[Federal Register Volume 88, Number 196 (Thursday, October 12, 2023)]
[Proposed Rules]
[Pages 70608-70610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22333]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 88, No. 196 / Thursday, October 12, 2023 / 
Proposed Rules  

[[Page 70608]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 993

[Doc. No. AMS-SC-23-0021]


Dried Prunes Produced in California; Suspension of the Marketing 
Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would suspend the Federal marketing order 
regulating dried prunes produced in California (Order) effective at the 
beginning of the 2023-2024 crop year. After operating for 18 years 
without handling regulations, the Prune Administrative Committee 
(Committee) recommended the Agricultural Marketing Service (AMS) 
indefinitely suspend the Order. After reviewing the Committee's 
recommendation, AMS determined that regulatory suspension with a sunset 
provision of seven years is appropriate. This suspension period would 
extend through the end of the 2029-2030 crop year and would provide 
industry sufficient time to assess whether the Order's reinstatement is 
beneficial. If no recommendation is made by the Committee to reinstate 
the Order by the end of the 2029-2030 crop year, AMS would proceed to 
terminate the Order.

DATES: Comments must be received by November 13, 2023 to be assured 
consideration.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposed rule. Comments may be sent to the Docket 
Clerk, Market Development Division, Specialty Crops Program, AMS, USDA, 
1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237. 
Comments may also be sent to the Docket Clerk electronically by Email: 
[email protected] or via the internet at: https://www.regulations.gov. Comments should reference the document number and 
the date and page number of this issue of the Federal Register. All 
comments submitted in response to this proposed rule will be included 
in the record and will be made available to the public and can be 
viewed at: https://www.regulations.gov. 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: Jeremy Sasselli, Marketing Specialist, 
or Gary Olson, Chief, West Region Branch, 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) 720-8085, or Email: 
[email protected].

SUPPLEMENTARY INFORMATION: This proposed action, pursuant to 5 U.S.C. 
553, proposes to amend regulations issued to carry out a marketing 
order as defined in 7 CFR 900.2(j). This proposed 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 
produced 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 
Prune Administrative Committee (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 proposed 
rule in conformance with Executive Orders 12866, 13563, and 14094. 
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. Executive 
Order 14094 reaffirms, supplements, and updates Executive Order 12866 
and further directs agencies to solicit and consider input from a wide 
range of affected and interested parties through a variety of means. 
This action falls within a category of regulatory actions that the 
Office of Management and Budget (OMB) exempted from Executive Order 
12866 review.
    This proposed 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 proposed 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 proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This proposed rule is not intended to have 
retroactive effect, prior to crop year 2023-2024.
    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 the United States 
Department of Agriculture (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 proposed rule would suspend the Order's regulatory provisions. 
The Committee recommended this action at its March 22, 2023, meeting. 
Section

[[Page 70609]]

