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[Federal Register Volume 75, Number 215 (Monday, November 8, 2010)]
[Proposed Rules]
[Pages 68510-68512]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-28046]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 924

[Doc. No. AMS-FV-10-0053; FV10-924-1 PR]

Fresh Prunes Grown in Designated Counties in Washington and in 
Umatilla County, OR; Termination of Marketing Order 924

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This rule invites comments on the proposed termination of 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. Marketing Order No. 
924 is administered locally by the Washington-Oregon Fresh Prune 
Marketing Committee (Committee), which unanimously recommended 
termination of the marketing order at a meeting held on June 1, 2010. 
This recommendation is based on the Committee's determination that this 
order is no longer an effective marketing tool for the fresh prune 
industry, and that termination would best serve the current needs of 
the industry while also eliminating the costs associated with the 
operation of the marketing order.

DATES: Comments must be received by January 7, 2011.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this proposal. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. All comments should reference the document number 
and the date and page number of this issue of the Federal Register and 
will be made available for public inspection in the Office of the 
Docket Clerk during regular business hours, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this rule 
will be included in the record and will be made available to the 
public. 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: 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, 1220 SW 
Third Avenue, Suite 385, Portland, Oregon 97068, 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 proposed rule is governed by Sec.  
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''.
    The Department of Agriculture (USDA) is issuing this rule in 
conformance with Executive Order 12866.
    This proposal to terminate the order 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

[[Page 68511]]

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 proposes to terminate the order 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. In addition, section 608c(16)(A) of the Act provides that 
USDA terminate or suspend the operation of any order whenever the order 
or any 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 has been in effect since 1960 and has provided the fresh 
prune industry in Washington and Oregon with authority for grade, size, 
quality, maturity, pack, and container regulations, as well as the 
authority for mandatory inspection. The order also authorizes 
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 
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 since 2006 have 
been collection of assessments to maintain the functionality of the 
Committee, and a reporting provision that provides a basis for 
assessment collection.
    After four years of evaluating the effects of operating without the 
quality regulations, the Committee has determined that the suspension 
of the regulations has not negatively impacted the marketing of fresh 
Washington-Oregon prunes. Analysis of the marketing conditions over the 
past four years, 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 that 
termination would be the best means of relieving the industry of the 
costs and burdens associated with the order.
    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 most 
recent information received from the Committee indicates that there are 
now only 56 currently active producers. Furthermore, Committee records 
indicate that there were 51 handlers in 1961--the year after the order 
was promulgated--as opposed to the six currently operating handlers. 
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.
    This proposed termination of the order is intended to solicit input 
and any additional information available from interested parties 
regarding whether the order should be terminated. USDA will evaluate 
all available information prior to making a final determination on this 
matter. Termination of the order would become effective only after a 
60-day notification to Congress as required by law.

Initial Regulatory Flexibility Analysis

    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing 
Service (AMS) has considered the economic impact of this 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 
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.
    There are 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 proposes to terminate the Federal marketing order for 
fresh prunes grown in Washington and Oregon, and the rules and 
regulations issued thereunder. The order contains authority to regulate 
the handling of fresh prunes grown in designated counties in Washington 
and in Umatilla County, Oregon. The Committee has determined that the 
order no longer provides the fresh prune industry with an effective 
marketing tool since evidence shows that prunes can be shipped absent 
the order's quality

[[Page 68512]]

regulations without negative impact, and that the costs associated with 
the order outweigh the benefits. The Committee also believes that the 
overall decline in the scope and volume of the fresh prune industry in 
Washington and Oregon supports order termination. As a consequence, in 
action taken on June 1, 2010, the Committee unanimously recommended 
that USDA terminate the order.
    Section 924.64 of the order provides 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. 
Furthermore, Sec.  608c(16)(A) of the Act provides that USDA shall 
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. An additional provision requires that Congress be 
notified not later than 60 days before the date the order would be 
terminated.
    The proposed termination of the order is a regulatory relaxation 
and would consequently reduce the costs to both handlers and producers 
(while marketing order requirements are applied to handlers, the costs 
of such requirements are often passed on to producers). Furthermore, 
the Committee has determined, through its analysis of the four year 
period of regulatory suspension, that termination would not negatively 
impact the marketing of fresh prunes. The Committee considered 
alternatives to this rule including leaving the order active but 
continuing with regulatory suspension, and suspending the order rather 
than terminating it. Interest was not shown for either option, however, 
and the Committee subsequently recommended that the order be 
terminated.
    This proposed rule is intended to solicit input and other available 
information from interested parties on whether the order should be 
terminated. USDA will evaluate all available information prior to 
making a final determination on this matter.
    In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. 
Chapter 35), the information collection requirements being suspended 
were approved previously by the Office of Management and Budget (OMB) 
and assigned OMB No. 0581-0189, Fruit Crops. Termination of the 
reporting requirements under the order is expected to reduce the 
reporting burden on Washington-Oregon prune handlers by 2.92 hours, and 
should further reduce industry expenses. Handlers are no longer 
required to file forms with the Committee. This proposed rule would 
thus not impose any additional reporting or recordkeeping requirements 
on either small or large 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.
    In addition, USDA has not identified any relevant Federal rules 
that duplicate, overlap or conflict with this rule.
    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.
    The Committee's meeting was widely publicized throughout the 
Washington-Oregon fresh prune industry and all interested persons were 
invited to attend the meeting and participate in Committee 
deliberations. Like all Committee meetings, the June 1, 2010, meeting 
was a public meeting and all entities, both large and small, were able 
to express their views on this issue. Additionally, interested persons 
are invited to submit information on the regulatory and informational 
impacts of this action on small businesses.
    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/MarketingOrdersSmallBusinessGuide. Any questions 
about the compliance guide should be sent to Antoinette Carter at the 
previously mentioned address in the FOR FURTHER INFORMATION CONTACT 
section.
    This rule invites comments on the proposed termination of Marketing 
Order 924, which regulates the handling of fresh prunes grown in 
designated counties in Washington and in Umatilla County, Oregon. All 
written comments received in a timely manner will be considered before 
a final determination is made on this matter.
    Based on the foregoing, and pursuant to Sec.  608c(16)(A) of the 
Act and Sec.  924.64 of the order, USDA is considering termination of 
the order. If USDA decides to terminate the order, trustees would be 
appointed to conclude and liquidate the affairs of the Committee, and 
would continue in that capacity until discharged by USDA. In addition, 
USDA would notify Congress 60 days in advance of termination pursuant 
to Sec.  608c(16)(A) of the Act.

List of Subjects in 7 CFR Part 924

    Prunes, Marketing agreements, Reporting and recordkeeping 
requirements.

PART 924--FRESH PRUNES GROWN IN DESIGNATED COUNTIES IN WASHINGTON 
AND IN UMATILLA COUNTY, OREGON--[REMOVED]

    For the reasons set forth in the preamble, under the authority of 7 
U.S.C. 601-674, 7 CFR part 924 is proposed to be removed.

    Dated: November 2, 2010.
David R. Shipman,
Acting Administrator.
[FR Doc. 2010-28046 Filed 11-5-10; 8:45 am]
BILLING CODE 3410-02-P
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