Dried Prunes Produced in California; Suspension of the Marketing Order
| Published date | 23 February 2024 |
| Record Number | 2024-03630 |
| Citation | 89 FR 13587 |
| Court | Agricultural Marketing Service |
| Section | Rules and Regulations |
Federal Register, Volume 89 Issue 37 (Friday, February 23, 2024)
[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
Federal Register
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having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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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
