21618 Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations 

exists for not postponing the effective 

date of this rule until 30 days after 

publication in the Federal Register 

because: (1) This rule should be 

implemented as soon as possible, since 

shipments of California nectarines and 

peaches are expected to begin in early 

April; (2) less than the required twothirds majority of voters, by number or 

production volume, favored 

continuance of the nectarine and peach 

orders in the recent referenda; (3) 

handlers are aware of USDA’s intention 

to suspend the regulations, which was 

announced in a press release issued on 

March 25, 2011; and (4) this rule 

provides a 60-day comment period, and 

any comments received will be 

considered prior to finalization of this 

rule. 

List of Subjects 

7 CFR Part 916 

Marketing agreements, Nectarines, 

Reporting and recordkeeping 

requirements. 

7 CFR Part 917 

Marketing agreements, Peaches, Pears, 

Reporting and recordkeeping 

requirements. 

For the reasons set forth in the 

preamble, 7 CFR parts 916 and 917 are 

amended as follows: 

■ 1. The authority citation for 7 CFR 

parts 916 and 917 continues to read as 

follows: 

Authority: 7 U.S.C. 601–674. 

PART 916—NECTARINES GROWN IN 

CALIFORNIA 

■ 2. In part 916, §§ 916.110, 916.115, 

916.234, 916.235, 916.350, and 916.356 

are suspended indefinitely, effective 

April 19, 2011. 

PART 917—FRESH PEARS AND 

PEACHES GROWN IN CALIFORNIA 

■ 3. In part 917, § 917.143, paragraph 

(b), lift the suspensions of March 3, 

1994 (59 FR 10056); and suspend 

§§ 917.143, 917.150, 917.258, 917.259, 

917.442, and 917.459 indefinitely, 

effective April 19, 2011. 

Dated: April 12, 2011. 

David R. Shipman, 

Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2011–9328 Filed 4–15–11; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 924 

[Docket No. AMS–FV–10–0053; FV10–924– 

1 FR] 

Fresh Prunes Grown in Designated 

Counties in Washington and in 

Umatilla County, OR; Termination of 

Marketing Order 924 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule, termination of order. 

SUMMARY: This final rule terminates the 

Federal marketing order regulating the 

handling of fresh prunes grown in 

designated counties in Washington and 

in Umatilla County, Oregon, and the 

rules and regulations issued thereunder. 

The Department of Agriculture (USDA) 

has determined that the marketing order 

is no longer an effective marketing tool 

for the fresh prune industry, and that 

termination best serves the current 

needs of the industry while also 

eliminating the costs associated with the 

operation of the marketing order. 

DATES: Effective Date: April 19, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Martin Engeler, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 2202 

Monterey Street, Suite 102–B, Fresno, 

California 93721, telephone: (559) 487– 

5110, Fax: (559) 487–5906, or E-mail: 

Martin.Engeler@ams.usda.gov; or Robert 

Curry, Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 805 SW Broadway, Suite 

930, Portland, Oregon 97205, telephone: 

(503) 326–2724, Fax: (503) 326–7440, or 

E-mail: Robert.Curry@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Antoinette 

Carter, 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, or E-mail: 

Antoinette.Carter@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This 

action is governed by section 

608c(16)(A) of the Agricultural 

Marketing Agreement Act of 1937, as 

amended (7 U.S.C. 601–674), hereinafter 

referred to as the ‘‘Act’’, and § 924.64 of 

Marketing Agreement and Order No. 

924, both as amended (7 CFR part 924), 

effective under the Act and hereinafter 

referred to as the ‘‘order.’’ 

USDA is issuing this rule in 

conformance with Executive Order 

12866. 

This final 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. 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. 

This rule terminates Federal 

Marketing Order No. 924 and the rules 

and regulations issued thereunder. The 

order contains authority for regulation 

of the handling of fresh prunes grown in 

designated counties in Washington and 

in Umatilla County, Oregon. At a 

meeting held in Prosser, Washington, on 

June 1, 2010, the Committee 

unanimously recommended termination 

of the order. 

