[Federal Register Volume 70, Number 165 (Friday, August 26, 2005)]
[Rules and Regulations]
[Pages 50153-50156]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16996]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 993 and 999

[Docket No. FV05-993-2 FIR]


Dried Prunes Produced in California; Suspension of Handling and 
Reporting Requirements, Extension of the Suspension of Outgoing 
Inspection and Volume Control Regulations, and Extension of the 
Suspension of the Prune Import Regulation

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule; affirmation of interim rule as final rule.

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SUMMARY: The Department of Agriculture (USDA) is adopting, as a final 
rule, without change, an interim final rule suspending indefinitely all 
remaining handling and most reporting requirements under Marketing 
Order No. 993. The marketing order regulates the handling of dried 
prunes produced in California and is administered locally by the Prune 
Marketing Committee (committee). The interim final rule being adopted 
by this action also indefinitely extends the suspensions of the 
outgoing inspection and prune import regulations and volume control 
regulations, currently temporarily suspended until August 1, 2006, and 
August 1, 2008, respectively. The interim final rule was effective 
August 1, 2005.

DATES: Effective September 26, 2005.

FOR FURTHER INFORMATION CONTACT: Terry Vawter, California Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA; telephone: (559) 487-5901, Fax: (559) 
487-5906; or Kathy Finn, Formal Rulemaking Team Leader, 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.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration

[[Page 50154]]

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: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
agreement 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 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.''
    USDA is issuing this rule in conformance with Executive Order 
12866.
    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have a retroactive effect. 
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. A 
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.

SUMMARY: This rule adopts the suspension of the handling and reporting 
requirements under the marketing order and the prune import regulation, 
beginning with the 2005-2006 crop year, and continuing indefinitely. 
The provisions could either be reactivated or terminated. The 2005-2006 
crop year begins on August 1, 2005. This action also adopts the 
extension of the current temporary suspensions of the outgoing 
inspection and the volume control regulations. This rule was 
unanimously recommended by the committee at a meeting on March 15, 
2005.

Marketing Order Authority for Suspension

    Section 993.90(a) of the prune marketing order provides, in part, 
that the Secretary ``shall terminate or suspend the operations of any 
or all of the provisions of the subpart, whenever he finds that such 
provisions do not tend to effectuate the declared policy of the 
``Act.'' Information from the committee, or other sources, may be used 
by the Secretary in making the determination.
    Being cognizant that some growers and packers believe the marketing 
order has become overly complex and restrictive in today's more 
technologically-advanced, global market, the committee has held task 
force meetings over the last two years to solicit input from the 
industry on amending the order. However, little progress has resulted 
from those meetings concerning the best method to streamline the 
existing order and update it to reflect modern packing methods and 
marketing strategies. Thus, at its meeting on March 15, 2005, the 
committee voted unanimously to recommend to USDA that the handling and 
reporting requirements, including the currently-suspended outgoing 
inspection and volume-control regulations, be suspended indefinitely.
    Because the committee would need to obtain information on the 
tonnage received by each handler to properly allocate committee member 
and alternate positions, and to assess handlers for their prorate share 
of expenses, the committee has arranged with the California Department 
of Food and Agriculture and the California Dried Plum Board (CDPB) to 
receive such information as needed from CDPB for this purpose.
    On April 16, 2004, the committee approved a motion to submit a 
request to USDA no later than January 15, 2005, to suspend the 
marketing order for one year, effective August 1, 2005, through July 
31, 2006. At that time, the committee believed that the lead time 
provided by this recommended suspension permits the industry to 
consider what portions of the suspended Federal marketing order should 
be added to the California State marketing order for dried plums.
    In accordance with the committee's April 16, 2004, resolution, on 
December 8, 2004, it recommended to USDA that the marketing order be 
suspended for one crop year, beginning August 1, 2005, and requested 
that the current committee members to be appointed as trustees during 
the suspension period.
    On February 23, 2005, the Executive Committee reconsidered their 
recommendation to suspend the entire order and have the current members 
named as trustees. The Executive Committee made a subsequent 
recommendation to committee to rescind the December 8, 2004, 
recommendation. The Executive Committee then recommended the handling 
and reporting requirements be suspended indefinitely, and forwarded 
that revised recommendation to the full committee, as well. The revised 
recommendation also included extending the temporary suspensions of 
outgoing inspection and volume control regulations, which would have 
ended on August 1 of 2006 and 2008, respectively. As stated earlier, on 
March 15, 2005, the committee revised its recommendation accordingly.

