected from 
handlers for the 2022-23 and subsequent crop years from $0.28 to $0.33 
per ton of assessable dried prunes. The Committee unanimously 
recommended 2022-23 crop year expenditures of $26,700 and an assessment 
rate of $0.33 per ton. The assessment rate of $0.33 is $.05 higher than 
the assessment rate currently established. The Committee expects the 
industry to handle 75,000 tons during the 2022-23 crop year. Income 
derived from the $0.33 per ton assessment rate, along with funds 
carried over from the previous crop year, should be adequate to meet 
the 2022-23 crop year's budgeted expenditures. The Committee expects 
$1,950 to be carried over into the 2022-23 crop year, which begins 
August 1, 2022.
    The major expenditures recommended by the Committee for the 2022-23 
crop year include $14,935 for personnel costs, $11,125 for operating 
expenses, and $640 for contingency reserve. Budgeted expenses for these 
items during the 2021-22 crop year were $14,025 for personnel costs, 
$12,000 for operating expenses, and $187 for contingency reserve. The 
Committee deliberated the budget categories and decreased their budget 
for office supplies and expenses to account for the 2022-23 crop year 
being a non-election year, therefore requiring fewer office supplies. 
Overall, the 2022-23 crop year budget of $26,700 is $488 more than the 
$26,212 budgeted for the 2021-22 crop year.
    Prior to arriving at this budget and assessment rate, the Committee 
considered information from various sources including the Committee's 
Executive, Marketing, Inspection, and Research subcommittees. Alternate 
expenditure levels were discussed by these groups, based upon the 
relative value of various projects to the dried prune industry and the 
expected dried prune production. The assessment rate of $0.33 per ton 
of assessable dried prunes was derived by considering anticipated 
expenses, the projected volume of assessable dried prunes, the current 
monetary balance expected to be carried into the upcoming crop year, 
and additional pertinent factors.
    A review of NASS information indicates that the average producer 
price for the 2021-22 crop year was $2,000 per ton and the estimated 
quantity of assessable dried prunes harvested in the 2021-22 crop year 
is 74,000 tons, which yields a total estimated producer revenue of 
$148,000,000 ($2,000 multiplied by 74,000 tons). Therefore, utilizing 
the increased assessment rate of $.33 per ton, assessment revenue for 
the 2021-22 crop year, as a percentage of total producer revenue, will 
be approximately 1.65 percent ($0.33 multiplied by 74,000 tons divided 
by $148,000,000 multiplied by 100).
    This final rule increases 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, these costs are 
expected to be offset by the benefits derived by the operation of the 
Order.
    The Committee's meetings are widely publicized throughout the 
production area. The dried prune industry and all interested persons 
are invited to attend the meetings and participate in Committee 
deliberations on all issues. Like all Committee meetings, the June 28, 
2022, meeting was a public meeting and all entities, both large and 
small, were able to express views on this issue. In addition, 
interested persons were invited to submit comments on the proposed 
rule, including the regulatory and information collection 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 OMB and assigned OMB No. 0581-0178 Vegetable and 
Specialty Crops. 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 final rule would not impose any additional reporting or 
recordkeeping requirements on either small or large

[[Page 14484]]

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 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 November 7, 2022 (87 FR 66958). Copies of the proposed rule 
were also mailed or sent via email to all handlers of prunes produced 
in California. The proposal was made available through the internet by 
AMS and https://www.regulations.gov. A 30-day comment period ending 
December 7, 2022, was provided for interested persons to respond to the 
proposal. One comment in favor of the proposal was received. 
Accordingly, no changes will be made to the rule as proposed.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: 
https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any 
questions about the compliance guide should be sent to Richard Lower at 
the previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    After consideration of all relevant material presented, including 
the information and recommendations submitted by the Committee and 
other available information, it is hereby found that this rule will 
tend to effectuate the declared policy of the Act.

List of Subjects in 7 CFR Part 993

    Marketing agreements, Plum, 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 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, 2022, an assessment rate of $0.33 per ton of 
salable dried prunes is established for California dried prunes.

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2023-04810 Filed 3-8-23; 8:45 am]
BILLING CODE 3410-02-P