Section 924.64 of the order provides, 

in pertinent part, that USDA terminate 

or suspend any or all provisions of the 

order when a finding is made that the 

order does not tend to effectuate the 

declared policy of the Act. Section 

608c(16)(A) of the Act provides that 

USDA terminate or suspend the 

operation of any order whenever the 

order or provision thereof obstructs or 

does not tend to effectuate the declared 

policy of the Act. Additionally, USDA is 

required to notify Congress not later 

than 60 days before the date the order 

would be terminated. 

The order, which was effectuated in 

1960, provided the fresh prune industry 

in Washington and Oregon with 

authority for grade, size, quality, 

maturity, pack, and container 

regulations, as well as authority for 

mandatory inspection. The order also 

contained authorization for production 

research and marketing research and 

development projects, as well as the 

necessary reporting, recordkeeping, and 

assessment functions required for 

operation. 

Based on the Committee’s 

recommendation, USDA suspended the 

order’s handling regulations on May 9, 

2006 (71 FR 26817). The suspended 


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Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations 21619 

handling regulations (§ 924.319) consist 

of minimum quality requirements for 

certain fresh prunes produced within 

the regulated production area. When the 

Committee made the recommendation 

to suspend the handling regulations, the 

industry believed that the costs of 

inspection outweighed the benefits of 

having the regulatory requirements in 

effect. The Committee decided to 

evaluate the marketing conditions 

annually thereafter to determine 

whether to continue the regulatory 

suspension, reinstate handling 

regulations, or take some other action. 

The only regulatory provisions in effect 

after the 2006 suspension were those 

pertaining to collection of assessments 

for the purpose of maintaining the 

functionality of the Committee, and a 

reporting provision that provided a 

basis for assessment collection. 

After four years of operating without 

the quality regulations in effect, the 

Committee, on June 1, 2010, determined 

that the suspension of the regulations 

had not negatively impacted the 

marketing of fresh Washington-Oregon 

prunes. Analysis of the marketing 

conditions between 2006 and 2010, as 

well as an analysis of statistics showing 

that the fresh prune industry has been 

in steady decline over the past several 

decades, led the Committee to conclude 

that the order is no longer an effective 

marketing tool for the fresh prune 

industry, and to subsequently 

recommend termination. 

For the purpose of relieving the 

industry of regulation while the 

termination request was processed, an 

interim rule suspending the order’s 

reporting and assessment requirements 

was published in the Federal Register 

on July 23, 2010 (75 FR 43039). 

Evidence supporting the conclusion 

that the industry has been decreasing in 

scope and volume include statistics 

showing that the Washington-Oregon 

fresh prune industry has fewer 

producers and handlers today then there 

were when the order was promulgated, 

and that acreage and production has 

significantly declined as well. For 

example, USDA Marketing Order 

Administration Branch records from an 

amendatory referendum indicate that 

there were approximately 720 producers 

of fresh prunes in the order’s production 

area in 1974, while the Committee’s 

2010 records show that there were only 

56 active producers. Furthermore, 

Committee records indicate that there 

were 51 handlers in 1961—the year after 

the order was promulgated—as opposed 

to six handlers operating under the 

order in 2010. Committee records also 

indicate that 12,120 tons of fresh prunes 

were shipped in 1961 as compared to 

the 4,260 tons shipped in 2009. Finally, 

data provided by the USDA National 

Agricultural Statistics Service (NASS) 

indicates that prune acreage in 

Washington and Oregon has declined in 

the past 50 years by about 80 percent. 

Final Regulatory Flexibility Analysis 

Pursuant to the 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 the 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. 

During the 2009–2010 marketing year, 

there were six handlers of WashingtonOregon fresh prunes subject to 

regulation under the order and 

approximately 56 fresh prune producers 

in the regulated production area. Small 

agricultural service firms are defined by 

the Small Business Administration 

(SBA) (13 CFR 121.201) as those having 

annual receipts of less than $7,000,000, 

and small agricultural producers are 

defined as those having annual receipts 

of less than $750,000. 