Prune Import Regulations

    Section 8e of the Act provides that when certain domestically-
produced commodities, including prunes, are regulated under a Federal 
marketing order, imports of that commodity must meet the same or 
comparable grade, size, quality, and maturity requirements. Since this 
rule indefinitely suspends the handling regulations, including grade, 
size, and quality requirements, these requirements will continue to be 
suspended in the import regulations. Currently, the prune import 
regulations are suspended through July 31, 2006.
    U.S. imports of dried prunes are insignificant compared to U.S. 
production. In 2002, while the U.S. produced 158,000 tons of dried 
prunes, only 616 tons were imported. In that year, the domestically-
produced tonnage was over 250 times larger than the imported tonnage.
    In recent years, as volumes of domestically-produced prunes have 
fluctuated imports have also fluctuated, but imported prunes continue 
to represent a very small portion of the available prune products in 
the U.S. market.
    Argentina, Chile, France, Mexico, Iran, and Turkey export prunes to 
the United States, with Argentina accounting for approximately 90 
percent of all U.S. imports.

Handling Requirements

    Under the order, Sec. Sec.  993.48 through 993.59, and Sec. Sec.  
993.62 authorized requirements upon handlers to meet grade and size 
requirements, obtain both incoming and outgoing inspection, label 
prunes appropriately, and hold a portion of the crop in reserve. The 
order's rules and regulations establish similar requirements.

[[Page 50155]]

    Currently the provisions for outgoing inspections and reserve 
disposition are suspended in both the order and the order's rules and 
regulations until August 1, 2006, and August 1, 2008, respectively. 
This rule suspends indefinitely all the remaining handling 
requirements.

Reporting Requirements

    Under Sec. Sec.  993.71 through 993.75, the order also includes 
authority to require that handlers file reports with the committee on 
acquisitions, accountings, holdings, uses, sales, and shipments of 
prunes. The order's rules and regulations include similar requirements, 
except that some of these provisions are currently suspended, as they 
relate to volume control requirements.
    This action suspends indefinitely those requirements, along with 
other handling requirements and the reporting requirements.
    As stated previously, the committee would enter into an agreement 
with the CDPB to collect information necessary for allocating committee 
member and alternate member positions and for continuing assessments on 
a limited basis.