993.90(a) of the Order provides that the Secretary shall terminate or 
suspend the operation of any or all of the provisions of the Order, 
whenever the Secretary finds that such provisions do not tend to 
effectuate the declared policy of the Act.
    The Committee meets regularly to consider recommendations for 
modification, suspension, or termination of the Order, and such 
meetings are open to the public where interested persons may express 
their views at these meetings. AMS reviews Committee recommendations, 
including information provided by the Committee and from other 
available sources, and determines whether such recommendations would 
tend to effectuate the declared policy of the Act.
    On May 27, 2005, following a recommendation from the Committee, AMS 
indefinitely suspended handling and reporting requirements under the 
Order, extended the temporary suspension of outgoing inspection and 
volume control regulations, and extended the temporary suspension of 
the Prune Import Regulation (70 FR 30610). Since 2005, the Committee 
has continued to perform the administrative duties prescribed under the 
Order, including the collection of assessments, conducting Committee 
nominations, and assessing whether to recommend a marketing policy, 
which may include handling regulations.
    On March 22, 2023, the Committee held a public meeting to consider 
the future of regulation under the Order. The Committee determined that 
the 2005 suspension of handling and volume regulations did not 
adversely impact the marketing of California prunes and that there is 
no value in funding the administrative duties prescribed under the 
Order when the handling regulations and reserve control provisions are 
not in effect. The Committee discussed terminating the Order but 
rejected the idea because its members believe the sector of industry is 
not yet ready to terminate, given the length of time and expense that 
would be required to establish a new marketing order should regulation 
again be deemed necessary in the future. In addition, several Committee 
members expressed the opinion that future market conditions may warrant 
regulation, particularly volume control, and urged the Committee not to 
terminate the Order at this time. After much deliberation, the 
Committee voted unanimously to indefinitely suspend the Order with the 
expectation that the Order would either remain indefinitely suspended 
or AMS would at a future time act to terminate the Order if no 
recommendation for reinstatement is submitted by industry. In the event 
of no such recommendation for reinstatement, the Committee would take 
the necessary steps to ensure an orderly and complete termination of 
the Order.
    The Committee recommended to AMS the Order's suspension for an 
indefinite period to allow for the reinstatement of regulation to 
remain an option and to provide industry time to assess the market 
environment and other external factors affecting California prunes. 
Under the proposed suspension, handlers would no longer be required to 
pay assessments. The Committee believes this cost savings would benefit 
both small and large handlers, and that producers would also be 
relieved of some costs because such payments are often passed onto them 
by handlers.
    After reviewing the Committee's recommendation and supporting 
materials, AMS included a sunset provision that if no recommendation is 
received by July 31, 2030, AMS would then issue a rule proposing 
termination of the Order. The Committee agreed that a suspension period 
of seven years is adequate time for the California prune industry to 
assess future market conditions and reestablishment of the Order, if 
warranted. This proposed rule would lift the portions of the Order 
currently under suspension and then suspend the entire Order for seven 
years, beginning with the 2023-2024 crop year and ending with the 2029-
2030 crop year, which ends on July 31, 2030. If industry does not 
recommend reinstating the Order by the end of the proposed suspension 
period, AMS will issue a proposal to terminate the Order.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of 
this proposed 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 
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. 
Small agricultural producers 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 prunes 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 2022 for California dried prunes was 
$39.04 per carton. Dividing the average carton price by the 28-pound 
carton size yields an estimated price per pound of $1.39. ($39.04 
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 proposed rule would suspend all provisions of the Order 
starting with the 2023-2023 crop year, through the 2029-2030 crop year. 
On March 22, 2023, the Committee voted unanimously to indefinitely 
suspend the Order after determining that the 2005 suspension of 
handling regulations, volume control and reporting requirements did not 
negatively impact the marketing of California prunes and that the costs 
to continue the Order outweighs its benefit to industry. The Committee 
believes that such suspension would provide a cost savings to large and 
small handlers and producers.
    After reviewing the Committee's recommendation and other supporting 
material, AMS included a sunset provision that if no recommendation for 
reinstatement is received during the proposed suspension period, AMS

[[Page 70610]]

would then proceed to terminate the Order.
    This action would suspend the Federal marketing order regulating 
dried prunes produced in California though July 31, 2030. Authority for 
this action is provided in section 993.90(a) of the Order.
    Committee meetings are widely publicized throughout the production 
area. The California dried prune industry and all interested persons 
are invited to attend the meetings and participate in Committee 
deliberations on all issues. Similarly, the March 22, 2023, meeting was 
a public meeting and all entities, both large and small, were able to 
express views on this issue.
    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 
Crops. OMB's three-year approval of the forms in the Vegetable Crops 
package expire March 31, 2024. AMS' submission of the renewal package 
prior to its expiration will retain prune forms but will drawdown the 
information collection burden to zero during the time when respondents 
will not be completing and submitting the forms during the seven-year 
suspension. Should any changes become necessary, they would be 
submitted to OMB for approval.
    This proposed rule would not impose any 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.
    AMS has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this proposed rule.
    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.
    A 30-day comment period is provided to allow interested persons to 
respond to this proposed rule. All written comments timely received 
will be considered before a final determination is made on this rule.

List of Subjects in 7 CFR Part 993

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

    For the reasons set forth in the preamble, the Agricultural 
Marketing Service proposes to amend 7 CFR part 993 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. In Part 993, lift the suspension of May 27, 2005, on Sec. Sec.  
993.21d, 993.41, 993.48, 993.49, 993.50, 993.51, 993.52, 993.53, 
993.54, 993.55, 993.56, 993.57, 993.58, 993.59, 993.62, 993.65, 993.72, 
993.73, 993.74, 993.75, 993.97, 993.104, 993.105, 993.106, 993.107, 
993.108, 993.149, 993.150, 993.156, 993.157, 993.158, 993.159, 993.162, 
993.165, 993.172, 993.173, 993.174, 993.400, 993.409, 993.501, 993.503, 
993.504, 993.505, 993.506, 993.515, 993.516, 993.517, 993.518, 993.601, 
and 993.602.

PART 993--[STAYED]

0
3. Stay 7 CFR part 993 until July 31, 2030.

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2023-22333 Filed 10-11-23; 8:45 am]
BILLING CODE P