Based on information compiled by 

both the Committee and NASS, the 

average producer price for fresh prunes 

in 2009 was approximately $385 per 

ton. With 4,260 tons of fresh prunes 

shipped from the Washington and 

Oregon production areas in 2009, this 

equates to average producer revenue of 

about $30,000. In addition, AMS Market 

News Service reported that 2009 f.o.b. 

prices ranged from $12.00 to $18.00 per 

30-pound container, indicating that the 

entire Washington-Oregon fresh prune 

industry handled less than $7,000,000 

worth of prunes last season. In view of 

the foregoing, the majority of 

Washington-Oregon fresh prune 

producers and handlers may be 

classified as small entities. 

This rule terminates the Federal 

marketing order for fresh prunes grown 

in Washington and Oregon, including 

the rules and regulations issued 

thereunder. The order contained 

authority to regulate the handling of 

fresh prunes grown in designated 

counties in Washington and in Umatilla 

County, Oregon. 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

chapter 35), the information collection 

requirements being terminated by this 

rule were approved previously by the 

Office of Management and Budget 

(OMB) and assigned OMB No. 0581– 

0189. Termination of the reporting 

requirements is expected to reduce the 

total reporting burden on the handlers 

regulated under the order by about 2.5 

hours, and should also further reduce 

industry expenses. 

USDA has not identified any relevant 

Federal rules that duplicate, overlap or 

conflict with this rule. 

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 

Antoinette Carter at the previously 

mentioned address in the FOR FURTHER

INFORMATION CONTACT section. 

A proposed rule inviting comments 

regarding the termination of Marketing 

Order 924 was published in the Federal 

Register on November 8, 2010 (75 FR 

68510). The rule was made available by 

the Committee to handlers and 

producers. In addition, the rule was 

made available through the Internet by 

the USDA and the Office of the Federal 

Register. The rule provided a 60-day 

comment period which ended on 

January 7, 2011. No comments were 

received. 

Based on the foregoing, and pursuant 

to section 608c(16)(A) of the Act and 

§ 924.64 of the order, it is hereby found 

that Federal marketing order 924 

regulating the handling of fresh prunes 

produced in designated counties in 

Washington, and in Umatilla County, 

Oregon, does not tend to effectuate the 

declared policy of the Act, and is 

therefore terminated. 

Section 8c(16)(A) of the Act requires 

USDA to notify Congress at least 60 

days before terminating a Federal 

marketing order program. Congress was 

so notified on February 2, 2011. USDA 

hereby appoints Committee Chairman 

Paul Rush and Committee SecretaryTreasurer Ron Eakin as trustees to 

conclude and liquidate the affairs of the 

Committee and to continue in such 

capacity until discharged. 

It is further found that good cause 

exists for not postponing the effective 

date of this rule until 30 days after 

publication in the Federal Register 

(5 U.S.C. 553) because: (1) This action 

relieves restrictions on handlers by 

terminating the requirements of the 

fresh prune order; (2) handling 

regulations under the order have been 

suspended since 2006; (3) the 


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21620 Federal Register / Vol. 76, No. 74 / Monday, April 18, 2011 / Rules and Regulations 

Committee unanimously recommended 

termination, and all handlers and 

producers in the industry have been 

notified and provided an opportunity to 

comment; and (4) no useful purpose 

would be served by delaying the 

effective date. 

List of Subjects in 7 CFR Part 924 

Prunes, Marketing agreements, 

Reporting and recordkeeping 

requirements. 

PART 924—[REMOVED] 

■ For the reasons set forth in the 

preamble, and under authority of 7 

U.S.C. 601–674, 7 CFR part 924 is 

removed. 

Dated: April 12, 2011. 