A Listing of Marketing Order Provisions To Be Suspended

    As noted, handling and reporting requirements will be suspended 
indefinitely. Included are provisions in the order regarding outgoing 
inspection and volume control regulations, which are currently 
temporarily suspended until August 1, 2006, and August 1, 2008, 
respectively.
    In a conforming action, the provisions related to marketing policy 
are suspended, as well. Under the order the committee is required to 
establish a marketing policy annually if handling requirements are 
recommended. If no handling regulations are recommended due to 
suspension, no marketing policy statement is required.
    Certain provisions and parts of certain provisions are currently 
suspended until a specified time. This rule will indefinitely suspend 
those provisions or parts of certain provisions, as well as additional 
provisions. The following list of provisions or parts of provisions 
being suspended are listed below chronologically and notations are made 
to clarify which provisions or parts of provisions are currently 
suspended.
    Section 993.21d Reserve prunes (currently suspended through 2008)
    Section 993.33 Voting procedure (partially suspended through 2008)
    Section 993.36(i) Duties (currently suspended through 2008)
    Section 993.41 Marketing policy
    Section 993.48 Regulation
    Section 993.49 Incoming regulation
    Section 993.50 Outgoing regulation (partially suspended through 
2006)
    Section 993.51 Inspection and certification (partially suspended 
through 2006)
    Section 993.52 Modification
    Section 993.53 Above parity situations
    Section 993.54 Establishment of salable and reserve percentages 
(currently suspended through 2008)
    Section 993.55 Application of salable and reserve percentages after 
end of crop year (currently suspended through 2008)
    Section 993.56 Reserve obligation (currently suspended through 
2008)
    Section 993.57 Holding requirement and delivery (currently 
suspended through 2008)
    Section 993.58 Deferment of time for withholding (currently 
suspended through 2008)
    Section 993.59 Payment to handlers for services (currently 
suspended through 2008)
    Section 993.62 Diversion privileges (currently suspended through 
2008)
    Section 993.65 Disposition of reserve prunes (currently suspended 
through 2008)
    Section 993.72 Reports of acquisitions, sales, uses, and shipments
    Section 993.73 Other reports
    Section 993.74 Records
    Section 993.75 Verification of reports
    Section 993.97 Exhibit A; minimum standards (partially suspended 
through 2006)
    Section 993.104 Lot
    Section 993.105 Size count
    Section 993.106 In-line inspection
    Section 993.107 Floor inspection
    Section 993.108 Non-human consumption outlet
    Section 993.149 Receiving of prunes by handlers
    Section 993.150 Disposition of prunes by handlers (partially 
suspended through 2006)
    Section 993.156 Application of reserve percentage (currently 
suspended through 2008)
    Section 993.157 Holding and delivery of reserve prunes (currently 
suspended through 2008)
    Section 993.158 Deferment of reserve withholding (currently 
suspended through 2008)
    Section 993.159 Payments for services performed with respect to 
reserve tonnage prunes (currently suspended through 2008)
    Section 993.162 Voluntary prune plum diversion (currently suspended 
through 2008)
    Section 993.165 Disposition of reserve prunes (currently suspended 
through 2008)
    Section 993.172 Reports of holdings, receipts, uses, and shipments 
(partially suspended through 2008)
    Section 993.173 Reports of accounting (partially suspended through 
2008)
    Section 993.174 Records
    Section 993.400 Modifications
    Section 993.409 Undersized prune regulation for the 2002-03 crop 
year
    Section 993.501 Consumer package of prunes
    Section 993.503 Size category
    Section 993.504 In-line inspection
    Section 993.505 Floor inspection
    Section 993.506 Lot
    Section 993.515 Size categories (currently suspended through 2006)
    Section 993.516 Tolerance and limitations (currently suspended 
through 2006)
    Section 993.517 Identification (currently suspended through 2006)
    Section 993.518 Compliance (currently suspended through 2006)
    Section 993.601 More restrictive grade regulation (partially 
suspended through 2006)
    Section 993.602 Maximum tolerances

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 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 1,100 producers of dried prunes in the 
production area and approximately 22 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 of less than $750,000, and small agricultural service 
firms are defined as those whose annual receipts are less than 
$6,000,000.
    An industry profile shows that 8 out of 21 handlers (38 percent) 
shipped over $6,000,000 worth of dried prunes in

[[Page 50156]]

2003 and could be considered large handlers by the Small Business 
Administration. Thirteen of the 21 handlers (62 percent) shipped under 
$6,000,000 worth of prunes and could be considered small handlers. An 
estimated 32 producers, or less than 3 percent of the 1,100 total 
producers, would be considered large growers with annual incomes over 
$750,000. The majority of handlers and producers of California dried 
prunes may be classified as small entities.
    In addition, there are an estimated 30 importers, and one third-
party entity that performs inspections under the order. USDA does not 
have precise information on these entities, but believes that the 
majority of the importers and the third-party inspection agency are 
small entities.
    As recommended by the Committee, this rule indefinitely suspends 
handling and reporting requirements under the marketing order, 
including extending the temporary suspensions of outgoing inspection 
requirements and reporting regulations and the import regulations.

