[Federal Register Volume 89, Number 37 (Friday, February 23, 2024)]
[Rules and Regulations]
[Pages 13587-13589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03630]



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 Rules and Regulations
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  Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / 
Rules and Regulations  

[[Page 13587]]



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: Final rule.

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SUMMARY: This final rule suspends the Federal marketing order 
regulating dried prunes produced in California (Order) effective August 
1, 2023, through July 31, 2030. 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 extends through the end of 
the 2029-2030 crop year and provides 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 will proceed to terminate the Order.

DATES: This rule is effective March 25, 2024, except for amendatory 
instruction 3 staying part 993, which is effective August 1, 2023, 
through July 31, 2030, stay part 993.

FOR FURTHER INFORMATION CONTACT: Jeremy Sasselli, Marketing Specialist, 
or Barry Broadbent, Acting 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 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 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 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.
    AMS is issuing this final rule in conformance with Executive Orders 
12866 and 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 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 have 
Tribal implications. AMS has determined that this 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 rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect.
    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 final rule suspends the Order's regulatory provisions. The 
Committee recommended this action at its March 22, 2023, meeting. 
Section 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

[[Page 13588]]

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 suspension, handlers would no longer be required to pay 
assessments. The Committee believes this cost savings benefits both 
small and large handlers, and that producers will 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 will then issue a rule proposing 
termination of the Order. The Committee agrees 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 final rule lifts the portions of the Order currently under 
suspension and suspends the entire Order for seven years, beginning in 
the 2023-2024 crop year, which started on August 1, 2023, 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 suspension 
period, AMS will issue a proposal to terminate the Order.

Final 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 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. 
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 final rule suspends all provisions of the Order starting 
August 1, 2023, through July 31, 2030. 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 the suspension will 
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 suspension period, AMS will 
proceed to terminate the Order.
    This action suspends 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 expires March 31, 2024. AMS's submission of the renewal package 
prior to its expiration will retain prune forms but will drawdown the 
information collection burden to

[[Page 13589]]

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 final rule does 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 action.
    A proposed rule concerning this action was published in the Federal 
Register on October 12, 2023 (88 FR 70608). Copies of the proposed rule 
were also mailed or sent via email to California prune handlers. A copy 
of the proposed rule was made available through the internet by AMS via 
https://www.regulations.gov. A 30-day comment period ending November 
13, 2023, was provided for interested persons to respond to the 
proposal. AMS received two comments. The first comment was in support 
of the proposal. The second commenter presented an alternative to the 
proposed suspension to transfer all remaining marketing order 
provisions over to the State of California Department of Food and 
Agriculture. In response to the second comment, the Committee 
determined, and AMS agrees, 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. 
Additionally, AMS determined that the suspension period, as established 
herein, will provide ample time for the consideration of other 
marketing programs should the prune industry choose to seek out such 
alternatives and request that AMS terminate the Order prior to the end 
of the suspension period. However, if no such request to terminate 
early is submitted or, conversely, a petition for reinstatement is not 
received during the suspension period, AMS will proceed with 
terminating the Order at end of the 2029-2030 crop year.
    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, AMS has determined that this rule tends to 
effectuate the declared policy of the Act.

List of Subjects in 7 CFR Part 993

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

    For the reasons set forth in the preamble, the Agricultural 
Marketing Service amends 7 CFR part 993 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. Effective March 25, 2024, 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. Effective August 1, 2023, through July 31, 2030, stay part 993.

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2024-03630 Filed 2-22-24; 8:45 am]
BILLING CODE 3410-02-P