David R. Shipman, 

Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2011–9318 Filed 4–15–11; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 925 

[Doc. No. AMS–FV–10–0104; FV11–925–1 

FR] 

Grapes Grown in Designated Area of 

Southeastern California; Increased 

Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule increases the 

assessment rate established for the 

California Desert Grape Administrative 

Committee (Committee) for the 2011 

and subsequent fiscal periods from 

$0.01 to $0.0125 per 18-pound lug of 

grapes handled. The Committee locally 

administers the marketing order, which 

regulates the handling of grapes grown 

in a designated area of southeastern 

California. Assessments upon grape 

handlers are used by the Committee to 

fund reasonable and necessary expenses 

of the program. The fiscal period began 

January 1 and ends December 31. The 

assessment rate will remain in effect 

indefinitely unless modified, suspended 

or terminated. 

DATES: Effective Date: April 19, 2011. 

FOR FURTHER INFORMATION CONTACT: Jerry 

L. Simmons, Marketing Specialist, or 

Kurt J. Kimmel, Regional Manager, 

California Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (559) 487– 

5901, Fax: (559) 487–5906, or E-mail: 

Jerry.Simmons@ams.usda.gov or 

Kurt.Kimmel@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Antoinette 

Carter, Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence Ave., 

SW., STOP 0237, Washington, DC 

20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, or E-mail: 

Antoinette.Carter@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Order No. 

925, as amended (7 CFR part 925), 

regulating the handling of grapes grown 

in a designated area of southeastern 

California, hereinafter referred to as the 

‘‘order.’’ 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 Department of Agriculture 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. Under the marketing order now 

in effect, grape handlers in a designated 

area of southeastern California are 

subject to assessments. Funds to 

administer the order are derived from 

such assessments. It is intended that the 

assessment rate as issued herein will be 

applicable to all assessable grapes 

beginning on January 1, 2011, and 

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. 

This rule increases the assessment 

rate established for the Committee for 

the 2011 and subsequent fiscal periods 

from $0.01 to $0.0125 per 18-pound lug 

of grapes. 

The grape order provides authority for 

the Committee, with the approval of 

USDA, to formulate an annual budget of 

expenses and collect assessments from 

handlers to administer the program. The 

members of the Committee are 

producers and handlers of grapes grown 

in a designated area of southeastern 

California. They are familiar with the 

Committee’s needs and with the costs 

for 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. 

For the 2009 and subsequent fiscal 

periods, the Committee recommended, 

and the USDA approved, an assessment 

rate that would continue in effect from 

fiscal period to fiscal period unless 

modified, suspended, or terminated by 

USDA upon recommendation and 

information submitted by the 

Committee or other information 

available to USDA. 

The Committee met on October 21, 

2010, and unanimously recommended 

2011 expenditures of $89,616 and an 

assessment rate of $0.0125 per 18-pound 

lug of grapes handled. In comparison, 

last year’s budgeted expenditures were 

$73,666. The assessment rate of $0.0125 

is $0.0025 higher than the rate currently 

in effect. The Committee recommended 

a higher assessment rate to offset the 

2011 budget increases in research, 

general office expenses, management 

and compliance expenses, as well as a 

decreased crop estimate. The Committee 

estimated a decreased 2011 crop of 

6,000,000 18-pound lugs of grapes 

handled, which is about 604,951 18- 

pound lugs fewer than the 6,604,951 18- 

pound lugs handled during the 2010 

fiscal period. Based on increases in 

expenses and a decreased crop estimate, 

the Committee unanimously 

recommended that the assessment rate 

of $0.01 currently in effect be increased 

by $0.0025. Income derived from 

handler assessments, along with funds 

from the Committee’s authorized 

reserve, should be adequate to cover 

budgeted expenses. 

The major expenditures 

recommended by the Committee for the 

2011 fiscal period include $10,000 for 

research, $15,616 for general office 

expenses, and $64,000 for management 

and compliance expenses. The $10,000 

research project is a for a new vine 

study proposed by the University of 

California Riverside. In comparison, 

major expenditures for the 2010 fiscal 

period included no funds for research, 

$13,666 for general office expenses, and 


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