Impact of the Regulation

    This action reduces the reporting and recordkeeping requirements 
for California prune handlers and importers; and reduces the 
committee's, prune handlers', and prune importers' associated 
administrative costs. This action also reduces the number of 
inspections performed by the inspection agency for both handlers and 
importers.
    The benefits of this final rule are expected to accrue to all prune 
handlers and importers regardless of their size.

Alternatives Considered

    The deliberations about suspension of the marketing order for one 
year began at meetings held on April 3 and May 1, 2003, and continued 
to the present. In April 2004, the committee believed that such a 
suspension provides the industry with an opportunity to operate without 
regulation. For some members, a suspension was preferable to 
termination.
    At the December 8, 2004, meeting, the committee discussed the 
impact of and alternatives to suspending the entire marketing order, 
and at the February 23, 2005, Executive Committee meeting, the members 
and industry representatives discussed the impact of and alternatives 
to suspending handling and reporting requirements, including extending 
the current suspensions of outgoing inspection requirements and 
reporting regulations.
    At the March 15, 2005, committee meeting, the members received the 
recommendations of the Executive Committee and, being in unanimous 
accord, voted to rescind their previous recommendation to suspend the 
entire order in favor of recommending that the handling and reporting 
requirements be suspended indefinitely, including the currently-
suspended outgoing inspection and volume control regulations.
    The suspension permits the industry to operate for an indefinite 
period of time without most order requirements. This will allow growers 
and handlers time to consider which provisions in the marketing order 
might continue to meet their future needs.
    This rule will not impose any additional reporting or recordkeeping 
requirements on either small or large California dried prune handlers. 
On the contrary, this action will remove reporting requirements on all 
prune handlers indefinitely. 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.
    The Department has not identified any relevant Federal rules that 
duplicate, overlap or conflict with this final rule.
    In addition, the committee's meetings were widely publicized 
throughout the prune industry and all interested persons were invited 
to attend the meeting and participate in committee deliberations on all 
issues at any meeting in the last two years, including task force 
meetings. Like all committee meetings, the April 16 and December 8, 
2004, meetings; and the February 23 and March 15, 2005, meetings were 
public meetings; and all entities, both large and small, were 
encouraged to express views on this issue. The committee itself is 
composed of twenty-two members. Seven are handlers, fourteen are 
producers, and one is a public member. Moreover, the committee, its 
Executive Committee, and the marketing order task force, provide broad 
industry representation. Thus, this rule reflects their considerable 
deliberations and determinations. Finally, interested persons were 
invited to submit information on the regulatory and informational 
impacts of this action on small business.
    Further, the Committee's meeting was widely publicized throughout 
the Prune industry and all interested persons were invited to attend 
the meeting and participate in Committee deliberations. Like all 
Committee meetings, the March 15, 2005, meeting was a public meeting 
and all entities, both large and small, were able to express their 
views on this issue.
    An interim final rule concerning this action was published in the 
Federal Register on May 27, 2005. Copies of the rule were mailed by the 
Committee staff to all Committee members and Prune handlers. In 
addition, the rule was made available through the Internet by USDA and 
the Office of the Federal Register. That rule provided for a 60-day 
comment period which ended July 26, 2005. 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.
    The U.S. Trade Representative has reviewed this final rule and 
concurs with its issuance.
    After consideration of all relevant material presented, including 
the committee's recommendation, and other information, it is found that 
finalizing the interim final rule, without change, as published in the 
Federal Register (70 FR 30610, May 27, 2005) will tend to effectuate 
the declared policy of the Act.

List of Subjects

7 CFR Part 993

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

7 CFR Part 999

    Dates, Filberts, Food grades and standards, Imports, Nuts, Plums, 
Prunes, Raisins, Reporting and recording keeping requirements, Walnuts.

0
Accordingly, the interim final rule amending 7 CFR Part 993 and 999 
which was published at 70 FR 30610 on May 27, 2005, is adopted as a 
final rule without change.

    Dated: August 22, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-16996 Filed 8-25-05; 8:45 am]
BILLING CODE 3410-02-P