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[Federal Register Volume 76, Number 74 (Monday, April 18, 2011)]
[Rules and Regulations]
[Pages 21618-21620]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-9318]

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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.

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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 
Sec.  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

[[Page 21619]]

handling regulations (Sec.  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 
Washington-Oregon 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 Sec.  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 Secretary-Treasurer 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

[[Page 21620]]

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]

0
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
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